Day On Torts : Tennessee Injury Lawyer & Attorney : John Day : Personal Injury, Accidents : Serving Memphis, Nashville, Knoxville

The Cross-Examination Blog is a good blog to add to your reading list.  Written by Ronald H. Clark, the blog is filled within helpful information for personal injury and wrongful death lawyers.

The following is from a recent post titled "Truisms in Cross-Examination:"

David Paul Jones’s Rules of Cross-Examination (Jones was a British barrister who wrote a century and a half ago)

1. Except in indifferent matters, never take your eye from that of the witness; this is a channel of communication from mind to mind, the loss of which nothing can compensate. Truth, falsehood, hatred, anger, scorn, despair, and all the passions--all the soul--is there. 

2. Be not regardless, either, of the voice of the witness; next to the eye this is perhaps the best interpreter of his mind. The mental reservation of the witness--is often manifested in the tone or accent or emphasis of the voice.

3. Be mild with the mild; shrewd with the crafty; confiding with the honest; merciful to the young, the frail, or the fearful; rough to the ruffian, and a thunderbolt to the liar. But in all this, never be unmindful of your own dignity. Bring to bear all the powers of your mind, not that you may shine, but that virtue may triumph, and your cause may prosper.

4. An equivocal question is almost as much to be avoided and condemned as an equivocal answer; and it always leads to, or excuses, an equivocal answer. Singleness of purpose, clearly expressed is the best trait in the examination of witnesses, whether they be honest or the reverse. Falsehood is not detected by cunning, but by the light of truth.

5. But in any result, be careful that you do not lose your temper; anger is always either the precursor or evidence of assured defeat in every intellectual conflict.

6. Like a skillful chess-player, in every move, fix your mind upon the combinations and relations of the game--partial and temporary success may otherwise end in total and remediless defeat.

7. Never undervalue your adversary, but stand steadily upon your guard; a random blow may be just as fatal as though it were directed by the most consummate skill; the negligence of one often cures, and sometimes renders effective, the blunders of another.

8. Be respectful to the court and to the jury; kind to your colleague; civil to your antagonist; but never sacrifice the slightest principle of duty to an overweening deference toward either.

9. Thus, as you rise to cross-examine a witness, you should be armed with the skill to adopt the style required for this particular witness and jury, the technique to search out the truth, the knowledge of guidelines that have developed over the centuries, and, most important, the wisdom to discern the proper combination of style and technique you need to serve well the consummate role of the cross-examiner--the truth giver. 

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John Travolta,  one of the better known actors in the world, has been hit with two lawsuits alleging that he engaged in sexual misconduct.

The allegations come from two masseurs who, so far,  have refused to reveal their names.  In one case, the masseuse claims that Travolta solicited sexual conduct with him on January 16, 2012 at the Beverly Hills Hilton.  Travolta allegedly began rubbing the masseuse's leg, touched his scrotum and the shaft of his penis.  Travolta adamantly denies the accusations, and has offered proof that he was in New York at the time the alleged incident occurred. Now, the accuser says he got the date wrong, and that the real date was some time earlier.

Here is a copy of the complaint in  case.  The theories of liability are assault, battery, and intentional infliction of emotional distress.

The second suit, also by an unnamed masseuse, claims inappropriate conduct in Atlanta on January 28, 2012.  A press release by Travolta's attorney says that "Before the attorney for the two anonymous plaintiffs filed the claim on behalf of the second person who refuses to disclose his identity although required to do so, it is obvious that he checked media reports that my client was in Atlanta working on a movie."   The second suit was added to the claim made by the first man in the amended complaint.  It includes the same causes of action, but adds a civil rights violation under California law.  Exactly how the second plaintiff, who alleges that the wrongful acts took place in Atlanta, will be able to seek relief under California civil rights law is unclear.

The lawyer for the plaintiffs in both cases is Okorie Okorocha, a Whittier College School of Law grad.  He claims that more "victims" have come forward and that he is in the process of vetting their claims.  If Okorocha was correctly quoted, he does not suffer from lack of confidence:  "I'm the real deal,” Okorocha told CNN. “He [Travolta's lawyer Martin Singer] stepped into the ring with a gorilla. I am relentless."

Now, a third person has come forward with similar complaints.  The article announcing this third claim includes a statement by Okorocha which says that more than 100 men have come forward with similar claims.

The alleged conduct, if it occurred, would rise to the level of civil battery (to the extent intentional touching occurred) and perhaps civil assault. Whether the conduct would rise to the level of intentional infliction of emotional distress is a closer call - I certainly do not profess to know California or Georgia law on that subject. 

What  really troubles me about these cases is that I can't figure out what the damages are.  Assume that everything stated in the amended complaint is true.  What is the injury?  The most significant damage is the  impact of the litigation on the private lives of the two plaintiffs, but they brought that on themselves by filing suit.  

Don't get me wrong.  If Travolta did exactly what he is alleged to have done, most of us would agree that the conduct is bizarre and  even creepy.  But, really,  how would that cause any harm to anyone that would justify a lawsuit?   There was no violence and no threat of violence.  True, the conduct alleged is  admittedly, shall we say, an aggressive request and outreach for sexual favors.  However, there are lots of aggressive requests for sexual favors, most heard between Midnight and 3:00 a.m. in  bars occupied by those under 30. I think most people who were at the receiving end of such action would laugh it off and have a great story to tell.

Then again, usually the person seeking the sexual favors is not one of the most famous actors in the world.  It is John Travolta's fame that is driving these claims.

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Tennessee personal injury lawyers know that the Tennessee General Assembly is a far different place than it used to be.  The Legislature is determined to change the rules of tort litigation for the benefit of defendants and those who would be defendants. 

What follows is a list of legislation enacted during the 2012 session that has been signed by the Governor and is available on the Tennessee Secretary of State's website as of Friday, May 4, 2012. I know that there are other bills that have been passed but have not yet found their way to the Secretary of State's site.  I will post on those public acts when they become available.

•  Public Chapter 506 requires that institutions of higher learning do background checks on those who have access to student rooms at those institutions. (This was passed in the last legislative session but I did not include it on last year's list.)
• Public Chapter 518 impacts the defense of "unclean hands."
• Public Chapter 539 exempts ambulances for certain requirements imposed on certain medical transportation companies.
• Public Chapter 552 creates a cause of action for those injured or otherwise harmed by mislabeled sorghum molasses.  Really. 
• Public Chapter 568 requires that all recreational vehicles available for rental or lease have functioning carbon monoxide detectors and provides that the failure to do so gives rise to civil liability, including payment of attorney's fees.
• Public Chapter 613 creates a cause of action for victims of human trafficking offenses.
• Public Chapter 649 allows nursing homes to employ physicians. 
• Public Chapter 678 provides that physician's assistants may not be subpoenaed to trial but may be required to give a deposition.
• Public Chapter 798 appears to be a house-keeping Act that primarily deletes reference to "medical malpractice" and substitutes the language "health care liability action." 
• Public Chapter 844 enacts "Jaclyn's Law," which grants civil immunity to first responders in certain circumstances involving entry into homes.

Public Chapter 862 limits the liability of whitewater rafting companies.

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Today, May 4, 2012, is the 20th anniversary of the landmark McIntyre v. Balentine opinion, the case where the Tennessee Supreme Court adopted modified comparative fault.

All in all, most would say that the comparative fault scheme in Tennessee improved the quality of the civil justice in Tennessee.  I agree.  For the most part, the Tennessee Supreme Court has done a fine job developing the common law in this important field.

There is one notable exception, although it is not entirely the Tennessee Supreme Court's fault.

Our Legislature has granted certain people and corporations privileged status in the law. Those special privileges have existed for decades, and the current General Assembly seems hell-bound to not only protect those that exist but expand them to others  who have the power to seek and obtain them.

What am I talking about?  First, governmental immunity.  Governmental immunity includes damage caps, although they are not typically labeled as such.  But, in my opinion, if the financial obligation for the harm you cause  is statutorily  limited you  enjoy a type of immunity.   The notion that our governments - federal, state, and local -  are not fully responsible for the harm they negligently causes its citizens is an outrage.  

Second, the immunity given to those special groups who benefit from statutes of repose.  Once again, some cringe when I label this as an immunity, but the fact of the matter is that statutes of repose are yet another way that people avoid responsible for harm they cause.  Tennessee has many of these statutes, the most offensive of which is the four-year statute of repose protecting engineers, architects, and contractors.  These statutes extinguish liability because of the mere passage of time, and they are wrong.

The Tennessee Supreme Court was well aware of these laws when it adopted a pure several liability system.  They did so, in dicta, in McIntyre.  They had the opportunity to fix that mistake in Dotson v. Blake, 29 S.W.3d 26 (Tenn. 2000) and Carroll v. Whitney, 29 S.W.3d 14 (Tenn. 2000).   Specifically, the Court had the opportunity to adopt a modified joint and several liability system that would have spread the cost of immunity of any type on all of those who benefit from the grant of immunity.  Instead, it chose to stick with several liability, and place all of the burden of a grant of immunity on the injured plaintiff.

What do I mean?  Take for example the grant of immunity to a local government for negligent inspection.  There are many circumstances under which a local government is required to inspect property, but the law grants that governmental entity  immunity from doing a sloppy inspection. Thus, if a building inspector negligently okays the electrical system in a new house and issues a certificate of occupancy, but an electrical fire consumes the house two days later and a family perishes, the government has no liability.

Now, the contractor can still be sued, but it can ask for fault to be assigned to the sloppy governmental inspector even though the plaintiff can not sue the government or the inspector.  Is that fair?  I mean really, is that fair?

I think not,  but consider this: the unfairness is heightened because of several liability.

Let me explain.  The alleged purpose behind the grant of immunity to governments which conduct negligent inspections is that expecting government  to do their job correctly would increase costs to taxpayers.  Thus, the argument goes, we all pay lower taxes because governments are not responsible for their actions.

Note the 'we all pay lower taxes" phrase in the preceding paragraph.  The negligent contractor pays lower taxes, too, not just the now deceased family.  But the contractor not only gets the benefit of paying lower taxes. It also gets the opportunity to reduce its fault by blaming someone the plaintiffs cannot sue in the event its negligence combines with the government's negligence to harm another.

Thus, the purported benefit of immunity flows to all, but all of the costs of immunity are borne by the injured and the dead.  

And that is wrong.  Dead wrong.

If we are going to grant privileged status (immunity of any type) to those with sufficient wealth or influence to obtain it, the cost of that immunity should be born pro rata by all those assessed with fault in a given incident.  It should not be thrust solely upon the dead and injured.  The opportunity to fix this problem is what  the Tennessee Supreme Court lost when it issued Dotson and Carroll in 2000.

Looking at it now, perhaps it would have made a difference for only a limited period of time anyway. There are those in the Republican party who not only want to abolish the few, limited situations where joint and several liability applies but also eliminate vicarious liability.  (Can you believe that - vicarious liability is on the chopping block?)  So, if the Court had done what I believe it should have done it undoubtedly would be repealed by our new General Assembly.

The last 20 years have been a fascinating time to be a tort lawyer in Tennessee.  Our Court is to be congratulated for having the courage to abolish contributory negligence as an affirmative defense, and for a great many other comparative fault and tort decisions that have advanced the cause of civil justice in Tennessee.  

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T.C.A. Section 20-1-119 is one of the most important statutes for those of us who practice personal injury law in Tennessee, and the recent Mills v. Fulmarque opinion issued by the Tennessee Supreme Court has changed the way many people thought about this statute.

