Day on Torts

September 14, 2007

A Great Post From the Folks at Blog 702

I have told you in the past that I love Blog 702. It is a blog of substance, written by someone who knows what they are talking about and who is willing to share what they know.

The authors of Blog 702 have started a series about the concept of "reasonable degree of medical certainty." Here are the first few paragraphs"

Quite some time ago now, we promised to respond to a Beck & Herrmann post decrying an ALI proposal to abolish any requirement that experts offer their opinions to a “reasonable degree” of medical, professional, or scientific “certainty.” (Call this the “RDC” rule for short.) The ALI proposal would abrogate any RDC requirement and demand only that the expert hold his or her opinion to be more likely true than not — at least in the context of opinions offered to prove causation in tort cases involving physical harm.

September 13, 2007

I Am Alive

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

I did not post for two days in a row and received four inquires about the state of my health.

I am alive.

I am in a middle of finishing a project that I will tell you more about next week. Today I will be consumed with four depositions and a meeting with a new client on what looks like a great products case against an automobile manufacturer. We are also filing two new cases today in Knoxville, a products case in federal court and a road construction / signage negligence case in state court. It has been more than the ordinary flurry of activity at Day & Blair this week, but I am scrambling to get everything done so that I can relax at the Titans-Colts game Sunday afternoon.

September 13, 2007

Off Topic – The Cheating Patriots

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

OK – the Pats got hit with a fine – $250,000 for the team and $500,000 for the coach – for cheating in professional football. They also face a loss of a draft pick or picks, depending on how they finish this season.

It’s not enough.

I want to know if this is an isolated event or, if not, how long have they been cheating. The coach implied that he mis-interpreted the rules. How long has he been running his team under this misunderstanding? Did their misconduct help them win any of the three Super Bowls in the last three years? If so, take the prize money back and pull the rings off the fingers of every coach aware of the practice. And put an asterick next to their name in the record books – *Cheaters.

September 10, 2007

Tough Jury Climate

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

The jury found that the defendant was negligent and that the negligence caused an herniated disk. The disk problem was surgically repaired. The plaintiff used a walker for nine months and now uses a cane. Amount of damages for pain and suffering? Zero.

Motion for new trial? Denied.

The California Court of Appeals reversed, holding that the failure to award damages for pain and suffering meant that the verdict was inadequate as a matter of law.

September 9, 2007

Story from the LA Times

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

The LA Times makes an extraordinary effort here to tell the story of the death of a woman in a local hospital – and how it could have been prevented.

September 7, 2007

Playing by the Rules

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

You may not like the rules. You may think the rules are unfairly applied. But here is a case that makes it clear that (a) the failure to follow the rules can have significant consequences and (b) if you make a mistake it is important not to make matters worse.

Wade v. Soo LIne RR Corp. is a case out of the Seventh Circuit Court of Appeals. The appellate court affirmed dismissal of the plaintiff’s case because of conduct by the plaintiff’s lawyer. Here is a brief summary of the conduct at issue:

Soo Line argued, first, that Brugess and his firm made improper payments to [medical provider] TOS to influence its diagnosis of Wade, and, second, that Wade had tried to conceal these damaging documents and, even after being caught, tried to conceal them again and, when their absence was detected once more, tarried in turning them over. The district court concluded that the money was payment for an independent medical examination rather than a kickback, and while “not per se improper”, was “certainly an unsavory ‘sweetening of the deal.’ ” The court ruled that, although the payments did not themselves merit sanctions, failure to turn over highly relevant documents justified not only dismissal with prejudice but also an order requiring Brugess to pay Soo Line’s fees and costs. In the district court’s view, the dismissal would not hurt Wade, because “[g]iven the documents uncovered by Mohan, the grant of summary judgment for Soo Line is almost a foregone conclusion.”

September 5, 2007

FTCA Discretionary Function Exception

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

It is not just the Tennessee Governmental Tort Liability Act that has a discretionary function exception – the Federal Tort Claims Act has one, too.

This case – Navarette v. United States – discusses the exception and applies it to a case filed after a person fell off of a cliff at a Army Corps of Engineers’ park. The case includes a dissenting opinion, and thus gives you an opportunity to see two different views of the doctrine.

The opinion, released by the 9th Circuit on August 29, 2007, may be read here.

September 4, 2007

Troup v. Fischer Steel Decided

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

The Tennessee Supreme Court decided the Troup case on Friday. Troup is a case involving a third-party tort action arising from an on-the-job injury suffered by the employee of a sub-contractor on a construction site. The Western Section of the Court of Appeals held that it was reversible error not to instruct the jury that the general contractor could be held at fault. The trial judge instructed the jury that it could consider the conduct of the general contractor only if the conduct was the sole cause-in-fact of the plaintiff’s injuries. The basis for the trial judge’s decision was that the general contractor was a statutory employer and thus the issue was controlled by the Synder decision.

The Tennessee Supreme Court agreed with the trial judge and reinstated the jury’s verdict. Here is how Justice Holder’s opinion described and addressed Fischer’s argument:

Fischer’s argument requires an analysis of Tennessee Code Annotated section 50-6-113 (2005), which provides that a principal contractor (i.e., a general contractor) may be liable for injuries to employees of a subcontractor. Under this subsection, Belz, the general contractor, is liable for Troup’s injuries because Troup was injured while working for Jolly, Belz’s subcontractor. In exchange for this exposure to liability under the Workers’ Compensation Law, Belz receives immunity from suit in tort. See Tenn. Code Ann. § 50-6-108 (2005). In addition, if Belz paid compensation to Troup, then Belz would be entitled to a subrogation lien against any judgment Troup received against a third party such as Fischer. See Tenn. Code Ann. § 50-6-112(c)(1) (2005). Fischer, however, argues that Belz did not pay benefits to Troup and therefore does not have a subrogation interest in the instant case. If Belz does not have a subrogation interest, then there is no actual threat that Troup’s recovery will be reduced a second time. Fischer argues that juries may apportion fault to employers when there is not an actual threat of a double reduction of a particular plaintiff’s recovery. We disagree.

August 29, 2007

Learned Intermediary Doctrine

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

Ordinarily, product manufacturers have a duty to make and sell products that are reasonably safe and not defective. If that is not reasonably possible, then the manufacturer has a duty to warn about defects or danger. The learned intermediary doctrine says that drug manufacturers owe no duty to warn consumers about the risks of consuming prescription drugs because the manufacturers can rely on the prescribing physician to do so. Over twenty states follow this doctrine. Tennessee adopted the doctrine in Pittman v. Upjohn Co., 890 S.W.2d 425, 431 (Tenn. 1994)

But that ain’t the law in West Virginia no more. In Johnson & Johnson Corporation v. Karl, No. 33211 (W.Va. June 27, 2007), a majority of the Supreme Court of Appeals said this:

In rejecting the application of the learned intermediary doctrine to drugs that had been the subject of direct-to-consumer advertising, the Supreme Court of New Jersey opined, and we agree, that such advertising obviates each of the premises upon which the doctrine rests:

August 27, 2007

Medical Diagnosis/Code – Acronym Look Up

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

This post is taken from an email sent out by Janabeth Fleming Taylor at Attorney Medical Services:

ICD-9 codes (Think of it as "Diagnosis" Code)

http://www.cdc.gov/nchs/icd9.htm