Getting a Jump Start

A friend of mine who is a defense lawyer told me that in 50 % of the cases he defends he is not served written discovery.

I can imagine that there might be a tactical reason not to serve written discovery in a particular case. I can also say that that situation has not arise in my 24 years of practice.

I have found it best to almost always serve written discovery with the complaint. In many cases, we also serve a notice to depose the individual defendant or a corporate representative at a date we estimate to be 60 days after service of the complaint, when we will have an answer and the discovery in hand. We will almost always modify the date to accomodate the defendant and the defendant's lawyer, but we like to get the case moving right off the bat.

Clients want cases over. Serving written discovery early helps accomplish that goal.

Mark Lanier

Here is a great article about Mark Lanier and his recent victory in the Vioxx trial in Texas.

Selling Gas to a Drunk

There has been a lot of talk about the decision of the Tennessee Supreme Court in the case of West v. East Tennessee Pioneer Oil Co.; even the Tennessesan has weighed in with an editorial.

The Court held that convenience store employees owe a duty of reasonable care to persons on the roadways when the employees sell gasoline to an obviously intoxicated person and / or assist the driver in pummping gas into his vehicle.

An employee of a c-store refused to sell Tarver beer because he was too intoxicated. Then, some level of physical assistance was given to Tarver to purchase $3.00 worth of gasoline for his vehicle. Tarver left the seen, drove 2.8 miles, and hit the plaintiffs' vehicle head on, causing both plaintiffs' serious injuries.

Plaintiff's expert testified that, without the $3.00 worth of fuel purchased at the defendant's store, Tarver's vehicle would have run out of gas before coming into contact with the Plaintiffs.

The Tennessee Supreme Court held that there is a jury issue on the issue of negligence and negligent entrustment. Drunk drivers kill and injure, and the Court held that if the clerk knew (or reasonably should have known) the driver was intoxicated a jury could hold the defendant liable.

This decision makes perfect sense to me. We live in a world with other people. We know the harm that drunk drivers can cause? Why in heaven's name would you sell gas to someone who was too intoxicated to buy beer?

This fact situation is a once-in-a-million year occurrence. The odds of cause in fact being present are less. But that does not make this opinion wrong. Indeed, it shows the beauty of the flexability of the common law.

New Slip and Fall Opinion

This opinion by Judge Koch does a great job summarizing the "slip and fall" law as it exists in Tennessee. This decision does not include a discussion of the so-called "method of operation" theory; that particular topic is addressed in a recent decision of the Tennessee Supreme Court.

If you read these two opinions you know what you need to know about this area of the law.

Vioxx Trial Schedule

State Court New Jersey September 12
State Court Houston October (exact date unknown)
Federal Court New Orleans Nov. 28,
Federal Court New Orleans, Feb. 13, 2006
Federal Court New Orleans, March 13, 2006
Federal Court New Orleans, April 10, 2006

By the way, according to this article in the New York Times, Merck has shifted its strategy and now said that it may settle some of the claims against it.

Verdict for Toyota Reversed

The 11th Circuit has reversed a jury verdict in favor of Toyota in a seat belt case, holding that the judge should have instructed the jury on the consumer expectation test. The judge only instructed on the risk-utility test. The judge was applying Florida law and the 11th Circuit ruled that, under Florida law, a seatbelt is a product about which a ordinary consumer could form expectations.

Read the opinion here. As you do remember that Tennessee also has a consumer expectation test in products cases.

Off Topic Recycled Political Joke

OK - so it is a recycled joke. Most of them are.

How many Bush administration officials does it take to change a light bulb? Ten

1. One to deny that a light bulb needs to be changed;

2. One to attack the patriotism of anyone who says the light bulb needs
to be changed;

3. One to blame Clinton for burning out the light bulb;

4. One to arrange the invasion of a country rumored to have a secret
stockpile of light bulbs;

5. One to give a billion dollar no-bid contract to Halliburton for the
new light bulb;

6. One to arrange a photograph of Bush, dressed as a janitor,
standing on a step ladder under the banner: Light Bulb Change Accomplished;

7. One administration insider to resign and write a book documenting
in detail how Bush was literally in the dark;

8. One to viciously smear #7;

9. One surrogate to campaign on TV and at rallies on how George Bush
has had a strong light-bulb-changing policy all along;

10. And finally one to confuse Americans about the difference between
screwing a light bulb and screwing the country.

I read this at AMERICAblog.

I think they missed one -

11. One to blame greedy trial lawyers for making the price of light bulbs so high because of outrageous products liability verdicts like the McDonald's case (error intended).

Use of Photos of PD to Disprove PI Claims

The Maryland Court of Appeals has ruled that a defendant may use photos showing relatively little property damage to a vehicle to argue that the plaintiff did not have a significant personal injury.

The decision is Mason v. Lynch. There is also a great dissent on the issue; it makes the point that there is a substantial body of scientific literature that actually disproves the argument that "minor" impacts do not cause serious neck injuries. Accordingly, the dissent argues, a lawyer should not be able to make the argument that an injury is not real or significant simply based on the lack of property damage seen in photographs.

Plaintiff Can Recover Full Amount of Medical Bills

Another state has ruled tht a plaintiff "may present to the jury the amount that her health care providers initially billed for services rendered" rather than the amount paid by the plaintiff's insurer.

The case is Arthur v. Catour; read the opinion of the Illinois Supreme Court here. The decision cites to the law of other jurisdictions on the issue.

Seminars

I mentioned the other day that we would be hosting a couple of seminars in December, the first designed to help newer lawyers and the second designed for those with a little more experience. You can read more about both programs, and register on-line, by clicking here.

Pat Robertson's Attempt at Plausible Deniablity Fails

I wrote the other day about Rev. Robertson's suggestion that the United States kill a foreign leader. Here is the post.

August 22, 2005: Believe it or not there are people who get there news from Pat Robertson. This man, who runs a tax-exempt empire that he holds out as a church, now has called for the assassination of the leader of a foreign country.

What does the rest of the world - particularly the Muslim world - think about America when one of us who is prominent to have his own TV show calls for the murder of a foreign leader? When a nut in the Muslim world does this we call him a savage and a terrorist.

See the words and watch the video of "our" nut here. And then think about the fact that right now in some cave in Pakistan this video is being shown to a bunch of angry young men with guns, bombs, and a willingness to sacrifice their lives in the name of their religion.

The other members of the Christian Coalition should denounce these statements and kick him out of the organization. Pat Robertson is an embarrassment to Christians everywhere.

August 24, 2005. Robertson now denies saying that Chavez should be assassinated - he says he was misinterpreted. He says "take him out" could mean number of things, including kidnapping.

Rev. Robertson, you were on television. Images of what you say hang around. You can't spin this - it is impossible. Read your lips.

Just admit you said something outrageous and un-Christian and hope that people forget.

Lighter Manufacturer Held Liable in Child Death Case

The Illinois Court of Appeals remanded a wrongful death case for trial on behalf of a child who died in a fire started by a lighter that lacked child-resistent features. Name of the lighter: "Aim 'n Flame."

The court found that the jury could have reasonably concluded that the risks of the lighter as manufactured outweighed the benefits of it, making it defective. The court affirmed dismissal of the negligence and failure to warn claims.

Read the opinion here

Off Topic --- Pat Robertson Does it Again

Believe it or not there are people who get there news from Pat Robertson. This man, who runs a tax-exempt empire that he holds out as a church, now has called for the assassination of the leader of a foreign country.

What does the rest of the world - particularly the Muslim world - think about America when one of us who is prominent to have his own TV show calls for the murder of a foreign leader? When a nut in the Muslim world does this we call him a savage and a terrorist.

See the words and watch the video of "our" nut here. And then think about the fact that right now in some cave in Pakistan this video is being shown to a bunch of angry young men with guns, bombs, and a willingness to sacrifice their lives in the name of their religion.

The other members of the Christian Coalition should denounce these statements and kick him out of the organization. Pat Robertson is an embarrassment to Christians everywhere.

Pre-Trial Brief

A pre-trial brief takes a lot of effort, but it can really set the stage for success before you walk into the courtroom - particularly in a bench trial.

Preparing for trial is exhausting enough, so it's tempting to put the pre-trial brief on the backburner. Don't. Give the court all of the information that should be necessary for you to win, and then a little bit more. Acknowledge the weaknesses in your case so the court isn't surprised when you walk into trial with half as good a case as your brief would suggest.

Here is an example of a brief Brandon Bass of our office recently used in a construction negligence case where a driver was critically injured in a car wreck on an Interstate exit ramp. We alleged that the State failed to use appropriate signs and other markings to advise drivers and that the failure to do so left the intersection confusing and dangerous. We used photos in the text of the brief to help her understand the confusing nature of the intersection without having to like flip back and forth to an appendix.

Download file

What If Merck Had Won?

This represents my best guess of what the tort reformers would have wrote if Merck had won the Texas Vioxx trial:

"Well, the greedy plaintiff's lawyers did their best but they could not fool the good people of Texas. Mark Lanier, who is supposed to be a star of the plaintiff's bar, was rumored by the liberal media to be winning the case, which only shows how out-of-touch they are with mainstream America. Real people can see right through a huckster like Lanier, who apparently left his alleged trial advocacy skills in his plane.

Sooner or later the socialists who have (temporarily) captured the American media will learn that jurors will not fall for the sympathy plays used by Lanier and his ilk. No - jurors listen to and evaluate the facts. They listen to scientific experts and disregard those who create new "science" for the purposes of litigation. The American people are not dummies, notwithstanding the pabulum that they have been served by a media that assumes they are ignorant.

Reasonable people handed such a defeat would fold up their tents, go home and lick their wounds. But not plaintiffs' lawyers - they will continue to try to suck the blood out of Merck in the hope that they can extort some small settlement and then declare victory. That is the way the mass tort industry works - threaten, run up the expenses, settle cheap, and laugh all of the way to the bank.

In the meantime, the economic well-being of these companies is threatened, and they are left to fight frivolous lawsuits rather than develop new drugs which will save lives. The cost to the economy is enormous, and only God knows how many lives greedy trial lawyers take every year by forcing good companies to defend false claims filed by these hucksters.

This is why liberal Democrats in the Senate must be forced out of office. They are the ones standing in the way of reform. They allow junk science to support frivilous claims, all of which lines the pockets of their political supporter, the trial bar.

The people in Texas should be proud of the jury in the Vioxx case. They listened to the judge, listened to the evidence, and did justice notwithstanding the blatant appeals to sympathy by a lawyer trying to hit it big. The people who really understand heart and soul of America are not at all surprised by this result. Indeed, the only people who are truly surprised by the verdict are trial lawyers, who seem to think that the public will continue to buy their defective work product."

Next Vioxx Trial

The next Vioxx trial in September 12 in New Jersey.

More Thoughts on Vioxx Verdict

I watched some of the news coverage on the Vioxx verdict and have some more thoughts....

First, Merck lost $5B in market cap in a few hours. I am not sure the losses are over. It is clear that the jury did not believe Merck. The jurors I saw interviewed seemed intelligent. They were just outraged that Merck knew about a problem and tell not warn about it. Any investor who saw juror interviews would be more concerned about the value of the company than he or she was before seeing the interviews.

Second, we all know now that thanks to the lobbyists and the Texas legislature the punitive verdict will be cut down below $2,000,000. My guess is that the compensatory verdict will be cut, too - it certainly would be cut in Tennessee.

Third, I was shocked at some of the commentators who talked about the need of consumers to be more aware of the risks of the drugs they consume. This is generally true, but the point here was that consumers could not be aware because Merck did not disclose the risks. All of this drug advertising lures people in to a false sense of security about drugs, and simply putting information in fine print in a package insert is an inadequate method of warning of the risk.

Fourth, I did not see any interview where the jurors were asked about the perceived value of Vioxx vs. NSAIDs. My information is that Vioxx had little additional value, especially when compared with the risk, unless the patient had GI problems that ruled out the used of NSAIDs. If the jurors came to believe that, then Merck is in big trouble - they sold an unreasonably dangerous product without value.

Of course, Merck thinks the drugs have value, as indicated by this NYT story. And, as I indicated above, for some patients they undoubtedly do. But for all patients with arthritic pain?

As I said yesterday the next few trials are huge. If Merck racks up two or three losses in a row - whatever the size, they are going to be in a deep hole.

Congradulations to Mark Lanier and his trial team. I am a part of the Vioxx litigation group and will get the opportunity to read the trial transcripts. I can't wait.

Loss of Future Earning Capacity

Can a injured plaintiff who is back to work ask for damages for loss of future earning capacity?

Yes, rules the Eighth Circuit Court of Appeals, given the fact that there was evidence of ongoing physical problems and testimony by the plaintiff that he would probably not be working for as many years.

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An Early Thought About the Vioxx Verdict

I believe that the next trial is in New Jersey next month (plaintiff had an MI; he survived) followed by a trial in federal court in New Orleans in November.

The wonderful thing about this verdict for the rest of the cases is that before trial the plaintiff was not expected to win. Merck thought they had a strong causation case and, as I pointed out in the past, historically the plaintiff loses the first few cases of this type.

Obviously, it would be a mistake to assume that Merck will lay down in these cases given this one defeat. The venue is considered pro-plaintiff, although insiders have indicated that they did not thing that the jury itself was not particularly pro-plaintiff as jury selection ended. In addition, the case was tried by a fantastic lawyer - that obviously makes a difference. Hopefully, Mark Lanier will be invited to try the next few cases.

It would be a mistake to assume that every person who took Vioxx has a personal injury case. The same criteria for case acceptance must apply. This verdict tells us only that the liability issue and the general causation issue can be won; it does not tell us that causation can be proved in every case. And, yes, it tells us that a jury can get angry about what Merck did.

Vioxx Trial in Texas PLAINTIFF WINS !!!

The Plaintiff won $229,000,000 in punitive damages in the Texas Vioxx trial. More later.

This is a very preliminary report. The amount may be compensatory and punitive damages. In fact, I just heard that the total award is $253,400,000, subject to caps. Punitives are capped based on the computation of economic damages.

Addendum: Look here for a photo of a lawyer who just won an important case. There are a couple of other great photos that follow in the slide show.

Addendum II

Loss of Pecuniary Past: $100k
Loss of Pecuniary Future: $350k
Loss of Companionship Past: $2M
Loss of Companionship Future: $10M
Mental Anguish Past: $2M
Mental Anguish Future: $10M
Exemplary: $229M

Addendum III

Merck's press release about the verdict.

Texas Vioxx Trial

The Vioxx jury has asked to see the testimony of the pathologist. Read more here.

Texas Vioxx Trial

The jury deliberated 7 hours yesterday - no verdict yet. I will keep you posted.

Fire Codes

There is a change coming in fire safety codes - sprinkler systems will now be required in nursing homes, certain nightclubs and 1-2 family dwellings. The changes were adopted by the National Fire Protection Association and go into effect August 18, 2005. You can read about the changes in this article.

Here is the press release, with links to the changes themselves, from the NFPA.

Gaming the System?

Many of you have read about the silicosis case in Texas that a judge threw out of court. This case will have repercussions for all plaintiffs and plaintiffs' lawyers, as explained in this article from Bloomberg.com.

I do not know if the allegations against the plaintiff's lawyers in the silicosis case are true. I have read portions of the opinion and must admit that what I read there was troubling. If lawyers worked with doctors to manufacture cases the punishment should be swift and significant. We simply cannot allow lawyers to create claims that don't otherwise exist. It is one thing to advise people of their rights. It is ok to try to advance the law. It is quite another to create "injuries."

This case is the mass tort McDonald's case, folks. You will see it used as a tool to hurt the cause of all PI claims, especially those in the mass tort field. You can count on it.

$20 Million Bond for Failure to Comply with Discovery Orders

An Arkansas class action case against a nursing home company is getting ugly even in discovery. The trial judge threatened to imprison the defendant company's officers for refusing to comply with court ordered discovery. Then, the trial judge required them to post a $20 million bond for their failure to comply with the discovery orders. The Arkansas Supreme Court recently affirmed the trial judge's bond requirement. Read about it over at our Tennessee Business Litigation blog.

Texas Vioxx Trial

Here is a great story on the status of the Texas Vioxx trial by the New York Times.

The first federal Vioxx case is scheduled for November 28, 2005 in New Orleans. The plaintiff is Evelyn Plunkett; her husband died of a heart attack.

First Vioxx Case Goes to Jury

The jury in the Texas Vioxx case is hearing closing arguments today. I will let you know when I hear about the verdict.

UPDATE: Here is an article giving a brief summary of the arguments.

Case Acceptance

Well, its 9:30 a.m. and I still haven't posted on the blog today. Sorry. I gave a speech in Memphis last night to a group of nurse practitioners (more in a later post) and drove back to Music City (180 miles) early this morning.

My post this morning is a Guest Post that I wrote for Evan Schaeffer's Legal Underground blog. Evan is a plaintiff's lawyer from Madison County, IL and has a great blog that I would encourage you to put on your RSS feed. He was kind enough to let me put a post on his site. He titled it "A Plaintiff's Lawyer Explains the Economics of Turning Down Cases."

Some of you have heard me speak on this topic; it is part of the seminar our firm offers every year to young lawyers who practice civil litigation. This year the seminar will be held on December 14 and 15 in Nashville. A mailer on the seminar will be coming out any day and you will be able to register via the Web. More on that later.

Florida Tort Reform

The Florida voters passed a constitutional amendment to limit attorneys' fees in med mal cases to 30% of the first $250K in damages and 10% in any recovery about $250K.

So, a $1M verdict would entitle the patient's attorney to a total fee of $130K. A $2M verdict would result in a fee of $260K. The result: in other than a slam dunk case where no liability or causation discovery was necessary, a plaintiff's attorney would be working for $100 per hour or less, an amount less than the paralegal rate in major cities.

Florida plaintiffs' attorneys then starting giving their potential clients the option of waiving their "constitutional right" to a fee cap.

Now, 55 Florida lawyers have filed a petition to ask the Florida Supreme Court to cap the fees of plaintiffs' attorneys in med mal cases by rule. Here is the petition they filed. The Petition was filed by Holland & Knight, a law firm that has 52 lawyers that represent the health care industry.

These lawyers who signed this Petition have the right to free speech. So do I. Each of the lawyers are an embarrassment to the profession. Each of them know - or should know - that these fee caps work to deprive med mal victims of representation by good lawyers. To the extent that any of these lawyers defend malpractice cases, they obviously fear competent representation of a patient. I would suggest that these lawyers get out of med mal defense work and do something more consistent with their confidence in their ability to persuade like, say, working the floating plastic duckling concession at a carnival.

Most med mal lawyers I know know how difficult (and expensive) it is to prepare and try a med mal case for the plaintiff. Most would agree that these caps are absolutely ridiculous.

The Florida lawyers who filed this Petition ought to be ashamed. Hopefully, the Florida Supreme Court will reject it.

Thanks to Abstract Appeal for bringing this Petition to my attention.

Case Involving Suicide Allowed to Proceed

Elizabeth Shin, a student at MIT, committed suicide. Her parents sued MIT and others. A trial judge has dismissed the case against MIT but allowed it to procede against two psychiatrists and two administrators who are not mental health professionals. This article in the Boston Globe has a nice discussion of the legal theory advanced by the plaintiffs and accepted by the trial judge.

The plaintiffs are pushing the envelope on this one. However, as I said to a fellow plaintiffs' lawyer the other day, there are only two types of lawyers who make common law - those that are stupid and those who take calculated risks.

Let me explain. Some of us take cases with full knowledge that we are going to have to advance the law to get to a jury. Some folks take cases with no idea that they have no right to recovery until they see the motion to dismiss or motion for summary judgment. The problem with the latter approach is that some cases do not have the right facts to make good law or the facts are not developed appropriately to make good law. Similarly, if you don't know you are pushing the envelope it may be hard to muster the best arguments in the time period allowed to respond to a motion.

Legal research may be boring, but whenever a case does not fit into a well-defined, long-standing pigeon hole it makes sense to do a little homework first and get a reading of the legal landscape. Any "new" (i.e. less than 20 years old) theory of recovery or any theory not routinely a part of the appellate decisions in your state is probably not mature enough to assume that the law is stable.

I am all in favor of pushing the envelope in appropriate cases. The key is selecting the cases where the envelope should be pushed, and then developing the facts and mustering the arguments necessary to give it the best shot.

You can't break the sound barrier in a Piper Cub.

Your Input

Last night I posted the 300th post to this blog in a little less than six months. We have had tremendous success - we have lots of people who visit this site regularly and who have told us that they enjoy what we have to offer.

What can we give you that would help you in your practice? Would you like more information about appellate cases from around the country? Should we spend more time on Tennessee law? Are you interested in the status of the tort reform debate around the country?

Let me know your thoughts. Use the "Comment" link or, if you would rather send me your thoughts privately you can email me at jday@branhamday.com.

Thanks for reading.

Results of Mississippi Trial

Paul Minor, a friend and plaintiff's lawyer from Mississippi, was indicted on a bunch of charges, including bribery. Oliver Diaz, Jr., a member of the Mississippi Supreme Court whom I got to know during some trips to Mississippi, was also indicted.

The trial has been going on for weeks. Last week, Justice Diaz was found "not guilty" on all counts and Paul was found "not guilty" on several counts and the jury was hung on some others.

Some folks say that Paul and the Justice's most damning sin was that they were Democrats.

Should Verdicts Be Required to be Unanimous?

Tennessee and a minority of other states require that all 12 jurors agree on the verdict? This article comments on the practice.

I disagree with the requirement of unanimity. It imposes an unfair burden on the plaintiff, particularly in these times of massive anti-plaintiff sentiment fueled by aggressive campaigns of the insurance, health care, and manufacturing industries.

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Verdict Against Greyhound

A federal court jury in Winchester has returned an $8M verdict against Greyhound for injuries to a passenger after a man attacked the driver who then lost control of the bus. You can read another press report of the story here.

The injuries were substantial; the plaintiff had some $1.6M in medical expenses.

The Plantiff was able to prove that the company knew of at least 43 prior incidents where passengers attacked drivers and yet it had done nothing to protect its drivers.

This verdict tells us that jurors recognize in a modern society people with the knowledge of the risk of criminal acts of others have a responsibility to take reasonable steps to prevent those criminal acts from occurring.

Brief Writing 101

An appellate lawyer in a big firm got his hand slapped by a 9th Circuit judge for his firm's choice of words in a brief.

Some examples:

"The district court's refusal to apply Daubert was erroneous and stands as yet another example of the court's twisting the substantive law in furtherance of the procedural class action device."

"The district court's failure to apply this elementary principle is grounds for reversal."

"The District Court Eliminated Wal-Mart's Defenses And Otherwise Altered Substantive Law In Concluding That The Class Is Unmanageable" Id. at 35. (This text was in a section heading, in bold text and up-style capitalization.)"

"The district court tried to sidestep the obvious lack of commonality inherent in plaintiffs' theory of the case."

See more at Minor Wisdom, whose author collected the above examples. The post has a link to the entire brief.

Bottom Line: Judges are human. Every judge has some level of respect for other judges. Every appeal is by definition a public statement that you disagree with one or more decisions of a lower court and the judge or judges on that court, but one can disagree with a decision without attacking a judge. A ruling is "inconsistent with established precedent." A decision is "an unwise extention of current law." A holding "lacks support in current case law." The judge's interpretation of a statute is "strained." This phrases offend no one - expect perhaps the judge (or judges) you are challenging, but even that is rare in my experience. Most judges know that their papers may be graded upstairs and that it is the job of the appellant to persuade the appellate court to reverse.

All of us can learn from this experience.

AIG Needs Tort Reform NOW!!!!!!!!!!!!!!!!!!

AIG's recent financial disclosures make it clear that the nation's property and casualty insurers need tort reform now or they wIll be headed to receivership.

I mean, AIG's profit was only $3,990,000,000. For the 2nd quarter. As in 90 days. As in a profit of about $44,333,000 per day. As in about $1,850,000 per hour every hour of ewvery day. Which is a little over $30,000 per minute. Which comes to about $513 per second, of every hour, of every day, for 90 days. In a row.

Which is up about 50% from last year.

STOP THE INSANITY! TORT REFORM NOW! WE HAVE GOT TO RESTRICT THE RIGHT TO TRIAL BY JURY BEFORE IT IS TOO LATE! HOW MUCH LONGER CAN THIS MADNESS CONTINUE?

Oh, I forgot something.

GREEDY TRIAL LAWYERS!!

Motorcycle Helmets

I ride a BMW 1200 CLC. My wife rides a Harley Sportster. I did not ride until I hit the age of 45 but I must confess there is nothing quite like riding a motorcycle on a country road on a fall or spring day. It is a blast - a true escape.

It would be fun to ride without a helmet. On the other hand, it would also be stupid. Here is a recent article that demonstrates the risks of riding without one as confirmed by two recent articles.

"Peer Review" Actions

Here is an article from Time about hospitals and doctors going after doctors in the name of "peer review."

I recently defended a physician charged by a hospital with poor patient care. I must say that after reviewing the charts I was surprised at the charges - not a single case would have been won by a plaintiff in a medical negligence action. The central allegation involved the treatment of a patient for a serious medical condition of which I had some knowledge because of a past malpractice case where I represented the plaintiff. I knew the proper course of treatment, I knew the survivability rate with proper treatment, and I would have turned the case down on the records without even consulting an expert.

The system is really stacked in favor of the hospital in such cases. As a lawyer, I was shocked at the lack of due process in the system.

Of course, it is important that hospitals and doctors police their own. But the system should have adequate mechanisms to ensure that the person charged with wrongdoing has the ability to adequately defend the claims and present evidence before an unbiased decision maker. Current law does not require these safeguards. The current system is relatively efficient, but does not include mechanisms to protect the unfairly charged.

Tragic Truck Wreck

This article in the Tennessean is a tragic reminder of how quickly a life can be lost as a result of carelessness.

A truck driver for Diamond Logistics fell asleep at the wheel, went into a parking lot at a local market, and killed one man and injured three others.

A review of the records of the driver and Diamond Logistics will reveal whether the trucker was in compliance with the law at the time he was driving and whether Diamond Logistics was aware of a pattern of deviations from the law, if any. We have had considerable success evaluating driver logs and other materials and proving a pattern and practice of unlawful driving leading to hazardous situations. Hopefully, someone will quickly get to the bottom of this situation and find out what happened in the days and weeks preceeding the wreck.

"Peer Review" Against Experts Who Testify for Plaintiffs

There are many ways that defendants fight medical negligence cases. Some battles are fought in the courtroom. Some are fought in the Legislature. Others are fought against the doctors who choose to testify for plaintiffs.

Read this article about what can happen if a group of doctors doesn't like your expert's testimony.

I am familiar with the Fullerton case mentioned in the article; I sit on an ATLA Committee that advises the Center for Constitutional Litigation that is advising Dr. Fullerton. I will let you know when that case is resolved.

By the way, have any of you ever heard that any of these groups ever went after an expert for the defense?

