Day on Torts

December 23, 2010

Food Safety Bill Close to Becoming Law

Bill Marler has shared this summary of the new food safety legislation with us. Bill actively worked to get this bill passed.

· S. 510 is intended to respond to several food safety outbreaks in recent years by strengthening the authority of the Food and Drug Administration (FDA) and redoubling its efforts to prevent and respond to food safety concerns.

· The legislation expands current registration and inspection authority for FDA, and re-focuses FDA’s inspection regime based on risk assessments, such that high-risk facilities will be inspected more frequently. The bill also requires food processors to conduct a hazard analysis of their facilities and implement a plan to minimize those hazards.

December 21, 2010

How to Wrap-Up a Cross-Examination

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

Once again, I feel compelled to share the good work of Elliott Wilcox at Winning Trial Advocacy Tips. Elliott reminds us that we lose the power of an effective cross-examination when we convene with co-counsel and the end of good cross. He offers this tip:

To take advantage of recency during your next examination, don’t wait until the very end of your examination to ask for help. Instead, keep a handful of questions on a major topic in reserve before asking to confer with co-counsel. Once you’ve concluded your off-the-record conversation, return to the lectern and hit the witness with your final series of questions. Much like the encore at a concert, this series of questions will be more memorable, because it stands out from the rest of your examination. All that’s left to do is smash a guitar against the witness stand, so that when you walk offstage your jurors will be left with the impression that your examination was a “smashing” success!

Add Elliott’s blog to your RSS reader.

December 20, 2010

Jurors on the Internet

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

The Internet provides all of us easy access to information, and it is no surprise to anyone that jurors are going there to get data during trials.

This article from MSN reveals that "Reuters Legal, using data from the Westlaw online research service, a Thomson Reuters business, compiled a tally of reported decisions in which judges granted a new trial, denied a request for a new trial, or overturned a verdict, in whole or in part, because of juror actions related to the Internet. The data show that since 1999, at least 90 verdicts have been the subject of challenges because of alleged Internet-related juror misconduct. More than half of the cases occurred in the last two years."

Here is recent post about an effort of the Committee on Court Administration and Case Management of the United States Judicial Conference to develop pattern jury instructions to address the increasing incidence of juror use of such devices as cellular telephones or computers to conduct research on the Internet or communicate with others about cases.

December 20, 2010

Federal Judge Rules That Certificate of Good Faith Must Be Filed in FTCA Med Mal Cases

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

Judge Mays of the United States District Court in Memphis has dismissed a medical malpractice case filed against the United States under the Federal Tort Claims Act because the plaintiff did not file a certificate of good faith as required by T.C.A. Sec. 29-26-122.

Judge Mays held that the federal courts should apply Tennessee substantive law on the issue and that the failure to file the certificate required dismissal of the case.

The judge also dismissed the loss of consortium claim brought by the medical malpractice plaintiff’s spouse, saying that her claim was derivative to her husband’s claim and since his claim was rejected for failure to file the certificate the loss of consortium claim was also barred.

December 17, 2010

Office Move

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

After 10 years and almost 3 months in the same location, our firm is moving to a new office. The new address is 5141 Virginia Way, Suite 270, Brentwood, Tennessee 37027. The phone number remains 615.742.4880.

Our landlord needed our space for the expansion needs of another tenant and gave us the opportunity to move to another building it owned several blocks away.

Brandon Bass pointed out last night that he had never been in the same building for even 8 years in his life. (He joined our firm 8 years ago.) That provoked me to think about the subject, and I determined that I had been in these offices for longer than any other home or office except the house I grew up in and left in August of 1974. I am confident that I will find myself turning into the parking lot of our old building from time to time in the coming weeks as I travel back to work on auto-pilot after a hearing or deposition.

December 16, 2010

Client Money in Lawyer’s Trust Account Held To Be Asset of Client

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

The Oregon Court of Appeals has ruled that client money held in a lawyer’s trust account can be counted as an asset for purposes of determining whether the client is eligible for Medicaid benefits.

The case is Dorszynski v. Department of Human Services, Case No 20071851 (Oregon Ct. App. October 27,2010).

December 14, 2010

Another Take On Litigation Funding

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

A couple weeks ago I wrote a post about the spread of litigation funding to divorce cases.

Jordan Furlong has written a very interesting post on litigation funding and, in doing so, raises some real concerns about the future of the legal profession. An excerpt:

The fact that third-party litigation funding is flourishing, bumping up against the basic principles of the justice system, should be a grave embarrassment to the legal profession. These companies are emerging because the price of bringing a problem to and through the court system for a solution exceeds what 80% of the population can afford, and 80% of the reason those costs are so high is because of us: not just the fees we charge for our work, but also the labyrinthine, process-drenched, time-devouring system of justice we’ve created and currently oversee. The justice system works for judges and lawyers, because we made it and we run it and we work in it every day; it demonstrably does not work for anyone else.

December 13, 2010

Plaintiff Can Recover Full, Undiscounted Medical Bills in Colorado

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

The Colorado Supreme Court has rejected a challenge to the collateral source rule and has ruled that a plaintiff may recover the full, not discounted, amount of medical bills in a personal injury case.

In Volunteers of America Colorado Branch v. Gardenswartz, Case No. 09SC20 (Col. Nov. 15, 2010) the court explained the purpose of the rule:

The rule’s purpose is to prevent a tortfeasor from benefitting, in the form of reduced liability, from compensation in the form of money or services that the victim may receive from a third-party source. See Quinones v. Pa. Gen. Ins.Co., 804 F.2d 1167, 1171 (10th Cir. 1986) (“The rule evolved around the commonsense notion that a tortfeasor ought not be excused because the victim was compensated by another source, often by insurance.”). Accordingly, the rule is somewhat punitive in nature. It prohibits the wrong-doer from enjoying the benefits procured by the injured plaintiff. If either party is to receive a windfall, the rule awards it to the injured plaintiff who was wise enough or fortunate enough to secure compensation from an independent source, and not to the tortfeasor, who has done nothing to provide the compensation and seeks only to take advantage of third-party benefits obtained by the plaintiff. See Van Waters & Rogers, Inc. v. Keelan, 840 P.2d 1070, 1074 (Colo. 1992) (“To the extent that either party received a windfall, it was considered more just that the benefit be realized by the plaintiff in the form of double recovery rather than by the tortfeasor in the form of reduced liability.”).

December 9, 2010

Juror Mistake Costs Plaintiff Money

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

Here is yet another example of an error in calculations by a jury that resulted in a less-than-intended verdict. According to jury verdict expert Shannon Ragland this is a frequent occurrence.

How do you protect your client from a similar result? First, make sure the jury understands that it should award the entire amount of damages and not attempt to reduce them by the percentage of fault to the plaintiff. That instruction should be part of the jury instructions and, if possible, try to include a brief instruction to that effect on the verdict form.

Second, walk the jury through the verdict form during your closing argument and emphasis the point.

December 7, 2010

Litigation Funding – Its Not Just For Tort and Commercial Litigation Cases Anyone

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

The world of litigation funding has now found its way to divorce litigation.

Here is another article in the same series that reveals the role of litigation funding in tort and commercial litigation cases.