Day on Torts

November 29, 2011

Will We Have Prosthetic Eyes That Can See?

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

November 24, 2011

Ford Found Liable for Rollover Crash

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

A Sacramento, California jury has awarded a substantial jury verdict against Ford Motor Company.

The vehicle involved was a 15-passenger Ford E-350 Econoline van. According to the Sacramento Bee, "The van skidded off northbound Interstate 5 in Kern County after the tread separated on its rear right tire. Evidence at trial showed that Ford officials had been contacted by the Goodyear Tire and Rubber Company and knew the product was defective but did not make an effort to contact its dealers or customers."

Jurors did find that one of the two men killed in the rollover, Tony Mauro, who was 41, was not wearing a seat belt when he was killed. But the panel also found that it would not have mattered in a crash in which the van rolled over four times while traveling at 70 miles per hour.

November 22, 2011

Missouri Examining Constitutionality of Cap on Punitive Damages

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

Missouri has a cap on punitive damages. The cap is $500,000 or five times compensatory damages, whichever is greater.

Kansas City Star reports that on November 2, 2011, the Missouri Supreme Court heard oral arguments in Estate of Max E. Overbey and Glenna J. Overbey v. Franklin, Case No. SC91369 that challenges the punitive damages cap. The Overbeys contend that a $1 million dollar punitive award against former car dealer Chad Franklin, which was decreased to $500,000.00 pursuant to the state’s punitive damages cap, should be reinstated because the statute is unconstitutional. They argue that the cap violates the constitutional separation of powers; the Overbeys’ right to trial by jury; the Overbeys’ right to equal protection; the prohibition against special legislation; the due process clause; and the Overbeys’ right to open courts.

According to one firm’s press release:

November 21, 2011

Why Brain Damage Occurs in Premature Births

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

NPR reports that a recent meeting of the Society for Neuroscience discussed why brain damage occurs in premature births.

Research has revealed that the most common cause of brain injury in premature infants is a lack of oxygen in the days and weeks after birth. Apparently, the lack of oxygen damages white matter, which provides the "communication highways" that carry messages around the brain and to distant parts of the body. The babies at greatest risk of this sort of brain damage are those born after as little as six months of gestation.

This lack of oxygen appears to damage the most common type of white matter, myelin, which acts like an insulator around the nerve fibers that carry messages in the brain and nervous system. Without enough myelin, short circuits can prevent these messages from getting through. Evidence of white matter damage was initially found by studying brains from premature infants who died, but recently the researchers have been able to assess premature infants using a special incubator designed to fit in an MRI scanner.

November 19, 2011

Third Circuit Says Equity Applies to Subrogation Rights Under ERISA Plan

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

The Court of Appeals for the Third Circuit has had that equitable principles such as unjust enrichment apply to the subrogation rights of an employer under an ERISA plan.

In U.S. Airways, Inc. v. McCrutchen, No. 10-383 (3rd Cir. Nov. 16, 2011), McCrutchen was seriously injured in a car wreck. He spent several months in physical therapy and ultimately underwent a complete hip replacement. Since the accident, McCutchen, who had a history of back surgeries and associated chronic pain, has also become unable to effectively treat that pain with medication. The accident has rendered him functionally disabled. McCutchen’s Health Benefit Plan (the “Plan”), administered and self-financed by US Airways, paid medical expenses in the amount of $66,866 on his behalf.

Suit was filed on behalf of McCrutchen but a combination of multiple victims of the same wreck and limited liability insurance coverage meant that, after payment of fees and litigation-related expenses, McCrutchen’s net recovery was only $66,000. His law firm placed $41,500 in a trust account, reasoning that any lien found to be valid would have to be reduced by a proportional amount of legal costs.

November 14, 2011

Medical Malpractice Tort Reform in Texas

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

Texas passed an extensive anti-patient reform of its medical malpractice laws in 2003.

How’s it going for them?

Public Citizen says that "while litigation over malpractice in Texas has plummeted since the caps were imposed, residents of Texas (except for people with financial connections to liability insurance companies and, to a lesser extent, doctors) have realized few, if any, benefits. Instead, the health care picture in Texas has worsened significantly by almost any measure."

November 8, 2011

Applying the Duty of Good Faith and Commercial Reasonableness to Silent Consent Clauses

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

There are two things wrong with this post. First, it is not directly about tort law – it is about contract law. And this is supposed to be a blog about tort law. So perhaps this post shouldn’t be here.

Second, this post is about a victory our firm had in the Tennessee Court of Appeals on October 19, 2011. Regular readers know that I typically don’t write about our firm’s cases on this blog.

That aside, I know that many of my fellow tort lawyers handle commercial litigation cases from time to time. I have done so for most of my career and enjoy the work. Thus, I thought that many readers could benefit from knowing about this new appellate court decision, particularly the readers from Tennessee.

November 8, 2011

Response to AggieSpirit

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

Aggie Spirit took exception to my suggestion that Herman Cain encourage the NRA to waive the confidentiality provisions of the settlement agreements with the women who lodged sexual harassment charges against him.

This was AggieSpirit’s comment::

I am sure your position as a trial lawyer (and likely member of ATLA) and your donation history (which shows that you donate to Democrats like Bruce Braley) have no influence on your hypocritical position on whether or not Cain should release his accusers from confidentiality agreements. Where were all the Democratic calls for openness for Ginnifer Flowers, nor where was the main stream media in revealing that Flowers was paid a 6 figure settlement by the Clintons?
You democrats have a double standard at every aspect here — in your mind, Cain has been accused of wrongdoing, therefore, he must be guilty. But the benefit of the doubt is given to every accused Democrat, and the media turns the other way and essentially ignores wrongdoing by Democrats. You would think the media would have reported extensively about the close ties between Obama and American unrepentant terrorist Bill Ayers, but not one network outside of Fox reported on the relationship.
This whole situation with Cain wreaks of one thing, and one thing alone — the political establishment and their media Obama worshiping allies will do anything to railroad the possibility that a black man become the GOP nominee — because Democrats, just like their slave master ancestor Southern Democrats of the 1800s, believe that they OWN black people, and deserve their vote. How dare Cain, or any other minority, leave the plantation of handouts, welfare, and failed affirmative action policy which have destroyed black America and created a generation of government dependency. But hey – you lawyers benefit directly from regulation, which is why you are overwhelmingly liberal. The more regulation and law, the richer you get. You sir, are disgusting.

November 3, 2011

New York Court Limits Access to Facebook Data

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

A New York Appellate Court has ruled in Patterson v. Turner Construction that a defendant in a personal injury case does not have an unfettered right to access the plaintiff’s Facebook account.

Instead, the defendant can seek only to that which is “relevant, in that it contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.”

The appellate court reversed a trial court order which "granted defendants’ motion to compel an authorization for all of plaintiff’s Facebook records compiled after the incident alleged in the complaint, including any records previously deleted or archived."