Dan Berexa's Tennessee Law Blog

What Percentage of Tort and Medical Malpractice Cases Go to Trial in Tennessee?

The statistics compiled by the Tennessee Administrative Office of the Courts on the percentage of tort and medical malpractice cases that go to trial in Tennessee are as follows:

There were 11,085 cases filed and 11,247 cases concluded in the medical malpractice and tort categories in fiscal year 2008-2009. Of the 11,247 case dispositions during the year, 608 (5.4 percent) proceeded to trial. Jury trials accounted for 260 (42.8 percent) and non-jury trials accounted for 348 (57.2 percent) cases that proceeded to trial.

Source: Annual Report of the Tennessee Judiciary Fiscal Year 2008-2009 pg. 331

Dan Berexa
Nashville, Tennessee

Will Lawyers Fall for the iPad?

Although Apple's iPad will not be released until later this month, it has generated a great deal of excitement. Thanks to the heads up from Ben Stevens a/k/a The Mac Lawyer, I plan on following Tablet Legal, a blog focusing on the use of Apple’s iPad by lawyers and the legal profession.

Ben Stevens will be in Nashville this Friday (March 5) for the Tennessee Bar Association's LawTech 2010 program. I look forward to catching up with Ben and hope to see some of you at LawTech.

Dan Berexa
Nashville, Tennessee

The Tennessee Bar Association's Law Tech 2010 - March 5, in Nashville

I have been a co-produced for the Tennessee Bar Association's annual "Law Tech" program for 4 years. This year Law Tech is back and better than ever. Registration includes breakfast, lunch, door prizes, many double-track sessions and even more sponsors with a total of 6.5 CLE credits.

Bill Ramsey and Phillip Hampton kick things off with their technology trends and updates for 2010. Then featured speaker, Ross Kodner, author of the law technology blog, Ross Ipsa Loquitur, will teach you how to go from paper to pixels to create the complete (and "Green") electronic case file.

Ben Stevens, author of The Mac Lawyer blog, will show you how to practice law in the clouds by using Software-as-a-Service (SaaS) to improve your practice, while Dr. Stuart Miles demonstrates how to use visuals to strengthen your trial strategy.

In the afternoon, Ross Kodner and Greg Siskind, author of the bestselling ABA book, The Lawyers Guide to Marketing on the Internet, and his Visalaw blog, will discuss how to grow your practice ethically and affordability using social media and viral marketing. Meanwhile, there will be a special panel discussion for Mac attorneys.

Next, Finis Price, author of another well known blog, TechnoEsq, will teach litigators how to use technology effectively during trial and at mediation, and Ross Kodner will demonstrate how to use practice management systems to practice more profitably and ethically. Finally, Ross Kodner will give a session on how NOT to commit malpractice with your computer while Conrad Jacoby gives a practical session on e-discovery.

In sum, you get to choose from 10 educational sessions for a total of 6.5 hours of CLE credit, breakfast and lunch is included, door prizes will be awarded at the conclusion of the event, and many of the speakers will be available for questions and networking throughout the day.

I hope to see you there!

Click Here to Register for Law Tech 2010.  

Dan Berexa
Nashville, TN

What Are the Chances the Tennessee Supreme Court Will Accept You Case?

According to the Annual Report of the Tennessee Judiciary for 2008-2009, the Tennessee Supreme Court disposed of 792 Rule 11 applications for permission to appeal during the period covered by the report. Of that number, 57 applications, or approximately 7% of the cases, were accepted by the court. The percentage of applications accepted has remained fairly constant over the last few years. This reinforces the importance giving full consideration the whether there is a reasonable chance of a case being accepted under the Rule 11 criteria.

Remember, error by a lower court is not one of the Rule 11 criteria. Although not exclusive, the factors used by the Tennessee Supreme Court in determining whether to grant permission to appeal are: (1) the need to secure uniformity of decision, (2) the need to secure settlement of important questions of law, (3) the need to secure settlement of questions of public interest, and (4) the need for the exercise of the Supreme Court's supervisory authority.

If you are going to seek permission to appeal, give it your best shot since the court is selective.   

Dan Berexa
Nashville, Tennessee

Tennessee Supreme Court Grants Appeal of Decision Holding Med Pay Carrier Liable for Missing Hospital Lien

In Shelby County Health Care Corp. v. Nationwide Mutual Ins. Co. (filed Feb. 6, 2009) the Western Section held that Nationwide impaired a hospital lien by applying some of its insured's med pay proceeds to an ambulance bill. As a result, Nationwide was held liable for the entire hospital bill (close to $34,000) pursuant to Tenn. Code Ann. § 29-22-104(b)(1), despite the fact that the med pay coverage was only $5000 in the first place. See my February 10, 2009 post for a discussion of the decision and the implications if it is not reversed or modified by the Tennessee Supreme Court. The application for permission to appeal was granted November 2, 2009.

Dan Berexa
Nashville, Tennessee

Comment Period Coming to End for Proposed Amendments to Tennessee Rules of Civil Procedure

Every year the Advisory Commission on the Rules of Practice and Procedure presents recommendations to the Tennessee Supreme Court for amendments the Rules of Procedure and Tennessee Rules of Evidence.  The Court is soliciting written comments on the proposed amendments through November 30, 2009.  The significant proposed amendments to the Tennessee Rules of Civil Procedure are as follows:

 

Rule 4.01 – the filing of a complaint is ineffective if plaintiff’s counsel intentionally delays issuance of the summons or service for more than thirty (30) days

Rule 5.02 – permits service on attorney via e-mail if document is in Adobe PDF format.  The sender must mail, fax or hand-deliver a seperate notice that advises that the document served has been transmitted electronically.

