I have been in Destin the last few days. KATA and TTLA had a joint seminar at the Hilton. I spoke Tuesday morning, had dinner with friends last night, and came back today.
Back to work!
Breach of Settlement Agreement
Plaintiff settled his sexual harassment and retaliation lawsuit against defendants and this provision was included in the settlement agreement: "The parties agree that the terms of this settlement shall be held confidential and that no disclosure of the terms of the settlement, other than the fact of the settlement itself, shall be disclosed or disseminated to anyone who is not a party to this Release, except to the extent required by law. Further, the parties agree that neither shall disparage or discredit the other."
Plaintiff then alleged that certain of the Defendants made statements to the press in violation of this provision. Some samples: one defendant said "’he thought they “had a really good case,’and ‘had beaten this guy all the way through’”; and that he "’was very frustrated that he did not get a chance to fight the lawsuit in court. He . . . felt the county had a strong case, but the risk pool did not want to spend the money to go through the court process’” . Another defendant allegedly said "that she did not know the exact amount of the settlement, but “’it wasn’t very much.’”
Plaintiff sued for violation of the terms of the non-disclosure and anti-disparagement clause.
Off Topic – The Education of Ms. Goodling
Slate has published this article about Monica Goodling and the Regent University School of Law.
Did you know that "[u]nder Ashcroft, career lawyers were systematically fired or forced out and replaced by members of conservative or Christian groups or folks with no civil rights experience. In the five years after 2001, the civil rights division brought no voting cases on behalf of African-Americans. It brought one employment case on behalf of an African-American. Instead, the division took up the "civil rights" abuses of reverse discrimination—claims of voter fraud or discrimination against Christians."
Hospital Errors Rising – 247,662 Deaths Over Three Years???
It is getting worse.
Healthgrades reports that the number of errors in our nation’s hospitals rose 3% over the years 2002 – 2005. From the press release:
The HealthGrades study of 40.56 million Medicare hospitalization records over the years 2003 to 2005 … found:
• Patient-safety incidents continue to rise in American hospitals, with 1.16 million preventable
patient-safety incidents occurring over the three years studied among Medicare patients in the
nation’s hospitals, an incidence rate of 2.86 percent.
• 247,662 deaths were potentially preventable over the three years, and Medicare patients who had one or more patient-safety incidents had a one-in-four chance of dying.
• The excess cost to hospitals was $8.6 billion over three years, with some of the most common
incidents proving to be the most costly.
• Ten of the 16 patient-safety incidents tracked worsened from 2003 to 2005, by an average of
almost 12 percent, while seven incidents improved, on average, by six percent. Patient-safety
incidents with the greatest increase in incident rates were post operative sepsis (34.28 percent),
post-operative respiratory failure (18.70 percent) and selected infections due to medical care
(12.23 percent).
• Patient-safety incidents with the highest incidence rates were decubitus ulcer, failure to rescue
and post-operative respiratory failure.
The Vanishing Civil Trial
The Beasley Allen law firm summarized a report on the number of civil jury trials in Alabama. Here is my summary of their summary concerning civil jury trials in 2006:
Motor Vehicle Negligence Cases: 126 trials Verdict for plaintiff – 59
Products Liability Cases: 6 trials Verdict for plaintiff – 3
Comcast
Poor Comcast. With its blood-sucking monopoly threatened by pending legislation it (a) decides to lower prices; (b) promise that all future employees will have no less than a room temperature IQ; or (c) have technical problems and not broadcast the Lady Vols National Championship basketball game in Williamson County?
It chose (c).
Apparently the Bush Administration has nationalized Comcast and is bringing all of its management skills to bear in running the organization. The good news is I now know where to address my complaint letter.
Causes of Truck Accidents in Tennessee
What causes truck wrecks? According to Ron Miller, a trial lawyer in Maryland, the Federal Motor Carry Safety Administration’s 2006 report shows there are approximately 141,000 truck crashes every year. In 77,000 of these truck accidents – more than half – fault was attributed to the truck driver.
Ron’s post at The Maryalnd Injury Lawyer Blog lists the top ten causes of the wrecks caused by truckers as follows:
1. Prescription drug use (26%)
More Data on Rising Insurance Rates for Doctors
Amercicans for Insurance Reform have released a report that demonstrates that the "insurance crisis that hit doctors between 2001 and 2004 was not caused by claims, payouts or legal system excesses as the insurance industry claimed."
Rather, this report concludes as follows:
"Inflation-adjusted payouts per doctor not only failed to increase between 2001 and 2004, a time when doctors’ premiums skyrocketed, but they have been stable or falling throughout this entire decade.
A “Recreational Use” Statute Decision out of Kansas
In Lane v. Atchison Heritage Conference Center, Inc., No. 94634 (March 16, 2007), the Kansas Supreme Court held that "mmunity from liability under the recreational use exception to the [Kansas Tort Claims Act] does not depend upon the "primary use" of the property but rather depends on the character of the property in question." Therefore, the Court ruled that "the recreational use exception to the KTCA, K.S.A. 2006 Supp. 75-6104(o), applies when property is "intended or permitted" to be used for recreational purposes. The correct test to be applied under K.S.A. 2006 Supp. 75-6104(o) is whether the property has been used for recreational purposes in the past or whether recreation has been encouraged."
The Court then applied the statute to bar and slip-and-fall claim against the convention center which had hosted dances, card tournements, sewing demonstrations, local Bar meetings, etc. The plaintiff in the case was injured at a New Year’s Eve Party.
Read the decision here.
The Rules of Cross and Argument
The penalty for violating the rules of cross-examination and closing: reversal.
Here is how the Court described the violation: "the cross-examination of [defense expert] Dr. Ramirez went beyond permissible grounds on the issue of bias and amounted to a prohibited attack on Dr. Ramirez’s character when plaintiff’s counsel repeatedly argued that Dr. Ramirez had intentionally destroyed documents that had never been created and of which he was under no duty to compile or produce. … Plaintiff’s counsel’s arguments to the jury that defense counsel was “pulling a fast one,” “hiding something,” and “trying to pull something,” was tantamount to calling defense counsel liars and accusing them of perpetrating a fraud upon the court and jury."
Learn the rules. And follow them. Indeed, work hard to follow them in the heat of the moment and when your opponent is violating them. There is no reason to believe or even suspect that Plaintiff’s counsel here intentionally violated the rules of trial, but the fact remains that his client lost a verdict in her favor. And that does neither client nor lawyer any good.