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Tuesday, December 18, 2007

Happy Holidays!


I hope this holiday season is enjoyable to you and that 2008 is a great year for you too. I'll be taking the rest of the year off (from the blog, not from work). Unless something major comes up I won't post anything substantive till after January 1, 2008.

Again, I wish you the best this season.

Thursday, December 06, 2007

Crash Scene Investigation

Edhead's crash scene investigation site is very helpful. It takes a few minutes to go though the demo, but it's worth the time.

Here's the link:

Tuesday, December 04, 2007

Quaids File Suit Against Drug Manufacturer

Dennis Quaid and his wife have sued the manufacturer of the drug Heparin after their children were given an overdose of the drug.

Here's the link:

Thursday, November 29, 2007

New Locality Rule Decision

The Tennessee Court of Appeals issued an opinion that discusses the locality rule in Hill v. Giddens, No. W2006-02496-COA-R3-CV (Tenn. Ct. App. Nov. 29, 2007).

Here's the link to the case:

This case is a good reminder of what an expert in a medical malpractice case needs to know to be qualified to testify.

Tuesday, November 27, 2007

Rhode Island Hospital Fined for THIRD Wrong-Site Surgery

A Rhode Island hospital has been fined for its THIRD wrong-site surgery this year. The wrong side of a patient's head.

Here's the link to the story:

I want to leave you with this one question (and/or thought): Why should the healthcare industry not be held responsible for its negligent acts? Tort reform proponents believe that it shouldn't be; they want to limit the healthcare industry's liability (even when the negligence is clear). Is that fair? Is it just? Is it right? You decide.

Tuesday, November 20, 2007

New Products Case

The Court of Appeals released an opinion yesterday in Maino v. The Southern Co. Inc. W2007-00225-COA-R9-CV (Tenn. Ct. App. Nov. 19, 2007). This case deals with the interplay among the savings statute, the statute of limitation (to a small extent), and the ten-year statute of repose for products liability cases.

We accordingly hold that a plaintiff who commences a products liability action within the products liability statute of limitations and ten-year statute of repose, voluntarily non-suits, and refiles within one year of the non-suit, may rely on the savings statute notwithstanding the expiration of the ten-year statute of repose.

, slip op. at 7.

Here's the link to the case:

P.S. This case is similar to Cronin v. Howe, 906 S.W.2d 910, 914-15 (Tenn. 1995) (holding that the savings statute will allow a timely filed medical negligence action to be re-filed outside the statute of repose).

Tuesday, November 13, 2007

New England Journal of Medicine On-Line

The New England Journal of Medicine ("NEJM") is considered a reliable authority among those in the medical and legal community. One can find some great information in the NEJM.

Did you know you can buy an on-line subscription for $99 a year? You can. It's a great deal. Here's the link to its Web site:

Hope this helps.

Sunday, November 11, 2007

Veterans Day

I have the highest respect for our veterans. My dad was in the Army and served in Korea. He saw what it was like to be shot at and have friends be there one day and dead the next.

Some soldiers and seamen gave the ultimate sacrifice for all of us. No matter what political affiliation you belong to, you can't ignore that fact. For that, we all owe a debt of gratitude.

Thank you to our veterans. This is your day.

Friday, November 09, 2007

Need a Form?

The Tennessee Administrative Office of the Courts' Web site has some useful forms for the Tennessee state-court practitioner. Here's the link to the site:

Thursday, November 08, 2007

New Opinion Regarding Defendant Liability Insurance Information

The Court of Appeals issued an opinion yesterday in Thomas v. Oldfield, No. M2006-02767-COA-R9-CV (Tenn. Ct. App. Nov. 7, 2007) holding that a defendant's liability insurance information is not discoverable.

Here's the link to the opinion:

Defense Medical Expert's Deposition

Need some help preparing for the defense medical expert's deposition? Here's an article from Attorney's Medical Serv's Inc. ("AMS") that will help:

AMS does a great job of showing what to look for and where in order to properly prepare for the deposition.

