Personal Injury Law

Medicare Subrogation in Wrongful Death Cases

Posted on February 10, 2009
From time to time I will see a question posted on the trial lawyers' listserve asking whether Medicare has a subrogation interest in wrongful death proceeds.  The answer is "yes," and this opinion helps explain why. Tennessee wrongful death law permits the recovery of medical expenses incurred between the injury caused by negligence and the death...

Thought-Provoking Article

Posted on February 09, 2009
Today's  USA TODAY includes an interesting article titled "How much 'truth' is too much?" written by Rod Dreher.  The article addresses the impact of the Roman Catholic Church's sex abuse sandal on the life of the author, who investigated and wrote about it...

More of "Ruining a Deposition"

Posted on February 06, 2009
Here is Part 2 of Evan Shaeffer's post called "15 Ways to Ruin a Deposition."  Evan writes "The Trial Practice Tips Weblog" and "The Legal Underground."   Here is Part 1.

Lawyer Medical Malpractice Reports Due March 2

Posted on February 04, 2009
The Tennessee Medical Malpractice Reporting Act found at Tenn. Code Ann. §§ 56-54-101, et seq. went into effect on January 1, 2009 and replaced statutes regarding similar previous reporting requirements.   Bold the old and new statute require that lawyers report all medical malpractice settlements and judgments obtained in calender year 2008...

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Invasion of Privacy - Wife vs. Husband

Posted on February 03, 2009
 Jeffrey surreptitiously installed video equipment in the bedroom of the marital home (where Jeffrey may or may not have been living, depending on whom one believed), including a motion sensing optical eye in the headboard of the bed and a camera concealed in an alarm clock...

Ruining a Deposition

Posted on February 02, 2009
Evan Schaeffer at The Trial Practice Tips Weblog has started a three-part series titled "15 Ways to Ruin a Deposition."   Here is his first post on the subject. The first tip?  Deposing someone who doesn't need to be deposed at all.

Insurance Policies Limits Are Not Discoverable UPDATED

Posted on February 02, 2009
The Tennessee Supreme Court has just ruled that liability insurance policy limits are not discoverable in typical personal injury and wrongful death cases in Tennessee.  Unlike the vast majority of states, our TRCP 26 does not mandate disclosure of limits...

When Winning A Case Costs Your Client Money

Posted on January 29, 2009
The goal of lawyers who represent plaintiffs in personal injury and wrongful death lawsuits is to help the client.  But sometimes the receipt of proceeds from a lawsuit can actually cost your client money.  How can that be?  If your client is receiving Supplemental Security Income (SSI) and the settlement results in your client having more than $2000 in the bank your client loses his or her SSI payments...

Yet Another Opinion on the Law of Expert Testimony

Posted on January 29, 2009
The Tennessee Supreme Court has issued another opinion about expert testimony, this one concerning the ability of a family practice doctor to testify about a criminal defendant's ability to form the required mental state to commit a crime.  The Court ruled that the expert was qualified to give such an opinion and that it was error to exclude his testimony...

February 2009 Tennessee Trial Law Report

Posted on January 29, 2009
The February 2009 edition of the Tennessee Trial Law Report is at the printer  and will be mailed to subscribers in the next day or two. This edition includes a summary of 24 different cases addressing various aspects of the law of torts, civil procedure, evidence and trial as decided by Tennessee appellate courts between December 15 and January 15...

Rule Changes

Posted on January 27, 2009
The Tennessee Supreme Court has adopted several changes to the rules of civil procedure, evidence and appellate procedure.  By orders dated earlier this month, the Court adopted the recommendations of the Rules Commission about the changes that were necessary...

New Edition of Tennessee Law of Comparative Fault

Posted on January 23, 2009
In 1997, five years after the adoption of comparative fault in Tennessee, Donald Capparella and I wrote a book called Tennessee Law of Comparative Fault..  Five years later our friend John Wood joined us for the second edition of the book, and West Publishing Company took over the printing and distribution of the book...

New Tennessee Supreme Court Opinion on Admissibility of Expert Testimony

Posted on January 23, 2009
The Tennessee Supreme Court has just released an opinion reversing the ruling of a trial judge who excluded the testimony of a sleep expert in a criminal case.  The defendant alleged that he did not have the criminal intent to commit sexual acts with his stepdaughter because he was asleep at the time and was not aware of what he was doing...

More From Paul Luvera

Posted on January 21, 2009
I know that I have had several posts in the past few months that referenced the work of Paul Luvera, a highly-regarded plaintiff's lawyer from Seattle.   Here is another one - this time on the subject of settlement forms. Why do I cite his work?  Quite frankly, I will cite any good lawyer's work if I think it will be of interest to the readers of this blog...

New Book

Posted on January 20, 2009
My friend Tom Vesper from Atlantic City, N.J. has had a new book published.  It is called Uncle Anthony's Unabridged Analogies:  Quotes and Proverbs for Lawyers and Lecturers.  Tom is great storyteller and I am sure that his book reflects his wisdom, wit and style...

Off Topic - Bushisms

Posted on January 16, 2009
Jack Weisberg kept up with George W. Bush's verbal slip-ups during the past 8 years. It was a full-time job. This article contain's Weisberg's  list of the top 25 Bushisms. A sample: because of the rising cost of malpractice insurance, "[t]oo many OB/GYNs aren't able to practice their love with women all across the country...

Open Note to Airplane Crash Lawyers

Posted on January 16, 2009
Please don't rush to New York and file a lawsuit over yesterday's crash.  There is no reason to inject a lawsuit into the middle of the celebration over the wonderful outcome from what could have been a horrific tragedy.  So, don't embarrass plaintiff's lawyers or the legal system by an immediate filing of suit...

NIED Claims

Posted on January 15, 2009
The January 2009 edition of the Tennessee Bar Journal includes my quarterly column on tort law.  This  column is titled "NIED Claims after Flax and Eskin." For some reason, the online version of the article has some missing words and other problems, but it includes the important stuff.

Making Surgery Safer

Posted on January 15, 2009
There is a great article in  today's  New York Times titled "Simple Checklist Makes Surgery Safer." An excerpt:  "a year after surgical teams at eight hospitals adopted a 19-item checklist, the average patient death rate fell more than 40 percent and the rate of complications fell by about a third, the researchers reported...

Still More Statistics From the 2007-08 Annual Report of the Tennessee Judiciary

Posted on January 14, 2009
I know - this is the third posting about  the 2007-08 Annual Report of the Tennessee Judiciary.  I can't help myself - I am fascinated by this kind of data. This falls in the "can you believe this" category? There were about the same number of  DUI charges filed in circuits court in Tennessee last year as there  were tort damage lawsuits (11,000)...

More Statistics From the 2007-08 Annual Report of the Tennessee Judiciary

Posted on January 13, 2009
The 2007-08 Annual Report of the Tennessee Judiciary also has some interesting statistics on appeals.   Here are some of the highlights: There were 793 Rule 11 applications filed during the fiscal year.  ( A Rule 11 application is a request for the Tennessee Supreme Court to hear a discretionary appeal...

New Tennessee Trial Law Report Available

Posted on January 09, 2009
Are you a subscriber to Tennessee Trial Law Report - Tort Law Edition?    The January 2009 issue is now available. The January edition contains Part One of a three-part article on motions in limine as well as a listing of 29 cases currently pending before the Tennessee Supreme Court  or the United States Supreme Court that are of interest to tort lawyers...

Annual Report of the Tennessee Judiciary

Posted on January 09, 2009
The Tennessee Supreme Court has just released the 2007-08 “Annual Report of the Tennessee Judiciary.”   It includes data for the 2007-08 fiscal year.  Here is some of the information revealed in the report: There were 537 medical malpractice cases filed during the fiscal year...

Car Safety Data

Posted on January 07, 2009
The Department of Transportation has a site dedicated to car safety.  The site gives information about safety recalls, defect investigations, and early warning reports. Want to learn more?  Go here.

Medicare Subrogation

Posted on January 05, 2009
Plaintiff's lawyers:  do you want to have the hell scared out of you?  Read this article by Rick Swedloff on Medicare subrogation entitled "Can't Settle, Can't Sue:  How Congress Stole Tort Remedies From Medicare Beneficiaries."  The article appears in Volume 41...

Law Review Article on Police Chase Cases in the 6th Circuit

Posted on December 31, 2008
Do you have a Sec. 1983 lawsuit for injuries to a bystander arising out of a police chase?  Are you thinking about filing one?  Are you defending one? If the answer to any of these questions is "Yes," I encourage you to read "When Innocent Parties Are Injured or Killed in High-Speed Pursuits, What Police Conduct Sufficiently Shocks the Conscience to Allow Recovery?" by Anna M...

Fee Caps - And the Harm to the Patient that Results

Posted on December 31, 2008
There is a lot of talk about capping fees in medical malpractice cases.  Fees are already capped, of course, at one-third of the recovery, but the health care industry wants further limitation on fees charged to plaintiffs in successful cases. Why?  Because they're not stupid...

Practice Tip - Professional Services Sales Tax on Lawyers?

Posted on December 29, 2008
From time to time over the years there has been talk about imposing a sales tax on professional services.   One cannot help but wonder whether there will be an effort to impose such a tax to help solve the budget problem facing our state government...

Chamber of Commerce Lobbies for Protection from Lawsuits

Posted on December 25, 2008
Here is the text an December 20, 2008 article on the CBS News website about the efforts of the U.S. Chamber of Commerce to take advantage of the opportunity created by the world's financial problem to seek legal protection for wrongdoers.  Thanks to Suzanne Keith at TAJ who forwarded it to me...

The Politics of Fear in an Effort to Achieve Tort Reform

Posted on December 24, 2008
Insurance companies know that they have little credibility in the fight over access to the courthouse.  This is particularly true in the medical malpractice area, where the evidence   in Tennessee demonstrates that (a) doctors and hospitals win over 96% of jury trials; (b) professional liability rates, adjusted for the medical  inflation rate, have been more or less flat for over 20 years; (c) the average settlement is $256,100 (for calendar  year 2007); and (d) $1,000,000 verdicts are extremely rare...

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