Day on Torts

February 17, 2012

Connecticut Court Sets High Bar for Reversal After Proof of Discovery Misconduct

What burden should be placed on a party seeking a new trial if the losing party discovers that the winning party engaged in deliberate discovery misconduct? In Duart v. Dep’t of Correction, No. 18476 (Conn. Jan. 24, 2012), the Connecticut Supreme Court said the movant must establish the following:

(1) There must have been no laches or unreasonable delay by the injured party after the fraud was discovered. (2) There must have been diligence in the original action, that is, diligence in trying to discover and expose the fraud. (3) There must be clear proof of the perjury or fraud. (4) There must be a reasonable probability that the result of the new trial will be different.

A‘ ‘reasonable probability’ ’’ means ‘‘’a probability sufficient to undermine confidence in the ‘outcome’’ or, in other words, that ‘’the favorable evidence could reasonably be taken to put the [whole case in such a different light as to undermine confidence in the verdict.’’" [Citations omitted.]

February 15, 2012

New York Attacks Junk Science Used in Defense of Brachial Plexus Case

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

One of the defenses commonly asserted in an Erb’s Palsy medical malpractice case is the "natural forces of labor defense." The Appellate Division of the Supreme Court of New York recently ruled that a trial judge did not abuse his discretion by ruling that the defense could not be presented to the jury because "defendants failed to rebut plaintiff’s showing that [the] theory was not generally accepted within the relevant medical community" and that the theory "lacked an adequate foundation for its admissibility."

Mark Bower, guest blogger at the New York Personal Injury Law Blog, does an excellent job explaining the injury and the creation of a defense to it:

Erb’s Palsy is a neurological injury that is commonly the subject of birth trauma litigation. For over 100 years, it was generally accepted that Erb’s Palsy happens when a baby’s shoulder gets caught in the mother’s birth canal during delivery. If the delivering doctor pulls on the baby’s head in order to dislodge the stuck shoulder, the nerves running down from baby’s neck to the shoulder and arm (the “brachial plexus”) can be stretched or torn, resulting in a crippled arm. That the newborn has a non-functioning arm is usually recognized at the time of birth, or very shortly thereafter.

February 13, 2012

Deterrence and the Tort System

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

Andrew F. Popper, a law professor at American University, has written an article entitled "In Defense of Deterrence."

Here is an abstract of the article:

The civil justice system deters misconduct. It generates far-reaching and positive market effects beyond victim compensation and recovery. Civil judgments, settlements, the potential for litigation — the tort system itself — has a beneficial effect on the behavior of those who are the subject of legal action as well as others in the same or similar lines of commerce. Over the last twenty years, legal scholars have debated whether the civil justice system generally, and tort recovery in particular, generates a deterrent effect. Those who have argued for tort reform (limiting the expanse and reach of accountability in the civil justice system) contend that the tort system has failed to live up to its promise of providing meaningful deterrence. Those who oppose tort reform and defend the civil justice system argue that tort cases have a powerful effect not only on the parties, but also on others involved in similar activity. This article takes the following position: those supporting tort reform cannot wish away deterrence. To claim that punishment has no effect on other market participants is to deny our collective experience. Deterrence is a real and present virtue of the tort system. The actual or potential imposition of civil tort liability changes the behavior of others.

February 12, 2012

Checklist For Avoiding Traps on Cross-Examination

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

The Cross-Examination Blog has published a helpful checklist on avoiding errors in preparing for and conducting cross-examinations that will be helpful to trial lawyers handling tort cases.

The blog is written by Ronald Clark, the author of the Cross-Examination Handbook, which I reviewed last year. Here is the review.

Ronald recommends that we AVOID:

February 10, 2012

Tennessee Counties With No Jury Verdicts for Plaintiffs

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

What to know more about the explosion of personal injury and wrongful death jury verdicts in Tennessee? A report released by the Tennessee Administrative Office of the Courts revealed that the following Tennessee counties did not award one penny in damages in any tort case for the year ended June 30, 2011:

District 1 – *Johnson, *Unicoi

District 3 – Hamblen, Hancock, *Hawkins

February 9, 2012

$1,000,000 Verdicts in Tennessee Tort Cases

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

There were ten jury and non-jury awards of $1,000,000 or more in Tennessee tort cases in the year ending on June 30, 2011.

The number of million dollar verdicts was exactly the same as it was ten years earlier, a year when there were 50% more trials.

These are the counties with million dollar verdicts or judgments:

February 8, 2012

Damage Awards Decline Substantially in Tennessee Tort Cases

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

Tennessee jury verdicts were down substantially in 2010-11, according to data released by the Tennessee Administrative Office of the Courts.

Total damages awarded in tort cases in state court were only $32,051,326, down by a little over 60% from a year earlier, when the total damages awarded was over $91,000,000. These numbers include jury and non-jury cases.

The average verdict or judgment was $168,691, down over 600% from a year earlier, when the average verdict was over $400,000. The average verdict includes only those trials in which the fact-finder returned an award of money damages. It does not include defense or no-money awards.

February 7, 2012

Number of Jury Trials Continues to Decline in Tennessee Tort Cases

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

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.