David Randolph Smith David Randolph Smith Edmund J. Schmidt III
Legal Research, p. 4
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PRODUCTS LIABILITY
1. Burden of Proof in a Products Liability Case (Warranty & SL). Masters By Masters v. Rishton, 863 S.W.2d 702 (Tenn. App. 1992).

2. Continuing Duty to Warn & Post-sale Duty. Patton v. Hutchinson Wil-Rich Mfg Co., 861 P.2d 1299 (Kan. 1993).

3. Similar Complaints of Product Injury Discoverable and Admissible. Other complainants could serve as potential witnesses. Delvecchio v. General Motors, Inc., No. 5-91-0475 (Ill. App. Ct. Dec. 21, 1993).

4. Mr. Coffee fire. Vaughn v. North American Systems, (Mo. Jan. 25, 1994).

5. OSHA and ANSI standards are admissible. Hansen v, Abrasive Eng'g, Inc. 856 P.2d 625 (Or. 1993).

6. Expert turning sides against mfg'r is ok. English Feedlot, Inc., v. Norden Lab, Inc., 833 F. Supp. 1498 (D. Colo.)

7. No presumption instruction for compliance with OSHA standards. Tuggle v. Raymond, 868 S.W.2d 621 (Tenn. App. 1992).

8. Pharmacy must warn of drug dangers. Heredia v. Johnson, 827 F. Supp. 1522 (D. Nev. 1993). No duty to unforeseeable users (family members). Pittman v. Upjohn Co., 19 TAM 49-1 (Tenn. 1994).

9. Defendant can't introduce Plaintiff's negligence as proof of intervening cause. Kramer v. Raymond Corp., No. CIV 90-5026, 1993 WL 478989 (E.D. Pa. Oct. 26, 1993).

10. Post-sale duty to warn of hazards. Patton v. Wil-Rich Mfg., 861 P.2d 1299 (Kan. 1993).

11. California law. Consumer expectations test applies in heavy machinery case. Cobos v. Ray-Go Wagner, No. 91 -56196 (9th Cir. Jan 11, 1994).

12. Successor liability under de facto merger theory. Sedbrook v. Zimmerman Design Group Ltd., No. 93-2135 (Wis. Ct. App. Dec. 1, 1994).

13. Marketing activities of drug companies is very important to discover in products cases. "Mr. Mithoff [Plaintiffs' counsel] also introduced testimony from the deposition of a Dow Corning marketing executive who described the public relations effort to recruit doctors and patients who would promote the need for breast implant production." Implant Plaintiffs Reach Into Deep Pocket, National Law Journal at A8 (Jan. 23, 1995). "The plaintiff's attorneys also produced videotapes and other marketing tools that Key/Schering had reportedly used to convince doctors and pharmacists that their version of the drug was safe to use." Failure to Warn About Drug Leads to Brain Damage, Lawyers' Weekly USA at B6 (Jan. 30, 1995); Bocci v. Key Pharmaceuticals, Inc. et al., (Sept. 9, 1994).

14. Does company have a toxicology department (for Teflon® cases). Implant Plaintiffs Reach Into Deep Pocket, National Law Journal at A8 (Jan. 23, 1995).

15. Summary Judgment Improper even in Plaintiff did not read warnings. Rowson v. Kawasaki Heavy Industries, Inc., No. C-91-3054 (N.D. Iowa Oct. 24, 1994).

16. Manufacturer still liable for "reasonably foreseeable" modifications. Piper v. Bear Medical Systems, Inc., 152 Ariz. Adv. Rep. 58 (Ariz. Ct. App. Nov. 16, 1993).

17. "Unforeseeable misuse" not a bar under comparative negligence. Standard Havens Products, Inc. v. Benitez, No. 82-795 (Fla. Dec. 1, 1994).

18. Bicycle without headlight=$7 million verdict. Johnson v. Derby Cycle Corp., (N.J. Nov. 4, 1993).

19. "Crashworthiness" and proof of injuries. As long as plaintiff proves that lack of crashworthiness was a substantial factor he need not determine which injuries were caused by the defect. The burden shifts to the manufacturer to show which injuries were due to which cause. Kudlacek v. Fiat S.p.A., No. S-91-435 (Neb. Jan. 7, 1994).

