David Randolph Smith David Randolph Smith Edmund J. Schmidt III
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DISCLOSURE OF RECORDS

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

DISCOVERY

  • Electronic Discovey, http://kenwithers.com
  • Insurance reports discoverable. Askew v. Hardman, 249 Utah Adv. Rep. 22 (Utah Ct. App. Oct. 11, 1994).
  • Parent must produce subsidiary documents. Strom v. American Motor Honda Co., No. 93-911 (Mass. Dist. Ct. Oct. 20, 1994).
  • Sanctions for failing to identify expert. Ammons v. Bonilla, 886 S.W.2d 239 (Tenn. App. 1994).
  • Sanctions for not giving plaintiffs complaints & computer discovery. Baker v. General Motors, No. 91-0991-CV-W-8 (Mo. Nov. 7, 1994).
  • Discovery: Defense counsel could conduct interview with physicians. Samms v. District Court, 908 P.2d 520 (Colo. 1995).Not the law in Tennesssee, however, under Givens.
  • Judge Denies Motion for Psychiatric Examination, 1995 LRP Publications at 1082-4782 at (1995).
  • Moore's Federal Practice (2nd ed.).
  • Abuse, Failure to Produce Documents, Sanctions -- Intercept Security Corp. v. Code Alarm, Inc., No. 95-40239 (E.D. Mich. Oct. 17, 1996).
  • More documents are destroyed in accordance with "usual procedure." There is a requirement that the defendant show that there was a coherent system of document retention or disposal, otherwise the defendant could be "highly culpable" for destruction of documents. See Shaffer v. R. W. Group, No. CV-93-4081 (N.Y. Cir. Ct. Oct. 23, 1996).
  • Discovery - computer information
    Write a letter to the opposing side, asking them to refrain from initiating any procedures which would alter any active, deleted or fragmented electronic data. Such procedures may include, but are not necessarily limited to, deleting, or attempting to delete, any electronic information, saving newly created files to disk that already contain information, loading new software on such disks, or running data compression or defragmentation routines on them; rotating, altering or destroying any media that stores electronic data where such activity could result in the alteration or loss of any electronic data and disposing of any media that contains electronic data.
    Then, in our Rule 34 request, you should request, to the extent not clarified above, a request for documents specifically: electronic mail messages, email and other electronic communications which may or may not be reduced to hard copy in the normal course of business and which may be stored or archived on file servers, hard drives, hard or floppy disks or diskettes, back-up tapes or other storage media.State specifically that we are looking for all correspondence, including email, between X and Y; all drafts, including word processing disks or backups of all agreements executed on; all plans and drawings of the system, backups and drafts and/or stored on the engineering department CADD system.
    Federal Discovery News (Jan. 1997).
  • At a deposition, a witness is not required to identify the documents that the witness reviewed in preparation for the deposition. Logan v. Colonial Williamsburg Hotel Properties, Inc., (E.D Va. Jan. 13, 1997); Sporck v. Peil, 759 F.2d 312 (3rd Cir. 1985). The acceptable question is, "What documents did the witness use to refresh his recollection in preparation for the deposition?" When this question is asked at the deposition, the parties should immediately contact the docket clerk and request a telephone conference with the court so that the discovery issue might be resolved promptly with the least amount of inconvenience to the parties being deposed, the litigants and their counsel. In other words, get on the phone and try to call the judge before adjourning the deposition.
  • Ex Parte Interviews -- Plaintiff must provide (1) counsel's representative capacity; (2) counsel's reason for seeking interveiw; (3) the right of the current and former employee to refuse to be interviewed; and (4) the right of the current or former employee to have his or her own counsel present during the ex parte contact. See Carter-Herman v. City of Philadelphia, 897 F. Supp. 899, 904 (E.D. Pa. 1995).
  • It is permissible to submit Interrogatories to the other side's expert witnesses, particularly if they have not been identified as witnesses who will be used at trial. See Reed Dairy Farm v. Consumers Power Co., 1998 WL 45172 (Mich. App.).

