Day on Torts

February 7, 2012

Number of Jury Trials Continues to Decline in Tennessee Tort Cases

The number of jury trials in Tennessee tort cases continues to decline, according to data released by the Tennessee Adminstrative Office of the Courts.

In the one year period ending June 30, 2011, there were only 222 jury trials in tort cases in Tennessee state courts. Ten years ago, the period ending June 30, 2002, there were 412 jury trials in tort cases. Looking at the ratio between cases filed and cases tried to a jury, jury trials are down over 50%.

Is this trend due to mediation? I doubt it. True, there are lots of mediations in tort cases today, but mediation has been around for more than 20 years and was a firmly entrenched part of tort practice in Tennessee well over 10 years ago.

February 5, 2012

Personal Injury Filings Decline Again in Tennessee

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

New data out from the Tennessee Administrative Office of the Courts puts data behind what those of us who practice tort law knew: tort filings are down in Tennessee.

The AOC’s Annual Statistical Report shows that tort filings for the one year period ending June 30, 2011 were 10,576. Ten years ago, in the one year period ending June 30, 2002, there were 12,166 tort cases filed in the state.

Total tort case filings in the six counties with the largest population were as follows:

February 4, 2012

Damages for Death or Serious Injury of a Homemaker

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

We all know that the services provided by homemakers have a substantial value, but this article from Vestopedia puts some numbers on it.

The author notes that "

The life of a homemaker is one that includes an endless amount of demands and to-dos. Depending on the size of the home and family, the position of homemaker can go well beyond the usual nine to five. We examined some of the tasks that a homemaker might do to find out how much his or her services would net as individual professional careers. We only take into consideration tasks which have monetary values and use the lowest value for each calculation.

January 31, 2012

Arkansas Supreme Court Limits Legislature’s Efforts To Determine Who Can Testify As An Expert

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

The Arkansas Supreme Court has rejected an effort by the Arkansas Legislature to define who is permitted to give testimony as an expert witness in a medical malpractice case.

Broussard’s medical malpractice case was dismissed on summary judgment after her expert witness was excluded under Arkansas Code Annotated section 16-114-206 (Repl. 2006). Broussard argued that the requirement in section 16-114-206(a) that proof in medical-malpractice cases must be made by expert testimony by “medical care providers of the same specialty as the defendant” violates section 3 of Amendment 80 of the Arkansas Constitution.

In Broussard v. St. Edward Mercy Health System, Inc., 2012 Ark. 14 (Jan. 19, 2012), the Arkansas Supreme Court held that "the provisions in section 16- 114-206(a), which provide that expert testimony may only be given by “medical care providers of the same specialty as the defendant,” violate the separation-of-powers doctrine, Amendment 80, and the inherent authority of the courts to protect the integrity of proceedings and the rights of the litigants.

January 25, 2012

Burger With Everything – Hold the Loogie

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

It takes a particular type of jerk to project a loogie onto a hamburger that is being served to another person. (I guess you would never do that to a hamburger you intended to eat yourself.) And there is a relatively small subset of jerks who would do this to a police officer who ordered the burger for a late-night meal.

Now, what are the odds that the police officer would sense that something was amiss before eating that burger? Deputy Bylsma from Clark County, Washington did, and when he pulled the top of the bun off his burger he observed a “slimy, clear and white phlegm glob” on the meat patty.

Now, the good deputy had one course of action that comes immediately to mind. He could go into Burger King, identify which of the only two people on the job committed this act, and then proceed to resolve the situation with a good ol’ fashioned ass whipping. But Bylsma was smarter than that.

January 19, 2012

Witness Preparation

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

Jury Research Institute has a fine article about the all-important task of witness preparation.

The article breaks down the preparation process into three stages:

Stage 1 involves orienting the witness to the courtroom and the roles of the people who the witness can expect to see in the courtroom.
Stage 2 addresses the content of the witnesses testimony, starting from a global perspective and working toward the specifics of the testimony.
Stage addresses communication skills.

You will find that this article will help you in your efforts to prepare your witnesses for trial.

January 11, 2012

Federal Rules of Evidence Restyled – Free PDF

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

The Federal Rules of Evidence have been "restyled" effective December 1, 2011. The objective was to make the rules simpler to understand and use without substantively changing the meaning.

The Federal Evidence Review has a free PDF that not only contains the new rules but also links to legislative history, links from the index to each rule, the ability to search the rules within the PDF using Adobe’s "search" tool, and other benefits as well.

You can download the PDF here. The old version of the rules may be seen here.

January 8, 2012

Waiver of Claim for Economic Loss Contributes to Significant Verdict

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

Two lawyers in Connecticut recently made news when they elected not to put on proof of economic losses in a trial of a personal injury case, instead focusing on non-economic damages. The result? A verdict for $10 million in non-economic damages.

The case arose when representatives of Segway failed to give the plaintiff a helmet during a test drive of the device. The plaintiff fell, hit his head, and had a mild traumatic brain injury. Plaintiff lost his sense of taste and smell. There was no notable loss of mental functioning.

The Connecticut Law Tribune reports that "Adelman [one of the plaintiff’s lawyers] said he didn’t want to distract the jury with claims for medical treatment, lost income or attorney fees. If the jurors had those figures, he said they would not be tempted to use a formulaic multiplier of economic damages to arrive at non-economic damages. ‘We didn’t want the jury to be thinking about what the doctors get, ‘or what the lawyers get,’ said Adelman, “because the case was about John.’”

January 6, 2012

Hand-held Cell Phone Use Banned in Interstate Trucks and Buses

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

U.S. Transportation Secretary Ray LaHood has announced a final rule specifically prohibiting interstate truck and bus drivers from using hand-held cell phones while operating their vehicles. The joint rule from the Federal Motor Carrier Safety Administration (FMCSA) and the Pipeline and Hazardous Materials Safety Administration (PHMSA) is the latest action by the U.S. Department of Transportation to end distracted driving. The new rule went into effective on January 3, 2012.

The final rule prohibits commercial drivers from using a hand-held mobile telephone while operating a commercial truck or bus. Drivers who violate the restriction will face federal civil penalties of up to $2,750 for each offense and disqualification from operating a commercial motor vehicle for multiple offenses. Additionally, states will suspend a driver’s commercial driver’s license (CDL) after two or more serious traffic violations. Commercial truck and bus companies that allow their drivers to use hand-held cell phones while driving will face a maximum penalty of $11,000. Approximately four million commercial drivers would be affected by this final rule.

While driver distraction studies have produced mixed results, FMCSA research shows that using a hand-held cell phone while driving requires a commercial driver to take several risky steps beyond what is required for using a hands-free mobile phone, including searching and reaching for the phone. Commercial drivers reaching for an object, such as a cell phone, are three times more likely to be involved in a crash or other safety-critical event. Dialing a hand-held cell phone makes it six times more likely that commercial drivers will be involved in a crash or other safety-critical event.

December 22, 2011

Evaluating Chest Pain in the Emergency Room

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

This article by an emergency room physician in Texas providers a good summary for the evaluation of chest pain in the emergency room.

The article explains that "The decision to discharge a patient who presents with chest pain as the primary complaint should be made only after careful consideration of potential consequences. Patients with myocardial ischemia (MI), angina, pulmonary embolism, dissecting aortic aneurysm, or pneumothorax all can present with chest pain. Your evaluation and documentation should take into consideration all of these high-risk conditions."

The author explains the importance of documentation with these words: