Personal Injury Law

Rule of the Week - T.R.E. Rule 104(a)

Posted on November 17, 2009
Rule 104 of the Tennessee Rules of Evidence permits the trial judge significant leeway in what may be considered in determining what evidence can be admitted at trial.  It provides as follows: Rule 104. Preliminary questions. —(a) Questions of Admissibility Generally...

Party Planning For Tort Lawyers

Posted on November 16, 2009
Here are the first few paragraphs of an article that I wrote for the November 2009 edition of the Tennessee Bar Journal titled "Party Planning for Tort Lawyers."  Rest the rest of the article (and the footnotes) here. Litigation in a world of comparative fault and several liability involves party planning...

Justice Programs Seminar in Nashville on November 19 and 20

Posted on November 15, 2009
Former Justice Penny White, former Judge Joe Riley and I are presenting our annual seminar program for civil trial lawyers in Nashville this week.  Learn more and register here.

Inflatable Seat Belts?

Posted on November 13, 2009
Ford Motor Company has announced that  is bringing to market the world's first automotive inflatable seat belts, combining attributes of traditional seat belts and air bags to provide an added level of crash safety protection for rear seat occupants...

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Tort Cases Pending Before the Tennessee Supreme Court

Posted on November 11, 2009
F. Chris Cawood v. Linda Booth, et al., E2007-02537-SC-R11-CV,  (Tenn. Ct. App. Nov. 25, 2008) has a set of facts you don't run into every day or, at least, I hope you don't run into everyday.   Here is the description of the case from the opinion of the Tennessee Court of Appeals...

Motorcycle Deaths and Injuries

Posted on November 11, 2009
The National Highway Traffic Safety Administration (NHTSA) recently released a report titled "Motorcycle Helmet Use and Head and Facial Injuries."  The Report has a lot of data on motorcycle crashes and the injuries the result, comparing the injuries received by those wearing helmets and those that do not...

Seat Belt Use Continues to Increase

Posted on November 10, 2009
The use of seat belts continues to increase in the United States. Seat belt use in 2009 stood at 84 percent, a gain from 83 percent use in 2008. This result is from the National Occupant Protection Use Survey (NOPUS) which is the only survey that provides nationwide probability-based observed data on seat belt use in the United States...

Thoughts About Subrogation

Posted on November 09, 2009
A defense lawyer and I were having a drink the other day and he told me that from time to time he has difficulty getting cases settled at mediation because plaintiff's lawyers don't have information about subrogation interests.  Here are some tips to avoid such problems: At the initial client meeting, as you help you client understand his or her rights and go through the outline of the types of damages he or she can recover if the case is successful, explain the law of subrogation...

Rule of the Week - T.R.C.P 8.03

Posted on September 30, 2009
There are numerous differences in the state rules of civil procedure and the federal rules of civil procedure.  For example, Tennessee Rule 8.03 is different than F.R.C.P. Rule 8(c) because it requires a defendant who pleads an affirmative defense to set forth facts that form the basis of the defense...

New Tennessee Supreme Court Opinion on Comparative Fault

Posted on September 30, 2009
The Tennessee Supreme Court has ruled that a plaintiff who lost a medical malpractice case in federal court was not estopped from pursing a case against a State-employed doctor even though the federal court jury assigned no fault to the doctor, a non-party in the federal court action...

Tennessee Supreme Court Issues Proposed Rules for Public Comment

Posted on September 29, 2009
The Tennessee Supreme Court has asked for public comment on proposed changes to the rules of procedure and evidence.  The Order asking for public comment can be viewed here.   I serve on the Court's Advisory Commission on the Rules of Practice and Procedure and I am happy to report that the Court has accepted (at least for purposes of public comment) each of the rule changes proposed by the Commission...

Effective Phone and Video-Conference Depositions

Posted on September 28, 2009
Fred Fresard, author of the Litigation Cost Control blog, has written three great posts on the steps to effective phone and video-conference depositions.  As Fred explains, "the suitability of a deponent for remote examination depends on the importance of the witness to the ultimate outcome of the case, and the potential length and complexity of their testimony...

Washington State Struck the Certificate of Merit - and an Editorial Board Supports the Decision

Posted on September 28, 2009
I recently wrote this post about the certificate of merit law struck down by the Washington Supreme Court.  Here is an editorial from The Olympian  which supports the Court's decision. Here is an excerpt: The justices were right to keep the barrier between the legislative and judicial branches of government...

Letter to the Tennessee Supreme Court

Posted on September 27, 2009
 The Tennessee Supreme Court has published a proposed re-draft of Rule 27, the rule which addresses the process of judical evaluation.  Set forth below is my letter to the Court that addresses one phrase in the proposed rule.  NOTE:  this letter was written in my individual capacity and not as Chair of the Tennessee Judical Performance Evaluation Commission...

Electric Cars and Changes in Car Accident Litigation

Posted on September 25, 2009
As this article in Wednesday's Washington Post explains, electric cars present a new type of hazard to pedestrians and those with impaired sight:  you can't hear them coming.   At low speeds (under 6.2 MPH)  the cars can literally sneak up on you and put you at risk of serious injury...

