Day on Torts

November 1, 2007

Pizza Contaminated with E-coli

General Mills Operations, a Wellston, Ohio, establishment, is voluntarily recalling approximately 3.3 million pounds of frozen meat pizza products because they may be contaminated with E. coli and may be linked to an outbreak of E. coli O157:H7 illnesses, the U.S. Department of Agriculture’s Food Safety and Inspection Service announced today. Eight cases have been reported in Tennessee.

The products involved include the following:

10.2-ounce packages of "Totino’s The Original Crisp Crust Party Pizza Pepperoni."

October 31, 2007

New Book

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

This is an update on my new book, Day on Torts: A Handbook for Tennessee Tort Lawyers.

The book has been printed and is being shipped today from Florida. I will have it Friday afternoon. I already have orders for the book and will start shipping on Monday.

The new website, wwwdayontortsbook.com, will up and running on Thursday, November 1, 2007. The book can be ordered on this web site. You can also see a Table of Contents and sample chapter at the site.

October 29, 2007

The Price of Not Playing By the Rules

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

The risks of pushing through the envelope at trial are discussed in this opinion from the Ohio Supreme Court:

"In addition to the excessive damages given under the influence of passion or prejudice, the trial court detailed the misconduct of McLeod’s counsel. Civ.R. 59(A)(2). The court described counsel’s conduct as “discourteous” and “theatrical,” including “constant interruption of opposing counsel without bothering to object and obtain a ruling” so that he could “convey to the jury his own idea of what the witness should be saying, thus testifying for the witness, rather then [sic] making a genuine and valid objection to the question.” These interruptions, for example, included statements such as “This is all made up,” and “where did he come up with that, Judge?” and were asserted with no accompanying objection. This type of conduct became so prevalent that the trial
judge admonished counsel during a conference outside the presence of the jury."

…

October 25, 2007

Getting Emails into Evidence

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

You have the smoking gun email. Now, what do you do with it?

The law of discovery, good old fashioned hard work and a little luck can lead to fantastic evidence. But great evidence in your briefcase doesn’t win cases at trial – you have to know how to get that evidence before the factfinder.

This article from www.law.com addresses how to get emails into evidence.

October 22, 2007

Who Says The Law Cannot Be Fun?

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

A judge responds in verse to a claim from a prisoner that he was not provided with a proper diet. The prisoner included a hard-boiled egg as an exhibit.

Thanks to Trial Ad Notes for informing me of the Order.

October 20, 2007

Hail Mary Pass?

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

Pacman Jones, a true embarrassment to Nashville, the Titans, the NFL, and his family, has been sued for his alleged misconduct in Las Vegas which is said to have resulted in the paralysis of a man. I do not pretend to know the facts, do not want to take one second of my life to learn what they are, and therefore will not offer an opinion as to the merits of that case.

The lawyer for the plaintiff has also sued the Titans and the NFL for the incident. According to the Tennessean, "'[t]he fact that the NFL and the Titans did not punish Adam ‘Pacman’ Jones until after Tommy was paralyzed is a proximate cause of Tommy’s injuries,’ attorney Matthew Dushoff said before a news conference in suburban Las Vegas."

The incident did not arise at a football field. Or a team party. Or a locker room. It happened at a strip joint. In the off season.

October 18, 2007

New Made-Whole Decision

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

The Tennessee Supreme Court has released its opinion in Health Cost Controls, Inc. v. Gifford, No. W2005-01381-SC-R11-CV (Tenn. S. Ct. Oct. 17, 2007). If the style of this case sounds you familiar you are not losing your mind – this case was before the Supreme Court on the made-whole four years ago earlier.

This time the case was before the court on the issue of whether the plaintiff was made-whole. The Supreme Court said this about the responsibilities of lawyers and judges in resolving this important issue in any particular case:

Trial courts should support their made-whole determinations with specific findings of fact regarding the monetary value of the injured party’s recovery from all sources and the monetary value of the injured party’s total damages. Furthermore, trial courts should make specific findings as to the value of each separate element of an injured party’s damages. Finally, if the trial court finds that the injured party has been made whole, reimbursement should be awarded to the insurer only to the extent that the injured party’s total recovery exceeds the injured party’s total damages. These requirements are necessary to ensure that the made-whole doctrine is consistently applied and to facilitate appellate review of made-whole determinations.

October 15, 2007

Action by Servicemen Against Contractor

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

I know you remember the Feres doctrine. The Feres doctrine comes from the decision in Feres v. United States, 71 S.Ct. 153 (1950) and provides that soldiers cannot sue the government for injuries that they incur as part of their military service. Not surprisingly, the doctrine has been asserted by government contractors who do work for the military and who seek immunity for their actions.

In McMahon v. Presidential Airways, Inc., No. 06-15303 (llth Cir. Oct 5, 2007) the widows of three soldiers who died in airplane crash in Afghanistan sued the entities that owned an operated the plane. Feres was rasied as a defense, but it was not the sole defense. Here is the table of contents for the 72-page opinion:

I. Derivative Feres immunity

October 12, 2007

Causation in Legal Malpractice Cases

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

Negligence without causation is like a biscuit without country ham (or blackberry jam).

Now, I’m not so sure that juries pay as much attention to the concept as lawyers and judges, but causation is an element of every cause of action in the tort world.

This decision out of Michigan reminds us that causation must be proved in a legal malpractice case. The lawyer blew the deadline for filing a notice of appeal – clearly negligence – but was not found liable as a matter of law because the appeal was denied on the merits. Read the decision in McCabe vs. Miller & Associates, LLP, No. 275498 (MI. Ct. App. October 9, 2007) here.

October 10, 2007

Tort Law Tidbit

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

Did you know that there is a cause of action for malicious harrassment in Tennessee?

The malicious harassment statute, Tennessee Code Annotated, section 4-21-701, provides: "(a) There is hereby created a civil cause of action for malicious harassment. (b) A person may be liable to the victim of malicious harassment for both special and general damages, including, but not limited to, damages for emotional distress, reasonable attorney’s fees and costs, and punitive damages." Tenn. Code Ann. § 4-21-701 (1998).

The elements of the tort created by this statute were outlined by the Tennessee Supreme Court in Washington v. Robertson County: