Day on Torts

October 30, 2009

Lawsuit Against Pharmacists For Filling Prescriptions for Known Drug Abuser

On the afternoon of June 4, 2004, a woman named Patricia Copening driving a SUV ran into a delivery-van driver who had pulled over to repair a flat tire on the highway’s shoulder, killing him at the scene. She also hit another man, causing a head and other injuries.

A lawsuit filed by the victims and their families against Wal-Mart, who dispensed a painkiller prescription to Copening, asks whether drugstores must use information at their disposal to protect the public from potentially dangerous customers. State officials had sent letters to 14 pharmacies in the Las Vegas area warning that Copening could be abusing drugs. The letters were issued after a state-ordered prescription audit identified potential drug abusers, including Copening.

According to this story from Wednesday’s Wall Street Journal, Nevada pharmacies have been gathering information about prescription drug use, sending it to the state, and receiving letters from the state advising about potential drug abuse since 1997.

October 29, 2009

Thinking About the Lack of a Duty to Rescue

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

I participated in a panel discussion at a local high school a week or so ago. The attendees were high school students and their parents. The other participants on the panel included a local juvenile court judge, a police officer, and an assistant district attorney.

Some of the questions included the potential liability of parents for furnishing alcohol to minors and various, easy-to-imagine spin-off questions. One question was the liability of an adult who comes upon a drunken minor but did not nothing to furnish alcohol to the minor, did not own or occupy the site where the alcohol was given to the minor, and had no relationship with the minor. If the adult simply ignores the minor and watches him get into a car and drive away, does the adult have any liability if the minor dies in a one-car wreck a block down the road?

This is a moral and a legal question – and I informed the group that I would leave the moral question to" pillow test." Legally, there is no liability on the adult because there is no duty on the adult to rescue another from the potential for harm or to otherwise come to the aid of a stranger. We had a nice discussion about it, and also about the consequences of deciding to lend aid under such circumstances.

October 29, 2009

Death of John O’Quinn

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

Houston trial lawyer John O’Quinn died in a motor vehicle wreck earlier today. This article provides a lot of information about this very interesting man.

October 28, 2009

Another Sanction for Misconduct

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

The Star-Tribune from Minneapolis – St. Paul reports that a state court judge in Minnesota imposed a $4 million sanction against Burlington Northern Santa Fe Corp. for engaging in a "staggering" pattern of misconduct aimed at covering up its role in the deaths of four young people whose car collided with a train largely because a crossing gate wasn’t working properly.

The paper reports that the railroad began destroying evidence within minutes of the incident.

The trial judge, Ellen Maas, found that the railroad company lost or fabricated evidence, interfered with the families’ investigation of the accident and "knowingly advanced lies, misleading facts and/or misrepresentations" in order to conceal the truth and "has attempted to explain away each instance of misconduct as either an innocent mistake or a mere coincidence. … "

October 27, 2009

Putting Medical Malpractice Insurance Costs in Perspective

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

An article by Robert Heath in Monday’s Washington Post gives us some of the financial details of the practice of Dr. Robert Hardi, a D.C. gastroenterologist.

Dr. Hardi has about 4500 patient visits per year and performs about 1150 procedures. He works about 47 weeks per year.

Thus, Dr. Hardi has about 5650 patient contacts per year, and each of those contacts presents an opportunity for a claim to be asserted against him (because each presents the possibility of making an error or omission that could result in injury). The cost of Dr. Hardi’s malpractice insurance is $45,000 per year. The amount of his insurance coverage was not disclosed in the article. The cost of his malpractice insurance per patient contact is $7.96.

October 26, 2009

Handling a Products Liability Case on the Fly

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

I must confess I have never spent a lot of time thinking about men’s underwear. Thus, it never crossed my mind that a products liability case could arise from men’s underwear of any type.

Women’s underwear are different. I am not saying I spend much time thinking about that subject either, but I know of at least one products case that arose because of claimed defect in a thong intended to worn by a woman.

But Albert Freed had a problem with his underwear. He thought that his Hanes underware was defectively designed or manufactured because it "gaped open and acted like a sandbelt on [his] privates." Apparently, this was not a pleasant sensation and allegedly caused an injury.

October 26, 2009

New Time Periods in Federal Court

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

A recent post described proposed changes to the Local Rules of Court for the United States District Court for the Middle District of Tennessee. For the most part, the rule changes addressed changes in the time periods for action required under the rules.

