Day on Torts

January 31, 2007

Are Expert Witness Fees Recoverable in the Sixth Circuit?

The Sixth Circuit Court of Appeals has ruled on whether expert witness fees may be taxed as costs in federal court.

FRCP 54(d) permits a successful party to recover costs in federal court and 28 U.S.C. 1920 permits the recovery of "fees and disbursements for printing and witnesses." The amount recoverable for witnesses is spelled out in § 1821 and includes $40 per day for an appearance fee, allowable travel expense, and a subsistence allowance when overnight travel is required.

The Court determined that expert witness fees were not recoverable because § 1920 does not provide for them. However, the prevailing party may recover "as ordinary witness costs for attendance fees, travel expenses, and as a subsistence allowance under § 1821."

January 30, 2007

New Hampshire Court Denies Claim for Boyfriend

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

The New Hampshire Supreme Court has held that a boyfriend riding a motorcycle could not bring an emotional distress claim against another driver for injuries caused as a result witnessing the death of his passenger (who was also his girlfriend).

The issue was "did the trial court err in determining that the plaintiff and MacDonald were not “closely related” so as to satisfy the requirements of Graves v. Estabrook, 149 N.H. 202 (2003), for bystander recovery in a negligent infliction of emotional distress claim?"

The Supreme Court affirmed dismissal of the case, holding that the plaintiff and his late girlfriend were not "closely related." They explained their decision as follows:

January 29, 2007

Verdict in Greyhound Case Affirmed

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

The Sixth Circuit Court of Appeals has affirmed a verdict in a case where a bus driver was attacked by a knife-wielding passenger, resulting a bus crash that resulted in several injuries and the death of the bus driver. A trial resulted in a verdict for the plaintiff passenger.

First, the defendant challenged the admissibility of plaintiff’s experts; the Court of Appeals found no error in permitting the experts to testify.

Second, the defendant argued that prior incidents should not have been admitted into evidence. This is the Court’s ruling on this point:

January 26, 2007

A Different Take on “Tort Reform”

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

The Economic Policy Institute has a different take on the impact of "tort reform" on the economy.

An excerpt:

The legal system for adjudicating tort claims in the United States delivers important bene?ts to the American people. Most notably, these benefits include the compensation of injured persons (including people harmed by giant corporations and other powerful interests), the deterrence of wrongdoing, greater investments in product innovation and safety, and the civilized, non-violent settlement of disputes. These benefits are rarely quantified, and critics generally focus exclusively on the system’s costs, whose magnitude and impact they tend to exaggerate, claiming that job growth, productivity, health care, and corporate profits suffer under the current system. Although a full review requires an examination of both the costs and benefits of the system, this briefing paper reviews only the tort system’s most commonly alleged economic costs and impacts and shows that most have little or no basis in reality.

January 25, 2007

Medical Practice Guidelines

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

It takes a tremendous amount of time and money to screen medical malpractice cases. Our office reviews over 700 cases per year and rejects over 95 percent of them over the phone. Of the remaining 5 percent most are rejected after review of the medical records and, if appropriate, consultation with one or more medical experts. In short, we spend a significant sum of money every year trying to take only claims that are valid and have sufficient damages to justify the significant investment of time and money necessary to prosecute one of these cases.

One way to save a little money and time reviewing cases and to help win a case that is actually filed is to use practice guidelines developed by the health care industry. Practice guidelines are consensus statements of good medical practice. The phrase "standards of care" immediately jumps to mind when one reads the last sentence – and that is what practice guidelines are. However, practice guidelines are not called standards of care because the people who write and use them seek plausible deniability if ever confronted with them.

No bother. You can use practice guidelines to evaluate the care your potential client or client received. You can use practice guidelines to prepare for depositions of health care providers. Your expert can point to practice guidelines as evidence of the standards of care, disclaimers notwithstanding. In short, they are potentially useful in litigation and, more importantly, very helpful in standardizing and improving the quality of care given to patients.

January 24, 2007

Getting Good Results

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

Here is an interesting post from the Virginia Injury Laywer Blog offering an opinion on how to get good settlements in personal injury cases. Permit me to comment on a couple:

"1. Don’t just dabble in personal-injury cases; the insurance defense lawyer is too good for that, and he will only smile as he runs over you while you are dabbling."

Personal injury trial work is a legal speciality, just like surgery is a medical speciality. If you take a personal injury case "now and then" when the opportunity presents itself you will almost certainly not get a reasonable value for it. Stick to what you know.

January 22, 2007

Race and Gender Challenges in Jury Selection

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

We all know that Batson v. Kentucky applies in civil cases. But a new decision released yesterday from the Tennessee Supreme Court – Zakour v. UT Medical Group – actually discusses how judges and lawyers should apply Batson in real life.

This is the meat of the opinion:

In this case, the trial judge did not explicitly find that the Plaintiff had established a prima facie case of purposeful discrimination. However, we conclude that the trial court did implicitly make that determination, given the fact that the trial court asked the Defendants to respond to the Plaintiff’s Batson objection. See Woodson, 916 S.W.2d at 905 (“While the procedure used by the trial judge created difficulties, we must conclude that the trial judge determined that a prima facie case of purposeful discrimination had been established. Otherwise, the court would not have required defendants to explain the challenge.”). The trial court also failed to make a finding of whether the Plaintiff carried her burden of proving a discriminatory motive by the Defendants. Because the trial court empaneled the jury and allowed the trial to proceed after the Plaintiff’s objection, we conclude that the trial court found the Defendants had provided a gender-neutral reason for their challenges. However, we stress again the importance of the trial court making detailed findings for the record; doing so would have clarified the basis for the trial court’s implicit rulings in this case and simplified the review process on appeal.

January 19, 2007

Water Intoxication Lawsuit

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

Well, as you probably have heard, a woman who participated in a "Hold your wee for a Wii" contest died of water intoxication. According to the Sacramento Bee, "the contestants were given two minutes to drink an 8 ounce bottles of water every ten minutes. The winner was the last one to use the restroom."

An attorney has announced that suit will be filed against the station.

The allegations – and apparently undisputed facts – are that the disc jockeys laughed about the risk to participants and knew the risk of the stunt could be fatal. Indeed, according to the Bee article, "a nurse called into the program to warn that drinking too much water was dangerous."

January 16, 2007

More From Freud 99

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

In a recent post I set out in their entirety the comments of a doctor who told us of the fear he has testifying on behalf of plaintiffs in medical negligence cases. He has written back – and here it is:

NOTE: there are a bunch of unusal characters in the email. I received the email in this format so I assume that something got scrambled in the transmission over the Web. It is being published as it was received.

Hello again,

January 15, 2007

Supreme Court Politics – Michigan-Style

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

Most of us know judges who from time to time have disagreements with their colleagues and know other judges who simply don’t like a judge they have to work with every day. There is nothing unusual about this – judges are people and it is unrealistic for anyone to expect that the day a person puts on a robe he or she is able to silently accept the human failings of others (or not have failings of their own).

But in Tennessee those disagreements rarely find their way to the public eye. Indeed, I have no memory of ever reading a Tennessee court opinion in which one judge criticized the intellect or integrity of another judge. We simply don’t do that "down here."

Things are a little different in Michigan – an "up there" state. Those of you who love the law (or lack a real life) already know that the Supreme Court in Michigan is polarized. But I admit that I had no idea that it had gotten downright ugly, as reflected in this memo dissenting from the election of the chief justice.