Day on Torts

February 29, 2012

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

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.

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