Day on Torts

July 6, 2009

A Tort Lawyer Looks at the Death of Steve McNair UPDATE NO. 2

Nashville is mourning the death of Steve McNair, former quarterback of the Tennessee Titans.

McNair was murdered during the early morning hours of Saturday, July 4. It is not completely certain who murdered him, but news reports indicate that the police are not looking for suspects and appear to be exploring whether McNair’s 20-year old girlfriend, Sahel Kazemi, killed McNair and then shot herself in the head. Apparently, the gun was found under Kazemi’s body.

USA Today has reported that the handgun recovered at the scene was recently purchased by Kazemi. The Tennessean has a similar story. Federal law prohibits those under 21 from purchasing a handgun from a licensed dealer. The identity of the gun seller has not been released to the public (if it is even known).

July 4, 2009

Off Topic – Palin Resigns

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

Advice to Governor Mark Sanford: Remember the words of Elmer Fudd. "Shhh. Be vewy, vewy quiet."

July 3, 2009

Post-Sales Duties

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

The current Brooklyn Law Review contains this article by Ken Ross and J. David Prince provides an overview of the post-sale duty sections of the Restatement (Third) of Torts: Products Liability.

The article

provides an overview of the Restatement (Third)’s post-sale duty sections. In addition, it discusses relevant case law and the impact of the Restatement (Third) on developing case law. Part II provides a background of the post-sale duty sections of the Restatement (Third). Parts III-IX look back to case law prior to the Restatement (Third) and analyze how courts at that time dealt with post-sale duty issues including negligence standards, post-sale knowledge, defect timing questions, identification of product users, the duty to inform of safety improvements, and the duty to recall. Part X examines case law decisions that post-date the Restatement (Third)’s drafting, divided according to whether the court accepted, rejected, or adopted some variation of the Restatement sections. And lastly, Part XI provides a brief discussion of regulatory post-sale duties.

July 3, 2009

Article about Requirements for Pleading Facts in Complaints

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

Last fall I wrote about the new standard for pleading in federal court announced in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Now, a new article by Andrée Sophia Blumstein appearing in the July 2008 edition of the Tennessee Bar Journal studies Twombly in more detail and comments on the decision in Ashcroft v. Iqbal, 129 S.Ct. 1937; 2009 U.S. Lexis 3472 (May 18, 2009), a recent decision that sheds more light on Twombly.

Andrée explains that in Twombly the United States Supreme Court held that

to survive a motion to dismiss a complaint must contain ‘enough facts to state a claim to relief that is plausible’ and must suggest a ‘right to relief above a speculative level.’ ‘Labels and conclusions,’naked assertion[s]’ without ‘ further factual enhancement,’ or ‘a formulaic recitation’ of the elements of a cause of action will not survive a motion to dismiss.

July 2, 2009

Maxwell Strikes Back

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

Maxwell Kennerly’s Litigation and Trial blog is a must-read for lawyers who practice civil litigation of almost any type. His posts are timely, thoughtful, and relevant.

Take this post, "’How Other Countries Judge [Medical] Malpractice,’" By A Law Professor Who Doesn’t Know Medical Malpractice Law", in which Maxwell appropriately blasts an editorial by a torts professor who needs a reality check.

The author of the editorial, Richard A. Epstein, has been a law professor since he finished law school at Yale in 1968. He is almost certainly a very bright man. But, based on his understanding of the law, he would have accepted each of the ten or fifteen potential medical malpractice cases I will turn down this week.. And by the Summer of 2011 he would have been broke. Flat broke. Or he would have rejected every case in which he thought the defendant should not be held responsible for her conduct because the defendant would say it was an honest mistake. This mindset would cause him to reject all cases, because that defense is asserted in every case.

July 1, 2009

New Look

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

Technical glitches added a couple days to the process, but Rob and the folks at LexBlog completed the transition to the new format yesterday. I hope you enjoy it.

July 1, 2009

Article on the New Medical Malpractice Notice and Certificate of Good Faith Legislation

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

My article on the new medical malpractice notice and certificate of good faith legislation (which goes into effect today, July 1) made the cover of the July edition of the Tennessee Bar Journal. Here is the article.

Anyone who practices in the field of medical negligence needs to become familiar with this legislation. This article will give you an easy way to get up to speed on this new law.

July 1, 2009

GM Will Reman Liable for Future Products Claims

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

The New York Times reports that General Motors wil not be let off the hook for future products liability claims when it emerges from bankruptcy.

June 30, 2009

Closing Argument Requires Reversal

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

The United States Court of Appeals for the Tenth Circuit has reversed a $2.4 million jury verdict for the plaintiff because of misconduct by plaintiff’s counsel during closing argument.

In the words of the Court: "We are compelled to reverse and remand for a new trial because of pervasive and improper remarks by Mr. Whittenburg’s counsel in closing argument to the jury. Counsel spent the bulk of his argument placing before the jury fictitious admissions never uttered by defendants and launching vituperative and unprovoked attacks on defendants and their counsel."

The offending argument, an imaginary letter that the defendant sent to the plaintiff’s children, is fully set forth in the opinion.

June 29, 2009

John, Where Have You Been?

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

Nowhere. Nowhere different, anyway. But I have not been blogging because, as you can see, the look of my blog has been changed with the assistance of the great folks at Lexblog. The transfer of information and the final set-up on the blog takes a couple days, meaning that I could not post any material whatsoever.

This is the first change to the look of the blog in the 52+ months of its life. It was overdue.

I hope you enjoy the new look and that you will keep visiting. The daily visits to this site continue to grow and I hope that the information shared here continues to assist you in the representation of your clients.