David Randolph Smith David Randolph Smith Edmund J. Schmidt III
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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
  • http://www.opm.gov/er/adrguide/toc.asp
  • Google search.

ATTORNEYS

ATTORNEY FEES

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

ATTORNEY OFFICE MANAGEMENT

AUTOMOBILE ACCIDENTS

  • Dangerous intersection. Burgess v. Harley, 934 S.W.2d 58 (Tenn. App. 1996)(holding that a county was liable for failing to maintain an intersection and allowing it to be in a dangerous condition).
  • A N.H. Jury Awarded $2.6M in 2005 in car crash suit, citing engineers for faulty intersection design. David DeBenedetto was killed when his pickup truck collided with a car driven by a 71-year-old woman who pulled into the intersection on Route 28 after getting frustrated by a traffic light that got stuck on red for at least five minutes.The Rockingham County Superior Court jury agreed with DeBenedetto's family that Manchester-based CLD Engineering Associates, which redesigned the intersection, was partly at fault.The jury placed 49 percent of the blame on the engineering company, 49 percent of the blame on the other driver and 2 percent on the state Department of Transportation.
  • 2/12/05: Jury awards crash victims $2.9 million in lawsuit against state. A Richland County South Carolina jury ordered the state to pay $2.9 million to victims of a car crash, saying the Department of Transportation should have put up cable median barriers faster to prevent the wreck.
  • Automobile Accident Seminar paper (DRS & Associates).

BAD FAITH/FAILURE TO SETTLE

  • The bad faith refusal to settle an insurance claim is specifically dealt with in Tenn.Code Ann. § 56-7-105(a) which says that an insured may recover up to a twenty five percent penalty in all cases when the insurer, in bad faith, refuses to pay the claim within sixty days after demand has been made. In Myint v. Allstate Ins. Co, 970 S.W. 2d 920 (Tenn. 1998), however, the Supreme Court held: (1) Consumer Protection Act applies to acts and practices of insurance companies for bad faith/failure to settle.
  • In the event the of a verdict in excess of the policy amount, the insured may recover the excess amount if the company failed to exercise good faith and diligence. Maclean v. Tennessee Farmers Mut. Ins. Co., 1994 WL 697857 (Tenn.App.,1994).20 TAM 2-7 (Tenn. App. Dec. 14, 1994).

BANKRUPTCY & P.I. CLAIMS

  • If a defendant declares bankruptcy, there is an automatic stay on proceeding s, including any personal injury lawsuit. Thus, the plaintiff's attorney will need to obtain an order of relief from the stay from the bankruptcy court. In addition, the fee contract must be approved by the trustee/court. Although a personal injury exception limits the power of a bankruptcy court to liquidate or determine the amount of a personal in jury claim, 28 U.S.C.A. § 157(b)(2)(B), a bankruptcy court can determine the vailidty of a claim. In re UAL Corp. 310 B.R. 373 (Bkrtcy.N.D.Ill.,2004). The best approach is to involve a bankruptcy lawyer to best protect the client's interests.
  • Bankruptcy--Dischargeable Debts. Damages resulting from "actual fraud" or "willful and malicious injury by the debtor" cannot be discharged in bankruptcy. Cohen v. de la Cruz, 523 U.S. 213, 118 S.Ct. 1212 (U.S.,1998); 11 U.S.C. § 523.

BIRTH TRAUMA/INJURIES

  • Medical malpractice can cause serious birth injuries (e.g. cerebral palsy and brain damage) from trauma and deprivation of oxygen during labor. The American College of Obstetricians and Gynecologists (ACOG) has published a position paper that attempts to set forth criteria for brain injury caused by birth trauma. The report acknowledges that certain intrapartum events can cause cerebral palsy.
  • Birth Trauma Client Questionnaire
  • Hospital liability: Nursing negligence: Failure to follow chain of command, respond to fetal distress: Cerebral palsy: Verdict.
    Villagomez v. Northwestern Mem’l Hosp., Ill., Cook County Cir. Ct., No. 01 L 1030, Oct. 8, 2004.
    Villagomez was attached to an external fetal monitor, which showed steady decelerations over the course of about six or seven hours. The attending labor nurse noted these signs but did not call for an obstetrician. The jury awarded about $6.19 million.
  • The Clinical Diagnosis of Asphyxia: Responsible for Brain Damage in the Human Fetus, Low, Simpson, Ramsey, Vol. 167 (No. 1 July 1992). Birth Injuries 1. National College of Advocacy Litigating the Profoundly Injured Infant Case. Oct. 4-5, 1991. Los Angeles, CA
  • Fetal Heart Rate Patterns: Monitoring, Interpretation, and Management, ACOG Technical Bulletin (No. 207 July 1995).
  • No abandonment of premature infant. Hartsell v. Fort Sanders Reg. Med. Ctr., 905 S.W.2d 944 (Tenn. App. 1995)

