Lex et Scientia
"Injustice Anywhere is a Threat to Justice Everywhere"
January 25, 2012
Beavers the Betrayer
January 24, 2012
On January 12, 2012 Tennessee State Senator Mae Beavers, Chair of the Senate Judiciary Committee, introduced a bill, SB 2348, that (as the official "Bill Summary states)“[a]s introduced provides that the supreme court, circuit, criminal and chancery courts have no jurisdiction to determine the constitutionality of a statute properly enacted by the general assembly. - Amends TCA Title 4, Chapter 5 and Title 16.”
This is not a joke. Senator Beavers actually thought that the Tennessee legislature could prevent their laws from being declared unconstitutional by the courts. On January 23, 2012 she withdrew the bill after howling criticism from both Democratic and Republican legislators. Her betrayal of the Constitution borders on treason and is act of defiance of the oath she took to uphold the Constitution of the State of Tennessee. Her take:" God is doing a lot of work in the legislature. It's really, really changed over the years." (Speech to Wilson County Christians United at 4:04).
Trial 1: A tragic car wreck case. Plaintiff suffered quadraplegia when the car she was driving was t-boned by a speeding police cruiser that ran a red light at an intersection. The jury awards $35 million in 2006. Then the verdict is reversed on appeal because evidence that the victim had been drinking was excluded at trial. Trial 2: Now that evidence of the plaintiff's alcohol use was admissible, the case proceeds to a second trial in 2009.The jury returns a defense verdict. Plaintiff takes nothing. That verdict is then reversed on appeal because an overly zealous defense attorney plays to the heartstrings of the jury by arguing in final argument that drunk drivers should be kept off the road and telling a personal story of how one of his relatives died in a drunk driving accident. He also improperly argued that the police officer was a public servant with a taxpayer-funded salary. These improper arguments resulted in the Court of Appeals affiming the trial court's decision to grant a new trial to the plaintiff in an opinion handed down on December 16, 2011. Petraski v. Thedos, Individually and as Agent/Employee of the Sheriff of Cook County and Michael Shehan, Sheriff of Cook County (No. 09 L 2953, Ill. Ct. Appeal, 2011). Absent a settlement, a third trial will now be necessary. The court's latest opinion demonstrated how important it is for lawyers to reign in their personal feelings when litigating a motor vehicle accident case and instead focus on the relevant evidence and legal standards. Rick Santorum closed his Iowa campaign for President by bashing trial lawyers and advocating tort and medical malpractice "reform." As the Des Moines Register announced, "Santorum backs tort reform in final push to campaign in all 99 Iowa counties." Santorum told Iowans, "I am a lawyer, but I am not a bad lawyer. I am not one of those trial lawyers." Yet when Santorum's wife, who was also a nurse and a non practicing lawyer, had a bad medical outcome from treatment from a Virginia chiropracter, she sued the chiropracter for $500,000 and obtained a jury verdict of $350,000 (remitted to $175,000). Santorum fought lowering the verdict (despite the fact that he sponsored legilslation in Congress to cap damages for pain and suffering to $250,000 in medical malpractrice cases. Here is his hypocritical brief. And when Santorum negligently failed to get on the Virginia ballot (by failing to submit enough valid signaturers) who did he turn to? Yes, a trial lawyer. Santorum filed to intervene in Rick Perry's lawsuit challenging Virginia's ballot access law. Yesterday the court granted his request. So while right wing "conservatives" like Santorum criticize trial lawyers, they know who to turn to when they need justice. Another example: Newt Gingrich' has now hired lawyers and who have threatened to sue TV stations for running Romney attack ads. See the above video, "A World Without Lawyers" that aptly makes the point. Here's a re-look at an ABC News Story from 2005 that highlighted Santorum's hypocrisy:
Trial 1: A tragic car wreck case. Plaintiff suffered quadraplegia when the car she was driving was t-boned by a speeding police cruiser that ran a red light at an intersection. The jury awards $35 million in 2006. Then the verdict is reversed on appeal because evidence that the victim had been drinking was excluded at trial.
Trial 2: Now that evidence of the plaintiff's alcohol use was admissible, the case proceeds to a second trial in 2009.The jury returns a defense verdict. Plaintiff takes nothing. That verdict is then reversed on appeal because an overly zealous defense attorney plays to the heartstrings of the jury by arguing in final argument that drunk drivers should be kept off the road and telling a personal story of how one of his relatives died in a drunk driving accident. He also improperly argued that the police officer was a public servant with a taxpayer-funded salary. These improper arguments resulted in the Court of Appeals affiming the trial court's decision to grant a new trial to the plaintiff in an opinion handed down on December 16, 2011. Petraski v. Thedos, Individually and as Agent/Employee of the Sheriff of Cook County and Michael Shehan, Sheriff of Cook County (No. 09 L 2953, Ill. Ct. Appeal, 2011). Absent a settlement, a third trial will now be necessary. The court's latest opinion demonstrated how important it is for lawyers to reign in their personal feelings when litigating a motor vehicle accident case and instead focus on the relevant evidence and legal standards.
Rick Santorum closed his Iowa campaign for President by bashing trial lawyers and advocating tort and medical malpractice "reform." As the Des Moines Register announced, "Santorum backs tort reform in final push to campaign in all 99 Iowa counties." Santorum told Iowans, "I am a lawyer, but I am not a bad lawyer. I am not one of those trial lawyers." Yet when Santorum's wife, who was also a nurse and a non practicing lawyer, had a bad medical outcome from treatment from a Virginia chiropracter, she sued the chiropracter for $500,000 and obtained a jury verdict of $350,000 (remitted to $175,000). Santorum fought lowering the verdict (despite the fact that he sponsored legilslation in Congress to cap damages for pain and suffering to $250,000 in medical malpractrice cases. Here is his hypocritical brief. And when Santorum negligently failed to get on the Virginia ballot (by failing to submit enough valid signaturers) who did he turn to? Yes, a trial lawyer. Santorum filed to intervene in Rick Perry's lawsuit challenging Virginia's ballot access law. Yesterday the court granted his request. So while right wing "conservatives" like Santorum criticize trial lawyers, they know who to turn to when they need justice. Another example: Newt Gingrich' has now hired lawyers and who have threatened to sue TV stations for running Romney attack ads. See the above video, "A World Without Lawyers" that aptly makes the point. Here's a re-look at an ABC News Story from 2005 that highlighted Santorum's hypocrisy:
926 People Died in Traffic Accidents in 2011 in Tennessee
Update to drslawfirm on-line legal research library
January 2, 2012
Cellphone-related fatal wrecks lead families to push for change
January 1, 2012.
The Tennessean newspaper presents a compelling case for re-evaluating cell phones, texting and driving.(Link). In 2009 alone, nearly 5,500 people were killed and 450,000 more were injured in distracted driving crashes. http://www.distraction.gov.We have written about the serious risks and legal liability associated with distracted driving (here). More news.
December 31, 2011
Although blood toxicology tests were positive for marijuana, a state Supreme Court ruled such evidence was properly excluded absent proof that the driver was "under the influence" at the time of the accident.(Link).
Mother can sue for wrongful death of unborn child
December 30, 2011
A mother who gave birth to a stillborn male could maintain a wrongful death action against her medical providers, the Utah Supreme Court has ruled in answering a certified question from a U.S. District Court. (Link).
$17.8 million Awarded to Family in Federal Tort Claim Act Case
December 29, 2011
A United States federal judge has ordered the U.S. government to pay $17.8 million to a family who lost four members when a military jet malfunctioned and smashed into their home in 2008 (Link). The victims were 36-year-old Youngmi Lee Yoon, her fifteen-month-old daughter Grace, her two month old daughter Rachel, and her 59-year-old mother Seokim Kim Lee, who was visiting to help with the children. All four burned to death when the jet destroyed the house in San Diego. In Tennessee tort reform limits non-economic damages to $750,000 to $1 million. This new law is almost certainly unconstitutional for the reasons we noted here.
