Day on Torts

October 1, 2009

Juror Research on Google Results in New Trial

A post from the Mass Tort Defense blog highlights a real problem: jurors conducting independent research during trials. Indeed, in the case featured in the post, the juror conducted the research before the trial (after he received his summons to serve as a juror) but shared what he knew during deliberations. The result? A reversal of a defense verdict.

The blog post does a nice job summarizing Russo v. Takata Corp., 2009 WL 2963065 (S.D. 9/16/09). You can read the entire opinion here.

Here is an excerpt from Sean Wajert’s summary:

October 1, 2009

Toyota Recall: Floor Mats Increase Risk of Injury and Death

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

The Toyota Motor Corp. has announced that it will recall 3.8 million vehicles in the United States. The recall affects Toyota models from 2004 – 2010. Specific models affected include 2007-2010 Toyota Camry, 2005-2010 Toyota Avalon, 2004-2009 Toyota Prius, 2005-2010 Tacoma, 2007-2010 Toyota Tundra, 2007-2010 Lexus ES350 and 2006-2010 Lexus IS250 and IS350.

The problem? Toyota says that "[r]ecent events have prompted [it] to take a closer look at the potential for an accelerator pedal to get stuck in the full open position due to an unsecured or incompatible driver’s floor mat. A stuck open accelerator pedal may result in very high vehicle speeds and make it difficult to stop the vehicle, which could cause a crash, serious injury or death."

What should you do if you have one of these vehicles? Remove the floor mat and do not replace it with any other type of floor mat. Owners can also contact Toyota at 1-800-331-4331 and Lexus at 1-800-255-3987 for more information.

October 1, 2009

Los Angeles Times Article Speaks Out About Tort Reform – “The Healthcare Debate’s Frivilous Sideshow”

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

This column from the Business Section of today’s Los Angeles Times attacks the myth that restriction of the rights of patients to hold health care providers responsible for harming patients must be a part of national healthcare reform.

An excerpt:

Every circus needs a sideshow, which must be why every time the issue of rising medical costs gets debated, politicians start clamoring for "tort reform."

September 30, 2009

Rule of the Week – T.R.C.P 8.03

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

There are numerous differences in the state rules of civil procedure and the federal rules of civil procedure. For example, Tennessee Rule 8.03 is different than F.R.C.P. Rule 8(c) because it requires a defendant who pleads an affirmative defense to set forth facts that form the basis of the defense. Here is the text of the rule:

In pleading to a preceding pleading, a party shall set forth affirmatively facts in short and plain terms relied upon to constitute accord and satisfaction, arbitration and award, express assumption of risk, comparative fault (including the identity or description of any other alleged tortfeasors), discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, statute of repose, waiver, workers’ compensation immunity, and any other matter constituting an affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, if justice so requires, shall treat the pleading as if there had been a proper designation. {Emphasis added.}

Why is this important? A defendant cannot simply say "there was insufficiency of service of process" or "I allege the comparative fault of Smith." No, the defendant must go further and set forth the facts that support that defense. Of course, the allegations of those facts can be changed via amendment under Rule 15, but the initial pleading raising the defense must include facts. If not, the court should strike the affirmative defense Rule 12.06 as insufficient.

September 30, 2009

New Tennessee Supreme Court Opinion on Comparative Fault

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

The Tennessee Supreme Court has ruled that a plaintiff who lost a medical malpractice case in federal court was not estopped from pursing a case against a State-employed doctor even though the federal court jury assigned no fault to the doctor, a non-party in the federal court action.

An excerpt:

We have determined that the proceeding in federal court did not provide Ms. Mullins with a full and fair opportunity to litigate her medical negligence claims against Dr. Mejia. It is undisputed that Ms. Mullins could not, as a matter of law, recover monetary damages from either Dr. Mejia or the State in the federal proceedings. Common sense also dictates that it would have been foolhardy for Ms. Mullins to press her claim that Dr. Mejia had been negligent in the federal proceeding because doing so would have diluted the strength of her claims against the remaining defendants and would have profited her little in later proceedings against Dr. Mejia. [Footnotes omitted.]

