Day on Torts

May 3, 2010

Oprah Lends Support to Safe Driving Practices

PC Magazine Oprah Winfrey has been urging her viewers to promise not to text or make telephone calls while driving. Last Friday she dedicated her show to the subject.

Some 23 states, including Tennessee, have laws banning texting while driving. Eight other states have partial bans on texting while driving. This chart summarizes the law of those states.

A July 2009 study by the Virginia Tech Transportation Institute concluded that texting while driving increases the risk of a crash by 20 times. A recent University of Utah study reached a similar result. The Secretary of Transportation has testified that distracted drivers caused the death of nearly 6000 people in 2008.

May 2, 2010

Johnson and Johnson Issues Massive Product Recall

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

The good news is that a division of Johnson and Johnson appears to be acting promptly to solve a problem. The bad news is that the consumers who use the 43 recalled products for children and infants are going to be wondering if their children have suffered any harm from them..

Federal regulators have identified what they called deficiencies at a Johnson and Johnson manufacturing facility. The products include liquid versions of Tylenol, Motrin, Zyrtec and Benadryl. The FDA called the potential for health problems "remote."

This is from the J & J subsidiary’s press release on the subject:

April 29, 2010

Wrongful Death Claims in Tennessee

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

When a person dies as a result of someone else’s negligence, Tennessee law permits only certain people to assert a claim to recover damages for the death. This article does not discuss who receives the damages awarded by settlement or judgment of the case, but only who has the right to file suit.

Spouse

If the decedent was married, his or her spouse normally has the highest right to pursue the wrongful death claim. A court may deny the surviving spouse the right to bring a wrongful death claim only if the spouse is not legally competent (that is, has some sort of mental problem that would affect his or her ability to bring and pursue a lawsuit), has shown that he or she cannot be trusted to bring the claim (for example, the parties were in a bitter divorce fight at the time of the death), or some other factor (for example, the parties had not lived together for years at the time of the death but had never divorced).

April 27, 2010

Detecting Non-Answers During Cross-Examination

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

Elliott Wilcox shares another great post from his Winning Trial Advocacy Tips blog. I know I rant and rave about how wonderful this blog is and I fear I may be accused of a man-crush on Elliott, a gentleman I have never spoken with, much less met. But there is so much crap spread by those who think that they know something about trial preparation and trial advocacy that when someone actually shares something of value I feel compelled to applaud it – loud and often. Elliott gets it and, more importantly, he shares it.

The latest cheer goes out for a post titled "How to Detect Non-Answers During Cross-Examination." Here is an excerpt:

To become a quality cross-examiner, you must master the ability to critically listen to witness’s answers and identify the weaknesses, fallacies, and evasions in their responses.

April 26, 2010

FHWA Adopts the 2009 Manual on Uniform Traffic Control Devices

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

The Federal Highway Administration has ruled that the 2009 Edition of the Manual on Uniform Traffic Control Devices must be adopted by the states as their legal standard for traffic control devices within two years. Here is an excerpt of the Federal Register discussing the rule change.

The MUTCD contains all national design, application, and placement, standards, guidance, options, and support provisions for traffic control devices. The purpose of the MUTCD is to provide uniformity of these devices, which include signs, signals, and pavement markings, to promote highway safety and efficiency on the Nation’s streets and highways. The MUTCD is adopted by reference in accordance with Title 23, United States Code, Section 109(d) and Title 23, Code of Federal Regulations, Part 655.603, and is the national standard for all traffic control devices installed on any street, highway, or bicycle trail open to public travel.

The 2009 edition supersedes all previous editions and revisions of the MUTCD. Here is the PDF version. There is already a change proposed to the 2009 edition.

April 22, 2010

Motorcycle Deaths Decline

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

The Governors Highway Safety Administration has released a preliminary report indicating the motorcycle deaths have decreased on our nation’s highways. If the final numbers are substantially similar, deaths will have dropped for the first time in over a decade.

Based on preliminary data gathered for the first nine months of the year, GHSA is projecting that motorcycle fatalities declined from 5,290 in 2008 to 4,762 or less in 2009. The projection is based on data from 50 states and the District of Columbia.

Tennessee had a substantial decrease in motorcycle deaths. During the first nine months of 2008 the number of motorcycle deaths was 132. In 2009, it was 101.

April 20, 2010

“Hospital, We Have a Problem”

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

ABA Journal.com reports that "in 1996, a Delaware hospital conducted an internal investigation of a pediatrician accused of inappropriate conduct with young patients and concluded he had done nothing wrong. Hence, administrators reportedly never informed the state’s medical disciplinary board or law enforcement authorities of the allegations."

Now, the hospital is fearing bankruptcy because the doctor has been charged with rape and sexual abuse of over 100 children, 18 of whom have filed lawsuits. The doctor has been indicted on over 400 counts of child sex abuse. The name of the doctor is Earl Bradley, who is alleged to have videotaped some of his misconduct.

The hospital is Beebe Medical Center, a 210-bed facility in Lewes, Delaware. State law requires hospitals to report suspected professional misconduct to the state medical board. The hospital apparently did not do so.

April 13, 2010

A Fix to The Problem of Dealing With Medicare

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

Dealing with Medicare on subrogation issues can be a nightmare. This bill, HR 4796, the Medicare Secondary Payor Enhancement Act, would help make things easier by requiring the Center for Medicare Services to respond to requests for their lien amount within 60 days.

April 13, 2010

“A Remedy for Troubled Doctors”

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

Today’s Wall Street Journal has a fascinating article about a California program that helps determine if physicians who have been disciplined can start practicing again. The goal of PACE (Physician Assessment and Clinical Education Program) is "

to evaluate the competence of troubled doctors whose infractions range from serious medical error and negligence to sloppy record keeping and anger management. Using a mix of computer-based simulations, multiple-choice exams, cognitive-function screenings and hands-on observation, PACE faculty and staff tests doctors’ knowledge, skills and judgment, providing remedial courses and a weeklong mini-residency supervised by UCSD medical faculty.

The article also states that

April 12, 2010

Is Your Client on Facebook?

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

Stark & Stark’s Pennsylvania Law Monitor has a nice post about the impact of Facebook on personal injury litigation.

An excerpt:

The Internet and social networking sites have changed the face of litigation in this country. However, there are some precautions that you can take to protect yourself, short of boycotting the Internet all together. First, be careful in reviewing the photos and posts on your social networking site. Remove anything that you would not want an insurance company lawyer to see that could help them defend against your case. Next, check your privacy settings which enable you to block certain people from seeing you on a particular site (Facebook allows this). It is also helpful to search your name in the search field and see what comes up to make sure it is acceptable (it is advisable to do this on Google and YouTube as well). Finally never accept friend requests or respond to emails from people you do not know.