Day on Torts

December 14, 2010

Another Take On Litigation Funding

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.

December 6, 2010

Surveillance Videos Admitted Into Evidence Despite Claim of Unfair Prejudice

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

The United States Court of Appeals for the Fifth Circuit has ruled that a trial judge appropriately admitted surveillance videos of the plaintiff into evidence. The videos were taken in a case where the quality of life of the plaintiff after the accident was "hotly disputed." The videos showed the plaintiff engaged in activities at casinos, but were admitted despite an objection under FRE 403 that the probative value was outweighed by the danger of unfair prejudice that some jurors might consider his gambling immoral.

The Court explained that the plaintiff’s “post-accident quality of life was hotly disputed, and plaintiff’s witnesses testified in detail regarding the allegedly severe post-accident limitations plaintiff faces, including the inability to count money, make change, or be in crowds,” and thus concluded that the video’s probative value of his casinos visits “contradict[ed] these statements” and that this “weighs heavily against a hypothetical juror’s moral aversion to gambling.”

The case is Baker v. Canadian National / Illinois Central R.R., 536 F.3d 357 (5th Cir. 2008).

December 1, 2010

Drugs and Drivers

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

The National Highway Traffic Safety Administration (NHTSA) has reported that post-mortem testing has demonstrated an increase in the level of drug involvement among fatally injured drivers over a five-year period from 2005 to 2009.

According to data compiled by NHTSA, 63 percent of the 21,798 drivers who were killed in motor vehicle crashes in 2009 were tested for drugs. Of these, 3,952 tested positive for drug involvement, representing 18 percent of the total for that year. The report also showed drug use reported by the states among fatally injured drivers increasing from 13 percent in 2005, to 15 percent in 2006, 16 percent in 2007, and 18 percent in 2008. Drug involvement does not mean the driver was impaired or that drug use was the cause of the crash.

The drug data was collected by NHTSA as part of its Fatality Analysis Reporting System (FARS) and included information collected from the states under three broad categories: whether the driver was tested, the type of test conducted, and the test results. The types of drugs recorded in FARS include narcotics, depressants, stimulants, hallucinogens, cannabinoids, phencyclidines (PCPs), anabolic steroids, and inhalants. The groups include both illicit drugs, as well as legally prescribed drugs and over-the-counter medicines.

November 29, 2010

NY Times: “Study Finds No Progress in Safety at Hospitals”

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

The November 25, 2010 New York Times has reported on a study that has found that no progress has been made at improving patient safety in hospitals.

The study is reported in last week’s New England Journal of Medicine. It was conducted from 2002 to 2007 in 10 North Carolina hospitals, found that harm to patients was common and that the number of incidents did not decrease over time. The most common problems were complications from procedures or drugs and hospital-acquired infections.

As the author explained,

November 18, 2010

Thoughts on Mediation

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

Mediation is an important part of personal injury and wrongful death litigation. Indeed, my only significant quarrel with mediation is that defendants often refuse to engage in any settlement negotiations in significant cases without a formal mediation. I still remember the days where lawyers could actually engage in settlement negotiations without having to pay for the services of a mediator.

Karen Koehler, a personal injury lawyer in Seattle, writes a blog called "The Velvet Hammer." Here is an interesting post she has written about mediation: "Tips for Attorneys: Mediation Meanderings."

An excerpt:

November 17, 2010

AAJ Seminar on Changes to Medicare Subrogation Reporting Rules

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

AAJ Education’s Breaking News in Medicare Secondary Payer Requirements: Moratorium on Reporting Teleseminar, November 23, will give you the breaking news and latest on Medicare Secondary Payer reporting requirements, the Bradley v. Sebelius 11th Circuit decision, what the moratorium means, and what happens next. To view the agenda and faculty, and to register, go to www.justice.org/education/medicare or call 800-622-1791 or 202-965-3500, ext. 8612.

November 15, 2010

Preparing for Oral Arguments in the Appellate Courts

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

Jay O’Keeffe has a written a great post called "10 Things I Wish I’d Known Before My First Oral Argument." An excerpt:

3. Anticipate hard questions.

As soon as I start working on an appeal, I create a document called "Tough Questions." This document includes every hard question I can think of, regardless of whether I can answer it. I update it constantly through the briefing and oral argument process. The goal is to anticipate every hard question the Court can throw at you, and prepare–and practice–your best answer.