Happy New Year!!

I hope you have a great 2010.

Medical Malpractice: Plaintiff Survives Summary Judgment with a Negligence Per Se Claim

The Tennessee Court of Appeals just issued its opinion in Watkins ex rel. Watkins v. Affiliated Internists, P.C. No. M2008-01205-COA-R3-CV (Tenn. Ct. App. Dec. 29, 2009). The plaintiff was able to survive summary judgment with a negligence per se claim. The court held as follows:

Thus, we must respectfully disagree with the trial court’s finding that TENN. COMP. R. & REGS. 0880-2-.18(7) cannot support the Plaintiff’s claim of negligence per se. We find that it constitutes a standard of care, and that the trial court erred in denying the Plaintiff’s motion to amend the complaint to allege a claim of negligence or negligence per se based on the breach of that standard.

Id., slip op. at 31 (emphasis added). As you can surmise, the defendant failed to comply with the above-referenced rule/regulation. See id.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/094/John%20Mark%20Watkins%20v%20Affiliated%20Internists%20and%20TK%20Pardue%20MD%20OPN.pdf

Harris v. Horton: Petition to Rehear Filed

I posted about Harris v. Horton on December 15, 2009. A petition to rehear under Rule 39(a) of the Tennessee Rules of Appellate Procedure was filed yesterday.

The current cite to the case, as of December 28, 2009, is as follows: Harris v. Horton, No. M2008-02142-COA-R3-CV, 2009 WL 4801719 (Tenn. Ct. App. Dec. 14, 2009), petition for reh'g filed (Dec. 28, 2009).

Municipal Codes in Tennessee

Here is a link to Tennessee municipal codes, which has been updated as of December 12, 2009, to wit:

http://mtas-notes.ips.utk.edu/public/web.nsf/Web/View+Codes

Merry Christmas!

I hope you all have a great Christmas. I'm looking forward to spending this one with my family.

Interference with and Mishandling of Human Remains; Invasion of Privacy; and Reckless Infliction of Emotional Distress

The Court of Appeals released its opinion yesterday in Harris v. Horton, No. M2008-02142-COA-R3-CV (Tenn. Ct. App. Dec. 14, 2009). The opinion has to do with the causes of action of interference with and mishandling of human remains under the Restatement (Second) of Torts section 868 (1979); invasion of privacy under the Restatement (Second) of Torts sections 652B & 652D (1977); and reckless infliction of emotional distress under the Restatement (Second) of Torts section 46 (1965).

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/094/Debbie%20Harris%20et%20al%20v%20Don%20Horton%20and%20Robertson%20County%20opn.pdf

Summary Judgment: Another Post-Hannan Tennessee Supreme Court Case

Yesterday the Tennessee Supreme Court issued its opinion in Mills v. CSX Transp., Inc., No. E2006-01933-SC-R11-Cv (Tenn. Dec. 7, 2009). While this is a FELA case, it offers further explanation and clarification of when summary judgment is appropriate in a Tennessee state court action. Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/094/SC%20Charles%20D%20Mills%20v%20CSX%20Transportation.pdf

Miranda Rights

The United States Supreme Court recently heard a case from Florida regarding an accused's Miranda rights. The case is Florida v. Powell. Here's a link to a story about that case:

http://news.yahoo.com/s/ap/20091207/ap_on_go_su_co/us_supreme_court_miranda

Summary Judgment: New Tennessee Supreme Court Case

The Tennessee Supreme Court issued its opinion in Stanfill v. Mountain, M2006-01072-SC-R11-CV (Tenn. Dec. 3, 2009). The opinion offers a good discussion of our state's recently clarified summary judgment standard, which is discussed in my November 8 and 15, 2008 posts to this blog.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/094/SC%20Robin%20Lee%20Stanfill%20et%20al%20v%20John%20T%20Mountain%20et%20al%20OPN.pdf

Chief Justice Holder wrote a separate opinion, which concurs in part and dissents in part with the majority opinion, to wit:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/094/SC%20Robin%20Lee%20Stanfill%20et%20al%20v%20John%20T%20Mountain%20et%20al%20DIS.pdf

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