Mississippi's "Personhood" Amendment: Dead on Arrival
I have written in the past (1987) on the subject of "personhood" and the U.S, Constitution: Consciousness: The Most Critical Moral(Constitutional) Standard for Human Personhood. American Journal of Law & Medicine 1987;XIII(2-3):233-248 (with Dr. Ronald Cranford). In that article I discussded the issue of personhood as applied to abortion and cited the 1973 decision of the federal district court in Rhode Island, Doe v. Israel, 358 F.Supp. 1193 (D. R.I. 1973). In that article we wrote:
Twenty-four years later, I find I have to return to this issue and again cite Doe v. Israel in connection with the "Personhood" ballot measure and movement now teed up for a vote in Mississippi on November 8th.
Mississippi’s "Personhood" initiative (No. 26) defines the word "person" in the Mississippi Constitution as "every human being from the moment of fertilization, cloning or the equvalent thereof.” Pro-Life & "Personhood" advocates hail the measure as a means of undoing Roe v. Wade. Just the opposite is true. Abortion foes appear blissfully ignorant that the federal courts have already rejected a state law personhood/”life begins at conception” challenge to Roe v. Wade. In 1973 Rhode Island’s legislature passed a law (“AN ACT Relating to Abortions)” to define personhood from the moment of conception:
The statute went further and criminalized abortion. The law was challenged as being unconstitutional in direct violation of the Supreme Court’s holding in Roe v. Wade. The case was: Jane Doe v. Richard Israel, Attorney General of the State of Rhode Island, 358 F.Supp. 1193 (D. R.I. 1973). This decision was affirmed by the First Circuit Court of Appeals. The U. S. Supreme Court denied certiorari. Israel v. Doe, 416 U.S. 993, 94 S. Ct. 2406, 40 L. Ed. 2d 772, 1974 U.S. LEXIS 310 (1974). The District Court declared Rhode Island’s “personhood law” unconstitutional in no uncertain terms:
The United States Supreme Court has the final word on the interpretation of the United States Constitution. It is simply futile for Mississippi to attempt to enlarge the universe of "persons" under the Fourteenth Amendment. In fact, not even Congress can pass legislation to undo Roe v. Wade. In a brilliant law review article the late Professor Thomas Emerson at Yale detailed the constitutional folly of the "Human Life Bill" (a bill in Congress to define life from the moment of conception). Simply put, neither Congress nor the states can undo Roe v. Wade. When the Fourteenth Amendment was passed in 1868, abortions were common enough to suggest that the state legislatures that had ratified the Amendment did not consider fetuses to have rights. Merely because a state considers a fetus a “person” under state law does not “trump” the Fourteenth Amendment or Roe v. Wade. Cf. Webster v. Reprod. Health Servs., 492 U.S. 490 (U.S. 1989)( the U.S. Supreme Court specifically upheld a state’s right to enact abortion restrictions, even where the state defines life to begin at conception. Missouri law that “The life of each human being begins at conception” did not invalidate Missouri’s restrictions on abortion law). (More here).
It Can Be Done
In last night’s GOP debate (10/18/2011) much was made of Mitt Romney’s lawn care company hiring “illegals” who cut Romney’s lawn when he lived in Massachusetts. For decades undocumented foreign and migrant workers have done the toughest and lowest paying jobs “in our economy.” Rather than express any compassion or concern for the exploitation of “illegal” immigrants, the GOP wants to extirpate “illegals” from the USA a country of immigrants. “Roll Tide” has a new meaning in Alabama : ride the tidal wave of anti-immigrant sentiment and root out the illegals.
Without a humane and rational program to allow a path to legal work and citizenship, the anti-immigrant bombasts of the GOP will actually harm the U.S. economy by removing the hardest working and most productive workers from payrolls and taxrolls, according to an extensive and thoughtful report of the Migration Policy Institute (Feb,2011) http://www.migrationpolicy.org/pubs/E-Verify-Insight.pdf
The GOP should be reminded that the plight of immigrant workers has been with us for a long time. Cesar Chavez’s “Boycott Grapes ” movement was about poverty and injustice and ushered in the now famous rallying cry (“Si se Puente! [It can be done]) which Barack Obama adapted to “Yes We Can.”
Instead of expressing feigned outrage that a multi-millionaire has his grass cut by “illegals” yet advocates fencing out Mexico and denying tuition breaks to U.S. citizens with immigrant parents, I’d like to see more anger directed at the failure of our country to compassionately and rationally bring immigrants out of the shadows and into our society by a path to economic and legal freedom.
The Troy Davis execution should be the death sentence for the death penalty. The State of Georgia, and the federal courts, sanctioned the execution of Troy Davis on the basis of unreliable “eyewitness” testimony and ballistics “evidence.” I read the 172 page opinion written by the U.S. federal district judge, William T. Moore, Jr. It is available here:
The murky and conflicting “eyewitness” evidence of what happened that night would never the met the standard of “reliability” that we face as civil trial attorneys. In other words, if you are seeking to recover money, judges must conduct an independent investigation of expert, scientific or technical evidence a Daubert hearing a mini-trial within a trial, conducted before the judge only, not the jury, over the validity and admissibility of expert opinion testimony. The judge must determine whether the evidence is reliable. But in criminal cases, eyewitnesses are free to testify to their dim and partial recollection of often fast-moving and blurred events (such as homeless man drinking beer in parking lot at 1 a.m. who then gets into an altercation and someone is shot)(“ Mr. Young informed the police that, during the early hours of August 19, 1989, he was sitting in the Burger King parking lot drinking beer with his girlfriend, Ms. Murray.” Of the first 225 exonerations of wrongfully convicted individuals in the United States by the Innocence Project, 77 percent were based on mistaken eyewitness identifications. Then, if on the basis of horribly flawed and unreliable eyewitness testimony the jury convicts the defendants and imposes the death penalty, the defendant can only review that corrupted verdict by showing "clear and convincing" evidence of innocence (the "standard of review" used by Judge Moore).
In the Troy Davis case, Judge Moore credited the original statements of witnesses to a shooting at a Burger King parking lot in Savannah, Georgia (that was at 1:09 a.m.). The witness statements were obtained beginning at 3:10 a.m. All of these statements are sketchy, riddled with inconsistencies, and only provided bits of pieces of “evidence” that were melded into a “case” against troy Davis. Despite seven recantations and very probative evidence that another person at the scene actually had a gun at the time of the shooting (Sylvester Coles) and was identified by two eyewitnesses as the gunman, Judge Moore rejected the recantations and affidavits, saying:
The whole legal construct for the death penalty is flawed. Even in a case of “no doubt” as to who was the killer, the issues of state of mind, mens rea, intent and the mitigating factors of mental capacity, insansity, drug or alcohol use make the “justice” of the State killing a human being a crapshoot where the outcome often depends on whether the defendant has the money to fight the resources of the state. We should remember the Troy Davis case and Justice Arthur J. Goldberg’s observation in “Our Beseiged Bill of Rights” 1970 (“The criminal’s power is nothing when compared with the power of the state.”). Support ending the death penalty. Go to : Amnesty International's website -- Protect the Human
Professor Robert P. George, a Roman Catholic Princeton professor of jurisprudence, described by the NYT as a Christian conservative, asked a question at the Teahadist forum (sponsored by Senator Jim DeMint) in South Carolina yesterday about the 14th Amendment, the Dred Scott decision and abortion. He was asking whether the candidates would support using section 5 of the 14th Amendment ("The Congress shall have power to enforce, by appropriate legislation, the provisions of this article") to essentially have Congress trump Roe v. Wade. Professor George is a strident pro-life advocate who likes to compare and describe the Supreme Court's decisions in Dred Scott and Roe v. Wade as constitutional "travesties."
None of the candidates answered correctly or even showed the barest understanding of the law, the Constitution or history. And the same is true for Prodessor George.