DRAM SHOP

  • Minors & alcohol. Worley v. Weigel's, 20 TAM 2-8 (Tenn. App. Dec. 14, 1994)
  • In Biscan v. Brown, No. M2001-02766-COA-R3-CV - Filed December 15, 2003, the Tennessee Court of Appeals affirmed a judgment against a social host (15% liability) after a jury verdict awarding damages to Jennifer Biscan (with 15% fault attributed to her) and her father, Robert Biscan, for serious brain injuries Jennifer incurred in an automobile accident, which injuries left her permanently impaired. Jennifer, 16 at the time, was riding as a passenger in the car driven by Hughes Brown (found 70% at fault), then 17, who was intoxicated. The accident occurred after Jennifer and Hughes left a party at the home of Paul Worley, where some guests had consumed beer. It was uncontested that Hughes Brown’s negligent operation of the car while intoxicated was the cause of the accident. The Worleys did not serve alcohol or make it available at the party. Although many attendees did not drink, a number brought alcohol, primarily beer, to the party and drank it there. Mr. Worley fully expected that the minor guests would both bring and consume beer on his property. He intended that a rule he had implemented in previous parties given by his son would apply: that is, that any guest who chose to drink alcohol would be required to turn over car keys and spend the night rather than drive home. First the court held that the person who furnished the beer (Jennifer's sister) could not be held liable (or have any percentage of fault) because Tenn. Code Ann. § 57-10-101 ("The general assembly hereby finds and declares that the consumption of anyalcoholic beverage or beer rather than the furnishing of any alcoholic beverage or beer is the proximate cause of injuries inflicted upon another by an intoxicated person.) The court held the law applied to someone who merely provides alcohol and thus the sister (and social hosts) who furnish alcohol have no liability. The court cited Downen v. Testa, 2003 WL 2002411, at *3 which reached the same no liability result for a social host.But, here the parent who hosted the party--but provided no alcohol -- was nevertheless held liable. This was the evidence: "Mr. Worley hosted the party for his daughter Ashley’s eighteenth birthday at his residence. No written invitations were sent; Ashley Worley personally invited friends. Other students heard about the party by word-of mouth. Everyone who showed up at the Worley home on the night of the party was welcomed by the Worleys. Mr. Worley did not intend to serve any alcoholic beverages, and did not. However, he was aware that some of the minors attending the party would bring beer and drink it at the party. He expected that to occur. Mr. Worley told Ashley prior to the party that if any of the guests consumed alcoholic beverages they would not be permitted to leave the party and would be required to stay the night. The court found that Worley owed a duty of care to Jennifer Biscan: "Imposing a duty to act reasonably to prevent driving by an intoxicated minor in a situation where the adult defendant has the authority and opportunity to take non-onerous action to preclude that driving furthers such public policy.20 We find Mr. Worley owed a duty of reasonable care under the circumstances to Jennifer Biscan. . .We recognize an apparent anomaly if an adult host who served alcohol to a minor could not be liable because of the Dram Shop Act, but a host who acted with good intentions as Mr. Worley did could face liability. We simply note that the case before us does not involve a defendant who served alcohol to minors, and we are not called upon to address that situation. Further, allowing an intoxicated minor to drive when it could have been prevented is a cause of the injury separate from and additional to the intoxication." The court also found Mr. Worley assumed a duty of care. "Nonetheless, his own deposition testimony established his undertaking and intent with regard to safeguarding the guests and the general public. Consequently, the evidence before the court at the summary judgment stage was sufficient for it to conclude that Mr. Worley voluntarily assumed a duty to ensure that minors who had been drinking did not leave the party by driving." The court stated the " question of whether Mr. Worley owed a duty to Jennifer Biscan to prevent Hughes Brown from driving in an intoxicated state after having consumed beer at the party, with or without a passenger, or to prevent Jennifer from riding in the car with Hughes Brown must be answered by balancing the degree of foreseeability of harm against the burden upon Mr. Worley to avoid the harm by acting differently. Id. at 901. The degree of foreseeability of harm and the magnitude of that potential harm must be balanced against the onerousness of the burden involved in alternative conduct. “Of course, a duty of care is dependent upon foreseeability.” Pittman v. Upjohn, 890 S.W.2d 425, 431 (Tenn. 1994). Applying the relevant factors to the circumstances presented in this case, it is clear that it was foreseeable that a minor guest who drank at the party would become intoxicated and that if an intoxicated minor drove a car, there would be an accident." So what did the duty require? The court stated, "On the other side of the equation, the burden placed on Mr. Worley to prevent the harm caused by an intoxicated minor driver leaving Mr. Worley’s home was not onerous. He himself devised a plan which merely required him to enforce the rule he attempted to impose. He only had to retrieve car keys or make the cars inaccessible. Of course, he also could have banned alcohol or refused to have the party." (emphasis supplied).

DURAGESIC

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

DUTY

  • Pittman v. Upjohn Co., 19 TAM 49-1 (Tenn. 1994).
  • Duty (to light staircase & lock basement door) held absent since "duty of reasonable care" did not, as a matter of law, extend to leaving light on & door locked. Test is that "defendants reasonably knew or should have known of the probability of an occurrence, such as the one that caused her injuries". Eaton v. McClain, 19 TAM 45-1 (Tenn. Oct. 31, 1994); Doe v. Linder, 845 S.W.2d 173, 178 (Tenn. 1992).

