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Kenneth Levine of Kenneth Levine and Associates of Brookline, Massachusetts has filed a fascinating lawsuit against the authors of an article on brachial plexus injuries and the publication that printed the article.

Levine alleges that the article, "Permanent Brachial Plexus Injury Following Vaginal Delivery Without Physician Traction or Shoulder Dystocia ", was published in 2008 in the American Journal of Obstetrics and Gynecology, and is being used by defense experts to defeat brachial plexus injury claims.  The article claims to report the  "first unambiguous  case of a baby born vaginally  without  physician traction, and even without the occurrence of shoulder dystocia, that resulted in a permanent brachial  plexus  injury."
 
He further alleges that the  case report of the delivery contains false information and the individual defendants knew the data was false when it was published.  The Complaint states that the corporate defendants were later made aware of the falsities and have refused to retract the article.
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Associated Press reports that a lawyer employed by Baxter International, Inc, a major manufacturer of intravenous drugs and medical devices, tried to pay an opposing expert in a lawsuit if he would leave the country on a key court date.  The expert caught the offer on tape.

Baxter’s response:  "The offer to engage an expert was not intended seriously and the lawyer had no authority to offer it or act on it," Baxter spokeswoman Laureen Cassidy told the AP. "It does not constitute bribery under Mexican law and was never acted upon."

Reminds me of the old joke about told about the defendant in a dog bite case.  "I don’t have a dog.  If I do have a dog it wasn’t my dog that bit you.  If you can prove my dog bit you I didn’t know my dog would bite.  If I knew my dog would bite you must have provoked my dog.   If you didn’t provoke my dog you weren’t injured by the bite.  [And the new one]  If you were injuried by the bite your claim for damages, compensatory and punitive, is capped."

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I don’t have a Category titled "You Won’t Believe This Crap" but, if I did, this post would be filed there.

According to the WSJ Law Blog,  New York City lawyer Gregory Berry has sued his former firm for more than $75 million, claiming the firm fired him for exhibiting intelligence and creativity.  The article explains that "a former software engineer and graduate of the University of Pennsylvania Law School, Berry claims in his complaint that he arrived at Kasowitz last fall and “immediately began doing superlative work,” even pointing out alleged inefficiencies in the way the firm was handling certain assignments.

Berry told  the Law Blog: “There is simply no room in a big law firm for an intelligent, creative lawyer with real-world experience, and I had to learn that the hard way.” 

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The California Supreme Court has ruled that a tortiously injured person who receives medical care for his or her injuries may recover medical expenses only in the amount that the plaintiff’s health insurer paid, not the amount charged by the health care provider but later reduced by a contract between the provider and the insurer.

Whether a plaintiff can recover the amount paid or the medical "charges" is a hot issue in tort law.  The California opinion falls on the pro-defendant side of that issue.

Plaintiffs have sought the right to claim the higher amount by invoking the collateral source rule. 
The California Court said the collateral source rule did not protect the plaintiff, because a negotiated discount – whether negotiated by the plaintiff or the plaintiff’s health insurer – means that the plaintiff has not suffered a pecuniary loss in the greater amount.

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The Supreme Court of Iowa has ruled that punitive damages cannot be recovered from the estate of a dead tortfeasor.

The thinking goes that punitive damages cannot punish a dead person.  In addition, the Court held that in such cases the actor’s state of mind is important and direct evidence of the state of mind is unavailable after death.

The excellent dissent points out the opposing view.

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In Wright v. Wright,  No.  M2008-01181-SC-Rll-CV (Tenn. March 29, 2011) the Tennessee Supreme Court  explains how trial courts should determine a “reasonable” attorney’s fee amount when the attorney represents a minor. Trial courts and lawyers should know:

(1) an evidentiary record should be made in support of an attorney’s fee on behalf of a minor;

(2) an affidavit from the attorney seeking a fee, specifying the amount of time and type of work spent on the case, should be provided to the trial court;

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The Tennessee Court of Appeals has ruled that if it is undisputed that the defendant caused circumstances requiring diagnostic tests to rule out injuries, and the undisputed evidence shows that those tests were reasonable and necessary, a trial court cannot affirm a jury verdict of $0 damages.  The trial court either must order a new trial or an additur.

Plaintiff was receiving treatment for chronic lower back pain before the accident.  The physician who treated her before and after the accident testified that he “believed” Plaintiff suffered a back strain or whiplash that caused chronic headaches and aggravated her existing lower back condition.  In addition, the physician testified that medical tests, including MRI and CT scans, were necessary to rule out hemorrhaging or fractures.  Defendant’s medical expert testified that the medical tests were reasonable and necessary, but that Plaintiff’s pain was ultimately due to her preexisting condition.

The Court of Appeals agreed with Plaintiff that there was no material evidence to support the jury’s finding of $0 in damages, as the undisputed evidence established that Plaintiff was at least entitled to the costs of the diagnostic tests.  The Court of Appeals noted that appellate courts lack the authority to award an additur, and therefore remanded for the trial court to order either a new trial or an additur.

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A recent opinion of the Tennessee Court of Appeals in case reminds us that a company’s internal policies, while not dispositive, are relevant to the standard of care for its employees.

After a bench trial, the trial court found Defendant was not negligent, and the Court of Appeals reversed based on the testimony of Defendant’s employees.  Defendant provides door-to-door transportation services, with many of the passengers elderly or disabled. Defendant’s driver testified that he was aware of Defendant’s policies and procedures, particularly those requiring the driver to be aware of any walking surfaces that the passenger must travel upon, and those requiring the driver to keep a passenger within the driver’s line of vision in case the driver needs assistance. The driver also admitted that Defendant had a written policy requiring the driver to stay close to the passenger while walking in case the passenger needed assistance.

In this case, the driver testified that he noticed before picking up the passenger that there was frost on the ramp the passenger would use to exit her home. While the passenger was on the ramp, the driver turned back into the passenger’s home to get a bag for her. When he turned back, he saw that she was falling but she was six to eight feet away from him, which the driver admitted was not close enough to provide assistance. The Court of Appeals found this evidence preponderated against the trial court’s finding that the driver was not negligent.

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