The 14th Amendment applies to "persons". Dred Scott held the Constitution did not include slaves as "citizens". Slaves were persons, ruled Chief Justice Taney, but clearly not "citizens" given the protection of slavery in the Constitution (e.g. the African slave trade could not be abolished until 1808, Art. I, § 9, cl. 1 and Art. IV).note 2 Thus there was no diversity jurisdiction (between citizens of different states) and Dred Scott lost. In a brilliant law review article the late Professor Thomas Emerson at Yale detailed the constitutional folly of the "Human Life Bill" (a bill in Congress to define life from the moment of conception).
And the same goes for the 14th amendment and the fetus or unborn child. Roe held states could protect "fetal life after viability" even even though a fetus is not "a person within the meaning of the Fourteenth Amendment". note 1 Likewise the Constitution does not treat a fetus or unborn child as a person or citizen.
So the right answer to Professor George's pro-life softball question was very simple. "No. Section 5 of the 14th Amendment cannot be used to overrule Roe v. Wade because a fetus is not a "person" under the 14th Amendment. Only a constitutional amendment can overrule Roe v. Wade --just as only the 14th Amendment could overrule the decision in the Dred Scott case." But African Americans were always considered persons. The "comparisons" between Roe and the Dred Scott case falls apart when when understands the Constitution and history. Dred Scott was correctly decided (although the result was a travesty) because the framers clearly intended that slaves were not "citizens." See note 2 below. It was the Tea party heroes (the framers) who created the travesty by enshrining human slavery into the Constitution. That is why Justice Thurgood Marshall did not have much respect for the original intent of the framers of the Constitution --they were embedders of slavery and the government they created "was defective at the start."
Roe v. Wade also correctly held as a matter of legal precedent, stare decisis and constituonal history that fetuses were not persons. As the Roe opinion made clear:
Professor George, as a Catholic, has a religious belief that from the moment of conception "personhood" exists. But as a profeessor of history and jurisprudence he surely knows neither the Constitution nor the 14th Amendment accept this religious dogma. "Personhood" amendments - to define "persons: from the moment of conception -- resoundingly failed in Colorado (in 2008 and 2010) and pro-life advocates are attempting an amendment process in Mississippi. Professor George's Teahadist effort to rewrite the 14th Amemdment will require amending the U.S. Constitution.
note 2: The clear facts that the Constitution protected slavery:
The Constitution specifically protected slavery in a number of places. Among other things, the Constitution:
(A) Gave the slave states extra representatives in Congress for their slaves, U.S. CONST. art. I, § 2, cl. 3;
(B) Guaranteed that the federal government would suppress slave rebellions and slave insurrections, U.S. CONST. art. I, § 8, cl. 15 and U.S. CONST. art. IV, § 4;
(C) Guaranteed that the African slave trade could not be abolished until at least 1808, U.S. CONST. art. I, § 9, cl. 1 and U.S. CONST. art. IV;
(D) Prohibited taxes on exports, thus preventing both the states and federal government from indirectly taxing slavery by taxing the export crops of the South, which at the time were the most important exports produced in the nation, U.S. CONST. art. I, § 9, cl. 5 and U.S. CONST. art. I, § 10, cl. 2;
(E) Counted slaves in determining presidential electors, thus giving the slave states extra influence in electing presidents, U.S. CONST. art. II, § 1, cl. 2 (Without these extra electors the slave- holding Thomas Jefferson would never have been able to defeat the non-slave-holding John Adams in the 1800 election);
(F) Protected the right of a master to recover a fugitive slave who escaped to a free state, U.S. CONST. art. IV, § 2, cl. 3; and
(G) Made it structurally impossible to end slavery through a constitutional amendment by requiring that three-fourths of the states ratify any amendment. U.S. CONST. art. V. Had the fifteen slave states that existed in 1861 remained in the Union, and continued to support slavery, to this day those states would be able to block a constitutional amendment to end slavery.
"Section 6. That the right of trial by jury shall remain inviolate, and no
Tennessee Constitution, Declaration of Rights.
"The declaration of rights hereto prefixed is declared to be a part of the Constitution of the state, and shall never be violated on any pretense whatever. And to guard against transgression of the high powers we have delegated, we declare that everything in the bill of rights contained, is excepted out of the general powers of the government, and shall forever remain inviolate."
Tennessee Constitution. Art. 11 § Section 16.
Governor Haslam and his lobbyists are poised to pass the Governor’s bill for “tort reform”. But there is good news. The tort reform law, with its damages caps, is plainly unconstitutional under our Tennessee Constitution.
I commend the Governor to re-read Article I § 6 of the Tennessee Constitution and Art. 11 § 16. For over 200 years, the Tennessee Constitution has provided that, "That the right of trial by jury shall remain inviolate.” The Tennessee Supreme Court has long recognized that compensatory damages, including damages for "mental and physical pain," is a form of "property" protected by the constitutional right to trial by jury. See also Kaiser v. Cannon, 529 S.W.2d 235 (Tenn. Ct. App. 1975) and Pitts v. Exxon Corp., 596 S.W.2d 830, 835 (Tenn. 1980). Taking away a jury's finding of damages in personal injury tort cases violates that which cannot be violatedthe right to trial by jury.
Through time, there have been many discussions of the American jury process and the role it plays in our justice system. U.S. Supreme Court Justice Story considered the subject as a privilege: "The inestimable privilege of a trial by jury in civil cases -- a privilege scarcely inferior to that in criminal cases, which is counted by all persons to be essential to political and civil liberty" Alexis de Tocqueville discussed trial by jury as a political institution more than as a judicial institution. His analysis of jury in the United States led him to find that the process educates people. The influence of a jury in civil cases affects all of the interests of a community and is gradually associated with the idea of justice itself. Alexis de Tocqueville asserted that the greatest advantage of a jury was that it contributed to form the judgment and to increase the natural intelligence of the people. He concluded that "the jury, which is the most energetic means of making the people rule, is also the most efficacious means of teaching it to rule well.
The Georgia Constitution has the same language as the Tennessee Constitution: “The right to trial by jury shall remain inviolate.” Ga. Const. Art. I. § 1 ¶ XI. The Georgia Supreme Court recently held that damages caps violated the “inviolate”” right to trial by jury guaranteed by the Georgia Constitution. Atlanta Oculoplastic Surgery, P.e. v. Nestlehutt, 691 S.E.2d 218 (Ga. 2010). In 2005, the Georgia legislature enacted a $350,000 cap on noneconomic damages in medical malpractice cases. Georgia's state constitution protects the right to a jury trial, as does ours, stating "[t]he right to trial by jury shall remain inviolate." Ga. Const. of 1983, Art. I, Sec. I, Par. XI (a). Because the determination of damages has always been the jury's province, and noneconomic damages have always been a component of compensatory damages, the damages cap unconstitutionally infringed on the right to a jury trial. Id. at 223. The Court concluded: "The very existence oft he caps, in any amount, is violative of the right to trial by jury." Id.
The Georgia Supreme Court’s opinion was unanimous.
“At common law at the time the right to trial was written into the first Tennessee Constitution a jury verdict in personal tort cases could not be disturbed, and a new trial granted, merely because the judge found the damages as assessed to be either excessive or inadequate. n1 Sedgwick on Damages, § 349 at 688-89 (9th ed. 1912). Kaiser v. Cannon, 529 S.W.2d 235 (Tenn. Ct. App. 1975)
Given that Georgia's constitutional language is the same as Tennessee's and that the Georgia Supreme Court struck down caps in July of last year as violating the constitutional right to trial by jury, one may rightly ask whether Governor Haslam and the Tennessee GOP legislators who seek to change the very essence of democracy are being disloyal to their oath of office: "I do solemnly swear that I will perform with fidelity the duties of the office to which I have been elected, and which I am about to assume. I do solemnly swear to support the constitutions of Tennessee and the United States." Governor Haslam has attempted in his first 100 days in office to take away a sacred right that has been enshrined in Tennessee's Constitution for over 200 years.
The same "inviolate" language was in Washington’s state constitution and the Washington Supreme Court reached the same result as the Georgia Supreme Court. In Sofie v. Fibreboard Corp., 112 Wn.2d 636 (Wash. 1989) The court held that Wash. Const. art. I § 21 protected the jury's role to determine damages. The court held that the statute limiting damages violated appellants' right to a trial by jury.
Tennessee’s right to trial be jury has included the requirement of a unanimous jury and “qualifies as a precious individual right. See Tenn. Const. art. I, § 6 ("That the right to trial by jury shall remain inviolate . . .”Waters v. Coker, 229 S.W.3d 682, 688 (Tenn. 2007). This is a very important point--we have the unanimous jury rule in Tennessee because we stick to the historic common law jury rules as they existed at the time of the adoption of Tennessee Constitution. The constitutional provision in Tennessee’s Constitution declaring that the right to trial by jury shall remain inviolate protects the right of trial by jury as it existed at common law. Marler v. Wear, 117 Tenn. 244 (Tenn. 1906). “The right to trial by jury is one of the most cherished rights preserved by our Constitution” and preserves the right as it existed at common law "insofar as that law had been adopted and was in force in North Carolina when the territory embraced in Tennessee was ceded by North Carolina to the United States government." State v. Dusina, 764 S.W.2d 766 at 768 (Tenn.1989).
Article 1, § 6 guarantee "that the right to trial by jury shall remain inviolate" was incorporated into the Constitution of 1870 from the Constitution of 1796. It protects the right of trial by jury as it existed at common law. Woods v. State, 130 Tenn. 100, 169 S.W. 558 (1914); State v. Sexton, 121 Tenn. 35, 114 S.W. 494 (1908); Marler v. Wear, 117 Tenn. 244, 96 S.W. 447 (1906).
Other cases on the right to jury trial are collected in Annotation, Validity, Construction, and Application of State Statutory Provisions Limiting Amount of Recovery in Medical Malpractice Claims, 26 ALR 5th 245 (1995) and Cumulative Supplement. Other states have held that damage caps violate the state constitutional right to a trial by jury. Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156, 164 (Ala. 1991) (statute setting $ 400,000 damage cap on noneconomic damages in medical malpractice cases violated the Alabama Constitution's guarantee of a right to a trial by jury because "the statute caps the jury's verdict automatically and absolutely, the jury's function, to the extent the verdict exceeds the damages ceiling, assumes less than an advisory status," which violates the mandate of a trial by jury (emphasis in original)); Kansas Malpractice Victims Coal. v. Bell, 757 P.2d 251, 243 Kan. at 346 (Kan. 1988) (a $ 250,000 damage cap for recovery of noneconomic damages and requirement that award of future benefits must be used to purchase an annuity contract violates the Kansas constitutional right to a trial by jury); Lakin v. Senco Prods. Inc., 329 Ore. 62, 987 P.2d 463, 474 (Ore. 1999) (a $ 500,000 statutory damage cap interferes with [**66] jury's fact-finding function, and "[l]imiting the effect of a jury's noneconomic damages verdict eviscerates 'Trial by Jury' as it was understood in 1857 and, therefore, does not allow the common-law right of jury trial to remain 'inviolate'"); and (as discussed above) Sofie v. Fibreboard Corp., 112 Wn.2d 636, 771 P.2d 711, 719 (Wash. 1989) (damage cap violated the constitutional right to trial by jury in Washington, stating: "[T]he Legislature has power to shape litigation. Such power, however, has limits: it must not encroach upon constitutional protections. In this case, by denying litigants an essential function of the jury, the Legislature has exceeded those limits." Id. at 719. Interestingly, the trial judge stated that although he found the jury's damage award reasonable, he was required to reduce the award based on the damage cap. Id. at 713.). It is also important to note that, as the Washington court pointed out in Sofie, the language of the right to trial by jury provisions in states that have found the damage limit unconstitutional are nearly identical to Tennesse’s provision that the right of a trial by jury shall remain inviolate. Id. at 723. See also Carly N. Kelly & Michelle M. Mello, Are Medical Malpractice [**67] Damage Caps Constitutional? An Overview of State Litigation, 33 J.L. MED. & ETHICS 515 (2005).
Trial by jury is one of the most potent checks on government power ever devised. The power grab by the Tennessee GOP is being spearheaded by business interests with a conflcit-of-interest--having a history of causing injuries and deaths. Bill Lee, the president of this lobbying group (Tennesseans for Economic Growth) runs an HVAC contrtactor, Lee Company. This company was sued and Mr. Lee was deposed by me when Lee company --in violation of Codes -- installed 2 swimming pool water heaters in the Ramada Inn at Opryland in an interior room with no source for outside combustion air. John Spalding died and his wife was brain damaged from CO poisoning. The case settled in 1986. More here. Likewise National HealthCare Corporation (NHC--who runs nursing homes). National HealthCare ( NHC's ) President, Steven F. Flatt is also on the Board of this lobbying group. Sure they too want to cap damages--being the same company that failed to install sprinklers in a four story nursing home where 16 people died. For a link to the hearings beforte the Senate Judiciary Committee see here: It would be funny if it weren't true:
(1986 New Yorker Cartoon) (fair use).
The Second Amendment Does Not Guarantee A Right to Carry Concealed Handguns: States May Ban Handgun Carry
The Maryland Court of Appeals so held in Williams v. State of Maryland (Jan. 5, 2010). The same issue is pending in Palmer v. District of Columbia. Both Wisconsin and Illinois ban carrying concealed handguns in public. Banning carrying handguns is, rightly analyzed, not prohibited by the Second Amendment or the Heller decision and sane law makers should ban handgun carry. Period. Here is what the Court said in Williams:
Arguing Before the Supreme Court
I have had the pleasure, or daunting task, of arguing a number of cases before the Tennessee Supreme Court and the Kentucky Supreme Court. But never the U.S. Supreme Court. Several petitions for certiorari, but no oral arguments. But the style and procedure is very similar based upon this recent article about arguing before the U.S. Supreme Court:
Artist Formerly Known as the Racist Lawyer Who Represented James Earl Ray
I love reading the NYT obituaries. Fascinating recent obituary about Nashville attorney (and inveterate racist) Jack Kershaw who represented James Earl Ray in an unsuccessful post-guilty plea effort to exonerate Ray by spinning a wacko-conspiracy theory (“Raul” did it). Turns out Mr. Kershaw also was the “sculptor” responsible for “creating” the monstrosity on I-65: the statute of Civil War General (and famous KKK founder and sympathizer) Nathan Bedford Forrest (replete with Confederate flags). So SCV (Sons of Confederate Veterans), KKK and other wing nuts can salute the Stars and Bars, General Nathan Bedford Forrest and the racist lawyer who defended Dr. Martin Luther King’s murderer.
Guerilla Right Wing "Journalists"
Guerrilla journalism, as practiced by a group of "rising stars" young neo-cons, including recently arrested James O'Keefe (for attempting to record/tape at the New Orleans office of Louisiana Senator Mary Landrieu) now appears to be a well-organized and robustly funded effort by right wing groups including the "Leadership Institute", Breitbart News and Andrew Breitbart. The modus operandi of O'Keefe and others (e.g. "Live Action" films & Planned Parenthood" stings) is to attend workshops and training sessions, create a salacious/made up story and then embarass an "opponent" with a secret tape or recording made by invading privacy, trespassing and lying. Politico details that young college conservatives are being trained and recruited by big-monied right wing organizations to engage in these activities, give speeches and win awards. More here . . .
A Confederancy of Dunces
The National "Tea Party" Convention is scheduled to take place in Nashville starting February 4th at Opryland. The "Tea Party Nation" will be addressed by keynote speaker Sarah Palin and other speakerss including: Michelle Bachmann (R. Minn.), Judge "Ten Commandments in the Courthouse" Roy Moore (formerly on the Alabama Supreme Court) and Marsha Blackburn (R. Tenn). The brainchild of a Franklin, Tennessee DUI lawyer, Judson "Up thre Creek" Phillips, it has all the earmarks of a scamfest, as Frank Rich (New York Times), Jeff Woods (Nashville Scene) and Nate Rau and Chas Risk (Tennessean) break down in today's papers.
Posted: January 16, 2010
Cry for Haiti . . . A Poem
The tragedy in Haiti brought to my mind the hauting poem by Rumi -- "Cry Out in Your Weakness." We must cry, we must give:
Cry Out in Your Weakness
A dragon was pulling a bear into its terrible mouth.
A courageous man went and rescued the bear.
And they can’t be bought off.
Push the hair out of your eyes.
Let the wind breeze through.
Tear the binding from around the foot
Give your weakness
Crying out loud and weeping are great resources.
Just a little beginning-whimper,
God created the child, that is your wanting,
Cry out! Don’t be stolid and silent
The hard rain and wind
Ignore those that make you fearful
Posted: January 16, 2010
Don't Jump the Gun:
I have been reading the briefs in the pending U.S. Supreme Court case, McDonald v. City of Chicago. This is the case, set for oral argument in March, that will decide whether the Second Amendment is "incorporated" into the Fourteenth Amendment and therefore applies to the states. The precise issue: "Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment's Privileges or Immunities or Due Process Clauses."
But the really interesting question raised in these briefs is whether/how the Court will address the level of scrutiny to be applied to review state and local gun laws, e.g. Chicago's ban on carrying weapons. The amicus brief of the States of Illinois, Maryland and New Jersey is especially interesting in arguing for the constitutionality of local regulation of firearms and "carrying."
Gun laws passed by cities or states that prohibit handgun carry or gun shows have been upheld by the courts. The Court in Heller did not decide whether the Second Amendment is a fundamental right or whether gun laws should be reviewed under "strict scrutiny" or "deferential review." No constitutional "right to carry" arms in public has been established or acknowledged by the Courts. The Supreme Court may address this issue in McDonald. Until then people who say they have a "right to carry" under the Second Amendment are guessing. Any right to carry is presently permissive, subject to state and local laws and many states, counties and cities restrict or ban concealed or open carry or gun shows. Tennessee presently allows handgun permits and open or concealed carrying in state parks. Other cities, states and D.C. do not. The contours of the Second Amendment are in flux. Guns in the home are protected under the Second Amendment under the Heller case. But don't jump your guns beyond that.
I would also note that the Tennessee Constitution does not confer a right to carry a concealed weapon. In Aymette v. State, 21 Tenn. 154 (1840) the Tennessee Supreme Court held that the state constitutional guarantee of the right to “bear” arms did not prohibit the banning of concealed weapons. This case was specifically discussed in the US Supreme Court's decision in Heller.
Posted: January 3, 2010
Although a recent poll found that over two-thirds of Tennesseans do not want handguns in bars, lawmakers in Tennesee plan to introduce a new guns-in-bar law that will permit handguns wherever alcohol is sold for on-premises consumption. This comes on the heels of embarassing news for Tennessee that three University of Tennessee football players were arrested for armed robbery and now four University of Tennessee basketball players were arrested for unlawful possession of a firearm and possession of a firearm with an altered serial number, which is a felony. Add to that the holiday hiking of a Brentwood, Tennessee man with an "openly carried" AK-47 "pistol" and you get a flavor of the direction of "civil life" in Tenneessee if the gun lobby gets its way --more guns, no gun free zones or public places free from guns.
Tennessee has passed a law exempting weapons made and owned in-state from federal restrictions and is home to Barrett Firearms Manufacturing, maker of a .50-calibre shoulder-fired rifle that the company says can shoot bullets up to 8km. Lawmakers, supported by the NRA, want guns in schools, parks, churches -- basically everywhere, with open carry.
This is quite a change from the Tennessee of 1988 and beforehand. Prior to 1989 concealed carry of firearms was illegal. In 1989, Tennessee overhauled its handgun carry laws to provide that sheriffs “may issue” a handgun carry permit to authorize “any person” to carry a handgun. This change in the law allowed a local sheriff to issue handgun carry permits without having to make the person a special deputy or officer. Although the 1989 law authorized a sheriff to issue handgun carry permits it did not require the sheriff to issue civilian permits and the permits were only good in the county in which they were issued. Today permits must be issued to qualified applicants with the result that over 339,000 handgun carry permits have been issued in Tennessee. Because Tennessee recognizes/allows a handgun permit holder from any state to carry a handgun in Tennessee, a conservative estimate) is that 4 million handgun permit holders can/could carry handguns in Tennessee. My retort: (this video says it all):
Posted: January 1, 2010
The curious case of Mr. Embody openly toting an AK-47 firearm (pistol) in Radnor Park has sparked a debate on Tennessee’s handgun carry laws.
Let me share the details of another debate: one I had on October 19, 2009 at a CLE conference in Little Rock, Arkansas at the University of Arkansas at Little Rock William H. Bowen School of Law sponsored by the Arkansas Bar Association and the American Bar Association Governmental Practice Institute. The topic was the Constitutionality of Gun Laws & the Second Amendment. On the panel with me was attorney Alan Gura, a Washington, D.C. attorney. Mr. Gura represented Dick Anthony Heller in the U.S. Supreme Court case, District of Columbia v. Heller.
We got into a lively debate on the holding and meaning of the Supreme Court’s decision in Heller. I noted that even after Heller was decided the District of Columbia still banned concealed and open carry of handguns in public and that Heller merely decided that D.C.’s ban on handguns in a person’s home was unconstitutional and therefore states could prohibit open carry of firearms (as do Arkansas, Texas, Illinois, New York, Oklahoma, Florida, and South Carolina) or completely prohibit carrying weapons in public, concealed or openly (as do Wisconsin, Illinois & D.C.).
I argued that even though he handled the Heller case, Mr. Gura was misreading Heller. I stated that the Supreme Court did not hold that the Second Amendment right identified there is fundamental nor did the Court’s decision preclude states or the District of Columbia from restricting or prohibited concealed or open carry of firearms in public. In effect Heller had its own “Catch-22”: yes the rule is the Second Amendment is not limited to militias and applies to individuals, but like Joseph Heller’s Catch-22, the catch is that States may regulate individual use and ownership of firearms (to wit-gun control). While the Court used the word “fundamental” three times in its decision, it did not use it in its conclusion or holding. The relevant portion of that opinion (on the standard of review) makes clear that the Court was declining to decide such issues. Id. at 2817 18. See United States v. Moore, 2009 WL 1033363, * 3 (W.D.N.C. Apr. 17, 2009) (“the Heller Court did not explicitly declare this right to be fundamental.”); United States v. Miller, 604 F.Supp.2d 1162, 1170 (W.D. Tenn. Feb. 26, 2009) (same); United States v. Radencich, 2009 WL 127648, * 4 (N.D.Ind. Jan. 20, 2009) (same); United States v. Schultz, 2009 WL 35225, * 5 (N.D. Ind. Jan. 5, 2009) (same).
Mr. Gura argued that that Heller held that that the “right to bear arms” encompasses the right to carry guns in public. I argued that he was expanding Heller well beyond its boundaries. The focus of Heller was not about “bearing” at all, let alone about public carryingit was about banning weapons in the home. Wisconsin’s Supreme Court for example, presaged Heller in upholding a ban on carrying firearms in public explaining: “If the constitutional right to keep and bear arms for security is to mean anything, it must, as a general matter, permit a person to possess, carry, and sometimes conceal arms to maintain the security of his private residence or privately operated business, and to safely move and store weapons within these premises.” State v. Hamdan, 665 N.W.2d 785 (Wis. 2003).
On January 22, 2010 Mr. Gura will get another chance to make his argument. On that day the U.S. District Court for the District of Columbia will hear oral arguments on the summary judgments filed in Mr. Gura’s challenge to D.C.’s ban on carrying firearms in public in the case Palmer v. District of Columbia. The District of Columbia has filed briefs in support of its motion arguing:
The Palmer case will likely wend its way to from the district court, to the D.C. Circuit Court of Appeals and then the U.S. Supreme Court. In the meantime, Tennessee should join Arkansas, Texas, Illinois, New York, Oklahoma, Florida, South Carolina, and Wisconsin and ban open carry of firearms in public places.