ECONOMIC EXPERTS

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

.ECONOMIST' TESTIMONY

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

ELECTRONIC DISCOVERY

ELECTRONIC FILING


EMERGENCY MEDICAL LEAVE ACT

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

EMERGENCY ROOMS

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

EMOTIONAL DISTRESS

  • Bystander emotional distress. Lourcey v. Estate of Scarlett, 146 S.W. 3d 48 (Tenn. 2004.) The Tennessee Supreme Court held a woman who witnessed a shooting stated a claim for negligent infliction of emotional distress even though she was unrelated to the victims.Held: to recover for injuries based on witnessing the death or injury of a third person, a plaintiff must show that the death or injury and plaintiff’s emotional injury were proximate and foreseeable results of defendant’s negligence. Only two factors are essential to meet the foreseeability requirement: (1) that plaintiff was physically close enough to the injury-producing event to observe it and (2) that the injury was, or reasonably was perceived to be, serious or fatal.The court noted that the element of foreseeability does not require a plaintiff to establish a relationship to the injured party.
  • Reckless Infliction of Emotional Distress need not be "directed at" the plaintiff. John Doe 1 ex rel. Jane Doe 1, ex rel. v. Roman Catholic Diocese of Nashville (Tenn. 2005).
  • Tennessee abandoned the zone of danger test and bystander emotional distress cases. In Ramsey v. Beavers, 931 S.W.2d 527 (Tenn. 1996), the Tennessee Supreme Court abandoned the zone of danger test for analyzing bystander emotional distress claims in favor of a general negligence approach. The plaintiff must show that he sustained a physical injury along with an emotional one or was placed in immediate danger of physical harm and contemporaneously feared for his own safety. The court also required that the plaintiff be closely related to the injured party. Duty of care requires a consideration of the plaintiff's physical location at the time of the accident, awareness of the accident, a degree of injury to the third person, the plaintiff's relationship to the injured party. These considerations will reasonably limit recovery while allowing recovery in meritorious cases.
  • Intentional infliction. Restatement (Second) of Torts § 46.
  • Fear of disease (breast implant rupture after auto wreck $475,000). Rolland v. Amonette, 20 TAM 3-8 (Tenn. App. Dec. 16 1994).
  • Tennessee has abolished the physical injury requirement for negligent infliction of emotional distress. Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996). Tennessee no longer follows the physical injury rule or physical manifestation rule, stating that situations should be analyzed in a general negligence approach. The plaintiff must show duty, breach of duty, cause in fact, proximate cause and damages. The law provides recovery for severe or emotional injuries for a reasonable person who normally would be unable to adequately cope with the mental distress and gender by the circumstances of the case. In this case, a man driving a cement dump truck killed a girl who had negligently pulled her car in front of him, and he suffered minor physical injuries but did suffer emotional injuries, which were severe
  • Damage awards for 'emotional distress' taxed. Lawyers Weekly USA (Aug. 12, 1996)."Emotional distress" will be subject to federal income tax for many types of injuries under a bill that has passed the House and Senate and that President Clinton has said he will sign.The bill will affect all emotional distress claims that involve non-physical injuries, including wrongful discharge, job discrimination, defamation, insurance bad faith, civil rights, business-related torts and others.It will also tax punitive damages in all cases.
  • A mother's emotional distress is supported by evidence that mothers experienced extreme pain from physicians' repeated vaginal exams and difficult labor, including hospitalization for 8 days sufficient to support claim for emotional stress claims. Salgado v. County of Los Angeles, 67 Cal. Rptr. 2d 256 (Cal. Ct. App. 1997).
  • See In Re Aircraft Disaster at Charlotte, North Carolina, 982 F. Supp. 1101 (D. S.C.)(upholding $300,000.00 award for post-traumatic stress disorder).
  • Specialized testimony from the plaintiff's treating psychologist is admissible in a wrongful death case on the issue of grief. Horton v. Channing, 698 S.2d 865.
  • Photographs of a decedent's remains and the condition of the body are relevant to the issue of mental distress/mental anguish suffered by survivors. Campbell v. Keystone Aerial Surveys, Inc., 138 F.3d 996 (5th Cir. 1998).

ERISA

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

ETHICS

  • Legal Ethics Forum, a website forum edited by University of Texas law prof John Dzienkowski, Cornell law prof Brad Wendel and Berkeley (Boalt Hall) law lecturer (and practicing lawyer) John Steele.
  • Ethical rules for lawyers as mediators - see 66 U.S. Law Week, at 2307 (No. 20).
  • Tennessee Board of Professional Responsibility Website.
  • Tennessee Rules of Professional Conduct
  • In a personal injury case, a clause in a settlement agreement restricting plaintiff's attorney from representing future claims against the same defendant is ethically inappropriate. In requiring that the plaintiff be a party to the release, it might create a conflict of interest between the plaintiff and the plaintiff's attorney. Formal Ethics Opinion, Tennessee Bar 97-f-141.
  • ABA Report on Ethics in Settlement Negotiations.