September 29, 2009

Tennessee Supreme Court Issues Proposed Rules for Public Comment

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

The Tennessee Supreme Court has asked for public comment on proposed changes to the rules of procedure and evidence. The Order asking for public comment can be viewed here.

I serve on the Court’s Advisory Commission on the Rules of Practice and Procedure and I am happy to report that the Court has accepted (at least for purposes of public comment) each of the rule changes proposed by the Commission.

Significant proposed changes to the rules of civil procedure include changes to clarify Rule 3 and 4 concerning the need to serve a summons and complaint promptly after filing of the complaint and issuance of the summons, Rule 5 concerning the electronic service of pleadings, motions and other documents, and Rule 26 concerning the discovery of insurance policy limits. The most significant change to the rules of evidence is new Rule 502 concerning the inadvertent waiver of the privilege.

September 28, 2009

Effective Phone and Video-Conference Depositions

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

Fred Fresard, author of the Litigation Cost Control blog, has written three great posts on the steps to effective phone and video-conference depositions. As Fred explains, "the suitability of a deponent for remote examination depends on the importance of the witness to the ultimate outcome of the case, and the potential length and complexity of their testimony."

Here is a link to his posts: Step 1, Step 2 and Step 3.

September 28, 2009

Washington State Struck the Certificate of Merit – and an Editorial Board Supports the Decision

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

I recently wrote this post about the certificate of merit law struck down by the Washington Supreme Court. Here is an editorial from The Olympian which supports the Court’s decision.

Here is an excerpt:

The justices were right to keep the barrier between the legislative and judicial branches of government. They were equally correct to strike down the barrier to malpractice lawsuits.

September 27, 2009

Letter to the Tennessee Supreme Court

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

The Tennessee Supreme Court has published a proposed re-draft of Rule 27, the rule which addresses the process of judical evaluation. Set forth below is my letter to the Court that addresses one phrase in the proposed rule. NOTE: this letter was written in my individual capacity and not as Chair of the Tennessee Judical Performance Evaluation Commission.

I have read the draft of revised Supreme Court Rule 27 and offer one comment for consideration by the Court. I respectfully request that the Court remove the phrase “In the face of society’s increasing litigiousness…” from the beginning of Section 1.03. This statement is in essence of finding of fact that is unwarranted given what we know about our civil justice system in Tennessee.

Court filings in civil court of almost every type have decreased in Tennessee over the last three years. According to the 2007-08 Annual Statistics Report, total Circuit Court filings in 2005-2006 were 65,039; in 2007-08 they were 62,204. Total Chancery Court filings in 2005-06 were 64,808; in 2007-08 they were 63,256. The number of civil appeals and applications to the Court of Appeals in 2005-06 were 880; in 2007-08 they were 867. Rule 9, 10, and 11 applications to the Supreme Court were 936 in number in 2005-06. In 2007-08 there were a total of 843 of those applications. The data for 2008-09 is not yet publically available.

September 25, 2009

Electric Cars and Changes in Car Accident Litigation

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

As this article in Wednesday’s Washington Post explains, electric cars present a new type of hazard to pedestrians and those with impaired sight: you can’t hear them coming. At low speeds (under 6.2 MPH) the cars can literally sneak up on you and put you at risk of serious injury. One study says that pedestrians face a 50% increased risk of injury from cars that are backing-up and turning.

The article explains that the car manufacturers are thinking about putting artificial noises into these vehicles to reduce the risk of injury. Will we see product liability claims against car manufacturers for making vehicles that are too quiet? Federal legislation is in the works to require manufacturers to equip such cars to have non-visual alerts so that pedestrians can determine the vehicle’s location, motion and speed.

The use of electric cars will make it necessary for lawyers who do car accident cases, particularly those involving pedestrians, to understand what type of motor was in the car. One can argue that a person driving an electric car at low speeds has an increased responsibility to be on the look-out for pedestrians and use the horn to warn them as the car approaches. The lack of engine noise deprives pedestrians of an opportunity to use one of their senses – hearing – to avoid an injury. This is particularly true for pedestrians who are children or who are elderly, or even for adults who are obviously pre-occupied with caring for children, talking on a cell phone, or juggling packages.