Rule 5(b) – permits courts to adopt local rule allowing electronic filing.

Rule 26.02 – permits discovery of liability insurance.  

Rule 41.02(2) – requires findings of fact and conclusions of law in the event trial court dismisses an action pursuant to Rule 41.02.

Dan Berexa
Nashville, Tennessee

 

Don't Count on Tennessee Courts to Limit Ratio of Punitive to Compensatory Damages to a Fixed Number

For those looking for a mathematical bright line rule to determine an acceptable ratio of punitive to compensatory damages, the Tennessee Supreme Court recently backed away from employing a strict ratio based analysis. Prior decisions indicated that a punitive award that was more than 4 times the compensatory award may not withstand constitutional scrutiny (See November 23, 2008 post). In Goff v. Elmo Greer & Sons Construction Co. (November 3, 2009), the Tennessee Supreme Court reduced what was originally a $2,000,000 punitive award to $500,000. While the reduction was significant, the compensatory damage award for the conduct that supporting the punitive award was only $3,305. Thus, even after the reduction, the punitive to compensatory damages ratio was 150:1.

 

Goff is another decision in the growing body of Tennessee Supreme Court precedent addressing the sufficiency of evidence necessary for a punitive damage award and the factors utilized in determining whether the size of the award violates the defendant’s due rights under the 14^thAmendment. In connection with determining whether a punitive award is grossly excessive and violates due process, the court is to focus on the degree of reprehensibility of the defendant's conduct; the disparity between the harm (or potential harm) and the award; and, the difference between the punitive damages and other available penalties. The bottom line is that Goff gives the court a great deal of discretion when reviewing a punitive award and a high punitive to compensatory damage ratio alone will not be enough to make the award suspect.  

 

Dan Berexa

Nashville, Tennessee

Legislature Passes Amendments to Tennessee Medical Malpractice Reform Bill

Last year the General Assembly enacted the medical malpractice reform bill which took effect on October 1, 2008. This week the Senate passed (SB 2109) which changes the notice and certificate of good faith provisions applicable to medical malpractice claims. 

The House passed the bill earier in the session and all indications are that the governor will sign the legislation. John Day provides a nice summary of the amendments in Day on Torts.

Dan Berexa
Nashville, Tennessee

AG's Take on What Will Happen if the Sun Goes Down on the Judicial Selection and Evaluation Commissions?

The Tennessee Judicial Evaluation Commission and the Judicial Selection Commission will cease to exist on June 30, 2009, absent intervening legislation to continue their existence and operation. What will happen if the General Assembly fails to act and either extend the life of the current commissions, or enact alternatives? How will appellate judges be appointed, evaluated and retained? How will trial court vacancies be filled prior to regular elections?

The Tennessee Attorney General issued an opinion last week which concludes as follows:  

1. Because there would be no statutory mechanism in place for the election of appellate judges upon the expiration of the two commissions, there could not be an election for appellate court judges in either 2010 or 2014. By virtue of Article VII, §5, of the Tennessee Constitution, incumbent appellate court judges would hold over pending further action of the General Assembly to determine the manner of the election of such judges. On the other hand, expiration of the two commissions would not change the current system for electing trial court judges. Incumbent trial court judges either seeking election in 2010 to the unexpired portion of an eight year term or reelection in 2014 to a full eight-year term could stand for election by the qualified voters of their districts in August of 2010 and 2014, respectively.

2. Vacancies occurring in the appellate courts on or after July 1, 2009, could not be filled because there would be no operative statutory procedure for the filling of vacancies after June 30, 2009. Furthermore, any vacancy occurring before July 1, 2009, on which the Judicial Selection Commission had not completed its work by June 30 could not be filled. Vacancies occurring in the trial courts could only be filled at the next regular August election occurring more than 30 days after the vacancy arose. The provisions of current law directing the governor to appoint persons to fill trial court vacancies on an interim basis before the next regular August election would be inoperative, and, thus, no such appointments could occur.

3. If an incumbent appellate court judge decided not to seek reelection in 2014, there would be no operative statutory procedure to appoint a new judge. Accordingly, the incumbent appellate court judge would hold over in the office by virtue of Article VII, §5, of the Tennessee Constitution. If the incumbent appellate court judge did not desire to hold over, he could choose to resign his office. That action would create a vacancy. However, because there would be no operative statutory procedure for filling a judicial vacancy on the appellate courts, the vacancy could not be filled. By contrast, if an incumbent trial court judge decided not to seek reelection in 2014 and failed to take the steps necessary to qualify as a candidate for reelection, his successor would be elected at the August election to the eight-year term commencing September 1, 2014, by the qualified voters of the district.

Absent legislative action, it will be left to the Tennessee Supreme Court to sort out the confusion that follows. As the June 30 deadline approaches, look for a strong push for the General Assembly to continue the "Tennessee Plan", with or without some tweaking.

Dan Berexa
Nashville, Tennessee

  

Adobe Acrobat 9 for Lawyers

The TBA's Law Tech 2009 was a success! Rick Borstein's presentation, "Adobe Acrobat for Lawyers," contained a great overview of the features of Adobe Acrobat 9. The redaction tools, document comparison, Bates numbering and the notes and commenting tools are particularly helpful in document-intensive cases. I recently upgraded from Acrobat Standard 6 to Pro 9. Rick's Acrolaw Blog is full of helpful information, including video which explain how to use the features of Acrobat 9.

Dan Berexa
Nashville, Tennessee