Day on Torts

August 29, 2013

Limited Duty Imposed on People Who Send Text Messages to Those Driving Cars and other Vehicles

The sender of a text message to a person faces potential liability if the recipient of the message negligently causes a wreck injuring others, according to a recent opinion of the Appellate Division of the Superior Court of New Jersey.

In Kubert v. Best, A-1128-12T4 (N.J. Sup. Ct. App. Div. Aug. 27, 2013), the Kurberts were seriously injured when a young drivers who was texting while driving crossed the center-line of the road and hit them. Their case against the young driver was settled, but the Kuberts appealed a decision of the trial court that dismissed their claims against the young driver’s friend who was texting the driver much of the day and sent a text message to him immediately before the accident. Texting while driving is illegal in New Jersey.

No other appellate court has addressed this issue: whether one who is texting from a location remote from the driver of an automobile can be liable to persons injured because the driver was distracted by the text. The court answered the question "yes," but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted." The court issued a 30-page opinion on the issue, which employs duty analysis to arrive at the conclusion that a duty should be imposed on the sender. To reach its result, the majority of the court discusses the duty of a passenger in a vehicle at great length.

August 22, 2013

Can A Police Officer Sue a 9-1-1 Caller For Failure to Warn of Danger of Assault?

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

A Texas police officer has sued a 9-1-1 caller for failing to warn the 9-1-1 official (and thus the police officer) that the police responding to the call would be walking into a dangerous situation. The responding officer was attacked by a man at the home who had allegedly been using bath salts for several days.

That dog would not hunt in Tennessee. Tennessee (and most states) have what was historically known as the "policemen and firemen’s" rule which, by the way, applies to female police officers and firefighters as well.

Here is a general statement of the rule from Tennessee’s leading case on point, Carson v. Headrick , 900 S.W.2d 685 (Tenn. 1995):

August 16, 2013

Can You Strike Potential Jurors Because of Their Sexual Orientation?

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

The law gives parties the right to strike a limited number prospective jurors from serving on a particular jury without demonstrating "cause, but that right is limited by case law designed to prohibit discrimination. Should a party’s right to peremptorily challenge a juror because of his or her sexual orientation be added to the list?

The issue will be addressed in the Ninth Circuit Court of Appeals in the case of Smithkline Beecham Corp. v. Abbott Laboratories, which is being argued in September 2013. The issue arose in an antitrust case involving HIV medications. A lawyer for one of the companies sought to strike a juror because the would-be juror was “or appears to be, could be, homosexual.”

This blog post from Verdict has a nice summary of the issue. Here is link to all of the briefs in the Smithkline Beecham Corp. v. Abbott Laboratories case.

August 6, 2013

Thoughts About A Doctor Paying A Judgment in Quarters

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

Dr. Roger Herrin, upset that he had to share money with those who were injured in a car wreck that also took his son’s life, paid the $500,000 he owed in quarters. 7,500 hundred pounds of quarters. Why quarters? "Because I couldn’t do it in pennies," Herrin reportedly said.

There has been lots of press about this event, but none of it gave me a clear picture of the legal dispute that gave rise to Herrin acting in such a fashion. Here is what my research revealed:

In what all would agree was a tragic event, Herrin’s 15-year old son was killed and three other people were injured in an intersection wreck in 2001. The at-fault driver had $100,000 in applicable liability insurance limits; this sum was paid into court. No agreement could be reached on how to divide the $100,000, so the trial judge decided the value of each individual case and divided the money pro rata. The Herrin death case was given the greatest value – a little over $10,000,000, just over 90% of the total damages the judge found to be present (almost $11,000,000 for all plaintiffs.)

July 30, 2013

A Referral Service (And Others) Gets Sued By State Farm – Allegations of Improper Referrals to Plaintiffs’ Law Firms (And More)

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

State Farm, a leading auto insurer, has sued a referral service, chiropractic firm and others alleging, inter alia, that they engaged in a fraudulent scheme of referrals to and from a plaintiff’s firm that resulted in monetary loss to State Farm via it medical payments and personal injury protection (PIP) coverage.

Here is a summary of the action as set forth in the federal court complaint:

This action involves a massive fraud scheme by the Defendants to obtain from State Farm Personal Injury Protection (“PIP Benefits”) and Medical Payments Coverage (“MPC Benefits”) insurance benefits (collectively, PIP Benefits and MPC Benefits are referred to as “No-Fault Benefits”) for services and treatments purportedly rendered to patients at Physicians Group clinics in Florida, which are owned by Kompothecras [a chiropractor]. The services and treatments were not lawful when they were rendered because the Defendants intentionally violated several important criminal, civil and administrative laws to lure unwitting motor vehicle accident victims to receive the services and treatments at the Physicians Group clinics, namely the Patient Brokering Act (Fla. Stat. § 817.505), the Patient Self-Referral Act of 1992 (Fla. Stat. § 456.053), the Anti-Kickback Statute (Fla. Stat. § 456.054), the Deceptive and Unfair Trade Practices Act (Fla. Stat. § 501.201 et seq.) (“FDUTPA”), the laws establishing grounds for disciplinary action against chiropractors who engage in false and misleading advertising (Fla. Stat. § 460.413(d), (f) and (l)), and administrative rules prohibiting chiropractors from engaging in deceptive and misleading advertising (F.A.C. Rule 64B2-15.001(2)(a), (b) and (k)). The driving force behind the Defendants’ scheme is to exhaust their unsuspecting patients’ limited No-Fault Benefits, without regard to whether the patients may have health insurance that might otherwise cover some or all of Physicians Group’s charges, thereby preserving their No-Fault Benefits for other medical services that the patients may truly need.