Good luck!

Monday, November 05, 2007

Tort Law Tip

In 1992 the Tennessee Supreme Court adopted a system of modified comparative fault in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992) (adopting the "49 percent" rule where a plaintiff must be found to be no more than 49 percent at fault to recover).

Based upon McIntyre, we all know that the trier of fact determines damages and assigns a percentage of fault to parties in the lawsuit. Here's the all-important question: Can fault be assigned to an unknown, or "phantom," tortfeasor? The answer is no, with one exception.

In Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn. 2000) the Court wrote:

[W]e conclude that a defendant may not attribute fault to a nonparty who is not identified sufficiently to allow the plaintiff to plead and serve process on such person pursuant to Tenn. Code Ann. § 20-1-119, even if the defendant establishes the nonparty's existence by clear and convincing evidence...."

at 789.

As such, a defendant is not permitted to blame an "empty chair" at trial. Fault can only be assigned to those who have been properly identified under the Rules of Civil Procedure. See Tenn. R. Civ. P. 8.03 (to invoke comparative fault as an affirmative defense a defendant must plead facts and state the identity of any alleged tortfeasor).

The one exception to this proscription is in the underinsured motorsist context. See Marler v. Scoggins, 105 S.W.3d 596 (Tenn. Ct. App. 2002) (allowing for fault to be allocated to a "phantom tortfeasor" in an underinsured motorist context).

Bottom line: if a defendant attempts to plead the fault of nonparties insufficiently (i.e., his or her answer doesn't comply with Rule 8.03's requirement of stating both facts and identity) file a motion to strike under Rule 12.06. See Tenn. R. Civ. P. 8.03, 12.06. Do this after the answer has been on file for fifteen but less than thirty days. See Tenn. R. Civ. P. 15.01.

Here's the link to the slip opinion in Brown from the Tennessee Administrative Office of the Courts' Web site:

Thursday, November 01, 2007

New GTLA Case

The Middle Section of the Tennessee Court of Appeals rendered a GTLA opinion yesterday in a case styled Jones v. Bedford County, No. M2006-02710-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2007).

The opinion is a good refresher on some areas of governmental tort liability.

Here's a link to the case:

Monday, October 29, 2007

You Stole My Wife!

Alienation of affections is a rare legal cause of action that allows one to sue another for luring his or her spouse away. Tennessee no longer recognizes this cause of action. Mississippi, however, still does, to wit:

Tuesday, October 23, 2007

Mississippi Court of Appeals' Web Site

The status of the Mississippi Court of Appeals' opinion I posted on October 16, 2007 can be checked here:

The "Case Year:" is 2006 and the "Case Seq:" is 00385.

FYI: Mississippi's Rule 411 of Evidence is substantially similar to Tennessee's Rule 411.

Friday, October 19, 2007

Update on Mississippi Case

I promised you an update on Wells v. Tucker, No. 2006-CA-00385-COA (Miss. Ct. App. Sept. 4, 2007). Per the Mississippi Appellate Court Clerk's Office, a motion for rehearing is pending. I will let you know more as soon as I find out.

Have a great weekend.

P.S. The Wells case was in my Oct. 16, 2007 post.

Wednesday, October 17, 2007

Health Cost Controls Inc. v. Gifford (Again)

The Tennessee Supreme Court today issued an opinion regarding whether or not an injured party has been made whole in a non-ERISA subrogation case. It's the second time the Court has had an opportunity to visit this case, to wit: Health Cost Controls Inc. v. Gifford, No. W2005-01381-SC-R11-CV (Tenn. S. Ct. Oct. 17, 2007) ("Health Cost Controls II").

Here's the link to the case:

The last paragraph of Health Cost Controls II sums it up and states:

We conclude that the trial court erred in its computation of Gifford's total recovery by failing to consider Gifford's recovery from all sources. We further conclude that the record is insufficient to determine whether Gifford has been made whole. On remand to the trial court, both parties will be permitted to present evidence. Gifford will have the burden of presenting evidence that sufficiently enables the trial court to make a reasonable assessment of his damages. The trial court will determine the monetary value of Gifford's recovery from all sources and the monetary value of all elements of Gifford's damages. Finally, if the trial court finds that Gifford has been made whole, reimbursement should be awarded to HCC only to the extent that Gifford's total recovery exceeds his total damages....

, slip op. at 6 (emphasis added).

The Court took issue with the fact that the trial court ignored Mr. Gifford's non-economic damages; it pointed out that the trial court should have calculated Mr. Gifford's non-economic damages "'as certain as the nature of the case permits'" Id., slip op. at 5-6 (quoting Overstreet v. Shoney's Inc., 4 S.W.3d 694, 703).
(By the way, Overstreet is a "must-read" case authored by Justice Koch when he was on the Court of Appeals.)

Tuesday, October 16, 2007

Evidence of Liability Insurance Allowed to Show Bias of Defense Expert; Held Not Unfairly Prejudicial

The Mississippi Court of Appeals held last month that evidence of liability insurance was admissible to show the bias of a defense expert under Mississippi's Rule 411 of Evidence. The case is Wells v. Tucker, No. 2006-CA-00385-COA (Miss. Ct. App. Sept. 4, 2007).

Here's the link:

I will check the status of this case tomorrow (i.e., if it was appealed to Mississippi Supreme Court). At the time of this post, it was too late to do that.

I know, a lot of you are thinking: "So what! That's one of the exceptions to Rule 411's exclusion of insurance." And you are exactly right. However, even if one of the Rule 411 exceptions are met (e.g., proof of agency, ownership, control, or bias or prejudice of a witness), some courts still exclude this information as being unfairly prejudicial under Rule 403. See generally Patton v. Rose, 892 S.W.2d 418 (Tenn. Ct. App. 1991).

The Wells case holds that this information is not unfairly prejudicial and allows it into evidence.

Wednesday, October 10, 2007

Miles Per Hour to Feet Per Second, Etc.

Here's a useful Web site that allows you to make conversion from, for example, miles per hour to feet per second, etc.

Here's the link:

P.S. Yes, we all know the formula: 30 mi/hr x 5,280ft/mi x 1 hr/3600 sec. = 44 ft/sec. This site just does the calculations for you.

Sunday, September 30, 2007

Irregularities in Depostion Notices Waived

In Tennessee, did you know that all errors and irregularities in a deposition notice are waived if not objected to in a timely manner? They are. Tenn. R. Civ. P. 32.04(1).

This prevents you from being ambushed at or during your deposition by an opponent who has sat on any objection he or she has to any defect in your notice. See id.

Hope this helps.

Good luck!

Tuesday, September 11, 2007

Sept. 11, 2001

I hope that you all take the time to remember what happened on this date six years ago. It was -- and remains -- one of the saddest days in history. It was truly a tragedy.

My mother says it reminds her of when JFK was assassinated. She says, "You will always remember where and what you were doing when you heard what happened."

This whole thing, this great American experiment in democracy, should never be taken for granted. I am fond of saying: "Nothing worth having comes easy." This is especially true when it comes to preserving our way of life; a way of life that has meant so much, for so many. It is up to all of us, as stewards of our nation, to see that we remain true to the spirit of our founding fathers by ensuring that all people are free in their pursuits of life, liberty, and happiness.

My two cents' worth.

Monday, September 10, 2007

New Book About Avoiding Common Surgical Errors

Want to see what surgical errors should be prevented and why? If you do, this book is for you. The book is called Avoiding Common Surgical Errors, by Lisa Marcucci, M.D. et al. Here's the Amazon link for the book:
In the quest for patient safety, this book is a step in the right direction.
I hope it helps.

