Day on Torts

August 16, 2011

Use of Internal Policies Can Be Used to Prove Violations of Reasonable Care

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.

August 15, 2011

Cross-Examination Blog

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

Several months ago I reviewed a book called "Cross-Examination Handbook." Now, the authors of that book have a blog aaptly called the "Cross-Examination Blog."

The site is a great place to keep up to date on this important issue. Add it to your regular reading list.

August 12, 2011

Fainting Juror Helps Settle Case

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

A juror faints during a lawyer’s opening statement. Lawyer happens to be discussing how a traffic accident left Gary Pettet with rotting flesh and bone after 12 surgeries. Ultimately, the damaged leg was amputated.

Defense counsel blamed the heat in the courtroom.

I know the Plaintiff’s lawyer, and I guarantee there was heat in the courtroom.

August 10, 2011

Can You Wing It At A Deposition?

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

Evan Shaeffer wrote a book called Deposition Practice Tips. Certain excerpts from the book appear here.

I want to focus on Section 1.111, which Evan titled "Can You Wing It At A Deposition?"

Here, in bold print, is his work:

August 9, 2011

Can An Insurance Company Bring a Legal Malpractice Claim Against Defense Counsel It Hired For Its Insured?

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

I serve on the Standards Committee of the National Board of Trial Advocacy, a division of the National Board of Legal Specialty Certification. Our members have a duty to report legal malpractice claims that have been filed against them, so from time to time I see claims filed by liability insurance companies against defense counsel that the companies hired to defend insureds.

So, when I saw this article in the Spring 2011 edition of the Federation of Defense and Insurance Counsel Quarterly, I thought it deserved to be seen by a broader audience.

The article explains that

August 5, 2011

Does the Privilege Still Apply if Non-Clients Were In The Room During the Conversation Between Counsel and Client?

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

Gregory Joseph’sComplex Litigation Blog brought my attention to this important decision. Quagliarello v. Dewees, 2011 U.S. Dist. LEXIS 78870 (E.D. Pa. July 20, 2011) is a § 1983 action against a police officer but addresses a situation that plaintiff’s lawyers address everyday when a potential client shows up with a bunch of friends and family members. Here is Gregory’s post:

Defendants argue that Plaintiff waived the attorney-client privilege because she consulted with Murphy in the presence of third parties, i.e. her parents and Gorbey [a neighbor and employee of defense counsel who referred the plaintiff to her lawyer]. Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1424 (3d Cir. 1991) (citing United States v. AT&T, 642 F.2d 1285, 1299 (D.C. Cir. 1980)) ("voluntary disclosure to a third party of purportedly privileged communications has long been considered inconsistent with an assertion of the privilege").

The Court finds that Plaintiff did not waive the privilege as to discussions where Donna Gorbey and Plaintiff’s parents were present. In Kevlik v. Goldstein, 724 F.2d 844 (1st Cir. 1984), the First Circuit held that the presence of a client’s father at the meeting with his attorney did not waive the attorney-client privilege where the client intended that his communications with the attorney were confidential. Id. at 849. Furthermore, "[t]he presence of a third party will not vitiate the attorney-client privilege if the third party is the attorney’s or client’s agent or possesses a commonality of interest with the client." In re Grand Jury Investigation, 918 F.2d 374, 386 n.19 (3d Cir. 1990) (citing 8 Wigmore at § 2311); see also Miller v. Haulmark Transport Sys., 104 F.R.D. 442, 445 (E.D. Pa. 1984) (Huyett, J.) ("[T]he privilege is not destroyed when a person other than the lawyer is present at a conversation between an attorney and his or her client if that person is needed to make the conference possible or to assist the attorney in providing legal services.").

August 4, 2011

Worker’s Compensation Liens for Future Medical Bills

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

The recent decision of the Tennessee Court of Appeals in Joshua Cooper, et al. v. Logistics Insight Corp., et al., No. CV (Tenn Ct. App. May 16, 2011) potentially upsets the apple cart for workers’ compensation liens on third-party tort recoveries. The prevailing view for a decade has been that the employer gets no lien or credit for future medical expenses. That isn’t entirely clear any more after this one.

Employee filed suit against Defendants, and Employer who paid Employee’s workers’ compensation benefits intervened. Employee settled with Defendants and filed a notice and order of voluntary dismissal. Employer moved to set the case for trial, contending Employer was not part of the settlement and was actively engaged in obtaining expert medical proof as to Employee’s future medical expenses. The trial court set the case for trial, but then granted Defendants’ motion to dismiss Employer’s suit for failure to state a claim upon which relief could be granted under Tenn. R. Civ. P. 12.02(6). Employer appealed.

On appeal, Defendants contended that Employer was not entitled to a credit on Employee’s recovery “for medical expenses that have not been incurred and are speculative.” The Court of Appeals looked to the workers’ compensation lien statute at Tenn. Code Ann. § 50-6-112(c)(1) and (2):

July 28, 2011

Handwriting Expert for Jury Selection?

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

Here is a fascinating article about a handwriting expert from Houston that assists lawyers in jury selection. The expert is Alice Weiser, author of Judge the Jury: Experience the Power of Reading People.

An excerpt: "Weiser said that people who make little circle dots above the letter "i" are individual and unique, but in a quiet way. People who write larger than the lines and outside the borders strive to live by their own rules. A letter "g" that looks like a number "8" means one is inclined toward the literary, either as an avid reader or an author wannabe."

July 27, 2011

The Truth of Medical Malpractice Litigation

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

Health care providers and their insurance companies have managed to persuade all too many Americans that holding providers responsible for malpractice is a bad thing. They also claim that the number medical malpractice claims and payments are increasing.

I simply cannot respond to the first contention. The idea of holding people and corporations responsible for their actions does not seem to be a bad thing.

I can respond to the second point and, unlike the health care industry I will use facts.

July 26, 2011

The Facebook Problem

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

Facebook – a leading source for informal discovery in personal injury and wrongful death litigation.

Now, the ABA Journal reports that a $10+million verdict is threatened because of a Facebook issue.

The defendant in the case has alleged that plaintiff’s counsel instructed a plaintiff to delete information from a Facebook account and then denied that the account existed at the time of the death.