Computation of Time Under the Federal Rules of Civil Procedure to Change December 1, 2009

Here's a link to an article written by Professor Paine on the matter, to wit:

http://www.tba2.org/journal_new/index.php/component/content/article/369?ed=24

NPR Blog: "Docs Case for Tort Reform Harder to Make"

http://www.npr.org/blogs/health/2009/11/docs_case_for_tort_reform_gets.html

Slip-and-Fall Case: Summary Judgment for Defendant Reversed

The Court of Appeals just reversed a grant of summary judgment for the defendants in a slip-and-file case. The case is Burks v. The Kroger Co., M2008-02664-COA-R3-CV & M2008-02667-COA-R3-CV (Tenn. Ct. App. Nov. 23, 2009).

Here's the link:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/094/Elizabeth%20Burks%20v%20The%20Kroger%20Company%20OPN.pdf

Happy Thanksgiving!

I hope you all have a great Thanksgiving holiday.

I spent some time yesterday thinking about this past year and the year to come. I am very thankful for many things in my life; I have truly been blessed by God. And for that, I am grateful.

Unfavorable Sixth Circuit ERISA Opinion

The United States Court of Appeals, Sixth Circuit, recently issued an opinion that is unfavorable to tort plaintiffs who have had their medical care paid for by an ERISA plan. The case is The Longaberger Co. v. Kolt, 09a0399p.06 (6th Cir. Nov. 16, 2009).

The opinion is a must-read for all tort-practitioners because of one very important thing: the court specifically disallowed a reduction for attorney's fees from the amount paid back to the ERISA plan.

Here's a link to the opinion:

http://www.ca6.uscourts.gov/opinions.pdf/09a0399p-06.pdf

Admissibility of Autopsy Reports, Etc.

I found this statute while looking for something else and thought I'd share it, to wit:

The records of the division of post mortem examination, the county medical examiner, or transcripts of the records certified to by the chief medical examiner or the deputy medical examiner or the duly appointed representative of the chief medical examiner, and the reports of the toxicology laboratory examinations performed by the testing laboratory or transcripts of the reports certified to by the director of the testing laboratory or the director's duly appointed representative, shall be received as competent evidence in any court of this state of the facts and matters contained in the records or reports.

T.C.A. § 38-7-110(a) (emphasis added).

The Return to Notice Pleading in Federal Court

Here's a recent article on this subject that I found interesting:

http://www.law.com/jsp/article.jsp?id=1202435525918&rss=newswire

Veterans Day: Thanks to Vets

My dad was in the Army and fought in Korea. I have a friend and a mentor of mine who is a West Point grad who fought in Viet Nam. My cousin, who is more like a brother to me, fought in Iraq during Desert Storm; so did a very good friend of mine. I think a lot of our Vets. It is my pleasure to say "Thank you!" to all Vets on this day. Your service is greatly appreciated.

The Return of Seized Property Under T.C.A. § 39-11-709

The Court of Appeals issued an interesting opinion today in McWhorter v. Selby, M2008-01502-COA-R3-CV (Tenn. Ct. App. Nov. 9, 2009). It has to do with the return of property seized by state authorities. Here is the summary of the opinion:

This appeal concerns the return of seized property. In the course of a criminal investigation, the respondents seized personal property from the petitioner. After a year passed with no forfeiture proceeding, the petitioner filed a petition for the return of his seized property, pursuant to Tennessee Code Annotated § 39-11-709. The respondents filed a motion to dismiss or for summary judgment, asserting that they no longer had possession of the property. The trial court granted the motion. The petitioner now appeals. We reverse and remand, finding that the petition was correctly filed in the county in which the property was seized, that it correctly named as the respondents the parties who seized the property, and that the respondents were not entitled to dismissal of the petition on the basis that the respondents had transferred possession of the property.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/094/James%20C%20McWhorter%20v%20Allen%20Selby%20and%20Sparta%20opn.pdf

Manual on Recurring Problems in Criminal Trials

This is a good resource from the late Judge Vorhees and the Federal Judicial Center, to wit: Donald S. Vorhees, Fed. Judicial Ctr., Manual on Recurring Problems in Criminal Trials (2001), available at http://www.fjc.gov/public/pdf.nsf/lookup/ManRecPr.pdf/$file/ManRecPr.pdf

Criminal Law: Probable Cause

This is a rare post to this blog because it has to do with criminal law. However, it's an important case from the Tennessee Supreme Court on probable cause, to wit: State v. Saine, No. M2007-01277-SC-R11-CD (Tenn. Nov. 4, 2009).

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/094/SC%20State%20v%20Cedric%20Ruron%20Saine%20opn.pdf

Article on Balance Billing

Here's an AP article from the Miami Herald on balance billing:

http://www.miamiherald.com/news/florida/AP/story/1314183.html

Medical Malpractice: Plaintiff Fails to Survive Summary Judgment

The Tennessee Court of Appeals issued its opinion today in Range v. Sowell, No. M2006-02009-COA-R3-CV (Oct. 30, 2009). The Court held that summary judgment was proper due to a number of reasons, most notably the statute of limitations.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/094/Katherine%20Range%20v%20CM%20Sowell%20Jr%20DDS%20Opn.pdf

There is also discussion in Range on discretionary costs.

Wrongful Death vs. Non-Fatal Personal Injury to the Deceased

The Court of Appeals issued its opinion in Timmins v. Lindsey, No. M2009-00500-COA-R3-CV (Tenn. Ct. App. Oct. 29, 2009). This case discusses the difference between a wrongful death claim and a claim for personal injury to the deceased, which does not cause death, and how the proceeds from each claim are to be distributed.

Here's a link to the case:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/094/Timmins%20v%20Lindsey%20OPN.pdf

Medical Malpractice: Plaintiff Fails to Survive Summary Judgment on Appeal

The Eastern Section of the Tennessee Court of Appeals just issued its opinion in Estate of Cusatis v. Casey, No. E2008-01786-COA-R3-CV (Tenn. Ct. App. Oct. 28, 2009). The Court held that the plaintiff's expert failed to satisfy the requirements of Tennessee's medical malpractice act.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/094/Estate%20of%20Jeffrey%20M%20Cusatis%20v%20Robt%20R%20Casey%20MD%20opn.pdf

A Person's Character

This has to do with the law, and almost everything else too. A few years ago, a friend of mine said to me: "You can tell a lot about a person's character by how they treat people when they don't have to be nice to them." That struck a cord with me and I've never forgotten it. I doubt I ever will.

Food for thought.

What is a "Tort"?

You hear people talk about "torts" and "tort reform" a lot, but not may people know what a tort is. According to a leading legal dictionary, here's the definition: a tort is defined as "a civil wrong for which a remedy may be obtained, usu. in the form of damages[.]..." Notice that it's a civil wrong as opposed to a criminal wrong. As we all know, the state or federal government prosecutes criminal wrongs (i.e., crimes).

Tort law exists to protect you and me. For example, if your car gets hit from behind, with you in it, you get hurt, and your car is totaled, tort law says you have a remedy for the harms to your property and body. Further, suppose a young husband with a wife and kids is wrongfully killed by another. The law --- specifically tort law --- says the dead husband's wife and kids have a claim for the wrong done to them. This way, the wife and kids have some form of compensation from the wrongdoer and won't have to rely upon family or others to get by after such a devastating loss. Doesn't this make sense? Doesn't this seem like the right thing to do? Shouldn't we as a society make a wrongdoer accept responsibility? That's what tort law is all about.

This is why I'm so baffled, shocked, and amazed when others speak of tort reform (which should actually be called tort deform); and when they say they want to get rid of our civil justice system. Frankly, the civil justice system that we have now has worked well for hundreds of years. As the old saying goes: "If it ain't broke, don't fix it."

Medical Malpractice: Another Locality Rule Opinion

Yesterday the Court of Appeals issued its opinion in Plunkett v. Bradley-Polk, OB-GYN Serv's., P.C., No. E-2008-00774-COA-R3-CV (Tenn. Ct. App. Sept. 30, 2009). Plaintiffs' expert primarily practiced in a large metropolitan community in Virginia near Washington, D.C. but demonstrated that he was familiar with other smaller communities in Virginia that were similar to the community in Tennessee where the defendants practiced. The trial court held that the plaintiffs' expert was disqualified under the locality rule. The Court of Appeals reversed the trial court and held that it abused its discretion in disqualifying Plaintiffs' expert.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Sara%20E%20Plunkett%20v%20Bradley-Polk%20OBGYN%20OPN.pdf

Medical Malpractice, Collateral Estoppel & Comparative Fault

The Tennessee Supreme Court just issued its opinion in Mullins v. State of Tennessee, E2007-01113-SC-R11-CV (Tenn. Sept. 30, 2009). It is a medical malpractice case, which was originally filed in federal court. However, it was later discovered that some of the defendants were immune from suit under federal law and had to be sued in the Tennessee Claims Commission. This opinion illustrates the interplay between federal and state court in Tennessee and how collateral estoppel affects that interplay.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/093/SC%20Juanita%20Mullins%20v%20State%20OPN.pdf

I'd like to thank John Day for bringing this opinion to my attention. Thanks John!

John's blog can be viewed at: http://www.dayontorts.com/. You should check it out on a regular basis.

Civil Procedure: Motions to Revise Under Tenn. R. Civ. P. 54.02

Here's a good opinion from the Tennessee Court of Appeals that discusses motions to revise under Rule 54.02 of the Tennessee Rules of Civil Procedure, motions for summary judgment, and the Dead Man's Statute. The case is Johnson v. Tanner-Peck, LLC, W2008-00767-COA-R3-CV (Tenn. Ct. App. Sept. 25, 2009).

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Clarence%20E%20Johnson%20v%20Tanner-Peck%20LLC%20OPN.pdf