Latest Musings of Miffed Courts


If your tribunal has no idea what you’re saying, then it’s safe to assume you’ve gotten off on the wrong foot.

Plaintiff claims that the ALJ’s decision should be reversed, but his brief, which was prepared by counsel, is so poorly drafted that it is difficult to identify the arguments he is making in support of that conclusion.  Encarnacion v. Astrue  2009 WL 2842737, 11 -12  (S.D.N.Y.,2009)

See a trend here?  The worst way to set up oral argument is to leave the Courts at a loss to know what your argument will be. This Georgia court not only blasted the plaintiff, but praised the much better prepared defense.

Proper review of this Motion has been complicated by the inadequacy of Plaintiff’s response.  Plaintiff’s brief (Doc. 46) is poorly drafted, and it is difficult to discern the outline of her argument within its text. Plaintiff’s evidentiary support for her claims is similarly lacking. Defendant, meanwhile, has submitted a substantial body of evidentiary materials to support its Motion, in the form of affidavits, documents, and the deposition of the Plaintiff.  Welch v. Mercer University  2008 WL 1990336, 2  (M.D.Ga.,2008)


New Rule #5

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Hey all you Tennessee medical negligence lawyers (yes, both sides):

New rule.  If you’re drafting your expert’s affidavit, don’t start until you’ve read Kennard v. Townsend at least thirty-eight times in four languages, and don’t stop until you’ve highlighted every possible medically-relevant similarity between your city and your expert’s. Also, find a way to get your expert challenges out of the way long before your designation deadline (I know … next to impossible) so you’ll have time to hire a new expert when you get kicked out of court.

Or if you’d like to skip the scary stuff altogether, just hire an expert from the same city where your case arose (I know … next to impossible).

The TN Locality Rule: A False Promise?

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Tennessee MedMal lawyers: It might be a good idea to just get home-grown experts from now on.

Kennard v. Townsend is the most recent of several COA cases on the so-called “locality rule.” Like most of its predecessors, Kennard assures us (scout’s honor!) that out-of-town experts are perfectly fine, as long as they are familiar with medical standards in a city that is similar to yours.  This similarity is shown (theoretically) by “information such as the size of the community, the existence or non-existence of teaching hospitals in the community and the location of the community.Kennard v. Townsend (No. W2010–00461–COA–R3CV), 2011 WL 1434625, at *2 (Tenn. Ct. App. April 14, 2011).  Of course, that’s a non-exhaustive list; but at least in theory, area demographic stats are a solid start to establishing the required community similarity.

But how does this play out in the courts?  Cases where out-of-state experts get the court’s approval are becoming more and more rare.  Kennard draws some fair distinctions between Memphis, TN and Springfield, MO (the most prominent being population).  But some cases have even refused to equate Memphis with Nashville.  Ouch!

So, heads up, MedMal lawyers on both sides of the “V” … Is this the dawn of an era where the only real safety zone is hiring an expert from the same city where your case arose?  And all that jazz about similar cities with similar populations and similar hospitals — all that case law swearing you don’t need equal populations or even first-hand knowledge — what about all that?  Does the wide open abuse of discretion standard pretty much toss those promises right out the window?

Here’s Kennard if you’re interested. Whether you like the holding or not, it gives a very comprehensive survey of the state of the Tennessee courts on the locality rule.  Legal writers (and more specifically, folks prepping an expert or drafting an expert’s affidavit) must walk a very fine line and be super-precise and extra-detailed, or else they risk finding themselves without an expert on the eve of trial.