July 29, 2013

Tennessee Products Liability Statute of Repose Applied to Bar Claim

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

Tennessee has a ten-year statute of repose that bars most products liability claims ten years after the product at issue was sold to the first user or consumer. Unlike a statute of limitation, a statute of repose can bar a claim even before plaintiff was injured.

The United States Court of Appeals for the Sixth Circuit recently applied the ten year statute of repose to bar a claim arising in Tennessee for losses caused by a defect in a car owned by a Tennessee consumer. It was undisputed that the car had been sold to the first user or consumer more than ten years before the incident giving rise to the claim. However, the plaintiff’s lawyers sought to avoid the statute of repose by filing suit against the manufacturer of the car in Michigan, the home state of the manufacturer of the vehicle.

In Standard Fire Ins. Co. v. Ford Motor Co., No. 12-1583 (6th Cir. July 24, 2013), the court held that the claim was governed by Tennessee law and that the Tennessee statute of repose barred the claim. The opinion undertakes an extensive review of Michigan’s conflict of law principles in tort claims.

July 15, 2013

Tennessee Medical Malpractice Cases – Information From the National Practitioner Data Bank

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

The National Practitioner Data Bank collects data about medical malpractice settlements of $10,000 and more. Here is some recent information about Tennessee physician judgments and settlements as reported to the Data Bank:

There were 155 reported payments in 2011, down from 192 10 years earlier in 2001.
31 of those payments were under $50,000.
23 of those payments were between $50,000 and $99,000.
26 of those payments were between $100,000 and $249,000.
39 of those payments were between $250,000 and $499,000
30 of those payments were between $500,000 and $999,999.
6 of those payments were between $1,000,000 and $1,999,999.
None of those payments exceeded $2,000,000.
Total payments in 2011 were $46,850,000
Thus, the mean payout in 2011 was a little over $300,000.
The median payout in 2011 was $200,000, placing us 16th in the nation. Massachusetts was the highest at $404,000.
Total payments in 2001 were $48,950,000.
The year with the largest total payments was 2006 – $54,980,000.
The median delay from incident to payment in 2011 was 4.0 years. The mean delay from incident to payment in 2011 was 4.5 years.
You can read the 2011 Data Bank report by clicking on the link.

All of this data is very interesting, but I was particularly intrigued by the "delay in payment" data. We work particularly hard in our office to reduce this period and, quite frankly, I don’t recall any case in our office ever having a four-year delay from incident to payment except one: a case won at trial and appealed by one of several defendants. The verdict against that doctor was affirmed and payment was made about four years after the incident.

We recently resolved a case that was set for trial in late June, 2013. Our client died as a result of an error made in an emergency room in early 2011. The case had been filed for about 18 months. Our case could have been set for trial three or four months earlier but for scheduling issues with the court and defense counsel.

July 14, 2013

A Comment on State v. Zimmerman

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

Ok, State v. Zimmerman was a criminal case, not a civil case. much less a tort case. (Zimmerman may be sued by Martin’s family – more on that below). But, in the "for what it’s worth department, here are my comments on the criminal verdict:

1. I don’t know if Zimmerman murdered Martin or if he did not.

2. I know that Zimmerman killed Martin.

July 2, 2013

An Important Change to the Tennessee Statute of Limitations That Affects the Rights of the Mentally Disabled

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

For many years, the Tennessee statute of limitations was tolled for those of "unsound mind." That law has now changed, and the statue of limitations is tolled only for those who are "adjudicated incompetent." Tenn. Code Ann. Section 28-1-106. Here is the text of the newly worded statute:

If the person entitled to commence an action is, at the time the cause of action accrued, either under eighteen (18) years of age, or adjudicated incompetent, such person, or such person’s representatives and privies, as the case may be, may commence the action, after legal rights are restored, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from restoration of legal rights.

Here is how the bill was changed in Public Chapter 47 of the 2011 legislation:

June 27, 2013

Case Selection for Plaintiff’s Lawyers – 2013 Update

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

About eight years ago I wrote a guest post for Legal Underground that addressed the importance of case selection by plaintiff’s lawyers. The post got lots of discussion, and in fact I ended up doing a series of speeches about the topic at seminars sponsored by various state lawyer associations and at an AAJ national conference..

Eight more years in the trenches as a practicing lawyer have given rise to a few more thoughts on the subject, and therefore I have updated the post. Here is the 2013 version.

The key to making a decent living (and maintaining sanity) as a plaintiff’s lawyer is knowing when to turn a case down. To be sure, you have to a plan in place to get inquiries on new cases. And you have to have the ability to prepare and try the cases you accept. But it is also essential that you need do know when to say "thanks, but no thanks" to a case offered to you from a potential client or another lawyer.