20. Subsequent remedial measures admissible in products cases. McFarland v. Bruno Machinery Corp., 626 N.E.2d 659 (Ohio Feb. 16, 1994).

21. Manufacturer has duty to tell purchaser of used equipment (made in 1965) of subsequent improvements and design changes. Dixon v. Jacobsen Mfg. Co., No. A-229-91T3 (N.J. Super. Ct. App. Div. Feb. 2, 1994).

22. Limitations and continuous treatment. Caughell v. Group Health Coop. of Puget Sound, 124 Wash. 2d 217 (Wash. July 21, 1994)(woman allowed to sue for 20 years of valium use as long as she sued three years from date of last prescription).

23. Statue of repose runs from date of sale to consumer. Pafford v. Biomet, No. S94G0154 (Ga. Nov. 19, 1994).

24. Jury should determine whether pool manufacturer owed duty to warn against danger of above-ground pool. A duty to warn analysis looks at whether an ordinary person would be aware of the danger posed by the product. Where the plaintiff is a child, the standard is that of a reasonable child of the same age. Klen v. Asahi Pool, Inc., No. 1-92-1513 (Ill. App. Ct. Dec. 2, 1994).

25. Implied warranty and strict liability cases are different theories. See Denny v. Ford Motor Co., 146 F.R.D. 52 (D. NY. 1993).

26. Joint and several liability applies to all in the distribution chain. Owens v. Truckstops of America, 21 TAM 6-1 (Jan. 29, 1996).

27. 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).

28. Component part manufacturer not required to warn of risk using his product in a finish system. Schaffer v. Ala Smith Harvestor Products, No. 94-3546 (6th Cir. Feb. 6, 1996).

29. The ANSI Committee is in the process of updating standards for warning labels, signs and symbols. They are to be distributed in early September for a committee vote and a 90-day public comment. J. Paul Frantz, Ph.D.

30. Jury should have been told that they could infer that the plaintiff would have heeded adequate warnings about machine's dangers. Facendo v. S.M.S. Concast, Inc., 670 A.2d 44 (N.J. Super. Ct. App. Div. 1996)

31. Asbestos: Plaintiff's expert testimony that exposure to asbestos caused the plaintiff's decedent's colon cancer. In re Joint E. & S.E. Districts Asbestos Litigation, 78 F.3d 764 (1995).

32. Bendectin: Summary judgment granted to manufacturer; Plaintiffs' proof inadmissable under Daubert. Wilson v. Merrell Dow Pharmaceuticals, Inc., 160 F.3d 625 (10th Cir. 1998).

33. Bendectin: Evidence insufficient on causation in Oklahoma Bendectin case. Wilson v. Merrell Dow Pharmaceuticals, Inc., 160 F.3d 625 (10th Cir. 1998).

34. Supreme Court okays 'medical device' suits. Medtronic, Inc. v Lohr, No. 95-754 (U.S. June 26, 1996).

35. Wet concrete: Chemical burns: Failure to adequately warn inexperienced users of caustic danger: Scarring: Verdict. Dickson v. Maschmeyer Concrete Co. - NO CITATION

36. Retail customer brought tort and contract action against exterminator and manufacturer of subterranean termite-control pesticide, seeking to recover for termite damage allegedly caused by ineffective pesticide. Lynn E. Wadlington v. Miles, Inc., et al., No. 02A01-9408-CV00180, 1995 WL 70279 (Tenn. App. Nov. 28, 1995).

37. Products liability statute provides for two distinct tests, consumer expectation test and prudent manufacturer test; prudent manufacturer test requires risk-utility balancing in its application.

38. 'Statute of Repose' for products liability is avoided by suing in manufacturer's state. Gantes v. Kason Corp., No. A-31-95 (N.J. July 23, 1996); Lawyers Weekly USA, No. 9908805 (44 pages).

