May the Courthouse Doors Always Remain Open

I read this article on Sunday and was amazed at how much is spent by big business to try to close the courthouse doors to the injured or wronged (it's on page 2 of the article). In fact, I was shocked. A jury is an integral part of our civil justice system; and big business wants to limit a jury's right to decide a matter and the remedy that can be provided. (As a reminder, one of the reasons we declared our independence from England was because we had been denied the right to a jury trial in some instances.)

I'm fond of saying there are no Atheists in foxholes, and there are no injured persons who are pro-tort deform.

Yes, I am biased. I think American citizens should have the right to decide when another has been injured or wronged, and to determine the amount of damages incurred. Others do not agree with me (as can be determined by reading the article). You make up your own mind on the issue.

Here's the link:

http://www.nytimes.com/2008/06/22/business/22tort.html?_r=1&ref=business&oref=slogin

May the Courthouse Doors ALWAYS remain open to those who have been injured or wronged.

Is a Lawyer Allowed to Tape Record a Court Proceeding in Tennessee?

A lawyer may tape record a judicial proceeding in Tennessee. This is per statute, to wit: "It is lawful for attorneys representing parties in proceedings in any of the courts of this state to use tape recorders as an aid in making notes of the proceedings." T.C.A. § 20-9-104. Here's a link to the Tennessee Code: http://michie.lexisnexis.com/

Hope this helps.

Service by Facsimile under the Tenn. R. Civ. P.

Did you know that you can effectuate service of some documents via facsimile under the Tennessee Rules of Civil Procedure? I didn't till today; Rule 5 allows this form of service. See Tenn. R. Civ. P. 5.02 ("Items that may be filed by facsimile transmission pursuant to Rule 5A may be served via facsimile transmission."). Tenn. R. Civ. P. 5A.02(4) lists the documents that can't be filed (or served) via facsimile (e.g., complaints, summonses, wills, affidavits, etc.). Therefore, any document that can be filed with the clerk via facsimile can also be served via facsimile. See Tenn. R. Civ. P. 5.02 & 5A.02(4).

Useful information, huh?

New Med Mal Opinion on Apparent Agency

Today the Court of Appeals issued an opinion in Thomas v. Oldfield, No. M2007-01693-COA-R3-CV (Tenn. Ct. App. June 2, 2008). Judge Clement authored the opinion.

The Court of Appeals reversed the trial court's grant of summary judgment to the defendant hospital based upon apparent agency. This ruling is in line with the Tennessee Supreme Court's rulings in Boren v. Weeks and Dewald v. HCA Health Services of Tennessee (both are the subject of my May 7, 2008 post). For purposes of explanation, Boren and Dewald adopted the Restatement (Second) of Torts § 429 as the controlling law in the analysis of whether apparent agency exists.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/082/thomasjamesOPN.pdf

FYI: This is the second appeal that I know of in this case; the other is the subject of my Nov. 8, 2007 post.

New Opinion on Comparative Fault and the Discovery Rule

The Court of Appeals (Eastern Section) recently issued an opinion in a car-wreck case analyzing comparative fault and the discovery rule. Judge Susano authored the opinion. The style of the case is Grindstaff v. Bowman, No. E2007-00135-COA-R3-CV (Tenn. Ct. App. May 29, 2008). I think it is a must-read opinion.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/082/GrindstaffbfOPN.pdf

Tennessee Amends Med Mal Law

Here's the link to the recent amendments to Tennessee's med mal law:

http://state.tn.us/sos/acts/105/pub/pc0919.pdf

I'll have an analysis of this in a few days.

Thanks.

P.S. Please note that the amendments will take effect Oct. 1, 2008.

How a Bill Becomes a Law in Tennessee

Here's a guide on how a bill becomes a law in Tennessee (see link below). It came from the Tennessee General Assembly's Web site.

http://www.capitol.tn.gov/about/billtolaw.html

Another New Book

Here's another new book, How to Try a Jury Case: Trial Tactics, by John F. Kimberling. I have not read it yet. I have friends, however, who have; and they say it's great.

