Day On Torts : Tennessee Injury Lawyer & Attorney : John Day : Personal Injury, Accidents : Serving Memphis, Nashville, Knoxville

Maxwell Kennerly's Litigation and Trial blog is a must-read for lawyers who practice civil litigation of almost any type.  His posts are timely, thoughtful, and relevant.

Take this post, "'How Other Countries Judge [Medical] Malpractice,'" By A Law Professor Who Doesn't Know Medical Malpractice Law", in which Maxwell appropriately blasts an editorial by a torts professor who needs a reality check.

The author of the editorial, Richard A. Epstein, has been a law professor since he finished law school at Yale in 1968.  He is almost certainly a very bright man.  But, based on his understanding of the law, he would have accepted each of  the ten or fifteen potential medical malpractice cases I will turn down this week..   And by the Summer of 2011 he would have been broke.  Flat broke.  Or he would have rejected every case in which he thought the defendant should not be held responsible for her conduct because the defendant would say it was an honest mistake.  This mindset would cause him to reject all cases, because that defense is asserted in every case.

Then again,  the good Professor has probably never seen a defendant submit an expert witness disclosure that it was not below the standard of care to operate on the wrong limb.  I mean, why would one expect a doctor to know whether he should be operating on the left ankle or the right?  Left.  Right.  An honest mistake, right?  I mean, he had a 50% chance of getting it right.  Or is it getting it left?

Note:  I would be remiss if I did not mention Eric Turkewitz's excellent post on this issue.  Here it is.  And here is an excerpt:

Epstein also identifies four "procedural features that drive up malpractice costs." They are:

The first is jury trials, which can veer out of control and in any case introduce significant uncertainty.

This "procedural feature" is called a constitutional right. The Seventh Amendment's right to jury trials in civil actions is what Epstein is actually complaining about. I reprint it here so that he doesn't have to look far for it:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Epstein's real problem isn't with some procedural feature, it's with the Bill of Rights and our nation's founders and the desire to disperse power away from power-hungry governmental types and put it in the hands of the people. And as to uncertainty with jury verdicts, an alternative system does not ameliorate that issue. Someone somewhere still has to decide the issue. And that person (or people) will come with biases.

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The New York Times reports that General Motors wil not be let off the hook for  future products liability claims when it emerges from bankruptcy. 

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My article on the new medical malpractice notice and certificate of good faith legislation (which goes into effect today, July 1) made the cover of the July edition of the Tennessee Bar Journal.  Here is the article.

Anyone who practices in the field of medical negligence needs to become familiar with this legislation.  This article will give you an easy way to get up to speed on this new law.

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Technical glitches added a couple days to the process,  but Rob and the folks at LexBlog completed the transition to the new format yesterday.  I hope you enjoy it.

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The United States Court of Appeals for the Tenth Circuit has reversed a $2.4 million jury verdict for the plaintiff because of misconduct by plaintiff's counsel during closing argument.

In the words of the Court:  "We are compelled to reverse and remand for a new trial because of pervasive and improper remarks by Mr. Whittenburg’s counsel in closing argument to the jury. Counsel spent the bulk of his argument placing before the jury fictitious admissions never uttered by defendants and launching vituperative and unprovoked attacks on defendants and their counsel."

The offending argument, an imaginary letter that the defendant sent to the plaintiff's children, is fully set forth in the opinion.

The Court also said this:

In light of the confluence of these three factors – the extensiveness of the improper remarks, the absence of any meaningful curative action, and the size of the verdict – we find ourselves compelled to conclude that this case must be retried. In so concluding, however, we underscore that our decision is not based on any one of these factors singly, but rather their combination after considering the argument as a whole. We also emphasize that closing argument need not, nor should, be a sterile exercise devoid of passion. Parties are “entitled to have someone speak with eloquence and compassion for their cause.” Draper, 580 F.2d at 95. “Arguments may be forceful, colorful, or dramatic, without constituting reversible error.” Kelly, 84 F.2d at 576. Counsel may “resort to poetry, cite history, fiction, personal experiences, anecdotes, biblical stories, or tell jokes.” Stein, supra at § 1.14 (Scope of permissible argument). But one thing they may not do is use closing argument to introduce massive amounts of putative evidence not in the trial record and then proceed to launch broadside attacks on an opposing party’s right to bring suit or defend itself. While always reluctant to reverse the district court in matters concerning trial misconduct, and to burden both that court and the parties with a new trial, our appellate role – a role that compels us to mark and guard the outer boundaries of acceptable trial conduct – does not permit us to sit this one out.

The case is Whittenburg v. Werner Enterprises, Inc., No. 07-6063, 07-6119 (10th Cir. April 3, 2009).  Read it here.

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Sometimes a lawyer representing a patient in a medical malpractice trial may want to introduce evidence of "bad acts" of a health care provider or a provider's expert witness.   This article   from the Medical Malpractice Newsletter published by the Hinshaw & Culbertson tells us how the defense is going to attempt to keep that information from the jury.

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Nowhere.   Nowhere different, anyway.  But I have not been blogging because, as you can see, the look of my blog has been changed with the assistance of the great folks at Lexblog.  The transfer of information and the final set-up on the blog takes a couple days, meaning that I could not post any material whatsoever.

This is the first change to the look of the blog in the 52+ months of its life.  It was overdue.

I hope you enjoy the new look and that you will keep visiting.  The daily visits to this site continue to grow and I hope that the information shared here continues to assist you in the representation of your clients.

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A report from Safety Research & Strategies called "Public Safety at Risk: Bankruptcies Leave Legacy of Defects, Injuries and Deaths"  projects what will happen now that there will be 30 million GM and 10 million Chrysler products still on the road after bankruptcy agreements cancel the ability for accident victims to seek compensation by suing the companies.

The verdict?  "More than 3,400 U.S. citizens could be killed or injured in the next 12 months by defective cars that are immune from lawsuits."  The estimate is based on the number of claims against the manufacturers between the 3rd quarter of 2003 and the 4th quarter of 2008.

 Read the report here.    

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From ACOG's Press Release:

Refinements of the definitions, classifications, and interpretations of fetal heart rate (FHR) monitoring methods were issued today in new guidelines released by The American College of Obstetricians and Gynecologists (ACOG). The objective of the guidelines is to reduce the inconsistent use of common terminology and the wide variability that sometimes occurs in FHR interpretations. ACOG's Practice Bulletin, published in the July 2009 issue of Obstetrics & Gynecology, supports the recommendations of the Eunice Kennedy Shriver National Institute of Child and Health Development workshop* on electronic fetal monitoring (EFM) held in April 2008.

...

One notable update in the guidelines is the three-tier classification system for FHR tracings (print-outs of the fetal heart rate). Category 1 FHR tracings are considered normal and no specific action is required. Category 2 tracings are considered indeterminate. This category requires evaluation and surveillance and possibly other tests to ensure fetal well-being. Category 3 tracings are considered abnormal and require prompt evaluation, according to ACOG. An abnormal FHR reading may require providing oxygen to the pregnant woman, changing the woman's position, discontinuing labor stimulation, or treating maternal hypotension, among other things. If the tracings do not return to normal, the fetus should be delivered.

 

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