Legal Research

ADA

Employees or their spouses who suffer discrimination because of a disability may sue for damages under the American with Disabilities Act.

See When is Individual Regarded as Having, or Perceived to Have, Impairment Within Meaning of Americans With Disabilities Act (42 U.S.C.A. sec. 12102(2)(C)), 148 ALRFED 305

Advertising

Tennessee Rule of Professional Conduct 7.1 sets forth the standards for lawyer advertising. Tennessee Formal Ethics Opinions may be searched at the BPR website.

Alcohol

Presumption that a 0.08% blood alcohol level, under Tenn. Code Ann. § 55-10-408(b), may be used in a jury instruction where question is whether a party to a civil action was intoxicated at the time of the accident. McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992).

Dram Shop liability. T.C.A. § 57-10-102 prohibits selling alcoholic beverages to an obviously intoxicated person or to a minor. Selling alcohol to an intoxicated person or to a minor will support a cause of action against the seller if the sale was beyond a reasonable doubt the proximate cause of the injuries or death. Biscan v. Brown, No. M2001-02766-COA-R3-CV, 2003 WL 22955933 (Tenn. Ct. App. December 15, 2003). By contrast, mere social host liabilty (furnishing alcohol) does not support a cause of action. T.C.A.. §§ 57-10-101 & -102 cuts off civil liability for the mere furnishing of alcohol to someone who then causes injury to a third person. Downen v. Testa, 2003 WL 2002411 (Tenn.Ct.App.,2003). If a social host furnishes alcohol to a minor, Downen v. Testa, 2003 WL 2002411 (Tenn.Ct.App.,2003) held there is still no liability as a result of the Dram Shop Act. Permission to appeal in Testa was been granted by the Tennessee Supreme Court (Dec. 1. 2003).

Example: Dram Shop-Wrongful Death Complaint

Annuitant

Because personal injury damages are awarded as a lump sum, defendants often seek to introduce the testimony of an “annuitant expert” to show that a particular sum of money could be used to purchase an annuity (at a supposed “reasonable cost’) that would pay periodic damages. Since the purchase price of an annuity is much lower than what traditional damages would be, courts have been called on to determine whether such testimony should be introduced. In Mercer v. Vanderbilt University, Inc., 134 S.W.3d 121 (Tenn.,2004) the court affirmed the trial court’s decision to exclude such testimony: “Many changing variables affect the quote that an annuitist delivers to the jury. For instance, time limits and market factors both impact annuity rates. Moreover, an insurance company is in no way bound to the quoted rate or to its initial underwriting decision. These factors not only make the testimony as to the cost of an annuity speculative, but they also raise questions about its potential to mislead the jury. See Gold, Vann & White, P.A. v. DeBerry, 639 So.2d 47, 55 (Fla.Dist.Ct.App.1994). Furthermore, such testimony invites the jury to depart from its legal duty to award present cash value. See Gusky v. Candler Gen. Hosp. Inc., 192 Ga.App. 521, 385 S.E.2d 698, 701 (1989); Herman v. Milwaukee Children’s Hosp., 121 Wis.2d 531, 361 N.W.2d 297, 306 (1984); see also Waller v. Skeleton, 31 Tenn.App. 103, 212 S.W.2d 690, 698 (1948) (suggesting that an award of future medical expenses must be reduced to present value). Therefore, the trial court did not err in excluding this testimony.”

For a case discussing cross-examination of an annuity expert, see Steele v. Ft. Sanders Anesthesia Group, 897 S.W.2d 270 (Tenn. App. 1994).

Appellate Procedure

For an excellent overview of Tennessee Appellate Procedure see APPELLATE ADVOCACY, A Handbook on Appellate Practice in Tennessee (Third Edition)(last updated December 31, 2003)

Agents of Hospital

A hospital may be held liable for the negligent acts of its apparent agents and members of a hospital’s medical staff may be considered to be its apparent agents under certain circumstances. White v. Methodist Hosp., 844 S.W.2d 642, 647-48 (Tenn.Ct.App.1992). An issue of actual agency may also be presented. Davis v. University Physicians Foundation, Inc, 1999 WL 643388 (Tenn.App.,1999).

Arbitration/Mediation

In Buraczynski v. Eyring, 919 S.W.2d 314, 317 (Tenn.1996) the Tennessee Supreme Court held (1) arbitration agreements between physicians and patients are not per se void as against public policy; (2) agreement in instant case was not unenforceable due to breadth of its application; (3) although agreement constituted contract of adhesion, it was not unconscionable, oppressive, or outside parties’ reasonable expectation so as to be unenforceable.

In Raiteri ex rel Cox v. NHC Healthcare/Knoxville, Inc., 2003 WL 23094413, (Tenn. Ct. App. December 30, 2003) the Court of Appeals held in a wrongful death nursing home negligence case that the trial court erred in granting a motion to compel mediation and arbitration pursuant to the dispute resolution procedures contained in the defendant’s nursing home admission agreement.The agreement was signed by the patient’s husband, although the wife had not been adudicated incompetent. The agreement waived a jury trial and provided for arbitration. The court discussed both Buraczynski v. Eyring, 919 S.W.2d 314, 318 (Tenn. 1996) (which upheld an arbitration agreement) and Howell v. NHC Healthcare-Fort Sanders, Inc., 109 S.W.3d 731, 733 (Tenn. Ct. App. 2003) (that refused enforcement of arbitration), noting that Howell refused to order mediation or arbitration based upon a determination that the NHC admission agreement was unenforceable because (1) the patient’s husband could not read and (2) the admissions coordinator failed to explain that by signing the agreement he was waiving his wife’s right to a jury trial. Id. at 735.The Eastern Section Court appeals affirmed the trial court in Howell because the nursing home “ha[d] not demonstrated that the parties bargained over the arbitration terms, or that it [sic] was within the reasonable expectations of an ordinary person.” The Court further explained the Howell holding: “We held in Howell that the party seeking to enforce an alternative dispute resolution agreement must show that the parties “‘actually’ bargained over the arbitration provision or that it was a reasonable term considering the circumstances.” Id. at 734 (quoting Brown v. Karemor Int’l, Inc., C/A No. 01A01-9807-CH-00368, 1999 WL 221799, at *3 (Tenn. Ct. App. M.S., filed April 19, 1999). The Court in Raiteri, however, struck down the NHC agreement not simply because the husband (rather than wife signed) but because the agreement was a contract of adhesion.

Alternative Dispute Resolution Resource Guide

Google search.

Attorneys

Tennessee Board of Professional Responsibility Website.

Tennessee Rules of Professional Conduct

Legal Ethics Forum

American Legal Ethics Library

Freivogel on Conflicts

Tennessee attorneys

Martindale-Hubbell Lawyer Locator

Tennessee Bar Association Member Directory

Lawyer Referral

Attorneys’ Lien. Starks v. Browning, 20 S.W.3d 645 (Tenn.Ct.App.,1999).

Contract must say quantum meruit if attorney withdraws. Elliott v. Joyce, No. 93SC528 (Colo. Nov. 7, 1994).

Fee splitting agreement must be agreed to by client. Kaplan v. Pavalon & Gifford, No. 9902221 (7th Cir. Dec. 13, 1994).

Departing lawyers on a contingency fee entitled to more than quantum meruit. In re L-Tryptophan Cases of Bonner, No. C3-93-2002 (Minn. Ct. App. June 21, 1994).

“Attorneys fees” includes paralegal work. Taylor v. Chubb Group of Ins. Co., No. 81-492 (Okla. May 10, 1994).

Solos must plan for disability. Maine State Bar Opinion, No. 143.

Law firm can sue former client if no confidence or secrets. Solow v. R. Grace & Co., 193 A.D.2d 459, 597 N.Y.S. 2d 361 (N.Y. 1994).

Attorneys’ Fees

Section 1983 case– attorneys fees in the Heller litigation over the meaning of the Second Amendment. In a 65-page decision the judge awarded the prevailing lawyers about 1/3 of what they had requested, netting them just over $1 million. The judge chooses between two different matrices that purport to show market rates for that kind of complex federal litigation.

Attorney Office Management

There is a wealth of information on Law Office Management. Findlaw’s Law Practice Management page provides links to the most helpful sources.

ABA Law Practice Management Section Publications

Law Practice Today

Lawyers Weekly USA

National Law Journal

Lawyer Lounge

Automobile Accidents

Dangerous intersection. Burgess v. Harley, 934 S.W.2d 58 (Tenn. App. 1996)(holding that a county was liable for failing to maintain an intersection and allowing it to be in a dangerous condition).

A N.H. Jury Awarded $2.6M in 2005 in car crash suit, citing engineers for faulty intersection design. David DeBenedetto was killed when his pickup truck collided with a car driven by a 71-year-old woman who pulled into the intersection on Route 28 after getting frustrated by a traffic light that got stuck on red for at least five minutes.The Rockingham County Superior Court jury agreed with DeBenedetto’s family that Manchester-based CLD Engineering Associates, which redesigned the intersection, was partly at fault.The jury placed 49 percent of the blame on the engineering company, 49 percent of the blame on the other driver and 2 percent on the state Department of Transportation.

2/12/05: Jury awards crash victims $2.9 million in lawsuit against state. A Richland County South Carolina jury ordered the state to pay $2.9 million to victims of a car crash, saying the Department of Transportation should have put up cable median barriers faster to prevent the wreck.

Automobile Accident Seminar paper (DRS & Associates).

Bad Faith/Failure to Settle

The bad faith refusal to settle an insurance claim is specifically dealt with in Tenn.Code Ann. § 56-7-105(a) which says that an insured may recover up to a twenty five percent penalty in all cases when the insurer, in bad faith, refuses to pay the claim within sixty days after demand has been made. In Myint v. Allstate Ins. Co, 970 S.W. 2d 920 (Tenn. 1998), however, the Supreme Court held: (1) Consumer Protection Act applies to acts and practices of insurance companies for bad faith/failure to settle.

In the event the of a verdict in excess of the policy amount, the insured may recover the excess amount if the company failed to exercise good faith and diligence. Maclean v. Tennessee Farmers Mut. Ins. Co., 1994 WL 697857 (Tenn.App.,1994).20 TAM 2-7 (Tenn. App. Dec. 14, 1994).

Bankruptcy & P.I. Claims

If a defendant declares bankruptcy, there is an automatic stay on proceeding s, including any personal injury lawsuit. Thus, the plaintiff’s attorney will need to obtain an order of relief from the stay from the bankruptcy court. In addition, the fee contract must be approved by the trustee/court. Although a personal injury exception limits the power of a bankruptcy court to liquidate or determine the amount of a personal in jury claim, 28 U.S.C.A. § 157(b)(2)(B), a bankruptcy court can determine the vailidty of a claim. In re UAL Corp. 310 B.R. 373 (Bkrtcy.N.D.Ill.,2004). The best approach is to involve a bankruptcy lawyer to best protect the client’s interests.

Bankruptcy–Dischargeable Debts. Damages resulting from “actual fraud” or “willful and malicious injury by the debtor” cannot be discharged in bankruptcy. Cohen v. de la Cruz, 523 U.S. 213, 118 S.Ct. 1212 (U.S.,1998); 11 U.S.C. § 523.

Birth Trauma/Injuries

Medical malpractice can cause serious birth injuries (e.g. cerebral palsy and brain damage) from trauma and deprivation of oxygen during labor. The American College of Obstetricians and Gynecologists (ACOG) has published a position paper that attempts to set forth criteria for brain injury caused by birth trauma. The report acknowledges that certain intrapartum events can cause cerebral palsy.

Birth Trauma Client Questionnaire

Hospital liability: Nursing negligence: Failure to follow chain of command, respond to fetal distress: Cerebral palsy: Verdict. Villagomez v. Northwestern Mem’l Hosp., Ill., Cook County Cir. Ct., No. 01 L 1030, Oct. 8, 2004.Villagomez was attached to an external fetal monitor, which showed steady decelerations over the course of about six or seven hours. The attending labor nurse noted these signs but did not call for an obstetrician. The jury awarded about $6.19 million.

The Clinical Diagnosis of Asphyxia: Responsible for Brain Damage in the Human Fetus, Low, Simpson, Ramsey, Vol. 167 (No. 1 July 1992). Birth Injuries 1. National College of Advocacy Litigating the Profoundly Injured Infant Case. Oct. 4-5, 1991. Los Angeles, CA

Fetal Heart Rate Patterns: Monitoring, Interpretation, and Management, ACOG Technical Bulletin (No. 207 July 1995).

No abandonment of premature infant. Hartsell v. Fort Sanders Reg. Med. Ctr., 905 S.W.2d 944 (Tenn. App. 1995)

Cancer – Questions to Ask at Voir Dire in a Cancer Case

Has anyone in your family, neighborhood, work, church or social circle been diagnosed with cancer? Subject type or any type? Who? When? What was outcome?

Do you believe that early diagnosis saved the person? Do you believe that a failure to diagnose resulted in the death of that person?

Has this experience caused you to learn more about cancer?

Have you changed anything you do or don’t do because of what happened to this person?

No one in this case contends the doctor caused the cancer. Do you believe the plaintiff must prove the defendant doctor caused the cancer in order to deserve your verdict?

A security guard who fails to lock a door or a firefighter who arrives at a fire but does not use his hose are examples of negligence by omission. Do you have a job where, if you failed to do your job correctly and if you failed to do something, someone could be hurt?

Do you believe that just because two national organizations disagree, that the plaintiff can never establish a minimum standard of care? Do you believe there is no point in testing for cancer because, no matter what, cancer cannot be treated even if detected?

Do you understand that the minimum standards of good medical care depend upon the facts and circumstances of the patient, the patient’s history, the patient’s signs and symptoms, and that the minimum standard of good care will change from patient to patient?

Do you work with statistics at all? Please describe how? In your experience, how accurate have statistics been in predicting the future? Can statistics be used to predict anything with absolute certainty?

Carbon Monoxide

Not subject to the pollution exclusion insurance policies. Regional Bank of Colorado v. St. Paul, 35 F.3d 494; Thompson v. Temple, 580 So. 2d 1133 (La. Ct. App. 1991); Stoney v. Prudential, No. 94 7285 (filed January 31, 1995).

Class Actions

The Manual for Complex Litigation (at Pt. III) sets forth the law and procedure for Class Actions.

Brief in Support of Class Certification: Mazda Ford Motor Credit Litigation.

Brief in Support of Class Certification in Tri-State Crematory Case

Class Action Fairness Act of 2005.

Civil Procedure

Destructive Testing. Must give notice under amended Rule 34A Tenn. R. Civ. P.; effective 7/1/94.

Animations; Re-Creations; Demonstrations. State v. Farner, 66 S.W.3d 188 (Tenn.2001); State v. Hall, 2005 WL 292432 (Tenn.Crim.App.,2005) “[c]omputer generated evidence is an increasingly common form of demonstrative evidence.” Id. at 208 . A computer animation, as opposed to a computer simulation, is used to visually “illustrate and explain a witness’s testimony.” Id. Like any other form of evidence in Tennessee, however, the computer animation must be relevant. Tenn. R. Evid. 402. If relevant, the evidence is still subject to exclusion if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.” Tenn. R. Evid. 403. The admission of evidence is largely discretional, and a trial court’s ruling as to the admissibility of evidence will not be disturbed on appeal unless there is a clear showing of abuse. State v. Harris, 30 S.W.3d 345, 350 (Tenn.Crim . App.1999).The Farner court stated that the proponent of the evidence must “establish that the computer animation is a fair and accurate depiction of the event it purports to portray.” Id. at 209 (citations omitted). The Court explained that “[b]ecause the jury may be so persuaded by [the animation’s] life-like nature that it becomes unable to visualize an opposing or differing version of the event, the requirement that the animation fairly and accurately portray the event is particularly important when the evidence at issue is a computer animated recreation of an event.” Id.

Motion in Limine granted to exclude GM reconstruction videotapes. Fusco v. General Motors Corp., No. 92-2473 (Cal. Dec. 6, 1993), 51 Prod. Safety & Liab. Rep. 21, 1279 (Dec. 24, 1993).

Computer-Animation allowed with cautionary instruction. Datskow v. Teledyne Continental Motors Aircraft Products, 826 F. Supp. 677 (W.D.N.Y. 1993).

No power to order Plaintiff to re-enact in car seat case. Stermer v. Superior Court, No. B077168 (Cal. Ct. App. Nov. 24, 1993).

Exact language; Hyper-Technical Response by Defendant to Interrogatories Not Acceptable. Delvecchio v. General Motors, Inc., No. 5-91-0475 (Ill. App. Ct. Dec. 21, 1993).

Motion to Amend, before MSJ should be granted. Henderson v. Bush Bros. & Co., 886 S.W.2d 236 (Tenn. 1993).

Directed Verdict Standard. Stromming v. Houston’s Restaurant, Inc., 19 TAM 50-6 (Tenn. App. Nov. 23, 1994) (similar accidents must be same condition/cause to show knowledge of condition or existence of condition).

Sudden emergency instruction abolished. Dunleavy v. Miller, No. 20 642 (N.M. Oct. 22, 1993).

Busy solo practitioner entitled to trial continuance. Martel v. County of Los Angeles, No. 91-56268 (9th Cir. Apr. 12, 1994).

Products liability plaintiff can sue in home state. Barone v. Rich Bros. Interstate Display Fireworks Co., No. 93-1833 (8th Cir. May 24, 1994); Lawyer’s Weekly USA, No. 9903320 (12 pages).

Excusable Neglect. Carelessness can be considered excusable neglect. Pioneer Investment Services Co. v. Brunswick Associates, 113 S. Ct. 1489 (1997).

It is excusable for a lawyer to file an appeal one day late because he miscalculated the due date. Northwest Truck & Trailer Sales v. Dvorak, 877 P.2d 33.