Op-ed By Anthony Tarricone, AAJ President

Posted on September 25, 2009
Here is an op-ed from today's Politico titled "Putting Trial Lawyers out of Business." August was quite the month in the ongoing health care saga. Death panels. Scaring seniors. Angry mobs discovering new villains to blame for the terrible health care system we find ourselves having to fix today...

Lawsuit By Coyote Ugly Bar Patron

Posted on September 24, 2009
A former patron at the Coyote Ugly Saloon in Nashville has sued the entity, claiming she was injured when she fell off a slippery bar.   She claims that the bar surface should have been kept dry (and therefore safe) because she was invited to dance on it by employees...

Rule of the Week - T.R.C.P. 37.03(1)

Posted on September 23, 2009
Rule 37.03(1) of the Tennessee Rules of Civil Procedure is the rule that provides for sanctions for the failure to provide complete answers to interrogatories and other discovery.  Here is the text of the rule:   A party who without substantial justification fails to supplement or amend responses to discovery requests as required by Rule 26...

Bologna Sandwich Case - More Than Meats the Eye

Posted on September 22, 2009
For decades people have spread false or half-true stories about lawsuits.  Here is the latest one I heard the other day on a talk radio show: A prisoner filed a $3M lawsuit alleging that a prison guard forced him to rub his bologna sandwich on his (the prisoner's) penis and then forced the prisoner to eat it...

Tennesse Law of Comparative Fault - Third Edition

Posted on September 21, 2009
Do you have a question about comparative fault law in Tennessee?  Or the interaction between comparative fault law and civil procedure?  If so, you may wish to consult Tennessee Law of Comparative Fault. Donald Capparella and I wrote the original edition of the book, and John Wood joined us for the second and third editions...

President Orders Tort Reform Tests

Posted on September 18, 2009
President Obama announced yesterday  that the government will set aside $25 million to support state grants for pilot programs to reduce medical malpractice lawsuits.   ABC News describes the grant process  this way: The Department of Health and Human Services will oversee the process for states to launch and test initiatives that meet the following parameters:   • Put patient safety first and work to reduce preventable injuries;  • Foster better communication between doctors and their patients;  • Ensure that patients are compensated in a fair and timely manner for medical  injuries, while also reducing the incidence of frivolous lawsuits; and  • Reduce liability premiums...

Georgia Supreme Court Considers Constitutionality of Damages Cap in Medical Malpractice Cases

Posted on September 17, 2009
The Georgia Legislature imposed a cap on noneconomic damages in meritorious medical malpractice cases in 2005.   The cap is $350,000.   In a case tried in Fulton County several years ago, the jury's verdict exceeded the cap, and the Georgia Supreme Court is now considering whether the cap is constitutional...

Washington Certificate of Merit Struck Down

Posted on September 17, 2009
The Washington Supreme Court has struck down the filing of a certificate of merit in medical malpractice cases in Washington state.   The certificate is required by RCW 7.70.150. The opinion said that the statute was unconstitutional because it violated the separation of powers between the Legislature and the Judiciary and it denied medical malpractice victims equal access to the courts...

Food Safety News

Posted on September 16, 2009
Food Safety News is a new publication sponsored by food safety expert Bill Marler and his firm Marler Clark.  It contains  information on the food safety issues of the day, whether they pertain to foodborne illness outbreaks, recalled products, or food politics...

Fosamax Products Liability Case Ends in Mistrial

Posted on September 15, 2009
Florida AP reports that a federal judge declared a mistrial last Friday in a trial over whether Merck & Co.'s former blockbuster osteoporosis drug, Fosamax, causes painful jaw bone destruction.  The trial, which is the first of many concerning Fosamax,  started Aug...

Products Liability Case Settled

Posted on September 14, 2009
A settlement has been reached in Mohr v. Daimler Chrysler Corp., a products liability case which alleged defects in a 2000 Dodge Caravan. The Court of Appeals affirmed almost $5,000,000 in compensatory damage awards for the death of the driver and front-seat passenger in the case...

Scehduling Orders: Deadlines for Alleging Fault Against Nonparties

Posted on September 14, 2009
        Scheduling orders are wonderful tools that are often overlooked by far too many plaintiff's lawyers. One of the most important deadlines to put in a scheduling order is a deadline by which the defendant must allege the fault of a person not a party to the action...

Justice Programs Seminar 2009

Posted on September 13, 2009
 Penny White, Joe Riley and I are on the road again this Fall for the 2009 Justice Programs seminars.  This two-day,  15-hour is designed for Tennessee lawyers who do civil litigation and who are looking for substantive continuing legal education that will help them better serve their clients...

Iqbal / Twombly: The Death of Notice Pleading

Posted on September 12, 2009
If you don't understand the title of this post, you will want to log into the seminar that goes by the same name that is sponsored by AAJ.   This seminar, exclusively for plaintiff's lawyers, will analyze the USSC decisions in these important cases and explain how they will impact your practice...

Medical Malpractice Reform: Survey Manipulation

Posted on September 11, 2009
Max Kennerly has done it again.  Read this post on theLItigation and Trial blog which looks behind the allegatioin that the American people support medical malpractice reform.  Before you do,  read the following: DO YOU AGREE OR DISAGREE WITH THIS STATEMENT: As part of any health care reform plan, Congress needs to change the medical malpractice system so that cases are resolved quicker, and more reliably, on behalf of those who are in the right...

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