Links to briefs in the Palmer v. District of Columbia case:
Handgun Carry Permit Holders: What Now?
After the U.S. Supreme Court decision in Heller, law and social policy will now evolve with a heated debate as to where, when and whether "permit holders" can "carry" weapons in public places. Handgun/ccw permit classes and permit holders are burgeoning. The NRA boasts that almost all states grant handgun permits to people with clean criminal and psychological records. In 1987, just 10 states did. Only Wisconsin, Illinois and Washington DC now prohibit carrying concealed handguns entirely.
The contours of a "Second Amendment" "right to carry" have yet to be sorted out. The U.S. Supreme Court decision in Heller struck down a Washington, D.C., law that prohibited handguns for protection in your home, saying that was guaranteed by the Constitution. But that was all it extended to, the home. There is no Second Amendment “right” to carry a permitted handgun everywhere and the effort to pass laws to permit guns in "sensitive places" such as bars is, as detailed in this blog, beyond the fringe of law and common sense.
Two recent federal cases have also clarified that law enforcement officers (police) may lawfully stop, detain and pull a gun on handgun carry permit holders since spotting someone with a gun in public creates probable/reasonable cause that they are about to engage in criminal activity. The First Circuit case (here); Georgia federal district court case (here). In a Virginia case a HCP permit holder was detained at length and his .45 caliber hangdun was taken in a traffic stop.
A larger issue is how "permit holders" -- growing in numbers -- are determined to change the very nature of public life and public places and the character of life and society in Tennessee and other "right to carry" states. Recall the saga of the gun toting soccer mom in Pennsylvania who "openly carried" her permitted handgun to her 5 year old's soccer game (and later was shot to death by her husband).
For example, a news story in Nashville detailed an incident at Radnor Lake Sate Park where a man with a loaded AK-47, military boots and a black skull cap was in the state park, apparently "exercising" his Second Amendment rights. A park patron, told Channel 4 news , "This is a place where people come to find serenity, to be apart from the hustle and bustle. The guy is clearly trying to push the boundaries." WKRN story here: Leonard S. Embody, (posts to opencarry.org discussion forum (and Tennesse Gun Owners forum) under name "kwikrnu") age 37 of Brentwood, TN carried the gun at Radnor State Park and vows to carry it to the Bicentennial Mall next week and posted details of his encounter on a web forum (link) (pdf), saying:
Mr. Embody is likely simply a zealous advocate of "open carry" and the Second Amendment and poses no risk or threat.
Elsewhere, however, the Violence Policy Center is keeping a tab on the number of shooting deaths by ccw permit holders (107 killed since 2007). This Thanksgiving, for example, a Florida permit holder killed four members of his family (is still at large) and, because of reciprocity, he may lawfully carry in Tennessee.
Other recent shootings by permit holders:
This list/analysis also understates the "death risk" associated with carrying firearms where carry permit holders become emboldened, start shooting, and die in a shootout where the permit holder did not have a self defense privilege and over-reacted. An example: The tragic death of boxer Vernon Forrest. He was robbed at at a gas station at gunpoint. The robber fled. A HCP holder, Forrest got his gun and chased the robber. Shots were exchanged. He gave up the chase and was the shot 7-8 times in the back. Another example: a permit holder who chases and shoots at a shoplifter.
The above analysis also understates the death risk where permit holders' guns accidentally get in the hands of children, causing death. Examples here; here and more here andhttp://www.knoe.com/global/story.asp?s=11754668
In addition, the "death toll" associated with handun carry permits should also include cases where the permit holder kills a criminal in a situation where the criminal was committing a robbery with no intent to cause bodily harm or death. For example, three Univ. of Tennessee football players recently attempted an armed robbery late at night at a Pilot gas station. Had the victim been a handgun permit holder arguably the victim would have been justified in shooting all three of these individuals. In North Carolina, for example, an off duty police officer was held up when he used a dribe by ATM late at night. He shot the robber, a 19 year old who "made a mistake but was not a cold hard criminal." The permit holder in effect escalated an armed robbery that would have resulted in the loss of a few hundred dollars into a justifiable homicide
The Tennessee legisltaure (and the NRA) has, in this writer's view, taken a very dangerous and legally unjustified view of the contours of the Second Amendment that threatens to drastically alter what we have viewed as "civilized life." Having loaded weapons in parks, churches, schools, workplaces, restaurants and bars -- the agenda of the Tennessee GOP and the NRA -- should be opposed in the first instance as horrible social policy. It should also be challenged as an unlawful distortion of the holding in Heller and as an unconstitutional infringment on the right of people, citizens to meet and associate in public and society without exposure to AK-47s.
A recent opinion article from Dayton, Ohio summarized:
See also: Mark Duggan, More Guns, More Crime, University of Chicago and National Bureau of Economic Research:
"Increases in gun ownership lead to a higher gun-homicide rate and legislation allowing citizens to carry concealed weapons does not reduce crime, according to a recent NBER Working Paper by Mark Duggan. After peaking in 1993, gun homicides in the United States dropped 36 percent by 1998, while non-gun homicides declined only 18 percent. In that same period, the fraction of households with at least one gun fell from more than 42 percent to less than 35 percent. Duggan finds that about one-third of the gun-homicide decline since 1993 is explained by the fall in gun ownership. The largest declines occur in areas with the largest reductions in firearm ownership." link.
Tennessee Attorney General files Notice of Appeal
I received today the AG's Notice of Appeal in Rayburn ex rel. v. Robert E. Cooper, Jr., Tennessee Attorney General (Davidson Ch. Ct.) (Chancellor Bonnyman's ruling that TCA 39171305(c), the guns-in-bars law, was unconstitutionally vague). The record will be filed and briefs filed thereafter. We have the right to raise arguments and authorities in our reply brief not only that the law was uncosntitutionally vague but also the issue of whether it was preempted by the OSHA/TOSHA "general duty" clause to ensure employees have a safe place to work free from "recognized hazards" and whether it constituted an unconstitutional delegation of police and legislative powers (by leaving it to restaurant and bar owners whether or not to post "no firearms" signs). American Chariot v. City of Memphis, 164 S.W.3d 600 (Tenn. Ct. App. 2004).
Time to ReLoad: Response to Senator Jackson
On Nov. 20th Chancellor Claudia Bonnyman ruled in a case I filed, Rayburn ex rel. v. Robert E. Cooper, Jr., Tennessee Attorney General (Davidson Ch. Ct.) that Tennessee’s “guns in bars law” actually an exception added to a pre-existing law banning guns in public places where alcohol is servedwas “fraught with ambiguity” and therefore unconstitutional.
Today, the Tennessean reported that State Senator Doug Jackson, Democrat of Dickson and sponsor of the legislation that passed intends to file a new bill that will legalize guns in bars and restaurants that serve alcohol. Senator Jackson and Rep. Curry Todd, Republican of Collierville wasted valuable legislative time, taxpayer money* and embarrassed Tennessee (see the Colbert Report) by passing a law that expressly allowed carrying handguns (concealed or open) into restaurants that served alcohol (all the while the proposents realizing that in Tennessee all bars were licensed as “restaurants that served alcohol").
In representing the Plaintiffs (Nashville restaurateur Randy Rayburn et al.) we fought the law as an unconstitutional act of “legislative malpractice” that was passed in the wake of absolutely false statements by the proponents, the NRA and Senator Jackson. I had great help from attorneys Adam Dread, David Raybin and Will Cheek.
A word to Senator Jackson & Representative Todd. If passed again it can be challenged again as being unconstitutionally vague and in violation of federal and state occupational and health safety laws (preemption).