Whether a mistake is careless depends on the reason for the delay, the length of the delay, the danger of prejudice, whether the moving party acted in good faith. See Lawyer’s Weekly USA, July 3, 1995.

It is permissible to request the deponent to make a diagram. See Cunningham v. Heard, 667 A.2d 537 (R.I. 1995).

Successive motions for summary judgment is not permissible unless it amounts to newly discovered evidence. Ashford v. Rochester Hospital Systems, 627 N.Y. S.2d 500 (N.Y. App. Div. 1995) (we note that successive summary judgment motions ‘should be discouraged in the absence of a showing of newly discovered evidence or other sufficient cause).

Defense ordered to pay their experts’ deposition fees incurred while testifying at depositions taken by the plaintiffs. Reed v. Binder, 165 F.R.D. 424 (D. N.J. 1996) (Manifest injustice required that impoverished med mal plaintiff not be required to pay for costs of depositions. Plaintiffs brought action against the defendants alleging that a number of medical professionals and their employees negligently failed to diagnose the cancer that ultimately killed Donna Joy Reed. Presently before the court is the motion by the plaintiffs to require that each party bear the costs for the appearance and deposition of that party’s expert witness. For the reasons that follow, the plaintiffs’ motion will be granted.).

Improper disclosure of settlement agreement with one defendant in medical malpractice case. Garcez v. Michel, 668 N.E.2d 194 (1996) (Trial court abused discretion, in medical malpractice action arising from treatment in connection with infant’s birth, in admitting evidence about settlement with hospital where infant was born without making threshold determination of whether settlement agreement had potential to bias testimony of two of hospital’s employees who were released as defendants by settlement).

Comparative Fault

True joint tortfeasors are not covered by the elimination of joint and several liability. See Woods v. Cole, No. 82895 (Ill. Mar. 19, 1998); Lawyer’s Weekly USA, No. 9912812 (8 pages). In Tennessee this principle was recognized in General Electric v. Process Control Co., 969 S.W.2d 914 (Tenn., 1998). The Tennessee Supreme Court answered the following certified question of law: Under what circumstances is a claim for contribution appropriate under Tennessee law. 969 S.W.2d, page 915.The question arose in light of Tennessee’s adoption of comparative fault in McIntyre v. Ballentine, 833 S.W.2d 52 (Tenn., 1992). The court found that contribution remains viable in three “limited circumstances.” These are:

  • Cases in which prior to McIntyre the cause of action arose, the suit was filed and the parties have made irrevocable litigation decisions based on pre-McIntyre law, [citations omitted];
  • Cases in which joint and several liability continues to apply under doctrines such as the family purpose doctrine, cases in which tortfeasors act in concert or collectively with one another, cases in which the doctrine of respondeat superior permits vicarious liability due to an agency-type relationship, or in the ‘appropriate’ products liability case, see Resolutions Trust Corp. v. Block, 924 S.W.2d 354 (Tenn., 1996). Camper v. Minor, 915 S.W.2d 437 (Tenn., 1996). Owens v. Truckstops of America, 915 S.W.2d 420 (Tenn., 1996);
  • In the ‘appropriate case,’ in which ‘fairness demands,’ see Owens, 915 S.W.2d at page 430. . . . 969 S.W.2d at page 916.

Regarding the third category, the Tennessee Supreme Court cautioned that, “The circumstances under which ‘fairness demands’ should be applicable only when failure to allow contribution would impose an injustice.” 969 S.W.2d at page 916.

Improper instruction and comparative fault of non-party physician. Physician-defendant has to plead and prove the affirmative defense for comparative fault. See Free v. Carnesale, 110 F.3d 1227.

The percentage of fault assigned to each party should be dependent upon all the circumstances of the case, including such factors as (1) the relative closeness of the causal relationship between the conduct of the defendant and the injury to the plaintiff [similar to remote contributory negligence]; (2) the reasonableness of the parties’ conduct in confronting a risk, such as whether the party knew of the risk, or should have known of it [secondary implied assumption of risk that was abolished in Perez]; (3) the extent to which the defendant failed to reasonably utilize an existing opportunity to avoid the injury to the plaintiff [last clear chance concept]; (4) the existence of a sudden emergency requiring a hasty decision [sudden emergency]; (5) the significance of what the party was attempting to accomplish by the conduct, such as attempting to save another’s life [rescue]; and (6) the parties’ particular capacities, such as age, maturity, training, education and so forth [pre-McIntyre law applicable to minors]; see Arnold v. Hayslett, 655 S.W.2d 941 (Tenn. 1983).

No right to offset previous settlement. See Cox v. Newway-Love Distributors, Inc., 21 TAM 514 (Jan. 10, 1996).

Employer fault does not count. Ridings v. Ralph W. Parsons Co., 21 TAM 6-2 (Jan. 29 1996).

Symposium on Indiana’s Comparative Fault Act, 17 Ind. L. Rev. 3 (1984).

Assessing fault to a non-party violates due process and is unconstitutional, according to the Montana Supreme Court. Plumb v. Fourth Judicial Circuit, No. 96-023 (Mont. Nov. 2, 1996); Lawyer’s Weekly USA, No. 9909711.

It is the duty of the defendant to plead and prove comparative fault and to affirmatively set forth facts and shorten plan terms, relied upon to constitute comparative fault, including the identity and description of the tortfeasors. Tenn. R. Civ. P. 8.03; Free v. Carnesale, 22 TAM 20-67 (6th Cir. Apr. 9, 1997)

Defendant is not entitled to have judgment reduced by amount of previous settlement. Varner v. Perryman, 23 TAM 2-11 (Dec. 9, 1997).

Presumption of Due Care if Plaintiff has no memory. Masters By Masters v. Rishton, 863 S.W.2d 702 (Tenn. App. 1992).

Viability of Assumption of the Risk. Perez v. McConkey, 18-TAM 7-4 (permission to appeal granted). Abolished. Perez v. McKonkey, No. 03-S-01-9306-CV 00034 (Tenn. Feb. 28, 1994).

Plaintiff’s neg. can not be introduced to prove absence of causation. Kramer v. Raymond Corp., No. CIV. 90-5026, 1993 WL 478989 (D. Pa. Oct. 26, 1993).

Post-manufacture duty to warn in drug case. Patton v. Hutchinson Wil Rich Mfg., 861 P.2d 1299 (Kan. 1993).

Contribution After McIntyre. Owens v. Truckstops of America, 19 TAM 16 4 (Apr. 18, 1994).

Employer’s percentage of fault (immune defendant) can deduct from plaintiff’s recovery, Ridings v. Ralph M. Parsons Co., 19 TAM 16-8 (Apr. 4, 1994); Amerisure Co. v. Dillard Smith Construction Co., 19 TAM 11-1 (Mar. 7, 1994).

Fault embraces most affirmative defenses Eaton v. McLain, 19 TAM 45 1 (Tenn. 1994). Factors to consider in assessing the plaintiff’s fault: (1) relative closeness of the causal relationship between the conduct of the defendant and the injury to the plaintiff; (2) the reasonableness of the party’s conduct in confronting a risk, such as whether the party knew the risk, or should have known it; (3) the extent to which the defendant failed to reasonably utilize an existing opportunity to avoid the injury; (4) the existence of a sudden emergency doctrine requiring a hasty decision; (5) the significance of what the party was attempting to accomplish by the conduct, such as an attempt to save another’s life; (6) the party’s particular capacities such as age, maturity, training, education, etc. Unavoidable accident defense. See Vandercook v. Radcliff, 20 TAM 2-14 (Tenn. App. Dec. 14, 1994); see also Whitaker v. Harmon, 879 S.W.2d 865, 870 (Tenn. App. 1994).

Joint and several liability abolished under McIntyre. Volz v. Ledes, 20 TAM 4-1 (Tenn. 1995). But is there a “constitutional challenge” when there is a non-party? Neville v. State of Montana, No. 92-310 (Mont. Aug. 29, 1994).

Settlement does not reduce plaintiff’s recovery. Haderlie v. Sondgeroth, No. 91-114 (Wyo. Dec. 15, 1994).

Computers

Electronic notebooks an asset at trial. Laptops can speed document retrieval. (Sheldon E. Grand practices law as a sole practitioner in St. Louis. He welcomes questions or comments addressed to him at 222 S. Central, Suite 502, St. Louis, MO 63105; by fax at 314-726-0032; by telephone at 314-863-9192; by e-mail at Shelgra@aol.com; or through LWUSA Online addressed to Sheldon Grand).

Conflict of Law/Choice of Law

Conflict of law/choice of law in a wrongful death case under the most significant relationship test, residents of a decedent and domicile is very important. McDonald v. General Motors Corp., 22 TAM 20-68 (6th Cir. Apr. 3, 1997).

Contracts

Contracting and Organizations Research Initiative

Corporations

Delaware Corporate Law Clearinghouse

Socratic Law

Criminal

CrimeLynx

Capital Defense Network

Courtroom Demeanor

It is improper for an attorney to have too much eye contact and smiles with the jury and to snicker and roll eyes during cross-examination. See Spitzfaden v. Dow Chemical, No. 92-0259 (La. Dist. Ct.)(fined $2,000.00 for displaying too much natural charisma); See National Law Journal at A8 (July 28, 1997).

Damages

1. Hedonic. Spencer v. A-1 Crane Service, Inc., 18 TAM 19-5 (Tenn.)(perm appeal granted).

2. Emotional Distress; Actual Exposure to Toxic Agent. Carroll v. Sisters of Saint Francis Health Services, Inc.,18 TAM 52-1 (Tenn. Dec. 20, 1993).

3. Unconscious Person; Loss of Enjoyment of Life. Holston v. Sisters of Third Order of St. Francis, 618 N.E.2d 334 (Ill. App. Ct. 1993) (enjoyment of life can be recovered).

4. Amount is for the Jury. Brown v. Null, 863 S.W.2d 425 (Tenn. App. 1993).

5. $1.7M wrongful death of a child verdict not excessive. Reasonable amount of pecuniary loss. Johnson v. Washington County, 506 N.W.2d 632 (Minn. Ct. App. 1993).

6. Parents cause of action for medical expenses not tolled during minority. Gary v. Overoltzer, 631 A.2d 429 (Md. 1993).

7. Parents may recover for loss of child’s filial consortium. Gallimore v. Children’s Hospital, 617 N.E.2d 1052 (Ohio 1993); Lareau v. Page, No. 90-CV-11629 (Mass. Dist. Ct. Dec. 27, 1993); Schafer v. American Cyanamid Co., No. 93-1422 (1st Cir. Mar. 24, 1994)(loss of parent’s consortium).

8. The trial judge did not err in refusing to charge that any award in a wrongful death case would not be subject to income taxes and that the jury should not consider taxes in fixing the amount of the award. Relying on Dixie Feed and Seed v. Byrd, 376 S.W.2d. 745 (Tenn. App. 1963); Spencer v. A-1 Crane Service, 19 TAM 26-2 (June 20, 1994).

9. Standard of review in assessing awards. Steele v. Ft. Sanders Anesthesia Group, P.C., 19 TAM 51-8 (Tenn. App. Nov. 29, 1994).

10. “Caps” apply to each defendant. General Elec. Co. v. Niemet, No. 92SC552 (Colo. Jan 10, 1994).

11. No offset for deceased’s living expenses in West Virginia. Ehner v. Weinstein, No. 21911 (W. Va. Apr. 20, 1994).

12. $9M for death of a 33-year-old executive was not too high and any such claim is frivolous, according to a federal judge. Pescatore v. Pan Am, No. 89 C.V. 1719; National Law Journal (May 1, 1995).

13. Parties: Minor could maintain claim for medical expenses. Boley v. Knowles, 905 S.W.2d 86 (Mo. 1995).

14. Recovery of damages can be attributed to insurance companies being guilty of “bad faith.”

15. Tennessee abandons “physical injury” rule for negligent infliction of emotional distress claims. Camper v. Minor, No. 03A01-9311-CV00414, 1995 WL 317328 (Tenn. Feb. 6, 1995).

16. Fungicide maker settles 19 Florida suits; Partial default judgment vacated by court. Davis Tree Farms Inc. v. E.I. du Pont de Nemours & Co., No. 92 20006 (Fla. Cir. Ct. 1996). Settlement 8/8/96.

17. Expert testimony on decedent’s future earning capacity can support jury award where earnings history is of limited predictive value. Forman v. Korean Air Lines, 84 F.3d 446 (D.C. Cir. 1996)

18. No emotional distress damages for attorney’s negligent tax advice. Camenisch v. Superior Ct., 52 Cal. Rptr. 2d 450 (Cal. Ct. App. 1996).

19. In a malpractice action in which liability is admitted or established, the damages awarded may include (in addition to other elements of damages authorized by law)…[Acts 1975, ch. 299, § 23-3418].

20. Zone of danger test no longer applies to claims of negligent infliction of emotional distress. Ramsey v. Beavers, No. 03A01-9412-CV00427, 1995 WL 311310 (Tenn. App. Sept. 11, 1995).

21. Million dollar award to parents for care of child who would have needed licensed practical nursing care is approved in Hill v. United States, 81 F.3d. (10th Cir. 1996).

22. Gary D. Finn, Appraisal of Lost Earning Capacity; Prepared by Robert A. Bohm w/Economic Appraisal Assoc., Knoxville, TN.

23. Livingston v. Upper Cumberland Human Resource Agency, No. 01A01-9609-CV00391, 1997 WL 107059 (Tenn. App. Mar. 12, 1997).

24. Mother is a direct victim who can sue for emotional distress of child’s birth. Zavala v. Arce, No. DO23269 (Cal. Ct. App. Oct. 27, 1997).

25. Andrews v. Reynolds Memorial Hospital, Inc., 1997 WL 752154 (W. Va.) (upholding a $1.7M verdict for lost earnings of an infant who died less than one day after his premature birth based upon the economist’s projections).

26. Virginia Supreme Court holds that damages verdict for medical expenses alone is inadequate as a matter of law. Bowers v. Sprouse, 492 S.E.2d 637 ( ).

Daubert

Daubert on the Web

Sixth Circuit holds Expert’s Testing & Causation testimony proper under Daubert in products case. Nemir v. Mitsubishi Motors Corp., 381 F.3d 540 (6th Cir. 2004). Nemir was injured in an automobile accident when the seat belt in his 1991 Dodge Stealth allegedly unlatched on impact. In his lawsuit against the car manufacturer, plaintiff’s expert planned to testify that a design defect known as partial latching had caused the belt to unlatch during the collision and that during his own testing, he had been able to create a partial latch of the belt buckle two out of 20 times. The trial court precluded the expert from testifying on causation, finding he had failed to eliminate other possible causes of injury. The court also prohibited the expert from testifying about his testing of the belt buckle on the ground that his methodology—in which he had manipulated the buckle at varying speeds and angles—was scientifically unsound. Reversing, the Sixth Circuit noted that an expert’s conclusion regarding all admissible evidence need not eliminate all other possible causes of injury to be admissible on the issue of causation. The fact that several other causes might remain uneliminated goes to the accuracy of the conclusion, not to the soundness of the methodology. Concluding the trial court had employed too strict a standard when it required specific knowledge of the precise physiological cause of the accident, the court said the expert should have been permitted to testify that the partial latch of the seat belt had caused the damage in question.The court also found the trial court erred in prohibiting the expert from testifying about his testing of the product. The court noted that the trial court had determined the expert’s method was scientifically unsound because “[n]o reasonable driver purposefully manipulates the buckle at different speeds and different angles to achieve a state of partial latch as [the expert] does.” The point of the manipulation, however, was to show that partial latching could occur under certain circumstances, not to show directly that plaintiff’s buckle had partially latched during the accident. Given the “infinite possible variations,” the court reasoned, it would have been impossible to determine the velocity and angle with which plaintiff had actually buckled his seat belt on the day in question. The fact that most of the combinations the expert tried did not produce partial latching might affect how heavily the jury weighs the evidence, but not whether it should be admitted.

Demonstrations

Walker v. Jack’s Mold and Machine Co., 20 TAM 52-39 (6th Cir. Dec. 6, 1995).

Depositions

1. Coaching. “If you know,” etc., improper during a deposition. Hall v. Clifton Precision, No. 92-5947 (E.D. Pa. July 29, 1993).

2. Fed. R. Civ. P. 30(d) new amendment: “Objections are to be stated concisely in a non-argumentative manner and non-suggestive manner.” Witness can only be instructed not to answer “to preserve a privilege, enforce a court direction limiting evidence, or present a motion under (d)(3). [Videotape depositions.]

3. Sample Dr. Direct Exam in P.I. Case:

  • Q. What is your occupation?
  • Q. Where do you maintain your practice?
  • Q. How long have you been a physician?
  • Q. What is your medical specialty?
  • Q. Can you explain to the jury what [specialty] means?
  • Q.Please describe for us the training and educ, you received regarding licensure as a ….
    • Q. College.
    • Q. Medical School.
    • Q. Date of Graduation. Degree. Residency. Internship
  • Q. Staff Privileges.
  • Q. Licenses and Dates.
  • Q. Board Certifications. Explain Process and Significance. Dates of.
  • Q. Teaching Responsibilities.
  • Q. Medical Societies and Organizations. List Describe Important Ones.
  • Q. C.V. Exhibit.
  • Q. Have you had an opportunity to see ¼ as a patient?
  • Q. When did you see ___.
  • Q. Have you reviewed medical records and seen the patient to render an opinion concerning ¼’s medical condition?
  • Q.Dr. __ what documents have you reviewed in order to prepare yourself to render opinions in this case?
  • Q.Were those materials furnished to you by my office and reviewed at our request?
  • Q.Have you billed our office for your time spent in reviewing these materials and working on this case? [How much; is this amount reasonable]?
  • Q.During the course of your __years of medical practice have you had occasions to treat patients who have medical conditions similar to those of ¼?
  • Q.Can you describe for us what your review of the records [and the exam/treatment] of the patient revealed?
  • Q. History given by patient.
  • Q. Examination of the patient. Describe.
  • Q. Doctor, I am going to ask you shortly about your opinions in this case. Will you render your opinions based upon a reasonable degree of medical probability?
  • Q.Dr., based upon your review of the medical records [and your examination and treatment] of the patient, as well as your training, education and experience, do you have an opinion as to…
  • Q. What is your opinion?
  • Q. What then is [his/her] medical diagnosis?
  • Q. How does this affect …
  • Q.Impairment guidelines for Medical impairment ratings as set forth by AMA. Describe ratings and guidelines.
  • Q. Permanent injuries
  • Q. Future Prognosis
  • Q. In layman’s terms what are the medical consequences of her condition?

4. Sample Depo. of Product Manufacturer In-House Engineer

  • Engineer’s knowledge of risk
  • Alternative designs
  • Why was actual design selected?
  • Get all documents and responses to interrogatories.
  • Acquire all technical data and info about the product.
  • Identify witnesses–who are the engineers involved?
  • Do named engineers before 30b6?
  • Define risk
  • Hazard of design
  • Anticipated /known environment of use
  • field use
  • guarding against hazard
  • warning against the hazard
  • Government regulations.

Trial Tactics & Tips

1. You can prepare too much!

2. Go in with written materials, even if just a checklist.

3. Make good eye contact.

4. Pre-mark all exhibits.

5. When a witness refers to a document during the deposition, make sure you get the section or page number on the record.

6. Put all non-verbal communication, eye contact and signals on the record.

7. Do not stipulate or state with specificity what the customary stipulations are.

8. Note that the 1993 rule change to Rule 30(e) requires a witness to make a request prior to the completion of the deposition in order to obtain an opportunity to review and correct the transcript. Thus, you should depose as a prelude to cross examination. You should freeze the witness into every possible position you can, and exhaust their recollection. Ask them whether they have identified everybody; identified all documents, and then conclude with the question, “Is there anything else you remember?” This way, if a witness changes the deposition, they can be cross-examined.

9. If a witness changes the substance, the deposition can be reconvened. Willco Kuwait Trading Sak v. DeSavary, 638 F. Supp. 846, 853 (D. R.I. 1986). Any deponent who changes the changes may be impeached with the former answers. Deseversky v. Republican Aviation Corp., 2 F.R.D. 113 ( ).

10. If you get a good answer, move onto the next question.

11. If the witness gives a characterization—Think fast, tie them down to what it means, and define generalities.

12. Avoid the subjunctive when dealing with the past. Don’t ask “Would you have done it?” — ask “Did you do that?” You don’t want them to be able to say, “I would have done that normally, but in this case I didn’t.”

13. Avoid negatives in your questions.

14. Always ask the witness what they have done for preparation.

15. Don’t engage the other side in talking about the objections. Just ask your next question. If they say they don’t understand the question, ask it again. Don’t waste time arguing with counsel.

16. If a witness says he would just be speculating, ask “What is your best recollection?” or “Ordinarily, would this have happened?” or “Is it possible this could have happened?”

17. It is permissible to request the deponent to make a diagram. See Cunningham v. Heard, 667 A.2d 537 (R.I. 1995).

18. “Step Very Carefully When Altering a Deposition Transcript, Pursuant to Federal Rule 30.” At this juncture, the attorney is in the unenviable position of having to balance the need to correct the errors versus providing enough impetus “for a court to order that the deposition be filed as transcribed, deeming the deponent to have waived reading and signing.” Barlow v. Esselte Pendaflex Corp., 111 F.R.D. 404, 406 (M.D.N.C. 1986).

19. Litigators Say ‘Forgotten’ Rule 30(b)(6) Unlocks Corporate Info, Tactical Advantages (Privilege Busting), 1995 LRP Publications at 1082-4782 (1995).

Disclosure of Records

A patient has a cause of action against a health care provider for voluntarily disclosing medical records without consent. In Fairfax Hospital v. Curtis, No. 96-2068 (Va. Oct. 31, 1997), the Virginia Supreme Court ruled that a hospital could not volutarily disclose records to a nurse whom the patient had sued for medical malpractice in connection with the death of the patient’s newborn infant. The Court held that health care providers owe their patients a duty of reasonable care, including the duty to preserve the confidentiality of information the patient reveals to the provider during the course of treatment. The decision upheld a state court judgment awarding the plaintiff stipulated damages.

Discovery

Electronic Discovey: Ken Withers

Insurance reports discoverable. Askew v. Hardman, 249 Utah Adv. Rep. 22 (Utah Ct. App. Oct. 11, 1994).

Parent must produce subsidiary documents. Strom v. American Motor Honda Co., No. 93-911 (Mass. Dist. Ct. Oct. 20, 1994).

Sanctions for failing to identify expert. Ammons v. Bonilla, 886 S.W.2d 239 (Tenn. App. 1994).

Sanctions for not giving plaintiffs complaints & computer discovery. Baker v. General Motors, No. 91-0991-CV-W-8 (Mo. Nov. 7, 1994).

Discovery: Defense counsel could conduct interview with physicians. Samms v. District Court, 908 P.2d 520 (Colo. 1995). Not the law in Tennesssee, however, under Givens.

Judge Denies Motion for Psychiatric Examination, 1995 LRP Publications at 1082-4782 at (1995).

Moore’s Federal Practice (2nd ed.)

Abuse, Failure to Produce Documents, Sanctions — Intercept Security Corp. v. Code Alarm, Inc., No. 95-40239 (E.D. Mich. Oct. 17, 1996).

More documents are destroyed in accordance with “usual procedure.” There is a requirement that the defendant show that there was a coherent system of document retention or disposal, otherwise the defendant could be “highly culpable” for destruction of documents. See Shaffer v. R. W. Group, No. CV-93-4081 (N.Y. Cir. Ct. Oct. 23, 1996).

Discovery – computer information

Write a letter to the opposing side, asking them to refrain from initiating any procedures which would alter any active, deleted or fragmented electronic data. Such procedures may include, but are not necessarily limited to, deleting, or attempting to delete, any electronic information, saving newly created files to disk that already contain information, loading new software on such disks, or running data compression or defragmentation routines on them; rotating, altering or destroying any media that stores electronic data where such activity could result in the alteration or loss of any electronic data and disposing of any media that contains electronic data.

Then, in our Rule 34 request, you should request, to the extent not clarified above, a request for documents specifically: electronic mail messages, email and other electronic communications which may or may not be reduced to hard copy in the normal course of business and which may be stored or archived on file servers, hard drives, hard or floppy disks or diskettes, back-up tapes or other storage media.State specifically that we are looking for all correspondence, including email, between X and Y; all drafts, including word processing disks or backups of all agreements executed on; all plans and drawings of the system, backups and drafts and/or stored on the engineering department CADD system.

Federal Discovery News (Jan. 1997).

At a deposition, a witness is not required to identify the documents that the witness reviewed in preparation for the deposition. Logan v. Colonial Williamsburg Hotel Properties, Inc., (E.D Va. Jan. 13, 1997); Sporck v. Peil, 759 F.2d 312 (3rd Cir. 1985). The acceptable question is, “What documents did the witness use to refresh his recollection in preparation for the deposition?” When this question is asked at the deposition, the parties should immediately contact the docket clerk and request a telephone conference with the court so that the discovery issue might be resolved promptly with the least amount of inconvenience to the parties being deposed, the litigants and their counsel. In other words, get on the phone and try to call the judge before adjourning the deposition.

Ex Parte Interviews — Plaintiff must provide (1) counsel’s representative capacity; (2) counsel’s reason for seeking interveiw; (3) the right of the current and former employee to refuse to be interviewed; and (4) the right of the current or former employee to have his or her own counsel present during the ex parte contact. See Carter-Herman v. City of Philadelphia, 897 F. Supp. 899, 904 (E.D. Pa. 1995).

It is permissible to submit Interrogatories to the other side’s expert witnesses, particularly if they have not been identified as witnesses who will be used at trial. See Reed Dairy Farm v. Consumers Power Co., 1998 WL 45172 (Mich. App.).

Dram Shop

Minors & alcohol. Worley v. Weigel’s, 20 TAM 2-8 (Tenn. App. Dec. 14, 1994)

In Biscan v. Brown, No. M2001-02766-COA-R3-CV – Filed December 15, 2003, the Tennessee Court of Appeals affirmed a judgment against a social host (15% liability) after a jury verdict awarding damages to Jennifer Biscan (with 15% fault attributed to her) and her father, Robert Biscan, for serious brain injuries Jennifer incurred in an automobile accident, which injuries left her permanently impaired. Jennifer, 16 at the time, was riding as a passenger in the car driven by Hughes Brown (found 70% at fault), then 17, who was intoxicated. The accident occurred after Jennifer and Hughes left a party at the home of Paul Worley, where some guests had consumed beer. It was uncontested that Hughes Brown’s negligent operation of the car while intoxicated was the cause of the accident. The Worleys did not serve alcohol or make it available at the party. Although many attendees did not drink, a number brought alcohol, primarily beer, to the party and drank it there. Mr. Worley fully expected that the minor guests would both bring and consume beer on his property. He intended that a rule he had implemented in previous parties given by his son would apply: that is, that any guest who chose to drink alcohol would be required to turn over car keys and spend the night rather than drive home. First the court held that the person who furnished the beer (Jennifer’s sister) could not be held liable (or have any percentage of fault) because Tenn. Code Ann. § 57-10-101 (“The general assembly hereby finds and declares that the consumption of anyalcoholic beverage or beer rather than the furnishing of any alcoholic beverage or beer is the proximate cause of injuries inflicted upon another by an intoxicated person.) The court held the law applied to someone who merely provides alcohol and thus the sister (and social hosts) who furnish alcohol have no liability. The court cited Downen v. Testa, 2003 WL 2002411, at *3 which reached the same no liability result for a social host. But, here the parent who hosted the party–but provided no alcohol — was nevertheless held liable. This was the evidence: “Mr. Worley hosted the party for his daughter Ashley’s eighteenth birthday at his residence. No written invitations were sent; Ashley Worley personally invited friends. Other students heard about the party by word-of mouth. Everyone who showed up at the Worley home on the night of the party was welcomed by the Worleys. Mr. Worley did not intend to serve any alcoholic beverages, and did not. However, he was aware that some of the minors attending the party would bring beer and drink it at the party. He expected that to occur. Mr. Worley told Ashley prior to the party that if any of the guests consumed alcoholic beverages they would not be permitted to leave the party and would be required to stay the night. The court found that Worley owed a duty of care to Jennifer Biscan: “Imposing a duty to act reasonably to prevent driving by an intoxicated minor in a situation where the adult defendant has the authority and opportunity to take non-onerous action to preclude that driving furthers such public policy.20 We find Mr. Worley owed a duty of reasonable care under the circumstances to Jennifer Biscan. . .We recognize an apparent anomaly if an adult host who served alcohol to a minor could not be liable because of the Dram Shop Act, but a host who acted with good intentions as Mr. Worley did could face liability. We simply note that the case before us does not involve a defendant who served alcohol to minors, and we are not called upon to address that situation. Further, allowing an intoxicated minor to drive when it could have been prevented is a cause of the injury separate from and additional to the intoxication.” The court also found Mr. Worley assumed a duty of care. “Nonetheless, his own deposition testimony established his undertaking and intent with regard to safeguarding the guests and the general public. Consequently, the evidence before the court at the summary judgment stage was sufficient for it to conclude that Mr. Worley voluntarily assumed a duty to ensure that minors who had been drinking did not leave the party by driving.” The court stated the ” question of whether Mr. Worley owed a duty to Jennifer Biscan to prevent Hughes Brown from driving in an intoxicated state after having consumed beer at the party, with or without a passenger, or to prevent Jennifer from riding in the car with Hughes Brown must be answered by balancing the degree of foreseeability of harm against the burden upon Mr. Worley to avoid the harm by acting differently. Id. at 901. The degree of foreseeability of harm and the magnitude of that potential harm must be balanced against the onerousness of the burden involved in alternative conduct. “Of course, a duty of care is dependent upon foreseeability.” Pittman v. Upjohn, 890 S.W.2d 425, 431 (Tenn. 1994). Applying the relevant factors to the circumstances presented in this case, it is clear that it was foreseeable that a minor guest who drank at the party would become intoxicated and that if an intoxicated minor drove a car, there would be an accident.” So what did the duty require? The court stated, “On the other side of the equation, the burden placed on Mr. Worley to prevent the harm caused by an intoxicated minor driver leaving Mr. Worley’s home was not onerous. He himself devised a plan which merely required him to enforce the rule he attempted to impose. He only had to retrieve car keys or make the cars inaccessible. Of course, he also could have banned alcohol or refused to have the party.” (emphasis supplied).

Duragesic

“Medical Patch Users Discover Danger Beneath the Surface”, Trial (Feb. 2005). Ideally, a patch is designed to “deliver the drug at an adequate and reasonably constant rate for a sustained period of time, should not irritate the skin or cause allergic reaction, and should deliver most of the drug it contains.” Alza Corp. v. Mylan Labs., Inc., 310 F. Supp. 2d 610, 614 (D. Vt. 2004).)

Duty

Pittman v. Upjohn Co., 19 TAM 49-1 (Tenn. 1994).

Duty (to light staircase & lock basement door) held absent since “duty of reasonable care” did not, as a matter of law, extend to leaving light on & door locked. Test is that “defendants reasonably knew or should have known of the probability of an occurrence, such as the one that caused her injuries”. Eaton v. McClain, 19 TAM 45-1 (Tenn. Oct. 31, 1994); Doe v. Linder, 845 S.W.2d 173, 178 (Tenn. 1992).

Economic Experts

An expert must incorporate existing facts into the conclusions, particularly with economic experts. See JMJ Enterprises, Inc. v. Via Venetto Italian Ice, Inc., No. 97-CV-0652 (E.D. Pa.)

Economic Testimony

See Cochran v. Snyder National Carriers, 980 F. Supp. 374 (D. Kan. 1997)

Electronic Discovery

Ken Withers

Electronic Filing

Electronic Filing & Service for Courts

United States Courts – Court Records

Emergency Medical Leave Act

See Morrison v. Colorado Permanente Medical Group, 983 F. Supp. 937.

Emergency Rooms

Emergency rooms often will not admit a patient that performed a screening evaluation unless the managed care program provides authorization. This is not a focus of Duncan rules by the Department of Health & Human Services but by the Office of Inspector General official. See Health Care-Managed Care Crackdown on Managed Groups to Focus on Denial of Care Payment, 66 U.S. Law Week at 2754 (No. 47 June 9, 1998).

Emotional Distress

Bystander emotional distress. Lourcey v. Estate of Scarlett, 146 S.W. 3d 48 (Tenn. 2004.) The Tennessee Supreme Court held a woman who witnessed a shooting stated a claim for negligent infliction of emotional distress even though she was unrelated to the victims.Held: to recover for injuries based on witnessing the death or injury of a third person, a plaintiff must show that the death or injury and plaintiff’s emotional injury were proximate and foreseeable results of defendant’s negligence. Only two factors are essential to meet the foreseeability requirement: (1) that plaintiff was physically close enough to the injury-producing event to observe it and (2) that the injury was, or reasonably was perceived to be, serious or fatal.The court noted that the element of foresee-ability does not require a plaintiff to establish a relationship to the injured party.

Reckless Infliction of Emotional Distress need not be “directed at” the plaintiff. John Doe 1 ex rel. Jane Doe 1, ex rel. v. Roman Catholic Diocese of Nashville (Tenn. 2005).

Tennessee abandoned the zone of danger test and bystander emotional distress cases. In Ramsey v. Beavers, 931 S.W.2d 527 (Tenn. 1996), the Tennessee Supreme Court abandoned the zone of danger test for analyzing bystander emotional distress claims in favor of a general negligence approach. The plaintiff must show that he sustained a physical injury along with an emotional one or was placed in immediate danger of physical harm and contemporaneously feared for his own safety. The court also required that the plaintiff be closely related to the injured party. Duty of care requires a consideration of the plaintiff’s physical location at the time of the accident, awareness of the accident, a degree of injury to the third person, the plaintiff’s relationship to the injured party. These considerations will reasonably limit recovery while allowing recovery in meritorious cases.

Intentional infliction. Restatement (Second) of Torts § 46.

Fear of disease (breast implant rupture after auto wreck $475,000). Rolland v. Amonette, 20 TAM 3-8 (Tenn. App. Dec. 16 1994).
Tennessee has abolished the physical injury requirement for negligent infliction of emotional distress. Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996). Tennessee no longer follows the physical injury rule or physical manifestation rule, stating that situations should be analyzed in a general negligence approach. The plaintiff must show duty, breach of duty, cause in fact, proximate cause and damages. The law provides recovery for severe or emotional injuries for a reasonable person who normally would be unable to adequately cope with the mental distress and gender by the circumstances of the case. In this case, a man driving a cement dump truck killed a girl who had negligently pulled her car in front of him, and he suffered minor physical injuries but did suffer emotional injuries, which were severe.

Damage awards for ’emotional distress’ taxed. Lawyers Weekly USA (Aug. 12, 1996).”Emotional distress” will be subject to federal income tax for many types of injuries under a bill that has passed the House and Senate and that President Clinton has said he will sign.The bill will affect all emotional distress claims that involve non-physical injuries, including wrongful discharge, job discrimination, defamation, insurance bad faith, civil rights, business-related torts and others.It will also tax punitive damages in all cases.

A mother’s emotional distress is supported by evidence that mothers experienced extreme pain from physicians’ repeated vaginal exams and difficult labor, including hospitalization for 8 days sufficient to support claim for emotional stress claims. Salgado v. County of Los Angeles, 67 Cal. Rptr. 2d 256 (Cal. Ct. App. 1997).

See In Re Aircraft Disaster at Charlotte, North Carolina, 982 F. Supp. 1101 (D. S.C.)(upholding $300,000.00 award for post-traumatic stress disorder).