39. Denial of plaintiff's motions for judgment as matter of law and for new trial are affirmed following products liability judgment in favor of defendant. Powers v. Bayliner Marine Corp., No. 94-2035 (6th Cir.).

40. Child falls off swing; city sued for lack of 'cushioning' under it. Schabel v. Deer Valley Unified School District, No. 97-220 Ariz. Adv. Rep. 59 (Ariz. Ct. App. July 9, 1996); Lawyers Weekly USA, No. 9908720 (15 pages).

41. A trial judge who directed a verdict for product liability defendants should also have granted the defendants' motion for sanctions and costs under the offer of judgment rule, the state Court of Appeals has rules. Auto Club Insurance Association v. General Motors Corporation, et al., Michigan Lawyers Weekly, No. 25460.

42. "Risk-utility" analysis now premitted in many products liability cases. Ray v. BIC Corp., 21 TAM 30-1 (Tenn. July 15, 1996)(opinion by White).

43. Ohio court allows product liability suit against hospital as medical device supplier. Saylor v. Providence Hospital, No. C-950413 (Ohio Ct. App. July 24, 1996).

44. Federal trial court dismisses claims by man whose eye was injured in 'war game'. Lotti v. Benjamin Sheridan Corp., No. 1:95-CV-522-FMH (July 17, 1996).

45. Products liability law undergoing change in Tennessee. Tennessee Attorney's Memorandum, Vol. 21 (No. 34 Aug. 19, 1996).

46. WILLIAM H. HARDIE, Use of Product Warning Labels as a Reminder, Product Safety and Liability Reporter, No. 0092-7732 (1996).

47. Tennessee Law Provides Risk/Utility Test, Consumer Expectations Test. Ray v. BIC Corp., No. 93-6105 (Tenn. July 15, 1996).

48. The Successor Corporation's Continuing Duty to Warn, Bureau Of National Affairs, Inc., No. 0092-7732 (1995).

49. Elsevier, Explicitness of Consequence Information in Warnings, Safety Science at 507-613 (1993).

50. Scare Tactics: Motivating Warning Compliance, Product Safety and Liability Reporter, No. 0092/7732 (1995).

51. Mealey's Daubert Report

52. Duty to Warn: Oral contraceptives: no explicit warnings. See Gurski v. Wyeth Ayerst Division of Ameican Home Products, No. 94-30145-MAP (Dist. Ct. Mass. Jan. 3, 1997); Product Liability Reporter, Vol. 25 at 104 (No. 5 1997).

53. Prior Notice - Admission of prior complaint correct to show prior notice. Hawks v. EPI Products USA, Inc., 923 P.2d 988 (Idaho 1996).

54. "Household Products" - Testimony about prior complaint of infection hazard from depilatory device was admissible to show notice. Hawks v. EPI Prods. USA, Inc., 923 P.2d 988 (Idaho 1996).

55. Successor of corporation liable under product line exception if it agreed to assume the liability; the corporate transfer results in a consolidation and merger; if there is a continuation of the transfer or corporation, or the transfer is designed fraudently to avoid liability. The court identified an additional exception where a corporate successor continues to market the same products and represents that it is continuing the predecessor's enterprise. The exception applies where 1) the successor has the same ability as its predecessor to assess, control and distribute the risk and cost of injury from a defect, and 2) disability is not outweighed by the need to promote alien ability of corporate assets. See Garcia v. Coe Manufacturing Co., (N.M. Jan. 28, 1997).

56. Foreseeable Changes - In Belac v. Hayssen Manufacturing Co., No. 96 2142 (8th Cir. Jan. 27, 1997), the 8th Circuit held that a manufacturer can be held liable for failing to warn if it is foreseeable that users could make unsafe modifications to its equipment. The issue is for the jury to decide.

57. Establish whether the defendant ever investigated or evaluted the safety or crash-worthiness of the device. Establish whether the manufacturer tried to determine if removal of the device and substitution created a serious risk of roll over or injury. For an article on converted vans and liability see Trial (Feb. 1997).

58. Expert improperly allowed to present comparison evidence on products that were substantially different or sold at a later time. Brock v. Caterpillar, Inc., 94 F.3d 220 (6th Cir. 1996). Sixth Circuit Court of Appeals held that the plaintiff's expert in a products liability action should not have been permitted to present evidence comparing the braking systems in the different bulldozer models with braking systems in the bulldozer that injured plaintiff. Later changes in another model may be tenuously relevant but such relevance does not weigh by the prejudicial effect because of disimilarity among the bulldozers compared.

59. Evidence of similar accidents is admissible to prove the product was unsafe, to prove causation and/or to show that the defendant had actual or constructive knowledge of the condition that could cause harm. In addition, the absence of accidents is admissible. See Spino v. John S. Tilley Ladder Co., (Pa. June 17, 1997).

60. Testimony about prior complaint of infection hazard from depilatory device was admissible to show notice. Hawks v. EPI Prods. USA, Inc., 923 P.2d 988 (Idaho 1996).

61. Evenflo Joy Ride-Infant Car Seat/Carrier Instructions

62. Manufacturer is liable for failure to warn of a danger that is known or reasonably scientifically knowable. Harlan v. Superior Court, 920 P.2d 1347 (Ca. 1996).

63. Eight Circuit excludes testimony of expert for failing to prove safer alternative exists. Dancy v. Heister Co., No. 97-1-42 (8th Cir. Sept. 25, 1997).

64. 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. Navarro v. Fugi Heavy Industries, 117 F. 3d 1027, cert. denied, 66 U.S.L.W. 3397.

65. Successor liability - no successor liability where product manufactured after date company sold product line. See Carson v. Agri-Products Special Markets, Inc., 23 TAM 13-12 (Feb. 13, 1998).

66. In Class v. American Roller Die Corp., 1998 WL 32523 (N.J. Super. Ct. App. Div. Jan. 30, 1998), the Appellate Court held that successor corporations could be liable under the product line exception because the general rule of non-liability of successor corporations does not apply if the successor corporation benefits from trading the product line on the name of the predecessor and it takes advantage of the predecessor's accumulative goodwill, business reputation and established customers. Products Liability Advisor (Mar. 1998).

67. The United States Supreme Court denied certiori in the following products liability cases: a.Under Georgia law a plaintiff could sue a seatbelt manufacturer for design defect absence of lap belt even though Volkswagen Jetta otherwise complied with federal motor vehicle safety standards requiring shoulder belt and knee bolsters. Dole v. Volkswagen of America, Inc., 111 F.3d 1134 (11th Cir.). b.State common law -- strict liability -- negligence -- mislabeling -- misbranding -- adulteration, fraud and implied warranty claims against manufacturer of collagen based products are preempted by the medical device amendments to the Food, Drug & Cosmetic Act to the extent the imposed requirements differed from or are in addition to the MDA's pre-market approval process. Mitchell v. Collagen Corp., 126 F.3d 902 (_).

68. Off-label use of a drug, promotion of off-label use of drugs supports a claim for punitive damages against the manufacturer (adverse effects of periocular use of cortico steroid). Proctor v. Davis, 682 N.E.2d 1203 (Ill. App. Ct. 1997).

69. Plaintiff's contention that Daubert doesn't apply if the expert doesn't plan to rely on scientific principles or methods was expressly rejected by the 8th Circuit in Peitzmeier v. Hennessy Industries, Inc., 97 F.2d 293 (8th Cir.).

70. 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, 950 S.W.2d 816 (Ky.), cert. denied, 66 U.S.L.W. 3590 (1997).

71. The 7th Circuit Court of Appeals, following the 9th Circuit, held that the Court's simple product that poses an obvious danger applies only to the consumer expectation test and not the risk utility test. See Haddix v. Playtex Family Products Corp., No. 97-2074 (Mar. 6, 1998); Papike v. Tambrands, 107 F.3d 737 (9th Cir. 1997).

72. Even if a danger is open and obvious, the plaintiff may still go forward on a risk utility, reasonably prudent manufacturer test. See Rutherford v. Polar Tank Trailer, Inc., No. 03A01-0709-CV00391, 1998 WL 110429 (Tenn. App. Nov. 3, 1998).

