Day on Torts

December 14, 2006

Absence (Makes the Heart … Forget?)

Well, yesterday I had to be a lawyer again, taking a deposition in a matter pending in Bankruptcy Court where we have been hired to represent the Trustee. I find myself doing more and more commercial litigation and, quite frankly, it is quite enjoyable. I majored in business and economics in undergraduate school and like to have the opportunity to put some of what I learned into use. Of course, I will always love tort law, but the fact of the matter there is a good deal of that can be put to use in commercial litigation.

Today I am in court in Clarksville on some motions in limine for a trial I have next month. Therefore, I lack the time to write a substantive post.

I’ll have something for you on Friday.

December 12, 2006

Mass Tort Article

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

Law.com has published an interesting article titled "Who Killed the Mass Tort Bonanza?"

The opening paragraph: "The power of the plaintiffs bar is on the wane in this country, and will be for a long time to come." Followed shortly thereafter by this: "Neither [business interests or trial lawyers], however, would deny that the civil justice system looks drastically different than it did even two years ago. The true triumph (or tragedy, depending on your perspective) of the tort reform movement has been its ability to leverage the success of its public relations campaign into concrete and hard-to-reverse changes. State legislatures have passed laws that undercut the trial lawyers’ successes in Washington, D.C. — especially in the asbestos litigation, which has declined precipitously since the early 2000s. "

This article has done a nice job of explaining the current lay of the land in mass tort litigation.

December 11, 2006

What Happens When a Plaintiff Fails to Disclosure a Personal Injury Claim on Her Bankruptcy Petition?

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

In Pruitt v. Hancock Medical Center, NO. 2005-CA-00132-SCT (Miss. S. Ct. 11/16/06), Plaintiff had a personal injury claim that was not disclosed in a bankruptcy filing. The injury occurred before the bankruptcy petition was filed. She received a discharge of her debts in her Chapter 7 proceeding, and then took action in state court to seek damages from the alleged tortfeasor for the injury. Her claim was dismissed for lack of standing, and the Supreme Court of Mississippi affirmed.

The Court said as follows: "This Court concludes that the Pruitts’ cause of action accrued prior to the filing of the Pruitts’ voluntary petition for Chapter 7 bankruptcy on August 21, 2002. As this Court finds that the cause of action existed at the time of filing the bankruptcy petition, the cause of action became property of the bankruptcy estate under 11 U.S.C. § 541(a)(1). ‘If a cause of action belongs to the [bankruptcy] estate, then the trustee has exclusive standing to assert the claim.’" [Citation omitted.]

Read it here.

December 11, 2006

Professionalism

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

This fascinating article is written by J.D. Hull, a lawyer from San Diego. It is called "Professionalism Revisited: What About the Client?

It makes some wonderful points about the client view of what we call in the South the "good ol’ boy system" of law practice. We are seeing increasing problems with adverse counsel who claim they are too busy to take depositions for, say, five or six months – but not to busy to accept representation in a new case. Or adverse counsel who cannot set a case for trial in 2007 – just too busy.

When push comes to shove we have to count on judges to remind lawyers that litigation is about clients, not about lawyers. Judges have to create and enforce deadlines, and judges have to require people to make themselves reasonably available to advance cases toward trial. There is no reason that 90% of cases cannot be tried in one year. There is no reason that the other 10% cannot be tried within 18 months. What it takes to accomplish this goal is for lawyers and judges to remember that the system exists for the benefit of the clients and the public, not for the convenience of the Bench and Bar.

December 8, 2006

Adobe 8 To Be Released Soon

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

Here is an interesting article on the new Adobe 8

December 8, 2006

Rules Changes Are Designed to Make Them Easier to Read

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

The Federal Rules of Civil Procedure are being changed to make them more readable. This post from Trial Ad Notes discusses the change and gives an example on how Rule 6 would be re-written.

All 250 pages of the proposed revisions may be found here. The rules are still in the rule-making process and will not go into effect before December 1, 2007.

