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."
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:
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.
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."
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.
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.]
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. …"
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.
Last Fall I wrote several posts ( here and here) on a one portion of the causation issue in legal malpractice cases.
A summary of my view: I believe that a plaintiff in a legal malpractice case arising out of a claim that a personal injury case was mis-handled must prove that amount of damages that would have been collectible in the underlying tort case. First, the plaintiff would ordinarily prove the amount of liability insurance, if any, available to the original defendant. Second, if the plaintiff wants to collect a judgment more than the amount of the liability insurance originally available, he or she should have to prove that it was more likely than not that the plaintiff could have collected more than that amount from the tortfeasor. This will require proof of the income, assets and liabilities of the original defendant. In appropriate cases, the lawyer defendant will want to demonstrate that the income, etc. of the original defendant is such that the plaintiff cannot prove that the judgment would not have been collectible above the amount of liability coverage or that the evidence offered is insufficient to prove that any monies could have been obtained over and above the insurance monies.
I think the burden of proving collectibility should be on the plaintiff because it should be deemed part of the causation argument. More specifically, the plaintiff has to prove damages by reason of the alleged malpractice of the lawyer. (The lawyer failed to have process re-issued in a timely fashion, and the case was dismissed with prejudice). That means plaintiff must prove that what damages, if any, he would have been able to collect in the underlying tort action against the original defendant. The plaintiff should not be able to collect more damages from the lawyer defendant that he would have been able to collect against the original defendant. What the plaintiff lost was the right to proceed to trial against the original defendant, and therefore what he should be able to collect from the lawyer is what he could have collected from the original defendant.
The property and casualty insurance industry has reported after-tax profits of $44.9 billion for the first nine months of 2006, up 50.1% from a year earlier. If this path continues for the last three months of the year, it "would lead insurers to their best financial performance in nearly 20 years," according to the Insurance Information Institute.
"Strong underwriting results are being reported in virtually every key line of insurance" including comp and auto insurance.
What is most interesting is that the combined ratio is down to 91.5, down from 99.8 for the same nine-month period in 2005. The "combined ratio" is the cost of paying and adjusting claims compared with premium income. A combined ration of 91.5 means that the industry paid out 91.5 cents for each dollar it collected in premiums. If the industry ends the year with a combined ratio at 91.5 it would be the best result in nearly 60 years.
