Workers' Compensation: Determining Partial Dependency in a Death Case

Do you know how to determine the amount to be paid to a partial dependant in a death case under Tennessee's Workers' Compensation Law? The formula is set out in Sullivan Elec. Co. v. McDonald, 541 S.W.2d 112, 117-19 (Tenn. 1976).

This issue doesn't come up very often, but, when it does, it's nice to know where to look.

Tort Law Education

How many of you have heard of a case called Grimshaw v. Ford Motor Co. I bet you have, except you know it as the Ford Pinto case. The case where Ford knew there was a problem with the Pinto and that it would blow up if it was rear-ended. Ford chose not to fix it. As a result of Ford's conduct people died and were seriously injured.

There was a trial and Ford was found to be at fault. Also, punitive damages were awarded against Ford in the amount of $125 million and later remitted (reduced) to $3.5 million by the judge. The verdict was sustained by the California Court of Appeals.

If you'd like to read more about it, here's a link to the opinion:

http://online.ceb.com/CalCases/CA3/119CA3d757.htm

You're safe in your cars -- and so are your kids -- partly due to the efforts of trial lawyers. The only way that your average person can hold a company like Ford or Merck accountable for their conduct is via a lawsuit, and possibly a trial. That is the only way.

So, if you are ever rear-ended and your car doesn't explode, thank a trial lawyer. And remember this, the current push for tort "reform" doesn't seek to protect your interests. It seeks to protect the interests of big business -- at your expense.

Another Book

Okay, I had promised a few weeks back that I would start recommending a book (or two) each week. If my memory serves me right, I offered up two a few weeks back and haven't suggested another book since then. So, here's another: The Redbook: A Manual On Legal Style, by Bryan A. Garner (West 2002). Bryan Garner is the current Editor-in-Chief of Black's Law Dictionary and a known authority on legal writing.


The Redbook is an easy-to-use guide that can help answer a legal writing question in a hurry. I use it on a regular basis and it helps; I think it will help you too.

A Tennessee Legal Malpractice Note

Once a case settles, do you think that a former client can bring a subsequent claim for legal malpractice against his or her attorney for malpractice that occurred in the case that settled? They can! At least they can in Tennessee -- New York, too. Take a look at Parnell v. Ivy, 158 S.W.3d 924 (Tenn. Ct. App. 2004).

Congressionally Certified Copies

Have you ever had to get a copy of a document that was certified under acts of Congress? I have...twice in ten years. The first time was when I was in law school working for a law firm; the second time was the other day. You normally use this method of certification to obtain copies of out-of-state wills, birth certificates, and marriage licenses. When you call to get one, people will talk to you like you're crazy. Bottom line: Getting congressionally certified copies is not easy!

Why go to all this trouble you ask? Well, a congressionally certified copy of any document is entitled to be treated the same way in a foreign state as it would be in the state of its origin (i.e., for the most part, the documents are self-authenticating and not subject to exclusion based upon hearsay). This means that the congressionally certified copies are admissible. Sometimes you need to have them to prove your case, e.g., proof of a marriage, death, and so on.

The copies can be of judicial and non-judicial documents. See 28 U.S.C. §§ 1738, 1739.

Take a look at Sections 1738 and 1739. They can help you prove an element of your case.

There Is No Medical Malpractice Litigation Crisis in Tennessee!

Folks,

The Tennessee Medical Association ("TMA") is seeking -- may have already done so -- to have Tennessee declared a "crisis" state, i.e., they are saying we have too many medical malpractice lawsuits. Trust me: WE DON'T!! To the naysayers who want proof that we don't have a medical malpractice lawsuit crisis, here it is, to wit:

1. Here's a recent story from the The Memphis Flyer about the state of malpractice in Tennessee, and the financial condition of State Volunteer Mutual Insurance Company ("SVMIC"). SVMIC is the dominant malpractice insurance carrier in this state. As you can read, SVMIC is financially sound. The URL for this story:

http://www.memphisflyer.com/gyrobase/Content?oid=10517.

2. Professor Tom Baker has written a very informative book entitled The Medical Malpractice Myth. It's avialable at Amazon.com (here's the link: http://www.amazon.com/). His book shows that the current medical liability insurance "crisis" is not the fault of trial lawyers, bad investments by insurance companies, etc. It's due to what is called the "underwriting cycle." And he offers some ways to fix the real problem. What is the real problem? Medical malpractice. Professor Baker offers studies (some performed by doctors) that show that there is not enough medical malpractice suits and too few victims of medical malpractice are compensated.

It all boils down to this: Do we want to base any sort of resolution of this issue upon anecdotes and myths (and base legislation upon them), or do we want to address this issue and base any resolution of it upon facts? Facts that -- if utilized -- will help compensate more victims of medical malpractice and help improve our healthcare system. My vote is to utilize the facts.

When you view the facts it is clear, there are not too many medical malpractice lawsuits -- in Tennessee or in the United States. The TMA's position -- and anyone else who subscribes to this belief -- is inaccurate. It's up to us (as attorneys and concerned citizens) to ensure that the myth is revealed for what it is: a myth, a fallacy, an untruth.

MORE IMPORTANTLY: SHARE THIS INFORMATION WITH YOUR LEGISLATOR!

Tennessee Practice Point

Here's a link to a civil case that discusses Batson challenges. These cases are so rare that I thought you'd enjoy reading it.

The link is here: http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/054/ZakourPopn.pdf

Expert Opinions

I was in East Tennessee yesterday, so I apologize for a lapse in the posts. However, this one is a good one (if I do say so myself).

If you have any question about the admissibility of your expert's testimony, or even if you don't but you still want to stay current, you should read Brown v. Crown Equipment Corporation (http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/054/BrownCopn.pdf).
You may need to Google this link for it to come up.

The admissibility of expert testimony in Tennessee is governed by McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257 (Tenn. 1997). In Brown, the Tennessee Supreme Court held that all of the nonexclusive factors set out in McDaniel are not mandated, and do not need to be present, for an expert's testimony to admissible.

This is a must-read case.

This Should Make You Fighting Mad!

Folks, whether you're a Democrat or Republican, this story should make you fighting mad! It's not right! (Whether it's legal or not.) Their actions take the power from the people and place it in a very select few (I realize that some people would argue that this has always been the case). These type of antics should not be tolerated.

My beef is this: It's not who did what, it's what was done! If you're an American, this should bother you.

The link to the story is below:

http://www.tennessean.com/apps/pbcs.dll/article?AID=
/20060209/NEWS02/602090405

Another Practice Tip

The United States District Court for Tennessee, Middle District, has a manual for practice and procedure. Here's the link: http://www.tnmd.uscourts.gov/practicerules.html.

Thought this would be useful.

Practice Tip

Rule 36 of the Tennessee Rules of Civil Procedure requires that requests for admissions be responded to within 30 days. If they are not, they are deemed admitted. We all know this. However, do you have to bring these technically admitted requests to the court's attention (via a motion) to rely upon them? The answer is probably yes. See Tennessee Dept. of Human Servs. v. Barbee, 714 S.W.2d 263 (Tenn. 1986)

Use Your Treo for Case Investigation

I recently broke down and purchased a Palm Treo 650 Smartphone. I didn't think it would be that handy, but hey, I wanted one. Well, as it turns out, it's very handy. Why? Because I used it to take pictures of the scene of a slip and fall recently. And I didn't have to worry about bringing a camera with me (but I almost always have my phone with me).

Curiosity made me stop by the scene (it was on my way home), but since I had my Treo with me it was so easy to get the pictures. Now I have these pictures I can look at on my laptop (transferred from my Treo) when I'm discussing the case with the potential new client., etc., etc.

I know this seems so obvious, but it's almost like that milk carton sitting in the front of the fridge -- right in front of you! -- but you don't see it. I'm willing to bet that there are others out there who haven't thought of this yet either. Anyway, I thought this was a good use of a Treo, and I thought I would share.

Two New Books From David Ball

I promised that I would recommend one book a week on this blog, however, these two books are too good not to discuss together. Why? They are from David Ball. The first is Theater Tips and Strategies for Jury Trials, Third Edition. The second is David Ball on Damages: The Essential Update. Both are available from the National Institute for Trial Advocacy (NITA). NITAs Web site is at www.nita.org.

These books are an invaluable addition to your library.

A Weekend Off

Folks, it's Super Bowl weekend and I'm taking it off. I will be back on Monday with some new stuff, and a new book recommendation.

Thanks for reading.

ERISA Information

There is no doubt that ERISA is a complicated area of the law that seems to exist in a perpetual state of flux. All this can be daunting and confusing to even the most-experienced practitioner. However, there is help. Here are two links that are worth saving as favorites:

1. This is John Wood's site at http://www.erisaontheweb.com/

2. This is Ben Glass's site at http://www.vamedmal.com/

John is here in Nashville, in the 6th Circuit. Ben is in Virginia, in the 4th Circuit. They both do an excellent job of presenting ERISA information in an easy-to-use fashion for you read.

Ben has a section of his site that is restricted to plaintiffs' attorneys only. If you e-mail him, and certify that you do only plaintiffs' work, he will provide you with a password.

Take a look at their sites, I think you'll like what you see.

2005 Workers' Compensation Update

Thanks to John Day (www.dayontorts.com) for bringing this link to my attention, to wit:

http://www.tennessee.gov/labor-wfd/wcac/2005-Court-Decisions-Jan20-05.pdf

This is a summary of significant workers' compensation decisions in Tennessee.

This link will help you stay current on Tennessee workers' compensation issues.

Thanks, John.

Books For Litigators

Once a week, I am going to start recommending books for litigators to read. My first selection is McElhaney's Trial Notebook, by James W. McElhaney. The new fourth edition is out (I have the third edition too) and it is a great book.

You can purchase this book though the American Bar Association's ("ABA") Web site. It's regularly $64.95, but, it's $54.95 if you're a member of the ABA Litigation Section.

The ABA link is: http://abastore.abanet.org/abastore/index.cfm?section=main&fm=Product.AddToCart&pid=5310348


This is a great book to have on your shelf, whether you're a solo practitioner or in a big firm.