Day on Torts

October 9, 2008

SVMIC Rate Increase – NOT

Did you hear about the State Volunteer Mutual Insurance Company rate increase? No, you didn’t – because it didn’t happen.

Typically the media gets a press release from SVMIC saying that insurance is increasing X% and we hear from the TMA that the world is coming to come to an end as a result of it.

This year, nothing. Recall of course that the inflation rate in 2007 was close to 3% and this year it is running over 4%. The health care inflation rate is almost double the normal inflation rate. Thus, is would be reasonable to assume rates would increase every year.

October 6, 2008

E-Discovery Resource

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

Kroll Ontrack has a searchable list of e-discovery cases from around the nation.

To access the list, click here.

September 30, 2008

Electronic Data Recorders

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

Here is an interesting article from Auto Week about new and improved (?) electronic data recorders.

EDRs currently obtain data from airbags, yaw and stability sensors, antilock brakes, traction controllers, throttle controls and engine monitors. They initiate only when sensors indicate that a crash is imminent or has occurred. Some also keep data such as secondary impacts and vehicle roll angle for as much as five seconds after a crash.

However, the new version of the "black boxes," called vehicle status data recorders (VSDRs), run constantly and collect additional data such as wheel and engine speed. Used by Nissan, VSDRs gathers and stores vehicle operating data. Some fear that the information can be used for voiding warranties. Others have privacy concerns.

September 29, 2008

A Handbook for Tennessee Tort Lawyers 2009

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

A Handbook for Tennessee Tort Lawyers 2009 has been sent to the printer.

The 2009 of the book follows the same format as the 2008 version. It has been expanded to include 8 new chapters and 28 new sections on tort law subjects for a total of 262 sections. Each section includes the key language of the leading case on that subject and, as appropriate, citations to other important cases on the subject. Also included is a reference to all opinions released in the last year on tort law organized by chapter and section.

The book also includes the full text of all of the new statutes of interest to Tennessee tort lawyers.

September 22, 2008

Deposition Questions

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

The NITA Blog has a very good post entitled "21 Questions to Consider When Starting A Deposition."

A sample:

7. Are you on any drugs or medications or alcohol that you think will interfere with your ability to answer my questions?

September 22, 2008

Oregon Supreme Court Addresses Expert Testimony in Medical Malpractice Cases

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

The Oregon Supreme Court has released a fascinating opinion on expert testimony.

The Court stated that the Plaintiff

experienced symptoms of pain, swelling, and discoloration in her left hand immediately after injection of a chemical called gadolinium; her pain and the discoloration have continued. At trial, plaintiff proffered the testimony of a medical expert that the gadolinium, instead of going into the vein, went into an area of her hand outside the vein, a circumstance known as "extravasation." As a result, according to the expert, the toxicity of the gadolinium caused both her immediate and her ongoing symptoms. Defendants objected to the expert’s proffered testimony, and the trial court ruled that the testimony did not meet the legal standard for scientific validity. The Court of Appeals affirmed.

September 21, 2008

A Change at the Tennessee Tort Law Letter – And an Announcement

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

After over 13 years,165 editions, and no less than 1500 printed pages, I have resigned from my position as the Editor of the Tennessee Tort Law Letter." The September 2008 edition, mailed a couple days ago, is my final edition.

I will be taking one month off and then will launch a new tort law newsletter in November, 2008. Brandon Bass (who has resigned from his position as Assistant Editor of the TTLL) will be joining me in the effort.

I will share the details on the new newsletter at a later date. For the time being suffice it to say that the new newsletter will be a dramatically different publication and, I hope, one that helps its readers help their clients.

September 19, 2008

Ohio Supreme Court Addresses Value of Services

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

I am Columbus, OH today speaking an Ohio Association for Justice seminar program. The hotel where I am staying is right down the street from the Ohio Supreme Court building. It is appropriate, then, that I write about a new opinion handed down by that court on the issue of damages that may be recovered by a spouse who took off time from work to care for a spouse injured by the negligence of another.

The plaintiff was a financial planner who took off work to care for his injured wife. He sought over $1,000,000 in loss of income. A 5-2 majority of the court rejected his claim for this element of loss, holding instead that he could only recover the economic value of the care as if it had been provided by a non-family member.

To be more precise: "part of the injured spouse’s damages against a defendant can include the fair market value of the home health care provided by the uninjured spouse. Damages are measured not by the lost income of the supporting spouse but by the market value of the services he or she renders."

September 19, 2008

Mississippi Supreme Court Discusses Certificates of Merit in Med Mal Suit

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

The Mississippi Supreme Court accepted review of a case where the plaintiff failed to attach either an attorney’s certificate of consultation, or an expert disclosure in lieu of the certificate, as required by Mississippi Code Annotated Section 11-1-58 (Rev. 2007). The question is whether that fact required a dismissal of the suit as set forth in the statute.

The Court held that "a complaint, otherwise properly filed, may not be dismissed, and need not be amended, simply because the plaintiff failed to attach a certificate or waiver." The basis of the ruling was the seperation of powers between the Legislature and the Court. The Court said:

Section 11-1-58’s requirement that a certificate accompany the filing of the complaint contradicts these provisions of the Mississippi Rules of Civil Procedure. Furthermore, the statutory requirement is totally inconsistent with Rule 8(f)’s requirement that ‘pleadings shall be so construed as to do substantial justice.’

September 17, 2008

Themes for Product Cases

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

Paul Luvera is a highly-regarded trial lawyer from Seattle. His blog has this great post on slogans (read: themes) for trying product liability cases for the plaintiff.