Guns in alcohol-serving restaurants create a dangerous workplace in violation of OSHA standards** and because of the maze of alcohol permit laws (for hotels, zoos, restaurants, etc.) permit holders themselves will still not know if they are in violation. During next year’s General Assembly session, the legislators will now have to revisit this absurd issue of whether to flatly allow guns inside actual “bars” and “restaurants that serve alcohol. ”
The legislature knew this was a problem in Round I: they proposed bans in 21-plus establishments, curfews on when the exception would apply. All of these were eventually voted out of the final passed bill, and a “restaurant carry” exception ultimately rested on the narrowest of restrictions to distinguish itself, if only nominally, from a full-blown “guns-in-bars” exception. Chancellor Bonnyman ruled: “The court finds that TCA 39171305 (c) does violate the due process rights of the plaintiffsgenerally, the plaintiffs gun permit holdersbecause the language ‘the serving of such meals shall be the principal business conducted’ cannot be known to the ordinary citizen.”
Senator Jackson now makes no pretense that he wants to pass a ‘guns in bars’ law explicitly. Not only is this opposed by 80% of Tennesseans, such a law is vastly at odds with Tennessee’s history relating to alcohol regulation. Tennessee came late to the table in terms of legalizing liquor by the drink. Liquor by the drink wasn’t legalized in Tennessee until 1967. When it went through, it wasn’t intended to include bars. There aren’t supposed to be bars in the state, just restaurants that serve alcohol. But, obviously there are bars in the state of Tennessee.
Senator Jackson’s mission has been to make Tennessee the first state in the nation to pass a law expressly allowing guns in bars. Senator Jackson and the NRA have falsely claimed that “40 states have similar laws.” This is a shameless misstatement . Only 14 have laws that expressly allow some type of firearm carry in restaurants that serve alcohol, but each and every one of those states has very explicit provisions to keep guns out of bars (places that have more than 50% of their business from alcohol or or parts of restaurants where the primary business is alcohol. Florida, for example, doesn’t allow guns in the bar area of restaurants. Jackson and NRA tell you that 40 other states have a similar law. That is simply a lie. The New York Times acknowledged the accuracy of our research and the falsity of the claims made by Jackson and the NRA (read comments as well).
This is one of the many untruths that we have come up against since we began our constitutional challenge. The other mantra of Jackson et al is “Second Amendment rights.” The U.S. Supreme Court decision in Heller struck down a Washington, D.C., law that prohibited handguns for protection in your home, saying that was guaranteed by the Constitution. But that was all it extended to, the home. There is no Second Amendment “right” to carry a permitted handgun everywhere and the effort to pass a law to permit guns in bars is beyond the fringe of law and common sense.
* Including, for example, statutory attorneys fees and expenses pursuant to 42 U.S.C. § 1988.
Tennessee Locality Rule & Alternative Methods Jury Instruction
Tennessee Pattern Jury Instruction § 6.14 Alternate Methods. provides "When there is more than one accepted method of diagnosis or treatment, and no one of them is used exclusively and uniformly by all physicians of good standing, a physician is not negligent for selecting an accepted method of diagnosis or treatment that later turns out to be unsuccessful. This is true even if the method is one not favored by certain other physicians."
T.P.I. § 6.14 is inapplicable to the issue of the prima facie case (and getting a plaintiff’s verdict) where one alternative is established by expert proof to be outside the standard of care. In Ledford v. Bradley Memorial Hosp. Not Reported in S.W.3d, 2001 WL 1448500 Tenn.Ct.App.,2001: "Where competent medical authority is divided, a physician will not be held responsible if, in the exercise of his judgment, he followed a course of treatment advocated by a considerable number of his professional brethren in good standing in his community." Gresham v. Ford, 192 Tenn. 310, 315, 241 S.W.2d 408, 411 (1951) (quoting Floyd v. Walls, 26 Tenn.App. 151, 167, 168 S.W.2d 602, 608-09 (1941)); see also Harris v. Buckspan, 984 S.W.2d 944, 952-53 (Tenn.Ct.App.1998) ("It is not a departure from the applicable standard of care for a physician to use a procedure that is but one of several procedures recognized in the profession as adequate in the treatment of the plaintiff's condition."). The plaintiffs have not shown that Dr. Johnson's decision to implant a 1/3 tubular plate violated the standard of care. "
Likewise, in Click v. Mangione, Not Reported in S.W.3d, 2000 WL 897774 Tenn.Ct.App.,2000.): " It is not a departure from the standard of care for a physician to choose one of several different medically accepted courses of treatment for his patient. Harris v. Buckspan, 984 S .W.2d 944, 952-53 (Tenn.Ct.App.1998).” Thus, under these cases, Harris v. Buckspan, 984 S.W.2d 944 (Tenn.App.,1998.) and TPI 6.14 the law and instruction is cautionary-- to tell the jury that just because a doctor uses a method that is "accepted" and used by other physicians "in good standing" the doctor defendant doesn't commit malpractice just because his method is "disfavored" by certain other physicians if it is an "accepted method".
If you read all case law it is clear that the law and instruction does not mean there cannot be malpractice where you have one method that the defendants says is SOC and one method that plaintiff says is not SOC. The law and instruction is simply to caution the jury (and establish as law) that merely because there are 2 accepted alternatives that is not enough to prove malpractice. The plaintiff must prove a violation of the SOC in the same or similar community.
Tennessee defense attys should not be allowed to argue that this instruction = no malpractice where there are two views on SOC. The proper plaintiff’s retort to the alternate methods defense argument is: no -- we are not talking about 2 accepted methods-- we are talking about 1 method that is SOC (proven in the similar community) and one that is not SOCthat the defense position is utterly unacceptable, outside the SOC and the one that the defense wants you the jury to bless as unsafe medicine. So TPI 6.14 can be given in a case but so what? That does not make the problem go away. If the SOC established by P by expert testimony for a similar community is A (and not B) but the defense expert says SOC in D's community is B, then P has proven a violation of SOC and the method is not accepted (at least by prima facie case).
The vagueness problem and due process problems are still there because if all there is proof that the SOC in the similar community (let's say GA) is A and not B. Then how can a jury say/decide SOC in a similar community was not violated. I say they can't just pick the SOC in D's community or even make a valid choice because the statute allows prima facie case in either. Juries in TN in medmal cases are really deciding cases on the basis of which expert they like and have no principled or instructed basis to decide between the differing SOCs.
Under TN law as set forth in the medmal statute if P establishes D violated the SOC in the similar community there is simply no standard or instruction does for the jury decide liability where D experts say SOC in D's community was met.
Another twist. Just settled a case where hosp in Nashville failed to do a test in a newborn baby case. Our expert from VA said SOC in similar VA community required the test. Experts for defense said SOC in Nashville did not require the test. Defense also had expert from NC who said test not required by SOC in NC. The medical literature, however, strongly supports the test.
So if we had not settled what was the jury to do? How would they pick/decide and by what standards or instruction? We proved SOC in similar community (VA) was violated. Does jury decide what the better/more reasonable rule on SOC was? Where is that in the statute or instructions. Do they decide on the more impressive expert? Do you see my point?
The statute should be used by Plaintiffs and victims as a swordthe TN legislature said a Plaintiff could win if they proved SOC violation in a similar community. Where the SOCs conflict but P proves a violation in a similar community the statute says P wins or we need a new constitutional non-vague comports with due process law that explains how the jury decides and picks between differing SOCs I between D community and the Plaintiff’s similar community.
And it is pretty clear the TN medmal locality rule involves two potential SOCs.: "[The locality rule is two-pronged. The party calling an expert witness has the burden to establish the appropriate standard of care in (1) the community in which the defendant practices, or (2) a community similar to the one in which the defendant practices. Mabon, 968 S.W.2d at 831. Thus, the party's expert must be knowledgeable of one or the other to be competent to testify. Tenn.Code Ann. § 29-26-115(a)(1); Robinson v. LeCorps, 83 S.W.3d 718, 724 (Tenn.2002)." Conley v. Life Care Centers of America, Inc. 236 S.W.3d 713, 742 Tenn.Ct.App.,2007.
