Day on Torts

September 20, 2012

Case Law on Pre-Suit Notice Requirement in Tennessee Health Care Liability (Medical Malpractice) Cases

Almost four years ago Tennessee adopted a requirement that health care provides were entitled to receive advance notice of the filing of Tennessee medical malpractice (now call "health care liability) lawsuits. Under the current version of the statute, notice must be given in the manner proscribed by statute before the expiration of the statute of limitations. Exceptions are granted only for extraordinary cause. Giving appropriate notice extends the statute of limitations and statute of repose by 120 days.

The Tennessee pre-suit notice statute can be found at T.C.A. Section 29-26-119. I wrote an article about the most recent version of the statute for the Tennessee Bar Journal; the article is titled "Med Mal Makeover: The New Medical Malpractice Notice and Certificate of Good Faith Statute."

I have assembled a list of the cases that discussed the pre-suit notice requirement. Here are the two cases currently pending before the Tennessee Supreme Court:

September 17, 2012

Tennessee Lawyers Beware! Legal Research Issue

by The Law Offices of John Day, P.C.

The Lexis website that contains the Tennessee Code that is available through the Tennessee Administrative Office of the Courts is not updated with 2012 legislative changes. This despite the fact that many of those changes went into effect July 1, 2012, or even earlier.

It appears that Westlaw has updated the Code.

Thus, lawyers are advised not to count on the Lexis website available through the AOC at this time.

September 6, 2012

Distribution Of Net Wrongful Death Proceeds in Tennessee

by The Law Offices of John Day, P.C.

As regular readers know, the Tennessee Bar Association has published a regular column in the Tennessee Bar Journal called "Day on Torts" for many years. I enjoy writing for these articles and am thankful for the many calls, letters and emails I have received over the years from my fellow lawyers thanking for me writing them.

The September 2012 edition of the publication includes my latest column, titled "Distribution of Net Proceeds in Tennessee Wrongful Death Cases." The article offers an analysis of Tennessee law on how statutory beneficiaries divide the net proceeds of wrongful death settlements and judgments.

I wrote this column after receipt of many calls from lawyers asking me questions on the subject. I hope that this work helps other lawyers serve their clients in Tennessee wrongful death cases.

August 29, 2012

Lawyers Without Legal Malpractice Insurance

by The Law Offices of John Day, P.C.

I am fortunate to receive many calls on many types of cases, some of which fall outside of my normal practice area. i decided I would seek out a lawyer to whom I could associate on a particular type of case – this lawyer enjoyed a good reputation on cases of this type. I called him and had a general discussion about the type of calls I was getting and inquired whether he was interested in receiving some referrals.

He said he was, and we had a discussion about how we could work together to assist future clients. I had a good feeling about the potential of working together.

Then, I asked him to confirm that he carried legal malpractice insurance. He said he did not, I told him I could not sleep at night if I did not have legal malpractice insurance for our firm. He said that if he got sued and put in a position of probable financial loss he would file bankruptcy and avoid the loss.

August 27, 2012

Federal Courts Issue Revised Jury Instructions on Social Media

by The Law Offices of John Day, P.C.

The Federal Evidence Review Blog has been kind enough to let us know that the federal Judicial Conference Committee on Court Administration and Case Management ("CACM") has issued new proposed jury instructions on the use of social media by jurors.

"The overwhelming majority of judges take steps to warn jurors not to use social media during trial, but the judges surveyed said additional steps should be taken," said Judge Julie A. Robinson, CACM Committee chair. "The judges recommended that jurors frequently be reminded about the prohibition on social media before the trial, at the close of a case, at the end of each day before jurors return home, and other times, as appropriate. Jurors should be told why refraining from use of social media promotes a fair trial. Finally, jurors should know the consequences of violations during trial, such as mistrial and wasted time. Those recommendations are now part of the guidelines."

Here are the proposed instructions:

August 21, 2012

7th Circuit Finds Expert Testimony for Plaintiff Admissible in Products Liability Claims

by The Law Offices of John Day, P.C.

The 7th Circuit Court of Appeals has upheld a plaintiff’s verdict in a products liability case notwithstanding the defendant’s assertion that the plaintiff’s expert should have been excluded under Daubert.