Subject to several important limitations,  the purpose of section 20-1-119 is to provide plaintiffs with an opportunity to add additional defendants to a case in which comparative fault is an issue, notwithstanding the expiration of the statute of limitations.  The Mills court held that section 20-1-119 provides a ninety-day window in which a plaintiff may name a new non-party as a defendant only if the defendant alleging comparative fault against the new non-party was sued within the statute of limitations applicable to the plaintiff’s cause of action.

The Tennessee Bar Association has published an article I wrote on the statute and the  MIlls  opinion as the cover story for the May 2012 edition of the Tennessee Bar Journal.  

My thoughts about the impact of Mills are summarized in the conclusion to the article:

At the end of the day, Mills is not a catastrophic development in Tennessee tort law. Rather, it is just another decision that places a burden on plaintiff’s counsel to develop a strategy and employ tactics to attempt to avoid the risk of an empty chair at trial. The biggest hazard faced by plaintiffs occurs when the wrongdoers have a business or insurance coverage reason to collude with one another to create an empty chair.

I hope that this article will be a help to Tennessee lawyers who have questions with the statute. Tort lawyers will find additional guidance on the entire field of Tennessee comparative fault law in a book I wrote 15 years ago with Donald Capparella.  John Wood was added as an additional author in a later edition.  Tennessee Law of Comparative Fault is available for purchase from Thomson Reuters.

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Tennessee personal injury lawyers will read with interest this opinion from the Maryland Court of Appeals that declares that pit bulls are inherently dangerous and thus are not subject to the "first-bite" rule.  

In Tracey v. Solesky, No. 53 (MD. Ct. of App. Apr. 26, 2012) the dog bite arose from "an attack by a pit bull named Clifford. Notwithstanding his relatively benign name, Clifford possessed the aggressive and vicious characteristics of both Trouble and Rampage."

The Court examined the history of pit bulls and cited to various sources to document the dangerous propensities of these animals.  After a careful, thorough examination of the law and public policy, the Court concluded as follows:

We hold that upon a plaintiff’s sufficient proof that a dog involved in an attack is a pit bull or a pit bull mix, and that the owner, or other person(s) who has the right to control the pit bull’s presence on the subject premises (including a landlord who has the right and/or opportunity to prohibit such dogs on leased premises as in this case) knows, or has reason to know, that the dog is a pit bull or cross-bred pit bull mix, that person is strictly liable for the damages caused to a plaintiff who is attacked by the dog on or from the owner’s or lessor’s premises. [Footnote omitted.]

The Court expressly refused to consider whether the same rule would apply to another dangerous breed, Rottweilers.

The Court explained the change in the law with this footnote:

In this case, we are modifying one of the elements that must be proven in cases involving pit bull attacks from knowledge that a particular dog is dangerous to knowledge that the particular dog involved is a pit bull. If it is a pit bull the danger is inherent in that particular breed of dog and the knowledge element of scienter is met by knowledge that the dog is of that breed.

I agree wholeheartedly with this opinion, but note that it could have unintended consequences.  First, to the extent that homeowner's insurance companies will still insure homeowners who have these dogs, my guess is that there will be a blanket exclusion of these dogs from homeowners coverage in the future.  This will leave injured parties to look only to the assets of the dog owners and this will mean that many pit bull victims will be left without compensation.

Second, state and local governments should work to ban people from owning pit bulls unless they prove proof of insurance or other evidence  financial responsibility.  These dogs are inherently dangerous, and any person who is fool enough to have one should be required to demonstrate that they will be able to bear the financial consequences of their actions.

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The National Practioner Data Bank, the entity that gathers data about medical malpractice claims, reports that paid medical malpractice claims continue to drop.

In 2001, the total number of paid claims was 20,319.  In 2010, the number had dropped to 13,277. Now, a new report released by Kaiser citing data from the NPDB indicates that paid claims for 2011 totaled 9497.

