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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

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.

ATTORNEYS

  • Tennessee Board of Professional Responsibility Website.
  • Tennessee Rules of Professional Conduct
  • 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).
    .

ATTORNEY OFFICE MANAGEMENT

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

CANCER - Questions to Ask at Voir Dire in a Cancer Case
1.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?

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

3.Has this experience caused you to learn more about cancer?

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

5.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?

6.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?

7.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?

8.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?

9.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
1. 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
1. Orthopaedic Bone Screw Products Liability Litigation. Fanning v. Acromed, No. 1015 (D. Pa., J.P.M.L., Oct. 17, 1997).

CIVIL PROCEDURE
1. A defendant in a personal injury case can conduct an informal ex parte interview with the plaintiff's doctor. However, the defendant can't ask the doctor about any other medical condition, and the defendant must give the plaintiff "reasonable notice" and an opportunity to attend. Samms v. District Court, No. 95SA22 (Colo. Dec. 18, 1995); Lawyer's Weekly USA, No. 9907240 (22 pages).

2. Malayasian corporation that manufactured and shipped an unassembled chair into the US lacked sufficient minimum contacts to justify exercise of in personam jurisdiction in suit by patron who fell from chair while eating in Tennessee fast-food restaurant. Walker v VLD Inc., 21 TAM 33-19 (July 26, 1996)

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

4. Animations; Re-Creations; Demonstrations:

Motion in Limine granted to exclude GM reconstruction videotapes. Fusco v. General Motors Corp., No. 92-2473 (Cal. Dec. 6, 1993); Fusco, 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).

5. 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).
6. Motion to Amend, before MSJ should be granted. Henderson v. Bush Bros. & Co., 886 S.W.2d 236 (Tenn. 1993).

7. 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).

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

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

10. 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).

11. Excusable Neglect. Carelessness can be considered excusable neglect. Pioneer Investment Services Co. v. Brunswick Associates, 113 S. Ct. 1489 ( ). 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 331 ( ). 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.

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

13. Jurisdiction. Tennessee courts do not have personal jurisdiction in product liability actions over Korean manufacturer, who sold helmets to distributors who were free to sell helmets to any dealer in the United States. Mullins v. Harley Davidson, Yamaha, BMW of Memphis, 21 TAM 621 (WS Jan. 16, 1996)

14. 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).

15. Class settlement notice must advise of attorneys' fees. See General Motors v. Dloyed, No. 94-0777 (Tex. Feb. 9, 1996).

16. 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).

17. More Districts Opt for Federal Rule of Civil Procedure 26(a), Automatic Disclosure, Federal Discovery News, Volume 1, Issue 5 (Apr. 1995).

18. "Notice of Proposal to Amend the Local Rules" -- Deposition Rules

19. Robert Harp and Shannon Harp, individually and on behalf of their minor child, Megan Elizabeth Harp v. Jim C. Citty, M.D. White County Memorial Hospital and Searcy Medical Center, P.A. Arkansas. Filed Apr. 10, 1995.

20. Rule 26 Experts - Moore's Federal Practice, Vol. 4 (2nd ed. 1989).

21. Improper disclosure of settlement agreement with one defendant in medical malpractice case. See Garcez v. Michel, 668 N.E.2d 194 ( ).

22. Service by publication will be allowed when person to be served has left the county of defendant's residence to avoid service or conceals himself.


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).
  • 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.
  • Walker v. Jack's Mold and Machine Co., 20 TAM 52-39 (6th Cir. Dec. 6, 1995).
  • 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).
  • 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).
  • 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. McKonke, No. 03-S-01-9306-CV 00034 (Tenn. Feb. 28, 1994).
  • Products liability. Supreme Court accepts Rule 23 certification. Whitehead v. Toyota Motor Co., 19 TAM 47-51 (USDC Aug. 15, 1994); Roberts v. Sears, 834 F. Supp. 987 (E.D. Tenn)(comp. neg. not applicable to strict liability).
  • Plaintiff's neg. can not be introduced to prove (0) 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).
  • Settlement. Defendant can offset prior amount. Tenn. Code Ann. § 29-11 105(2)(b); McCain v. Kingswood Homeowners' Assoc., 19 TAM 14-5 (Mar. 16, 1994); see also contra Smith v. Zufelt, No. 92SC845 (Colo. Sept. 12, 1994); McDermott, Inc. v. AmClyde, 94 U.S.L.W. 397; Michigan Dept. of Transp. v. Thrasher, No. 95199 (Mich. Aug. 2 1994).
  • 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


1. 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).

2. How to Use Client-side Image Maps to make Clickable Images (That Don't Need CGIs!), Inside The Internet, Vol. 3 (No. 3 Mar. 1996).

3. How to Justify Your Search of the Responding Party's Computer Database, Federal Discovery News, 1995 LRP Publications (Aug. 1995).

4. Litigation Case Management,Trial De Novo.
Email: de.novo@pro-freedom.van.wa.us; AppleLink: de.novo

5. The SPINE: The Ultimate in Litigation Support for Trial Attorneys,
A.D.A.M. Legal Series; Medical-Legal Illustrations.

6. Cybersleuth: Legal Research on the Internet, Texas Bar Journal (Dec. 1995).

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).

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

  • 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).

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