73. General Electric v. Joiner, 66 U.S.L.W. 4036 (U.S. 1997); Schudel v. General Electric, No. 97-1382, 120 F.3d 991 (9th Cir. 1998)(expert testimony on causation).

74. Sophisticated user doctrine bars suit over cleaning solvent. Under Section 388 of the Restatement Second of Torts a manufacturer can reasonably rely on a downstream purchaser of the product to provide warning information. See Midway Specialties, Inc. v. Crown Industrial Products Co., No. 96-4273 (6th Cir. Mar. 4, 1998).

75. Fertilizer product manufacturer is not liable for World Trade Center bombing. Port Authority of New York and New Jersey v. Arcadin Corp., 1997 WL 816103 (Dist. Ct. N.J.).

76. Implied preemption of state law claim over negligent seatbelt design because regulation promulgated pursuant to the National Traffic Motor Vehicle & Safety Act allowed manufacturers the option of automatic shoulder belts combined with manual lap belts. See Irving v. Mazda Motor Corp., 136 F.3d 764 (__).

77. Design/defect risk utility test. The heart of the analysis is whether an alternative design exists. See Timmons v. Ford Motor Co., 982 F. Supp. 1475 (Dist. Ct. Ga. 1997); Banks v. ICI Americas, Inc., 264 Ga. 732, 737, 450 S.E.2d 671 (Ga. 1994) (alternative designs are not the sole factor). Factors to consider include the danger posed by the design; the state of the art at the time of the manufacture and compliance with governmental standards; feasibility of alternative designs; and the financial cost of improved designs. It depends on the facts of each case.

78. Compliance with federal motor vehicle safety standards is not conclusive on the issue of liability. See Dole v. Volkswagen, 267 Ga. 574, 481 S.E.2d 518 (1997).

79. Judgment for plaintiff in products liability suit when plaintiff failed to prove existence of defect in solonoid switch of truck, causing fire. R. S. Reed & Sons, Inc. v. Freightliner, 23 TAM 17-12 (Mar. 11, 1998).

80. 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).

81. New Jersey Court says no expert required on warning claim. Remands for new trial. See Ridenour v. Batem Out, No. A-2988-96T3 (N.J. Super. Ct. App. Div. Apr. 14, 1998).

82. Employers alteration proper. Issue with respect to causation questions. Snyder v. LTG, 955 S.W.2d 252 (__).

83. Federal Boat Safety Act. See Lewis v. Brunswick Corp., 118 S. Ct. 439, 107 F.2d 1494 (11th Cir.).

84. Manufacturer may be sued in a crash-worthiness case even though the valve isn't found in any other car on the road. See Binakonsky v. Ford Motor Co., 929 F. Supp. 915 (D. Md. 1996).

85. When an insurance company interviews the physician to obtain information about the claim, Massachusetts courts have held that this conversation is not protected by the attorney/client privilege because there was no showing of an agency relationship between the law firm and the insuror. See Grover v. Rand, (Mass.). Marit Parker Boston for the Plaintiff. Published Medical Malpractice Verdicts, Settlement & Experts at 21 (Mar. 1998)

PROSECUTION
Tenn. R. Civ. P. § 41.02 (unless otherwise provided by trial judge, involuntary dismissal for want of prosecution operates as an adjudication on the merits)..

PROXIMATE CAUSE
1. Proximate cause instruction inappropriate. "...if you decide that the sole proximate cause of injury to the plaintiff was the conduct of some person other than the defendant, then your verdict should be for the defendant." Freeman By and Through Freeman v. Petroff, 656 N.E.2d 453 (Ill. App. Ct. 1995).

2. Test is whether the tortfeasor's conduct was a substantial factor in bringing about the harm. McClenahan v. Cooley, 806 S.W.2d 767 (Tenn. 1991). 3. See Waste Management, Inc. v. South Central Bell Telephone, 22 TAM 12-13 (holding that intervening cause finding makes comparison of fault unnecessary)


PSYCHOTHERAPIST PRIVILEGE
The Colorado Supreme Court has ruled that generic claims for damages for emotional distress incident to physical injuries do not impliedly waive a statutory physician/patient and psychotherapist privilege. Johnson v. Trujillo, No. 98SA451 (Co. May 10, 1999).

