February 28, 2011

Why Is It That Tort Reformers Can’t Shoot Straight With the Public?

Experienced trial lawyers – heck, people with experience in life – know that when people have a valid point to make they don’t have any reason to misrepresent facts.

So when Justin Owen of Tennessee Center for Policy Research talks about the need for tort reform, you would think he would make an effort to state facts. Real facts. Facts presented in a non-misleading way.

And you would think that to the extent that he stated a fact he would not leap or attempt to cause another to leap to a conclusion not reasonably supported by the fact.

February 23, 2011

SCOTUS Allows Lawsuits Over Seat Belts

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

From Reuters:

The U.S. Supreme Court ruled that federal regulations setting vehicle safety standards do not bar lawsuits seeking damages from automakers for installing lap-only seat belts.

The unanimous ruling held that a California lawsuit against Mazda Motor Corp. over a fatal 2002 collision involving a 1993 Mazda minivan could proceed. A passenger sitting in a rear seat and wearing a lap-only seat belt was killed.

February 21, 2011

Arizona Court Holds That Medical Expense Claims Belong to Child and Parents

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

The Arizona Supreme Court has reversed prior law and held that a claim for medical expenses arising out of a personal injury to a child may be asserted by the child or the parents, but not both.

The case is Estate of Madison Alexis Desela v. Prescott Unified School District, No. CV-10-0172-PR (AZ 1/18/11).

Historically, Arizona law provided that the medical expense claim belonged to the injured child’s parents, who had the obligation to assert that claim within the statute of limitations applicable to adults.

February 19, 2011

Secret Memo Found in Hotel Bar

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

With the current effort to help health care providers avoid full responsibility for their actions gaining steam in our state legislature, it seems appropriate to re-print this post from five years ago, with slight modifications.

I found this memo at an empty corner table in the bar in the basement of the Hermitage Hotel in downtown Nashville, sitting on table next to an empty bottle of Opus and two wine glasses.

To: Tennessee Medical Association Director for Tort Reform

February 17, 2011

Application of Comparative Fault to Economic Loss

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

The Missouri Supreme Court has determined that comparative fault principles should apply to cases where the loss suffered by the plaintiff is purely economic.

In Children’s Wish Foundation, International, Inc. v. Mayer Hoffman McCann, P.C., No. SC9094 (Missouri S.C. 2/8/11) plaintiff brought a professional negligence claim against the accounting firm that provided it auditing services and another firm that provided tax services. Defendants persuaded the trial court to charge the jury that any contributory negligence of plaintiff barred its claim. The jury returned a verdict for defendants.

The issue on appeal was whether comparative fault applies in a professional negligence action alleging only economic damage. (Missouri adopted comparative fault in personal injury cases in 1983). Defendants argued that contributory negligence should bar the claim because the relationship between them and the plaintiff was governed by a contract and that contract gave the parties the opportunity to allocate risk of loss.

February 17, 2011

Governor’s Tort Reform Bill Introduced

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

Governor Haslam (R-Tenn.) has introduced his tort reform bill which, among other things, imposes an arbitrary cap on the damages a jury may award for pain, suffering, disability, disfigurement, loss of enjoyment of life, loss of consortium (in both personal injury cases and wrongful death cases). The proposed cap is $750,000.

The stated reason? According to the Times Free Press, the Governor thinks we need to “make sure there aren’t states around us that don’t have more welcoming climates around us than we have.” My guess is that he means that Tennessee needs to more welcoming to those who negligently cause harm as opposed to those who suffer from that harm.

One positive thing can be said for the Governor’s proposal – it is more generous to the maimed and survivors of the dead than that of the Republicans who have sponsored bills in the House and Senate.

February 17, 2011

Ohio Speaks Out on Settlement Proposals Requiring Plaintiff’s Lawyers to Indemnify Opposing Parties

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

The Board of Commissioers on Grievances and Discipline of The Supreme Court of Ohio has released an opinion of the issue of whether, during settlement of a matter, it is ethical for a lawyer to propose, demand, and or agree to personally satisfy any and all claims by third persons as to settlement funds.

Here is the Syllabus of the Opinion 2011-1:

It is improper for a plaintiff’s lawyer to personally agree, as a condition of settlement, to indemnify the opposing party from any and all claims by third persons to the settlement funds. Such agreements are not authorized by Prof. Cond. Rule 1.15(d) and violate Prof. Cond. Rules 1.8(e) and 1.7(a)(2). Further, it is improper for a lawyer to propose or require, as a condition of settlement, that a plaintiff’s lawyer make a personal agreement to indemnify the opposing party from any and all claims by third persons to the settlement funds. Such conduct violates Prof. Cond. Rule 8.4(a). The Board recommends that this advisory opinion be prospective in application.

February 15, 2011

Patients Are Dying From Unheard Alarms

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

The Boston Globe reports that more than 2000 people died in a period of a little more than five years because of issues arising from alarms on hospitalized patients. The cause in many cases: personnel did not notice that the alarms were sounding or ignored them.

From the article:

The Globe enlisted the ECRI Institute, a nonprofit health care research and consulting organization based in Pennsylvania, to help it analyze the Food and Drug Administration’s database of adverse events involving medical devices. The institute listed monitor alarms as the number-one health technology hazard for 2009. Its review found 216 deaths nationwide from 2005 to the middle of 2010 in which problems with monitor alarms occurred.

February 15, 2011

Hot Off the Press: Medical Malpractice and the President

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

From the AP at 1:43 PM EST on 2/15/11

Obama starts drive for medical malpractice reforms

WASHINGTON — Putting his own stamp on a long-standing Republican priority, President Barack Obama is launching a drive to overhaul state medical malpractice laws and cut down on wasteful tests doctors perform because they fear lawsuits.

Obama’s budget calls for $250 million in Justice Department grants to help states rewrite their malpractice laws in line with recommendations that his bipartisan debt reduction commission issued last year.

February 14, 2011

Mississippi Supreme Court Strikes Jury Verdict for Plaintiff Because of Failure to Supplement Expert Witness Disclosure

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

Plaintiff’s accident reconstructionist (Webb) in an auto defect case was deposed about his proposed testimony. Thereafter, Webb signed an errata sheet that changed four of the variables he used to make his calculations. Among the changes were a change in the angle of the subject vehicle from 22 degrees to 44 degrees and an increase in the closing speed of the vehicle from 68 miles per hour to 78 miles per hour. He said these changes did not alter his ultimate conclusion on the change of velocity (delta-v) experienced by the vehicle occupants (35 miles per hour). The plaintiff did not supplement interrogatory responses concerning the expert’s testimony but simply sent the errata sheet to the defense.

The defense denied receiving the errata sheet. The defense expert testified that the delta-v was between 55 and 67 miles per hour. All parties agreed that a crash is not survivable with a delta-v in excess of 50 miles per hour.

At trial the expert said he completed the errata sheet because he realized after his deposition that he had made some mistakes in his analysis. He did not claim that the court reporter made an errors or that the changes were made to clarify his testimony.