Dynamite and Deadlocked Juries

Judge Cottrell, writing for the Middle Section of the Tennessee Court of Appeals, authored an opinion that was released yesterday in Waters v. Coker regarding "dynamite charges" given to a deadlocked jury.

The court held that the charge given was prejudicial, reversed the trial court, and remanded the case for a new trial. (The first trial was a two week jury trial, too.)


The link to that opinion is as follows:
http://www.tba2.org/tba_files/TCA
/2006/watersg063006.pdf

This case is a good reminder to counsel and the judiciary about how "dynamite charges" should be used. (I had forgotten about some of this and found the opinion to be a great reminder.)

Ex Parte Contact with Non-Party Physicians Disallowed

Today, the Tennessee Supreme Court, in Alsip v. Johnson City Medical Center, ruled that ex parte communications between defense counsel and a plaintiff's non-party physician are not allowed.

The link to the opinion is as follows:
http://www.tsc.state.tn.us/OPINIONS/CURRENT/AlsipJenniferOPN.pdf
/AlsipJenniferOPN.pdf CURRENT/AlsipJenniferOPN.pdf

The Court held that these sort of communications violate the implied covenant of confidentiality between physicians and patients. (This only makes sense because a person's medical information is very intimate.)

Moreover, the Court reasoned, this information can be obtained through formal discovery -- if it is relevant.

Liability Insurance Information Should Be Discoverable

Yes, you read the title of this post correctly. Liability insurance information should be discoverable. In fact, in Davidson County and most of Middle Tennessee, it is. In other parts of the state it's not.

While liability insurance in and of itself does not determine whether or not there's money to fund a settlement or if a judgment will be collectible (especially when it comes to individual defendants), it does help to know if what you're pursuing is worth pursuing. And the earlier that all interested parties know this the better.

Judge Walter Kurtz ruled in Green v. Nashville Otolarynology Consultants, Davidson County Circuit Court, Case No. 95C-3947 (June 10, 1998) that liability insurance information was discoverable under Rule 26.02 of the Tennessee Rules of Civil Procedure. Part of the court's reasoning was that discovery of the nature and extent of liability insurance coverage promotes the efficient and effective administration of justice by assisting the parties in informed settlement negotiations.

If you haven't read this opinion, you need to; if you have read it, read it again. I believe that Judge Kurtz's interpretation of Rule 26.02 is correct, especially when one reads Rule 1 which requires that these rules "shall be construed to secure the just, speedy, and inexpensive determination of every action." (Emphasis added.) The disclosure of liability insurance information can only help facilitate these Rule 1 dictates.

The Tennessee Trial Lawyers Annual Convention, Etc.

I haven't posted anything in a while, and I apologize. Things have been hectic. I spent most of this past week in Memphis at The Peabody Hotel for the Tennessee Trial Lawyers Annual Convention -- and it was great! This convention was one of the best I have ever been to -- bar none. The speakers were very accomplished trial lawyers from all over the country. Gary Gober (who organized it) and the TTLA staff (who kept it going) did an excellent job.

To change gears a bit, rarely does someone ever write or say something that is almost the exact thing you were thinking, but, this time I am going to ask you to read today's post (June 17, 2006) on John Day's blog (available at: http://www.dayontorts.com/). He hit the nail right on the head. I couldn't agree more with what he has to say. Some of the people John names are trial lawyers who are my friends, mentors, and are people who care tremendously about what they do. They have given of their time and money for decades -- to help us all.

If you are an attorney in Tennessee who does any trial work at all (e.g., domestic relations, criminal defense, and yes, personal injury), you should be a member of TTLA -- an active, money-giving member!

SCOTUS Delivers Unfavorable ERISA Opinion

In Sereboff v. Mid Atlantic Medical Serv's LLC, the Unites States Supreme Court held that the health insurance plan was seeking an allowed equitable remedy (as opposed to a disallowed legal remedy) when it sought to enforce an agreed-upon lien.

The Court, while acknowledging that Mid Atlantic's sought-after relief must be equitable under section 502(a)(3) of ERISA to be enforceable (per Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002)), relied upon it's holding in Barnes v. Alexander, 232 U.S. 117, 121 (1914), and held that a "lien" that was agreed upon by the parties (and where the res was in the possession of the insured plaintiff, i.e., the res was identifiable per Knudson) was enforceable in equity. (The parties in Sereboff agreed that the amount in dispute (app. $75,000) would be set aside in a separate account until this matter could be resolved.) Thus, Mid America's claim, in this instance, was enforceable against the Sereboffs under ERISA because it was equitable in nature according to the Court's holding in Barnes (i.e., the "lien" was reached by an agreement of the relevant parties); and it was identifiable (per Knudson).

The opinion is available at:
http://www.supremecourtus.gov/opinions/05pdf/05-260.pdf
(You may need to copy this link and Google it to pull up the opinion.)

This opinion is a hard pill to swallow if you represent plaintiffs. It does, however, appear that the Made-Whole Doctrine is still viable (to the extent it was before), if the plan's claim is not based upon an agreed-upon "lien" between the plan and the insured plaintiff. (See page 11 of the opinion.)