Hu Hamilton’s Comments in Opposition to the Proposed Changes to the Federal Rules of Civil Procedure

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Hubert Hamilton recently posted (2/6/14) the following comment to concerning the proposed changes to the Federal Rules of Civil Procedure, particularly as to the dramatic limitations on the scope of discovery as well as shortening the time to complete service of process:

“These changes seem designed to tilt the playing in favor of defendants in personal injury cases. The proposed changes appear to ignore the fact that the plaintiff bears the burden of proof, and often starts a case at a substantial disadvantage, with little or no access to critical documents and records.

I have been a trial lawyer for over 37 years. While most of my cases are filed in various state courts, sometimes they are removed to Federal Court, and from time to time I do file suits in Federal Court. Plaintiffs bear the burden of proof so we generally need to send more written discovery, to seek production of more documents from the defendants than the defendants seek from the plaintiff, and we have to take more depositions. Imposing an arbitrarily low limit on written discovery and on the number of depositions only helps defendants.

In a case we recently settled four men were injured. The defendants had virtually all of the documents and records relevant to the cause of the fire. There were dozens of persons having knowledge of the cause of the fire, failure to warn and so forth. To find out what those persons knew and whether that knowledge was important was going to require us to take at least 10 to 15 discovery depositions, which is a typical number in such cases. Fortunately, the case was settled at mediation before proceeding with the first round of depositions. To identify all those persons, we had served more than 15 interrogatories, which were essential in determining who to depose. Arbitrarily limiting interrogatories to 15, and depositions to 5, would have severely handicapped us in the prosecution of the case.

Keep in mind that depositions are expensive and time consuming, so plaintiffs’ personal injury lawyers typically self-limit both the number and length of depositions. We work on a contingency fee and advance all the expenses. There is no need to impose arbitrarily low limits. The proposed limit of 5 depositions also ignores the fact that in a personal injury case the plaintiff often has to take the depositions of treating physicians for evidence at trial. So at least one, and perhaps more, of those 5 depositions could be taken up by deposing treating physicians for proof.

On a trucking case we recently filed, we requested a waiver of service under Rule 4(d). But, we are not sure the addresses provided on the police report are accurate. The defendants have a minimum of 30 days to return the waivers (Rule 4(d)(1)(F)). If they don’t return the waivers, or if the addresses turn out to be inaccurate, we would have less than 30 days to get service perfected under the proposed change to Rule 4(m). That would discourage us from using Rule 4(d). 60 days is way too short a period for perfecting service. Dismissing the case if service was not perfected in 60 days would just force a do-over, and impose additional burdens and expense on the plaintiff.

The proposed changes to Rule 26(b)(1) represent a fundamental shift away from the current standards for discovery and that shift will overwhelmingly favor defendants over plaintiffs in personal injury cases. Plaintiffs start at a disadvantage in litigation with trucking companies and other corporate defendants. Often we don’t know what we don’t know. We have to engage in the discovery process to discover relevant evidence. A critical piece of evidence can exist in the defendants’ records, but the plaintiff won’t know it until all the relevant records and documents are produced.

How can a court determine “the importance of the discovery in resolving the issue” (Factor 4) without knowing what is in the records and documents? The plaintiff cannot effectively argue that unproduced records and documents are important without knowing what they are. And the proposed rule change could actually open up new areas for discovery. Are the plaintiff and the court just supposed to take the defendant’s word about its “resources” (Factor 3)? Shouldn’t the plaintiff be able to conduct further discovery to test the defendant’s assertion that its resources are limited and it can’t afford to comply with the proposed discovery?

Certainly there are very complex document intensive cases where proportionality needs to be given consideration, and appropriate limits placed on the scope of discovery, considering the factors listed in the proposed rule change. But it would be much better to retain the traditional relevancy standard for discovery, while providing defendants some mechanism upon good cause shown in appropriate cases, to invoke a review by the court based on a proportionality standard. The proposed changes to Rule 26 will invite abuse and encourage delay, and just give defendants more excuses to avoid producing important documents and records.

I strongly oppose the changes to the discovery rules, particularly to Rules 26, 30, 31 33 and 36, as well as shortening time to perfect service under Rule 4.”

Tennessee Supreme Court Eases One Pre-suit Procedural Requirement for Bringing Medical Malpractice Claims.