Specialized testimony from the plaintiff’s treating psychologist is admissible in a wrongful death case on the issue of grief. Horton v. Channing, 698 S.2d 865.

Photographs of a decedent’s remains and the condition of the body are relevant to the issue of mental distress/mental anguish suffered by survivors. Campbell v. Keystone Aerial Surveys, Inc., 138 F.3d 996 (5th Cir. 1998).

Erisa

Denial of claims for breast cancer treatment. See Turner v. Fallon Community Health Plan, 127 F.3d 196 (1st Cir. 1997).

HMO/Liability – See Turner v. Fallon Community Health, 127 F.3d 196, (1st Cir. 1997).

Ethics

Legal Ethics Forum, a website forum edited by University of Texas law prof John Dzienkowski, Cornell law prof Brad Wendel and Berkeley (Boalt Hall) law lecturer (and practicing lawyer) John Steele.

Ethical rules for lawyers as mediators – see 66 U.S. Law Week, at 2307 (No. 20).

Tennessee Board of Professional Responsibility Website.

Tennessee Rules of Professional Conduct

In a personal injury case, a clause in a settlement agreement restricting plaintiff’s attorney from representing future claims against the same defendant is ethically inappropriate. In requiring that the plaintiff be a party to the release, it might create a conflict of interest between the plaintiff and the plaintiff’s attorney. Formal Ethics Opinion, Tennessee Bar 97-f-141.

ABA Report on Ethics in Settlement Negotiations.

Evidence

Photos must be relevant. Phillips v. F.W. Woolworth Co., 867 S.W.2d 316 (Tenn. App. 1992).

Spoliation. Sweet v. Sisters of Providence in Washington, No. 4127 (Alaska Sept. 30, 1994).

Videotape of similar procedures okay for educating jury. Glassman v. St. Joseph’s Hospital, 631 N.E.2d 1186 (Ill. App. Ct. 1994).

Dead Man Statute. See Tenn. Code Ann. § 24-1-203. Applies to parties to the action specifically testate or intestate or ward.

Patton v. Rose, 892 S.W.2d 410 (Tenn. App. 1994).

Scientific Evidence–Federal Rule: Commonwealth v. Lanigan, No. N-6505 (Mass. Nov. 18, 1994); Lawyers Weekly USA, No. 9904451.

Tennessee Evidence Workshop Handbook.

Circuit Court reverses lower court’s decision to exclude evidence based upon Daubert . Joiner v. General Electric, 118 S. Ct. 512 (11th Cir. 1997).

Navarro v. Fugi Heavy Industries, 117 F. 3d 1027 (cert. denied). Daubert bars admissibility of expert testimony according to the 7th Circuit. The expert’s affidavit must be sufficiently complete to satisfy Daubert without reliance on subsequent cross-examination or deposition of expert to fill in the gaps.

Ohio Supreme Court applies Daubert as a test to determine admissibility of scientific evidence. Miller v. Bike Athletic Company, 687 N.E.2d 735 (Ohio Jan. 7, 1998).

Prior inconsistent statements are inadmissible when proven by extrinsic evidence, unless the witness is afforded an opportunity to explain or deny the statement. See State v. Martin, 23 TAM 11-2 (Mar. 9, 1998).

The U.S. Supreme Court has been served with a brief to reconsider McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257 (Tenn.), on whether the federal rule, rather than the Tennessee rule, applies to the admission of scientific expert testimony.

Daubert does not apply to engineering training. See McKendall v. Crown Central Corp., No. 955667, 1997 WL, 448265 (9th Cir. 1997).

Testimony from prescribing physician is sufficient to rebutt presumption under intermediary doctrine – Woulfe v. Eli Lilly, 965 F. Supp. 1478 (E.D. Okla. 1997)(prozac opinion).

Daubert and non-scientific testimony. Testimony based upon observations of experience is not subject to Daubert said the 11th Circuit Court of Appeals in KUMHA Power Company v. Carmichael. A cert petition was filed March 23, 1998 in the U.S. Supreme Court to consider this issue.

Attorney Work Product. An attorney can waive the attorney client work product privilege by communications with experts, depending upon the facts of the case, particularly where the attorney attempts to shape the expert opinion. See Kennedy v. Baptist Memorial Hospital–Bainville, Inc., No. CV 339-S-D (N.D. Miss. Apr. 23, 1998).

Evidence – Computer Generated

Computer generated animation admissible as demonstrative exhibit. Pierce v. State, No. 93-1302, WL 227452 (Fla. Dist. Ct. App. May 7, 1997).

Evidence – Photographs

Photographs of deceased taken shortly before death admitted. Sweeney v. Purvis, 665 S.2d 926 (Ala. 1995).

Evidence – Scientific

Daubert. 11th Circuit Court of Appeals has held that a federal judge erred when he excluded the testimony of a tire failure expert on the basis of Daubert. Carmichael v. Samyang Tire, Inc., No. 96-6650 (11th Cir. Dec. 23, 1997). The critical distinction is whether the testimony is, or is not, scientific. Carlson, the tire expert, concluded that the basis for his opinion was not on the scientific theory of physics or chemistry, but rather on his experience in analyzing failed tires. After years of looking at the mangled carcasses of blown-out tires, Carlson claims that he can identify tell-tale marks as revealing whether a tire failed because of abuse or defect.

Evidence – Spoliation

Peter S. Conley, Amy Seidman, Identifying Spoliation in the 1990s, Federal News Discovery, LRP Publications (May 1995).

Industrial Machinery: Injured Worker May Sue Employer in Tort for Spoliation, New Mexico High Court Says, Product Safety & Liability Reporter.

Evidence – Settlements

Settlement Agreement Should Not Have Been Revealed. Garcez v. Michel, No. 1-94-0926 (Ill. App. Ct. June 1, 1998).

Ex Parte Communications

1. It is proper to contact a former employee of a corporation. If the person was not a control group employee simple notice is required. If the person was a control group employee, then consent is required. If the person who you attempt to contact is a person for whom the corporation is vicariously liable, e.g., the hospital nurse who’s negligence is at issue, then that person is a control group employee. See New Jersey Federal Rules of United States District Court for District of New Jersey, General Rule 6A; Rule of Professional Conduct, 4.2; Federal Discovery News, Vol. II (No. 2 Jan. 1996).

2. Professional Responsibility Ex Parte Communications?A Florida Supreme Court has held that it is appropriate for attorneys to engage in ex parte communications with former employees. HBA Management, Inc. v. Schwartz, 693 So. 2d 541 (Fla. 1997).

3. A plaintiff may interview a non-party witness, identified in defendants’ discovery documents such as a non-party nurse who is not in the litigation control group and is not represented by counsel, if plaintiff’s counsel: 1) advises the witness that they have the right to refuse the interview; and 2) concludes an interview if a witness indicates he or she is represented by independent counsel.

Experts

1. Trial Tactics and Tips. Memo 12/20/93.

2. Automobile: Rollover: John Noettl, Scottsdale, AZ.

3. Rule 26 Expert reports not routinely discoverable. Anderson v. Tully Co., 151 F.R.D. 295 (W.D. Tenn.)

4. Engineering. Civil. Jack Humphreys, Friendsville, TN.

5. Medical Experts:

6. Expert need not be from same place if familiar with standard in similar community. Martin v. Barge, Waggoner, Sumner & Cannon, 19 TAM 51-10 (Tenn. App. E.S. Nov. 29, 1994).

7. Law firm disqualified if it hired an expert that another firm had merely interviewed but had passed along confidential information. Shadow Traffic Network v. Superior Ct., No. B079011 (Cal. Ct. App. May 2, 1994).

8. Human Factors Engineer – Dr. Terek Khalil, Coral Gables, Florida

9. Daubert, expert testimony on causation of drug admissible in Zuchowicz v. United States, 870 F. Supp. 15 (D. Conn. 1994).

10. Document Examiner: Thomas Vastrick, 832-3311, Address: 4741 Trousdale Drive, Suite 123, P.O. Box 110713, Nashville, TN 37222-0713.

11. Eleventh Circuit Court of Appeals reverses District Court’s interpretation of Daubert. 1996 LRP Publications (June 1996).

12. Correctness of scientific expert’s conclusions is for jury to determine. Joiner v. General Elec. Co., 78 F.3d 524 (11th Cir. 1996).

13. What To Look For When Hiring a Testifying Expert, 1996 LRP Publications (1996).

14. Daubert did not alter standards for determining sufficiency of expert testimony. Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993).

15. In Harp v. City, No. LR-C-93-785 (E.D. Ark. Apr. 10, 1995), the court specifically held that a nurse who was on duty at the time that the baby was born and assisted in the resuscitation attempts, was not a “conscriptive witness” and was in “no way a stranger to the litigation.” The court felt it was appropriate to ask these “expert questions.” See discussion at pp. 12-13.

16. Judge Looks at What is a Reasonable Fee for an Expert, 1995 LRP Publications at 1082-4782 (1995).

17. CH&A Graphics – Specializes in the illustration and animation of technical issues.

18. The Medical Illustration Studio.

19. Urology/Experts:

Dr. David F. Paulson, Professor of Urology, Duke University. This expert testified for the defendant in Davis v. Hatcher in Knoxville for Attorney T. Warren Butler.

William Campbell, a biomechanical engineer, testified concerning biomechanical equipment. He testified for Larry Dry of Oak Ridge in Davis v. Hatcher.

Dr. Dennis Doblar, Professof Anestheiology in biomechanical engineering at University of Alabama. He testified for the plaintiff in Davis v. Hatcher.

Dr. Cecil Morgan, Jr., a urologist in Alabama, testified for the plaintiff in Davis v. Hatcher.

20. Medical Malpractice Experts. It is permissible to have an expert consult if they separately contract with the plaintiff. See First National Bank of Springfield v. Malpractice Research, Inc., No. 5-95-0701 (Ill. App. Ct. Dec. 19, 1996)(holding that twenty-percent of the amount recovered paid to the defendant firm acceptable).

21. Orthopaedic Expert: Ralph E. Gaskins, Jr., M.D. for LEXIKON CONSULTING, INC., Address: 1140 Hammond Drive N.E., Suite D-4100, Atlanta, GA 30328, Tel: 770-730-0565; William Samuel Costen for LEXIKON CONSULTING, INC., Address: (same as above)

22. Daubert standards don’t apply to mechanical engineer testimony. Thornton v. Catapillar, Inc., No. 6:95-0314-3, 1997 WL 24728 (Dist. Ct. S.C. Jan. 21, 1997).

23. Medical expert services, call (1-800-275-8903) — American Medical Forensic Specialists, Inc.

24. Expert on human factors in following: See Robert Sleight, Rancho Catalina Place, Tucson, Arizona; 520-742-9589.

25. Medical Opinon Associates, 1-800-874-7677.

26. Physicians , 1-800-284-3627.

27. Medical expert – neonatology/pediatrics – 770-682-9290.

28. Expert on warning labels, Harold Tanyzer, Phd.– 516-747-8400

29. Questions of experts based upon personal knowledge is not subject to Daubert. Freeman v. Case, 118 F.3d 1011 (4th Cir. 1997).

30. Nurse Experts: Healthcare Law Consultants, P.O. Box 21887, Lexington, KY 40522-1887; 606-269-9793.

31. Tennessee abandons Frye test in favor of scientific validity or reliability of evidence. McDaniel v. CSX Transportation, 955 S.W.2d 257 (Tenn. 1997). A.Whether scientific evidence has been tested and the methodology with which it has been tested; B.Whether the evidence has been subjected to peer review or publication; C. Whether a potential rate of error is known; D.Whether, as formerly required by Frye, the evidence is generally accepted in the scientific community; and E.Whether the expert’s research in the field has been conducted independent of litigation.

32. The 7th Circuit Court of Appeals upheld the dismissal of the case in which evidence proferred by an expert witness failed to rule out sources of contamination other than the defendant and failed to test more than one site. This involved contamination to land from a diesel spill and other pollutants. See Burns Philp Food, Inc. v. Cavalea Continental Freight, Inc., No. 97-2557 (7th Cir. Feb. 4, 1998).

33. Daubert– See General Electric Company v. Joyner, 118 S.Ct. 512 (1997).

34. Experts’ “experience” testimony is not subject to Daubert. See Kinser v. Gehl, 989 F. Supp. 1144 (D. Kan. 1997); Maryland Casualty Company v. Thurm-O Disc, 137 F.2d 780 (4th Cir. 1998).

35. McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257 (Tenn. 1997).

36. Expert opinion on causation–admissible under Daubert.

37. Expert’s tests need not duplicate conditions. See Miller v. Bike Athletic, No. 96-1030 (Ohio).

38. Tire expert testimony not scientific, therefore not subject to Daubert. Carmichael v. Sam Yang Tire Company, 131 F.3d 1433 (11th Cir. 1997).

39. Medical examiner’s testimony not subject to Daubert. See Binakonsky v. Ford Motor Company, 133 F.3d 281 ( ).

40. Daubert can preclude the expert in a products age card case. See Dancy v. Heiser Company, 127 F.3d 649 (8th Cir.).

41. Expert testimony on causation admissible in termite case. See Kannankeril v. Terminex, 128 F.2d 802 (3rd Cir. 1997).

42. Contingent fee for experts unethical. See First National Bank of Springfield v. Malpractice Research, Inc., No. 82787 (Ill. Dec. 1997).

43. Daubert – Expert testimony required even on the basis of clinical experience in a medical causation case. See Moore v. Ashland Chemical, 178 F.3d 295 (5th Cir. 1999).

Fee Agreements

Contingent fee doesn’t include percentage of ‘attorney fees’ award. Untiedt v. Grand Laboratories, Inc., No. C3-96-590 (Minn. Ct. App.).

Foreign Depositions

National L.J. (Nov. 14, 1994). 2. Jeffery Carlson, Dickson, Carlson & Campillo, Santa Monica, CA.

Hemophilia

IMPORTANT LEGAL NOTICE – The U.S. District Court for the Northern District of Illinois Eastern Division

HMO Liability

See McAvoy v. Group Health Coop of Eau Claire, No. 96-0908 (Wis. Super. Ct.).

Hospitals & Health Organizations

Attorneys Medical Desk, Book III (Supp. I Dec. 1995).

Hospital Peer Review Privileges

Limits on Hospital Peer Review Privileges may be unconstitutional if discovery is limited. See Harston v. Campbell County Memorial Hospital, No. 95-90 (Apr. 2, 1996); Lawyer’s Weekley, No. 9907922 (13 pages). 1-800-933-5594 to order.

Independent Medical Examination

IME can be tape recorded. Jacob v. Chaplin, No. 46S04-CV-00851 (Ind. Sep. 6, 1994).

Informed Consent

In matters of informed consent, the plaintiff has the burden of proving, by expert medical evidence, what a reasonable medical practitioner would have disclosed to the patient about the risks incident to proposed diagnosis or treatment and that the defendant departed from the norm. If a physician performs surgery on a person without proper consent, he or she is liable for any consequent injuries. Courtemanche v. Rivard, 21 TAM 4811 (Tenn. App. E.S. Oct. 23, 1996); Shadrick v. Centenniel Medical Center, 21 TAM 46-14 (W.S. Oct. 11, 1996).

Insurance

1. In Ivy v. Hawk, 878 S.W.2d 442 (Mo. 1994), the Court permitted a party to ask prospective jurors whether they or their family members are involved by or have a financial interest in an insurance carrier involved in medical negligence.

2. $100,000-$300,000 limit on auto insurance is ambiguous.

3. The Tenn. Supreme Court has set out new rules for third-party insurance bad faith cases. Truck Insurance Exchange v. Bishara, et al. – NO CITATION

4. Auto insurance argument being used across U.S. Mostow v. State Farm Insurance Cos., No. 142 (June 5, 1996); 96 Law Week USA 589; Search words for LWUSA On-line — Influential, Mineola.

Intoxication

1. Defendant should not be able to stipulate to liability to avoid proof of intoxication. Such proof is relevant to punitive damages. See Cook v. Spinaker’s at Rivergate, 848 S.W.2d 934 ( ). It is also relevant to a defendant’s taking bankruptcy and discharging the debt. Section 523 A. 9 of Title 11 provides that a debt is non dischargeable if the operation was incurred in connection with the intoxication, alcohol, etc. JOINT & SEVERAL LIABILITY 1. Might still survive in concert of action; joint action in pursuit of a common design.

Jury

1. Taking Notes. New Arizona Supreme Court jury procedures–write and get.

2. Can’t challenge a juror for his job. People v. Bennet, No. 90-07730 (N.Y. App. Div. July 5, 1994)(liberal welfare division worker, who was African American).

3. Jury can be asked about tort reform. Barrett v. Peterson, 299 Utah Adv. Rep. (Dec. 30, 1993).

4. Ten Things Jurors Most Enjoy: a. Learning about the legal process b. Doing their duty as citizens c. Meeting new people in the courtroom d. Deliberating e. Interaction with attorneys, judges and witnesses f. Evaluating testimony and evidence g.Hearing the judge explain the jury’s’ duties and responsibilities in the context of the legal system h.Being afforded the importance and respect given to jurors by those working with them i. Seeing people get a fair trial j. Experiencing the entire trial from jury selection to verdict.

5. Things Jurors Least Enjoy: a.Long hours b. Jury deliberations c. Repetitious testimony d. Videotaped depositions e. Disruption of daily routine f. Difficulty facing parties after verdict g. Unprepared attorneys h. Formal, slow legal process.

6. Juror Misconduct. Patton v. Rose, 892 S.W.2d 410 (Tenn. App. 1994)(new trial not warranted where juror had read an article restricting medical malpractice verdicts and told other jurors to make notes of its contents).

7. Jury Instructions/Med. Malp. – Judge Kurtz’s jury instructions & a compilation of cases appearing in the Tennessee Tort Law Letter.

