Day on Torts

November 16, 2006

Trial Judge Slaps Plaintiff – With Sanctions

Judge Young from Blount County, who enjoys a good reputation and whom I have always found to be quite pleasant, has popped a plaintiff with over $1,000,000 in sactions for "scorched earth" litigation tactics.

According to Knoxnews.com, Judge Young wrote that "[t]he summary judgment record shows that [plaintiff]O’Boyle did not have evidence to support material allegations and factual contentions in his complaint and that O’Boyle asserted and aggressively pursued frivolous claims which were devoid of merit."

The article says that "Young’s ruling details numerous examples of O’Boyle misrepresenting facts, concluding, "’O’Boyle’s failure in this case was so widespread and fundamental as to evidence an improper purpose.’" Young noted in his ruling that the case generated 18 feet worth of files and 1,866 docket entries, and spawned related litigation in federal and state courts. He also noted that the plaintiffs – which included O’Boyle’s associates in New Midland Plaza Associates – had previously been sanctioned twice and held in contempt twice, paying out more than $127,000 in fines and penalties. "

November 15, 2006

Illinois Supreme Court Justice Wins Libel Verdict

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

Read the story here in the Chicago Tribune.

November 14, 2006

Spoliation – Attorney Liability

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

I have reported on a number of spoliation cases in this blog recently, but this is the first on against an attorney. Plaintiff argued that Plaintiff’s counsel had failed to inspect or secure evidence in the possession of the plaintiff’s decedent’s employer in the underlying products liability action. Plaintiff also filed a spoliation claim against the employer. Both claims were dismissed, and Plaintiff appealed.

The Arkansas Supreme Court noted that a first-party spoliation claim is not recognized in Arkansas. After reviewing law from across the nation on point, the Court said that "we believe it would be inconsistent for us to hold that a third party, who is not a party to the underlying action, could be liable for damages, including the possibility of punitive damages, for the same conduct that would not be actionable if committed by a party to the lawsuit. Furthermore, we cannot recognize a new tort as a means to deter third-party spoliation of evidence when the result of such a tort would create potentially endless litigation over speculative loss. A victim of third-party spoliation should seek a remedy in a means other than an individual tort claim." [Citation omitted.]

Read Downen v. Redd, NO. CV-2004-107 I (Ark. S. Ct. 11/02/06) here. Use the "Search" function to find other spoliation cases on this blog.

November 14, 2006

Minor Can Recover Medical Expenses

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

The Tennessee Court of Appeals has ruled that a minor can sue to recover medical expenses paid to treat injuries received by the minor as a result of the negligence of another. Although most of us (at least those of us who represent plaintiffs) have thought this was probably the law, it is nice to see an opinion from this century addressing the issue directly.

Here is the entire section of the opinion on the subject that addresses this important issue:

"As a final matter, Defendant contends that the trial court erred in admitting evidence of
Plaintiff’s pre-majority medical expenses since a minor does not having standing to assert a claim for expenses incurred on his behalf and Mrs. Craig was not a party to the suit. Tennessee Code Annotated section 20-1-105 provides that a claim for medical expenses incurred by a minor during his or her minority does not belong to the minor, but rather to the minor’s parents. See also Burke v. Ellis, 58 S.W. 855, 857 (Tenn.1900). However, in Smith v. King, No. Civ.A. 958, 1984 WL 586817, at *2 (Tenn.Ct.App. Sept. 21, 1984), the court addressed a substantially similar issue and determined that a minor plaintiff may maintain his or her own cause of action for medical expenses and include the amount of medical expenses incurred on behalf of the minor as an element of his or her damages.

November 13, 2006

A Fascinating Story About Millberg, Weiss

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

Almost everyone knows that Millberg, Weiss, at one time the country’s leading class action law firm, has been indicted. The allegation is that the firm paid plaintiffs be serve as class representatives.

I have followed the story for several years but this article in Fortune (and posted on money.cnn.com) caught my eye while I was searching for something to read on an airplane. You will not believe how it came to be that largest class action firm in the country got into so much trouble.