Tuesday, September 04, 2007

Tuesday, August 14, 2007

Some Words From Gerry Spence

Read this that Gerry Spence wrote. If you don't read it all, read the very last paragraph. If it doesn't move you, something's wrong.
Here's the link:

Friday, August 03, 2007

Wartburg, Tennessee

Wartburg, Tennessee is where I spent a lot of my time growing up (my parents actually live in a place closer to Oak Ridge, Tennessee called Petros). It's where I went to high school.
Wartburg is a rural community in East Tennessee. It's surrounded by huge, rolling mountains. It's a great place for a kid to grow up. There's even a a state park there, Frozen Head State Park,
I catch a lot of grief over the name. People always ask, "Wart-burg? Where's that?" Well, you already know where it is. And you need to know that the town was settled by people of German descent. Here's where the name came from (read the quote):
To some, those mountains are also a castle. As Paul Harvey says: "Now you know, the rest of the story."

Saturday, July 28, 2007

New Book on Tennessee Automobile Liability Insurance

Thomson West has the 2006 edition out of Tennessee Automobile Liability Insurance. Here's the link to purchase the new book (even though they have the old book picutred):
This book is easy to use and will save you a lot of time and headaches.

Wednesday, July 25, 2007

Monday, July 23, 2007

The National Quality Forum

The National Quality Forum ("NQF") Web site states that it "is a not-for-profit membership organization created to develop and implement a national strategy for health care quality measurement and reporting. " (See, lasted visited July 23, 2007.)
The site has a list of member organizations (e.g., hospitals, etc.)
NQF's site has books for sale, specifically: Serious Reportable Events in Healthcare 2006 Update. That book contains a "never" list. The list indicates things that should never happen in a hospital, for example: surgery on the wrong body part (a.k.a wrong-site surgery); surgery on the wrong patient; and surgical instruments left in a person's body, etc. (See, lasted visited July 23, 2007.) These types of events are also referred to as "serious reportable events."
This book offers good information for both the medical and legal community.

Sunday, July 22, 2007

Iliad Software: Do You Know About It?

Iliad software is a "thinking" form of technology that offers expert diagnostic consults, etc. It is useful in solving what is wrong with a patient.
To quote from the product's Web site: "Iliad attempts to standardize medical terminology and diagnostic criteria in an electronically readable form and is a step in the process in the management of real-patients."
Here's the link to the site:
The software can be purchased from the site too.

Wednesday, July 18, 2007

AAJ Convention in Chicago


I just got back from Chicago and the American Association for Justice's Convention. Wow! It was super. I learned a lot and got to see a great city ( I had never been to Chicago before).

Sunday we went to Wrigley Field to watch the Cubs and the Astros play -- and the Cubs win -- a great game. I will definitely go back there soon.

Also, most importantly, I learned some new things that I will share in the weeks to come on my blog.

Enjoy your summer.

Thursday, July 12, 2007

TB Traveler Sued: 1.3 Million Sought

Well, you knew this was coming. Andrew Speaker, the Atlanta lawyer who traveled with TB, has been sued for exposing others to the disease. Here's the link to the story:
The lawsuit seeks 1.3 million dollars in damages.
I'm not sure what to think about Mr. Speaker. Did he just disregard the safety of others to get back home? Or were there other, possibly valid, reasons why he did what he did? Let's see how this plays out.

Friday, June 29, 2007

Tennessee's Governmental Tort Liability

Here's a good case to start your research on governmental tort liability in Tennessee: Bowers by Bowers v. City of Chattanooga, 826 S.W.2d 427 (Tenn. 1992).

Although it's from 1992, it's still the law in Tennessee.

This was my friend, an immediate past-president of the Tennessee Association of Justice, Steve Greer's case.

Monday, June 18, 2007

Medical Acronyms in Tennessee

Here's a link to the 2006 edition of the Tennessee Hospital Association's Healthcare Acronym Guide:

More Information on Medical Malpractice

Here's a link from a 2003 Public Citizen report on medical malpractice:

Monday, June 11, 2007

Another On-Line Medical Dictionary


Here's a link to another on-line medical dictionary that I like, to wit:

It's quick and very easy to use.

