Day on Torts

June 15, 2009

The T. J. Hooper Case

We all read it in law school, and here it is again. The fascinating opinion by Judge Learned Hand in In re Eastern Transportation Co. (The T.J. Hooper), 60 F.2d 737 (2d Cir. 1932) reminds us that just because just an industry ignores safety practices that are readily available does not mean that due care does not require the practice.

An excerpt:

Indeed in most cases reasonable prudence is in fact common prudence, but strictly it is never its measure. A whole calling may have unduly lagged in the adoption of new and available devices. . . . Courts must in the end say what is required. There are precautions so imperative that even their universal disregard will not excuse their omission.

June 15, 2009

NYT Reports President Is Talking About Restricting Med Mal Suits

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

Here is the article from today’s New York Times.

June 15, 2009

President’s Speech to the AMA

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

Here it is.

An excerpt:

Now, I recognize that it will be hard to make some of these changes if doctors feel like they are constantly looking over their shoulder for fear of lawsuits. Some doctors may feel the need to order more tests and treatments to avoid being legally vulnerable. That’s a real issue. And while I’m not advocating caps on malpractice awards which I believe can be unfair to people who’ve been wrongfully harmed, I do think we need to explore a range of ideas about how to put patient safety first, let doctors focus on practicing medicine, and encourage broader use of evidence-based guidelines. That’s how we can scale back the excessive defensive medicine reinforcing our current system of more treatment rather than better care.

June 12, 2009

Punitive Damages Study

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

The Social Science Research Network has an article available that is of interest to tort lawyers: The Decision to Award Punitive Damages: An Empirical Study. Here is the abstract:

Empirical studies have consistently shown that punitive damages are rarely awarded, with rates of about three to five percent of plaintiff trial wins. Using the 2005 data from the Bureau of Justice Statistics Civil Justice Survey, this article shows that knowing in which cases plaintiffs sought punitive damages transforms the picture of punitive damages. Not accounting for whether punitive damages were sought obscures the meaningful punitive damages rate, the rate of awards in cases in which they were sought, by a factor of nearly 10, and obfuscates a more explicable pattern of awards than has been reported. Punitive damages were surprisingly infrequently sought, with requests found in about 10% of tried cases that plaintiffs won. Punitive damages were awarded in about 30% these trials. Awards were most frequent in cases of intentional tort, with a punitive award rate of over 60%. Greater harm corresponded to a greater probability of an award: the size of the compensatory award was significantly associated with whether punitive damages were awarded, with a rate of approximately 60% for cases with compensatory awards of $1 million or more. Regression models correctly classify about 70% or more of the punitive award request outcomes, Judge-jury differences in the rate of awards exist, with judges awarding punitive damages at a higher rate in personal injury cases and juries awarding them at a higher rate in nonpersonal injury cases. These puzzling adjudicator differences may be a consequence of the routing of different cases to judges and juries.

Thanks for Torts Prof Blog for informing me about the article.

June 12, 2009

UPDATE on Medical Malpractice Notice and Certificate of Good Faith Statute

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

SB 2109 passed the Senate at 11:36 on June 4 and is now on its way to the Governor’s desk. The Bill passed the House (HB2233) in May. UPDATE: The Governor signed the legislation on June 11. Click here for information on the June 15 seminar on this important bill.

The bill dramatically changes the law that came into effect just last October 1, and impacts both the pre-suit notice and the certificate of merit provisions. The effective date of the bill is a little tricky and bears careful study, but the notice provisions come into effect July 1, 2009.

Generally speaking, the law makes it easier to give notice of a potential medical malpractice claim and gives more specifics about what the notice must say. It also requires that the claimant provide a HIPPA-compliant authorization with the notice.

June 11, 2009

Thinking About Contingent Fees

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

Maxwell Kennerly has written an excellent post titled "Contingent Fee Business Lawyers as Venture Capitalists" at his Litigation and Trial blog.

An excerpt:

Day in and day out, the primary thing a contingent fee law firm does is spend lots of money. In addition to all the normal costs of a business (rent, staff, etc.), you have to pay your attorneys salaries which are competitive in the market, even against hourly billing firms, and you have to dump loads of money and time into cases for experts, motions, discovery, trials, appeals and negotiations, none of which earn you a dime until the very end.

June 10, 2009

Invest in Litigation?

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

Yep. That is what Richard Fields is doing. He is the chief executive of Juridica Capital Management, an organization which runs a fund that invests in one side of a lawsuit in exchange for a share of any winnings. The company invests in commercial litigation.

This article in the New York Times reports that a unit of Credit Suisse and Juris Capital have a similar business model, as do several unnamed hedge funds.

Juridica has $200 Million available, with an average investment of $7.5 million.

June 9, 2009

New Tennessee Law Blog

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

There is a new blog in town – the Tennessee Insurance Litigation Blog. The blog is authored by Parks Chastain and Brandon McWherter. Parks typically represents insurance companies and Brandon typically represents policyholders.

Great idea, gentlemen. Good luck.

June 9, 2009

Seminar on New Medical Malpractice Legislation

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

The Tennessee Bar Association is sponsoring a seminar to educate lawyers on the new medical malpractice statute passed by the Senate on June 4, 2008. If signed by the Governor, and there is no reason to believe that he will not sign the bill, the legislation makes major changes in medical malpractice procedural law. The TBA has selected me as the speaker for this program.

The seminar will be webcast at 11:00 CDT on Monday, June 15, 2009.

A portion of the legislation is effective July 1, 2009 , but the transitional issues will be discussed in the seminar. Each provision of the legislation will be discussed in detail. I participated in all of the negotiations concerning this legislation and will provide a history of how the legislation developed.

June 8, 2009

Proposal to Change Tennessee Ethics Rules

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

The Tennessee Bar Association has filed proposed changes to the ethics rules governing the conduct of Tennessee lawyers. The project represents the first effect to change the rules since tan entire new code was adopted in 2002.

Read the petition of the TBA here.

Read the a red-line version here.