Day on Torts

May 27, 2011

A Look Back: “Very, Very Modestly”

My friend Kyle Hendrick from Chattanooga send in a nice comment this morning, referencing a post of over 4 years ago that, quite frankly, had completely slipped my mind. I looked it up – and here it is:

The President’s daughter Jenna has written a book that she "very, very modestly" hopes will have the influence of Anne Frank’s The Diary of Anne Frank.

Like Jenna, I too find myself tightly bound by humility. Her willingness to reveal her hopes despite her extreme modesty compel me to reveal one of my own hopes: that this blog will have the influence of the Declaration of Independence.

May 26, 2011

American Medical Association Applaudes Lawyers and Use of The Justice System

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

The American Medical Association has finally recognized the important role that lawyers play in advancing the interests of their clients in the justice system. Indeed, it has even created a "Litigation Center" to "ensure physicians’ rights are upheld in the most important challenges facing today’s working physician."

Rumor has it that the AMA is considering whether their patients should have the same access to legal representation and the civil justice system. A report on this issue is due December 25, 2067.

May 24, 2011

Tennessee Legislative Update 2011 – Worker’s Comp Legislation

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

The Tennessee General Assemby has made it more difficult to bring worker’s compensation cases when the injured employee tests positive for the presence of alcohol or other drugs.

Under current T.C.A. Sec. 50-6-110 if an injured employee has a positive (within defined limits) blood test it is presumed that the use of alcohol or other drug was the cause of the injury. However, that presumption can be rebutted by other evidence.

Public Chapter 203 raises the burden of proof on the employee in such cases from "preponderance of the evidence" to "clear and convincing."

May 23, 2011

Smoking Gun Memo Shows Up in Asbestos Trial

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

The Asbestos Law Journal has this great post on a huge asbestos verdict in Mississippi a short time ago. The blog notes that "part of why the jury did so may be because of a handwritten note that indicates one of the defendants engaged in a cost-benefit analysis that concluded it was OK to give people cancer as long as the profit exceeded the cost of the ensuing lawsuits."

Here is the a PDF of the hand-written document at issue. The operative language is about one-third of the way down the page.

May 23, 2011

The Scope of Expert Testimony in Tennessee

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

The Tennessee Bar Journal has published an article I wrote concerning the permissible scope of expert testimony. The article discusses the decision of the Tennessee Court of Appeals in Holder v. Westgate Resorts Ltd.. Here is the majority opinion and here is the concurring / dissenting opinion of Judge Susano.

This is an excerpt of the article, titled "That’s (Not) a Fact, Jack:"

The majority opinion in Holder has grave implications for the trial of cases involving experts. It has the potential for injustice to plaintiffs and defendants. Fortunately, the Tennessee Supreme Court accepted review of the case. In the view of this writer, the court should send a clear message that the proffered testimony in this case was properly excluded and that otherwise inadmissible facts, data and opinions should not normally find their way to the fact finder merely because an expert witness wants to testify about them.

May 19, 2011

Tennessee Legislative Update – 2011 – Bicycle Safety

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

The Tennessee General Assembly has passed new legislation designed to enhance the safety of bicycle riders. The legislation is Public Chapter 192 and will come into effect on July 1, 2011.

The new legislation arms those representing bicycle wreck victims with a basis for asserting negligence per se against defendant drivers.

May 17, 2011

ALI Adopts Restatement Provision on Liability of Those Who Hire Independent Contractors

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

On Monday, May 16, 2011 the American Law Institute adopted Chapter 10 of the Restatement of the Law Third, Torts: Liability for Physical and Emotional Harm.

Chapter 10 addresses liability, both direct and vicarious, of those who employ an independent contractor. It replaces Chapter 15 of the Prosser / Wade Restatement Second of Torts.

The Reporter for this effort is Ellen Pryor of Southern Methodist University.

May 16, 2011

Tennessee Legislative Update – 2011

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

Among the bills passed by the Tennessee General Assembly is Public Chapter 130, a bill that dramatically changes the law applicable to the business of insurance.

The legislation repeals the ability of consumers to sue an insurance company under the Tennessee Consumer Protection Act or any other statutory provision other than the limited rights extended to consumers in the insurance section of the Code.

For reasons I cannot explain, I cannot provide a link to the legislation. You can find it on the Tennessee Secretary of State’s website.

May 13, 2011

Tort Reform Legislation Passes House and Senate

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

The tort reform package developed by a coalition of business interests and promoted by the Republican Party has passed the Tennessee House and Senate. The bill was aggressively promoted by the Governor’s Office and thus will be signed into law in the next few days.

The Legislation creates many changes to the law, but here are a few low points:

Changes to venue rules that will limit the places where corporations can be sued.
Expands the notion of medical malpractice cases to capture all claims against nursing homes.
Caps non-economic damages to $750,000 in most cases and $1,000,000 in rare cases.
Limits the bond that must be posted on appeal for losing defendants.
Eliminates the need to post a bond on punitive damages.
Limits the imposition of punitive damages.
Removes securities claims from the TCPA.
Removes the ability of consumers to bring TCPA claims for other than certain listed unfair and deceptive acts.
Offers increased protections to manufacturers of products

The legislation applies to causes of action that accrue after October 1, 2011. I will post a copy of the bill in its final form next week.

May 10, 2011

Tennessee Adopts New Rules – Part 2

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

The Tennessee General Assembly has adopted rule changes proposed by the Tennessee Supreme Court. This is one of multiple posts discussing the new rules of most interest to tort lawyers.

Rule 26 of the Tennessee Rules of Civil Procedure has been changed to increase the disclosures required for expert witnesses. The new rule requires that

the party shall disclose the witness’s qualifications ( including a list of all publications authored in the previous ten years), a list of all other cases in which. during the previous four vears, the witness testified as an expert. and a statement of the compensation to be paid for the study and testimony in the case.