Day on Torts

May 14, 2007

Report From San Francisco

I am in San Francisco attending my first meeting as a member of the American Law Institute.

Yesterday I attended a meeting of the Members Consultative Group for the Restatement Third, Economic Torts and Related Wrongs. We spent two hours debating five black-letter law sections of a draft of the restatement, including a very interesting discussion of the law of damages. Last night there was a dinner for the first-year members at the R & G Lounge and then several of us went to the Buena Vista Cafe for Irish coffee.

This morning we will hear speeches by the Chief Judge of the Ninth Circuit as well as the President and President-Elect of the ABA. Later today there will be floor discussions about changes in the restatements in the fields of software contracts and international intellectual property.

May 11, 2007

What? You Accept Cases on Referral?

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

A young lawyer called me with a question the other day. He was looking at a case that required a significant amount of experience to handle it appropriately, and was clearly struggling. He wanted to keep the case (it had tremendous potential), but I could hear during several moments of silence in the conversation that he knew he lacked the ability to handle it the way he knew it should be handled.

I finally did something I had not done in years – I asked him why he didn’t get someone to work with him on the case, to refer it to a more experienced lawyer. He said, "Can you do that?" and then "how does that work?"

I must say I was surprised. I started practicing law in 1981 with a fantastic lawyer, John T. Conners, Jr. Much of Mr. Conners work was from referred to him from other lawyers. Therefore, I quickly came to understand that lawyers routinely refer cases to other lawyers and never really gave the issue much thought. I assumed that everyone knew what I knew.

May 10, 2007

Settlement Doesn’t Bar Malpractice Claim

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

Rudolf fired his lawyers after a jury trial that resulted in a 50% finding of comparative fault and a total verdict of $250,000. He then hired a new lawyer, got a new trial, and then settled his case for $750,000.

Next, he sued his original lawyers for malpractice, saying that he failed to submit an appropriate jury instruction in the first trial and failed to object to the charge as given. "In his damages claim, plaintiff sought payment of the legal fees associated with the motion to set aside the verdict and the appeal, as well as the expert witness fees and expenses incurred for the second trial. Plaintiff also requested approximately $190,000 in interest that would have accrued at nine percent per annum on the $750,000 had that sum been awarded at the conclusion of the first trial in January 2002."

The Defendants admitted negligence, but denied that Plaintiffs were damaged by it. The New York court disagreed, saying that "plaintiff incurred litigation expenses to correct defendants’ error and paid a second time for expert fees for the retrial. These expenditures were readily ascertainable and calculated at $28,703.27 by Supreme Court. Although plaintiff achieved a $750,000 settlement as a result of the second trial, that sum represented compensatory damages in the underlying personal injury action and was not designed to reimburse plaintiff for the fees and expenses caused by
defendants’ negligence. We therefore agree with Supreme Court that plaintiff is entitled to consequential damages of $28,703.27."

May 9, 2007

Police Chase Opinion Issued by SCOTUS

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

Some people have found a way to turn a police chase case into a Sec. 1983 action. It was always tough – and it just got tougher.

Here is the issue as stated by Justice Scalia: "We consider whether a law enforcement official can, consistent with the Fourth Amendment, attempt to stop a fleeing motorist from continuing his public-endangering flight by ramming the motorist’s car from behind. Put another way: Can an officer take actions that place afleeing motorist at risk of serious injury or death in order to stop the motorist’s flight from endangering the lives of innocent bystanders?"

The bottom line: "The car chase that respondent initiated in this case posed a substantial and immediate risk of serious physical injury to others; no reasonable jury could conclude otherwise. [Officer] Scott’s attempt to terminate the chase by forcing respondent off the road was reasonable, and Scott is entitled to summary judgment."

May 8, 2007

Off Topic – A Tacky Ad

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

Is this the worst lawyer ad of the year?

I hope so.

Here is the owner of the offending law firm.

May 7, 2007

Guidelines and Levels of Care for Pediatric Intensive Care Units

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

The American Association of Pediatricians has issued "Guidelines and Levels of Care for Pediatric Intensive Care Units."

The abstract: "The practice of pediatric critical care medicine has matured dramatically during the past decade. These guidelines are presented to update the existing guidelines published in 1993. Pediatric critical care services are provided in level I and level II units. Within these guidelines, the scope of pediatric critical care services is discussed, including organizational and administrative structure, hospital facilities and services, personnel, drugs and equipment, quality monitoring, and training and continuing education. "

The citation: PEDIATRICS Vol. 114 No. 4 October 2004, pp. 1114-1125.

May 4, 2007

Tort Cases To Be Argued in June 2007

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

The Tennessee Supreme Court hears oral arguments in Nashville on June 5, 6 and 7. Here is a list of the tort cases which will be heard and the issues to be determined in each case:

* Simpson Strong-Tie Company v. Stewart, Estes, & Donnell – Rule 23 Middle District Court of TN – Certified Question

1. Does the absolute litigation privilege apply to communications made preliminary to a proposed judicial procedure, where such communications are directed at recipients unconnected with the proceeding in hopes of soliciting them to become parties to it?

May 3, 2007

Loss of Services of a Homemaker

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

This report published by Rueters says that if "the typical stay-at-home mother in the United States were paid for her work as a housekeeper, cook and psychologist among other roles, she would earn $138,095 a year."

Is this data that can be reasonably relied upon by an economist in a death or personal injury case?

May 2, 2007

New TCA Sec. 20-1-119 Decision

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

Justice Holder has released on new comparative fault opinion on behalf of the Tennessee Supreme Court.

Austin had a one-car accident and sued Fayette County for negligently maintaining the roadway. Fayette County said this in its answer:

"the traffic sign in question was not placed there by the Defendant, Fayette County, Tennessee; that it is in the right of way of the State of Tennessee; that it is under the control of the State of Tennessee; that Fayette County, Tennessee has no control over said stop sign, its placement, maintenance, etc[.] and that it cannot be held liable for the stop sign regardless of its condition."

May 1, 2007

Surprise! Juries Favor Doctors

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

This is no news to anyone who actually follows medical malpractice litigation, but it is nice to see that a person who has actually researched the issue confirms conventional wisdom accepted by everyone except lobbyists for the health care industry and the legislators they persuade.

An article in Law.com reports on this new study from law professor Phillip Peters.

A couple excerpts: