Day on Torts

October 31, 2006

SCOTUS Hears Punitive Damages Case

The SCOTUS hears another punitive damage case today. Here is my earlier post on the Williams v. Phillip Morris case out of Oregon.

Law.Com summarizes it this way: "The case asks the high court to review the punitive damages award for excessiveness. It also asks the justices to set forth clearly how judges and juries that are considering punitive damages are to weigh harm caused by the defendant’s conduct to other smokers who were not parties to the suit." Read the whole article here.

You will be able to get a transcript of the argument tomorrow evening at this site.

October 31, 2006

Davidson County Jury List

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

The Davidson County jury list includes an unusual entry this week.

Each prospective juror is supposed to complete a questionnaire and then a jury list is completed with includes the stated employment of the juror and the juror’s spouse. One juror listed his employment as "Professor." He listed his wife’s employment as "Disciple of Satan."

Turns out they are going through a divorce.

October 30, 2006

Dead Rat in Salad

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

The passing game coordinator for the Dallas Cowboys has sued McDonalds after his family found a 6-inch rat in a salad.

Appparently "rat salad" was not on the menu.

The rat was not discovered until the salad was taken home. Some of the salad was consumed by the coach’s wife and a live-in babysitter before the rat was discovered.

October 30, 2006

Off Topic – Notre Dame

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

Notre Dame beat Navy, just like they have done every year since 1963.

I guess if you beat a team 43 years in a row you have a reason to be proud . . . of the person who negotiates your football schedule.

October 26, 2006

Side Airbag Study

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

Side airbags work. That is the conclusion of the Insurance Institute for Highway Safety.

A recent study reports that "Side airbags that protect people’s heads are reducing driver deaths in cars struck on the near (driver) side by an estimated 37 percent. Airbags that protect only the chest and abdomen but not the head are reducing deaths by 26 percent. "

According to the study, if every passenger vehicle would have side airbags with head protection 2000 lives would be saved a year.

October 25, 2006

Dateline: Atlanta

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

I drove to Atlanta last night so that I could attend two days of meetings preparing for an upcoming class certification hearing in St. Louis. We are going to work at polishing our team’s arguments for the hearing and testing our visual aids.

On Thursday night I will be coming back to Nashville because we have a mediation in a medical negligence case set for Friday. Then off to Cincinnati next week to defend a deposition in a business litigation matter.

That, added to the top of spending three days in West Tennessee and two days in Dallas last week, has me dragging a little bit. Travel doesn’t have the excitement it once did.

October 25, 2006

Trucking Association Seeks to Limit Speed of Trucks

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

The American Trucking Associations has petitioned the National Highway Traffic Safety Administration to limit the maximum speed of large trucks at the time of manufacture to no more than 68 miles per hour. ATA also petitioned the Federal Motor Carrier Safety Administration to prohibit the tampering or adjustment of the speed limiting devices, known as speed limiters (or governors), to greater than 68 miles per hour.

Research indicates that speed is a more significant factor in crashes involving trucks than any other factor that currently receives a larger proportion of government attention and resources.

Here is a copy of the Rulemaking Petition.

October 24, 2006

Federal Judge Deals Pharma a Setback

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

Philadephia Federal District Judge Stewart Dalzell has rejected Novartis Pharmaceutical Corp.’s claim that the Federal Food, Drug and Cosmetic Act and FDA regulations preempt state failure-to-warn tort claims.

In an opinion issued in the Perry v. Novaritis Pharma Corp., NO. 05-5350 (USDC, ED PA October 17, 2006), Judge Dalzell rejected Novartis’ claim that Novartis the failure-to-warn suit should be dismissed because the claim was preempted by FDA labeling requirements for the product, which at the time did not require a warning about the risk of cancer. Plaintiffs had claimed that use of the prescription drug Elidel for the treatment of a two-year-old’s eczema caused lymphoma.

The Judge said that "[p]reemption is unwarranted in the absence of clear evidence that state law requiring an additional warning would either compel the manufacturer to violate the terms of the FDCA or the FDA regulations, or would somehow be disruptive of the statutory and regulatory scheme. This would generally limit preemption to cases where the FDA has made a particular determination regarding a proposed warning."

October 23, 2006

Legal Fees

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

I saw this and it reminded me of a recent conversation I had. I was having dinner with several judges and was complaining about what I felt have been some rather meager fee awards in consumer protection action cases. (Note: I had no pending cases before these judges on any attorneys’ fee issue and I do not have a regular TCPA practice.) I expressed the opinion that it was always relevant for a trial judge seeking to determine a reasonable fee for a prevailing plaintiff in a TCPA to have the defendant’s counsel produce his or her bills for an in camera review.

It just seems to me that a good starting point for determining what the prevailing party’s attorney should be paid is what the losing party paid his or her attorney to lose. Surely the winner should receive no less than the loser and, indeed, should probably be paid more, particularly if they accepted the case on a contingent fee basis.

Of course, their are many other relevant factors (the timing and substance of settlement proposals, etc.), but why not order production of that data?

October 20, 2006

Food Poisoning Blog

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

My friend Bill Marler is THE man when it comes to food poisoning cases. His firm, based out of Seattle but with a nationwide practice, knows the science of food poisoning inside out.

We worked together on an e coli case in East Tennessee that we wrapped up earlier this year and got together in July at his home on Bainbridge Island for a wonderful evening. We talk regularly – most recently I called to give him grief about a story on him in the Wall Street Journal.

Bill’s firm has more blogs than any firm in America and now Bill has one of his own called, not surprisingly, the MarlerBlog. Read it to keep up with food litigation across the county.