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