Day on Torts

July 7, 2009

West Virginia Rejects Claim That Ford Should Have Used Laminated Glass in Side Window

The Supreme Court of Appeals of West Virginia has ruled that a products liability claim was preempted by FMVSS 205, a safety standard that it says permits vehicle manufacturers to make a choice between tempered glass and laminated glass in side windows.

The court felt compelled to rely on Geier v. American Honda Motor Co., Inc., 529 U.S. 861 (2000), "the guiding law of the land," even though it felt that the decision was "flawed because it requires courts to look beyond the properly-enacted federal statute or law and divine an agency’s intent from extraneous materials to determine the preemptive effect of a regulation."

The bottom line: "the NHTSA gave manufacturers the option to choose to install either tempered glass or laminated glass in side windows of vehicles in FMVSS 205, permitting the plaintiff to proceed with a state tort action would foreclose that choice and would interfere with federal policy."

July 7, 2009

Medical Research, Anyone?

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

Here is a list of medical sites created by from Exposing Deceptive Defense Doctors by Dorothy Sims as posted here.

*www.nlm.nih.gov/

This is the National Library of Medicine/National Institutes of Health, with a great search site.

July 6, 2009

Georgia Supreme Court Reverses Med Mal Verdict Because of Error in Jury Instructions

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

Georgia has a pattern jury instruction called the "hindsight" instruction. It provides as follows:

In a medical malpractice action, a defendant cannot be found negligent on the basis of an assessment of a patient’s condition that only later, in hindsight, proves to be incorrect as long as the initial assessment was made in accordance with reasonable standards of medical care. In other words, the concept of negligence does not include hindsight. Negligence consists of not foreseeing and guarding against that which is probable and likely to happen, not against that which is only remotely and slightly possible.

In Smith v. Finch , S08G1845 (Ga. June 29, 2009) the Georgia Supreme Court reversed a jury verdict for the defense and held that this instruction should not have been given. The court said as follows:

July 6, 2009

GM Allowed to Escape Responsibility to Victims in Pending Tort Cases

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

Here is a copy of the court order in the GM bankruptcy that makes tort victims stand in line with other general creditors of the company.

The discussion of successor liability issues begins on Page 50. Here is key language from Page 60 and 61:

This Court fully understands the circumstances of tort victims, and the fact that if they prevail in litigation and cannot look to New GM as an additional source of recovery, they may recover only modest amounts on any allowed claims—if, as is possible, they do not have other defendants who can also pay. But the law in this Circuit and District is clear; the Court will permit GM’s assets to pass to the purchaser free and clear of successor liability claims, and in that connection, will issue the requested findings and associated injunction. [Footnotes omitted.]

July 6, 2009

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

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

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.