It's available from the National Institute for Trial Advocacy at http://www.nita.org/page.asp?id=7&catid=14&prodid=439

Tennessee Supreme Court Issues Two Opinions on Apparent Agency

Yesterday the Tennessee Supreme Court issued two opinions on apparent agency. The first was Boren ex rel. Boren v. Weeks, No. M2007-00628-SC-R11-CV (Tenn. May 6, 2008); the second was Dewald v. HCA Health Services of Tennessee, No. M2006-02369-SC-R11-CV (Tenn. May 6, 2008). They were consolidated for appeal. The issue on appeal was whether the defendant hospitals could be held liable for the acts of physicians who were allegedly independent contractors.

The Court overruled the Court of Appeals (which had reversed the trial court in both cases) and held that genuine issues of material fact remain that prevent the granting of summary judgment on that common issue. The Court adopted an analysis for the determination of apparent agency as set forth in the Restatement (Second) of Torts § 429. Boren, No. M2007-00628-SC-R11-CV, slip op. at 10-11; Dewald, No. M2006-02369-SC-R11-CV, slip op. at 3-4.

Here's the link to the AOC's Web site: http://www.tsc.state.tn.us/

The Bluebook Online

The Bluebook is a very useful tool to a legal writer. It's easy to use and offers quick answers to legal citation questions. Did you know that you can get free online updates? You can.

Here's the link to the website:

http://www.legalbluebook.com/Public/Updates.aspx.

You can also purchase an online subscription at the above-referenced link. With the online subscription you can access the Bluebook anywhere you have Internet access.

Hope this helps. Good luck!

Another New Book

Here is another very useful book: Susan L. Kay & Glen Weissenberger, Tennessee Evidence 2007-2008 Courtroom Manual (2007).

It's published by LexisNexis, and can be purchased at this website:

http://bookstore.lexis.com/bookstore/product/46273.html

I carry this book with me to court nearly every time I go (along with a few others). It offers quick, easy-to-find answers to evidentiary matters that come up during a hearing or trial.

Need Anatomical Charts or Models?

Here's a link to a website that has a lot of useful anatomical information. For example, the site sells charts and models that can be very useful during a deposition or trial.

Here's the link to the website:

http://www.anatomical.com/Default.asp?bhcd2=1208432419

Comparative Fault in General Sessions Court in Tennessee

In a general sessions tort case, a defendant must notify the plaintiff and the clerk if he or she thinks that fault should be shared or that another is solely at fault. Tenn. Code. Ann. § 16-15-735. Here's a link to statute: http://www.michie.com/

A defendant must also identify the allegedly at-fault party sufficiently so that a plaintiff may serve process on him or her. Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785, 789 (Tenn. 2000).

How do you deal with a defendant's attempt to shift blame improperly (i.e., by not identifying the other at-fault party) in a general sessions court tort case? File a motion to strike and cite Brown.

Good luck.

Profanity a Crime?

Common sense ought to tell you that you shouldn't use profanity in a courtroom. That's a given.

But did you know that it was illegal to use profanity in a courtroom? I didn't till today. Tennessee Code Annotated section 29-9-107 states that "A person who profanely swears or curses in the presence of any court of record commits a Class C misdemeanor."

Here's the link to the Tennessee Code: http://www.tncourts.gov/geninfo/michie.htm

Medical Malpractice in Tennessee

In 2004 Tennessee adopted a law that required the Department of Commerce and Insurance to keep track of medical malpractice claims for four years. Here's the third of the four reports:

http://state.tn.us/commerce/documents/MedMalReportPR_11012007.pdf

As you can see, there is no "problem" with medical malpractice litigation. Moreover, medical malpractice insurors are doing well financially.