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

  • Has anyone in your family, neighborhood, work, church or social circle been diagnosed with cancer? Subject type or any type? Who? When? What was outcome?
  • Do you believe that early diagnosis saved the person? Do you believe that a failure to diagnose resulted in the death of that person?
  • Has this experience caused you to learn more about cancer?
  • Have you changed anything you do or don't do because of what happened to this person?
  • No one in this case contends the doctor caused the cancer. Do you believe the plaintiff must prove the defendant doctor caused the cancer in order to deserve your verdict?
  • A security guard who fails to lock a door or a firefighter who arrives at a fire but does not use his hose are examples of negligence by omission. Do you have a job where, if you failed to do your job correctly and if you failed to do something, someone could be hurt?
  • Do you believe that just because two national organizations disagree, that the plaintiff can never establish a minimum standard of care? Do you believe there is no point in testing for cancer because, no matter what, cancer cannot be treated even if detected?
  • Do you understand that the minimum standards of good medical care depend upon the facts and circumstances of the patient, the patient's history, the patient's signs and symptoms, and that the minimum standard of good care will change from patient to patient?
  • Do you work with statistics at all? Please describe how? In your experience, how accurate have statistics been in predicting the future? Can statistics be used to predict anything with absolute certainty?

CARBON MONOXIDE

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

CLASS ACTIONS

CIVIL PROCEDURE

  • Destructive Testing. Must give notice under amended Rule 34A Tenn. R. Civ. P.; effective 7/1/94.
  • Animations; Re-Creations; Demonstrations.State v. Farner, 66 S.W.3d 188 (Tenn.2001); State v. Hall, 2005 WL 292432 (Tenn.Crim.App.,2005) "[c]omputer generated evidence is an increasingly common form of demonstrative evidence." Id. at 208 . A computer animation, as opposed to a computer simulation, is used to visually "illustrate and explain a witness's testimony." Id. Like any other form of evidence in Tennessee, however, the computer animation must be relevant. Tenn. R. Evid. 402. If relevant, the evidence is still subject to exclusion if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence." Tenn. R. Evid. 403. The admission of evidence is largely discretional, and a trial court's ruling as to the admissibility of evidence will not be disturbed on appeal unless there is a clear showing of abuse. State v. Harris, 30 S.W.3d 345, 350 (Tenn.Crim . App.1999).The Farner court stated that the proponent of the evidence must "establish that the computer animation is a fair and accurate depiction of the event it purports to portray." Id. at 209 (citations omitted). The Court explained that "[b]ecause the jury may be so persuaded by [the animation's] life-like nature that it becomes unable to visualize an opposing or differing version of the event, the requirement that the animation fairly and accurately portray the event is particularly important when the evidence at issue is a computer animated recreation of an event." Id.
  • Motion in Limine granted to exclude GM reconstruction videotapes. Fusco v. General Motors Corp., No. 92-2473 (Cal. Dec. 6, 1993), 51 Prod. Safety & Liab. Rep. 21, 1279 (Dec. 24, 1993).
  • Computer-Animation allowed with cautionary instruction. Datskow v. Teledyne Continental Motors Aircraft Products, 826 F. Supp. 677 (W.D.N.Y. 1993).
  • No power to order Plaintiff to re-enact in car seat case. Stermer v. Superior Court, No. B077168 (Cal. Ct. App. Nov. 24, 1993).
  • Exact language; Hyper-Technical Response by Defendant to Interrogatories Not Acceptable. Delvecchio v. General Motors, Inc., No. 5-91-0475 (Ill. App. Ct. Dec. 21, 1993).
  • Motion to Amend, before MSJ should be granted. Henderson v. Bush Bros. & Co., 886 S.W.2d 236 (Tenn. 1993).
  • Directed Verdict Standard. Stromming v. Houston's Restaurant, Inc., 19 TAM 50-6 (Tenn. App. Nov. 23, 1994)(similar accidents must be same condition/cause to show knowledge of condition or existence of condition).
  • Sudden emergency instruction abolished. Dunleavy v. Miller, No. 20 642 (N.M. Oct. 22, 1993).
  • Busy solo practitioner entitled to trial continuance. Martel v. County of Los Angeles, No. 91-56268 (9th Cir. Apr. 12, 1994).
  • Products liability plaintiff can sue in home state. Barone v. Rich Bros. Interstate Display Fireworks Co., No. 93-1833 (8th Cir. May 24, 1994); Lawyer's Weekly USA, No. 9903320 (12 pages).
  • Excusable Neglect. Carelessness can be considered excusable neglect. Pioneer Investment Services Co. v. Brunswick Associates, 113 S. Ct. 1489 (1997).
  • It is excusable for a lawyer to file an appeal one day late because he miscalculated the due date. Northwest Truck & Trailer Sales v. Dvorak, 877 P.2d 33.
  • Whether a mistake is careless depends on the reason for the delay, the length of the delay, the danger of prejudice, whether the moving party acted in good faith. See Lawyer's Weekly USA, July 3, 1995.
  • It is permissible to request the deponent to make a diagram. See Cunninghamv. Heard, 667 A.2d 537 (R.I. 1995).
  • Successive motions for summary judgment is not permissible unless it amounts to newly discovered evidence. Ashford v. Rochester Hospital Systems, 627 N.Y. S.2d 500 (N.Y. App. Div. 1995) ( we note that successive summary judgment motions 'should be discouraged in the absence of a showing of newly discovered evidence or other sufficient cause).
  • Defense ordered to pay their experts' deposition fees incurred while testifying at depositions taken by the plaintiffs. Reed v. Binder, 165 F.R.D. 424 (D. N.J. 1996) (Manifest injustice required that impoverished med mal plaintiff not be required to pay for costs of depositions. Plaintiffs brought action against the defendants alleging that a number of medical professionals and their employees negligently failed to diagnose the cancer that ultimately killed Donna Joy Reed. Presently before the court is the motion by the plaintiffs to require that each party bear the costs for the appearance and deposition of that party's expert witness. For the reasons that follow, the plaintiffs' motion will be granted.).
  • Improper disclosure of settlement agreement with one defendant in medical malpractice case. Garcez v. Michel, 668 N.E.2d 194 (1996) (Trial court abused discretion, in medical malpractice action arising from treatment in connection with infant's birth, in admitting evidence about settlement with hospital where infant was born without making threshold determination of whether settlement agreement had potential to bias testimony of two of hospital's employees who were released as defendants by settlement)..

