Day on Torts

January 12, 2007

Release Did Not Cover Loss of Consortium Claim

The Nebraska Supreme Court has held that a husband of a personal injury claimant who did not sign a release of his claim could maintain an action for loss of consortium arising from the injury even though his wife released her claim.

The Court said that the claim for loss of consortium was an independent claim and that there was no evidence that the release executed by the claimant released his claim for loss of consortium or gave his wife authority to release his claim.

The case is Simms v. Vicorp Restaurants, 272 Neb. 744 (2006). The link to the opinion itself does not work this morning (the Court’s website must be down) but here is a link to a summary of the opinion which has a link to full opinion.

January 11, 2007

“The Great Medical Malpractice Hoax”

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

That’s the name of a new report issued by Public Citizen. From the press release:

"Public Citizen reviewed publicly available information from 1990 to 2005 from the federal government’s National Practitioner Data Bank (NPDB), which contains data on malpractice payments made on behalf of doctors as well as disciplinary actions taken against them by state medical boards or hospitals. According to the analysis, the total number of malpractice payments paid on behalf of doctors, with judgments and settlements, declined 15.4 percent between 1991 and 2005, and the number of payments per 100,000 people in the country declined more than 10 percent. In addition, the average payment for a medical malpractice verdict, adjusted for inflation, dropped eight percent in the same period. "

And this:

January 10, 2007

Wheelchair Fire Case

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

Can you imagine sitting in your battery-powered wheelchair and having it catch on fire?

That’s what the plaintiff alleged happened to her late father in this California case. It settled on the courthouse steps; the settlement is, of course, confidential.

The article reports that "in 2006, said court records, the company released a new product manual warning of the potential for hydrogen fire during recharging of the wheelchair’s battery."

January 9, 2007

Jury Selection – Exercising Peremptory Challenges

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

I got a call today from a lawyer who asked about the method by which peremptory challenges are exercised in state court.

It is always a good idea to ask the trial judge at the pretrial conference or on the morning of trial how he or she handles peremptory challenges. But recall that Rule 47 of Tennessee Rules of Civil Procedure was amended in 2003 to address these issues.

Here is the entire text of Rule 47:

January 8, 2007

A Comment From A Doctor

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

I wrote two posts in the last year (here and here)about doctors who have been attacked by organized medicine for giving testimony on behalf of plaintiffs in medical malpractice lawsuits. The goal of these efforts is not only to punish the doctors for having the audacity to testify for a plaintiff in a medical malpractice case but also to discourage other doctors from testifying.

This weekend I received this comment to one post :

I’m a physician but I do not want to reveal my real name because this topic is so controversial. In the past I would infrequently give depositions or testify in malpractice cases. I think I worked on a total of 20 cases in about 15 years. I have worked both with defense and plaintiff’s attorneys but plaintiff work is easier to get so I did somewhat more of that. When I began to read about the horrendous ordeals some physicians went through when some board picked apart their testimony, I decided to give it up entirely.

January 8, 2007

From Today’s “Tennessean”

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

Just one segment of an op-ed piece in today’s Tennessean: "How bad is medical malpractice? According to an article in the Journal of the American Medical Association by Dr. Barbara Starfield of Johns Hopkins School of Public Health, the third-leading cause of death in this country after heart problems and cancer is adverse reaction to medical treatment and medical mistakes."

January 8, 2007

Off Topic – Public Defenders vs. Criminal Defense Lawyers in Private Practice

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

Here is an interesting article from the New York Times that discusses a recent study of whether private practice lawyers or public defenders get better outcomes for citizens accused of crimes.

January 5, 2007

“Metoo” Motion

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

We have "Metoo" motions in Nashville. They usually occur when one defendant takes the time to draft and file a motion and memorandum and the co-defendants file papers that simply say "Metoo."

But a "Metoo" motion has a special meaning Up North. Or, should I say, it will from now on.

A judge in Hartford has permitted Ms Reed, a plaintiff suffering from PTSD, to have her dog "Metoo" with her in court during her trial. The Hartford Courant reports that the plaintiff maintains that "Metoo is a service dog that helps her through panic attacks and frees her from the use of medication. The dog is trained to stay close to Reed and lick her face when she becomes disoriented. Without the dog, Reed said, she might not have been able to get through the trial." [Emphasis added.]

January 4, 2007

Premises Liability Case – Recreational Use Statute

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

The Oregon Supreme Court has ruled that a state recreational use statute does not bar a claim by a plaintiff who was injured while crossing the defendant’s land after engaging in recreational activity on an adjacent property.

The facts: "Plaintiffs and their families drove on Highway 6 to a paved turnout along the highway near the "Fisherman’s Bridge" area of the Wilson River. Plaintiffs parked their cars in the turnout area and walked along an asphalt path that is parallel to the roadway and between the road’s guardrail and a chain link fence. On the other side of the fence is a steep slope. The asphalt path and the underlying land is owned by defendant, the State of Oregon Department of Transportation. Plaintiffs and their families used the path to gain access to a footbridge that crosses the river to a riverside beach area owned by Willamette Industries and Kenneth Fan Rad. Willamette and Rad had opened the beach area to the public for recreational purposes. After swimming and relaxing at the beach area, plaintiffs re-crossed the footbridge and used the path owned by defendant to return to their cars. While walking on that path, the asphalt under plaintiffs’ feet crumbled and plaintiffs slid under the fence and down the steep slope approximately 40 feet, sustaining injuries."

An Oregon statute provides that, subject to several exceptions, "an owner of land is not liable in contract or tort for any personal injury, death or property damage that arises out of the use of the land for recreational purposes, woodcutting or the harvest of special forest products when the owner of land either directly or indirectly permits any person to use the land for recreational purposes, woodcutting or the harvest of special forest products. …"

January 4, 2007

What It Takes To Be A Great Trial Lawyer – Part 3

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

3. A Solid Knowledge of the Law of Civil Procedure.

The adoption and expansion of the discovery section in the modern-day rules of civil procedure was intended to reduce the number of trials by providing a mechanism for the flow of information between parties to litigation. The idea was that if one party to a dispute learned the opposing party’s view of the facts and law more cases would be dismissed without the expense of trial.

It worked. The “vanishing civil jury trial” is now a reality. The fact of the matter is that over 98% of all cases are settled before trial and even the cases that go to trial are subject to the rules of civil procedure. A failure to know the rules can result in a dismissal of your case, a restriction in the evidence you present, and other things one would just as soon avoid.