Day on Torts

May 16, 2010

Slight Delay on Shipping 3rd Edition of Day on Torts

The horrible flooding in Nashville has delayed our printer’s ability to finish the 3rd edition of Day on Torts. It now looks like we will not be able to ship the book until May 28, 2010.

Day on Torts: Leading Cases in Tennessee Tort Law consists of a summary of the leading case on over 300 subjects in Tennessee tort law. The book also cites you to thousands of other cases to aid you in your research. As you can see from the Table of Contents, the book will give you readily access to current, definitive case law on topics of interest to every tort lawyer.

The book was written because I found that computerized legal research often makes it more difficult to find the leading case on a particular topic. Now, you can turn to the appropriate section of the book, find the leading case on the subject as of the date of publication, and the use computerized legal research to update the case law or expand your research as necessary.

May 14, 2010

A Court Calls Out a Jerk

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

Plaintiff had the obligation to seek attorneys fees in a case by a date certain. Plaintiff”s counsel and defense counsel agreed on multiple occasions to extend the deadline so that they can negotiate the fee issue, but Plaintiff failed to file a written stipulation concerning the extension with the Court as required.

Negotiations break down. Plaintiff seeks fees. Defendant objects, admitting that they agreed to extensions of the deadline but fault the plaintiff for not filing a written stipulation. Trial court agrees and strikes the fee request.

The California Court of Appeals called "bullshit." "Admittedly, the law frowns on an attorney‟s neglect to comply with a clear rule. However, it positively glowers at another attorney‟s exploitation of such neglect as an excuse to break his word." Ron Burns Const. Co. v. Moore, (Cal. Ct. App. – May 11, 2010).

May 10, 2010

Ohio Permits Evidence of Write-offs Of Medical Bills

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

The Ohio Supreme Court has ruled that a defendant in a personal injury action may introduce evidence that plaintiff’s health care provider "wrote off" certain medical charges for care given to the plaintiff.

The plaintiff was billed $21,874.80 for care received in the accident. His health insurer paid $7.483.91 of those bills and the provider wrote off the balance pursuant to an agreement with the health insurer. The trial judge did not permit the defendant to introduce evidence of the write-offs.

The Ohio Supreme Court reversed, saying that "’the reasonable value of medical services is a matter for the jury to determine from all relevant evidence. Both the original medical bill rendered and the amount accepted as full payment are admissible to prove the reasonableness and necessity of charges rendered for medical and hospital care.’" [Citation omitted.]

May 4, 2010

Gulf Oil Spill: The Impact of Damage Caps Will Be Felt By Tens of Thousands

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

You haven’t seen much about it in the press yet, but BP has the benefit of a cap that will probably limit its liability for the oil spill in the Gulf. Section 1004 of the Oil Pollution Act (OPA), passed into law in August 1990 after the Exxon Valdez incident, limits the liability of holders of leases or permits for offshore facilities to $75 million per spill, plus removal costs.

The Act also limits the liability for tank vessels larger than 3,000 gross tons to $1,200 per gross ton or $10 million, whichever is greater and the liability for responsible parties at onshore facilities and deepwater ports to $350 million per spill.

The Act also created the Oil Spill Liability Trust Fund. The primary source of revenue for the fund was a five-cents per barrel fee on imported and domestic oil. Collection of this fee ceased on December 31, 1994 due to a "sunset" provision in the law. Other revenue sources for the fund include interest on the fund, cost recovery from the parties responsible for the spills, and any fines or civil penalties collected. The Fund is administered by the U.S. Coast Guard’s National Pollution Funds Center (NPFC).

May 3, 2010

Oprah Lends Support to Safe Driving Practices

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

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.