COMPARATIVE FAULT

  • True joint tortfeasors are not covered by the elimination of joint and several liability. See Woods v. Cole, No. 82895 (Ill. Mar. 19, 1998); Lawyer's Weekly USA, No. 9912812 (8 pages). In Tennessee this principle was recognized in General Electric v. Process Control Co., 969 S.W.2d 914 (Tenn., 1998). The Tennessee Supreme Court answered the following certified question of law: Under what circumstances is a claim for contribution appropriate under Tennessee law. 969 S.W.2d, page 915.The question arose in light of Tennessee’s adoption of comparative fault in McIntyre v. Ballentine, 833 S.W.2d 52 (Tenn., 1992). The court found that contribution remains viable in three “limited circumstances.” These are:1. Cases in which prior to McIntyre the cause of action arose, the suit was filed and the parties have made irrevocable litigation decisions based on pre-McIntyre law, [citations omitted]; 2. Cases in which joint and several liability continues to apply under doctrines such as the family purpose doctrine, cases in which tortfeasors act in concert or collectively with one another, cases in which the doctrine of respondeat superior permits vicarious liability due to an agency-type relationship, or in the ‘appropriate’ products liability case, see Resolutions Trust Corp. v. Block, 924 S.W.2d 354 (Tenn., 1996). Camper v. Minor, 915 S.W.2d 437 (Tenn., 1996). Owens v. Truckstops of America, 915 S.W.2d 420 (Tenn., 1996); and 3. In the ‘appropriate case,’ in which ‘fairness demands,’ see Owens, 915 S.W.2d at page 430. . . . 969 S.W.2d at page 916. Regarding the third category, the Tennessee Supreme Court cautioned that, “The circumstances under which ‘fairness demands’ should be applicable only when failure to allow contribution would impose an injustice.” 969 S.W.2d at page 916.
  • Improper instruction and comparative fault of non-party physician. Physician-defendant has to plead and prove the affirmative defense for comparative fault. See Free v. Carnesale, 110 F.3d 1227.
  • The percentage of fault assigned to each party should be dependent upon all the circumstances of the case, including such factors as (1) the relative closeness of the causal relationship between the conduct of the defendant and the injury to the plaintiff [similar to remote contributory negligence]; (2) the reasonableness of the parties' conduct in confronting a risk, such as whether the party knew of the risk, or should have known of it [secondary implied assumption of risk that was abolished in Perez]; (3) the extent to which the defendant failed to reasonably utilize an existing opportunity to avoid the injury to the plaintiff [last clear chance concept]; (4) the existence of a sudden emergency requiring a hasty decision [sudden emergency]; (5) the significance of what the party was attempting to accomplish by the conduct, such as attempting to save another's life [rescue]; and (6) the parties' particular capacities, such as age, maturity, training, education and so forth [pre-McIntyre law applicable to minors]; see Arnold v. Hayslett, 655 S.W.2d 941 (Tenn. 1983).
  • No right to offset previous settlement. See Cox v. Newway-Love Distributors, Inc., 21 TAM 514 (Jan. 10, 1996).
  • Employer fault does not count. Ridings v. Ralph W. Parsons Co., 21 TAM 6-2 (Jan. 29 1996).