New UM Case from Tennessee Supreme Court

The Tennessee Supreme Court issued an opinion yesterday in Green v. Johnson, No. E2006-02666-SC-R11-CV (Tenn. Mar. 13, 2008). Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/081/GreenLOPNCorr.pdf

The issue in Green was whether an uninsured motorist carrier may reduce its liability under an uninsured motorist provision of an automoblie insurance policy by the amount of settlement proceeds received by the insured from a non-motorist defendant, who is alleged to share responsibility for the bodily injury of the insured. The Court held that it could.

New TN Court of Appeals Decision

The Tennessee Court of Appeals issued an opinion yesterday in Small ex rel. Small v. Shelby County Schools, No. W2007-00045-COA-R3-CV (Tenn. Ct. App. Feb. 12, 2008). In Small, the Court of Appeals addressed the issues of sovereign immunity, the need for expert witness disclosure, comparative fault, and discretionary costs. Id., slip op., at 11-23.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/081/SmallEmmanualOPN.pdf

I'm not sure, however, that Small, as it relates to comparative fault, can be reconciled with George v. Alexander, 931 S.W.2d 517 (Tenn. 1996) and Rule 8.03 of the Tennessee Rules of Civil Procedure. I want to do some more research on this matter; but for informational purposes, I thought I'd bring it to your attention at this time.

Update on Mississippi Med Mal Case

Remember my posts in October 2007 about the Mississippi med mal case where the court of appeals held that evidence of liability insurance was not unfairly prejudicial? The court denied the request for a rehearing in this case on January 29, 2008.

The case is styled Wells v. Jackson Healthcare for Women, P.A. It's status of the case can be checked here:

http://www.mssc.state.ms.us/GeneralDocket/default.asp

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. Therefore, this case offers persuasive authority for a similar ruling in Tennessee.

An Oath

I _______________ do solemnly swear (or affirm) that as a member of this General Assembly, I will, in all appointments, vote without favor, affection, partiality, or prejudice; and that I will not propose or assent to any bill, vote or resolution, which shall appear to me injurious to the people, or consent to any act or thing, whatever, that shall have a tendency to lessen or abridge their rights and privileges, as declared by the Constitution of this state.

Tenn. Const. art. X, § 2 (emphasis added).

This is the oath that a member of the Tennessee General Assembly is administered before she or he takes office.

You'd think this oath alone (if meant when sworn to or affirmed) would prevent a member of the General Assembly from voting for any bill supporting caps on a citizens's right to damages or a citizen's right to sue a corporation (with a jury). After all, who does the legislature represent, corporations or the people?

Food for thought.

Link to Federal Forms

Need a federal form? Here's a link that might help you out:

http://www.uscourts.gov/rules/cvforms2.htm

Tractor Trailer Accidents

Someone asked me yesterday if we did tractor trailer accidents. Yes, we do.

I just thought I'd throw that out there.

Thanks.

Tony

New Spoliation Case

The Court of Appeals for the Middle Section just issued an opinion regarding the spoliation of evidence in Cincinnati Ins. Co. v. Mid-South Drillers Supply Inc., M2007-00024-R3-CV (Tenn. Ct. App. Jan. 25, 2008). The Court of Appeals held that a trial court may sanction a plaintiff by dismissing the case irrespective of whether the destruction was inadvertent or intentional. Id., slip op. at 1.

Here's a link to the case:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/081/CincinattiInsurCoOPN.pdf

False Light Invasion of Privacy Claims and the SOL

Tennessee recognizes the tort of false light invasion of privacy as primarily set out in the Restatement (Second) of Torts section 652E (1977). West v. Media Convergence Inc., 53 S.W.3d 640, 641 (Tenn. 2001). Do you know what the applicable statutes of limitations are? They are six months or one year depending on the form of publicity. Id. at 648 (citing Tenn. Code Ann. §§ 28-3-103 and -104(a)(1) ).

Allstate's in Trouble in Florida

Allstate can't issue policies in Florida until it complies with a subpoena issued by Insurance Commissioner Kevin McCarty. Here's the link to MSNBC's story on the matter:

http://www.msnbc.msn.com/id/22712275/

New Name, Same Blog

FYI: As of today this blog will operate under the name "Tony Duncan Law" instead of "The Duncan Law Firm." Everything else will remain the same.

Thanks for reading.

Directed Verdicts in Tennessee State Courts

If a plaintiff has made out his or her case and no evidence tending to contradict it is offered, the trial court has a duty to direct a verdict. Robert E. Burch, Trial Handbook for Tennessee Lawyers §32:3, at 562 n.4 (2007-08 Thomson-West) (citing numerous sources).

Under the proper circumstances, the court may direct a verdict in favor of either party, even though the effect of the grant is to deprive a party of his or her right to a jury trial. Id. § 32:1, at 561 n.1 (citing Tenn. R. Civ. P. 50.01).

This is a great tool that may be at used at trial when you find that your proof is uncontroverted. See id.

Thanks to Judge Burch who has authored an invaluable book. This book is a must-have for every attorney in Tennessee.

General Sessions Court and Attorney's Fees

It's a well-known fact that the monetary jurisdictional limit of Tennessee's general sessions courts is $25,000. But did you know that attorney's do not count against that limit and can be added to a $25,000 award in general sessions court? Here's the statute: Tennessee Code Annotated section 16-15-501(d).

Here's a link to the Tennessee Code Annotated so you can look it up for free:

http://www.michie.com/

Tennessee Code Annotated section 16-15-710 and Process in Tennessee General Sessions Court

What do you do if you have filed suit in general sessions court and not gotten service upon the defendant? Tennessee Code Annotated section 16-15-710 states what needs to be done to keep your lawsuit from becoming time-barred, to wit:

The suing out of a warrant is the commencement of a civil action, within the meaning of this title, whether it is served or not; but if the process is returned unserved, plaintiff, if plaintiff wishes to rely on the original commencement as a bar to the running of a statute of limitations, must either prosecute and continue the action by applying for and obtaining new process from time to time, each new process to be obtained within nine (9) months from return unserved of the previous one (1), or plaintiff must recommence the action within one year after return of the initial process not served.

I  would like to thank my friend David Cooper for pointing this out to me.

Happy Holidays!

Folks,

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.

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:

http://www.edheads.org/activities/crash_scene/

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:

http://www.celebtv.com/Headlines.aspx?NewsGuid=12b0bc32-889d-4351-88af-0dbfaa7b2fdd

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:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/074/HillHeatheropn.pdf

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

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:

http://www.msnbc.msn.com/id/21981814/

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.

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.

Id., slip op. at 7.

Here's the link to the case:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/074/MainoRebeccaLopn.pdf

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).

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: http://content.nejm.org/

Hope this helps.

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.

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:

http://www.tsc.state.tn.us/geninfo/Publications/Forms/TrialCourtForms.htm

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:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/074/ThomasJamesGOPN.pdf

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:

http://attorneysmedicalservices.com/atla_dup.html

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

Good luck!

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...."

Id. 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:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/001/Brown%20Joey.pdf

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:

http://www.tsc.state.tn.us/OPINIONS/CURRENT/joneschrisOPN.pdf

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:

http://www.msnbc.msn.com/id/21529255/

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:

http://www.mssc.state.ms.us/GeneralDocket/default.asp

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.

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.

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:

http://www.tsc.state.tn.us/OPINIONS/CURRENT/HCCOPN.pdf

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....

Id., 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.)

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:

http://www.mssc.state.ms.us/Images/Opinions/CO42486.pdf

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.

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: http://www.onlineconversion.com/speed_all.htm

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.

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!

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.

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:
http://www.amazon.com/Avoiding-Common-Surgical-Errors-Marcucci/dp/0781747422

In the quest for patient safety, this book is a step in the right direction.

