s Tag Archives — Day on Torts

February 1, 2011

Discovery Of an Expert’s Income From Testifying

The Appellate Division of the Superior Court of New Jersey has ruled that an expert should not be required to reveal details about his income from testifying as an expert witness.

In Gensollen v. Pareja, No. A-0401010T3, (N.J.A.D. 11/19/10), doctor who examined the plaintiff in a personal injury case admitted in a deposition that over 95% of his litigation work was for defendants. He also testified that testified that he conducted an average of eight to nine IMEs per week. He also testified that his two doctor orthopedic firm charges a fee of $895 per exam, but would impose additional charges depending on the extent of records and x-ray or MRI studies reviewed in a given case.

Plaintiff wanted more data to show bias, and the trial judge ordered defendant to produce, at his own cost, (a) documentation indicating the percentage of the firm’s findings in the past five (5) years that supported the premise that plaintiff suffered no type of permanent injury, (b) documentation indicating the percentage of the firm’s work that is defense related and the percentage of his work that is plaintiff related; and (c) documentation indicating what monies in the past five (5) years have been paid by defense attorneys to the firm for conducting medical exams.

July 29, 2010

Changes to Tennessee Worker’s Compensation Law

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

This post is part of our continuing effort to advise Tennessee lawyers about substantive law changes resulting from the actions of the General Assembly.

Public Chapter 858 sets forth a procedure for helping injured workers obtain medical benefits they are entitled to receive after a judgment or settlement of a worker’s compensation action. It allows a Department of Labor employee to order an employer to pay for treatment and award attorney’s fees and costs incurred by the employee to obtain the benefits.

It became effective on April 30, 2010.

October 12, 2009

Fee Approvals When Representing Minors

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

It was almost two years ago that I wrote about Wright v. Wright, No. M2007-00378-COA-R3-CV (Tenn. Ct. App. Dec. 12, 2007). (Post 1) (Post 2) Wright 1 is an opinion authored by Judge Walter Kurtz that reversed a decision to award a plaintiff’s lawyer a one-third contingent fee in a personal injury case brought on behalf of a minor. The lawyer seeking the fee not only did know how much time he spent on the matter but did not submit an affidavit or any evidence of how much time was spent. Nor did he introduce into evidence any information relevant to the RPC 1.5(a) factors that govern fees issues. Frankly, the lawyer here simply assumed that the trial judge would enforce the fee contract (one-third of the recovery) and did not think about the record.

The case was remanded so that a reasonable fee could be determined. After discovery and a hearing, the trial judge awarded the plaintiff’s lawyer a fee of $131,000. (The amount of the settlement of wrongful death case was $425,000.) The child’s guardian ad litem perfected another appeal, arguing that the fee was too high.

Wright v. Wright, No. M2008-01181-COA-R3-CV (Tenn. Ct. App. Oct. 8, 2009) ("Wright 2") affirmed the Trial Court’s award of the $131,000 fee. The opinion details the extensive work done on the case, and reveals how plaintiff’s counsel was able to settle the case for $425,000 despite the fact that the applicable insurance coverage was only $50,000. Also important to the outcome: the child was suing her grandmother, and thus a substantial judgment (or any judgment) was certainly in doubt.

August 24, 2009

New Tennessee Legislation of Interest to Tort Lawyers – Post 14

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

Well, are all of these posts on new legislation of interest to Tennessee tort lawyers driving you crazy? Some lawyers forget that the Tennessee General Assembly has passed hundreds of laws that impact tort practice. The rest of us know that tort law has it roots in common law, but is also greatly impacted by statutes and regulations. Thus, we continue down the path of identifying new legislation that will impact the right of your clients to recover damages.

This post addresses a change to the worker’s compensation law, not a tort subject but one of interest to many tort lawyers. T.C.A. Sec 50-6-110(a), which addresses those situations in which worker’s compensation will not be paid to a worker, has been revised. Here is the new , revised section created by Public Chapter 403:

(a) No compensation shall be allowed for an injury or death due to:
(1) The employee’s willful misconduct;
(2) The employee’s intentional self-inflicted injury;
(3) The employee’s intoxication or illegal drug usage;
(4) The employee’s willful failure or refusal to use a safety device;
(5) The employee’s willful failure to perform a duty required by law;
(6) The employee’s voluntary participation in recreational, social,
athletic, or exercise activities (including, but not limited to, athletic events,
competitions, parties, picnics, exercise programs) whether or not the
employer pays some or all of the costs thereof unless:
     (A) Participation was expressly or impliedly required by the
employer; or
     (B) Participation produced a direct benefit to the employer
beyond improvement in employee health and morale; or
     (C) Participation was during employee’s work hours and
was part of the employee’s work-related duties; or
     (D) The injury occurred due to an unsafe condition during
voluntary participation using facilities designated by, furnished by
or maintained by the employer on or off the employer’s premises
and the employer had actual knowledge of the unsafe condition
and failed to curtail the activity or program or cure the unsafe
condition.

July 30, 2009

New Tennessee Legislation of Interest to Tort Lawyers – Post 2

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

The second post in this series reports on a new law that confers immunity from civil action upon victims of crime for testimony given at offender’s parole hearing unless testimony is intentionally or maliciously false and defamatory.

Here is the full text of the new statute:

T.C.A. Section 40-38-303.