In Lapsley v. Xtech, Inc., No. 11-3313 (7th Cir. July 27, 2012) Industrial grease was propelled in a jet with enough energy to penetrate and pass through the human body like a bullet. That jet hit and disabled plaintiff Leonard Lapsley. The jury found that the accident occurred because defendant defectively designed the piece of equipment that propelled the grease.

Defendant challenged the admissibility of plaintiff’s expert witness, arguing that he lacked a scientific basis for his testimony. The trial judge permitted the witness to testify, and the defendant challenged that ruling on appeal after a jury found it liable for Lapsley’s injuries.

August 5, 2012

Declarations Can Now Be Used in Lieu of Affidavits in Tennessee State Courts

by The Law Offices of John Day, P.C.

Tennessee’s rules of civil procedure now permit the use of declarations in lieu of affidavits.

TRCP Rule 72 provides as follows:

Wherever these rules require or permit an affidavit or sworn declaration, an unsworn declaration made under penalty of perjury may be filed in lieu of an affidavit or sworn declaration. Such declaration must be signed and dated by the declarant and must state in substantially the following form: "I declare (or certify, verify or state) under penalty of perjury that the foregoing is true and correct."

August 1, 2012

Missouri Supreme Court Strikes Down Damage Caps

by The Law Offices of John Day, P.C.

Yet another effort to restrict the right of jurors to award damages based on evidence has been declared unconstitutional. This time, the Supreme Court of Missouri struck down the damage caps imposed on damages for pain, suffering, disfigurement, and disability.

In Deborah Watts as Next Friend for Naython Kayne Watts v. Lester E. Cox Medical Centers d/b/a Family Medical Care Center, Lester E. Cox Medical Centers, Melissa R. Hermann, M.D., Matthew P. Green, D.O., and William S. Kelly, M.D., SC91867 (Mo. July 31, 2012), the court found that the caps violated the Missouri State Constitution because it violated the right to trial by jury. Article I, section 22(a) of the Missouri Constitution, mandates in pertinent part that “the right of trial by jury as heretofore enjoyed shall remain inviolate.”

The court reached this result after over-ruling twenty year old precedent that said that damage caps did not violate the Constitution. The court said "while this Court always is hesitant to overturn precedent, it nonetheless has followed its obligation to do so where necessary to protect the constitutional rights of Missouri’s citizens."

July 17, 2012

Juror Misconduct: Social Networking

by The Law Offices of John Day, P.C.

The Winter 2012 edition of the FDCC Quarterly includes an article called "Juror Misconduct in the Age of Social Networking." Written by Michael K. Kiernan and Samuel E. Cooley, the article discusses how a juror’s use of social networking tools "can result in a denial of the defendant’s due process rights …."

I guess it never crossed the mind of these gentlemen that the a juror’s use of these tools could impact the rights of plaintiffs.

Nevertheless, the fifteen-page article has a collection of cases from around the country that discuss the impact of social networking on jury verdicts. The subjects include public posting or tweeting about on-going trials, using social media to contact a party or a witness, improper communication among jurors, and Internet research during trial.

July 16, 2012

Does A Severely Injured Plaintiff Have A Right to Be in The Courtroom?

by The Law Offices of John Day, P.C.

It is not uncommon for defendants in severe brain injury, spinal cord or burn injury cases to ask that the plaintiff not be present in the courtroom. The argument goes that the injured person cannot contribute to the prosecution of the case and therefore the only purpose that they are brought into the courtroom is to gain sympathy.

The Georgia Supreme Court faced this issue in the recent case of Kesterson v. Jarrett, S11G0590 (Ga. S. Ct. June 18, 2012). A trial judge excluded the minor plaintiff, Kyla Kesterson, a young child with severe cerebral palsy, from the courtroom during the liability phase of a bifurcated medical malpractice trial. Plaintiffs argued that they did not intend for the minor plaintiff to be present in court for an extended period of time during any phase of the trial, but argued that she had the constitutional right to be present.

The Georgia The Court of Appeals affirmed, saying that the trial court has discretion to exclude a civil party when the party’s physical and mental condition may generate jury sympathy and her mental condition precludes her from meaningfully participating in and understanding the proceedings. The support for that position was a decision from our own 6th Circuit Court of Appeals, Helminski v. Ayerst Labs., 766 F2d 208, 218 (6th Cir. 1985)).