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Although the plaintiff ultimately lost the appeal, the Tennessee Supreme Court has granted some small relief from the onerous pre-suit procedural requirements of Tennessee’s 2011 healthcare liability law holding that only substantial compliance with the provision directing a plaintiff to furnish potential defendants with a medical authorization will be required, Stevens v. Hickman Community Health Care Services, Inc. No. M2012-00582-SC-S09-CV (11/25/13).  However the plaintiff, a widow in a wrongful death action, gave proper pre-suit notice, but failed to provide any authorization other than her own for release of the records, and therefore failed to even substantially comply.


“Tenn. Code Ann. § 29-26-121(a) establishes six separate requirements that serve related yet ultimately distinct goals. First, Tenn. Code Ann. § 29-26-122(a)(1) contains an express notice requirement that requires plaintiffs to give defendants written notice that a potential healthcare liability claim may be forthcoming. In contrast, Tenn. Code Ann. §§ 29-26-122(a)(2)(A)-(C) facilitate early resolution of healthcare liability claims by requiring plaintiffs to advise defendants who the plaintiff is, how to reach him or her, and how to contact his or her attorney. Lastly, the requirements of Tenn. Code Ann. § 29-26-121(a)(2)(D) and Tenn. Code Ann. § 29-26-121(a)(2)(E) serve an investigatory function, equipping defendants with the actual means to evaluate the substantive merits of a plaintiff’s claim by enabling early discovery of potential co-defendants and early access to a plaintiff’s medical records.”


“A plaintiff’s less-than-perfect compliance with Tenn. Code Ann. § 29-26-121(a)(2)(E), however, should not derail a healthcare liability claim. Non-substantive errors and omissions will not always prejudice defendants by preventing them from obtaining a plaintiff’s relevant medical records. Thus, we hold that a plaintiff must substantially comply, rather than strictly comply, with the requirements of Tenn. Code Ann. § 29-26-121(a)(2)(E).”


ERISA Plan Ordered to Pay Penalties for Not Providing Documents to Plaintiff

By | Subrogation | No Comments

In Hartman v. Dana Holding Corp., (N.D. IN, 10/21/13) 1:12-CV-445, the court assessed penalties of $4,470 against an ERISA plan for refusing to provide historical documents requested by the plaintiff. The applicable documents related to the deceased’s “survivor annuity” and were in effect 1979. The ERISA plan refused to comply with plaintiff’s request on the basis that part of the language of 29 U.S.C. 1024(b)(4) encompasses “latest updated summary, summary plan description, and the latest annual report.” But, the court rejected that argument stating,

But § 1024(b)(4) also requires that a plan administrator furnish “other instruments under which the plan was established or operated.”

And also stating,

Here, the 1979 Plan document and SPD are critical to Mrs. Hartman’s understanding of her rights and eligibility. These documents control not only whether the Plan required spousal consent to elect against a survivor annuity in 1979, but also what fiduciary duties the Plan owed to Mr. Hartman before he made his election.

ERISA plans are often difficult to deal with, so it is important to put them on the defensive by requesting plan documents when the plan asserts a subrogaton or reimbursement claim in a personal injury case by requesting all documents within the scope of 29 U.S.C. 1024(b)(4), which provides:

“The administrator shall, upon written request of any participant or beneficiary, furnish a copy of the latest updated summary plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated. The administrator may make a reasonable charge to cover the cost of furnishing such complete copies.”

In Trucking Cases, Can a Claim for Negligent Entrustment,Hiring or Retention Survive Summary Judgment if the Carrier Admits Responsibility for Its Driver’s Acts and Omissions?

By | Trucking | No Comments

In Kelley v. Blue Line Carriers, 300 Ga. App. 577, 580-581 (2009), the Georgia Court of Appeals held:

“”. . . when an employer admits the applicability of respondeat superior, it is entitled to summary judgment on claims for negligent entrustment, hiring, and retention. The rationale for this is that, since the employer would be liable for the employee’s negligence under respondeat superior, allowing claims for negligent entrustment, hiring, and retention would not entitle the plaintiff to a greater recovery, but would merely serve to prejudice the employer. An exception exists for this general rule, however, where a plaintiff has a valid claim for punitive damages against the employer based on its independent negligence in hiring and retaining the employee or entrusting a vehicle to such employee. In such case, it cannot be said that the negligence claims against the employer are merely duplicative of the respondeat superior claim. Underthese circumstances, the employer is not entitled to summary judgment on the negligent entrustment, hiring, and retention claims”.

In order to support a claim for punitive damages against an employer based on its independent negligence, however, the plaintiff must present “clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.””

So, in Georgia the answer appears to be No, unless punitive damages are alleged and can survive a motion for summary judgment.