Seminar in Mexico

The weekend after Thanksgiving 2005 I will be speaking at a seminar in Cozumel that will be of particular interest if you want to scuba dive.

The seminar is sponsored by the Bench Bar Committee of the Tennessee Judicial Conference. Attendees will stay at the Fiesta Americana, an all-inclusive resort.

I will be speaking for 6 hours (3 hours per day) on Saturday and Sunday. Three hours will address tort and comparative fault issues and three hours will be an indepth look at the law of depositions. CLE credit will be available. The sessions will be interactive.

Past attendees have praised the programs (and the diving.)

So, if you are interested in linking some education and some fun consider attending this program in Cozumel.

Here is the seminar brochure. Register soon - this is a holiday weekend so arranging flights will be a challenge.

Loss of Future Earning Capacity

Can a injured plaintiff who is back to work in the same job ask for damages for loss of future earning capacity?

Yes, rules the Eighth Circuit Court of Appeals, given the fact that there was evidence of ongoing physical problems and testimony by the plaintiff that he would probably not be working for as many years given his aliments.

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Safe Roads Save Lives

There is a new study out that maintains that relatively minor changes in highway design can say lives.

The study, by the Insurance Information Institute, explains that "urban roads 'weren't built to accommodate today's heavy traffic. They've evolved as traffic has increased, and they haven't always evolved in the best way to enhance safety and ensure a smooth flow of traffic.'" A news report about the study says that "the majority of traffic fatalities happen on rural roads, but safety experts say urban arteries remain dangerous. About 8,000 traffic fatalities and more than 1 million injuries occur annually on urban roads."

The article gives several examples of how spending a relatively small amount of money can improve safety.

A New York Times Review of the Texas Vioxx Trial

The NYT has done a review of the testimony to date in the Texas Vioxx trial. The Times concludes that the plaintiff has the upper hand, which one would hope would be true since the defense has not put on its case yet but is still good news for the plaintiff.

The article reviews some of the testimony. For example, consider this excerpt:

Mr. Lanier later asked Dr. Nies [a retired Merck scientist involved in the Vioxx project] about a contract proposal in which Merck had offered to pay researchers at Harvard $200,000 to lead a study that would have directly examined Vioxx's heart risks. Dr. Nies said the study would have been unethical, which is why the study was ultimately scrapped.

"Before you say it was unethical, look who signed the contract," Mr. Lanier said, showing Dr. Nies the signature. "It was you."

Hmmmm.

A victory in this case will be a real blow to Merck, despite what they may say afterwards. History tells us that the first few trials in any multi-plaintiff product liability action lose.

If Lanier loses this trial, it is not for want of effort or talent.

Vioxx Trial - Plaintiff Rests

The Plaintiff closed her case yesterday in the Texas Vioxx trial, and Merck called its first witness, a researcher.

One of Merck's arguments is that the decedent was a smoker. His widow testified that he had not smoked in 15 years.

I assume that Merck has at least one defense better than that one.

Business Litigation Blog

Have you had the opportunity to check out our Business Litigation Blog yet? It is full of information for those of us who involved in commmerical disputes.

For example, here is a link to a post on the issue of when attorneys' fees must be litigated.

MSDS

Do you have a potential case where you need to know something about a chemical substance? Look first to MSDS - Material Safety Data Sheets. These documents may be found here.

MSDS have lots of information, including ...

Section 1 - Product and Company Identification
Section 2 - Compositon/Information on Ingredients
Section 3 - Hazards Identification Including Emergency Overview
Section 4 - First Aid Measures
Section 5 - Fire Fighting Measures
Section 6 - Accidental Release Measures
Section 7 - Handling and Storage
Section 8 - Exposure Controls & Personal Protection
Section 9 - Physical & Chemical Properties
Section 10 - Stability & Reactivity Data
Section 11 - Toxicological Information
Section 12 - Ecological Information
Section 13 - Disposal Considerations
Section 14 - MSDS Transport Information
Section 15 - Regulatory Information
Section 16 - Other Information

Have fun!

Davidson County Building Codes

Here is a link to the building codes that are supposed to be followed in Davidson County.

Lawsuit Against the Vatican

One lawyer has taken a priest sex abuse case to the top - he has sued the Vatican.

A well-known Louisville lawyer filed suit against the Vatican, saying that it knew of the abusive activities of a priest. The Vatican is trying to get the case dismissed.

Anthrax Scare and Defamation

Remember the anthrax scare in the months following the 9/11 attacks? Remember Mr. Z? If you don't, this opinion will refresh your recollection.

Mr. Z was named in some New York Times articles and did not appreciate being called a terrorist. He sued, had his case dismissed, but the Fourth Circuit Court of Appeals reversed and remanded the case for trial.