(The NPDB data for 2001 through 2010 is set forth in  Appendix D, Table 1.)

This data is consistent with my experience in Tennessee.  The passage of various laws have made medical malpractice cases less attractive for patients and their lawyers to pursue, and the jury pool has been impacted by decades of misinformation about the civil justice system in general and medical malpractice cases in particular.  

Once again, recall that as many as 98,000 people die in our nation's hospitals each year as a result of medical malpractice.  Undoubtedly, many more are injured.  The fact that less than 10,000 of those people receive compensation for injury or death arising from medical malpractice tells us that the health industry plan to avoid accountability for errors is working all too well.

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"1-800-Ask-Gary" is a medical and legal referral service in Florida founded by Sarasota chiropractor Gary Kompothecras.  If you have been to Central Florida you have seen their billboards, television ads and radio ads.  Television ad costs exceed $12M per year.

Business must be good -  last June Kompothecras paid a little more than $1 million for a three-year deal to put his service’s name on the amphitheater in Tampa.  And he built a home of almost 30,000 square feet.

However, 1-800-Ask-Gary has created more than a little controversy.  The referral business sends people to some 40  clinics operated by Kompothecras.  Lawyers pay to join the referral network and get cases from the referral service.

The Florida Bar thinks that the referral system skirts the rules on lawyer advertising.  And, back in November of last year Bloomberg News reported that the company was undergoing investigation for fraud by Florida's Division of Insurance Fraud and that the FBI was also investigation his company, Physician's Group.  

Bloomberg reported that

State investigators are trying to determine whether clinics or lawyers in the networks make unlawful payments for referrals and whether patients are being treated for non-existent injuries, Smith recently told the Florida bar association. The FBI wants to know whether lawyers are directing treatment based on how much insurance coverage patients have, according to people familiar with the matter. Only licensed medical practitioners are permitted to decide treatment.

Lawyers outside the 1-800-Ask-Gary Network complain about that the ads are grabbing cases and steering them to lawyers who use the medical offices to drive up settlements that work to the primary benefit of the chiropractors.

The referral network concept has expanded, and now includes companies such as "411 Pain."  411 Pain is a business that sells off territories, like franchises, to medical clinics.  When an accident victim calls the 411 Pain lawyer referral service, that call essentially goes to a pain clinic hotline.

Now, a Florida lawyer is fighting back. He has registered a website with the domain name "1800askgarysucks.com"  and recently won a fight to keep the name.   The lawyer persuaded an arbitrator that he was not using the site for a commercial purpose but instead was exercising his right of free speech

In Middle Tennessee we have certain medical clinics that are calling accident victims.  The callers tell the accident victim that they need a lawyer - and then (I assume) refer the victim to a lawyer.  I think that if a lawyer is participating in this effort he or she is violating of ethics rules, which prohibit solicitation of clients and contacting potential clients within 30 days of an accident.   One cannot do indirectly what he or she cannot do directly.

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In Rose v. H.C.A. Health Servs., the plaintiffs  searched unsuccessfully in Tennessee and bordering states for an expert in hospital risk management and quality assurance. Plaintiffs’ counsel submitted an affidavit stating that health care professionals in these areas would talk to him only if they were not identified. The affidavit expressed counsel’s belief that the size of defendant H.C.A. would make it difficult to find a witness in Tennessee or a contiguous state. The plaintiffs asked the trial court to waive the contiguous state requirement, and this request was denied. The plaintiffs appealed. The appellate court found no abuse of the trial court’s discretion, holding that the difficulties described by plaintiffs’ counsel in that case were “generalized and unspecific,” and reflected “only a cursory effort to find an appropriate expert.”Additionally, the plaintiffs’ counsel cited only a conversation with a single hospital administration in support of his assertion that the large size of the defendant corporation would make it difficult to find an expert without a conflict of interest. [Citations omitted.]

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