Day on Torts

I am at a meeting of the Members Consultative Group of the Restatement of the Law Third Torts: Liability for Physical and Emotional Harm sponsored by the American Law Institute.  The meeting is being held in Austin, Texas at the University of Texas Law School.  We are discussing "Duty of Land Possessors."

Last night we had dinner at the Mansion at Judge's Hill and I had the pleasure of sitting with Victor Schwartz, an editor of the torts case book that most of us used in law school and an active tort reformer.  (Indeed, he is General Counsel to the American Tort Reform Association.)  We had a wonderful conversation, agreeing on more things than both of us expected and politely disagreeing on other points.  Victor has a great sense of humor and  a real gift of imitating the voices of many political figures. 

This morning we are debating the duty, if any, of landowner's and possessors to trespassers and the exceptions to the historic general rule of no liability.  I am enjoying the debate immensely - a lot of thought has been given to the issue by the drafters and the members who are present are raising some excellent points. 

In the second Vioxx case, the New Jersey jury ruled Merck not liable. Read about it at Forbes.

Jurors have apparently reached a verdict in the second Vioxx case. It is expected to be announced in the next few minutes. (From ABC News).

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.

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.

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.

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.

Over at our Tennessee Business Litigation blog, read about an Arkansas state judge's decision to order sanctions against a nursing home chain in a class action suit. The sanctions arise from failure to produce emails and other electronic documents, and include $25,000 in attorney's fees and possible jail time.

The tort reform movement, lacking in facts but fueled by greed and ignorance, will not die. It cannot, because there are too many lobbyists and tort reform special interest groups that need for it to be kept alive. The so-called reformers receive hundreds of millions of dollars per year to "keep hope alive" for the business and insurance industries. They can't just let that money go away.

Here is an article that describes that current state and the direction of the movement.

They hooked-up on the Internet and then he allegedly cheated her out of $70,000. She's mad, not going to take it anymore, and files suit.

I hope her lawyer is getting paid by the hour. I'm not saying she doesn't have a valid case - she might. I'm just saying that if she does the defendant is going to have at least one year to spend what he has.

Radio station has a contest. If you are the 10th caller during a given hour you get "100 Grand." Woman wins, and they give her a "100 Grand" candy bar. Woman, disappointed and undoubtedly a little embarrassed because she told her family she had won $100,000, sued the radio station. Read the articlehere.

I don't know how I feel about this. I would have to hear the announcments concerning the prize to try to see in what context they used the phrase "100 Grand."

One thing is for sure - the station has gotten alot more than $100,000 worth of publicity out of this little stunt - which may well have been the intention all along.

Here is a fascinating article about what was going on at Merck a few years ago.

Here's a clip to wet your whistle:

"The widely publicized study in March 2000 found that patients taking Vioxx were five times more likely to have heart attacks than individuals using the generic medicine naproxen. Merck insisted at the time that this was a result of naproxen's cardioprotective properties and not any defect in Vioxx.

But behind the scenes, company scientists were considering combining Vioxx with another agent to reduce the risk of heart attacks and strokes, according to a document that was mistakenly provided by Merck to plaintiffs lawyers as part of the evidence-gathering process in one of the hundreds of Vioxx lawsuits around the country. ...

According to the document, Edward Scolnick, the former head of Merck's research labs, was the first to suggest combining Vioxx with an agent that would block blood platelets from clotting. Such clots can lead to heart attacks and strokes. There are three dates on the document; the first is March 30, 2000. "

This document was leaked to the press despite a court order that it and all copies of it were supposed to be returned to Merck because it was privileged. I hope it was a Merck employee and not a representative of the plaintiffs who leaked it.

Senator Frist now says that he did not diagnosis Ms. Schiavo by looking at her on videotape.

At the time, the Senator said "I question [the diagnosis of her doctors] based on a review of the video footage. ... And that footage, to me, depicted something very different than persistent vegetative state."

For a man who regularly lets everyone know that he is a doctor ("a transplant surgeon") that sure sounds like a diagosis. If Tom DeLay made such a statement it would not be a diagnosis - he killed bugs for a living. But from a surgeon ....

Now that the autopsy results are in the spin begins. Why not just admit that in the heat of the moment you misspoke? Why not just admit that it is impossible to diagnose a person by simply looking at a video - or at least that any doctor who just looked at a video would defer to the treating physicians?

The Senator wants to be President. The Senator has demonstrated that he needs to go back to practicing medicine.

Well, we now we know what 12 people thought about the charges brought by the DA against the King of Pop. I did not follow the trial closely enough to offer an opinion about whether or not I agree with the jury, although I must say that the defense seemed to have a field day with the mother of the young man allegedly involved. (I did not follow the trial because the commentators drive me absolutely nuts. A few of them are rational, but I can never remember their names or what network they appear on and I do not want to watch one minute of coverage by the crazy commentators to see if a good one will show up.)

I have heard the DA say "you can't pick your victims." True. But, as DA, you can pick your cases. Every DA makes decisions every day about what crimes to prosecute. Not infrequently crimes aren't prosecuted because the DA, after looking at all of evidence and the people who will be presenting it, determines that it would be difficult to convict.

Here is a nice story about Michael's lead lawyer who, I am sure, is on Cloud 9 this morning.

So, what will happen with the civil suit? And what about the one pending in Louisana? In civil cases the burden of proof is less - preponderance of the evidence as opposed to the "beyond a reasonable doubt" standard used in a criminal case. Will we have an OJ-type result in California - a civil jury reaching a different result from the criminal jury?

Michael has won the first battle in what may be a long war.

