Don Maciejewski has published an article entitled "Dealing With Difficult Opposing Counsel – How to Tame "Rambo’" in the January / February 2012 edition of Litigation Commentary & Review.
Don includes 13 helpful hints on how to deal with jerks. As he correctly notes, "Rambo is probably well-skilled in lying and cheating and does not play by the rules."
There are lots of good suggestions in this article. Here is a sample:
The Sixth Circuit Court of Appeals has reversed a district court’s finding that an expert witness was not qualified to testify on behalf of a plaintiff in a health care liability action, relying on Shipley v. Williams, 350 S.W.3d 527 (2011).
In Bock v. University of Tennessee Medical Group, Inc., No. 10-5534 (6th Cir. March 26, 2012), the court ruled that Shipley required a remand but also made it very clear that merely determining a witness to be competent to give expert testimony did not end the inquiry. After competency is determined, case law and evidence rules in federal court still require application of the FRE 702 as interpreted by Daubert. The record was such that the court could not make the determination of these issues and thus a remand was appropriate.
The case includes a helpful discussion of the interaction between the Erie rule and the Federal Rules of Evidence and how the 6th Circuit has addressed the issue. Surprisingly, the United States Supreme Court has never directly addressed the issue.
Generally speaking, these are the rules for who may file a wrongful death lawsuit inTennessee:
It is rarely necessary to open an estate in Tennessee for the sole purpose of filing a wrongful death lawsuit. Thus, we rarely recommend that an estate be opened for the sole purpose of filing a lawsuit.
"Lost earning capacity is not a difficult concept to understand, but our friends in the defense bar sometimes are able to confuse judges and juries about what it means. The United States Court of Appeals for the Sixth Circuit confronted in issue recently in a case involving Ohio tort law, and got it right.
Andler received broken bones in her feet at an event in 2004 and brought a premises liability claim. Prior to her injury, Andler worked part-time at a childcare center and earned between $9,000 and $10,000 a year. According to Andler, her injuries forced her to switch jobs and, in the years following the injury, she worked full-time as a manicurist and pedicurist; she earned approximately $10,000 in 2006 and $25,000 in 2008.
At the first trial, Andler offered expert testimony of accountant Daniel Selby, who testified, using Bureau of Labor Statistics (“BLS”) figures, as to Andler’s lost earning capacity due to the injury. Selby testified that, but for her injury, Andler could have earned approximately $17,600 a year as a full-time childcare worker; post-injury, her annual earning capacity as a full-time manicurist and pedicurist was approximately the same. When factoring in the effects of her work disability, such as increased likelihood of missed work or longer-term exit from the workforce, Selby concluded that Andler’s damages for lost earning capacity totaled $232,346.
The Republican dominated House of Representatives has passed HR 5, a tort reform bill designed to make it more difficult for patients to pursue medical malpractice cases.
The bill passed 223-181. Ten Republicans voted against the legislation, and 7 Democrats crossed over to support the Republicans. Four Republicans voted "present."
The legislation combines two AMA-supported bills: the “Medicare Decisions Accountability Act” (HR 452), and the “Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act” (also HR 5). The legislation contains a wide range of AMA-supported medical liability reforms, including a $250,000 cap on noneconomic damages, punitive damage reforms, and more.
A truck driver who negligently caused a car wreck on an interstate highway cannot be held responsible for an accident occurring four hours later in traffic backed-up because of the original crash.
In Blood v. VH-1 Music First, No. 09-399 (7th Cir. Feb. 9, 2012), the appellate court affirmed a grant of summary judgment in favor of the original at-fault truck driver arising from a claim brought by persons injured and killed in the later crash. The plaintiffs in the second crash did not sue the driver of the first crash. Rather, the defendants in the second case filed third-party complaints against the driver in the original crash. Only then did the plaintiffs in the second crash sue the driver in the first crash.
The case was dismissed because the trial court found, and the appellate court agreed, that there was no proximate cause as a matter of law. The 7th Circuit explained that there was no real dispute about what happened: the second wreck was 4 and 1/2 miles away and 4 hours after the first. In addition, the Blood vehicle slowed to a stop in traffic and the second defendants slammed into the rear of that car.
I am in a lawsuit and had to answer interrogatories. I didn’t tell the truth about some things and the other side found out about it. Can I get sent to jail for not tellling the truth?
There is a risk of jail or a fine because interrogatories are answered under oath and lying under oath is perjury. However, I am unaware of any person actually having been jailed for not telling the truth in answers to interrogatories.
A more realistic risk is that the trial judge may sanction you (he or she would have the right to dismiss your case or, if you were sued, strike the answer in the case and enter judgment against you.) Lesser sanctions would include telling the jury what you did, awarding attorneys fees against you, and other penalties. Your mistake will also hurt your credibility with the judge and jury.
Four professors have written an article titled "Do Poor People Sue Doctors More Frequently? Confronting Unconscious Bias and the Role of Cultural Competency."
The article concludes that "Contrary to popular perception, existing studies show poor patients, in fact, tend to sue physicians less often. This may be related to a relative lack of access to legal resources and the nature of the contingency fee system in medical malpractice claims."
Quite frankly, there is no original research in this article, but it is a good collection of research that has been out there for several years.
State Volunteer Mutual Insurance Company, the Tennessee medical malpractice insurer owned by the doctors themselves, has had another profitable year even with its significant rate decrease.
The company, which insures about 75% of the doctors in the state, has announced the following financial results and other data for the year ending December 31, 2011:
The gross premiums written have decreased since 2007 for two reasons. First, SVMIC has lost almost 1600 doctors as clients during that period. Second, rates have declined substantially during that period. The combination of the two factors has resulted in a decreased of gross premium written of a little over $90,000,000. Profits remain high because investment income has remained about the same (actually, it is a little higher) and net paid loss and loss adjustment expenses have increased only about 5% in five years. Surplus during the 5 year period has increased over 80% despite payment (through premium credits) of $48,000,000.
Forbes recently published a fascinating article about Steve Susman’s thoughts on saving money in litigation.
The article reports that Susman has launched a website called "Trial by Agreement" that "provides a sort of 0pen-source repository of pre-trial agreements that lawyers can use to reduce the often needless expense of electronic discovery, depositions and tit-for-tat motions."
The "Trial by Agreement" website has form pretrial agreements and trial agreements that lawyers can use in their own cases. Here is a list of the proposed pretrial agreements:
