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

The Garretson Firm Resolution Group has issued this report on the status of reporting personal injury and wrongful death claims and the need for the utilization of medical set asides.

The bottom line:  starting October 1, 2010 insurers will be required to gather certain information about claimants asserting personal injury and wrongful death claims and share that information with Medicare.  More importantly, there is no rule going into effect that requires parties who settle liability claims to calculate a “set aside” amount that the injured claimant must spend on injury-related care before Medicare picks up the tab again.  

Here is the Garretson Firm's recommendations for claimant's counsel:

 

Medicare’s role in settlements is undeniably evolving.  As most claimants’ attorneys already understand, formal procedures must be implemented in their practice, and they cannot wait to receive a notice of a potential claim from CMS before taking action.  The agency is not required to give notice, so lawyers must proactively identify, verify, and satisfy Medicare’s interests before distributing any settlement proceeds.  

For those practitioners who have not yet created solid internal protocols, this new law places greater importance on making sure that an appropriate Medicare verification and resolution strategy is fully integrated into their practice.  The tenets to such a successful strategy would include protocols for getting started early, enhanced client intake information, client education modules  and, for complex cases, perhaps changes in retainer agreements that allow the attorney to seek outside assistance to handle lien verification and resolution.

 

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This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Tennessee Tort Cases.  To order the book go here.

§ 15.15 Effect of Concerted Action

The Case: Resolution Trust Corp. v. Block, 924 S.W.2d 354 (Tenn. 1996).

The Basic Facts: Plaintiff, conservator and then receiver for a savings and loan association, brought suit against former officers of the savings and loan association for breach of fiduciary duty, negligence per se and breach of contract after Defendants approved several loans made by the corporation. 

The Bottom Line:

•  “In an action for damages on behalf of a corporation against its officers and directors who are found to be liable for their collective breach of fiduciary duty and contract and for negligence, the liability of the officers and directors to the corporation is joint and several, not proportional to fault.” 924 S.W.2d at 355.

• “Even those commentators who have advocated the abolition of joint and several liability as a corollary to the adoption of comparative fault have acknowledged the need for retaining its application to collective or concerted actions. See C. Mutter, [Moving to Comparative Negligence in an Era of Tort Reform: Decisions for Tennessee, 57 Tenn. L. Rev., 199, 305 (1990)] (hereafter 57 Tenn. L. Rev. at § ____); [Prosser and Keeton on Torts], § 52 (W. Page Keeton ed.) (5th ed. 1984); 19 C.J.S. “Corporations,” § 484 (1990). For example, in an article published before our decision in McIntyre, Professor Mutter advocated the adoption of a comparative fault system in Tennessee. While noting that ‘comparative negligence and joint and several liability do not mesh,’ 57 Tenn. L. Rev. at 318-19, she added the following:

In order to understand joint and several liability it is necessary to advert to some of the general principles applicable to joint tortfeasors. Initially at common law, a ‘joint tort’ was limited to actual concerted action. Thus, all individuals, who with a common purpose, committed a tort against the plaintiff were liable for the entire damage done, ‘although one might have battered, while another imprisoned the plaintiff, and a third stole the plaintiff’s silver buttons.’ Only a tacit understanding, not an express agreement was necessary. Liability for concerted action continues to be joint and several today, and in general opponents of the rule have no quarrel with its application in this context.

Id. at 305 (emphasis added) (citations omitted).” Id. at 357.

• “Under either the historic or modern approach, the result is the same. In an action for damages by or on behalf of a corporation against the officers and directors of the corporation in which the officers and directors are found to be liable as the result of their collective breach of fiduciary duty, negligence, or breach of contract, the liability of the defendants to the corporation is joint and several.” Id.

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Tennessee has pattern jury instructions for civil and criminal cases, but our federal judicial circuit only has pattern instructions for criminal cases.

Here is a list of the federal circuits that have pattern jury instructions in civil and criminal cases, as well as a link to those instructions.

The Tennessee civil  instructions are for sale for an outrageous price - $283.  If you need to purchase them, go here.    If you need financial assistance to buy this book (which is updated every year with the publication of a new book, not a pocket part that can be inserted into the back of the old one)  learn more here.

And, by the way and despite the representation in the Thomson Reuters ad, the book is sold in soft cover.