To close the loop of my thoughts. What the TN legislature probably meant to say/do is have 1 SOC provable by the D's community or a similar community. Because the law is badly written the jury is really at sea when the SOCs are different and the experts differ as to the SOC in the same versus similar community.
The locality rule should be abolished and one way to do so is to attack its utter vagueness, irrationality and lack of procedural due process for victims of malpractice.
Tennessee Locality Rule: The Missing Instruction & Potential New Const’l Challenge (Due Process/Vagueness)
I was sitting in a lengthy all too boring depo yesterday in Atlanta where a medmal defense atty was spending > 1 hr on the Tennessee locality rule and the issue of whether a community in GA was similar to the defendant doctor's community in TN. After what seemed interminable forays on this I objected on the grounds that the whole line of questioning was argumentative, misleading and totally irrelevant.
Here’s my new, maybe, “take” on this “rule”: The statute (29-26-115) and case-law define the relevant standard of care inquiry as “The recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which the defendant practices or in a similar community at the time the alleged injury or wrongful action occurred” (emphasis supplied). Thus, I say, it matters not a whit whether the GA MD knows MDs in the TN defendant's community, it doesn’t matter whether he’s ever been to TN, etc. If he knows the recognized standard of acceptable professional practice in his GA community and testifies based upon sufficient facts that his community is similar to the TN community that’s a prima facie case.
But here’s the rub. What if the practices or standard of care are in fact different in the 2 communities? Suppose, just as a hypothetical, that surgeons in the TN community never take x-rays to confirm catheter placement but they always do in GA (and everywhere else). Suppose, another hypo, no OB/GYN in the TN community tests for group B strep but they do in similar communities in GA, KY, etc (and in fact this is reasonable and a national standard to boot).
The jury needs a specific instruction that if they find the standard of care was not followed in the similar community then the defendant is liable for medical malpractice. The jury should not be allowed to choose which standard it is going to go with. Otherwise the statute is unconstitutionally vague, with no guidance or due process for decision, and permits a locality in which the defendant practices to act unreasonably and outside the similar community/reasonable standard of care for similar communities. Recall the TJ Hooper case (Learned Hand, if B<PxL then negligence). None of the tugboats in NY harbor had lights but there was still negligence because that was unreasonable. Granted the locality rule changes the common law, but it can’t do so irrationally and violation of due process or with utter vagueness. If in “the community that the defendant practices in” they do X, but in a proven similar community they do “not X” what is a jury to do? Pick? How? If the jury picks the defendant’s community (the X) the jury has rendered a verdict contrary to the statute I would say.
I believe many medmal cases are lost because the TN medmal defense bar convinces a jury that the defendant did it the way they do it in their community and the plaintiff’s out of town expert doesn’t know jack about “our community”. This jingoistic BS must stop. Bottom line: we need to try the medmal cases and force the judge to explain that the Plaintiff wins if the Plaintiff proves the standard of care in a similar community was not followed, especially if different from the defendant’s community standard and if there is a conflict we should raise a due process, vagueness constitutional objection on the grounds that the law gives the jury no rational basis to choose which standard. The jury needs to receive “the missing instruction” that “if they find the standard of care was not followed in the similar community then the defendant is liable for medical malpractice.”
Update: excerpt from brief on locality rule, here.
Defective Chinese Dry Wall
Two U.S. Senators have filed a bill seeking a temporary ban on certain Chinese-made drywall, the latest effort to address problems with Chinese-made drywall believed to be emitting unpleasant, sulfurous odors and causing unusual air-conditioner problems in homes from Florida to Louisiana. Sens. Bill Nelson (D., Fla.) and Mary Landrieu (D., La.) introduced the bill, which also asks the Consumer Product Safety Commission to conduct a study in conjunction with the National Institute for Standards and Technology and the Environment Protection Agency. They want the study to include at least 10 samples of drywall that was imported from China during 2004 through 2007 and used in residential dwellings in the U.S. The study should include at least one sample of drywall from residences located in Florida, Louisiana, Mississippi, Texas and Virginia, according to the bill's text. The bill is called the Drywall Safety Act of 2009. Reports of problem drywall first surfaced in January in Florida, where home builder Lennar Corp. is suing two Chinese manufacturers of drywall, claiming the wallboard is defective and is causing electrical problems and emitting rotten odors in dozens of homes in the state. This month, the legal battle over the imported construction material spread to Louisiana, where a couple in a suburb filed a lawsuit against certain drywall manufacturers alleging the wallboard in their house was emitting a "rotten egg" smell, causing respiratory problems and corroding electrical equipment. More . . .
Assault Weapons Ban On the Table
I had posted here (2005) with outrage, the shameful decision by Senate majority leader Bill Frist to allow the U.S. assault weapons ban to expire and permit gun dealers to sell these true weapons of mass destruction. Fast forward four years and now U.S. Secretary of State Hillary Clinton, in Mexico, has called for a new U.S. assault weapons ban. Mexico's president Felipe Calderone ( with U.S. officials agreeing) states that "90% of the arms used by Mexican cartels come from the U.S." Picture here.
A Passage to India
Sometime in your life you become especially aware that we are on this earth with millions of other people who struggle to eke out a daily existence and yet have true happiness with no concern for wealth, the stock market or television. India is such a place. My wife and I just spent 10 days in India. Amazing place. Extreme poverty but tremendous wealth -- in the people. Here is a slideshow of our trip. Namaste.
Barack Obama: The Law Student
“I went to Harvard Law School spending most of three years in poorly lit libraries, poring through cases and statutes,” Obama wrote in his memoir, “Dreams from My Father.” Over the last two years, he hasn’t dwelled publicly on his HLS daysnot surprising during a campaign where the label “elitist” proved a potent political epithet. But his time at HLS had an important impact on Obama, says David Mendell, who wrote the 2007 biography “Obama: From Promise to Power.” “I don’t think you can discount how much that period helped educate him and played a big role in his development,” says Mendell, a former Chicago Tribune reporter. It was as a law student that Obama first made historyand national headlineswhen he was elected the first black president of the Harvard Law Review in the spring of 1990." Read more.
The Brutal Side of Fraternity Hazing
In 1994 I represented a college student at Tennessee State University who had been brutally hazed as part of his initiation to a Black fraternity. His name was Wardell Pride. He was a courageous young man who broke the code of silence and exposed the very sinister and sadistic side of college hazing. His story and the case was covered by the New York Times. "Lawsuit Shatters Code of Silence Over Hazing at Black Fraternities" (New York Times, December 21, 1994). His case was settled and he has gone on to lead a happy and successful life, including playing professional tennis.
Quite a different road and result for Brian Nichols. You may have read last week that Brian Nichols, the man who went on a shooting spree at a courthouse in Georgia was sentenced to prison last week (a life sentence without parole). Nichols shot and killed the Superior Court judge in his case, Rowland Barnes, and court reporter Julie Brandau, in Barnes’ courtroom. He shot and killed Fulton County sheriff’s deputy Hoyt Teasley on the street outside the courthouse, and U.S. Customs agent David Wilhelm later that night in Buckhead. In his defense his attorneys cited to his terrible childhood and to something that caught my attention and was all too familiar. Nichols had been the victim of a brutal hazing episode at a Black fraternity in college in 1990: "The witness said Nichols was subjected to brutal beatings during hazings when he was a fraternity pledge in the early 1990s at Newberry College in South Carolina. :
For more details on the legal ramifications of hazing: Read here.
Law Offices of David Randolph Smith & Edmund J. Schmidt Announce Charitable Donation Program
A donation to Action Against Hunger is made by the firm from any attorneys' fees obtained by settlement or judgment. Action Against Hunger / Action Contre la Faim (ACF) is a global humanitarian organization committed to eliminating world hunger. Through integrated programs in nutrition, water and sanitation, and food security, ACF works to save the lives of malnourished children while ensuring families have access to safe water and sustainable solutions to hunger. Read more. Please donate here
Yes We Did!