Day on Torts

July 16, 2012

Does A Severely Injured Plaintiff Have A Right to Be in The Courtroom?

It is not uncommon for defendants in severe brain injury, spinal cord or burn injury cases to ask that the plaintiff not be present in the courtroom. The argument goes that the injured person cannot contribute to the prosecution of the case and therefore the only purpose that they are brought into the courtroom is to gain sympathy.

The Georgia Supreme Court faced this issue in the recent case of Kesterson v. Jarrett, S11G0590 (Ga. S. Ct. June 18, 2012). A trial judge excluded the minor plaintiff, Kyla Kesterson, a young child with severe cerebral palsy, from the courtroom during the liability phase of a bifurcated medical malpractice trial. Plaintiffs argued that they did not intend for the minor plaintiff to be present in court for an extended period of time during any phase of the trial, but argued that she had the constitutional right to be present.

The Georgia The Court of Appeals affirmed, saying that the trial court has discretion to exclude a civil party when the party’s physical and mental condition may generate jury sympathy and her mental condition precludes her from meaningfully participating in and understanding the proceedings. The support for that position was a decision from our own 6th Circuit Court of Appeals, Helminski v. Ayerst Labs., 766 F2d 208, 218 (6th Cir. 1985)).

June 27, 2012

AAJ Sponsors Case Planning Workshop – Discount Available

by The Law Offices of John Day, P.C.

AAJ is sponsoring a case planning workshop in Washington, D.C. on July 12-14, 2012.

This in-depth program takes your active case through six critical workshops and three group sessions to help you define your case strategy. The hands-on format provides constant attention to your wrongful death or catastrophic injury case. Highly experienced trial lawyers guide and coach you to map out your litigation plan. At the end of the program, you’ll have a methodical and empirically-based strategy for your case. Not just concepts—actionable items that you have fully developed with the faculty and can put into motion with your trial team.

Here’s what you will learn about your case:

June 26, 2012

Supreme Court to Review ERISA Subrogation / Reimbursement Rights

by The Law Offices of John Day, P.C.

The United States Supreme Court will determine whether an employee benefits plan govered by ERISA is subject to equitable limitations when it demands reimbursement of benefits paid a covered employee who recovers money in personal injury and wrongful death litigation.

The case that will be reviewed is U.S. Airways, Inc. v. McCrutchen, No. 10-383 (3rd Cir. Nov. 16, 2011), ,which is discussed at length in a blog post titled "Third Circuit Says Equity Applies to Subrogation Rights Under ERISA Plan."

Here is the issue as stated in the cert petition:

June 25, 2012

Judicial Notice of Google Map

by The Law Offices of John Day, P.C.

A federal court of appeals has ruled that a court may take judicial notice of a Google map image.

In United States v. Perea-Rey, No. 10-50632 (9th Cir. May 31, 2012), the Court of Appeals for the Ninth Circuit ruled that

We take judicial notice of a Google map and satellite image as a “source[ ] whose accuracy cannot reasonably be questioned,” at least for the purpose of determining the general location of the [defendant’s] home. Fed.R.Evid. 201(b)." See also Citizens for Peace in Space v. City of Colorado Springs, 477 F.3d 1212, 1219 n.2 (10th Cir. 2007) (taking judicial notice of online distance calculations); cf. Boyce Motor Lines v. United States, 342 U.S. 337, 344 (1952) (“We may, of course, take judicial notice of geography.”) (Jackson, J., dissenting).

June 22, 2012

Tennessee Attorney General Opines on Constitution’s “Open Courts” Provision

by The Law Offices of John Day, P.C.

Article 1, Section 17of the Tennessee Constitution provides that " all courts shall be open; and every man, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”

The Tennessee Attorney General was asked to opinion whether legislation which set a significant surety bond contest the licensure of equine slaughter facilities would likely be held unconstitutional under Tennessee’s Open Courts Clause. In Opinion 12-44, the Attorney General concluded that imposition of such a bond would likely violate the Open Courts Clause.

The Attorney General said as follows:

June 20, 2012

Tennessee Attorney General Addresses Two Issues Arising in the Tennessee Civil Justice Act of 2011

by The Law Offices of John Day, P.C.

The Tennessee Attorney General has weighed in on the "Restrict the Civil Justice Rights of Tennesseans In Exchange for the False Promise of Low Paying, Unspecified Jobs Without Benefits Act of 2011," more commonly known as the Tennessee Civil Justice Act of 2011.

Senator Jim Kyle made these inquiries?

1. Do the limitations on damage awards in Tenn. Code Ann. §§ 29-39-101 to -104 apply to health care liability actions?

2. Do the limitations on damage awards in Tenn. Code Ann. §§ 29-39-101 to -104 apply to physicians and nurses employed by a local governmental entity who are litigants in a health care liability action?

The Attorney General responded as follows in Opinion 12-58:

June 20, 2012

9th Circuit Limits Rights of ERISA Health Insurer

by The Law Offices of John Day, P.C.

The United States Court of Appeals for the Ninth Circuit has ruled that an employer-based health insurance plan did not have a right to full reimbursement from a personal injury plaintiff who recovered only a fraction of her damages from the wrongdoer.

The case is CGI v. Rose, No. 11-35127 (9th Cir. June 20, 2012).

In denying the insurer’s claim against Rose, the Court held that “parties may not by contract deprive [a court] of its power to act as a court in equity.” In a concurring opinion, Circuit Judge Schroeder observed that it would be “manifestly unfair” to allow the plan to recoup 100% of its medical expenses. Such a result, Judge Shroeder observed, would “leav[e] the beneficiary vastly undercompensated for her actual damages” and “unjustly enrich” the ERISA plan, which had been paid premiums for the expenses it was now seeking to recoup.

June 18, 2012

Defendant’s Attempt to Keep Trial Evidence Secret Rejected by Oregon Supreme Court

by The Law Offices of John Day, P.C.

Those in positions of power and wealth fear one thing more than parting with their precious money: they fear that someone will find out what they did.

Thus, we see repeated requests of courts to hide the the conduct of wrongdoers. Early in a case, these efforts manifests themselves in requests for protective orders to keep documents and deposition testimony private. Later, it results in confidential settlement offers and settlement offers made conditional on destruction of evidence gathered in discovery and permanent gag orders.

But the Boy Scouts of America took it one step further: it attempted to keep confidential information about over 1000 ineligible volunteers that was admitted into evidence at trial. Le me say that again. BSA attempted to keep secret evidence that was admitted at trial in a case where the Boy Scouts were ordered to pay both compensatory and punitive damages.

June 18, 2012

Medicare Issues Proposed Rules on “Future Medicals”

by The Law Offices of John Day, P.C.

The Centers for Medicare & Medicaid Services have issued proposed rules to address the issue of how Medicare beneficiaries will protect Medicare’s interest when future medical care is claimed or the settlement or judgment released (or has the effect of releasing) claims for future medical care.

Here are the proposed regulations issued by CMS. The proposed regulations have 7 different options, the first four of which are available to current and future Medicare beneficiaries. The final three options are available only to current beneficiaries.

June 13, 2012

Kentucky Judge Shares Thoughts About Lawyer Suicide

by The Law Offices of John Day, P.C.

Kentucky Supreme Court Justice Bill Cunningham has authored an article in the News Democrat Leader about lawyers who take their own lives. Called "Broken Hearted Idealists," it does a fine job exposing a problem in our profession and some interesting thoughts about why it happens.