Legal Malpractice

1. A law firm is “equitably estopped” from raising the following defense: The fact that the client was assured that he/she would prevail in any litigation was the reason that the client didn’t sue earlier. Jackson Jordan, Inc. v. Leydig, Voit & Mayer, No. 70410 (Jan. 20, 1994).

2. Rule 11 Sanctions Covered by Malpractice Insurance. Where a lawyer had to pay $22,000 in sanctions under a state version of Rule 11 for bringing a frivolous suit, this is covered by his malpractice insurance. Davenport, L.L.P. v. Continental Casualty Co., No. 3–922-CV-1814-X (D. Tex.).

3. Lawyer can’t be sued for mistake in will, says the Texas Supreme Court in a 5-3 ruling.

4. Plaintiffs’ P.I. lawyers are being sued for malpractice by clients who are losing Medicaid because their recovery wasn’t put into a “Supplemental Needs Trust.” Worker’s comp., estate planning, divorce also affected. Lawyers Weekly USA (July 29, 1996).

5. Legal malpractice award can’t be discharged by going bankrupt. In re Lazar, No. 95-51984-R. (Bankr. E.D. Mich. May 21, 1996).

Lawyer for estate has no duty to advise the beneficiaries on taxes. Barner v. Sheldon, No. A-5962 (N.J. App. Div. July 8, 1996); Lawyers Weekly USA, No. 9908727 (13 pages).

Liens

1. Hospital lien statute inapplicable in wrongful death case. See Holston Valley Hospital & Medical Center v. Moffitt, 22 TAM 1813 (Mar. 31, 1997).

2. Medical bills paid by Medicaid or by worker’s compensation carrier are recoverable in a medical malpractice case. See Hughlett v. Shelby Co. Healthcare, 940 S.W.2d 571 (Tenn. App. 1996), cert. denied (Dec. 23, 1996). LOCAL RULES

Life Expectancy

CDC Tables. The The National Center for Health Statistics, (NCHS) has recently published, “United States Life Tables, 2000.” This report presents period life tables for the United States based on age-specific death rates. Presented are complete life tables by age, race, and sex. Data used to prepare these life tables are 2000 final mortality statistics; July 1, 2000, population estimates based on 1990 decennial census; and data from the Medicare program. In 2000 overall life expectancy of life at birth was 76.9 years representing a increase of 0.2 years from life expectancy in 1999.Between 1999 and 2000, life expectancy increased for both males and females and for the white and black populations. Life expectancy increased by 0.4 years for black males and 0.2 years for white males; it increased 0.2 years for black females and 0.1 year for white females.

Local Rules

Sixth Circuit Rules.

Marketing

FindLaw

Medicaid Trust

Shawn Patrick Regan, Medicaid Estate Planning: Congress’ Ersatz Solution for Long-Term Care, 44 CATH. U. L. Rev. 1217 (1995).

Medical Bibliographies

Attorneys’ Medical Desk, Book III, Supp. Binder 1 (Dec. 1995).

Medical Bills

1.Furnish 90 days before trial. Bailey v. City of Norris, 20 TAM 4-8 (Tenn. App. Dec. 28, 1994).

2. Evidence of plaintiff’s medical expenses partially paid by the plaintiff are recoverable in a medical malpractice case. Steele v. Ft. Sanders Anesthesia, 897 S.W.2d 270 (Tenn. App. 1994)

Medical Malpractice

In Hunter v. Ura (3/29/05) the Tennessee Supreme Court held: granting the plaintiff eight peremptory challenges was harmless error; denying a motion for a mistrial after the plaintiff had cross-examined an expert witness with a prior statement was correct; allowing the plaintiff to cross-examine a defense expert witness with an alleged learned treatise was proper because there was no evidence the text was being used (not having been admitted as reliable); excluding the deposition testimony of a defense expert witness was proper; the trial court erred in remitting the jury’s verdict by $1,500,000; the trial court properly denied prejudgment interest to the plaintiff; awarding damages for the loss of consortium did not violate the defendants’ rights under the United States or Tennessee constitutions; the trial court did not err in finding that the plaintiff’s expert witness established the professional standard of care in the community in which the defendants practiced; the trial court did not err in allowing the plaintiff to introduce hearsay statements from medical literature or make arguments as to the presence or absence of medical literature; the trial court did not err in denying a motion for a mistrial or a continuance based on the unavailability of a defense expert witness; the trial court did not err in refusing to allow the defendants a credit against the jury’s verdict based on a payment received by the plaintiff under the decedent’s executive insurance plan.

In Mills v. Wong, (2/16/05) the Tennessee Supreme Court held that mental incompetency does not toll the statute of repose in medical malpractice actions.

In Harris v. Baptist Memorial Health Care Corp., 2005 WL 123455

(Tenn.Ct.App.,Jan 21, 2005) the Court of Appeals held, consistent with Kilpatrick v. Bryant, 868 S.W.2d 594 (Tenn.1993) that Tennessee does not recognize the loss of chance theory of recovery because it is fundamentally at odds with the requisite degree of medical certitude necessary to establish a causal link between the injury of a patient and the tortious conduct of a physician.

In Burroughs v. Magee, 118 S.W.3d 323, (Tenn., Oct 01, 2003) the Tennessee Supreme Court held a physician owed duty of care to automobile passenger and her husband to warn truck driver of possible adverse effects of Soma (a muscle relaxant) and Esgic-Plus (a barbiturate) on his ability to safely operate a motor vehicle; but (2) physician did not owe duty of care to automobile passenger and her husband in deciding whether or not to prescribe those medications to truck driver. The case is a good review of the issue of duty and forseeable harm under Tennessee law.

Does HIPAA Preclude Ex Parte Interviews w/ Physicians? See Bayne v. Provost, 2005 WL 469360, (N.D.N.Y. , Jan 25, 2005) In Tennessee, however, such ex parte contacts by attorneys with treating MDs are impermissble as a result of Givens v. Mullikin ex rel. Estate of McElwaney, 75 S.W.3d 383 (Tenn.,2002).

Five years after a major report describing an epidemic of medical errors in the U.S. health care system shocked patients, policy makers and physicians, little substantial progress has been made to make medical care safer. See Scant Progress Seen on Cutting Medical Errors (Reuters Health, 11/04/04). Observers cite a lack of money and political will needed to fund safety research and implement safeguards in hospitals and physicians’ offices throughout the nation.They also point to a resistant medical culture in which doctors still balk at efforts to record errors and participate in systematic steps to solve them.The Institute of Medicine issued a report in November 1999 warning that outdated and sometimes nonexistent safety practices were causing widespread errors in pharmacies, doctors’ offices and operating rooms throughout the country.

1. ERISA PRE-EMPTS: Tenn. Code Ann. § 29-26-119; Electro-Mechanical Corp. v. Ogan, 18-TAM 49-34 (Nov. 3, 1993).

2. Statute of Limitations and amendment in medical malpractice. Welch v. Thane, 19 TAM 15-9 (Mar. 23, 1994).

3. Statute of repose applies even when non-suit taken and suit re-filed within one year. Cronin v. Howe, 19 TAM 13-8 (ES Mar. 3, 1994).

4. MD’s mental health records discoverable where claim makes them relevant. R.K. v. Ramirez, No. D-4558 (Tex. Nov. 3, 1994).

5. Not dischargeable in bankruptcy by M.D. In re Perkins, 817 F.2d 392 (6th Cir. 1987); Kawaauhau v. Geiger, No. 89-01062-293 (Bankr E.D. Mo. Aug. 23, 1994).

6. Hospital Liability for acts of Independent Physicians. Clark v. Southview Family Health Center, 68 Ohio St. 3d 435 (Ohio 1994)(hospital liable). Duty to see if doctor qualified. Candler Gen. Hosp. v. Persaud, No. A93A2182 (Ga. App. Feb. 28, 1994).

7. Defendant’s own standard = breach. Thurman v. Buchanan, 10 TAM 6 17 (Jan. 10, 1985).

8. Waiver of contiguous state rule. Steele v. Ft. Sanders Anesthesia Group, P.C., 19 TAM 51-8 (Tenn. App. E.S. Nov. 29, 1994).

10. Emergency care covered by federal act, Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395d. Sixth Circuit says hospital must have improper motive. Cleland v. Bronson Health Care Group, Inc., 917 F. 2d 266 (6th Cir. 1990); contra Power v. Arlington Hosp. Ass’n., No. 2195 (4th Cir. Dec. 12, 1994). Must provide an appropriate medical screening examination within the capability of the hospital’s emergency department.

11. One-third is the norm for medical malpractice cases in Tennessee. Newton v. Cox, 878 S.W.2d 105 (Tenn. 1994), cert. denied, 115 S. Ct. 1889 (1994).

12. Altering records alone justifies punitive damages. Moskowitz v. Mt. Sinai Medical Center, 69 Ohio St. 638 (Ohio June 27, 1994).

13. Loss of evidence, spoliation = presumption of negligence. Sweet v. Sisters of Providence, No. 4127 (Alaska Sep. 30, 1994).

14. M.D.’s mental health records must be produced. R.K. v. Ramirez, No. D-4558 (Tex. Nov. 3, 1994).

15. No medical malpractice if plaintiff probably would have suffered same harm anyway. No cases for loss of a chance. Kilpatrick v. Bryant, 868 S.W.2d 594 (Tenn. 1993); Lawyers Weekly USA (Dec. 22, 1993).

16. A medical malpractice jury can be told that an expert witness has the same insurer as the defendant doctor, according to the ____________ Supreme Court. Edede v. Atrium South OB/GYN, Inc., 64 N.E.2d 365 (Dec. 14, 1994). Our Tennessee Supreme Court has yet to decide this issue.

17. Statute of repose and statute of limitations. See Cronin v. Howe, 19 T.A.M. 13-8, appeal granted (June 13, 1994). Supreme Court’s decision will be determinative of issue.

18. In Ivy v. Hawk, 878 S.W.2d 442 (Mo. 1994), the Court permitted a party to ask prospective jurors whether they or their family members are involved by or have a financial interest in an insurance carrier involved in medical negligence.

19. Plaintiff who sues hospital can obtain transcripts of interviews by the hospital’s lawyer with surgical technicians and nurses. Phoenix Children’s Hospital, Inc. v. Goodfarb, 152 Ariz. Adv. Rep 14. (Nov. 16, 1993).

20. Informed consent standard controls. Aronson v. Harriman, No. 94 121H (July 17, 1995). Causation should be evaluated in terms of whether a reasonable and prudent patient in the same position would have withheld consent if the risk had been disclosed.

21. Hospital liability, ostensible agency, vicarious liability and corporate negligence. See Health Care Law Digest at 16 (Jan. 1996).

22. Is medical malpractice a federal tort? See 8th Cir. decision.

23. Principles of comparative fault in medical malpractice actions can apply for plaintiff who caused injury. Gray v. Ford Motor Co., 914 S.W.2d 464 (1996).

24. It is the duty of the prescribing physician, not the drug manufacturer, to warn individual patients about the hazards of a given drug. Martin v. Ortho Pharmaceutical Corp., No. 78520 (Ill. Jan. 18, 1996).

25. Cross-examination with former co-defendants deposition in medical malpractice action. Defendant’s expert neurosurgeon was properly cross-examined with respect to the expert opinions of a former co-defendant surgeon. Steele v. Fort Sanders, 897 S.W.2d 270 (Tenn. App. 1994).

26. Juror Misconduct. New Trial not warranted where juror had read an article restricting medical malpractice verdicts and told other jurors to make note of its contents. Patton v. Rose, 892 S.W.2d 410 (Tenn. App. 1994).

27. Mature minor can give consent. Rodney v. Volunteer Medical Clinic, Inc., 21 TAM 12-8 (Feb. 26, 1996).

28. Patient Dumping. See Health Care Law (Special Law Digest publication Feb. 1996).

29. Continuous treatment doctrine. See Luchs v. Couburn, 628 N.Y.S.2d. 92 (N.Y. App. Div. 1995).

30. Vicarious liability argument means you don’t have to prove attending physicians have negligent supervision, just prove residents were negligent. Rouse v. Pitt County Memorial Hospital; North Carolina Lawyers Weekly, No. 6-06-0717.

31. Experts: Examination as to expert’s poor surgical results. Wischmeyer v. Schanz, 536 N.W.2d 760 (Mich. 1995).

32. Hospitals: Doctrine of independent corporate negligence. The hospital knew or should have known that the staff physician had engaged in a pattern of incompetent behavior. That theory of liability would be available to plaintiff on remand and retrial. Strubhart v. Perry Mem. Hosp. Trust Auth., 903 P.2d 263 (Okla. 1995).

33. Plaintiff was diagnosed with invasive lobular breast cancer and a mastectomy was performed to removed the mass. Plaintiff contended the defendant was negligent in failing to timely diagnose the cancer. Plaintiff’s spouse claimed loss of consortium and was awarded $550,000. Bennett v. McGrath, M.D., No. 94-CI 03288 ( ).

34. Targeting the Achilles heel of podiatric medical negligence.

35. Plaintiff may recover for fear of contracting AIDS absent actual exposure. Madrid v. Lincoln Count Medical Ctr. – NO CITATION FOUND

36. Limitations: Malpractice action was not subject to dismissal. Hernandez v. American Hosp., Inc., 659 So.2d 1316 (Fla. Dist. Ct. App. 1995).

37. MALPRACTICE ACTIONS: Question to expert regarding settling physican. Lumley v. Capoferi, 463 S.E.2d 264 (N.C. Ct. App. 1995).

38. The Wisconsin Supreme Court ruled on how defense counsel in a medical malpractice action should be involved in an ex parte conversation about the plaintiff with one or more of the plaintiff’s treating physicians. teinberg v. Jensen, 534 N.W.2d 361 (Wis. 1995)

39. Judge’s instruction that defendants could not be liable for judgment errors, warrants new trial. DiFranco v. Klein, 657 A.2d 145 (R.I. 1995)

40. Underwood v. HCA Health Services of Tenn., 892 S.W.2d 423 (Tenn. App. 1994)

41. Davis v. Hatcher, No. 03A01-9601-CV00016, 1996 WL 506878 (Tenn. App. Sept. 9, 1996).

42. Collateral Source/Med. Expenses- Tutton v. Patterson, 714 S.W.2d 268 (Tenn. 1986).

43. The Illinois Supreme Court has held in Sholtens v. Schneider, No. 79686 (Ill. Sep. 19, 1996), that a health insurer must pay a portion of the attorneys’ fees in a subrogation claim.

44. Hospital liable for contractor/doctor for an emergency room doctor’s negligence under public policy. Samson v. Baptist Memorial Hospital System, No. 04-95-0091-CV (Tex. Ct. App. Nov. 13, 1996); Lawyer’s Weekly USA, No. 9909718.

45. Hospital can be sued for doctor’s negligence even though he is an independent contractor. Sword v. NKC Hospitals, Inc., No. 10A05-9408-CV-322, (Ind. App. Jan. 31, 1996); Lawyer’s Weekly USA, No. 9907607.

46. No bifercation between liability and damages in a brain-damaged infant case. Mason v. Muir, 641 N.Y. Supp. 2d 195 (N.Y. App. Div 1996).

47. A husband not liable for wife’s medical expenses. Conner v. Southwest Florida Regional Medical Center, 668 S.2d 175 (Fla. 1995).

48. ER doctor’s mistakes can be responsible for the hospital. See Rhea Samson v. Baptist Memorial Hospital System, No. 09-9500910 (Texas Ct. App. Nov. 13, 1996)(holding that despite waivers and disclaimers, Texas hospitals can be held liable for the negligence of independent emergency room physicians).

49. Hindsight instruction not appropriate. McNabb v. Landis, No. A96A1839, LEXIS 1324 (Ga. Ct. App. 1996).

50. Medquest, The Expert Review (Summer/Fall 1996).

51. Successor Liability of a Hospital. See Gwinnett Hospital System v. Massey, 469 S.E.2d 729 ( ).

52. HMO Liability: Medical Malpractice Law and Stategy (MAR. 1997). Phone consult by attending physician may establish liabililty for on-call physician. See McKinney v. Schlatter, 692 N.E.2d 1045 (Ohio Ct. App. 1997).

53. Affidavit must state with precision exactly what defendant did wrong in treating the patient in order to establish a breach from the standard of care. See Estate of Henderson v. Mire, 22 TAM 16-7 ( ).

54. Cancer – Statute of limitations began when cancer reappears. Chidester v. Elliston, 22 TAM 12-12 (Feb. 20, 1997).

55. Venue – proper venue for a medical malpractice claim against hospitals is the county in which the hospital and patient were residents and in which the cause of action arose, even though the physician and physician’s employer, who are also defendants, were residents of county in which action was filed. Bean v. Baptist Memorial Hospital-Union City, 937 S.W.2d 922 (Tenn. App. 1996).

56. Hospital occurrence reports are discoverable. Columbia/HCA Healthcare Corp. v. , 936 P.2d 844 ( ). – NOT CERTAIN ABOUT CITATION OR CASE NAME.

57. Include allegations of breach of third-party beneficiary of contract status against emergency staffing company. See McClendon v. Crowder, 22 TAM 34-1 (Tenn. App. E.S. July 24, 1997).

58. Hard scientific techniques or methods that become Daubert factors are generally not appropriate for assessing evidentiary liability of expert clinical medical testimony. See Moore v. Ashland Chemical, 126 F.3d 679 (5th Cir. 1997).

59. Expert affidavit of a physician must address the standard of acceptable professional practice as it would apply to nursing or hospital care. Under Tenn. R. Civ. P. 56.06. See Vega-Horta v. Wyeth-Ayerst Laboratories, 23 TAM 13-11 (Feb. 26, 1998).

60. Prescription drug warnings in the PDR are not determinative of the standard of care but are admissible in evidence as part of the standard of care if accompanied by appropriate expert testimony to explain the standard of care to the jury. See Morlino v. Medical Center of Ocean City, No. A-36 (N.J Sep. 1997); 66 U.S. L.W., No. 36 at 1567 (Feb. 26, 1998).

61. Hospital’s non-deligible duty of emergency care. A hospital may be vicariously liable for the negligence of its non-employee emergency room doctors because it has a nondeligible duty to provide competent emergency room services irrespective of any fault by the hospital. Simmons v. Tomey Regional Medical Center, No. 2788, (S.C. Ct. App. Feb. 2, 1988); 66 U.S.L.W., No. 36 at 1576 (Feb. 26, 1998).

62. A mother’s emotional distress is supported by evidence that mothers experience extreme pain from physicians’ repeated vaginal exams and difficult labor, including hospitalization for 8 days sufficient to support claim for emotional stress claims. Salgado v. County of Los Angeles, 67 Cal. Rptr. 2d 256 (Cal. Ct. App. 1997).

63. National standard of care, not local, applies, at least in Mississippi. Goldman v. Bosco, 120 F.3d 53 (5th Cir. 1997).

64. Emotional Distress. See Curtis v. MRI Imaging Services II, 941 P.2d 602 (Or. Ct. App. 1997)(recovery for emotional distress without showing concurrent physical injury).

65. Dischargeability and Bankruptcy. Doctors are not precluded from discharging their medical malpractice judgments and debts in bankruptcy unless there is wilfull and malicious injury. See Kawaauhau v. Geiger, No. 97-115 (U.S. Mar. 3, 1998).

66. Statute of repose unconstitutional. In Wisconsin State of Makos v. Wisconsin Masons Healthcare Fund, 564 N.W.2d 662 (Wis. 1997).

67. Improper instruction and comparative fault of non-party physician. Physician-defendant has to plead and prove the affirmative defense for comparative fault. See Free v. Carnesale, 110 F.3d 1227 ( ).

68. Use of PDR. PDR entry can be considered by the jury in reaching a verdict but only in connection with expert testimony to determine the appropriate standard of care. See Morlino v. Medical Center of Ocean County, 706 A.2d 721 (N.J. 1998)(opinion by Justice Stewart Pollock).

69. Emergency room physician on call can be held liable. See McKinney v. Schlater, 1997 WL 827320 (Ohio Ct. App.).

70. Emergency Medical Treatment and Active Labor Act. EMTALA, 42 U.S.C. § 1395DD.

71. Birth injuries. Thomas Demetrio, Barry Chafetz and Margaret Power. Use of Marcain for paracervical block procedures contraindicated. See Rafter v. Sterling Drug, Inc., No. 92L5805 ( ).

72. If the plaintiff sues for negligence performance of a procedure, the defendant cannot defend by saying that he informed the plaintiff of the risks in the procedure. See Waller v. Aggarwal, 688 N.E.2d 274 (Ohio Ct. App.).

73. An attorney cannot instruct a non-party out-of-town witness in a medical malpractice action not to answer specific questions at a deposition. See Alt v. Cline, 572 N.W.2d 895 (Wis. Ct. App. 1997).

74. Entries in the Physicians’ Desk Reference do not establish the standard of care but are admissible if relied upon by expert testimony. See Morlino v. Medical Center, 706 A.2d 721 (N.J. 1998).

75. Medical Malpractice – Res Ipsa Loquitur – Negligence cannot be inferred when there is expert testimony that no negligence occurred. Kennedy v. Holder, 24 TAM 21-8 (Tenn. App. Apr. 16, 1999).

76. Products Liability – In Penn. and N.J., the Plaintiff in a products liability suit need not show that he would have obeyed the warnings. Coffman v. Keene Corp., 628 A.2d 710 ( ); Coward v. Owens-Corning Fiberglas Corp., No. 2167 (Pa. Apr. 14, 1998).

Medicare Subrogation

1. Tennessee Tort Law Letter, Vol. 1 (No. 2).

2. Limiting Charge and Medicare Secondary Payer – Medicare as Secondary Payer to a Liability Insurer Enforcement Policy

Meningitis

Speed a Big Factor in Bacterial Meningitis, Medical Malpractice Law and Strategy (Nov. 1993).

Mock Juries/Focus Groups

Trial (Jan. 1995).

Negligence

1. Survives McIntyre. See Shope v. Radio Shack, 21 TAM 1-5 (Dec. 7, 1995).

2. Summary judgment in favor of defendant is reversed in wrongful death suit against hospital when disputed issues existed as to whether defendant breached duty of care to mental patient, who committed suicide, and whether patient had mental capacity to understand what he was doing. Pattish v Hospital Corp. of America, 21 TAM 33-5 (MS July 26, 1996).

3. Patient sues for ‘fear’ of cancer although she probably won’t get it. Costello v. McDonald, No. 22854 (W.Va. June 14, 1996); Lawyers Weekly USA, No. 9908811.

4. INSTRUCTIONS: No prejudice to physician – delegated responsibility of counting sponges to nurse. Ravi v. Coates, 662 So. 2d 218 (Ala. 1995).

5. PROFESSIONAL NEGLIGENCE: Duty of psychotherapists to third party nonpatients: Where a known suicidal, violence-prone mental patient escaped from his attendant, jumped off roof on hospital’s parking garage landing on plaintiff, a hospital groundskeeper, Massachusetts’ trial court holds that suicide’s psyhiatrist may be held liable for negligent failure to control the patient and protect members of public (third-party nonpatients). Foreseeably endangered by the patient: Ambit of liability of psychotherapist under celebrated Tarasoff case. Carr v. Howard, No. 94-97 (Mass. Super. Ct. Mar. 5, 1996). Counsel for Plaintiff was ATLA Stalward Michael A. West, Boston, Mass.

6. “…in suit against county growing out of automibile accident at intersection, material factual disputes were presented as to whether intersection was dangerous, whether county had actual or constructive notice of intersection’s condition and whether condition of driver’s brakes caused accident.” Burgess v. Harley, 21 TAM 31-5 (Tenn. App. MS July 10, 1996).

7. Defendant who wishes to introduce evidence that other person’s actions caused the injuries must affirmatively plead comparative fault. George v. Alexander, No. 01A01-9406-CV00243, 1995 WL 73406 (Tenn. App. Feb. 24, 1995).

8. Open and obvious danger rule. Campbell v. Huffy Service First, Inc., 22 TAM 21-66 (Apr. 15, 1997)(employee tripped over extension cord– defendant had duty to warn employee of dangerous condition based upon momentary forgetfulness exception to open and obvious danger rule)(trial court opinion, Rutherford Circuit Court, Judge Corlew).

Outrageous Conduct

Pursell v. First American National Bank, 20 T.A.M. 22-10 (May 12, 1995) (mental injury as a prerequisite for recovery for outrageous conduct).

OSHA Violations

Osha violations are neglient per se under some circumstances. The Fifth and Sixth Circuits have held that regulatory violations may, in certain circumstances, establish negligence per se, however, the First, Third, Fourth and Ninth Circuits had held that such regulations are at most evidence of the relevant standard of care.

Paralegals

Supervision of Non-lawyer Employees: The Hidden Ethical Obligation, Texas Bar Journal (Sept. 1995).

Partnership Agreement

Partner sues law firm for terminating him; collects $2.5 Million. Palm Beach County (Florida) Circuit Court. Beasley v. Cadwalader, Wickersham & Taft, No. CL-94-8646 (July 23, 1996); Lawyers Weekly USA, No. 9908760 (25 pages).

Personal Injury Damages

1. $9,000,000.00 for death of a 33-year-old executive not too high and any such claim is frivolous, according to a federal judge. Pescatore v. Pan Am, No. 89 C.V.-1719; National Law Journal (May 1, 1995).

2. Median loss of services award is one-eighth of corresponding compensatory median. LRP Publications ,Vol. 4, Iss. 12 (June 10, 1996).

3. Damages may include pain and suffering, permanent impairment and disfigurement, loss of past enjoyment of life and loss of future enjoyment of life. See Livingston v. Upper Cumberland Human Resource Agency, 22 TAM 15-10 (Mar. 12, 1997).

4. Pain, suffering, permanent impairment and disfigurement and loss of enjoyment of life recoverable. See Livingston v. Upper Cumberland Human Resource Agency, 22 TAM 1510 (Mar. 12, 1997).

5. Tennessee abandoned the zone of danger test and bystander emotional distress cases. In Ramsey v. Beavers, 931 S.W.2d 527 (Tenn. 1996), the Tennessee Supreme Court abandoned the zone of danger test for analyzing bystander emotional distress claims in favor of a general negligence approach. The plaintiff must show that he sustained a physical injury along with an emotional one or was placed in immediate danger of physical harm and contemporaneously feared for his own safety. The court also required that the plaintiff be closely related to the injured party. Duty of care requires a consideration of the plaintiff’s physical location at the time of the accident, awareness of the accident, a degree of injury to the third person, the plaintiff’s relationship to the injured party. These considerations will reasonably limit recovery while allowing recovery in meritorious cases.

6. Robert A. Bohm of Economic Appraisal Associates, Knoxville, TN.

7. Pain and suffering. Recovery under general maritime law for KAL Flight 007–passengers pre-death pain and suffering. See Dooley v. Korean Airlines, 118 S. Ct. 679, 117 F.3d 1477 (D.C. Cir.).

8. $10.5 million not excessive for a 29-year-old patient who was rendered speechless by a stroke. See Dahan v. UHS of Bethesda, Inc., 1998 WL 13224 (Ill. App. Ct.)(opinion by Justice William Cousins, Jr.)

Personal Jurisdiction

In personam jurisdiction extends to the limits of due process. Lucite International v. Peter Runciman (Tenn. Ct. App., Feb. 18, 2005).

Pharmacy Liability

Failure to provide warning with Rx drug. Heredin v. Johnson, 827 F. Supp. 1522 (D. Nev. 1993); Lasley v. Shrake’s Country Club Pharmacy, Inc., No. 1-CA-CV 92-9216 (Ariz. Ct. App. Apr. 5, 1994).

Police

High speed chase actionable. Haynes v. Hamilton County, No. 03-S-01 9402-CV-00006 (Tenn. Aug. 29, 1994).

Prenuptial Agreement

Putting ‘Life Estate’ in prenuptial agreement loses marital deduction. Estate of Hermann v. Commissioner, No. 95-4113 (2nd Cir. June 11, 1996).

Principal Contractor Defense

Campbell v. Dick Broadcasting Co., Inc., of Tennessee, 883 S.W.2d 604 (Tenn. 1994).

Premises Liability

1. No duty to protect employees of tenant at a mall. Lewter v. O’Conner Management, Inc., 886 S.W.2d 253 (Tenn. App. 1994).

2. Icy parking lot is an “Open and Obvious Danger”; No Liability. Hellmann v. Droege’s Super Market, Inc., No. 68737 (Mo. App. May 21, 1996); Lawyers Weekly USA, No. 9908262 (11 pages). To order copy of the opinion, call 800-933-5594.

3. Guardrail case pushed over cliff. Helton v. Knox County, 21 TAM 21-1 (SC Tenn. May 13, 1996).

Printers

Lutz Appellate Printers; 1500 Chiquita Center, 250 East 5th Street, Cincinnati, OH 45202 or 85 Main Street, South River, NJ 08882, Cincinnati, OH, 1-800-YES-RULE, (513)-762-7887.

Products Liability – Preemption

1. Express warranty claims exempted from MDA, Mitchell v. Colagen, No. 94-3946 (7th Cir. Oct. 2, 1995).

2. Preemption and medical devices. Yes, plaintiffs can sue. Oliver v. Johnson & Johnson, No. 94-0237 (W.D. Pa. Oct. 5, 1994); Evraets v. Intermedics Intraocular, Inc., No. B073283 (Cal. Ct. App. Oct. 26, 1994).

3. Preemption and FIFRA. Suits not preempted in manufacturer misled EPA. McDonald v. Monsanto, No. 93-4817 (5th Cir. July 20, 1994); Roberson v. E.I. DuPont de Nemours & Co., No. 93-3092 (W.D. Ark. Nov. 26, 1994). Also, defective design. Pre-mixed form would have better; were there tests that pesticide was capable of releasing harmful amts into environment? Helms v. Sporicidin Int’l., No. 92-10-CIV-4-H (E.D. N.C. Dec. 2, 1994).

4. “The MDA preempts state product liability claims,” ruled the Sixth Circuit in Martin v. Teltronics Pacing Systems, Inc., No. 94-4003 (6th Cir.).

5. MDA does not preempt claims based upon fraud. See Powers v. Optical Radiation Corp., 44 Cal. Rpt. 2d 485 ( ).

6. MDA does not preempt design defect claims for substantially equivalent devices. Feldt v. Mentor, 653 F.2d 431 (5th Cir. 1995).

7. MDA preempts claims. See Estate of Ulmay v. E. I. Lilly, 881 F. Supp. 428 ( ).

8. The federal court has agreed to review LHOR v. Medtronic, 56 F.3d 1335, cert. granted (Jan. 19, 1996); Kennedy; v. Collagen, 67 F.3d 1453 ( ).

9. No preemption for medical devices. Duvall v. Bristol-Meyers, No. 94 1520 (4th Cir. Sept. 25, 1995); Mitchell v. Cologen, No. 94-3946 (Oct. 2, 1995); Forrester v. Playtex, (N.D. Ill. Sept. 12, 1995).

10. Preemption of State Law Product Liability Claims by the Medical Device Amendments of 1976, Bureau of National Affairs, Inc., 0092-7732 (1995).

11. Intraocular Lens: Concealment Claim not Pre-empted Court says in Medical Device Case, Bureau Of National Affairs, Inc.

12. Cumberland, The Institute for Continuing Legal Education, Presents “Products Liability.” Nov. 3, 1989.

13. The Pennsylvania Supreme Court said individuals may not bring state law claims against vehicle manufacturers for failure to install airbags. Celluci v. General Motors Corp., No. 77 (Pa. Jan. 2, 1998). A substantial majority of state and federal courts have concluded that such claims are preempted by the National Traffic & Motor Vehicle Safety Act but a number of courts have held that state-law no airbag tort claims are not preempted.

14. The 1976 Medical Device amendments do not pre-empt Kentucky’s strict liabilty and negligence claims against the manufacturer of an investigational medical device in absence of specific federal regulations conflicting with generally applicable Kentucky law. Niehoff v. Surgide, 66 U.S.L.W. 1042 (Ky. 1997), cert. denied, 66 U.S.L.W. 3590 (Mar. 10, 1998).

15. Federal Boat Safety Acts. Implied preemption of claims against outboard engine manufacturer. Lewis v. Brunswick, 103 F.3d 1494 (11th Cir. Ga. 1997).

Products Liability

1. Burden of Proof in a Products Liability Case (Warranty & SL). Masters By Masters v. Rishton, 863 S.W.2d 702 (Tenn. App. 1992).

2. Continuing Duty to Warn & Post-sale Duty. Patton v. Hutchinson Wil-Rich Mfg Co., 861 P.2d 1299 (Kan. 1993).

3. Similar Complaints of Product Injury Discoverable and Admissible. Other complainants could serve as potential witnesses. Delvecchio v. General Motors, Inc., No. 5-91-0475 (Ill. App. Ct. Dec. 21, 1993).

4. Mr. Coffee fire. Vaughn v. North American Systems, (Mo. Jan. 25, 1994).

5. OSHA and ANSI standards are admissible. Hansen v. Abrasive Eng’g, Inc. 856 P.2d 625 (Or. 1993).

6. Expert turning sides against mfg’r is ok. English Feedlot, Inc., v. Norden Lab, Inc., 833 F. Supp. 1498 (D. Colo.)

7. No presumption instruction for compliance with OSHA standards. Tuggle v. Raymond, 868 S.W.2d 621 (Tenn. App. 1992).

8. Pharmacy must warn of drug dangers. Heredia v. Johnson, 827 F. Supp. 1522 (D. Nev. 1993). No duty to unforeseeable users (family members). Pittman v. Upjohn Co., 19 TAM 49-1 (Tenn. 1994).

9. Defendant can’t introduce Plaintiff’s negligence as proof of intervening cause. Kramer v. Raymond Corp., No. CIV 90-5026, 1993 WL 478989 (E.D. Pa. Oct. 26, 1993).

10. Post-sale duty to warn of hazards. Patton v. Wil-Rich Mfg., 861 P.2d 1299 (Kan. 1993).

11. California law. Consumer expectations test applies in heavy machinery case. Cobos v. Ray-Go Wagner, No. 91 -56196 (9th Cir. Jan 11, 1994).

12. Successor liability under de facto merger theory. Sedbrook v. Zimmerman Design Group Ltd., No. 93-2135 (Wis. Ct. App. Dec. 1, 1994).

13. Marketing activities of drug companies is very important to discover in products cases. “Mr. Mithoff [Plaintiffs’ counsel] also introduced testimony from the deposition of a Dow Corning marketing executive who described the public relations effort to recruit doctors and patients who would promote the need for breast implant production.” Implant Plaintiffs Reach Into Deep Pocket, National Law Journal at A8 (Jan. 23, 1995). “The plaintiff’s attorneys also produced videotapes and other marketing tools that Key/Schering had reportedly used to convince doctors and pharmacists that their version of the drug was safe to use.” Failure to Warn About Drug Leads to Brain Damage, Lawyers’ Weekly USA at B6 (Jan. 30, 1995); Bocci v. Key Pharmaceuticals, Inc. et al., (Sept. 9, 1994).

14. Does company have a toxicology department (for Teflon® cases). Implant Plaintiffs Reach Into Deep Pocket, National Law Journal at A8 (Jan. 23, 1995).

15. Summary Judgment Improper even in Plaintiff did not read warnings. Rowson v. Kawasaki Heavy Industries, Inc., No. C-91-3054 (N.D. Iowa Oct. 24, 1994).

16. Manufacturer still liable for “reasonably foreseeable” modifications. Piper v. Bear Medical Systems, Inc., 152 Ariz. Adv. Rep. 58 (Ariz. Ct. App. Nov. 16, 1993).

17. “Unforeseeable misuse” not a bar under comparative negligence. Standard Havens Products, Inc. v. Benitez, No. 82-795 (Fla. Dec. 1, 1994).

18. Bicycle without headlight=$7 million verdict. Johnson v. Derby Cycle Corp., (N.J. Nov. 4, 1993).

19. “Crashworthiness” and proof of injuries. As long as plaintiff proves that lack of crashworthiness was a substantial factor he need not determine which injuries were caused by the defect. The burden shifts to the manufacturer to show which injuries were due to which cause. Kudlacek v. Fiat S.p.A., No. S-91-435 (Neb. Jan. 7, 1994).

20. Subsequent remedial measures admissible in products cases. McFarland v. Bruno Machinery Corp., 626 N.E.2d 659 (Ohio Feb. 16, 1994).

21. Manufacturer has duty to tell purchaser of used equipment (made in 1965) of subsequent improvements and design changes. Dixon v. Jacobsen Mfg. Co., No. A-229-91T3 (N.J. Super. Ct. App. Div. Feb. 2, 1994).

22. Limitations and continuous treatment. Caughell v. Group Health Coop. of Puget Sound, 124 Wash. 2d 217 (Wash. July 21, 1994)(woman allowed to sue for 20 years of valium use as long as she sued three years from date of last prescription).

23. Statue of repose runs from date of sale to consumer. Pafford v. Biomet, No. S94G0154 (Ga. Nov. 19, 1994).

24. Jury should determine whether pool manufacturer owed duty to warn against danger of above-ground pool. A duty to warn analysis looks at whether an ordinary person would be aware of the danger posed by the product. Where the plaintiff is a child, the standard is that of a reasonable child of the same age. Klen v. Asahi Pool, Inc., No. 1-92-1513 (Ill. App. Ct. Dec. 2, 1994).

25. Implied warranty and strict liability cases are different theories. See Denny v. Ford Motor Co., 146 F.R.D. 52 (D. NY. 1993).

26. Joint and several liability applies to all in the distribution chain. Owens v. Truckstops of America, 21 TAM 6-1 (Jan. 29, 1996).

27. It is the duty of the prescribing physician, not the drug manufacturer, to warn individual patients about the hazards of a given drug. Martin v. Ortho Pharmaceutical Corp., No. 78520 (Ill. Jan. 18, 1996).

28. Component part manufacturer not required to warn of risk using his product in a finish system. Schaffer v. Ala Smith Harvestor Products, No. 94-3546 (6th Cir. Feb. 6, 1996).

29. The ANSI Committee is in the process of updating standards for warning labels, signs and symbols. They are to be distributed in early September for a committee vote and a 90-day public comment. J. Paul Frantz, Ph.D.

30. Jury should have been told that they could infer that the plaintiff would have heeded adequate warnings about machine’s dangers. Facendo v. S.M.S. Concast, Inc., 670 A.2d 44 (N.J. Super. Ct. App. Div. 1996)

31. Asbestos: Plaintiff’s expert testimony that exposure to asbestos caused the plaintiff’s decedent’s colon cancer. In re Joint E. & S.E. Districts Asbestos Litigation, 78 F.3d 764 (1995).

32. Bendectin: Summary judgment granted to manufacturer; Plaintiffs’ proof inadmissable under Daubert. Wilson v. Merrell Dow Pharmaceuticals, Inc., 160 F.3d 625 (10th Cir. 1998).

33. Bendectin: Evidence insufficient on causation in Oklahoma Bendectin case. Wilson v. Merrell Dow Pharmaceuticals, Inc., 160 F.3d 625 (10th Cir. 1998).

34. Supreme Court okays ‘medical device’ suits. Medtronic, Inc. v Lohr, No. 95-754 (U.S. June 26, 1996).

35. Wet concrete: Chemical burns: Failure to adequately warn inexperienced users of caustic danger: Scarring: Verdict. Dickson v. Maschmeyer Concrete Co. – NO CITATION

36. Retail customer brought tort and contract action against exterminator and manufacturer of subterranean termite-control pesticide, seeking to recover for termite damage allegedly caused by ineffective pesticide. Lynn E. Wadlington v. Miles, Inc., et al., No. 02A01-9408-CV00180, 1995 WL 70279 (Tenn. App. Nov. 28, 1995).

37. Products liability statute provides for two distinct tests, consumer expectation test and prudent manufacturer test; prudent manufacturer test requires risk-utility balancing in its application.

38. ‘Statute of Repose’ for products liability is avoided by suing in manufacturer’s state. Gantes v. Kason Corp., No. A-31-95 (N.J. July 23, 1996); Lawyers Weekly USA, No. 9908805 (44 pages).

39. Denial of plaintiff’s motions for judgment as matter of law and for new trial are affirmed following products liability judgment in favor of defendant. Powers v. Bayliner Marine Corp., No. 94-2035 (6th Cir.).

40. Child falls off swing; city sued for lack of ‘cushioning’ under it. Schabel v. Deer Valley Unified School District, No. 97-220 Ariz. Adv. Rep. 59 (Ariz. Ct. App. July 9, 1996); Lawyers Weekly USA, No. 9908720 (15 pages).

41. A trial judge who directed a verdict for product liability defendants should also have granted the defendants’ motion for sanctions and costs under the offer of judgment rule, the state Court of Appeals has rules. Auto Club Insurance Association v. General Motors Corporation, et al., Michigan Lawyers Weekly, No. 25460.

42. “Risk-utility” analysis now premitted in many products liability cases. Ray v. BIC Corp., 21 TAM 30-1 (Tenn. July 15, 1996)(opinion by White).

43. Ohio court allows product liability suit against hospital as medical device supplier. Saylor v. Providence Hospital, No. C-950413 (Ohio Ct. App. July 24, 1996).

44. Federal trial court dismisses claims by man whose eye was injured in ‘war game’. Lotti v. Benjamin Sheridan Corp., No. 1:95-CV-522-FMH (July 17, 1996).

45. Products liability law undergoing change in Tennessee. Tennessee Attorney’s Memorandum, Vol. 21 (No. 34 Aug. 19, 1996).

46. WILLIAM H. HARDIE, Use of Product Warning Labels as a Reminder, Product Safety and Liability Reporter, No. 0092-7732 (1996).

47. Tennessee Law Provides Risk/Utility Test, Consumer Expectations Test. Ray v. BIC Corp., No. 93-6105 (Tenn. July 15, 1996).

48. The Successor Corporation’s Continuing Duty to Warn, Bureau Of National Affairs, Inc., No. 0092-7732 (1995).

49. Elsevier, Explicitness of Consequence Information in Warnings, Safety Science at 507-613 (1993).

50. Scare Tactics: Motivating Warning Compliance, Product Safety and Liability Reporter, No. 0092/7732 (1995).

51. Mealey’s Daubert Report

52. Duty to Warn: Oral contraceptives: no explicit warnings. See Gurski v. Wyeth Ayerst Division of Ameican Home Products, No. 94-30145-MAP (Dist. Ct. Mass. Jan. 3, 1997); Product Liability Reporter, Vol. 25 at 104 (No. 5 1997).

53. Prior Notice – Admission of prior complaint correct to show prior notice. Hawks v. EPI Products USA, Inc., 923 P.2d 988 (Idaho 1996).

54. “Household Products” – Testimony about prior complaint of infection hazard from depilatory device was admissible to show notice. Hawks v. EPI Prods. USA, Inc., 923 P.2d 988 (Idaho 1996).

55. Successor of corporation liable under product line exception if it agreed to assume the liability; the corporate transfer results in a consolidation and merger; if there is a continuation of the transfer or corporation, or the transfer is designed fraudently to avoid liability. The court identified an additional exception where a corporate successor continues to market the same products and represents that it is continuing the predecessor’s enterprise. The exception applies where 1) the successor has the same ability as its predecessor to assess, control and distribute the risk and cost of injury from a defect, and 2) disability is not outweighed by the need to promote alien ability of corporate assets. See Garcia v. Coe Manufacturing Co., (N.M. Jan. 28, 1997).

56. Foreseeable Changes – In Belac v. Hayssen Manufacturing Co., No. 96 2142 (8th Cir. Jan. 27, 1997), the 8th Circuit held that a manufacturer can be held liable for failing to warn if it is foreseeable that users could make unsafe modifications to its equipment. The issue is for the jury to decide.

57. Establish whether the defendant ever investigated or evaluted the safety or crash-worthiness of the device. Establish whether the manufacturer tried to determine if removal of the device and substitution created a serious risk of roll over or injury. For an article on converted vans and liability see Trial (Feb. 1997).

58. Expert improperly allowed to present comparison evidence on products that were substantially different or sold at a later time. Brock v. Caterpillar, Inc., 94 F.3d 220 (6th Cir. 1996). Sixth Circuit Court of Appeals held that the plaintiff’s expert in a products liability action should not have been permitted to present evidence comparing the braking systems in the different bulldozer models with braking systems in the bulldozer that injured plaintiff. Later changes in another model may be tenuously relevant but such relevance does not weigh by the prejudicial effect because of disimilarity among the bulldozers compared.

59. Evidence of similar accidents is admissible to prove the product was unsafe, to prove causation and/or to show that the defendant had actual or constructive knowledge of the condition that could cause harm. In addition, the absence of accidents is admissible. See Spino v. John S. Tilley Ladder Co., (Pa. June 17, 1997).

60. Testimony about prior complaint of infection hazard from depilatory device was admissible to show notice. Hawks v. EPI Prods. USA, Inc., 923 P.2d 988 (Idaho 1996).

61. Evenflo Joy Ride-Infant Car Seat/Carrier Instructions

62. Manufacturer is liable for failure to warn of a danger that is known or reasonably scientifically knowable. Harlan v. Superior Court, 920 P.2d 1347 (Ca. 1996).

63. Eight Circuit excludes testimony of expert for failing to prove safer alternative exists. Dancy v. Heister Co., No. 97-1-42 (8th Cir. Sept. 25, 1997).

64. Daubert bars admissibility of expert testimony according to the 7th Circuit. The expert’s affidavit must be sufficiently complete to satisfy Daubert without reliance on subsequent cross-examination or deposition of expert to fill in the gaps. Navarro v. Fugi Heavy Industries, 117 F. 3d 1027, cert. denied, 66 U.S.L.W. 3397.

65. Successor liability – no successor liability where product manufactured after date company sold product line. See Carson v. Agri-Products Special Markets, Inc., 23 TAM 13-12 (Feb. 13, 1998).

66. In Class v. American Roller Die Corp., 1998 WL 32523 (N.J. Super. Ct. App. Div. Jan. 30, 1998), the Appellate Court held that successor corporations could be liable under the product line exception because the general rule of non-liability of successor corporations does not apply if the successor corporation benefits from trading the product line on the name of the predecessor and it takes advantage of the predecessor’s accumulative goodwill, business reputation and established customers. Products Liability Advisor (Mar. 1998).

67. The United States Supreme Court denied certiori in the following products liability cases: a.Under Georgia law a plaintiff could sue a seatbelt manufacturer for design defect absence of lap belt even though Volkswagen Jetta otherwise complied with federal motor vehicle safety standards requiring shoulder belt and knee bolsters. Dole v. Volkswagen of America, Inc., 111 F.3d 1134 (11th Cir.). b.State common law — strict liability — negligence — mislabeling — misbranding — adulteration, fraud and implied warranty claims against manufacturer of collagen based products are preempted by the medical device amendments to the Food, Drug & Cosmetic Act to the extent the imposed requirements differed from or are in addition to the MDA’s pre-market approval process. Mitchell v. Collagen Corp., 126 F.3d 902 (_).

68. Off-label use of a drug, promotion of off-label use of drugs supports a claim for punitive damages against the manufacturer (adverse effects of periocular use of cortico steroid). Proctor v. Davis, 682 N.E.2d 1203 (Ill. App. Ct. 1997).

69. Plaintiff’s contention that Daubert doesn’t apply if the expert doesn’t plan to rely on scientific principles or methods was expressly rejected by the 8th Circuit in Peitzmeier v. Hennessy Industries, Inc., 97 F.2d 293 (8th Cir.).

70. The 1976 Medical Device amendments do not pre-empt Kentucky’s strict liabilty and negligence claims against the manufacturer of an investigational medical device in absence of specific federal regulations conflicting with generally applicable Kentucky law. Niehoff v. Surgide, 950 S.W.2d 816 (Ky.), cert. denied, 66 U.S.L.W. 3590 (1997).

71. The 7th Circuit Court of Appeals, following the 9th Circuit, held that the Court’s simple product that poses an obvious danger applies only to the consumer expectation test and not the risk utility test. See Haddix v. Playtex Family Products Corp., No. 97-2074 (Mar. 6, 1998); Papike v. Tambrands, 107 F.3d 737 (9th Cir. 1997).

72. Even if a danger is open and obvious, the plaintiff may still go forward on a risk utility, reasonably prudent manufacturer test. See Rutherford v. Polar Tank Trailer, Inc., No. 03A01-0709-CV00391, 1998 WL 110429 (Tenn. App. Nov. 3, 1998).

73. General Electric v. Joiner, 66 U.S.L.W. 4036 (U.S. 1997); Schudel v. General Electric, No. 97-1382, 120 F.3d 991 (9th Cir. 1998)(expert testimony on causation).

74. Sophisticated user doctrine bars suit over cleaning solvent. Under Section 388 of the Restatement Second of Torts a manufacturer can reasonably rely on a downstream purchaser of the product to provide warning information. See Midway Specialties, Inc. v. Crown Industrial Products Co., No. 96-4273 (6th Cir. Mar. 4, 1998).

75. Fertilizer product manufacturer is not liable for World Trade Center bombing. Port Authority of New York and New Jersey v. Arcadin Corp., 1997 WL 816103 (Dist. Ct. N.J.).

76. Implied preemption of state law claim over negligent seatbelt design because regulation promulgated pursuant to the National Traffic Motor Vehicle & Safety Act allowed manufacturers the option of automatic shoulder belts combined with manual lap belts. See Irving v. Mazda Motor Corp., 136 F.3d 764 (__).

77. Design/defect risk utility test. The heart of the analysis is whether an alternative design exists. See Timmons v. Ford Motor Co., 982 F. Supp. 1475 (Dist. Ct. Ga. 1997); Banks v. ICI Americas, Inc., 264 Ga. 732, 737, 450 S.E.2d 671 (Ga. 1994) (alternative designs are not the sole factor). Factors to consider include the danger posed by the design; the state of the art at the time of the manufacture and compliance with governmental standards; feasibility of alternative designs; and the financial cost of improved designs. It depends on the facts of each case.

78. Compliance with federal motor vehicle safety standards is not conclusive on the issue of liability. See Dole v. Volkswagen, 267 Ga. 574, 481 S.E.2d 518 (1997).

79. Judgment for plaintiff in products liability suit when plaintiff failed to prove existence of defect in solonoid switch of truck, causing fire. R. S. Reed & Sons, Inc. v. Freightliner, 23 TAM 17-12 (Mar. 11, 1998).

80. Experts’ “experience” testimony is not subject to Daubert. See Kinser v. Gehl, 989 F. Supp. 1144 (D. Kan. 1997); Maryland Casualty Company v. Thurm-O Disc, 137 F.2d 780 (4th Cir. 1998).

81. New Jersey Court says no expert required on warning claim. Remands for new trial. See Ridenour v. Batem Out, No. A-2988-96T3 (N.J. Super. Ct. App. Div. Apr. 14, 1998).

82. Employers alteration proper. Issue with respect to causation questions. Snyder v. LTG, 955 S.W.2d 252 (__).

83. Federal Boat Safety Act. See Lewis v. Brunswick Corp., 118 S. Ct. 439, 107 F.2d 1494 (11th Cir.).

84. Manufacturer may be sued in a crash-worthiness case even though the valve isn’t found in any other car on the road. See Binakonsky v. Ford Motor Co., 929 F. Supp. 915 (D. Md. 1996).

85. When an insurance company interviews the physician to obtain information about the claim, Massachusetts courts have held that this conversation is not protected by the attorney/client privilege because there was no showing of an agency relationship between the law firm and the insuror. See Grover v. Rand, (Mass.). Marit Parker Boston for the Plaintiff. Published Medical Malpractice Verdicts, Settlement & Experts at 21 (Mar. 1998).

Prosecution

Tenn. R. Civ. P. § 41.02 (unless otherwise provided by trial judge, involuntary dismissal for want of prosecution operates as an adjudication on the merits).

Proximate Cause

1. Proximate cause instruction inappropriate. “…if you decide that the sole proximate cause of injury to the plaintiff was the conduct of some person other than the defendant, then your verdict should be for the defendant.” Freeman By and Through Freeman v. Petroff, 656 N.E.2d 453 (Ill. App. Ct. 1995).

2. Test is whether the tortfeasor’s conduct was a substantial factor in bringing about the harm. McClenahan v. Cooley, 806 S.W.2d 767 (Tenn. 1991).

3. See Waste Management, Inc. v. South Central Bell Telephone, 22 TAM 12-13 (holding that intervening cause finding makes comparison of fault unnecessary).

Psychotherapist Privilege

The Colorado Supreme Court has ruled that generic claims for damages for emotional distress incident to physical injuries do not impliedly waive a statutory physician/patient and psychotherapist privilege. Johnson v. Trujillo, No. 98SA451 (Co. May 10, 1999).

Punitive Damages

1. Vaughn v. Park Healthcare Co., 20 TAM 1-9 (Tenn. App. Dec. 7, 1994) (punitive damages reserved only for “the most egregious of wrongs). Hodges v. S.C. Toof, 833 S.W.2d 896 (Tenn. 1992).