December 7, 2006

Plaintiff’s Expert Excluded in Med Mal Case

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

Plaintiff filed an affidavit from an expert witness in opposition to a motion for summary judgment in a medical negligence case. The expert – from UAB in Birmingham – explained that he understood the standard of care in Memphis because of the following:

2. I am familiar with the standard of care for Mohs micrographic Surgeons in communities similar to Memphis, TN.
3. I have become familiar with the standards of care in the Memphis community and throughout the State of Tennessee.
4. I have discussed the standard of care for obtaining informed consent with all the fellowship trained Mohs surgeons in Tennessee. “Fellowship trained” refers to Mohs surgeons who have specialized training in Mohs micrographic surgery for 1-2 years after completing a dermatology or related residency.
5. These fellowships are accredited by the American College of Mohs Micrographic Surgery and Cutaneous Oncology. In the past two years, many of these fellowships have also become accredited by the American Board of Medical Specialties under the newly recognized specialty of Procedural Dermatology.
6. There are sixteen (16) Mohs surgeons in Tennessee including the Defendant. Seven of the Mohs surgeons are partners with the Defendant. Therefore they were not consulted.
7. Besides Dr. Allen and his partners, I consulted with Dr. Malika Tuli of Memphis, Tennessee and was advised that written and oral informed consent are obtained in the Memphis, Tennessee community.
8. I also consulted with the remaining six Mohs surgeons in Tennessee and was advised that the written and oral informed consent are obtained in their community. See attached spreadsheet of my investigation.

Not good enough. "Defendants assert that knowledge gained by surveying other physicians and not by personal or firsthand experience is not sufficient under § 29-26-115(a)(1). They submit that a non-expert could survey physicians in a community if the mere collection of data could constitute knowledge. Defendants assert the statute requires personal, firsthand, or direct knowledge of the applicable standard by an expert who practices in the community or in a similar community. We agree."

December 6, 2006

Colorado Opinion on Protective Orders

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

Defendant Farmers Insurance Exchange convinced the trial court that it should enter a protective order limiting Plaintiff’s counsel ability to distribute documents produced in the litigation by the defendant and limiting Plaintiff’s counsel’s use of Defendant’s documents that Plaintiff’s counsel obtained from other sources. The later documents had been produced by the Defendant without a protective order in litigation in South Dakota.

The documents at issue were described as follows: "The documents apparently contain information regarding ‘incentive performance compensation plans’ and the Colossus claims-handling system used by Farmers. Farmers explains in its brief that ‘Colossus’is a proprietary computer tool created by Computer Sciences Corporation (‘CSC’), and that Farmers’use of Colossus and related materials is limited by a licensing agreement and nondisclosure agreement with CSC. Such agreements with CSC are at least one reason why Farmers sought a protective order in this case."

The Colorado Supreme Court reversed. It stated that "that the protective order entered by the district court is not authorized by C.R.C.P. 26(c) to the extent that it purports to place limits on the use of documents not acquired solely as a result of discovery in this case." The Court analyzed the law interpreting its version of Rule 26 and said "that C.R.C.P. 26(c) applies only to documents or information obtained solely as a result of discovery in a pending case. It does not authorize restrictions on documents acquired outside of the discovery process in the pending case. "

December 5, 2006

Trucking Industry Regulation

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

The New York Times did a great piece on the regulation of the trucking industry yesterday.

One blurb: "In loosening the standards [applicable to the trucking industry], the Federal Motor Carrier Safety Administration was fulfilling President Bush’s broader pledge to free industry of what it considered cumbersome rules. In the last six years, the White House has embarked on the boldest strategy of deregulation in more than a generation. Largely unchecked by the Republican-led Congress, federal agencies, often led by former industry officials, have methodically reduced what they see as inefficient, outdated regulations and have delayed enforcement of others."

If you are involved in trucking litigation you will enjoy this five-page article.

December 5, 2006

Legal Malpractice Lawyer Interviewed

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

Here is an interesting article on a lawyer who sues lawyers.