Day on Torts

December 30, 2009

Ambulance Driver Crashes Into TDOT Help Truck – Is There an Incapacitated Driver Defense?

David Cline, the paramedic who was killed when the private ambulance he was driving slammed into the back of a TDOT roadside help truck on Interstate 65 on October 22, 2009, had a history of medical problems, including narcolepsy and epilepsy. Investigators are unsure why Cline left the highway but believe that the he suffered a "seizure or some type of medical condition that [incapacitated] him and led to the fatal crash, according to the final report released by Metro Nashville Police Department on December 28, 2009. The story was reported in The City Paper.

The article reports that "after performing a toxicology examination, police determined Cline had an elevated level of amphetamines in his bloodstream from his prescribed medication for narcolepsy, Adderall. The same report did not find indications his prescribed epilepsy medication, Depakote, was in his system." The article also reports that

Cline did have previous incidents involving seizures and car crashes. On Christmas Day 1999, Cline ran off the road and struck a utility pole after he had a seizure, and following the incident, his driver’s license was suspended. His credentials were reinstated in March of 2000. He suffered another seizure while working his day job as a Franklin firefighter, "three or four years prior" to the deadly crash.

December 30, 2009

Tennessee AOC Releases 2008-09 Annual Report of the Tennessee Judiciary

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

The Tennessee Administrative Office of the Courts has released the 2008-09 Annual Report of the Tennessee Judiciary. The report includes information about court filings and dispositions for the fiscal year ending June 30, 2009.

Here is some of the important data included in the Report:

1. There were only 10,659 personal injury and wrongful death cases filed in 2008-09. The backlog of cases is neither increasing or decreasing – case dispositions were about the same as filings at 10,768.

December 29, 2009

Economic Loss Rule Applied in South Carolina Truck Fire Case

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

The South Carolina Supreme Court has ruled that the economic loss rule precludes a truck owner’s tort claims against the truck manufacturer. The case is Sapp & Smith v. Ford Motor Company, Opinion 26754 (S.C. December 21, 2009).

Sapp filed suit against Ford alleging property damage to his vehicle (there was no personal injury or damage to other property) as a result of a fire Sapp claimed was caused by a design defect in the cruise control switch, which he said would short circuit and cause a fire in the engine compartment.

As explained by the Court,

December 28, 2009

Social Networking and its Impact on Trials

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

Philip Brown, author of MS Litigation Review and Commentary, has an interesting post on the impact of social networking on the work of trial lawyers.

An excerpt:

I have talked with lawyers who are worried about a juror going home and researching parties on social network sites. What if a juror does that and discovers that the juror has a mutual friend with the party or belongs to the same club or religious group? Could that impact the juror’s decision in the case?

December 28, 2009

Problem Nurses Move From State to State

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

Today’s Tennessean has an article originally published in the Los Angeles Times that reveals a problem with nurses moving from state to state and leaving behind a bad disciplinary record.

The article reports that "using public databases and state disciplinary reports, reporters found hundreds of cases in which registered nurses held clear licenses in some states after they had been sanctioned in others, often for serious misdeeds. In California alone, a months-long review of its 350,000 active nurses found at least 177 whose licenses had been revoked, surrendered, suspended or denied elsewhere."

This problem can be avoided. "By simply typing a nurse’s name into a national database, state officials can often find out within seconds whether the nurse has been sanctioned anywhere in the country and why. But some states don’t check regularly or at all."

December 22, 2009

Writing Appellate Briefs

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

Jay O’Keeffe has written a nice article about appellate brief writing on DeNovo: A Virginia Appellate Law Blog.

The article is titled " 10 Ways to Ruin a Perfectly Good Brief." Here is an excerpt:

1. Take shortcuts. Here’s how you write a brief: brainstorm, research, brainstorm, outline, draft, revise, cite check. Skipping any of these steps to save time will backfire. If you don’t outline, it will take you twice as long to write, and your brief will likely be poorly structured and repetitive. If you don’t brainstorm, then you may miss a key point. If you don’t cite-check, you will be embarrassed sooner or later. And if you don’t research or revise, then may God have mercy on your soul.

December 22, 2009

Use of Notes At Trial

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

Winning Trial Advocacy Tips continues to be a great source of information for those of us who try cases. This post, called "The Proper Use of Notes," does a fine job explaining how – and how not – to use notes at trial.

An excerpt:

When preparing the notes that you’ll bring to court, instead of writing out a word-for-word script, write down only what you need. Rather than full sentences, use brief phrases or single words. Besides, when you’re in the heat of trial, your eyes won’t easily focus on full sentences like “Mrs. Johnson, would you please tell us how you know the defendant?” All you’ll really need is a quick reminder, like “RELATIONSHIP?” or “KNOWS DEFENDANT?” to prompt the correct question.

December 21, 2009

Physicians in the United States Less Likely to Use Health Information Technology

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

According to the 2009 Commonwealth Fund International Health Policy Survey, only 46 percent of U.S. doctors use electronic medical records, compared to 99 percent of doctors in the Netherlands and 97 percent of doctors in New Zealand and Norway.

"We spend far more than any of the other countries in the survey, yet a majority of U.S. primary care doctors say their patients often can’t afford care, and a wide majority of primary care physicians don’t have advanced computer systems to access patient test results, anticipate and avoid medication errors or support care for chronically ill patients," said Commonwealth Fund Senior Vice President Cathy Schoen, lead author of an article appearing in Health Affairs.

The survey also reports that

December 20, 2009

Memphis Lawyer Bites Nose of Hair Stylist in Restroom of Memphis Bar

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

Lawyer Mark Lambert , an attorney with the Cochran Firm in Memphis, has been sued by Greg Herbers, a Memphis hair stylist, over injuries Herbers says he received in an alteration with Lambert in the bathroom of a Memphis bar.

According to the story in the Commercial Appeal, Herbers

entered the restroom around 9 p.m. and noticed the one stall was occupied by two men "performing some activity other than going to the bathroom." Herbers said that when he told the men he needed to use the toilet, Lambert, who was standing at the urinal but appeared to know the men in the stall, became aggressive. Lambert allegedly approached Herbers in a "menacing" fashion and jumped on him, grabbing his head and clawing at his neck. Herbers said the next thing he felt was excruciating pain. He heard teeth crunch and noticed blood pouring from his left nostril.

December 18, 2009

New Federal Rules of Civil Procedure

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

Here is the best summary I have seen that describes the recent changes to the FRCP. The new rules went into effect on December 1, 2009. The summary was written by the folks at Mayer Brown.

Thanks to Dan Hull at What About Clients? for alerting me to it.