Articles Posted in Miscellaneous

As a 51 year old man happily married to a beautiful, intelligent 37 year old woman, I confess I don’t spend a lot of time thinking about thongs.  I also confess that it never crossed my mind that a person wearing a thong could ever suffer a personal injury from the thong.    Oh sure, I knew that a thong could cause financial loss, usually in the form of alimony paid by the married man dating a woman who wore one.  And I could certainly image some degree of discomfort when wearing a thong in a foreseeable manner- clearly an assumed risk.  But actionable personal injury?  Nope, never crossed my mind.

Well, it has happened.  Or at least Macrida Patterson, a 52 year old woman from California, says it happened.  Her lawyer told The Smoking Gun that "a "design problem" caused [a] decorative piece [on the thong] to come loose and strike Patterson in the eye, causing damage to her cornea."    The offending piece of merchandise was  reportedly  a "’low-rise v-string’ from the Victoria’s Secret ‘Sexy Little Thing’ line."  Read the article and complaint here.

TSG also tells us that   "v-strings" are an undergarment that serves as  the Victoria’s Secret variant on the "g-string," " which has long been favored in the battle against visible panty lines" (also known as "vpls").  (Aren’t you men glad TSG saved us hours of time paging through the latest VS catalog trying to figure this out?  For those of you who don’t trust TSG, go here and conduct your own research.)

The Tennessee Supreme Court has issued an opinion interpreting Rule 35 of the Tennessee Rules of Civil Procedure.

Rule 35 is the rule the permits a party to have a physician of the party’s choice examine the adverse party.  Unfortunately, it is often referred to as an independent medical examination, and indeed the opinion mistakenly refers to it as such.  Rule 35 exams usually have the same degree of objectivity as a mother opining on  the character and physical appearance of her only son. 

But on to substance.  Very few civil procedure cases find their way to the Tennessee Supreme Court (exception:  Rule 56) and when one does get there we need to read it.  This is true even in this case where the plaintiff was pursuing a worker’s compensation claim and the issue is primarily covered by the Worker’s Compensation Act.

Governor Bredesen has signed the "Uniform Interstate Depositions and Discovery Act" into law.  The Act is effective for discovery requests after July 1, 2008. 

The legislation establishes a procedure for litigants in other states to do discovery in Tennessee.  However, the Act is a uniform act, so Tennessee lawyers will benefit from knowledge of it when they have to do discovery in other states that also have the Act

The legislation also repeals on portion of the current chapter, T.C.A. Section 24-9-103.

The Tennessee Supreme Court has released an opinion that settles (and changes) the law on the "prior suit pending" doctrine.  The issue rises infrequently in tort cases, but is still worthy of note.

In Tennessee a worker’s compensation lawsuit cannot be filed until after a benefit review conference (BRC) does not result in resolution of the case.  Either the employer or the employee may file a worker’s compensation complaint.  When the employee and employer reside in two different judicial circuits and one or both lawyers perceive that one forum is more favorable than the other there is a literal race to see who can file first where after an unsuccessful BRC.  If both file on the same day which action is permitted to proceed?

The Court said that "a lawsuit becomes “pending” when the complaint is filed. Although the filing of the complaint initiates the pendency of the case, a subsequent case will be subject to dismissal under the prior suit pending doctrine only if the court in the prior case has acquired personal jurisdiction over the parties." 

I have been in Washington, D.C. since Sunday attending the 85th Annual Meeting of the American Law Institute.  Thanks to Howard Vogel, Judge Cissy Daughtrey, Chief Justice Mickey Barker, Bill Wagner, and Lucian Pera I was elected to membership in the ALI in the Fall of 2006. 

We heard from Justice Ginsberg Monday morning; the rest of the day was left to a debate on a tentative draft of certain aspects of the law of aggregate litigation.  On Tuesday we dealt with the law of nonprofit organizations and unjust enrichment. 

There were no  pure tort projects on the agenda for this meeting.  I belong to the Members Consultative Group for two projects, Liability for Physical and Emotional Harm and Economic Torts and Related Wrongs.  Here is a description of the drafting process.

This article by Judge Richard Posner (7th Circuit Court of Appeals) does a fine job discussing appellate briefs and oral arguments.

A sample:

"The second biggest mistake that appellate advocates make—after exaggerating how much the judges know about or are willing to devote time to learning about a given appeal—is to think that they can win by rubbing the judges’ noses in the precedents. In an argued civil case, as I have just been emphasizing, there probably is no dispositive precedent—otherwise the case would probably not have gotten to the point of an orally argued appeal. And if there is no dispositive precedent, then unless the appellate judges are very gullible, it is futile to argue the case as if there were.

"From 2004 through 2006, patient safety errors resulted in 238,337 potentially preventable deaths of U.S. Medicare patients and cost the Medicare program $8.8 billion, according to the fifth annual Patient Safety in American Hospitals Study."

So begins this article found on the MSN website.  The article notes that   (a)"of the 270,491 deaths that occurred among patients who experienced one or more patient safety incidents, 238,337 were potentially preventable," and (b) "if all hospitals performed at the level of the top-ranked hospitals, about 220,106 patient safety incidents and 37,214 patient deaths could have been avoided, and about $2 billion could have been saved."

Here is a copy of the HealthGrades press release.  It includes this interesting remark: "We now have convincing case studies that perfection is possible when will to change and improve is present and the effort is made to implement new practices. While these examples illustrate that we have a much clearer idea of what we need to do, formidable barriers remain. Many in the industry continue to deny that truly safe care is achievable, thus the status quo continues, resulting in variation in patient safety in U.S. hospitals that is large and unpredictable. Numerous studies, including the 2007 AHRQ National Healthcare Quality Report (NHQR) assessing the state of hospital quality and patient safety, conclude and support the findings the progress remains modest and variation in healthcare quality remains high.”

The South Carolina Supreme Court has ruled that a defendant employer may not avoid a claim for negligent hiring, training, supervision, or entrustment by simply agreeing that it is vicariously liable for the actions of its employee.

In James v. Kelly Trucking Company, the Court said that just because a company is vicariously liable for acts of an employee does not mean that it cannot be liable for its own negligence.  As the Court explained, "[a] plaintiff may, in a single lawsuit, assert many causes of action against a defendant. The considerations limiting a plaintiff’s available causes of action in the typical case are that the plaintiff must be able to demonstrate a prime facie case for each cause of action and that a plaintiff may ultimately recover only once for an injury."

The opinion also gives a nice summary of the common law of negligent hiring, training, supervision, or entrustment:  "in circumstances where an employer knew or should have known that its employment of a specific person created an undue risk of harm to the public, a plaintiff may claim that the employer was itself negligent in hiring, supervising, or training the employee, or that the employer acted negligently in entrusting its employee with a tool that created an unreasonable risk of harm to the public. See Restatement (Second) of Torts § 317 (1965) (Cited with approval in Degenhart v. Knights of Columbus, 309 S.C. 114, 116, 420 S.E.2d 495, 496 (1992))."

Well, it has been a longer break than I planned.  The trial started on February 25 and went to the jury shortly before lunch yesterday, March 11.   The jury actually started deliberations at about 12:45 and is returning to the courthouse for further deliberations today at 8:00 a.m.

Obviously, it  would not be appropriate for me to discuss the trial while the jury is still out.