Day on Torts

February 1, 2011

Discovery Of an Expert’s Income From Testifying

The Appellate Division of the Superior Court of New Jersey has ruled that an expert should not be required to reveal details about his income from testifying as an expert witness.

In Gensollen v. Pareja, No. A-0401010T3, (N.J.A.D. 11/19/10), doctor who examined the plaintiff in a personal injury case admitted in a deposition that over 95% of his litigation work was for defendants. He also testified that testified that he conducted an average of eight to nine IMEs per week. He also testified that his two doctor orthopedic firm charges a fee of $895 per exam, but would impose additional charges depending on the extent of records and x-ray or MRI studies reviewed in a given case.

Plaintiff wanted more data to show bias, and the trial judge ordered defendant to produce, at his own cost, (a) documentation indicating the percentage of the firm’s findings in the past five (5) years that supported the premise that plaintiff suffered no type of permanent injury, (b) documentation indicating the percentage of the firm’s work that is defense related and the percentage of his work that is plaintiff related; and (c) documentation indicating what monies in the past five (5) years have been paid by defense attorneys to the firm for conducting medical exams.

January 27, 2011

Preventing and Management of Operating Room Fires

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

The Anesthesia Patient Safety Foundation has created a video that discusses how to prevent and manage fires that occur in the operating room.

The video is 18 minutes long and was released in February 2010.

Here is what the organization says about operating room fires:

January 27, 2011

Lies, Damn Lies and Medical Malpractice Reform

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

Tennessee consumers injured by medical negligence are facing a full assault on their right to trial by jury. Some members of the new General Assembly seem hell-bent on placing arbitrary caps on damages, notwithstanding the fact that medical malpractice lawsuits are down over 40% and malpractice insurer profits are soaring.

Max Kennerly, one of my favorite bloggers, has a great post on similar efforts in Congress. Here is an excerpt:

Even if we put aside the fact that, for every dollar spent on compensating the victims of medical negligence, more than $5 dollars in damage was caused by medical negligence, it bears repeating that the overall costs of compensating injured patients is so small that it the medical malpractice liability system does not restrict access to health care. Similarly, malpractice lawsuits have not been shown to change of physician behavior — so-called “defense medicine” — even in high-risk, high-liability cases like obstetricians’ decisions to perform c-sections when the baby shows signs of fetal distress.

January 26, 2011

2010 Medical Malpractice Reports Due March 1, 2011

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

The Tennessee Department of Commerce and Insurance has put the medical malpractice case reporting form on its website. The reports must be filed on or before March 1, 2011.

Plaintiff’s medical malpractice attorneys who concluded a case in 2010 must complete this form.

January 25, 2011

Improper Closing Argument on Uncalled Witness Constitutes Reversible Error

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

The Oregon Supreme Court has ordered a new trial in a case where defense counsel’s closing argument included a discussion of the testimony of an expert who never testified at trial. The majority and dissenting opinions collect law from across the country on this issue and provide a gold mine of information for lawyers facing a similar issue.

You read that correctly. In Cler v. Providence Health System -Oregon, SC S056715 (Ore. SC 12/30/10), plaintiff’s counsel remarked in closing argument that defense counsel did not call any independent nurse as an expert witness in support of its case. In return, and over plaintiff’s counsel’s objection, defense counsel said this (among other things):

[The defense oncology nurse expert] was here [on the firth day of trial] prepared to testify in the afternoon. She sat in the courtroom all afternoon, and she didn’t get on because [plaintiffs’ counsel] was calling Mr. Cler in the afternoon. She had to leave on the following day. She got on a plane. She was scheduled to go on vacation. That’s why you didn’t hear from [her]. She was prepared to be here. She sat in the courtroom all that afternoon, and again, she was prepared to testify and would have testified in our case and supported our case." [Footnotes in opinion omitted.]

January 24, 2011

Judgment Affirmed in Land Rover Rollover Case

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

Mr. Pannu was seriously injured when his Land Rover Discovery (Series 1) sport utility vehicle rolled over following a chain of collisions. Pannu alleged a design defect in the SUV and was awarded a judgment of $21,654,000.

The Court of Appeal of the State of California, Second Appellate District, affirmed the judgment last week. Read the opinion in Pannu v. Land Rover North America, Inc., B218173 (Cal. Ct. App. 1/19/11) here.

The opinion is of interest to Tennessee lawyers who are interested in products liability cases because (a) it identifies several experts for the plaintiff who offer opinion testimony in rollover cases; (b) identifies the issues one confronts in a "typical" rollover case, (c) has some interesting comments on the opinions of Lee Carr, a frequent expert for the defense in motor vehicle products cases; (d) identifies and discusses the opinions of several other defense experts one is likely to see in these cases; (e) discusses the application of the consumer expectation test (which we also have in Tennessee) to auto defect cases; and (f) discusses the application of the risk-benefit test (which we also have in Tennessee) to the facts.

January 24, 2011

ProAssurance Profits Continue to Climb

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

ProAssurance, a nationwide medical malpractice insurer with 57,000 insureds that is based in Birmingham, has a growing presence in Tennessee. It has done very well the last few years.

In 2005 it had pre-tax income of $109M, about 17% of revenues. In 2009 pre-tax income was $319M, about 52% of revenues. Not bad. Not bad at all. Read more here.

The return on equity in 2009 was 14.2%, and shareholder book value has grown by 278% in the last ten years.

January 20, 2011

State of Tennessee Litigation Statistics From the AOC Annual Report – Part 5

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

As mentioned in the last four posts (here, here, here and here), the Tennessee Administrative Office of the Courts has released the 2009-2010 Annual Report of the Judiciary. The Report Contains statistical data about our court system.

Today we look at damage awards in several counties in the state. There are some obvious problems with the data we are about to share. First, we cannot tell from the Report whether the damage awards were in jury cases or non-jury cases.

Second, we cannot tell if the plaintiff won the case or lost the case from the mere fact that damages were awarded – there may have been a settlement offer in excess in the amount awarded by the fact-finder.

January 19, 2011

State of Tennessee Litigation Statistics From the AOC Annual Report – Part 4

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

As mentioned in the last three posts (here, here and here), the Tennessee Administrative Office of the Courts has released the 2009-2010 Annual Report of the Judiciary. The Report Contains statistical data about our court system.

As mentioned in our earlier posts, there were 263 jury trials and 325 non-jury trials in tort cases in Tennessee last year. The Report tells us which the number of jury and non-jury trials in each county and the number of cases in which damages were awarded in each county. Unfortunately, the Report does not tell us whether the damage awards were in jury or non-jury trials.

Here is some data from the larger counties:

January 18, 2011

Statistics on Tort Cases From the 2009-10 AOC Annual Report on the Judiciary – Part 3

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

As mentioned in the last two posts (here and here), the Tennessee Administrative Office of the Courts has released the 2009-2010 Annual Report of the Judiciary. The Report Contains statistical data about our court system.

Today we look at additional information about tort cases that were filed or tried in state court in Tennessee. "Tort cases" includes medical malpractice cases.

Of the 229 cases that were tried that resulted in damage awards for the plaintiff, the total damages awarded were $91,682,216. This is an increase of a little over $8,000,000 from a year earlier. The average award, then, was $400,359.