Dan Berexa's Tennessee Law Blog

In Addition to Civil Procedure and Evidence, know the "Brain Rules" for Best Results in Court.

 In the new book, Brain Rules, Dr. John Medina describes what scientists know about how our brains work. Medina, a molecular biologist, offers 12 "Brain Rules" that business leaders, parents and teachers should know. The great website for the book discusses each of the rules in detail and includes entertaining videos which illustrate the rules. 

How does this relate to trial practice? Well, in the end, it is often a brain, or a group of brains, that are not only our audience, but also the ultimate decision maker, whether it be a judge, jury or arbitrator. Knowing a bit about how the brain receives and processes information can help a lawyer be a more effective strategist, communicator and advocate. Garr Reynolds, presentation guru and publisher of the blog Presentation Zen (and the book by the same name) focuses on the principles from Medina's book that apply to presentations. In a recent post, Reynolds includes a number of links to excerpts from the DVD that accompanies Dr. Medina's book. Reynolds also created the neat little slide-show below which focuses on "The Rules" as they relate to presentations. 

If you have trouble with the far right edge of the slideshow being cut-off, click the "view" button under the slide box.

| View | Upload your own

Dan Berexa
Nashville, Tennessee

Part I - Medical Causation and Reasonableness and Necessity of Medical Expenses.

In a personal injury case, proving causation is just as important as proving fault. A great case of liability is nothing if you cannot establish a causal link between the defendant’s actions and the plaintiff’s injuries and medical treatment. If the plaintiff does not have the proper medical proof, a motion in limine, motion to strike or objection in some other form should be expected.

That great case on liability can turn into a nightmare if medical testimony on the issue of causation is excluded. An equally disastrous result will occur if plaintiff’s counsel is unable to get medical bills admitted into evidence.

A recent example of both problems occurred in Ambrose v. Batsuk. In Ambrose, the defendant admitted liability. In fact, a directed verdict was granted against the defendant on the issue of breach of the standard of care. However, the plaintiff’s medical causation testimony was excluded. The knock-out punch came when the plaintiff's claimed medical expenses were excluded by the trial judge, despite an attempt by the plaintiff to rely on the Tennessee statute which creates a presumption that medical expenses under $4000 are reasonable and necessary. The end result was a defendant's verdict following a jury trial. 

A series of posts which will follow will address the issues associated with offering proof of injury causation, claims for future medical treatment and proving medical expenses. While these would seem to be basic issues, they often plague plaintiff's counsel and result in a forced non-suit, exclusion of key proof or an adverse verdict even when fault is not at issue.

Dan Berexa
Nashville, Tennessee 

 

Governor Signs Medical Malpractice Reform Act Into Law

Yesterday Governor Bredesen signed the medical malpractice reform bill into law. The changes to the malpractice act are summarized in my April 27 post. That post also contains a link to a copy of the bill, as enacted. The new law applies to malpractice actions filed after October 1, 2008.

Dan Berexa
Nashville, Tennessee

Good Advice for Any Lawyer

Steve Bennett's recent article in The National Law Journal, How Rookie Lawyers Can Avoid Big Mistakes, contains good advice for any lawyer, whether fresh out of law school or well-along in their career. Bennett, the author of "The Path to Partnership" talks about the treatment of staff, e-mail etiquette and dealing with mistakes. A few other nuggets of advice come to mind as we approach the season when summer associates arrive at their new firms and young associates prepare to embark on their careers:

-Don't ignore deadlines. If you are not given a deadline, ask when the project is due. If you think you are going to have a hard time meeting the deadline, tell the assigning attorney in advance. They may be able to get you help, shift workloads or give you an extension. Totally ignoring a deadline, or waiting until the last minute to say something, tells the assigning attorney that you cannot be counted on.

-Proof read your work. A great memo may not aways get circulated around the office.  A lousy one will. Your readers will question you analysis and work ethic if your written product is sub-par.

-Get to know your co-workers. No matter how busy you are, take time to go to lunch with the other lawyers in your office. It is a great way to build relationships. You will learn more about what is going on at your firm and in the local legal community. It is also a great opportunity to "round table" cases or discuss tough issues. Chances are that one of the other attorneys in your firm has dealt with the same issue in the past or will have a good suggestion to get you on the right track.

-Ask questions. In many instances the proper legal analysis is very fact specific and you will need to go back and ask questions once you start to research an issue. Further, a new lawyer may know a little about the black letter law, but will know very little about the practice of law, or the business side of a law office. Asking insightful questions shows you are a thinker and interested in the "big picture."

Dan Berexa 

Who Has the Formula for Calculating Wrongful Death Consortium Awards?

In consortium claims, should the court consider awards from other similar cases? Should there be a mathematical formula for evaluating the reasonableness of consortium awards? In a recent decision, Arpin v. U.S., the 7th Circuit answered both questions in the affirmative.

54 year old Ronald Arpin died after a medical resident failed to diagnose a rare muscular infection that was caused by a fall. A malpractice action was brought under the Federal Tort Claims Act since the medical clinic Arpin visited was jointly operated by the U.S. Air Force and St. Louis University. Following a bench trial, Arpin's estate was awarded over $8 million, including a $4 million consortium award for the widow and $750,000 for each of Arpin's four adult children. 

On appeal, Judge Posner cited the requirement under Fed. R. Civ. P. 52(a) that the trial judge explain the grounds for his decision. Posner concluded that the amounts awarded were apparently "plucked out of the air," and that the trial Judge should have considered awards in other similar cases. He then went on to suggest that, on remand, prior consortium awards should be analyzed to develop a ratio between the consortium element of damages and the remainder of the damages awarded in the cases. The ratio could then become a starting for setting the consortium award, with adjustments made based on the particularities of the case. 

The problem is with "ratios" is the unique nature of a consortium claim and the fact that the value of such a claim often has nothing to do with the other more certain, and quantifiable, elements of a death award. For example, the amount of medical expenses, or size of the loss of earning capacity claim, has no direct bearing on the issue of consortium.

The use of ratios artificially ties the range of acceptable consortium awards to elements such as medical expenses and loss wages. For example, consider two mothers of young children who are killed in motor vehicle accidents. One, a full-time homemaker, who dedicates every waking hour to her children, dies instantly. The other, a non-custodial parent, who rarely sees her children, barely clings to life for 6 weeks, resulting in the accumulation of $1 million dollars in medical expenses prior to death.  Judge Posner’s ratios are clearly problematic under such a scenario. Using a formula, the acceptable range for the consortium award for the first mother will be greatly limited, in comparison to the second mother, due to factors which have no bearing on the quality of the relationships which form the basis of the consortium claim.

While appellate courts may establish the outer limits for acceptable consortium awards, ratio based formulas won't work.

Dan Berexa