Day on Torts

December 15, 2011

The Law of Indivisible Injury

A law student at the University of Texas, Michael T. Raupp, has written a note in the Texas Law Review (Issue 90, Volume 1) titled "The Multiplication of Indivisible Injury." The work is critical of the handling of the subject by the Restatement (Third) of Torts, which prompted a response by the Reporters.

This is a complicated area of the law, and Raupp does a good job gathering case law and describing the applicable public policy concerns.

As Raupp, explains, "the indivisible injury doctrine, [which operates] as an exception to the causation component of damages, rescues the plaintiff from the position of not being able to recover simply because he happened to encounter two negligent actors instead of one. Additionally, it prevents the tortfeasors from escaping liability for their negligent acts simply because the hapless plaintiff was injured a second time."

December 14, 2011

Softball Catcher Held to Assume Risk of Injury From Collision at Plate

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

The Supreme Court of South Carolina has ruled that a father playing catcher in a softball game who was injured during a collision at home plate did not have a claim against the baserunner.

In Cole v. Boy Scouts of America, Opinion No. 27072 (S.C. S. Ct. 12/5/11), South Carolina’s Supreme Court affirmed a grant of summary judgment in favor of the baserunner (Wagner) who collided with the plaintiff’s husband at home plate. Plaintiff’s husband sustained a serious brain injury in the collision.

Defendant Wagner moved for summary judgment contending that he owed no duty to Plaintiff’s husband because because he (the husband) assumed the risks of playing the sport of softball. Plaintiff alleged that Wagner’s behavior was inconsistent with the ordinary risks of softball because the game was intended to be noncompetitive. He also argued that Wagner violated a rule of the game, and he acted recklessly.

December 13, 2011

Trial Techniques Article

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

Alexandra Rudolph has written an informative article titled "Trial Techniques: What Lawyers Should (and Should Not) Worry About in the Courtroom."

Ms. Rudolph, the owner of a Chicago jury research firm, believes that "attorneys spend too much time worrying about things they can’t control, such as opinions expressed during jury selection, and too little time considering how their trial team appears to the court or what a judge might find most helpful."

The Number One thing lawyers should stop worrying about? "Graphics will make me look ‘too slick.’"

December 12, 2011

Defense Costs in Medical Malpractice Cases

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

This article from www.claimsjournal.com reveals data from the Physician Insurer’s Association of America on the monies spent on defense costs in medical malpractice cases.

The PIAA reviewed closed claim data for 2009 and found that the average defense costs for medical malpractice lawsuits was $69,244 for cases that settled and ranged between $140,000 and $170,000 for cases that were tried.

The rates paid were not disclosed. The article did not discuss whether "defense costs" included expenses such as court reporter fees, expert witness fees, etc. Given the numbers that were disclosed, I assume that such expenses were not included in the amounts.

December 8, 2011

Products Liability Case Alleging Failure of Vehicle to Have Rear Camera or Back-Up Sensors To Proceed

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

The Kentucky Court of Appeals has ordered in a trial in a products liability case against Nissan for failure to equip at 2002 vehicle to have a rear camera or back-up sensors.

Sandra and Curtis Messerly alleged that the failure of their 2002 Xterra to have either device caused the death of their 19-month old son, who was killed when his mother backed-up the vehicle.

Plaintiffs sued Nissan alleging that the 2002 Xterra was defective and negligently designed because it was not equipped with a rearview camera or back-up sensors. Nissan moved for summary judgment on the ground that the 2002 Xterra was not defective or unreasonably dangerous as a matter of law. Nissan argued that the risk of striking children while backing a vehicle is an obvious, well-understood risk of operating any passenger vehicle and

December 5, 2011

The Importance of Citing Adverse Precedent

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

We all know that as lawyers have an obligation to cite known adverse precedent to the court.

There are two reasons why this rule should be followed (other than the all-too-obvious point that the rule exists). First, the failure to cite adverse precedent means you have lost the opportunity to either distinguish it or say why it should be reversed.

Second, you will lose credibility with the court – something that will hurt you in all future cases before that same court. Thus, you may win a single battle (if the both the judge and the opposing counsel miss the case), but then risk losing a war that will be fought over the rest of your career.

December 3, 2011

Understanding Brain Injuries – For Lawyers and Juries

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

Our firm represents people with brain injuries and, depending on the nature of the injury, it can be quite difficult to help a jury understand precisely how these injuries can impact the life of the injured person and his or her entire family.

This site offers fundamental principles that one should know about the brain and nervous system, the most complex living structure known in the universe, are a practical resource about:

How your brain works and how it is formed.
How it guides you through the changes in life.
Why it is important to increase understanding of the brain.

As a Tennessee brain injury attorney, I believe that the concepts presented on this page can be used a part of the jury education process about the brain and brain injuries.

November 30, 2011

Medical Malpractice Caps Hurt Patients

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

Here is a great article by Shirley Svorny of the well-known liberal outfit, the Cato Institute. The article originally appeared in The Huffington Post:.

The U.S. House is set to consider on the Republicans’ Jobs Through Growth Act, which contains a section aimed at reforming medical malpractice by imposing caps on economic and non-economic damages similar to those in place in Texas. Texas limits non-economic and exemplary (punitive) damages in all cases, and limits what relatives can get in cases of wrongful death. An obvious disturbing consequence is that caps reduce compensation to severely-injured individuals. Caps would hurt consumers in a second way — lower damage awards would reduce medical professional liability insurers’ financial incentives to reduce practice risk.

Much of the protection consumers have against irresponsible and negligent behavior on the part of health care providers hinges on oversight and incentives created by the medical professional liability insurance industry. A nationwide shift to caps could result in more cases of negligence and substandard care.

November 29, 2011

Will We Have Prosthetic Eyes That Can See?

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

Our firm, The Law Offices of John Day, P.C., has been asked to represent people who have lost their eyesight as a result of medical malpractice or trauma. Thus, we are very interested in scientific advancements that can minimize the horrible effects of vision loss.

This reference fin the Fall 2011 Edition of the Journal of Neuroscience shares some exciting information that provides hope for those who have suffered vision loss:

Sheila Nirenberg of Weill Cornell Medical College presented research on how the eye’s own computational “code” can improve retinal prosthetics. Retinal prosthetic devices now exist, but current models require surgery to implant electrodes into the eye and are only capable of restoring crude vision, such as seeing a spot of light or the edge of an object.

November 28, 2011

Plaintiffs Fall Down Hard in Two Cases Against Louisville Ladder

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

Two plaintiffs lost products liability cases against Louisville Ladder.

In Bielskis v. Louisville Ladder, Inc., No 10-1194 (7th Cir. Nov. 18, 2011) the appellate court upheld the disqualification of plaintiff’s liability expert, Neil J. Mizen. Bielskis was injured while using Louisville Ladder mini-scaffold (model number SM 1404) and alleged a defect to a rolling castor on the device.

The trial judge refused to permit Mizen to testify after a Daubert challenge from the defense and granted summary judgment for the defendant. The Seventh Circuit affirmed, and said that without expert testimony, Plaintiff, who