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Rule 5 of the Tennessee Rules of Civil Procedure was amended to permit papers to be served on attorneys of parties via electronic mail.   Here the language added to Rule 5 to accomplish that result:

(2)(a) Service upon any attorney may also be made by sending him or her the document in Adobe PDF format to the attorney's email address, which shall be promptly furnished on request. The sender shall include language in the subject line designed to alert the recipient that a document is being served under this rule. On the date that a document served under this rule is electronically sent to an attorney, the sender shall send by mail, facsimile or hand-delivery a certificate that advises that a document has been transmitted electronically. The certificate shall state the caption of the action; the trial court file number; the title of the transmitted document; the number of pages of the transmitted document (including all exhibits thereto); the sender's name, address, telephone number and electronic mail address; the electronic mail address of each recipient; and the date and time of the transmission. The certificate shall also include words to this effect: "If you did not receive this document, please contact the sender immediately to receive an electronic or physical copy of this document." The certificate shall be sent to all counsel of record.

(b) An attorney who sends a document to another attorney electronically and who is notified that it was not received must promptly furnish a copy of the document to the attorney who did not receive it.

(c) A document transmitted electronically shall be treated as a document that was mailed for purposes of computation of time under Rule 6.

(d) For good cause shown, an attorney may obtain a court order prohibiting service of documents on that attorney by electronic mail and requiring that all documents be served under subsection (1).

To be sure, the method of serving papers electronically is more cumbersome that the method used under the Federal Rules of Civil Procedure.  However, the Rules Commission was concerned that many lawyers did not have confidence in service by email and thus adopted a "belt and suspenders approach" that required the contemporaneous mailing of a notice of service.

I suspect that the mailed-notice requirement will be dissolved in five years or less.

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Have you subscribed to the Tennessee Trial Law Report - Tort Law Edition?   Each month Brandon Bass and I summarize the recent Tennessee appellate decisions in the field of tort,civil procedure, evidence and trial law and publish those summaries in the TTLR.   Importantly, we do not just regurgitate the opinion - we summarize it and give our opinion of whether the decision is consistent or inconsistent with prior law and the public policy of Tennessee.

The newsletter also includes an article by me on some aspect of the law of civil trial in Tennessee.  Next month's edition includes Part 4 of my series on the law of the use of depositions at trial.  

Finally, the newsletter includes a list of all cases pending before the Tennessee Supreme Court that are of interest to tort lawyers, indicating the status of those cases before the court (as best we can tell from public data).   

Earlier this year we changed the newsletter to an electronic format and deliver it to our subscribers in a color, PDF format at the beginning of each month.  The format allows us to link to the actual opinions and rules for the convenience of our readers.  It has also permitted us to drop the price substantially - the newsletter is only $149 per year (no sales tax) plus $49 for each additional lawyer in your firm.

Hundreds of lawyers and judges in Tennessee subscribe to this newsletter in an effort to stay current with ever-changing tort law.   

You can receive a free sample of the September edition by emailing Kori Conner at kconner@dayblair.com.   You can subscribe here.

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ABC News reports that  Dr. Frank Ryan, the surgeon who performed extensive plastic surgery early this year on Heidi Montag, was sending a Twitter message about his dog before his fatal car crash Monday in Los Angeles.  The dog, who was in the car at the time of the crash, survived injuries to the head, eye and paw.   Dr. Ryan died of blunt force head injuries.

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This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Cases in Tennessee Tort Law.  To order the book go here.

§ 15.14 Duty of Defendant to Allege Causative Acts or Omissions of Another

The Case: George v. Alexander, 931 S.W.2d 517 (Tenn. 1996).

The Basic Facts: Plaintiff’s leg was injured after undergoing surgery which required administering spinal anesthesia beforehand. Plaintiff subsequently brought a malpractice action against two anesthesiologists who treated Plaintiff before surgery.

The Bottom Line: 

• “This case presents the following issue for our determination: whether a defendant in a negligence case must, pursuant to Rule 8.03 of the Tennessee Rules of Civil Procedure, plead comparative fault as an affirmative defense if the defendant wishes to introduce evidence that a person other than itself caused the plaintiff’s injury. We conclude that the defendant is required to affirmatively plead comparative fault in such a situation; and because that was not done in this case, we reverse the judgment of the Court of Appeals.” 931 S.W.2d at 517.

• “[T]he defendants argue that Rule 8.03 is triggered only when the defendant seeks to show that another person was legally at fault for the plaintiff's injuries. Because negligence, the type of legal fault at issue here, requires proof of the elements of duty, breach of duty, causation in fact, proximate causation and injury, McClenahan v. Cooley, 806 S.W.2d 767, 774 (Tenn.1991), the defendants contend that Rule 8.03 does not apply unless they attempted to prove that Dr. Daniell’s conduct satisfied all these elements.” Id. at 520.

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New Jersey has a well-developed body of case law on the issue of spoliation of evidence.  Tartaglia v. UBS PaineWebber, Inc.,  961 A.2d 1167 (N.J. 2008) sets forth the history of the development of the law in the state.

On August 3, 2010 the Supreme Court of New Jersey issued yet another opinion in the area, this time in the context of construction litigation.  In Robertet Flavors, Inc. v. Tri-Form Const., Inc., 2010 WL 3022121  (N.J. Aug. 3, 2010), the court wrestled with the issue of what factors to consider when determining what sanction should be imposed for spoliation of evidence in construction litigation.   After surveying the law from across the country, the court adopted this test:

[C]ourts confronted with spoliation in the context of commercial construction litigation should recognize that a variety of factors bear on the appropriate remedy. In particular, courts should consider all of the following: the identity of the spoliator; the manner in which the spoliation occurred, including the reason for and timing of its occurrence; the prejudice to the non-spoliating party, including whether the non-spoliating party bears any responsibility for the loss of the spoliated evidence; and the alternate sources of information that are, or are likely to be, available to the non-spoliator from its own records and personnel, from contemporaneous documentation or recordings made by or on behalf of the spoliator, and from others as a result of the usual and customary business practices in the construction industry. Courts should then balance all of those considerations in crafting the appropriate remedy with an appreciation for the ways in which the construction industry itself provides them with unique tools with which to “level the playing field” and achieve an appropriate remedy for spoliation.

The court went on to explain that

In the construction litigation context, it will often be the case that a sanction for spoliation other than dismissal will achieve our traditional goals, which are “to make [the non-spoliating party] whole, as nearly as possible, ... to punish the wrongdoer; and to deter others from such conduct.”  Identifying the appropriate sanction, however, entails utilizing all of the means at the court's disposal to effect a just result. Those means include, of course, all of the remedies that we have traditionally recognized, but they are not limited to adverse inferences, bifurcated proceedings, preclusion of evidence, and dismissal. Instead, they might also include, as here, limitation of claims to only those that can be tried fairly, with dismissal of others, or an award of costs caused by the spoliation, if the costs can be quantified and assessed against the offending party.  (Citation omitted.)

Of course, the court made it clear that this opinion applied only to commercial construction litigation.  However, every tort lawyer researching the issue of spoliation in a tort case would learn a lot about the issue by reading this opinion. 

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This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Cases in Tennessee Tort Law.  To order the book go here.

§ 15.13 Bifurcated Fault Allocations

The Case: Grandstaff v. Hawks, 36 S.W.3d 482 (Tenn. 2000).

The Basic Facts: Multi-car wreck resulted in multiple claims, including both drivers suing each other. 

The Bottom Line:

• “McIntyre v. Balentine was a typical two-party motor vehicle collision case. One driver sued the other driver for negligence, and the other driver denied that he was negligent and asserted that the plaintiff driver was contributorially negligent. The jury returned a verdict for the defendant after hearing evidence that both drivers had been drinking and that the plaintiff driver had been speeding. The Tennessee Supreme Court vacated the judgment and remanded the case for another trial based on its newly minted comparative fault principles. To assist the parties, the Court provided suggested jury instructions and a suggested verdict form suitable for two-party litigation only. See McIntyre v. Balentine, 833 S.W.2d at 59-60. The Court also invited the Committee on Civil Pattern Jury Instructions to promulgate new standard jury instructions and pointed out that modifications to its two-party instructions would be required for ‘more complex litigation.’ See McIntyre v. Balentine, 833 S.W.2d at 58, 59.” 36 S.W.3dat 490.

• “The Committee on Civil Pattern Jury Instructions responded to the Tennessee Supreme Court’s invitation by issuing proposed instructions and verdict forms intended to replace the suggested instructions and forms appended to McIntyre v. Balentine. See 8 Committee on Civil Pattern Jury Instructions, Tennessee Pattern Jury Instructions T.P.I. 3-Civil 3.01 - 3.63 (3d ed. 1997) (“T.P.I. 3-Civil”). In addition to a two-party verdict form, see T.P.I. 3-Civil 3.59, the Committee also prepared a verdict form applicable to two-vehicle collision cases involving two drivers and two passengers. See T.P.I. 3-Civil 3.61. We have determined that this instruction is not satisfactory because it fails to differentiate between a passenger’s fault that was a cause of the collision and a passenger’s fault that only contributed to the passenger’s injuries.” Id. at 491.

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