2. Jury can’t be told of treble damages. HBE Leasing Corp. v. Frank, No. 93-7085 (2nd Cir. Apr. 13, 1995).

3. Not taxable. Horton v. Commissioner, No. 93-1928 (6th Cir. Aug. 29, 1994).

4. Punitive damages justified where a nursing home was consciously indifferent to the risk of harm created by the treatment of a bed sore. Convalescent Services, Inc. v. Schultz, 921 S.W.2d 731 (Tex. Civ. App. 1996).

5. Successor corporations’ liabile for punitive damages. ???, No. 97-1459 (Cal. Ct. App. Aug. 12, 1997). Question presented: Under what circumstances consistent with the Fourteenth Amendment’s due process clause may a successor corporation be held liable for punitive damages based solely upon the conduct of a predecessor corporation without proof of any independent wrongdoing by the successor. Petition for certiorari was filed February 10, 1998 by Kevin J. Dunne of Baker, Moran, Jenkins & Sedgewick, Debtor: Moran and Arnold, all of Oklahoma City, and Shook, Hardy & Bacon.

6. See Tschira v. Willingham, 1998 WL 37139 (6th Cir.)(1.4 million dollar punitive damages verdict upheld).

QUININE 1. Henry Hobhouse, Seeds of Change.

Restatement (Third) of Torts

1. Section 11 – Causation–product defect is determined by prevailing rules and principles of causation in tort. General tort rules for cause in fact or proximate cause; issues involving plaintiff’s misuse or to be involved under causation principles under comparative fault.

2. Section 13 — Appointment of Liability Among Defendants creates plaintiff’s comparative fault, which is consistent with Tennessee law under Gray.

3. Section 14 — disclaimers, waivers, limitations and contract-based defenses rules that disclaimers are invalid for personal injury in a products liability case.

4. Section 15 – Successor Liability — liability of successor for harm caused by products sold commercially by predecessor holds that the successor is not liable unless the acquisition: a) involves all or substantially all of the assets of the predecessor; b) is followed by disillusion, discharge and bankruptcy or reorganization of the predecessor so as to prevent the tort claim from having an effective remedy against the predecessor and c) is accompanied by an agreement for the successor to assume such liability; or constitutes a consolidation or merger or; results in a successor becoming a continuation of the predecessor or; is a fraudulent conveyance to escape liability for the debts of the predecessor.

5. Section 16 — Selling or distributing as one’s own a product manufactured by the other. This is the Muntean case which basically states that the liability is just as if the seller had manufactured the product himself.

6. Section 17 — Liability of commercial seller for harm caused by misrepresentation. The seller can be liable for misrepresentations in the sale of the product under Section 402(b). Without regard to fraud, the only question is whether the consumer justifiably relied upon the misrepresentation.

7. The final three sections, 18, 19 and 20, all concern post-sale conduct resulting in injury.

8. Section 18 — Liability of commercial seller or distributor for harm caused by failure to warn after the time of sale provides that the seller is liable for failing to provide post-sale warnings when a reasonable person in the seller’s position would provide such a warning, thus adopting a pure negligence test.

9. Section 19 — Liability of successor for harm caused by successor’s failure to warn after the time of sale by the predecessor.

10. Section 20 — Liability of commercial product, seller or other distributor for harm caused by failure to recall product after sale. See Product Liability Advisor (June 1996). SANCTIONS 1. Party must be given an opportunity to correct. Fed. R. Civ. P. 11 (amended); Thomas v. Treasury Mgt. Assoc., Inc., No. PJM-92-3409 (D. Md. Nov. 3, 1994). 2. The court may assess the costs and expenses of a party’s expert witness. See Boult v. Owens-Illinois, 20 TAM 2516 (ES May 20, 1995).

Seat Belts

Bailey v. City of Norris, 20 TAM 4-8 (Tenn. App. Dec. 28, 1994); Tenn. Code Ann. § 55-9-604 is not admissible.

Service of Process

In filing to toll the statute, service must be returned within thirty (30) days of issuance, or process must be reissued within six (6) months. See Tenn. R. Civ. P. Rules 3 and 4; First Tennessee Bank of North America v. Daugherty, 22 TAM 34-22 (Tenn. App. July 25, 1997).

Settlement

1. Settlement Agreement may preclude the non-settling defendant from using expert testimony of settling defendant. Wolt v. Sherwood, 828 F. Supp. 1562 (D. Utah 1993).

2. A plaintiff can specify in a settlement agreement that the plaintiff is waiving joint and several liability and is going after the other defendants only for their share of the fault, thereby defeating the remaining defendants’ right to contribution. See Herstam v. Deloitte & Touche, 214 Az. Adv. Rept (Ariz Ct. App. Apr. 11, 1996).

3. Even though the plaintiff’s jury verdict was less than the defendant’s settlement offer, she may still recover her costs and attorney’s fees. The Poole v. Miller case clarifies that “judgment” means more than just the verdict; it includes attorney’s fees, interest and costs awarded by the trial judge. North Carolina Lawyers Weekly, No. 5-06-1797.

4. Plaintiff ‘guarantees’ defendant won’t be sued for contribution. Arizona Court of Appeals. Herstam v. Deloitte & Touche, 214 Az. Adv. Rept (Ariz Ct. App. Apr. 11, 1996).

5. Merger & Integration, Mealey’s Litigation Reports, Vol. 1 (ed. 1 Jan. 8, 1996).

6. Innovative Ways to Settle a Case: Ideas That Can Help Your Clients, Lawyers Weekly USA (June 1995).

7. Products Liability/Consumer Law: Out-of Court Resolution of Product Liability Claims, Journal of the Kansas Trial Lawyers Association.

8. Brian P. Loper, Structured Settlements, Ringler Associates Inc.

9. Structured Settlements: Tax on Damages is Causing Big Headaches for Plaintiffs’ Lawyers, Lawyers Weekly USA (Jan. 27, 1997).

10. Structured Settlements: Woodbridge Sterling.

11. Special Needs Trust. See Paine Webber, 1-800-242-7526. Ken Horowitz, Director of Trust Development, Personal Trust Services.

12. Physicians for Quality, 1-800-284-3627.

Slip Opinions

Lawyer’s Weekly USA, 1-800-993-5594 STANDARDS 1. U.S. Organizations Represented in the Collection of Voluntary Standards, __ (Jan. 1988).

Statute of Limitations

1. Personal injury cause of action begins to run when plaintiff knows, or in the exercise of reasonable diligence, should have known that an actionable injury has occurred. An actionable injury is one caused by the breach of a legally recognized duty and one that results in legally cognizable injury. Knowledge that an actual injury has occurred does not require absolute knowledge of the particulars of the injury. Medical certainty to diagnosis and treat and legal certainty to file a lawsuit are different. What the plaintiff must know is the general cause and results of the tort. Therefore, the plaintiff must know what the real diagnosis is. See Wyatt v. A-Best Company, 910 S.W.2d 851 (Tenn. 1985).

2. In filing to toll the statute, service must be returned within thirty (30) days of issuance, or process must be reissued within six (6) months. See Tenn. R. Civ. P. Rule 3, 4; First Tennessee Bank of North America v. Daugherty, 22 TAM 34 22 (Ct. App. July 25, 1997).

3. Physicians’ misrepresentations tolled the running of the statute of limitations. Oxley v. Kilpatrick, 486 S.E.2d 44 (Ga. Ct. App. 1997).

Subrogation

1. Auto insurer not entitled to subrogate medical expenses recovered from third party. Violates public policy. Youngblood v. American States Insurance Co., No. 93-225 (Mont. Dec. 14, 1994).

2. In Blue Cross & Blue Shield of Tennessee v. Christopher, 20 T.A.M. 19 10 (ES Apr. 19, 1995), the Court held that an insurer who paid medical expenses under a medical insurance plan was not entitled to enforce its right of subrogation when the insured, without notice of a right of subrogation, entered into a settlement with the tortfeasors’ insurer, which did not make the insurer whole.

3. Hudson v. Hudson Municipal Contractors, Inc., 20 TAM 18-2 (Apr. 24, 1995)(worker’s compensation insurance carrier not entitled to subrogation against proceeds of settlement between deceased worker’s personal representative and uninsured motorist carrier).

4. The Illinois Supreme Court has held in Sholtens v. Schneider, No. 79686 (Ill. Sept. 19, 1996), that a health insurer must pay a portion of the attorneys’ fees in a subrogation claim.

5. Medical bills paid by Medicaid or by worker’s compensation carrier are recoverable in a medical malpractice case. See Hughlett v. Shelby Co. Healthcare, 940 S.W.2d 571 (Tenn. App. 1996), cert. denied (Dec. 23, 1996).

6. ERISA preemption. Made hold doctrine. State subrogation law was not preempted in Alabama, Blue Cross & Blue Shield of Alabama v. Fondren, 966 F. Supp. 1093 (Dist. Ct. Ala. 1997).

Summary Judgment

1. Burden of moving party and standards. Masters By Masters v. Rishton, 863 S.W.2d 702 (Tenn. App. 1992).

2. Inconsistent statements don’t necessarily cancel out if there is an adequate explanation for the inconsistency. Reeder v. Baptist Hospital, 20 TAM 1-8 (Tenn. App. Dec. 7, 1994); Bryant v. Gill, 20 TAM 4-9 (Tenn. App. Dec. 22, 1994).

3. Affidavit must establish that appropriate professional standard also requires (at times) establishing that the occurrence which caused the plaintiff’s death was foreseeable and that appropriate professional practice standard mandated further action and effort to protect injury. See Moon v. St. Thomas Hospital, 22 TAM 21-12 (Apr. 25, 1997).

Subpoena – Regarding subpoena of medical records:

1. A hospital custodian may comply with a subpoena duces tecum to produce records within five (5) days of being served. See Tenn. Code Ann. § 86-11 403. A copy shall be filed with the Clerk if the subpoena directs appearance in court; the requesting lawyer if a deposition; or the hearing officer. Tenn. Code Ann. § 68 11-403. Copies must be accompanied by an affidavit of the custodian stating:

  • 1) the affiant is the authorized custodian of the records and has the authority to certify them;
  • 2) the copies are true copies of all records described in the subpoena;
  • 3) the records are prepared by the personnel of the hospital and facility in the ordinary course of business at or near the time of the act, condition or event reported therein; and 4) the hospital’s reasonable charges for furnishing the copies. Tenn. Code Ann. § 68-11-405. The copies are placed in an envelope and sealed. The style of the action and the docket number and name of the witness and date of the subpeona shall be written on the inner envelope. The inner envelope should then be placed in an outer envelope and mailed or delivered to the appropriate location. Tenn. Code Ann. § 68-11-403.

2. The copy shall remain sealed and shall be opened only at the time of the trial, deposition or hearing upon the direction of the presiding officer or in the presence of all parties. Before directing the opening of the inner envelope, the presiding officer shall first ascertain either:

  • 1) the records have been subpoened at the insistence of the patient involved or the patient’s counsel of record;
  • 2) the patient or other authorized person has consented to the opening and waived any confidentiality involved; or
  • 3) the records have been subpoenaed in a criminal proceeding. Tenn. Code Ann. § 68-11-404. This procedure may be waived if the defense furnishes a copy of the records to the plaintiff.
    Tenn. Code Ann. § 68-11 404(b). There is no provision in the statute for the plaintiff furnishing copies to the defense and waiving a procedure.

3. If the party seeks to introduce the medical records into evidence a copy of the subpoena must be furnished to opposing counsel not less than ten (10) days prior to trial.

Tobacco

FDA Regulation. BNA 3/4/94, P. 213. 2. Louisiana Liability Verdict: Covert v. Lorillard, Inc., No.87-0131 (DC MLA, Jan. 27, 1994)

Torts

Car salesman attacks manager: Assault, battery: employer ratification: Herniated disks: Verdict. Crowder v. Branam, No. CV737812 (Cal. App. Dep’t Super. Ct. June 17, 1996).

Toxicology

1. Herbicide: Worker exposure: Dioxin-containing product: Failure to warn of dioxin hazards: Cancer.

2. Dr. Vaughn E. Wagner, How do you get a complete, comprehensive, and interpretive profile on almost any hazardous material quickly?, Dragon Corporation.

Translation of Documents

Formal cost of translation cannot be taxed. See In Re Fialuridine Products Liability Litigation, NO. MDL-1034 (Oct. 3, 1995).

Trusts

Special Needs Trusts.

Venue

Savings statute. Henley v. Cobb, 19 TAM 45-4 (Tenn. App. Oct. 18, 1994), appeal granted (Jan. 30, 1995).

Victims

Dennis A. Henigan, Victims’ Litigation Targets Gun Violence.

Voir Dire (See possible questions in CANCER section)

1. Courtroom Tactics‹”Suggestions for Weeding out Biased Plaintiffs”

2. GOOD MORNING I’M DAVID SMITH. AND THIS IS LINDA SNYDER WHO HAS BROUGHT THIS ACTION FOR JUSTICE IN THIS COURTROOM EXPLAIN VOIR DIRE GUEST IN SOMEONE’S HOUSE IF OUT OF TOWN WHAT’S IN MY HAND/I WANNA REMEMBER YOUR NAME WHAT YOU SAY IS IMPORTANT LET ME TELL YOU WHAT THE CASE IS ABOUT UNDERSTAND THE DUTY TO AWARD FULL COMPENSATION AS FULL JUSTICE CONSIDER THE EVIDENCE — P&S QUALITY OF LIFE THE QUALITY OF LIFE FOR THE FIRST 16 YEARS; LAST 5; THE DEFENDANT QUALITY FOR THE NEXT 47 YEARS IS IN YOUR HANDS. 52 YEARS OF BRAIN DAMAGES; MENTAL ANGUISH ASK YOU TO TAKE ALL THE TIME FOR FULL JUSTICE. THIS IS THE ONLY TIME; THE LAST OPPORTUNITY. DELIBERATE AND TALK ABOUT IT. PER DIEM AD FOR A JOB NO EDUCATION SUFFERING EVERY DAY. THAT IT WAS IMPOSED ON THE DEFENDANT [? IS PER DIEM NOT ALLOWED IN TN?] IS $ TOO MUCH FOR IRREVERSIBLE BRAIN DAMAGE. DOES IT EVEN BEGIN TO COMPENSATE FOR … EXPLAIN EVENT EXPLAIN INJURY SHE’S MAKING A CLAIM FOR FULL DAMAGES — A FULL CUP OF JUSTICE HAVE ANY OF YOU SERVED ON A JURY HOW DO YOU FEEL ABOUT THE JURY SYSTEM I APPRECIATE THAT ANY OF YOU FOLKS HAVE A DIFFERENT VIEW MR — TELL US YOUR EXPERIENCES IN SEEKING JUSTICE IN A COURT OF LAW. COURTS ARE THE BEAUTY OF OUR SYSTEM — YOU HAVE THE POWER TO ANSWER THE QUESTIONS. MAY I ASK … SHARE WITH US HOW DO YOU FEEL ABOUT FULL COMPENSATION ABOUT ¼ BEING ABLE TO PRESENT HER CAUSE ABOUT CORPORATIONS RIGHT TO A FULL VERDICT TELL ME, SHARE WITH ME SOME OF TOUR THOUGHTS AND DREAMS I CERTAINLY WANT TO GET YOUR NAME DO YOU HAVE FEELINGS ABOUT THESE SUBJECTS? MR —HAD THE COURAGE TO SHARE WITH US. HEAR THE TRUTH LISTEN TO THE EVIDENCE/TELL THE TRUTH

3. See Ivy v. Hawk, 878 S.W.2d 442 (Mo. 1994), Court permitted to allow party to ask prospective jurors whether they or their family members are involved by or have a financial interest in an insurance carrier involved in medical negligence.

Warnings

Warnings in a Changing Marketplace: Why Wasn’t I told?, PLLR (Feb. 1995).

Worker’s Compensation

1. Punitive damages for not paying compensation. Bertram v. Freeport McMoran, Inc., No. 93-7575 (5th Cir. Oct. 7, 1994)

2. Plaintiff’s attorney should agree with employer on apportionment of fee. Summers v. Command Systems, Inc., 867 S.W.2d 312 (Tenn. 1993); Sanders v. CNA Ins. Co., 19 TAM 25-6 (Tenn. June 13, 1994); Memphis Light, Gas and Water Div. v. Ellis and Brode, 19 TAM 35-10 (Tenn. App. Aug. 4, 1994).

3. Intentional tort where employer knew about safety risks. Travis v. Dreis and Krump Mfg. Co., No. 163715 (Mich. Ct. App. Sept. 19, 1994); Suarez v. Dickmont Plastics Corp., 229 Conn. 99 (Conn. Mar. 16, 1994).

4. Gas station worker can sue Exxon for shooting. Exxon Corp. v. Tidwell, No. D-1639 (Tex. Dec. 8, 1993).

5. Workman’s comp lien is avoided by allocating award to ‘consortium.’ Hultin v. Francis Harvey & Sons, Inc., No. 95-P-427 (Mass. App. Ct. July 9, 1996); Lawyer’s Weekly USA, No. 9908611.

Wrongful Death

1. A $10 million suit brought against McDonald’s by the mother of a teenage employee who died in a car crash after working unusually long hours has been revived by the state Supreme Court.

2. Appeal arising from wrongful death action involving elderly couple who died from injuries received in an automobile collision. McClanahan v. Clayton, No. 01A01-9308-CV00371, 1994 WL 248183 (Tenn. App. June 10, 1994).

3. Loss of society, pre-impact pain and suffering, see Oldham v. KLM, 127 F.2d 43 (D.C. Cir. 1997).

Wrongful Discharge – See depositions

Safety Complaint firing – wrongful discharge. Reynolds v. Ozark Mountain Lines, Inc., 887 S.W.2d 822 (Tenn. 1994). 2. Safety Complaints = punitive damages. Reich v. Cambridgeport Air Systems. Inc., No. 93-2287 (1st Cir. June 20, 1994).