I hope it helps.

2007 Workers' Compensation Legislative Changes

Here's a link to the 2007 Tennessee's Worker's Compensation Legislative Changes:

http://www.tennessee.gov/labor-wfd/wc_2007legislation.pdf

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:

http://www.gerryspence.com/killalllawyers.pdf

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, http://www.state.tn.us/environment/parks/FrozenHead/.

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):

http://en.wikipedia.org/wiki/Wartburg

To some, those mountains are also a castle. As Paul Harvey says: "Now you know, the rest of the story."

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):

http://west.thomson.com/store/product.aspx?r=137934&product_id=40121148

This book is easy to use and will save you a lot of time and headaches.

Online ICD-9 Codes

This is a useful site for ICD-9 codes:

http://icd9cm.chrisendres.com/

Hope it helps.

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 http://www.qualityforum.org/about/, 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 http://www.qualityforum.org/publications/reports/sre_2006.asp, 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.

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: http://www.firstsoftware.com/iliad4.htm

The software can be purchased from the site too.

AAJ Convention in Chicago

Folks,

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.

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:

http://www.msnbc.msn.com/id/19734910/

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.

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.

Medical Acronyms in Tennessee

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

http://www.tha.com/pdffiles/Acronyms%2006-final.pdf

More Information on Medical Malpractice

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

http://www.citizen.org/documents/PA_Revised_Final_Report.pdf

Another On-Line Medical Dictionary

Folks:

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

http://www.nlm.nih.gov/medlineplus/mplusdictionary.html

It's quick and very easy to use.

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:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/032/Buck.pdf

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.  

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:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/071/HoodJEOpn.pdf

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.

Useful Web Links

http://www.daubertontheweb.com/ for "Daubert on the Web." This is a great site!
http://www.tsc.state.tn.us/ for the Tennessee Administrative Office of the Courts
http://www.nashville.gov/circuit/ for the Metropolitan Davidson County Circuit Court Clerk's Office
http://www.nashville.gov/chancery/index.htm for the Metropolitan Davidson County Chancery Court Clerk and Master's Office
http://www.uscourts.gov/ for the U.S. Courts: Federal Judiciary website
http://www4.law.cornell.edu/uscode/ for the United States Code
http://www.law.cornell.edu/rules/frcp/ for the Federal Rules of Civil Procedure
http://www.law.cornell.edu/rules/fre/ for the Federal Rules of Evidence
http://www.ediscoverylaw.com/ for a site on e-discovery
http://www.medilexicon.com/ for an online medical dictionary
http://www.globalrph.com/index.htm for web-based medical research
http://www.llrx.com/features/medical2005.htm for more web-based medical research
http://www.state.tn.us/sos/ for the Tennessee Secretary of State
http://pacer.psc.uscourts.gov/ for the Pacer Service Center
http://www.wheelessonline.com/ for Wheeless’ Textbook for Orthopaedics
http://www.ama-assn.org/ for the American Medical Association
http://jama.ama-assn.org/ for the Journal of the American Medical Association
http://www.mc.vanderbilt.edu/ for the Vanderbilt University Medical Center
http://www.mc.vanderbilt.edu/medschool/ for the Vanderbilt Medical Center School of Medicine
http://www.hcahealthcare.com/ for the Hospital Corporation of America
http://www.mmc.edu/ for the Meharry Medical College
http://www.state.tn.us/health/ for the State of Tennessee Department of Health
http://www.healthguideusa.org/index.htm for a great link for looking up information on healthcare providers.

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: http://www.wshein.com

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:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/072/StratienkoOPN.pdf

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:

http://www.tsc.state.tn.us/OPINIONS/CURRENT/adamsaOPN.pdf

Medical Illustrations

Merck has a great Web site for medical illustrations.

Here's the link:

http://www.merck.com/mmhe/resources/cp1/index.html

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:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/072/AustinOPN.pdf

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.

