Day on Torts

December 7, 2009

Senate Defeats Effort To Limit Access to the Courthouse by Medical Malpractice Victims

Senator Ensign (R-Nevada) introduced an amendment to limit contingent fees in medical malpractice cases. The Senator attempted to attached the language to amendment SA 2786 to H.R. 3590, which is intended to amend the Internal Revenue Code of 1986 to modify the first-time homebuyers credit in the case of members of the Armed Forces and certain other Federal employees, and for other purposes.

Senator Ensign’s amendment was defeated by a vote of 32 – 66 (2 Senators did not vote). Both Tennessee senators voted in favor of the amendment to restrict fees.

The following Democrats voted to limit fees as set forth in the amendment: Senators Hagan, Warner, Lieberman, Lincoln, and Kohl. The following Republicans voted against the amendment to limit fees: Senators Bennett, Chambliss, Cochran, Collins, Crapo, Hatch, Johanns, LeMieux, Risch, and Shelby.

December 4, 2009

Court Erred in Ordering Release of Medical Records

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

The Ohio Court of Appeals has ruled that a trial judge committed error by ordering production of a personal injury plaintiff’s medical records without first doing an in camera review to determine if the records should have been turned over to the defendant.

The opinion is interesting to Tennessee lawyers and should be persuasive in Tennessee even though the physician-patient privilege is statutory in Ohio.

Under Ohio law, "the filing of any civil action waives the physician-patient privilege as to any communication (including a medical record) that relates causally or historically to the injuries at issue in the action. Natl. City Bank v. Rainer (Aug. 12, 1999), 10th Dist. No. 98AP-1170; Ward v. Johnson’s Indus. Caterers, Inc. (June 25, 1998), 10th Dist. No. 97APE11-1531."

December 2, 2009

A New Way of Looking at Duty and Causation

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

The Iowa Supreme Court has released an opinion in Thompson v. Kaczinski, 2009 WL 3786632 (Iowa 2009) and adopted the Restatement (Third) of Torts approach to both duty and causation. The case arose after "a motorist lost control of his car on a rural gravel road and crashed upon encountering a trampoline that had been displaced by the wind from an adjoining yard to the surface of the road. He and his spouse sued the owners of the trampoline." The lower court dismissed the case, holding that the defendants did not owe a duty to the plaintiffs and that causation did not exist as a matter of law.

“An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.” Restatement (Third) of Torts: Liab. for Physical Harm § 7(a), at 90 (Proposed Final Draft No. 1, 2005). As the Court explained, "

[I]n most cases involving physical harm, courts “need not concern themselves with the existence or content of this ordinary duty,” but instead may proceed directly to the elements of liability set forth in section 6. Id. § 6 cmt. f, at 81. The general duty of reasonable care will apply in most cases, and thus courts “can rely directly on § 6 and need not refer to duty on a case-by-case basis.” Id. § 7 cmt. a, at 90.

December 2, 2009

Does Ms. Tiger Woods Have A Tort Claim Against the Other Woman?

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

More information continues to be leaked to the media about Tiger Woods’ alleged mistresses, and news reports indicate that at least one of them has confirmed a long-lasting affair.

What does the law of torts say about this? Alienation of affections, criminal conversation, and reckless infliction of emotional distress immediately come to mind as potential claims that Ms.Nordegren could assert any woman who had a sexual relationship with her husband.

What is alienation of affections? In Tennessee, alienation of affections "is the willful and malicious interference with the marriage relation by a third party, without justification or excuse." Donnell v. Donnell, 220 Tenn. 169, 415 S.W.2d 127, 132 (1967). The cause of action was abolished by statute in Tennessee in 1989.

December 1, 2009

Free Software for Trial Lawyers

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

The good folks at the Winning Trial Advocacy Tips blog have assembled some more great information of interest to trial lawyers. This post is titled "Free Software for Trial Lawyers‘ and features a dozen free or almost free programs of interest to lawyers who try personal injury and wrongful death cases.

An excerpt from the post:

IMAGE EDITING PROGRAMS

November 30, 2009

Defendant’s Discovery Abuse Results in Default Judgment of $8,000,000, Plus Fees

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

What do you do when a party to a lawsuit intentionally refuses to follow the rules? One judge in Washington State knew what to do: the judge struck the defendant’s answer, entered judgment for $8,000,000, and awarded attorneys’ fees. Last week the Washington Supreme Court had upheld the award.

The facts are almost impossible to summarize and readers are urged to review the opinion to learn the details. The bottom line:

The court found (1) there was no agreement between the parties to limit discovery, (2) Hyundai falsely responded to Magaña’s request for production and interrogatories, (3) Magaña was substantially prejudiced in preparing for trial, and (4) evidence was spoiled and forever lost. The trial court considered lesser sanctions but found that the only suitable remedy under the circumstances was a default judgment. Hyundai then appealed.

November 25, 2009

AAP Issues Expert Witness Policy

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

The American Academy of Pediatrics has issued a Policy Statement titled "Guidelines for Expert Testimony in Medical Malpractice Litigation.

After reviewing the role of the expert witness in medical malpractice litigation, the Guidelines begin the "recommendations" section of the paper with this statement:

The AAP recognizes that physicians have the professional, ethical, and legal duty to testify as called on in a court of law in accordance with their expertise. Physicians serving as expert witnesses have an obligation to present complete and unbiased information with which the trier of fact can ascertain whether the defendant was medically negligent and whether, as a result, the plaintiff suffered compensable

November 24, 2009

Sources for Closing Argument Stories

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

The Winning Trial Advocacy Tips blog has a great post titled "Sources for Closing Argument Stories." The post identifies nine different sources for stories that can be used in closing arguments.

Here is brief excerpt:

1. Aesop’s Fables. Aesop’s Fables contains dozens of valuable themes for use in your next trial. By weaving these fables into your closing argument, you’ll help jurors immediately understand the underlying values of your arguments and see why your client deserves to win. The Tale of the Sour Grapes, the Tale of the Lioness and the Vixen, the Tale of the Wolf in Sheep’s Clothing — these stories will not only educate your jurors, they’ll also entertain them.

November 22, 2009

New Medical Malpractice Case Filing Statistics

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

Here is the most up-to-date data on medical malpractice case filings in Tennessee.

Regular readers know that effective October 1, 2008 the General Assembly imposed significant restrictions on patients who want to file a medical malpractice suits. The new law, which was modified again effective July 1, 2009, requires pre-suit notice and the filing of a certificate of good faith.

For the 12-month period ending September 30, 2008, 644 medical malpractice lawsuits were filed in Tennessee. A whooping 140 of those were filed in September 2008 as lawyers filed suits to avoid the burden and risks of filing cases under the new law. If September 2008 were an average month, one would have expected only 45 cases to have been filed.

November 20, 2009

“Old Warriors”

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

Gary Gwilliam from California has written a very interesting article called "Old Warriers" for Plaintiff Magazine. Read the article here.