PUNITIVE DAMAGES
1. Vaughn v. Park Healthcare Co., 20 TAM 1-9 (Tenn. App. Dec. 7, 1994) (punitive damages reserved only for "the most egregious of wrongs). Hodges v. S.C. Toof, 833 S.W.2d 896 (Tenn. 1992).

2. Jury can't be told of treble damages. HBE Leasing Corp. v. Frank, No. 93-7085 (2nd Cir. Apr. 13, 1995).

3. Not taxable. Horton v. Commissioner, No. 93-1928 (6th Cir. Aug. 29, 1994).

4. Punitive damages justified where a nursing home was consciously indifferent to the risk of harm created by the treatment of a bed sore. Convalescent Services, Inc. v. Schultz, 921 S.W.2d 731 (Tex. Civ. App. 1996).

5. Successor corporations' liabile for punitive damages. ???, No. 97-1459 (Cal. Ct. App. Aug. 12, 1997). Question presented: Under what circumstances consistent with the Fourteenth Amendment's due process clause may a successor corporation be held liable for punitive damages based solely upon the conduct of a predecessor corporation without proof of any independent wrongdoing by the successor. Petition for certiorari was filed February 10, 1998 by Kevin J. Dunne of Baker, Moran, Jenkins & Sedgewick, Debtor: Moran and Arnold, all of Oklahoma City, and Shook, Hardy & Bacon.

6. See Tschira v. Willingham, 1998 WL 37139 (6th Cir.)(1.4 million dollar punitive damages verdict upheld).
QUININE 1. Henry Hobhouse, Seeds of Change.

RESTATEMENT (THIRD) OF TORTS
1. Section 11 - Causation--product defect is determined by prevailing rules and principles of causation in tort. General tort rules for cause in fact or proximate cause; issues involving plaintiff's misuse or to be involved under causation principles under comparative fault.

2. Section 13 -- Appointment of Liability Among Defendants creates plaintiff's comparative fault, which is consistent with Tennessee law under Gray.

3. Section 14 -- disclaimers, waivers, limitations and contract-based defenses rules that disclaimers are invalid for personal injury in a products liability case.

4. Section 15 - Successor Liability -- liability of successor for harm caused by products sold commercially by predecessor holds that the successor is not liable unless the acquisition: a) involves all or substantially all of the assets of the predecessor; b) is followed by disillusion, discharge and bankruptcy or reorganization of the predecessor so as to prevent the tort claim from having an effective remedy against the predecessor and c) is accompanied by an agreement for the successor to assume such liability; or constitutes a consolidation or merger or; results in a successor becoming a continuation of the predecessor or; is a fraudulent conveyance to escape liability for the debts of the predecessor.

5. Section 16 -- Selling or distributing as one's own a product manufactured by the other. This is the Muntean case which basically states that the liability is just as if the seller had manufactured the product himself.

6. Section 17 -- Liability of commercial seller for harm caused by misrepresentation. The seller can be liable for misrepresentations in the sale of the product under Section 402(b). Without regard to fraud, the only question is whether the consumer justifiably relied upon the misrepresentation.

7. The final three sections, 18, 19 and 20, all concern post-sale conduct resulting in injury.

8. Section 18 -- Liability of commercial seller or distributor for harm caused by failure to warn after the time of sale provides that the seller is liable for failing to provide post-sale warnings when a reasonable person in the seller's position would provide such a warning, thus adopting a pure negligence test.

9. Section 19 -- Liability of successor for harm caused by successor's failure to warn after the time of sale by the predecesssor.

