Day on Torts

November 30, 2009

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

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.

November 19, 2009

The Boss in Nashville

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

There are two reasons there is not a substantive post today. First, I am speaking for three hours at our Justice Programs seminar today and am quite busy.

Second, my wife Joy and I went to see Bruce Springsteen in concert last night in Nashville and I did not get to bed until 12:30 this morning. The Boss gave a great 3-hour show, and included one of my favorite songs, Badlands;

Lights out tonight, trouble in the heartland.
Got a head-on collision, smashin in my guts man.
Im caught in a crossfire that I don’t understand.
But there’s one thing I know for sure girl:
I don’t give a damn for the same old played out scenes
I don’t give a damn for just the in-betweens.
Honey I want the heart, I want the soul, I want control right now.
You better listen to me baby:
Talk about a dream; try to make it real.
You wake up in the night with a fear so real.
You spend your life waiting for a moment that just don’t come.
Well don’t waste your time waiting

November 18, 2009

HealthGrades Sixth Annual Patient Safety in American Hospitals Study

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

HeathGrades studies Medicare patient care in our nation’s hospitals based on 15 indicators of patient safety.

Here are some highlights from the 2009 report representing data from 2005 -2007:

· There were 913,215 total patient safety events among 864,765 Medicare beneficiarieswhich represents 2.3 percent of the nearly 38 million Medicare hospitalizations.

November 17, 2009

Rule of the Week – T.R.E. Rule 104(a)

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

Rule 104 of the Tennessee Rules of Evidence permits the trial judge significant leeway in what may be considered in determining what evidence can be admitted at trial. It provides as follows:

Rule 104. Preliminary questions. —(a) Questions of Admissibility Generally. —Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination the court is not bound by the rules of evidence except those with respect to privileges.

Here is subdivision (b):

November 17, 2009

Motorcoach Safety Action Plan

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

The United States Department of Transportation has adopted the Motorcoach Safety Action Plan following an analysis of safety data. DOT has identified seven priority action items that will have the greatest impact on reducing motorcoach crashes, fatalities and injuries. The items include the following:

Rulemaking concerning electronic on-board recording devices to monitor drivers’ duty hours and manage fatigue.
Rulemaking to prohibit cell phones for drivers.
Rulemaking to require seatbelts.
Development of roof crush performance requirements.
Study stability control systems for motorcoaches.
Enhance oversight of carriers.
Establish minimum knowledge requirements for companies who seek to transport passengers.

Read the entire report here.

November 16, 2009

Party Planning For Tort Lawyers

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

Here are the first few paragraphs of an article that I wrote for the November 2009 edition of the Tennessee Bar Journal titled "Party Planning for Tort Lawyers." Rest the rest of the article (and the footnotes) here.

Litigation in a world of comparative fault and several liability involves party planning. Planning a party is hard work. One essential component of the party planning process is determining who to invite, and party planning by committee presents a whole new set of challenges. Everyone agrees that some people must be at the party. Everyone agrees that certain people should not be there. And, while everyone agrees that the party should occur on the selected date, there is often a disagreement about whether certain people should be extended a party invitation.

In tort litigation, the original host of the party is the plaintiff, and the plaintiff frequently has a good idea of who should be invited to the party. Competent plaintiff’s lawyers also want the party to occur as soon as reasonably possible.