Day on Torts

January 24, 2007

Getting Good Results

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.

January 12, 2007

Release Did Not Cover Loss of Consortium Claim

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

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.