10. Section 20 -- Liability of commercial product, seller or other distributor for harm caused by failure to recall product after sale. See Product Liability Advisor (June 1996). SANCTIONS 1. Party must be given an opportunity to correct. Fed. R. Civ. P. 11 (amended); Thomas v. Treasury Mgt. Assoc., Inc., No. PJM-92-3409 (D. Md. Nov. 3, 1994). 2. The court may assess the costs and expenses of a party's expert witness. See Boult v. Owens-Illinois, 20 TAM 2516 (ES May 20, 1995).

SEAT BELTS
Bailey v. City of Norris, 20 TAM 4-8 (Tenn. App. Dec. 28, 1994); Tenn. Code Ann. § 55-9-604 is not admissible.

SERVICE OF PROCESS
In filing to toll the statute, service must be returned within thirty (30) days of issuance, or process must be reissued within six (6) months. See Tenn. R. Civ. P. Rules 3 and 4; First Tennessee Bank of North America v. Daugherty, 22 TAM 34-22 (Tenn. App. July 25, 1997).

SETTLEMENT
1. Settlement Agreement may preclude the non-settling defendant from using expert testimony of settling defendant. Wolt v. Sherwood, 828 F. Supp. 1562 (D. Utah 1993).

2. A plaintiff can specify in a settlement agreement that the plaintiff is waiving joint and several liability and is going after the other defendants only for their share of the fault, thereby defeating the remaining defendants' right to contribution. See Herstam v. Deloitte & Touche, 214 Az. Adv. Rept (Ariz Ct. App. Apr. 11, 1996).

3. Even though the plaintiff's jury verdict was less than the defendant's settlement offer, she may still recover her costs and attorney's fees. The Poole v. Miller case clarifies that "judgment" means more than just the verdict; it includes attorney's fees, interest and costs awarded by the trial judge. North Carolina Lawyers Weekly, No. 5-06-1797.

4. Plaintiff 'guarantees' defendant won't be sued for contribution. Arizona Court of Appeals. Herstam v. Deloitte & Touche, 214 Az. Adv. Rept (Ariz Ct. App. Apr. 11, 1996).

5. Merger & Integration, Mealey's Litigation Reports, Vol. 1 (ed. 1 Jan. 8, 1996).

6. Innovative Ways to Settle a Case: Ideas That Can Help Your Clients, Lawyers Weekly USA (June 1995).

7. Products Liability/Consumer Law: Out-of Court Resolution of Product Liability Claims, Journal of the Kansas Trial Lawyers Association.

8. Brian P. Loper, Structured Settlements, Ringler Associates Inc.

9. Structured Settlements: Tax on Damages is Causing Big Headaches for Plaintiffs' Lawyers, Lawyers Weekly USA (Jan. 27, 1997).

10. Structured Settlements: Woodbridge Sterling.

11. Special Needs Trust. See Paine Webber, 1-800-242-7526. Ken Horowitz, Director of Trust Development, Personal Trust Services.

12. Physicians for Quality, 1-800-284-3627.

SLIP OPINIONS
Lawyer's Weekly USA, 1-800-993-5594 STANDARDS 1. U.S. Organizations Represented in the Collection of Voluntary Standards, __ (Jan. 1988).

STATUTE OF LIMITATIONS
1. Personal injury cause of action begins to run when plaintiff knows, or in the exercise of reasonable diligence, should have known that an actionable injury has occurred. An actionable injury is one caused by the breach of a legally recognized duty and one that results in legally cognizable injury. Knowledge that an actual injury has occurred does not require absolute knowledge of the particulars of the injury. Medical certainty to diagnosis and treat and legal certainty to file a lawsuit are different. What the plaintiff must know is the general cause and results of the tort. Therefore, the plaintiff must know what the real diagnosis is. See Wyatt v. A-Best Company, 910 S.W.2d 851 (Tenn. 1985).

2. In filing to toll the statute, service must be returned within thirty (30) days of issuance, or process must be reissued within six (6) months. See Tenn. R. Civ. P. Rule 3, 4; First Tennessee Bank of North America v. Daugherty, 22 TAM 34 22 (Ct. App. July 25, 1997).

3. Physicians' misrepresentations tolled the running of the statute of limitations. Oxley v. Kilpatrick, 486 S.E.2d 44 (Ga. Ct. App. 1997).