Friday, June 08, 2007

Uninsured Motorist Claims

Think that your client's claim against his or her uninsured motorist carrier is time-barred; think again. It may not be.

There is an unreported Tennessee Court of Appeals' opinion out of the Middle Section from 2003 that holds if the tortfeasor-defendant was timely served with process, and your client's insurance carrier received timely notice, the claim may not be time-barred. See Buck v. Scalf, No. M2002-00620-COA-R3-CV, 2003 WL 21170328 (Tenn. Ct. App. May 20, 2003).

Here's the link to the case on the TN AOC's Web site:

Wednesday, June 06, 2007

Professor Arthur R. Miller

I got to meet Professor Arthur Miller yesterday (known for teaching Civil Procedure at Harvard).  He was speaking as part of the West Key Authors Series at a law firm here in town.  I had the opportunity to talk with him both before and after he gave his speech.  It was great.   

He has been involved in a great deal of legal matters during his career.  It is also worth noting that he has argued in front of all of federal appellate courts in the United States and, obviously, the Supreme Court of the United Stated of America.  For a law (and a Civ. Pro.) nerd like me, this was a great treat.  

Tuesday, June 05, 2007

This One Makes You Feel Good!

I once read something Gerry Spence wrote where he was making the case for trial lawyers with a person who was very anti-trial lawyer. One of the examples he used in making his case was something like (and I'm paraphrasing): "What if the city (or another body with the power and authority to condemn) where you lived wanted to condemn your property? What if they were trying to take advantage of you? Or do it the wrong way?" Mr. Spence's point was that that person would more than likely need a trial lawyer to help him or her out. However, I doubted that a city would do something wrong or underhanded to obtain someone's property. Boy, I was wrong!

In 2003 or 2004, I met a very nice lady who was moving from Nashville back to Lawrenceburg, Tennessee (where she grew up; her family had deep roots there). Her husband had passed away and she wanted to move "back home." The City of Lawrenceburg wanted some of the land she had inherited from her parents, which was located within the city limits, to build a storm-water detention pond.

The property was leased, which usually complicates things, but in this case, the lease took care of this matter --- as far as a condemnation goes --- by making it clear that my client got the entire condemnation award. So, one would think there would not be a problem, right? The city and my client could just work things out amicably. Wrong! The tenants thought they were entitled to most of the condemnation award (why, no none knows). And the city didn't want to pay my client for her property. But it was willing to pay my client's tenants the lion's share of her property's value.
Also, the city hadn't entered upon the property yet; so no inverse condemnation suit could be filed. What to do? Here's what we did. Take a look at this link:

I'm not claiming to be Gerry Spence (no way in the world I could). I do, however, like how the man thinks. He inspired me to help my client in this case. My client needed a trial lawyer.

P.S. The case settled in my client's favor after the Tennessee Supreme Court declined to review the Court of Appeals' decision.

P.P.S. For those of you who ask, "Why didn't you wait and file an inverse condemnation suit once the city entered onto the property?" Well, I was trying to keep the city off of the property if I could. That way it would remain unchanged, which is what my client wanted.

Wednesday, May 30, 2007

Useful Web Links for "Daubert on the Web." This is a great site! for the Tennessee Administrative Office of the Courts for the Metropolitan Davidson County Circuit Court Clerk's Office for the Metropolitan Davidson County Chancery Court Clerk and Master's Office for the U.S. Courts: Federal Judiciary website for the United States Code for the Federal Rules of Civil Procedure for the Federal Rules of Evidence for a site on e-discovery for an online medical dictionary for web-based medical research for more web-based medical research for the Tennessee Secretary of State for the Pacer Service Center for Wheeless’ Textbook for Orthopaedics for the American Medical Association for the Journal of the American Medical Association for the Vanderbilt University Medical Center for the Vanderbilt Medical Center School of Medicine for the Hospital Corporation of America for the Meharry Medical College for the State of Tennessee Department of Health for a great link for looking up information on healthcare providers.

