Day on Torts

August 29, 2012

Lawyers Without Legal Malpractice Insurance

I am fortunate to receive many calls on many types of cases, some of which fall outside of my normal practice area. i decided I would seek out a lawyer to whom I could associate on a particular type of case – this lawyer enjoyed a good reputation on cases of this type. I called him and had a general discussion about the type of calls I was getting and inquired whether he was interested in receiving some referrals.

He said he was, and we had a discussion about how we could work together to assist future clients. I had a good feeling about the potential of working together.

Then, I asked him to confirm that he carried legal malpractice insurance. He said he did not, I told him I could not sleep at night if I did not have legal malpractice insurance for our firm. He said that if he got sued and put in a position of probable financial loss he would file bankruptcy and avoid the loss.

August 27, 2012

Federal Courts Issue Revised Jury Instructions on Social Media

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

The Federal Evidence Review Blog has been kind enough to let us know that the federal Judicial Conference Committee on Court Administration and Case Management ("CACM") has issued new proposed jury instructions on the use of social media by jurors.

"The overwhelming majority of judges take steps to warn jurors not to use social media during trial, but the judges surveyed said additional steps should be taken," said Judge Julie A. Robinson, CACM Committee chair. "The judges recommended that jurors frequently be reminded about the prohibition on social media before the trial, at the close of a case, at the end of each day before jurors return home, and other times, as appropriate. Jurors should be told why refraining from use of social media promotes a fair trial. Finally, jurors should know the consequences of violations during trial, such as mistrial and wasted time. Those recommendations are now part of the guidelines."

Here are the proposed instructions:

August 21, 2012

7th Circuit Finds Expert Testimony for Plaintiff Admissible in Products Liability Claims

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

The 7th Circuit Court of Appeals has upheld a plaintiff’s verdict in a products liability case notwithstanding the defendant’s assertion that the plaintiff’s expert should have been excluded under Daubert.

In Lapsley v. Xtech, Inc., No. 11-3313 (7th Cir. July 27, 2012) Industrial grease was propelled in a jet with enough energy to penetrate and pass through the human body like a bullet. That jet hit and disabled plaintiff Leonard Lapsley. The jury found that the accident occurred because defendant defectively designed the piece of equipment that propelled the grease.

Defendant challenged the admissibility of plaintiff’s expert witness, arguing that he lacked a scientific basis for his testimony. The trial judge permitted the witness to testify, and the defendant challenged that ruling on appeal after a jury found it liable for Lapsley’s injuries.

August 5, 2012

Declarations Can Now Be Used in Lieu of Affidavits in Tennessee State Courts

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

Tennessee’s rules of civil procedure now permit the use of declarations in lieu of affidavits.

TRCP Rule 72 provides as follows:

Wherever these rules require or permit an affidavit or sworn declaration, an unsworn declaration made under penalty of perjury may be filed in lieu of an affidavit or sworn declaration. Such declaration must be signed and dated by the declarant and must state in substantially the following form: "I declare (or certify, verify or state) under penalty of perjury that the foregoing is true and correct."

August 1, 2012

Missouri Supreme Court Strikes Down Damage Caps

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

Yet another effort to restrict the right of jurors to award damages based on evidence has been declared unconstitutional. This time, the Supreme Court of Missouri struck down the damage caps imposed on damages for pain, suffering, disfigurement, and disability.

In Deborah Watts as Next Friend for Naython Kayne Watts v. Lester E. Cox Medical Centers d/b/a Family Medical Care Center, Lester E. Cox Medical Centers, Melissa R. Hermann, M.D., Matthew P. Green, D.O., and William S. Kelly, M.D., SC91867 (Mo. July 31, 2012), the court found that the caps violated the Missouri State Constitution because it violated the right to trial by jury. Article I, section 22(a) of the Missouri Constitution, mandates in pertinent part that “the right of trial by jury as heretofore enjoyed shall remain inviolate.”

The court reached this result after over-ruling twenty year old precedent that said that damage caps did not violate the Constitution. The court said "while this Court always is hesitant to overturn precedent, it nonetheless has followed its obligation to do so where necessary to protect the constitutional rights of Missouri’s citizens."

July 17, 2012

Juror Misconduct: Social Networking

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

The Winter 2012 edition of the FDCC Quarterly includes an article called "Juror Misconduct in the Age of Social Networking." Written by Michael K. Kiernan and Samuel E. Cooley, the article discusses how a juror’s use of social networking tools "can result in a denial of the defendant’s due process rights …."

I guess it never crossed the mind of these gentlemen that the a juror’s use of these tools could impact the rights of plaintiffs.

Nevertheless, the fifteen-page article has a collection of cases from around the country that discuss the impact of social networking on jury verdicts. The subjects include public posting or tweeting about on-going trials, using social media to contact a party or a witness, improper communication among jurors, and Internet research during trial.

July 16, 2012

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

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

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).