David Randolph Smith David Randolph Smith Edmund J. Schmidt III
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MEDICAL MALPRACTICE

  • In Hunter v. Ura (3/29/05) the Tennessee Supreme Court held: granting the plaintiff eight peremptory challenges was harmless error; denying a motion for a mistrial after the plaintiff had cross-examined an expert witness with a prior statement was correct; allowing the plaintiff to cross-examine a defense expert witness with an alleged learned treatise was proper because there was no evidence the text was being used (not having been admitted as reliable); excluding the deposition testimony of a defense expert witness was proper; the trial court erred in remitting the jury’s verdict by $1,500,000; the trial court properly denied prejudgment interest to the plaintiff; awarding damages for the loss of consortium did not violate the defendants’ rights under the United States or Tennessee constitutions; the trial court did not err in finding that the plaintiff’s expert witness established the professional standard of care in the community in which the defendants practiced; the trial court did not err in allowing the plaintiff to introduce hearsay statements from medical literature or make arguments as to the presence or absence of medical literature; the trial court did not err in denying a motion for a mistrial or a continuance based on the unavailability of a defense expert witness; the trial court did not err in refusing to allow the defendants a credit against the jury’s verdict based on a payment received by the plaintiff under the decedent’s executive insurance plan.
  • In Mills v. Wong, (2/16/05) the Tennessee Supreme Court held that mental incompetency does not toll the statute of repose in medical malpractice actions.
  • In Harris v. Baptist Memorial Health Care Corp., 2005 WL 123455
    (Tenn.Ct.App.,Jan 21, 2005) the Court of Appeals held, consistent with Kilpatrick v. Bryant, 868 S.W.2d 594 (Tenn.1993) that Tennessee does not recognize the loss of chance theory of recovery because it is fundamentally at odds with the requisite degree of medical certitude necessary to establish a causal link between the injury of a patient and the tortious conduct of a physician.
  • In Burroughs v. Magee,118 S.W.3d 323, (Tenn., Oct 01, 2003) the Tennessee Supreme Court held a physician owed duty of care to automobile passenger and her husband to warn truck driver of possible adverse effects of Soma (a muscle relaxant) and Esgic-Plus (a barbiturate) on his ability to safely operate a motor vehicle; but (2) physician did not owe duty of care to automobile passenger and her husband in deciding whether or not to prescribe those medications to truck driver. The case is a good review of the issue of duty and forseeable harm under Tennessee law.
  • Does HIPAA Preclude Ex Parte Interviews w/ Physicians? See Bayne v. Provost, 2005 WL 469360, (N.D.N.Y. , Jan 25, 2005) In Tennessee, however, such ex parte contacts by attorneys with treating MDs are impermissble as a result of Givens v. Mullikin ex rel. Estate of McElwaney, 75 S.W.3d 383 (Tenn.,2002).
  • Five years after a major report describing an epidemic of medical errors in the U.S. health care system shocked patients, policy makers and physicians, little substantial progress has been made to make medical care safer. See Scant Progress Seen on Cutting Medical Errors (Reuters Health, 11/04/04). Observers cite a lack of money and political will needed to fund safety research and implement safeguards in hospitals and physicians' offices throughout the nation.They also point to a resistant medical culture in which doctors still balk at efforts to record errors and participate in systematic steps to solve them.The Institute of Medicine issued a report in November 1999 warning that outdated and sometimes nonexistent safety practices were causing widespread errors in pharmacies, doctors' offices and operating rooms throughout the country.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

34. Targeting the Achilles heel of podiatric medical negligence.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MENINGITIS

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

MOCK JURIES/FOCUS GROUPS
Trial (Jan. 1995).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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PERSONAL JURISDICTION

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

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

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

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

PREMISES LIABILITY

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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