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