Day on Torts

March 16, 2010

“Tennessee Jury Verdict Reporter” Statistics – Part 1

Shannon Ragland of the Tennessee Jury Verdict Reporter has graciously agreed to permit me to share some of the information he has gathered concerning jury trials in Tennessee.

It is fair to say that Shannon has the most comprehensive collection of jury verdict information in the state. Indeed, in my mind it exceeds that offered by the annual reports published by the Administrative Office of the Courts. Why do I say this? First, Shannon gets paid to collect data and report it accurately. Second, the clerks report data to the AOC, and not every clerk is going to apply the same criteria when he or she completes the report. Thus, there is increased likelihood that data will not be consistently reported and this, of course, impacts the results.

This multi-part series will discuss some of the data contained in Shannon’s 359-page report. You can buy the report yourself for $175.00. It is well worth the money. Click here to buy the report.

March 15, 2010

Form Protective Order For Use in Products Liability Case

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

Tim Edwards of Memphis has kindly shared a protective order in a products liability case.

March 12, 2010

More Proof that the Big Lie is a Big Lie: Medical Malpractice Payments Continue to Fall

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

The following comes to us from an article written by Chelsey Ledue, Associate Editor of Healthcare Finance News:

Fewer medical malpractice payments were made on behalf of doctors in 2009 than any year on record, according to the National Practitioner Data Bank.

This finding contradicts claims that medical malpractice litigation is to blame for rising healthcare costs and that changing the liability system to the detriment of patients will not curb costs.

March 11, 2010

SCOTUS Will Hear Vaccine Case

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

The United States Supreme Court has decided to hear Bruesewitz v. Wyeth, a case where the Bruesewitz family says there should be legal recourse beyond the administrative process set up by the National Childhood Vaccine Injury Act.

The minor plaintiff suffered seizures two hours after receiving her six-month DPT vaccine in 1992. The seizures caused permanent neurological damage. The Third Circuit Court of Appeals ruled against the Bruesewitz family.

The USSC docket number is 09-152. The issue is stated as follows:

March 10, 2010

Helpful Checklist for Determining Whether A Person is an Independent Contractor or an Employee

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

I received an unsolicited (but not unwanted) email from the Baker Donelson law firm titled "20 Ways Your Independent Contractor Might Be an Employee." The purpose of the email was to warn recipients about ongoing IRS employment tax audits in general and the worker classification issue (are workers employees or independent contractors) in particular.

Well, I looked down the list of issues and it seemed like a pretty good checklist of areas of inquiry in a tort lawsuit to help establish that a so-called independent contractor was in fact an employee and thus the defendant should be vicariously liable for the negligent conduct of that worker. It appears that Baker Donelson may have got the 20-factor checklist from a government publication or from prior cases on the subject but that is a little unclear. That being said, a hat tip to Baker Donelson for sharing this information.

Here are what Baker Donelson calls the "two threshold questions."

March 9, 2010

CA Court Says Witness Interviews Not Privileged Work Product

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

The March 8, 2010 edition of the Daily Recorder reports that a divided California appellate court has ruled that witness statements recorded or taken in writing by attorneys or their representatives aren’t privileged work product and, therefore, are open to discovery. The dissenter ruled that the statements were qualified work product, which means that they are undiscoverable unless a court determines that denial of discovery would unduly prejudice the opposing party.

The case is Coito v. Superior Court (State of California) , 10 C.D.O.S. 2697 ( 5th Dis. Cal. Ct. App. March 4, 2010). Here is the opinion.

Here is a nice statement of the holding taken directly from the opinion:

March 7, 2010

Death of Howard Twiggs, Trial Lawyer

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

Former ATLA President Howard Twiggs has died. Funeral services are today. Howard has been a friend for over 25 years and was a leader in the plaintiff’s trial bar and his community.

I first met Howard at a NCATL seminar in Chapel Hill, NC when I was still a law student. Later, we became re-acquainted at ATLA conventions and meetings around the country. About 12 years ago we had the pleasure of working on a case together, helping a North Carolina family that had a tragic accident on I-40 near Lebanon, TN. Thus, we had time to get to know one another in a long car rides and over dinner in my home, as opposed to simply running into each other at a reception at convention or two.

I say all of that to say this: Howard Twiggs was a very, very fine man and an extremely competent lawyer. He had a love for his fellow man, and felt duty-bound to help them, especially those who were not blessed with his intellect and his health. He loved his adopted state of North Carolina, and had that wonderful accent that always took me back 1978, when I left WI and jumped into life in the South.

March 5, 2010

The Tort Reform Movement – Naked

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

I read Andrew Cohen’s article in the Atlantic (Tort Reform is Anti-Democratic (And Ingeniously Marketed)) and thought I would summarize it for your convenience. Then I discovered that Philip Thomas had already done so, and quickly determined that he did a better job than I would have done.

Here is an excerpt of Philip’s post on his blog, MS Litigation Review:

In order to sell tort reform, corporate America applies a bait and switch commonly referred to as a “straw man” argument. Barry and Soccio define the straw man attack as follows in their book Practical Logic 104:

March 4, 2010

Online Accident Reports

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

Getting motor vehicle accident reports is a hassle, but is appears that it will be getting easier.

BuyCrash.com makes accident reports from Georgia, Indiana, and Kentucky available for purchase over the Internet. Accident reports from Tennessee will be available in the future.

Thanks to Chris Simon and the Atlanta Injury Attorney Blog for making me aware of this service.

March 3, 2010

Younger’s 10 Commandments of Cross Examination

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

Some of you are a little young to remember Irving Younger, the great trial advocacy teacher. Professor Younger developed the "10 Commandments of Cross Examination" that were taught in trial advocacy programs across the country for many, many years.

Experienced trial lawyers would take issue with some of Younger’s commandments, arguing that from time to time they should be ignored. I agree, but that does not mean that they do not have value.

Here is a copy for your reading pleasure.