SUBROGATION
1. Auto insurer not entitled to subrogate medical expenses recovered from third party. Violates public policy. Youngblood v. American States Insurance Co., No. 93-225 (Mont. Dec. 14, 1994).

2. In Blue Cross & Blue Shield of Tennessee v. Christopher, 20 T.A.M. 19 10 (ES Apr. 19, 1995), the Court held that an insurer who paid medical expenses under a medical insurance plan was not entitled to enforce its right of subrogation when the insured, without notice of a right of subrogation, entered into a settlement with the tortfeasors' insurer, which did not make the insurer whole.

3. Hudson v. Hudson Municipal Contractors, Inc., 20 TAM 18-2 (Apr. 24, 1995)(worker's compensation insurance carrier not entitled to subrogation against proceeds of settlement between deceased worker's personal representative and uninsured motorist carrier).

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

5. 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).

6. ERISA preemption. Made hold doctrine. State subrogation law was not preempted in Alabama, Blue Cross & Blue Shield of Alabama v. Fondren, 966 F. Supp. 1093 (Dist. Ct. Ala. 1997).

SUMMARY JUDGMENT
1. Burden of moving party and standards. Masters By Masters v. Rishton, 863 S.W.2d 702 (Tenn. App. 1992).

2. Inconsistent statements don't necessarily cancel out if there is an adequate explanation for the inconsistency. Reeder v. Baptist Hospital, 20 TAM 1-8 (Tenn. App. Dec. 7, 1994); Bryant v. Gill, 20 TAM 4-9 (Tenn. App. Dec. 22, 1994).

3. Affidavit must establish that appropriate professional standard also requires (at times) establishing that the occurrence which caused the plaintiff's death was foreseeable and that appropriate professional practice standard mandated further action and effort to protect injury. See Moon v. St. Thomas Hospital, 22 TAM 21-12 (Apr. 25, 1997).

SUBPOENA Regarding subpoena of medical records:
1. A hospital custodian may comply with a subpoena duces tecum to produce records within five (5) days of being served. See Tenn. Code Ann. § 86-11 403. A copy shall be filed with the Clerk if the subpoena directs appearance in court; the requesting lawyer if a deposition; or the hearing officer. Tenn. Code Ann. § 68 11-403. Copies must be accompanied by an affidavit of the custodian stating:
1) the affiant is the authorized custodian of the records and has the authority to certify them;
2) the copies are true copies of all records described in the subpoena;
3) the records are prepared by the personnel of the hospital and facility in the ordinary course of business at or near the time of the act, condition or event reported therein; and 4) the hospital's reasonable charges for furnishing the copies. Tenn. Code Ann. § 68-11-405. The copies are placed in an envelope and sealed. The style of the action and the docket number and name of the witness and date of the subpeona shall be written on the inner envelope. The inner envelope should then be placed in an outer envelope and mailed or delivered to the appropriate location. Tenn. Code Ann. § 68-11-403.

2. The copy shall remain sealed and shall be opened only at the time of the trial, deposition or hearing upon the direction of the presiding officer or in the presence of all parties. Before directing the opening of the inner envelope, the presiding officer shall first ascertain either
1) the records have been subpoened at the insistence of the patient involved or the patient's counsel of record;
2) the patient or other authorized person has consented to the opening and waived any confidentiality involved; or
3) the records have been subpoenaed in a criminal proceeding. Tenn. Code Ann. § 68-11-404. This procedure may be waived if the defense furnishes a copy of the records to the plaintiff. Tenn. Code Ann. § 68-11 404(b). There is no provision in the statute for the plaintiff furnishing copies to the defense and waiving a procedure.

3. If the party seeks to introduce the medical records into evidence a copy of the subpoena must be furnished to opposing counsel not less than ten (10) days prior to trial.

TOBACCO
FDA Regulation. BNA 3/4/94, P. 213. 2. Louisiana Liability Verdict: Covert v. Lorillard, Inc., No.87-0131 (DC MLA, Jan. 27, 1994)

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