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: http://www.gladwell.com/index.html

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

A New Book on CD

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

http://www.trialguides.com

Tennessee Rules of Civil Procedure Amended

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


http://www.tsc.state.tn.us

Tennessee Civil Jury Instructions: Updates

The updates to the Tennessee civil jury instructions are here:

http://www.tsc.state.tn.us/

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:

http://catalog.nucleusinc.com/nucleusindex.php

Enjoy.

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:

http://www.michie.com/resources1.html

Virtual Knee Surgery

Here is a link to view a virtual knee surgery:

http://www.edheads.org/activities/knee/

I thought you all would like to see this.

Holiday Break

Folks,

I'm taking a break for the holidays and won't post anything substantive until after the first of the year.

Enjoy your holidays.

Thanks.

Virtual Hip Replacement

Here's an interesting link to watch a virtual hip replacement.

http://www.edheads.org/activities/hip/index.htm

A Famous Quote and Case Law Too

Joseph Story said that the law "is a jealous mistress." Those of you who are lawyers -- or are married to a lawyer -- know this to be true. I have lost many a night's sleep reading, studying, and learning the law (she just won't let you go sometimes).

If you are the same way (or your spouse is), you should read this case: Overstreet v. Shoney's Inc., 4 S.W.3d 694 (Tenn. Ct. App. 1999). This opinion is an excellent overview of the elements of a personal-injury claim in Tennessee. Judge Koch authored the opinion and -- as always -- did an excellent job.

Enjoy the read.

Rule 12 Motions to Dismiss Are Not Responsive Pleadings

Yes, you read the title of this post correctly. Rule 12 motions to dismiss are not responsive pleadings for purposes of Rule 15 amendments to complaints (of course, we are talking about the Tennessee Rules of Civil Procedure here).

Why is this important? It's important because a lot of lawyers (myself included, until recently) think that you can't file an amended complaint without the other side's permission or leave of the court if a motion to dismiss is pending (Rule 15 allows an amended complaint to be filed any time before a repsonsive pleading is filed). This is simply not the case. Adams v. Carter Cnty. Mem'l Hosp., 548 S.W.2d 307, 309 (Tenn. 1977) (stating that a motion is not a responsive pleading); Vincent v. CNA Ins. Co., No. M2001-02213-COA-R9-CV, 2002 WL 31863290, at *5 n.4 (Tenn. Ct. App. 2002) (also stating that a motion to dismiss is not a responsive pleading).

NBA's Appellate Practice Manual: Update

I have posted before about the Nashville Bar Association's ("NBA") manual on appellate practice in Tennessee. It has recently been updated. To get to it, you can go to the NBA's Web site. The site is located at http://www.nashbar.org/, then click on the "Members" tab on the left-hand side. The manual (updated in June) is there to view or download.

Good luck!

Politics, Government, and America

This really has nothing to do with the law (at least not directly), but, whether you're a Democrat or a Republican (or a member of any other political party), you have to remember that we are all Americans. Americans who want the same things, e.g., to be safe from terrorism, good schools for our kids, to make a good living, and so on. These are true no matter what political party you belong to.

Somehow we have lost sight of the fact that we are ONE nation (made up of Democrats, Republicans, and all other political parties). This is what has made this American "experiment" in government work so well (i.e., everyone has a voice -- if they choose to exercise it). Sure, some may say that it's a terrible system, but, look around, it's still the best thing going. I always say: "Nothing worth having comes easy." This is true for almost everything. For our system of government to continue to work, we need more citizen involvement, and we need people to step up and not just assume that "someone else will do it." I'm going to "step up" and do more. Are you? You should if you're able to do so.