The Bush Administration decided to pursue the case against the tobacco companies originally filed during the Clinton Administration. The Justice Department has spent the last 5+ years working on the case and it has been in trial for months. One of their experts said the proposed remedy would cost $130 billion dollars. So what does the Administration request from the Judge?

Ten billion dollars. To be paid over five years.

This caused the Judge to comment "Perhaps it suggests that additional influences have been brought to bear on what the government's case is." (Read more here.)

No - that simply isn't possible. The Bush Administration wouldn't take a fall to benefit any particular industry. They wouldn't allow an industry to steer policy. In fact, I was talking to some of my friends who work for energy-related concerns, and they confirmed that the Bush Administration has strict rules about this sort of things.

Sleep well.

I am embarrassed to say that six months ago I did not even know what a blog was. Well, maybe I knew what one was - I have some recollection about reading stories about political blogs during the last presidential campaign - but I had never looked at one. I was just busy.

I like to think I stay current in my field, but I must confess that I missed alot by not taking advantage of the knowledge that my (now) fellow bloggers have been sharing via their blogs. I hit several blogs everyday; over the next few weeks I will share my favorites with you.

Our firm hopes to add to this body of knowledge by introducing another blog called the "Tennessee Business Litigation Law Blog." Brandon Bass of our firm is the chief blogger on this one, but other people in our firm will be adding posts as appropriate. The purpose of this blog is to gather and share information of interest to corporate counsel and executives, small business owners, and the people that represent them about recent developments in commerical litigation and business law. It will concentrate on the law of the Tennessee, but will gather interesting and useful information from around the nation.

Although our firm is best known for its work on behalf of plaintiffs in tort litigation, we have always had an active commerical litigation practice. (We do not defend personal injury or wrongful death cases.) Frankly, I like the mix between the two, although I often find that people who do only commerical litigation have difficulty focusing of what is really important about the problem at hand. I think it is important to be able (and willing) to identify the goal line in every case, and then to proceed toward that goal line in as straight of line as possible, a philosphy no doubt influenced by my 24 years of working on a contingent fee basis.

We hope that those of you who are lawyers will find our new blog to be helpful in your practice. Let us know what you think about it. In fact, while you are at it, let us know what additional types of information you would like us to give you in this blog.

OAKLAND, Calif. -- ESPN has reported that former Oakland Raiders teammates Marcus Williams and Bill Romanowski are settling their legal dispute.

Williams' career ended after his eye socket was broken by Romanowski, who ripped off Williams' helmet during a practice drill and hit him in the face. Williams sued Romanowski for battery. A jury ordered Romanowski to pay Williams $340,000 in damages. Williams was dissatisfied with the result and convinced Romanowski to pay $415,000 to end the dispute.

Football is a rough game, particularly in Oakland. But there is - appropriately - a limit to when you play rough and how you do it. Cheap shots can be expensive.

It has been rumored for over a year that our Chief Justice would retire this year, and in fact his retirement party has been in the planning stages for some time. However, it is now official: effective September 2, 2005 we will be losing Frank Drowota as a member of our appellate court. The Chief Justice has served on either the Court of Appeals or the Supreme Court for 31 years. Read his announcement here.

The new justice will be appointed by the Governor from a panel of three selected by the Appellate Court Nominating Commission. I believe that the next judge can come from either Middle or West Tennessee, although I have heard that others have a different opinion. In fact, at least one person thinks that the next justice will be selected in an election.

I will keep you updated.

This would be funny - if it wasn't true.

John Jenkins sat down in a portable toilet to start and finish some personal business and have a cigarette - and the toilet exploded!

Apparently, there was a methane gas leaking from a broken pipe under the toilet. When Jenkins struck the lighter there was an explosion and he was burned.

He has filed suit against the property owner and the construction company that allegedly damaged the pipe.

Read the story here.

Do you think either defendant will allege comparative fault on Mr. Jenkins? In Tennessee, defendants can allege fault against non-parties. I know two defense lawyers who would allege fault against the Mexican restaurant where Mr. Jenkins purchased and ate a burrito for lunch.

This is off topic, but very interesting. The United States Supreme Court has just overturned Arthur Anderson's criminal conviction. The Court held that a key jury instruction was in error.

Read the opinion here.

Investor Ron Perlman won big in his case against Morgan Stanley. Compensatory damages were $604.3 million. Punitive damages - limited under Florida law to three times the compensatory award - were pegged by the jury at $850 million.

Regular readers will recall the the trial judge eliminated liability as an issue after Morgan Stanley was caught playing games with discovery. The sole issues before the jury were reliance and damages.

The Company fired its law firm shortly before trial, and was given only a short continuance to allow new counsel to get up to speed. Morgan Stanley has less than $500 million reserved for this case; with interest running at $250,000 per day look for a settlement soon.

The passage of IRS Code Section 409A cast doubt on the ability of lawyers to structure attorney's fees in personal injury cases. The IRS has issued new guidelines that make it clear that, if certain conditions are met, attorney's fees can be deferred in contingent fee cases.

Read about the new guidelines here. To learn more talk to a qualified structured settlement broker.

I know this is off topic - but I don't care. Nancy Grace disgusts me. I know she lost her future husband to a murderer; that is horrible. I know she is profoundly pro-prosecution; no problem.

But she is also a lawyer. Her outrageous comments about the legal system offend me. She makes no attempt to be objective. She makes no attempt to analyze. She is not a talking head - she is a screaming skull. She is an embarrassment to the profession.

To read about the way she conducted herself as a prosecutor - a public office that represents the people - read this article. Given the way she conducts herself on TV you will not be surprised to learn how she used to conduct herself in a courtroom.