Removal of trucking case to Federal Court allowed more than one year after filing where Plaintiff was found to have acted in bad faith.

By | Trucking | No Comments

In an interesting trucking case, Cameron v. Teeberry Logistics, 920 F. Supp. 2d 1309 (2013 N.D. Ga.) the district court permitted removal of a case filed in Troup State Court over a year after it was filed alleging that the amount in controversy was less than $50,000.  Through discovery it was revealed that the plaintiff was claiming medical expenses of $62,432.45, and that her doctor was recommending back surgery.  Subsequently the medical total expense increased to $91,413.75.  The case was set for mediation, and prior to mediation plaintiff’s counsel demanded $575,000 to settle.  The demand for $575,000 was made one year and four days after the lawsuit was filed.  Mediation failed and the defendants removed the case to federal court, more than one year after it was commenced.  Plaintiff moved to remand, arguing that the removal came too late under 28 U.S.C. § 1446(b)(3).  Under that statute, the defendant must file notice of removal within 30 days of when he first ascertains that the action is removable.  To remove a case that was not initially removable but later becomes removal, the defendant has to file the notice no “more than 1 year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.” 28 U.S.C. § 1446(c).

The District Court found that the plaintiff acted in bad faith and allowed the removal to stand:

“First, Cameron specifically pled that this case was not removable, knowing that her pleading is “entitled to deference” by a district court and has “important legal consequences” regarding federal removal jurisdiction. Burns, 31 F.3d at 1095. Second, she failed to amend her complaint, or otherwise notify Defendants that she considered the amount in controversy to be over $75,000, therefore allowing Defendants to continue to rely upon her representation that she was seeking no more than $50,000 in damages. Third, she sent the time-limited demand letter exactly one year and four days after commencement of this suit, thus ensuring that the one-year limitation of § 1446(c) would be a potential hurdle to Defendants’ removal. Taken together, these actions show bad faith in preventing Defendants from removing this case.  Cf. Bolton v. U.S. Nursing Corp., No. C 12-4466LB, 2012 U.S. Dist. LEXIS 152387, 2012 WL 5269738, at *5 (N.D. Cal. Oct. 23, 2012) (“[A] plaintiff’s refusal to stipulate to damages less than the amount in controversy is not evidence of bad faith and forum shopping.”). Thus, despite the one-year time limitation of § 1446(c), Defendants’ removal is proper.”

Nice try by plaintiff’s counsel, but it goest to show that you can’t have your cake and eat it too!

Tennessee Supreme Court Addresses Damages

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We entrust the responsibility of resolving questions of disputed fact, including the assessment of damages, to the jury. An award of damages, which is intended to make a plaintiff whole, compensates the plaintiff for damage or injury caused by a defendant’s wrongful conduct.  A plaintiff may be compensated for any economic or pecuniary losses that naturally result from the defendant’s wrongful conduct.  Economic damages include out-of-pocket medical expenses, future medical expenses, lost wages, and lost earning potential. The plaintiff bears the burden of proving damages to such a degree that, while perhaps not mathematically precise, will allow the jury to make a reasoned assessment of the plaintiff’s injury and loss.

A plaintiff is also entitled to recover compensatory damages for non-economic loss or injury. “Non-economic damages include pain and suffering, permanent impairment and/or disfigurement, and loss of enjoyment of life.” Damages for pain and suffering are awarded for the physical and mental suffering that accompany an injury. Damages awarded for loss of enjoyment of life are intended to compensate a plaintiff for the impairment of the ability to enjoy the normal pleasures of living. Assigning a compensable, monetary value to non-economic damages can be difficult. The assessment of non-economic damages is not an exact science, nor is there a precise mathematical formula to apply in determining the amount of damages an injured party has incurred.  Thus, a plaintiff is generally not required to prove the monetary value of non-economic damages.

Meals v. Ford Motor Company, 2013 Tenn. Lexis 702 (Tenn. Aug. 30, 2013)(Citations omitted throughout)

Does O.C.G.A. § 51-12-33 allow apportionment of fault to an unidentified contractor?