EVIDENCE

  • Photos must be relevant. Phillips v, F.W. Woolworth Co., 867 S.W.2d 316 (Tenn. App. 1992).
  • Spoliation. Sweet v. Sisters of Providence in Washington, No. 4127 (Alaska Sept. 30, 1994).
  • Videotape of similar procedures okay for educating jury. Glassman v. St. Joseph's Hospital, 631 N.E.2d 1186 (Ill. App. Ct. 1994).
  • Dead Man Statute. See Tenn. Code Ann. § 24-1-203. Applies to parties to the action specifically testate or intestate or ward.
  • Patton v. Rose, 892 S.W.2d 410 (Tenn. App. 1994).
  • Scientific Evidence--Federal Rule: Commonwealth v. Lanigan, No. N-6505 (Mass. Nov. 18, 1994); Lawyers Weekly USA, No. 9904451.
  • Tennessee Evidence Workshop Handbook.
  • Circuit Court reverses lower court's decision to exclude evidence based upon Daubert . Joiner v. General Electric, 118 S. Ct. 512 (11th Cir. 1997).
  • Navarro v. Fugi Heavy Industries, 117 F. 3d 1027 (cert. denied). Daubert bars admissibility of expert testimony according to the 7th Circuit. The expert's affidavit must be sufficiently complete to satisfy Daubert without reliance on subsequent cross-examination or deposition of expert to fill in the gaps.
  • Ohio Supreme Court applies Daubert as a test to determine admissibility of scientific evidence. Miller v. Bike Athletic Company, 687 N.E.2d 735 (Ohio Jan. 7, 1998).
  • Prior inconsistent statements are inadmissible when proven by extrinsic evidence, unless the witness is afforded an opportunity to explain or deny the statement. See State v. Martin, 23 TAM 11-2 (Mar. 9, 1998).
  • The U.S. Supreme Court has been served with a brief to reconsider McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257 (Tenn.), on whether the federal rule, rather than the Tennessee rule, applies to the admission of scientific expert testimony.
  • Daubert does not apply to engineering training. See McKendall v. Crown Central Corp., No. 955667, 1997 WL, 448265 (9th Cir. 1997).
  • Testimony from prescribing physician is sufficient to rebutt presumption under intermediary doctrine - Woulfe v. Eli Lilly, 965 F. Supp. 1478 (E.D. Okla. 1997)(prozac opinion).
  • Daubert and non-scientific testimony. Testimony based upon observations of experience is not subject to Daubert said the 11th Circuit Court of Appeals in KUMHA Power Company v. Carmichael. A cert petition was filed March 23, 1998 in the U.S. Supreme Court to consider this issue.
  • Attorney Work Product. An attorney can waive the attorney client work product privilege by communications with experts, depending upon the facts of the case, particularly where the attorney attempts to shape the expert opinion. See Kennedy v. Baptist Memorial Hospital--Bainville, Inc., No. CV 339-S-D (N.D. Miss. Apr. 23, 1998).

EVIDENCE/COMPUTER GENERATED

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

EVIDENCE/PHOTOGRAPHS

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

EVIDENCE/SCIENTIFIC EVIDENCE

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

EVIDENCE/SPOLIATION

  • Peter S. Conley, Amy Seidman, Identifying Spoliation in the 1990s, Federal News Discovery, LRP Publications (May 1995).
  • Industrial Machinery: Injured Worker May Sue Employer in Tort for Spoliation, New Mexico High Court Says, Product Safety & Liability Reporter.

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

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

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

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

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

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

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

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

5. Medical Experts:

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

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

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

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

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

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

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

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

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

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

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

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

18. The Medical Illustration Studio.

19. Urology/Experts:
Dr. David F. Paulson, Professor of Urology, Duke University. This expert testified for the defendant in Davis v. Hatcher in Knoxville for Attorney T. Warren Butler.
William Campbell, a biomechanical engineer, testified concerning biomechanical equipment. He testified for Larry Dry of Oak Ridge in Davis v. Hatcher.
Dr. Dennis Doblar, Professof Anestheiology in biomechanical engineering at University of Alabama. He testified for the plaintiff in Davis v. Hatcher.
Dr. Cecil Morgan, Jr., a urologist in Alabama, testified for the plaintiff in Davis v. Hatcher.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

36. Expert opinion on causation--admissible under Daubert.

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

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

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

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

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

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

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

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

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

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

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

HOSPITALS & HEALTH ORGANIZATIONS

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

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

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

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

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

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

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

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

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

JURY

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

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

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

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

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

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

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


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

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

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

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

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

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


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

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

LIFE EXPECTANCY

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

LOCAL RULES
Sixth Circuit Rules.

MARKETING

http://marketing.lp.findlaw.com/newsletters.htm

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

MEDICAL BIBLIOGRAPHIES

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

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

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