Day on Torts

September 18, 2009

President Orders Tort Reform Tests

President Obama announced yesterday that the government will set aside $25 million to support state grants for pilot programs to reduce medical malpractice lawsuits.

ABC News describes the grant process this way:

The Department of Health and Human Services will oversee the process for states to launch and test initiatives that meet the following parameters:
• Put patient safety first and work to reduce preventable injuries;
• Foster better communication between doctors and their patients;
• Ensure that patients are compensated in a fair and timely manner for medical injuries, while also reducing the incidence of frivolous lawsuits; and
• Reduce liability premiums.

September 17, 2009

Georgia Supreme Court Considers Constitutionality of Damages Cap in Medical Malpractice Cases

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

The Georgia Legislature imposed a cap on noneconomic damages in meritorious medical malpractice cases in 2005. The cap is $350,000. In a case tried in Fulton County several years ago, the jury’s verdict exceeded the cap, and the Georgia Supreme Court is now considering whether the cap is constitutional.

According to a press release from the Georgia Trial Lawyers Association and re-printed on the Atlanta Injury Lawyer Blog

“Betty Nestlehutt was the face of her real estate business,” said Malone. “Her face was so horrifically disfigured that she was no longer able to even leave her house. Photographs of her disfigurement are even too gruesome for public distribution. The damage is permanent. Years later she has to wear layers of special makeup to try to give the appearance of normalcy.”

September 17, 2009

Washington Certificate of Merit Struck Down

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

The Washington Supreme Court has struck down the filing of a certificate of merit in medical malpractice cases in Washington state. The certificate is required by RCW 7.70.150.

The opinion said that the statute was unconstitutional because it violated the separation of powers between the Legislature and the Judiciary and it denied medical malpractice victims equal access to the courts.

The Court said that

September 16, 2009

Food Safety News

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

Food Safety News is a new publication sponsored by food safety expert Bill Marler and his firm Marler Clark. It contains information on the food safety issues of the day, whether they pertain to foodborne illness outbreaks, recalled products, or food politics.

The online newspaper has bureaus in Seattle, Denver, and Washington, DC and has invited contributors from government, industry, academia, and consumer groups to share their viewpoints on food safety-related issues.

September 15, 2009

Fosamax Products Liability Case Ends in Mistrial

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

Florida AP reports that a federal judge declared a mistrial last Friday in a trial over whether Merck & Co.’s former blockbuster osteoporosis drug, Fosamax, causes painful jaw bone destruction. The trial, which is the first of many concerning Fosamax, started Aug. 11 in U.S. District Court for the Southern District of New York in Manhattan.

The article summarizes the case this way:

Merck faces lawsuits by roughly 1,500 plaintiffs who allege Fosamax caused the same painful jaw condition that Boles now has – osteonecrosis of the jaw, in which bone tissue dies and detaches from the gum. That causes difficulty with chewing or wearing dentures, among other problems.

September 14, 2009

Scehduling Orders: Deadlines for Alleging Fault Against Nonparties

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

Scheduling orders are wonderful tools that are often overlooked by far too many plaintiff’s lawyers. One of the most important deadlines to put in a scheduling order is a deadline by which the defendant must allege the fault of a person not a party to the action.

Plaintiff’s lawyers have the responsibility to reasonably investigate their case and prepare it for trial. That responsibility includes the identification of at-fault defendants and the development of evidence against those defendants.

Defense lawyers also have the responsibility to reasonably investigate their case and prepare it for trial. That responsibility includes the identification of other at-fault parties, including those who are not a party to the action.

September 14, 2009

Products Liability Case Settled

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

A settlement has been reached in Mohr v. Daimler Chrysler Corp., a products liability case which alleged defects in a 2000 Dodge Caravan.

The Court of Appeals affirmed almost $5,000,000 in compensatory damage awards for the death of the driver and front-seat passenger in the case. The court also affirmed a finding of no liability for injuries suffered by two passengers. The court reduced the punitive damage award from almost $49,000,000 to $13,800,000. A Rule 11 Application was pending before the Tennessee Supreme Court.

With interest, the judgment was over $26,000,000.

September 13, 2009

Justice Programs Seminar 2009

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

Penny White, Joe Riley and I are on the road again this Fall for the 2009 Justice Programs seminars. This two-day, 15-hour is designed for Tennessee lawyers who do civil litigation and who are looking for substantive continuing legal education that will help them better serve their clients.

We will be in Nashville November 19 and 20, Chattanooga on December 3 and 4, Memphis on December 10 and 11, and Knoxville on December 17 and 18.

Here are the topics we are offering this year:

September 12, 2009

Iqbal / Twombly: The Death of Notice Pleading

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

If you don’t understand the title of this post, you will want to log into the seminar that goes by the same name that is sponsored by AAJ.

This seminar, exclusively for plaintiff’s lawyers, will analyze the USSC decisions in these important cases and explain how they will impact your practice. Also discussed will be AAJ’s response to these cases and the steps that are being taken to help the judicial system understand the adverse impact that these decisions have on access to justice.

The teleseminar will be held on Thursday the 17th of September at 1:00 CDT. It will last 90 minutes. Go to the AAJ website to register.

September 11, 2009

Medical Malpractice Reform: Survey Manipulation

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

Max Kennerly has done it again. Read this post on the Litigation and Trial bog which looks behind the allegation that the American people support medical malpractice reform. Before you do, read the following:

DO YOU AGREE OR DISAGREE WITH THIS STATEMENT: As part of any health care reform plan, Congress needs to change the medical malpractice system so that cases are resolved quicker, and more reliably, on behalf of those who are in the right.

Did you say "Yes?" I did.