The United States Supreme Court has decided to hear Bruesewitz v. Wyeth,  a case where the Bruesewitz family says there should be legal recourse beyond the administrative process set up by the National Childhood Vaccine Injury Act. 

The minor plaintiff suffered seizures two hours after receiving her six-month DPT vaccine in 1992.  The seizures caused permanent neurological damage.  The Third Circuit Court of Appeals ruled against the Bruesewitz family.

The USSC docket number is 09-152.   The issue is stated as follows:

Whether Section 22(b)(1) of the National Childhood Vaccine Injury Act of 1986 — which expressly preempts certain design defect claims against vaccine manufacturers “if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warning” — preempts all vaccine design defect claims, regardless whether the vaccine’s side effects were unavoidable.

Here is a copy of the cert petition.    Here is the brief in opposition.

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I received an unsolicited (but not unwanted) email from the Baker Donelson law firm titled "20 Ways Your Independent Contractor Might Be an Employee."  The purpose of the email was to warn recipients about ongoing IRS employment tax audits in general and the worker classification issue (are workers employees or independent contractors) in particular. 

Well, I looked down the list of issues and it seemed like a pretty good checklist of areas of inquiry in a tort lawsuit to help establish that a so-called independent contractor was in fact an employee and thus the defendant should be vicariously liable for the negligent conduct of that worker.  It appears that Baker Donelson may have got the 20-factor checklist from a government publication or from prior cases on the subject but that is a little unclear. That being said, a hat tip to Baker Donelson for sharing this information.

Here are what Baker Donelson calls the "two threshold questions."

• Does the hiring company pay its regular employees to perform essentially the same duties as the subject worker who is treated as an independent contractor?
• Has that worker previously been paid by the company as an employee to perform essentially the same task?      

For a list of "twenty factors to determine whether the company hiring the worker actually has control over the worker" go to the jump.

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The March 8, 2010 edition of the Daily Recorder reports that a divided California appellate court has ruled that witness statements recorded or taken in writing by attorneys or their representatives aren't privileged work product and, therefore, are open to discovery.  The dissenter ruled that the statements were qualified work product, which means that they are undiscoverable unless a court determines that denial of discovery would unduly prejudice the opposing party.  

The case is Coito v. Superior Court (State of California) , 10 C.D.O.S. 2697 (  5th Dis. Cal. Ct. App. March 4, 2010).  Here is the opinion.

Here is a nice statement of the holding taken directly from the opinion:

 

We agree with petitioner‘s argument that witness statements are classic evidentiary material. They can be admitted at trial as prior inconsistent statements (Evid. Code, § 1235), prior consistent statements (id., § 1236), or past recollections recorded (id., § 1237). Yet, if the statements are not subject to discovery, the party denied access to them will have had no opportunity to prepare for their use. Moreover, a witness statement could contain information favorable to the party denied access, who otherwise could use the statement to refresh the witness‘s recollection, impeach the witness‘s testimony, or rehabilitate the witness after cross-examination. These impacts on the quest for truth simply are not justified by the policy of encouraging lawyers to prepare their cases for trial or the policy of protecting the diligent attorney from others who would take advantage of his or her industry. (§ 2018.020.)

―The purpose of the [work-product] doctrine is to prevent incompetent counsel from taking unfair advantage of his adversary‘s efforts in preparation for trial, not to suppress relevant testimony which happened to have been obtained by the opposition.‖ (Jasper Construction, Inc. v. Foothill Junior College Dist. (1979) 91 Cal.App.3d 1, 16.)

For those reasons, we choose to follow the weight of authority and hold that written and recorded witness statements, including not only those produced by the witness and turned over to counsel but also those taken by counsel, are not attorney work product.

 

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Former ATLA President Howard Twiggs has died.   Funeral services are today.  Howard has been a friend for over 25 years and was a leader in the plaintiff's trial bar and his community.

I first met Howard at a NCATL seminar in Chapel Hill, NC when I was still a law student.  Later, we became re-acquainted at ATLA conventions and meetings around the country.  About 12 years ago we had the pleasure of working on a case together, helping a North Carolina family that had a tragic accident on I-40 near Lebanon, TN.    Thus, we had time to get to know one another in a long car rides and over dinner in my home, as opposed to simply running into each other at a reception at convention or two.

I say all of that to say this:  Howard Twiggs was a very, very fine man and an extremely competent lawyer.  He had a love for his fellow man, and felt duty-bound to help them, especially those who were not blessed with his intellect and his health.  He loved his adopted state of North Carolina, and had that wonderful accent that always took me back 1978, when I left WI and jumped into life in the South.

I had the pleasure of seeing Howard five weeks ago in Maui.  He was there with  his daughters, still going to education sessions and trying to learn how to better serve his clients.  

Howard, my friend, we will miss you.

To gain a better understanding about this wonderful man, read the obituary after the jump.

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I read Andrew Cohen's article in the Atlantic (Tort Reform is Anti-Democratic (And Ingeniously Marketed)) and thought I would summarize it for your convenience.  Then I discovered that Philip Thomas had already done so, and quickly determined that he did a better job than I would have done.

Here is an excerpt of Philip's post on his blog, MS Litigation Review:

In order to sell tort reform, corporate America applies a bait and switch commonly referred to as a “straw man” argument. Barry and Soccio define the straw man attack as follows in their book Practical Logic 104:

The straw man fallacy is an argument that so alters a position that the result is easier to attack than the original and yet claims that it has provided grounds for attacking the original.

Corporate America claims that tort reform is the solution for frivolous lawsuits. But "frivolous lawsuits" is their straw man. They use frivolous lawsuits as their straw man because what they really desire is their offered solution: damages caps that reduce their liability for wrongdoing.   

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Getting motor vehicle accident reports is a hassle, but is appears that it will be getting easier.

BuyCrash.com makes accident reports from Georgia, Indiana, and Kentucky  available for purchase over the Internet.  Accident reports from Tennessee will be available in the future.

Thanks to Chris Simon and the Atlanta Injury Attorney Blog for making me aware of this service.

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Some of you are a little young to remember Irving Younger, the great trial advocacy teacher.  Professor Younger developed the "10 Commandments of Cross Examination" that were taught in trial advocacy programs across the country for many, many years.

Experienced trial lawyers would take issue with some of Younger's  commandments, arguing that from time to time they should be ignored.  I agree, but that does not mean that they do not have value.  

Here is a copy for your reading pleasure.

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 Trey Mills is angry at Allstate.  He explains why on his South Carolina Injury Law Journal blog.

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Winning Trial Advocacy Tips is one of the best blogs for trial lawyers in the entire blogosphere.  Elliott Wilcox repeatedly delivers useful, timely information of interest to those of us who try cases.  I encourage you to add it to your regular reading list.

Today, I share with you his post of tips to keep your witnesses happy and gain their cooperation.  He is, as usual, dead-on.  Ignore his advice at your peril.

An excerpt: 

1. Tell your witness EXACTLY where to go.  I normally try cases in our downtown courthouse, and I’ve been to all of the outlying courthouses for miscellaneous hearings.  But I’d never been to this courthouse before.  The courthouse was located at the jail complex, and I didn’t know which building I was supposed to go to.  I had to poke my way around a little bit before I was able to find the right building.  Once I finally found the right building, I had no idea which floor I was supposed to go to, and I had no idea which of the two courtrooms I was needed in.  Even when I found the right courtroom (which was behind bulletproof glass) I wasn’t sure if I was supposed to wait outside with everyone else or if I was expected to ask a guard to let me inside.

Even if you think your witness knows their way around the courthouse, don’t assume that they know where to go.  Tell them not only where to go, but where they should park.  If there is more than one building, tell them which one they’ll go to.  Tell them how to navigate through the metal detectors.  Once they’re inside the building, which floor do they need to find?  Which room?  Should they stay outside the courtroom, or should they walk inside?  Remove all doubt from their heads — tell them exactly where to go.

 

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