Friday, May 25, 2007

Great Legal Citation Book

Here's a great book that will help you correctly cite the authority you are relying upon, to wit: Prince's Dictionary of Legal Citations, by Mary Miles Prince.

It can be purchased at:

Thursday, May 24, 2007

New Peer-Review Case From Tennessee Supreme Court

The Tennessee Supreme Court issued a good opinion clarifying the discoverability of certain information, even if it is provided to a peer review committee, in Stratienko v. Chattanooga-Hamilton Co. Hosp. et al., No. E2005-01043-SC-S09-CV (Tenn. May 14, 2007).

This matter arose out of a dispute between two doctors, however, the discoverability of this information wouldn't (shouldn't) be any different in a medical malpractice case.
Here's the link:

Monday, May 21, 2007

Jury Instructions: Forseeability in Medical Malpractice Cases

The Court of Appeals recently issued a very good opinion dealing with jury instructions in medical malpractice cases (primarily dealing with the element of foreseeability). That opinion is from Adams v. Hendersonville Hosp. Corp et al., M2006-01068-COA-R3-CV (Tenn. Ct. App. May 18, 2007).

Appellant requested three jury instructions at trial. The trial court declined to give them as requested (one, regarding foreseeability, was a verbatim statement of the law from the Tennessee Supreme Court). The Court of Appeals held that the trial court's refusal to give the jury instruction that was a verbatim statment of the law on foreseeability was reversible error.
Here's the link to the case:

Monday, May 07, 2007

Medical Illustrations

Merck has a great Web site for medical illustrations.

Here's the link:

Saturday, May 05, 2007

New Case Involving Comparative Fault and Sec. 20-1-119

The Tennessee Supreme Court issued its opinion in Austin v. State of Tennessee, No. M2005-01300-SC-R11-CV (Tenn. May 1, 2007).

Here's the link:

This case should be read with Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn. 2000).

Both cases involve the allocation of fault and the interplay between that allocation of fault and Tennessee Code Annotated section 20-1-119.

I'm thinking of doing an article on this topic. I'll let you know if I do.

Sunday, April 29, 2007

Another Book

This has nothing to do with the law, per se, but it's a good book. It's called Blink, by Malcolm Gladwell. It's about how we think in "thin slices." It will alter how you view the world, trust me.

His Web site is at:

He has also written The Tipping Point. I haven't read it yet either -- but I hear it's good too.

Friday, April 06, 2007

A New Book on CD

David Ball's Damages: The Essential Update is now available on CD from Trial Guides.

Thursday, March 01, 2007

Tennessee Rules of Civil Procedure Amended

The Tennessee Rules of Civil Procedure have been amended (effective July 1, 2007). Here's the link:

Friday, February 09, 2007

Monday, February 05, 2007

Medical Illustrations Web Link

Someone brought this to link to my attention today. I thought it was pretty cool, so, I am posting it for you to look at:


Monday, January 29, 2007

The Cost of Medical Records in Tennessee

What are medical records supposed to cost in a non-workers' compensation case in Tennessee? The answer is in Tennessee Code Annotated sections 63-2-102 (pertaining to non-hospital records) and 68-11-304 (pertaining to hospital records).

The charges are required by law to be twenty dollars for the first forty pages and twenty-five cents per page thereafter for physicians offices (i.e., non-hospital facilities). Tenn. Code Ann. sec. 63-2-102.

Hospitals charge fifteen dollars for the first five pages; seventy-five cents per page for the sixth to the fiftieth page; fifty cents per page for the fifty-first to the two hundred and fiftieth page; and twenty-five cents per page for all pages thereafter. Tenn. Code Ann. sec. 68-11-304.

Here's the link to the free (unannotated) Tennessee Code:

Wednesday, January 10, 2007

Virtual Knee Surgery

Here is a link to view a virtual knee surgery:

I thought you all would like to see this.