Day on Torts

March 13, 2012

New Expert Witness Background Search Service

Robert Ambrogi has shared the existence of a fascinating service concerning expert witnesses.

The service, called Expert Witness Profiler, checks into the expert’s background, testimonial history, social media profile, and more. Here is what the profile includes:

Testimonial history.
Challenge (Daubert/Frye) history.
Disciplinary history.
Licensing and certifications (including verification).
Educational background (including verification).
Professional background.
Associations and memberships.
Personal information.
Publications.
Teaching and research.
Patents, trademarks, and copyrights.
References in news, blogs and social media.

Purchasers of the profile receive a booklet covering the items listed above. Hyperlinks within the document take you to relevant cases, orders, and other documents. The service will also include transcripts, motions and briefs relating to the expert or to challenges to the expert. The company’s website includes this sample profile.

March 12, 2012

Parents Sue for Wrongful Birth of Child With Cystic Fibrosis. What Would Happen in Tennessee?

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

Insurance Journal reports that the parents of a child born with cystic fibrosis sued various Montana health care providers, saying that had they known of the genetic disorder they would have terminated the pregnancy.

Cystic fibrosis causes sticky mucus buildup in the lungs and other organs, leading to infections, digestive problems and death in young adulthood. The typical life expectancy is about 37 years, according to the Cystic Fibrosis Foundation.

The couple alleges that genetic testing the mother underwent in the first trimester failed to explore whether the child was likely to have cystic fibrosis. The parents would have terminated the pregnancy because they claim they were not emotionally or financially equipped to care for a child with that illness.

March 4, 2012

Retailers Escape Responsibility for Injuries and Deaths From Dangerous Foreign-Made Products

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

I have a column that bears the same name as this blog that appears three times per year in the Tennessee Bar Journal. The January 2012 edition of the publication includes the column, this time titled “Retailers Escape Responsibility for Dangerous Foreign-Made Products.”

The column addresses one provision of the poorly-named Tennessee Civil Justice Act of 2011 that limits the responsibility of those who sell unreasonably dangerous or defective products. The column is available at no charge by clicking on the link.

March 1, 2012

Virtual Focus Groups

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

Paul Luvera has a nice article on his Plaintiff Trial Lawyer Tips blog that discusses virtual focus groups.

He mentions three different services that lawyers can use to test their cases: Virtual Jury.com; Trial Juries, and eJury.com. eJury has a sample case presentation available for review that includes not only a sample verdict form but also a list of questions that call for narrative answers from the jurors.

Does anyone use these services? Virtual Jury’s client list is impressive to say the least.

February 29, 2012

Alabama Holds That Wrongful Death Law Protects Unviable Fetus – Tennessee Law Does Not

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

Two recent cases from the Alabama Supreme Court hold that a parent may bring a wrongful death lawsuit on behalf of a stillborn child that was incapable of life outside the womb.

In Hamilton v. Scott, No. 1100192 (Ala. Feb. 17, 2012, Amy Hamilton alleged that several defendants negligently caused the death of the child she was carrying in utero. After discovery, defendant moved to dismiss, arguing that Alabama law required that the fetus had to viable outside the womb before the mother could maintain a wrongful death lawsuit. The case was dismissed.

The Alabama Supreme Court reversed, citing the recent decision in Mack v. Carmack, No. 1091040 (Ala. Sept. 9, 2011) that raised the same issue. This is the holding in Mack, re-affirmed in Hamilton:

February 25, 2012

Tennessee Medical Malpractice Insurance Rates for Doctors Decline Again

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

State Volunteer Mutual Insurance Company, the professional liability insurance company owned by doctors, has once again lowered the cost of insurance paid by Tennessee doctors.

Some highlights:

The rate revision represents an overall rate decrease of 8.4% at limits of $1,000,000 / $3,000,000. This results in an average per physican rate decrease of 7.5%.
Rates for limits in excess of $2,000,000 have dropped 7.5%
A year earlier, the rate decrease was 23.1%. In 2009 rates dropped 2.5% on average and in 2008 the decrease was 4.2%
a $20.1 million dollar dividend credit has been issued for policies renewing during the twelve months beginning May 15, 2011. This has the effect of reducing rates over 5 percent.
The dividend for 2010 was also $20 million. Thus, in the last two years rates have dropped over 30% and $40 million in dividends have been paid.
The total dividends returned to policy holders now totals $300 million in the past 35 years.
Rates for allergists dropped the most, down 20.6% at the $1M level.
Rates for OB / GYNs dropped 16.8% at the $1M level.
Rates increased at the $1M level only for ER docs – up 1/8%. The dividend will still result in a net decrease in premiums for ER doctors.

So how much do doctors pay for insurance, before getting the dividend and other credits that they earn for group discounts, risk management credits, etc.? (All rates are claims made, 5th year, at $1M / $3M)

February 22, 2012

All You Want to Know About Bed Bugs and the Law

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

" Sleep Tight, Don’t Let the Bed Bugs Bite – The Impact of Bed Bugs on Our Daily and Legal Lives" is the new go-to resource on bed bug litigation. David E. Cassidy and others wrote this article for the Fall 2011 edition of FDCC Quarterly published by the Federation of Defense and Corporate Counsel.

The Introduction gives us this summary of the rest of the article:

Part II provides an overview of how bed bugs have re-entered our society and outlines information that everyone should know about this pest. Part III explains the history and biology of bed bugs. Part IV highlights how bed bugs have impacted the hotel industry and addresses how to keep the workplace safe to keep productivity up and liability claims down. Part V provides an overview of the growing field of bed bug litigation. Part VI discusses the relevant statutes and regulations that impact employers and protect employees from bed bugs in the workplace environment.

February 20, 2012

What is the Chance of the Tennessee Supreme Court Accepting a Rule 11 Application?

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

Subject to several exceptions, the Tennessee Supreme Court has the right to choose what cases it will hear. A T.R.A.P. Rule 11 petition is filed when one seeks permission to appeal a case to the Tennessee Supreme Court.

In the year ending June 30, 2011, 888 Rule 11 petitions were filed and only 61 were granted. Of those 61 cases, the Court actually heard 52 of the cases. The other 9 cases were immediately remanded for evaluation by a lower court.

Thus, the chance of the Tennessee Supreme Court actually accepting a Rule 11 application (or remanding the case for evaluation by a lower court) is about 1 in 14.

February 17, 2012

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

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

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.