Day on Torts

July 9, 2007

More on Robert Bork

i wrote several weeks ago about the lawsuit Robert Bork filed against the Yale Club. I mentioned that the some issues I had with the suit, including the request for punitive damages.

Eric Turkewitz wrote a much better post than I. As a New York personal injury lawyer, he wrote what was wrong with the complaint filed on behalf of Judge Bork.

The original complaint has been amended, and it still does not pass muster in Eric’s mind. Here is his latest post that explains what was wrong with the original complaint and what the amended complaint missed.

June 30, 2007

Starburst Candy Lawsuit

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

You have undoubtedly heard about the lawsuit that was filed that claims that Starbursts are too chewy and caused an injury to a woman’s mouth.

The plaintiff’s lawyer is Brian Muawad from St. Clair Shores, Michigan. He and his brother hold themselves out as competent in " Personal Injury, Auto Accidents, Medical Malpractice, Slip and Fall , Worker’s Compensation, Business Litigation, Criminal Law, Real Estate, Business Transactions, Business Sales, Liquor License, Lemon Law, Credit Reporting Problems, and Other areas of Law." (There is no indication if by "other areas of the law" Brian includes mergers and acquisition, international tax, oil and gas, and entertainment law. ) He urges the public to "[c]all now for a free consultation to get the most value for your case." See his advertisement here (go to Page 12). I cannot find a website for their firm.

Brian is not listed as a lawyer http://www.martindale.com/ and therefore the rating of his ability by his peers is unknown. He is a member of the Arab American Bar Association but, despite his claimed ability to handle tort cases for plaintiffs his name does not appear as a member of ATLA (now AAJ) (at least of the date of publication of the 2006-07 membership directory). (To be sure, it only takes a law license and check to belong to AAJ. AAJ membership is not a sign of competence. AAJ membership is a sign that lawyer cares enough about his clients and tort practice that he will financially contribute to an organization dedicated to preserving the civil justice system and improving the competence of its members.) He is a member of the Michigan Bar Association but the names of members of the Michigan Trial Lawyers Association are not available to the public so I do not know if he is a member of that organization. If the MBA and the MTLA are like the TBA and TTLA one needs a law license and check to join. Once again, competence over and above the ability to get a law license is not required.

June 29, 2007

Court Imposes Duty to Aid Injured Man

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

You know the general rule: absent a special relationship, one person does not have a duty to come to the aid of another. You can see someone drowning, calling out for help, and simply walk by listening to your Ipod and taking a another lick of your Maggie Moo’s ice cream cone. These is true even if you are a world-champion swimmer trained in life-saving.

The Superior Court, Appellate Division, of New Jersey recently faced an issue of whether two passengers in a car had a duty to aid a motorcycle rider who had been hit by the intoxicated driver of their car who was either unwilling or unable to come to the motorcyclist’s aid. The three men stopped after the incident, saw the injured man, and left the scene without offering or calling for assistance. (The three had cell phones with them.) The driver’s car broke down shortly thereafter, and the passengers fled the scene leaving the driver behind waiting for his girlfriend to pick him up. The passengers told the driver not to tell anyone that they had been present. The motorcyclist was left on the road, was hit by a car and died.

The trial judge dismissed a case brought against the auto passenger’s by the administrator of the motorcyclist’s estate. The Appellate Division reversed, in a fascinating opinion that takes the reader back to Torts 101. A brief excerpt:

June 27, 2007

Photographs of “Minor” Crashes Admissible Without Expert Testimony

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

Walk into any courtroom in the state in any given week and there is a one-day trial underway in a soft tissue injury case. A defense lawyer is standing before the jury, waving a photograph of the plaintiff’s vehicle and saying "How can the plaintiff be hurt? The rear bumper of her car was barely dented!"

Can a defense lawyer do that? Can he or she argue that the plaintiff was not hurt because the property damage is minimal? Or does a defendant need expert testimony to make that argument? Indeed, does the defendant need expert testimony to even introduce the photos in such a case (assume no claim for property damage)? How are those photos relevant?

The New Jersey Supreme Court has just ruled that such photos are admissible and that it is permissable for defense counsel to make an argument like the one suggested above. Why?

June 25, 2007

U-Haul Story — “Driving With Rented Risks”

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

The L.A. Times has written a major story on safety problems at U-Haul.

An excerpt: "U-Haul, the nation’s largest provider of rental trailers, says it is "highly conservative" about safety. But a yearlong Times investigation, which included more than 200 interviews and a review of thousands of pages of court records, police reports, consumer complaints and other documents, found that company practices have heightened the risk of towing accidents."

And here is an interesting tidbit: "JOHN ABROMAVAGE, U-Haul’s engineering director, once testified that as a witness for the company in some 200 cases, he had never seen an accident he regarded as U-Haul’s fault."

June 22, 2007

Kentucky Case on Pre-Impact Fear

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

The Kentucky Supreme Court has ruled that damages for pre-impact fear cannot be recovered in a wrongful death case.

The Court said that "The proof of the fear in this case the testimony of a person at the scene of the accident that the decedent’s facial expression showed she saw the accident coming and was terrified-simply underscores the speculative nature of such harm. Mrs. Congleton’s mental distress, if any, simply was caused not by the impact she suffered, but by fear of the impact. Under the impact rule as currently applied in Kentucky, her pre-impact fear and shock cannot serve as the basis of a claim, and any damages for such a claim are not recoverable."

The case is noteworthy because it will eliminate one potential element of damages in the Comair litigation underway in Lexington. It has little relevance for Tennessee lawyers in Tennessee cases because I think our Court would reach a different result on the law. (The subject case was a little short on a factual basis for the damages.)

June 21, 2007

Medical Negligence Article

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

Here is an interesting article titled "Electronic Health Records Raise New Risks of Malpractice Liability."

An excerpt:

"Because more detailed information about patient care or medical decision-making may be included in the EHR than is possible with paper records, plaintiff attorneys may make extensive discovery requests for "relevant" electronic information in medical malpractice litigation. For example, integrated EHRs have the capability to create an electronic traceable path of a patient’s transition through a facility. Physician orders and interventions may be timed and documented automatically. Will such functionality increase the risk of liability in cases alleging physician failure to timely diagnose and treat? Will discovery requests include electronic footprints for relevant patient data that is not part of the facility’s permanent electronic medical records? Will use of EHRs raise the cost of litigation because of the need for expert testimony in the fields of health informatics or health IT? "

June 21, 2007

A Follow-Up Story on “Things Not to Say to a Judge”

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

Here is a follow-up story on my earlier post about a lawyer who indicated that a judge was a few fries short of a Happy Meal.

June 20, 2007

New Legislation on Patient Privacy Rights

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

The TMA hates the Givens and Alsip opinions. The hospitals would prefer they did not exist, but were willing to accept some compromise as opposed to the outright reversal of the decisions sought by the TMA.

This is what the hospitals worked out with the interested parties and the sponsors of the bills:

T.C.A. Sec. 68-11-312 ( a new code section)

June 19, 2007

Rule Changes

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

The General Assembly has approved changes to the Rules of Evidence, the Rules of Civil Procedure, and the Rules of Appellate Procedure.

Perhaps the most significant change for practicing lawyers is the amendment to Rule 15 of the Rules of Civil Procedure, which provides that "For amendments adding defendants pursuant to Tenn. Code Ann. §20-1-119, however, written consent of the adverse party or leave of court is not required."

All changes are effective July 1, 1007.