Day on Torts

February 20, 2008

Short Break

This blog started three years ago this week. There have been 1175 posts totaling millions of words made to it. In the process I have learned in a great deal and I sincerely hope that this blog has helped you represent your clients.

I am taking a break for a couple weeks. I start a medical malpractice wrongful death trial on February 25 and I simply do not have time to post between now and the end of trial.

Trials are, well, trials – they are called that for a reason. Medical malpractice trials are a particular challenge, and medical malpractice trials with multiple defendants that take place out of town are all-consuming. Although I have been involved in the case from the start, Rebecca Blair has taken the lead on case and trial preparation to date. We argued motions in limine ten days ago so for the last three weeks a substantial percentage of my time has been devoted to this case.

February 18, 2008

Expert Witness Article

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

The Federation of Defense and Corporate Counsel has a magazine called the FDCC Quarterly. There are some good articles in the publication, and I think many of you would enjoy an article in the Spring 2007 magazine called "Scientific and Other Expert Testimony: Understand It; Keep It Out; Get It In."

The article is by Robert Kolar, a defense lawyer from Chicago.

This article is based on federal law, but as you know Tennessee’s standard for admissibility of expert testimony is generally more relaxed than that in federal court. Nevertheless, the article presents an insight into the minds of defense counsel on the issue of expert testimony.

February 15, 2008

New Products Liability Decision Released

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

The Tennessee Court of Appeals (Middle Section) has released an opinion in a products liability case. As I have before, such decisions are few and far between and we can learn from everyone of them.

This decision is particularly important because it was authored by Judge (now Justice) Bill Koch. It provides some insight into his views of compensatory and punitive damages.

The case is Duran v. Hyundai Motor America, Inc., No. M2006-00282-COA-R3-CV (Feb. 13, 2008). Read the opinion here.

February 13, 2008

What It Takes To Be A Great Trial Lawyer – Part 8

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

Great Trial Lawyers Understand the Importance of Depositions

Great trial lawyers understand the value of depositions, and whether the deposition is taken personally or the task is delegated to another, go into a deposition with clearly defined goals determined after adequate preparation. The diminishing number of trials means that many cases are won and lost in depositions. Indeed, virtually every deposition affects the value of every case.

Yet, a great trial lawyer need not take all of the depositions in any case or any of the depositions in a given case. This is a task that can be delegated to another comptent lawyer.

February 12, 2008

Off Topic – Rain on a Tin Roof

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

We live in a log cabin in the woods in Williamson County. This morning we are blessed with a strong rain – weather that we haven’t seen much of in the last year.

Other than frequent sightings of deer and turkeys, one of the joys of living here is the sound of rain pelting the tin roof. I love to sit on the front porch, drink strong coffee, and listen to the rain. It is little cool to sit outside this morning but the rain is hard enough that I can enjoy the sound from inside our home.

Rain, Blue Mountain coffee, and thoughts of superceding cause. It is going to be a great day.

February 8, 2008

“Other Similar Incident” Evidence

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

There are relatively few products liability cases filed in Tennessee, very few actually tried, and even fewer appealed.

So, when a products case hits the appellate courts, we all learn. And when evidence issues are discussed in a product liability opinion there is cause for absolute jubilation.

Sparks v. Mena held that "the trial court erred in excluding evidence of other similar incidents involving actual or potential surgical injuries with the same model of device, and … the trial court erred in excluding the testimony of plaintiff’s expert witness."

February 4, 2008

What It Takes to Be A Great Trial Lawyer – Part 7

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

Great Trial Lawyers Learn the Facts.

I was in a deposition several months ago in a case that involves an intersection wreck. There are several different plaintiffs represented by several different lawyers, several defendants, and counsel for a UM carrier.

My conversation with one of the lawyers caused me to wonder to ask if he had ever been to the intersection where the wreck occurred. I asked him if he had. He had not.

January 31, 2008

The “What It Takes to be a Great Trial Lawyer” Series

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

Here are the opening paragraphs of my December 15, 2007 post that gave rise to a series of posts that has garnered a good deal of attention:

I participated in a panel discussion at for the Young Lawyers Division of the Tennessee Bar Association on Friday and was asked this question: what does it take to be a great litigator?

I knew in advance that I would be asked that question and gave the matter a good deal of thought driving from Atlanta to Nashville Friday morning. My response seemed to go over pretty well so I thought that I would share the thoughts on this blog.

January 30, 2008

Lose the Evidence – Lose the Case

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

The Tennessee Court of Appeals (Middle Section) has ruled that "trial court has the discretion to sanction a party by dismissal of its case where the party’s destruction of evidence severely prejudices an adverse party’s defense irrespective of whether the destruction was inadvertent or intentional."

The Court quoted with approval this language from a court in Michigan: "In cases involving the loss or destruction of evidence, a court must be able to make such rulings as necessary to promote fairness and justice. To deny the courts the power to sanction a party in such circumstances would only encourage unscrupulous parties to destroy damaging evidence before a court order has been issued. Furthermore, regardless of whether evidence is lost as the result of a deliberate act
or simple negligence, the other party is unfairly prejudiced because it is unable to challenge or respond to the evidence."

Presumably, a court could strike an answer and enter a judgment for the plaintiff if a defendant’s "destruction of evidence severely prejudices an adverse party’s defense irrespective of whether the destruction was inadvertent or intentional."

January 29, 2008

The State of the State Address

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

Governor Bredesen gave his State of the State address last night . He did not say that he had any desire to limit the right to trial by jury for any citizen against any defendant in any industry.

This comment scares the nursing homes: "My job is to open more doors to alternatives here in Tennessee. If you want to stay in your home, if it makes sense to do so, this is the year we’re going to start making it easier." Tennessee spends about $1B per year of its Medicaid money on nursing home care; even a 10% shift will have an impact on the cash flow on the facilities.

The facilities always argue that they lose money on Medicaid patients. Not true. It is true that Medicaid payments may not always cover the average cost of keeping a patient in a nursing home. The government’s goal, however, is for the payments to cover the marginal costs associated with keeping the Medicaid patients in the facilities and the payments usually do so.