Cases That Cannot Be Recommenced After Being Voluntarily Dismissed

There are at least two types of cases that cannot be recommenced after they have been voluntarily nonsuited/dismissed. The first is a Governmental Tort Liability Act ("GTLA") case. Lynn v. City of Jackson, 63 S.W.3d 332, 337 (Tenn. 2001) (stating that the savings statute will not extend time in which an action must be filed under Tennessee's GTLA). The second type of case is a will contest action. In re Estate of Barnhill, 62 S.W.3d 139 (Tenn. 2001) (holding that a will contest action cannot be refiled after it has been voluntarily nonsuited/dismissed).

The Tennessee Claims Commission: Rules of Procedure

For the most part, the rules governing procedure in the Tennessee Claims Commission are the same as in circuit or chancery court. There are, however, some differences. You can find out what they are at this link:

http://www.state.tn.us/sos/rules/0310/0310-01-01.pdf

Products Liability Law

Interested in products liability law? Need to find an answer to a products liability question? Scott Baldwin (a pioneer in this area of the law), and others, have written an excellent book on this subject. The name of the book is: Preparation of a Product Liability Case.

Aspen Publishers has it. The link to their site is below:

www.aspenpublishers.com

Once you get to their site, click on the "Litigation, Insurance & Tort Law" link, and then the "Product Liability/Tort Law" link to find this book.

An ERISA Roadmap

ERISA can be confusing enough without having to try and figure out which part of it is located where (for those of you who don't know, ERISA is not in sequence in the United States Code). Here is a roadmap of what sections are located where, to wit:

http://benefitslink.com/erisa/crossreference.html

Thanks to my friend and ERISA lawyer John Wood for pointing this out to me.

The Importance of Time Management and Atticus

Time management is one of the most difficult problems a lawyer faces -- it truly is. I attended the Tennessee Trial Lawyers Association's Annual Convention at The Peabody in Memphis, Tennessee last month.

At the Convention, Mark Powers (President of Atticus) spoke about time management strategies for your practice. He was great! He offered a lot of insight into the blatantly obvious "traps" that lawyers fall into all the time with their practices, e.g.: poor time managment, failing to delegate non-legal duties, etc. All of this results in running out of time to get things done, working weekends, missing out on family time, not marketing your practice, and so on. Most, if not all, of these "traps" can be avoided with careful time management. That's where Mark comes in to help.

Here's the link to his Web site: http://www.atticusonline.com/

Click on the "Articles" tab at the top and read the article entitled: "Ranking Your Clients: The Good, the Bad and the Ugly."

Mark and Atticus can change how you practice law -- for the better!

Get your life back and keep your law practice!

Runaway Juries?

Why is it that when I file a lawsuit (medical malpractice, car wreck case, etc.) and I don't ask for a jury, the defense does?

If juries are so "out of control" why does the defense almost ALWAYS ask for one?

Food for thought.

Statutes of Limitation for Every State

Here's a link to a Web site that has the statute of limitations (personal injury) for each state, to wit:

http://freeadvice.com/resources/personalinjury_statute_of_limitations.htm

(Please read my disclaimer at the top of this Blog; I am in no way endorseing this site or its contents.)

Did Somebody Say "Mary Carter"?

Have you ever heard of a "Mary Carter" agreement? I had not, not until today.

If you have, then you know what I'm talking about (i.e., a type of settlement agreement in a multi-party lawsuit). If you haven't, you can read about it at this link:

http://www.settlementnegotiation.org
/settlementconference/marycarter.html

I thought this might be of interest to some of the younger lawyers out there like myself.

Supreme Court of Florida Overturns $145 Billion Punitive Damage Award

Today the Florida Supreme Court overturned a $145 billion dollar punitive damage award. The Court held that the award was excessive as a matter of law.

Here's the link to the story:
http://news.moneycentral.msn.com/ticker/article.asp?
Feed=AP&Date=20060706&ID=5847740&Symbol=US:MO

Have a Great 4th!

Folks,

I will be out of pocket and will not post anything until after Tuesday.

Enjoy this weather, the food, fun, your families, and the fireworks!

Have a great 4th!

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.)