Day on Torts

April 18, 2011

Admissibility of Third-Party Video Evidence

Burchfield v. CSX Transp., Inc. , __ F.3d __ (11th Cir. March 30, 2011) (No. 09–15417), is a interesting decision that addresses the issue of the admissibility of videos made by third parties.

The plaintiff objected to the defendant’s use of the video and maintained that it

depicted a recreation of his accident. In order for the video to be admissible, Burchfield asserts that CSX was required to prove that the testing on the video was performed under substantially similar conditions as those surrounding his accident. To make that showing," the defendant sought the testimony of the maker (Wolf, a rail consulting expert for the third party employer) of the video. The defendant proceeded on a different theory, The defense insisted that the "video was not a recreation such that it would be subject to a heightened foundational standard" of substantial similarity. Rather, the defendant contended that "the video was properly admitted because it was authenticated under Fed.R.Evid. 901(a), which requires a lesser showing from a witness laying a foundation for a photograph or motion picture.

March 30, 2011

Senator Overbey Defends the Legal Profession

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

When Senator Campfield slammed lawyers on March 29, 2011 in a Senate Judiciary Committee, Senator Doug Overbey let it be known that he did not appreciate the unkind words of his fellow Republican.

See the debate on SB 0127 here. Debate on the bill starts at 2:04:44. Campfield’s remarks begin at 2:07:44 and his lawyer slam starts at 2:10:25. Senator Overbey makes his statements beginning at 2:17.

Senator Campfield is a real estate developer from Knoxville. Senator Overbey is a lawyer from Maryville.

March 29, 2011

Tennessee Supreme Court Agrees To Hear Important Case Concerning Expert Witnesses

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

The Tennessee Supreme Court will hear oral arguments on May 11, 2011 in Holder v. Westgate Resorts, Ltd., E2009-01312-SC-R11-C (Tenn. Ct. App. 2010).

Here is the summary of the opinion prepared by the Court of Appeals:

Plaintiff sustained personal injuries resulting from a fall on defendant’s premises

March 24, 2011

Re-Payment of Health Insurance Plans Covered by ERISA

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

On a weekly, if not daily, basis, plaintiff’s personal injury lawyers have to deal with subrogation interests. Many of those subrogation claims involve the law of ERISA.

This opinion out of the Illinois Court of Appeals addresses the issue of disputes over the amount of money to be re-paid to the holder of the subrogation interest.

Defendant had a personal injury claim. Plaintiff sought subrogation and claimed that it was due almost $63,000. Defendant claimed that some of the expenses sought did not arise from medical treatment caused in the incident giving rise to the personal injury claim. Plaintiff countered with answers to interrogatories in the personal injury claim, in which Plaintiff contended that back surgery (the subject of the disputed medical claim) was related to the accident). Defendant argued that her physicians did not causally link the back problems to the accident, and therefore Plaintiff’s subrogation interest in any future personal injury settlement or judgment proceeds should be reduced accordingly. Plaintiff countered that one physician said the link was possible, that it determined the subrogation amount, and that under ERISA the court should defer to its decision and order that the amount of the subrogation interest include amounts for the surgery.

March 22, 2011

Court of Appeals Modifies Herpes Verdict

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

Thomas Redmon gave the plaintiff herpes. He knew that he had the disease for over 25 years before he had sexual relations with the plaintiff. He knew that there was some risk in transmitting the disease even if he was lesion-free. He did not tell plaintiff that he had the disease before their first several sexual interactions, but later told her that he had the disease. He also told her that it was safe to have unprotected sex if he was lesion-free.

Plaintiff contacted herpes and sued Redmon. The jury awarded her $6.7 million.

The California Court of Appeals affirmed the liability aspect of the verdict but cut the compensatory damages award by over $2 million. (Note: the press reported that the award was affirmed. Here is one example of such an error.) The punitive damage award of $2.75 million was affirmed.

March 21, 2011

Lawyer In Fee Dispute Should Have Sued Client, Not Former Co-Counsel

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

Lawyer A is hired to bring a personal injury case on behalf of an injured person. With the consent of the injured person, Lawyer A associates Lawyer B. The contract between A and B includes a fee split arrangement. Injured person consents to fee split and the contract. Injured person then fires Lawyer A. Lawyer B prosecutes case and resolves it. Lawyer A is not paid any portion of the fee. Lawyer A sues Lawyer B under a myriad of theories.

he California Court of Appeals, Third District, rules that Lawyer A has no claim against B. The personal injury client employed and fired Lawyer A and it was her responsibility to pay a fee if it was due under either a breach of contract theory or a quantum meruit theory. The Court also ruled that the litigation privilege barred Lawyer A’s fraud claims against Lawyer B.

Find the opinion in Olsen v. Harbison, C058943 (Cal. Ct. App. 3rd Dis. Dec. 28, 2010) here.

March 14, 2011

Pigeon Poop Expert

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

A plaintiff in a slip and fall case in New York was permitted to testify as an expert on pigeon droppings.

The plaintiff in Stewart v. New York City Tr. Auth. 2011 NY Slip Op 01593 (NY 1st App. Div. Mar. 3, 2011) slipped and fell on pigeon poop at a subway station. The opinion says this about pigeon poop:

There was nothing manifestly untrue or incredible about plaintiff’s testimony that he often observed pigeon droppings on the subway stairs that he used every day and that he was caused to slip because of the presence of pigeon droppings on the very same set of stairs. Indeed, the station cleaner similarly testified that he had "experience on a daily basis with pigeon [droppings] and having to clean it from these steps," and that he was taught to put sand over the pigeon droppings because they were slippery.

March 10, 2011

Anti-Tort Reform Article

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

is an article by Larry Beinhart explaining how and why Corporate America seeks to limit access to our courts by pushing so-called "tort reform" legislation.

Here

A sample:

March 8, 2011

Truck Driver Has A Duty Not To Park Along Roadside

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

The California Supreme Court has ruled that a truck driver may be held liable for parking his vehicle along a freeway to have a snack where regulations permitted only emergency parking.

The entire opinion has a fascinating discussion of the law of duty, but the following gives you a flavor for the balance of the opinion:

If stopping 16 feet from the traffic lanes exempts a driver from the duty of care, does the same hold for parking six feet from the lane? Six inches? If we are to create immunity for a truck driver stopping for a few minutes to have a snack, should we also do so for one who decides to sleep for hours by the roadside rather than pay for a motel room? Would the categorical exemption Ralphs seeks still apply if a tractor-trailer driver parked an inch from the traffic lanes, on the outside of a curve, leaving the rig there all night without lights? To ask these questions is to see why a categorical exemption is not appropriate. The duty of reasonable care is the same under all these circumstances; what varies with the specific facts of the case is whether the defendant has breached that duty. That question, as discussed earlier, is generally one to be decided by the jury, not the court.

March 7, 2011

Personal Injury Claims and Bankruptcy Petitions

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

What happens when a personal injury plaintiff files a bankruptcy petition? What happens if that plaintiff fails to disclose in the bankruptcy petition that he has a personal injury claim that has not yet been filed? How does a bankruptcy court discharge affect the plaintiff’s rights to later file his personal injury claim?

The Tennessee Court of Appeals recently addressed these issues in the case of Reynolds v. Tognetti, No. W2010-00320-COA-R3-CV (Tenn. Ct. App. Mar.4, 2011). When the defendants learned that the now debt-discharged plaintiff was pursuing a tort claim for injuries received before he filed the bankruptcy petition, they filed a motion for summary judgment seeking dismissal of the claim on the theory of judicial estoppel.

Plaintiff responded to this motion by (1) petitioning the bankruptcy court to re-open the bankruptcy and (2) filing a motion to amend the complaint to add the bankruptcy trustee as a party plaintiff. The trustee then moved to intervene or be substituted as a party plaintiff.