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.

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.

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  The fine was imposed in a footnote in 2008 unpublished opinion, Espitia v. Fouche.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Counsel for Espitia cites to an unpublished case assertedly upholding a stipulated damages clause due to the difficulty of ascertaining "the exact amount of income certain vending machines would produce."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 Buellesbach indeed is unpublished but it has nothing to do with liquidated damage clauses or vending machines; it is a misrepresentation case brought by newlyweds against a wedding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.

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.

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.

Rule 5 of the Tennessee Rules of Civil Procedure addresses the requirements for the filing and service of papers in civil litigation.  Generally speaking, "every order required by its terms to be served; every pleading subsequent to the original complaint; every paper relating to discovery required to be served on a party; every amendment; every written motion other than one which may be heard ex parte; and, every written notice, appearance, demand, offer of judgment, designation of record on appeal, and similar papers shall be served upon each of the parties."   Service may be by mail hand-delivery, mail or fax.

Earlier this year I proposed a  rule change  to expressly permit service of papers electronically to counsel of record. Here is the text of the proposed rule:

(a) Service upon any attorney may also be made by sending him or her the document in Adobe PDF format to the attorney’s email address, which shall be promptly furnished on request. The sender shall include language in the subject line designed to alert the recipient that a document is being served under this rule. On the date that a document served under this rule is electronically sent to an attorney, the sender shall send by mail, facsimile or hand-delivery a certificate that advises that a document has been transmitted electronically. The certificate shall state the caption of the action; the trial court file number; the title of the transmitted document; the number of pages of the transmitted document (including all exhibits thereto); the sender’s name, address, telephone number and electronic mail address; the electronic mail address of each recipient; and the date and time of the transmission. The certificate shall also include words to this effect: "If you did not receive this document, please contact the sender immediately to receive an electronic or physical copy of this document." The certificate shall be sent to all counsel of record.

Rush Limbaugh is a gifted entertainer who has a propensity to say some pretty ridiculous things. That being said, it is pretty hard to be on the radio for three hours per day and not say some ridiculous things, especially when you have to appease an audience that feeds off of ridiculous things.

On Saturday Rush stepped in it again.  I am an avid reader of the Wall Street Journal, and the Saturday edition included an op-ed piece under Rush’s by-line complaining that he was kicked out of the group that was attempting to buy the St. Louis Rams.  What caused his expulsion?   You guessed it – the liberal media and its normal sources, including Al Sharpton.  Here is what Rush said about Sharpton:

In 1998 Mr. Sharpton was found guilty of defamation and ordered to pay $65,000 for falsely accusing a New York prosecutor of rape in the 1987 Tawana Brawley case. He also played a leading role in the 1991 Crown Heights riot (he called neighborhood Jews "diamond merchants") and 1995 Freddie’s Fashion Mart riot.

Jim McElhaney is one of the best-known trial advocacy professors in the country and his "McElhaney on Litigation" columns in the ABA Journal are read by hundreds of thousands of lawyers each month.

"Give Chronology a Timeout" is in the October, 2009 edition of the ABA Journal  and is a re-print from an article published seven years earlier.   Those of you who attend AAJ seminars will find that it promotes what plaintiff’s lawyers call "storytelling."

A couple of months ago I filed an application  with the American  Board of Professional Liability Attorneys seeking  board certification in medical malpractice cases.  I have been board certified as a civil trial specialist for over 15 years.   In fact, several years ago I served as President of the National Board of Trial Advocacy, the group that certifies civil trial specialists. 

For those of you who want to seek certification, here are the criteria:

  • Be in good standing with your State Bar;
  • Provide a writing sample, either trial memorandum or brief;
  • Pass EBOLA’s written examination in either Legal or Medical Professional Liability;
  • Have spent at least the last 5 years practicing in Legal or Medical Professional Liability;
  • In the last 3 years, have dedicated at least 25% of your professional time to  Medical Professional Liability;
  • In the last 3 years, have completed a minimum of 36 hours of continuing legal education (CALE) in  Medical Professional Liability, or met the CALE requirements of your State Bar, whichever is greater; and
  • Provide 6 references: 3 judges and 3 attorneys who practice in Legal or Medical Professional Liability.

I have to confess I was a little nervous about the examination.  I haven’t taken a test for over 15 years and had no idea what to expect.  I was told it was impossible to study for the test, and that advice was correct.  The test was at least 50% medicine and the breadth of the subjects covered made studying impractical if not impossible..  I received a break – one series of questions dealt with a medical subject on a case I tried in 2008.

 Paul Luvera’s blog, Plaintiff Trial Lawyer Tips,  includes a recent post from Paul titled "My General Views About Plaintiff Trial Work."   I recommend the entire post to you, but here is a excerpt to wet your appetite for the rest:

Most important, our trials must be focused and limited to this approach. We should not just wing it and start talking because we all talk entirely too much and we are very boring people to jurors and judges. This requires discipline. It means we must abandon the idea that we are charming people the jurors and judges enjoy listening to, or that we need to demonstrate to the witness or the judge or our opponent how intelligent we are, or how well informed we are, or even that we are right. The truth is that it requires a lot of self control to try a big picture case because we don’t care what the witness or our opponent thinks of our intellectual ability, our knowledge of the subject matter, etc., etc. All we care about is the impression on the jury. It is the ability to stop making us the center of attention and instead make the jury the center of attention. In the end, it is our ego that drives us to intellectual battles that hurt our case.

 

Contact Information