This post from Drug and Device Law that explains the proposed changes to the Federal Rules of Civil Procedure. Here is an excerpt:

The new theme is "days are days." All days are to be counted. If a deadline falls on a weekend day, a federal holiday, or a day when filing is impossible because the Clerk’s office is closed or inaccessible, then the deadline falls to the next available day. Deadlines shorter than 30 days have been changed to multiples of seven (7) days, so that more often than not, the deadline will fall on a weekday. Other changes affect how to tell when the last day of a period ends, how to compute hourly time periods, how to calculate a time period when the clerk’s office is inaccessible, and how to compute backward-counted periods that end on a weekend or holiday. The rules also clarify the long held understanding that when e-filing is involved, a due date runs until midnight in the time zone of that court’s clerk’s office.

October 23, 2009

Sloppy Citation Costs Lawyer Money

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

The Wisconsin Supreme Court has fined a lawyer $100 for providing an improper citation to a court case. The fine was imposed in a footnote in 2008 unpublished opinion, Espitia v. Fouche. Here is the footnote:

Counsel for Espitia cites to an unpublished case assertedly upholding a stipulated damages clause due to the difficulty of ascertaining "the exact amount of income certain vending machines would produce." The cite provided is "Buellesbach v. Roob, 2005 AP 160 (Ct.App.Dist.I)." Buellesbach indeed is unpublished but it has nothing to do with liquidated damage clauses or vending machines; it is a misrepresentation case brought by newlyweds against a wedding photographer. Also, "2005 AP 160" is the docket number, which we discovered only after reaching a dead end at 2005 WI App 160, 285 Wis.2d 472, 702 N.W.2d 433. At last we located the unpublished case that addresses the subject matter for which counsel cited Buellesbach: Stansfield Vending, Inc. v. Osseo Truck Travel Plaza, LLC, 2003 WI App 201, 267 Wis.2d 280, 670 N.W.2d 558. Different name, different citation, different district (District IV) but, as promised, unpublished. It is a violation of Wis. Stat. Rule 809.19(1)(e) to provide citations which do not conform to the Uniform System of Citation and of Wis. Stat. Rule 809.23(3) to cite to unpublished opinions. One reason may be that they can be time-consuming to locate. A $100 penalty is imposed against Espitia’s counsel. See Hagen v. Gulrud, 151 Wis.2d 1, 8, 442 N.W.2d 570 (Ct.App.1989).

We have a bigger problem in Tennessee. I was having lunch with an appellate court judge recently and we were discussing how West (or whatever its name is now) is taking briefs written by lawyers and selling them to other lawyers. The judge remarked that courts were seeing one of the effects of this, with lawyers cutting and pasting from the briefs of other lawyers who had written on the same area of law. How did the judges know the material had been written by another lawyer? The "new" brief still contained the names of the parties from the "old" brief.

October 22, 2009

New Medical Malpractice Filing Numbers

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

Every day, more than 5 Tennesseans die as a result of medical malpractice.

How do I know such a thing? Simple math. The Institute of Medicine has reported that 98,000 people a year die from medical malpractice. Think about it: the death rate from medical malpractice is the equivalent of a large commercial airline crash every day that results in the death of 268 people.

The USA has about 300,000,000 people. Tennessee has about 6,000,000 citizens, or 2% of the total. Assuming that the rate of medical errors that result in death in Tennessee is no better and no worse than anywhere else in the country, 1960 Tennesseans die every year as a result of medical malpractice (2% x 98,000). And that works out to 163 people per month. That is the equivalent of a commuter jet crash in Tennessee every week that results in the death of about 40 people.

October 22, 2009

Liability in the Sweat Lodge Case

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

By now most of us have heard of the Sweat Lodge incident.

The Huffington Post article says that "[m]ore than 50 followers of spiritual guru James Arthur Ray had just endured five strenuous days of fasting, sleep-deprivation and mind-altering breathing exercises [were] into a sweat lodge ceremony" that is said to have resulted in the deaths of three people. The "Spiritual Warrior" event apparently cost $9,000-plus for each participant. One survivor, Beverly Bunn, said that "Ray pushed for participants to go without sleep, enter into altered states of mind through breathing exercises and meditation, compete in a game in which he played God and fast for 36 hours during a vision quest." Bunn also said that "people were vomiting in the stifling heat, gasping for air, and lying lifeless on the sand and gravel floor" in the 415-square-foot sweat lodge. Apparently, people were not forced to stay inside but were highly encouraged. Bunn said "it was all about mind over matter, you’re stronger than your body."

Who is James Arthur Ray? He says he is "an internationally-renowned Personal Success Strategist, Visionary and New York Times Best-Selling Author who has traveled the globe dedicating over two decades of his life to studying the thoughts, actions, and habits of those who create true wealth in every area of their life [who] delivers his practical teachings to hundreds of thousands of individuals and business leaders every year." I confess I never heard of him before this incident, but if his website says he is internationally-renowed I suppose it must be true.