Day on Torts

July 2, 2009

Maxwell Strikes Back

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.

June 29, 2009

“Other Bad Act” Evidence in Medical Malpractice Cases

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

Sometimes a lawyer representing a patient in a medical malpractice trial may want to introduce evidence of "bad acts" of a health care provider or a provider’s expert witness. This article from the Medical Malpractice Newsletter published by the Hinshaw & Culbertson tells us how the defense is going to attempt to keep that information from the jury.

June 24, 2009

Study on Impact of Chrysler and GM Bankruptcy on Future Wreck Victims

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

A report from Safety Research & Strategies called "Public Safety at Risk: Bankruptcies Leave Legacy of Defects, Injuries and Deaths" projects what will happen now that there will be 30 million GM and 10 million Chrysler products still on the road after bankruptcy agreements cancel the ability for accident victims to seek compensation by suing the companies.

The verdict? "More than 3,400 U.S. citizens could be killed or injured in the next 12 months by defective cars that are immune from lawsuits." The estimate is based on the number of claims against the manufacturers between the 3rd quarter of 2003 and the 4th quarter of 2008.

Read the report here.

June 23, 2009

Luvera on Direct Examination

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

Paul Luvera does it again, this time with a nice post on conducting direct examinations on his blog. Plaintiff Trial Lawyer Tips

An excerpt:

Evidence is like an iceberg. The bottom below the surface may be enormous, but only the tip is can be seen above the water line. That’s how your examination should be framed. Only a small amount of the facts are really significant or persuasive. Concentrate on that twenty percent this is significant and ignore all the rest. Focus your case. Identify the issues that count. Stick with those issues. ignore the rest that is not highly relevant. Use a rifle not a shot gun approach in your examination of witnesses.

June 23, 2009

ACOG Changes FHR Monitoring Guidelines

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

From ACOG’s Press Release:

Refinements of the definitions, classifications, and interpretations of fetal heart rate (FHR) monitoring methods were issued today in new guidelines released by The American College of Obstetricians and Gynecologists (ACOG). The objective of the guidelines is to reduce the inconsistent use of common terminology and the wide variability that sometimes occurs in FHR interpretations. ACOG’s Practice Bulletin, published in the July 2009 issue of Obstetrics & Gynecology, supports the recommendations of the Eunice Kennedy Shriver National Institute of Child and Health Development workshop* on electronic fetal monitoring (EFM) held in April 2008.

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