  • Symposium on Indiana's Comparative Fault Act, 17 Ind. L. Rev. 3 (1984).
  • Assessing fault to a non-party violates due process and is unconstitutional, according to the Montana Supreme Court. Plumb v. Fourth Judicial Circuit, No. 96-023 (Mont. Nov. 2, 1996); Lawyer's Weekly USA, No. 9909711.
  • It is the duty of the defendant to plead and prove comparative fault and to affirmatively set forth facts and shorten plan terms, relied upon to constitute comparative fault, including the identity and description of the tortfeasors. Tenn. R. Civ. P. 8.03; Free v. Carnesale, 22 TAM 20-67 (6th Cir. Apr. 9, 1997)
  • Defendant is not entitled to have judgment reduced by amount of previous settlement. Varner v. Perryman, 23 TAM 2-11 (Dec. 9, 1997).
  • Presumption of Due Care if Plaintiff has no memory. Masters By Masters v. Rishton, 863 S.W.2d 702 (Tenn. App. 1992).
  • Viability of Assumption of the Risk. Perez v. McConkey, 18-TAM 7-4 (permission to appeal granted). Abolished. Perez v. McKonkey, No. 03-S-01-9306-CV 00034 (Tenn. Feb. 28, 1994).
  • Plaintiff's neg. can not be introduced to prove absence of causation. Kramer v. Raymond Corp., No. CIV. 90-5026, 1993 WL 478989 (D. Pa. Oct. 26, 1993).
  • Post-manufacture duty to warn in drug case. Patton v. Hutchinson Wil Rich Mfg., 861 P.2d 1299 (Kan. 1993).
  • Contribution After McIntyre. Owens v. Truckstops of America, 19 TAM 16 4 (Apr. 18, 1994).
  • Employer's percentage of fault (immune defendant) can deduct from plaintiff's recovery, Ridings v. Ralph M. Parsons Co., 19 TAM 16-8 (Apr. 4, 1994); Amerisure Co. v. Dillard Smith Construction Co., 19 TAM 11-1 (Mar. 7, 1994).
  • Fault embraces most affirmative defenses Eaton v. McLain, 19 TAM 45 1 (Tenn. 1994). Factors to consider in assessing the plaintiff's fault: (1) relative closeness of the causal relationship between the conduct of the defendant and the injury to the plaintiff; (2) the reasonableness of the party's conduct in confronting a risk, such as whether the party knew the risk, or should have known it; (3) the extent to which the defendant failed to reasonably utilize an existing opportunity to avoid the injury; (4) the existence of a sudden emergency doctrine requiring a hasty decision; (5) the significance of what the party was attempting to accomplish by the conduct, such as an attempt to save another's life; (6) the party's particular capacities such as age, maturity, training, education, etc. Unavoidable accident defense. See Vandercook v. Radcliff, 20 TAM 2-14 (Tenn. App. Dec. 14, 1994); see also Whitaker v. Harmon, 879 S.W.2d 865, 870 (Tenn. App. 1994).
  • Joint and several liability abolished under McIntyre. Volz v. Ledes, 20 TAM 4-1 (Tenn. 1995). But is there a "constitutional challenge" when there is a non-party? Neville v. State of Montana, No. 92-310 (Mont. Aug. 29, 1994).
  • Settlement does not reduce plaintiff's recovery. Haderlie v. Sondgeroth, No. 91-114 (Wyo. Dec. 15, 1994).

COMPUTERS

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

CONFLICT OF LAW/CHOICE OF LAW

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

CONTRACTS

CORPORATIONS


CRIMINAL

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DAUBERT

  • Daubert on the Web, http://www.daubertontheweb.com
  • 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).