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The Georgia Supreme Court has held that O.C.G.A. § 51-12-33 does allow apportionment of fault to an unidentified criminal assailant, Couch v. Red Roof Inns, Inc., 291 Ga. 359, 361 (2012).  But the Defendant must produce competent evidence of negligence and causation on the part of the nonparty before the jury can consider apportioning fault to a nonparty.  See Union Carbide Corp. v. Fields, 315 Ga. App. 554 (2012), where the Court of Appeals held that:

“ . . . the fault of a nonparty cannot be considered for the purposes of apportioning damages without some competent evidence that the nonparty in fact ‘contributed to the alleged injury or damages’” (Emphasis supplied)

315 Ga. App. at 559.

In a premises liability case, the owner of the property will often blame the contractor who built the defective stairs, ramp, etc.  However, in a Georgia case, where the Defendant cannot identify the contractor, or cannot prove what the contractor undertook to do, or cannot produce a contract defining the scope of the work, it is difficult to see how a Defendant can present competent evidence of nonparty fault.   

New Procedure for Settlement Demands to Insurance Companies Now in Effect in Georgia

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For Georgia motor vehicle wreck cases arising after July 1, 2013, a new procedure is now in effect which was designed to give insurance companies adequate but not unreasonable time to respond to a pre-suit settlement demand by an injured party without being subjected to a subsequent bad faith claim for failing to settle the case within policy limits.  

The new Code Section, O.C.G.A. § 9-11-67.1, provides a minimum of 30 days for a defendant (or his liability insurance company) to respond to a settlement offer made before suit is filed, in case arising from the use of a motor vehicle.  The new law allow the insurance adjuster “to seek clarification regarding terms, liens, subrogation claims, standing to release claims, medical bills, medical records, and other relevant facts,” without that being deemed a counteroffer.  The demand must be sent by “certified mail or statutory overnight delivery, return receipt requested” and shall specifically reference the new Code section.  This new procedure applies only in personal injury or death cases arising from the use of a motor vehicle.  Lawyers should exercise caution in making settlement demands under the new procedure, to ensure compliance, and to preserve a possible bad faith claim against the liability insurer if it refuses to pay the claim in the amount demanded.

Click here to review the complete text of the new law.

Retaliation under Title VII

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In Vance v. Ball State University, (June 24, 2013), the U.S. Supreme Court held that to prove a retaliation claim under Title VII, a plaintiff must show that the adverse action would not have occurred “but for” the employer’s improper retaliatory motive. The Court further held that to be considered a supervisor for purposes of workplace employer liability, the individual must have the power to hire, fire, fail to promote, reassign, or cause a significant change in benefits to the individual.

Recreational Use Statute

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In Wilson v. Dossett, 2013 Tenn.App. Lexis 389 (Tenn.Ct.App. June 13, 2013), the court addressed the applicability of TCA 70-7-102 to a case where the plaintiff suffered severe injuries in an accident while operating a motorcycle on a trail located on the defendant’s property.  The reviewing court held that TCA 70-7-102 protected the defendant from liability because the plaintiff was engaged in recreational activities on the defendant’s property.

TCA 70-7-102 provides:

(a) The landowner, lessee, occupant, or any person in control of land or premises owes no duty of care to keep such land or premises safe for entry or use by others for such recreational activities as hunting, fishing, trapping, camping, water sports, white water rafting, canoeing, hiking, sightseeing, animal riding, bird watching, dog training, boating, caving, fruit and vegetable picking for the participant’s own use, nature and historical studies and research, rock climbing, skeet and trap shooting, skiing, off-road vehicle riding, and cutting or removing wood for the participant’s own use, nor shall such landowner be required to give any warning of hazardous conditions, uses of, structures, or activities on such land or premises to any person entering on such land or premises for such purposes, except as provided in § 70-7-104.

In Wilson, the plaintiff unsuccessfully argued that the statute did not apply where the landowner created or maintained the propertywhich in this instance, consisted of launch ramps on the premises used by riders to jump their motorcycles.  The plaintiff’s injuries occurred while jumping a series of ramps, possibly constructed or built by the defendant.

The Plaintiff also argued that the statute only applied to the State of Tennessee.  The Court rejected said argument.

The Court held that the activity of riding a motorcycle “constituted recreational activity under the statute.”

The Court concluded as follows:

The facts of this case are troubling in that a young man received a severe injury while engaged in a recreational activity. However, our General Assembly made the policy decision with respect to liability, as it has the authority to do, by enacting Tenn. Code Ann. § 70-7-101 et seq. to provide a defense for landowners in circumstances such as  these. Wilson availed himself of Dossett’s property for the recreational purpose of riding a motorcycle. This activity falls squarely within the parameters of the statute’s protection for landowners. Additionally, there was no gross negligence in this case that would serve to negate the affirmative defense available to Dossett. When viewing the facts in the light most favorable to Wilson, we conclude, as did the Trial Court, that summary judgment is appropriate in this case. We affirm the judgment of the Trial Court.

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