He will get his day in court. I wonder if the NYT will be forced to reveal its source(s) for the stories?

Rule 407 - Subsequent Remedial Measures

Subject to several exceptions, Rule 407 prohibits the introduction into evidence of subsequent remedial measures. The Third Circuit Court of Appeals has just joined several other circuits in holding that the exclusionary rule does not apply when the remedial measures are made by a third party.

Judge Smith wrote that "The rule recognizes that manufacturers will be discouraged from improving the safety of their products if such changes can be introduced as evidence that their previous designs were defective." He went on to say that "this policy is not implicated where the evidence concerns remedial measures taken by an individual or entity that is not a party to the lawsuit." Judge Smith explained that every federal circuit to address the issue -- the 1st, 4th, 5th, 7th, 9th and 10th -- has likewise concluded that Rule 407 does not apply to subsequent remedial measures taken by a nonparty.

Frivilious Medical Malpractice Case

Click here to read about yet another example of a greedy trial lawyer filing a frivilous lawsuit for a greedy plaintiff.

Texas Vioxx Trial

The Texas Supreme Court denied Merck's interlocutory appeal concerning the admissibility of the testimony of the pathologist who performed the autopsy on the plaintiff's decedent. The pathologist's deposition was played for the jury yesterday.

Here is a summary of yesterday's action from the New York Times.

OSIs

They are called OSIs - other similar incidents. Plaintiffs try to get them admitted into evidence in products liability cases to show evidence of defect and knowledge of defect. The incidents must be "substantially similar" and there is (almost) always a fight over what falls within that catergory.

Here is a recent opinion from the Eighth Circuit that upheld the admissibility of OSIs in a products case involving use of a rachet system on a motor vehicle carrier.

Medical Monitoring

What do you do when you represent people who have been exposed to a dangerous substance but to date have not experienced an injury? Some lawyers have brought what is known as a medical monitoring claim, asking that the defendant be required to pay money to monitor the health of the plaintiff to identify and then treat health problems related to the exposure.

Plaintiffs in that situation are in a tough spot. If they wait until they suffer an "injury" there will be an argument that a statute of limitations or a statute of repose has run. If they file suit too early the defendant argues that the plaintiffs have not been injured and therefore do not have standing to bring a claim.

What is the state of the law on this issue? The Supreme Court of Michigan has just ruled that plaintiffs may not bring this type of claim. In Henry v. The Dow Chemical Corp. plaintiffs claimed that they were exposed to dioxin and needed medical monitoring. Dioxin is known to cause cancer, liver disease, and birth defects. The State of Michigan determined that the most likely source of the contamination was Dow's Midland plant.

The Court rejected the claims, saying that Michigan tort law required an actual, present injury for the plaintiffs to recover damages, and that claims for medical monitoring were an issue for the state legislature.

The dissent is fascinating and reflects a totally different philosophy of the role of tort law in society. Here is a sample: "Today, the majority holds that defendant's egregious long-term contamination of our environment and the resulting negative health effects to plaintiffs are just another accepted cost of doing business. But as long as defendant is not held responsible for the decisions it makes, it behooves corporations like defendant to continue with business practices that harm our residents because the courts will shield them from liability by claiming that they are powerless to act. And it is the people of our state who will pay the costs-with their money and with their lives-of allowing defendant to contaminate our environment with no repercussions. Sadly, this Court has resorted to a cost-benefit analysis to determine and,consequently, degrade the value of human life, and this is an analysis that I cannot support. ... Today, our Court has shirked its duty to protect plaintiffs and the people of our state, thereby leaving defendant's practices and interests unassailed. As such, I must respectfully dissent."

Alabama, Nevada and Kentucky have also rejected this type of claim. West Virginia allows such claims. Bower v. Westinghouse Electric Corp., 522 S.E.2d 424 (W. Va. 1999).

One can only hope that if one or more of these plaintiffs or their children ever get ill from dioxin no court will hold that their claim is time-barred.

Auto Death Rates Down

Good news. Overall, the Department of Transportation said alcohol-related fatalities fell 2.4 percent, from 17,105 in 2003 to 16,694 in 2004. 42,636 people died on the nation's highways in 2004, down 248 - or 0.6 percent - from the previous year. Read a more complete summary of the data here.

There was some bad news. Motorcycle death rates increased for the seventh straight year. Rollover deaths also increased.

I would like to think that the tort system has contributed to a decline in the death rate. Highways and vehicles are safer in part because litigation has forced the issue with government agencies and manufacturers and brought problems to light. To be sure, consumer groups have also played a role in advocating for better roads and vehicles, but the tort system provides the economic incentive for people to do the right thing.