I do not know if the firm violated the law; I give it the same presumption of innocence I try to give everyone charged with a crime. But if the facts set out in this article are true, the firm has got a problem. A real problem.

November 12, 2006

Back from Chattanooga – CORRECTED

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

Chris Nearn correctly pointed out that my post Saturday had incorrect dates for programs in Memphis and Nashville. I don’t know how I messed that up. Thanks Chris. Here is a corrected post.

Thursday and Friday I was in Chattanooga for the first Justice Programs seminar of the year. We doubled our attendance over that of 2005 and put together a solid seminar program (if I do say so myself). The Reed House is a good venue.

Unfortunately, something has happened with my wireless card in my notebook computer and I was unable to post yesterday.

November 9, 2006

GA Court Answers Evidence Question

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

The Georgia Supreme Court was confronted with this question: "In what circumstances, if any, is evidence of a nurse’s failure to pass a licensing examination admissible in a medical malpractice action against the employing physician?"

Plaintiffs’ son Luke was diagnosed with bacterial meningitis resulting in brain damage and quadriplegia. Plaintiffs claimed that Luke’s pediatrician and his employees should have picked up on the symptoms given the information provided in a series of contacts. Plaintiffs introduced expert testimony that the pediatrician, Dr. Basilio, violated the standard of care by permitting an unlicensed nurse to answer weekend calls and give advice without consulting a supervising physician. To support that testimony, the Sniders showed that Nurse DeVera was not licensed. However, the trial court did not allow the Sniders to show that Ms. DeVera failed to pass the nursing board examination.

The Georgia Supreme Court agreed. It said as follows: "Simply put, the issue in this case is not whether Ms. DeVera was generally competent, but whether Dr. Basilio breached the standard of care in hiring her because she was unlicensed. On this issue, the plaintiffs’ experts were able to testify that Dr. Basilio breached the standard of care by hiring an unlicensed nurse and allowing her to answer weekend calls without supervision. The fact that Ms. DeVera was unlicensed was key to resolving this issue. Why she was unlicensed was not."

November 8, 2006

New Tennessee Subrogation Case

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

The Tennessee Supreme Court issued an opinion yesterday in the Abbott v. Blount County, Tennessee case.

In an opinion by now retired Justice Al Birch, the Court made it crystal clear that an insurance company could not require a plaintiff to get approval of plaintiff’s health insurance company before settling a personal injury suit. The Court said that it is "clear that the made-whole doctrine applies regardless of the language found in the insurance contract. Contract terms that require the consent of the insurer would allow the insurer to withhold consent from any settlement that does not make the insured whole and thereby compel the insured to seek a larger award at trial. We disapproved of allowing insurers to contract away the right to be made whole in York, and we do so again today. Finally, we note that the lack of an insurer’s consent does not make an insured more likely to receive a double recovery."

The Court said that there was a genuine issue of material fact about whether the plaintiffs were made whole.

November 7, 2006

Off Topic – T- Shirt

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

Well, I was wrong about the identity of the person who sent me the t-shirt. It turns out it was a lawyer from Tennessee, a regular reader who is an ND fan (but not an ND grad).

Thanks again.

November 7, 2006

No Locality Rule for Lawyers

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

The Tennessee Supreme Court has rejected the notion of a locality rule for lawyers in legal malpractice cases.

In Chapman v. Bearfield, No. E2004-02596-SC-R11-CV (Tenn. S. C., November 6, 2006), the Court said that "a single, statewide professional standard of care exists for attorneys practicing in Tennessee and that expert witnesses testifying in legal malpractice cases must be familiar with the statewide professional standard of care."

Stated differently, "[a]n attorney practicing in Tennessee, then, must exercise the ordinary care, skill, and diligence commonly possessed and practiced by attorneys throughout the state. Indeed, while there may be local rules of practice within the various judicial districts of our State, there are no local standards of care. There is only one standard of care for attorneys practicing in Tennessee: a statewide standard." (Emphasis supplied by the Court.)