The Tort Deform Blog is offered by the Drum Major Institute of Public Policy. They say that they blog "confronts and transcends the arguments put forth by the tort ‘reform’ movement, working to ensure that all Americans can access the courts."
The blog is well-written and provides a lot of information for debunking some of the myths about the civil justice system
Donald Matthews fell off a "loft" bed (similar to a bunk bed) and hurt his shoulder. He sued the manufacturer of the bed, saying that he should have been warned about the risk of falling.
Oh yeah, by the way, he was a senior. In college. (His GPA at the time of the fall is unknown.)
The jury actually gave him a verdict. An appellate court in New Jersey reversed, saying " that the obviousness of the danger is an absolute defense to plaintiff’s failure to warn action in this case."
We had our hearing on the subrogation issue mentioned in last Friday’s post. Judge Bivins ruled that the made-whole doctrine survived the adoption of no-fault insurance in Michigan and also found that our clients were not made whole from our prior settlement with the defendants. Accordingly, he declined to enforce the no-fault insurer’s claimed subrogation right, increasing our clients’ total recovery by approximately $325,000.
One of our clients (Mr. Fraire) is from Mexico and speaks little English. He made the trip to Centerville (Hickman County) Tennessee for the hearing. Can you imagine going to a foreign country and being a part of a court proceeding? Can you imagine doing so when you cannot speak the language? (Our client knows more English than I know Spanish but not enough to fully understand what was happening as it was happening in the courtroom.) Mr. Fraire was more than adequately prepared by Brandon Bass and did a fine job.
The insurer has already indicated that they intend to appeal so I guess we will find ourselves in Nashville for oral arguments in about six months.
Mark Zamora (of A Georgia Lawyer ) and David Swammer (of the South Carolina Trial Law Blog) have been working on a group blog for nearly a year and went live about ten days ago. It’s called the Trial Lawyer Resource Center with a shorter URL of TLRCBlog.com. I am honored that they asked me to be a part of the group that includes these fine lawyers:
Matt Garretson (Cincinnati, Ohio)
Gary Gober (Nashville, TN)
Jay Harris (Toledo, OH)
Tom Kline (Philadelphia, PA)
Rick Kuykendall (Mobile, Alabama)
Todd O’Malley (Scranton, PA)
Ronald Miller (Baltimore, MD)
John Romano (West Palm Beach, FL)
Randy Scarlett (San Francisco, CA)
Karen Shelton (Charleston, SC) [lifecare planner / nurse case manager]
David Swanner (Myrtle Beach, SC)
Mark Zamora (Atlanta, GA)
In that group there are 5 past state TLA Presidents, 3 past Presidents of the Melvin Belli Society, 2 past Presidents of the Southern Trial Lawyers, the current President of Workers Injury Law & Advocacy Group, plus the incoming President of the Inner Circle of Advocates.
Scientific papers are often difficult to understand. The fact that they are often poorly written doesn’t help matters, but many of us lack the scientific background to quickly grasp and analyze scientific literature.
Here is an excerpt from an article published in the British Medical Journal that provides some help reading research papers. Titled "How to read a paper: Assessing the methodological quality of published papers," the article by Trisha Greenhalgh walks the reader through a proper method of determining whether the reader should change his or her practices based on reading a paper.
The key questions:
Employee Froman died in an on-the-job accident. Darling, one of the owners of the employer, threw away the equipment involved in the accident after being asked by an Indiana OSHA employee to keep it for inspection.
Froman’s estate filed suit against the employer; the suit included claims for negligent and intentional spoliation of evidence. The trial court refused to dismiss the claims for spoliation, the Court of Appeals affirmed, and the interlocutory appeal accepted by the Indiana Supreme Court.
The ISC reversed. It first noted that Indiana does not recognize an independent cause of action for spoliation against a party to the underlying claim (first-party spoliation) but had expressly left open the question of whether it would recognize an independent cause of action for third-party spoliation. (This sent a pretty strong signal about what was to happen next.)
Is there anything duller than the rules of service of process? Perhaps not. Unless the only thing standing between you and collection of a $53,000,000 default judgment is application of those rules. Or unless your defense to a $53,000,000 default judgment is failure of service of process. Then Rule 4 starts looking interesting. Or terrifying.
Plaintiff obtained a $53,000,000 default judgment. Defendant corporation attempted to prevent execution on it, saying that process was not served on its registered agent (Caldwell) but rather on his secretary (Daniels), who represented that she was Caldwell’s secretary, had accepted service of process for Caldwell in the past, and would give the papers to Caldwell.
The evidence showed that Defendant did not answer or otherwise respond to the complaint and did not respond to Plaintiff counsel’s inquiries. Nor did it attend the hearing on a motion for a default judgment. Nor did it act after being sent a copy of order granting default judgment. Nor did it attend attend the hearing on the default judgment. Nor did it act after being sent a copy of the final judgment.Only when the judgment was filed in Tennessee to start the execution process did Defendant begin to fight.
Plaintiff received neck and spinal cord injuries in a motor vehicle accident. He was taken to the local ER; the ER doctor thought he needed to be seen by a neurosurgeon. The on-call neurosurgeon (Ebeling) said he was very tired and would not be coming to the hospital and recommended that Plaintiff be transferred to a trauma center. Plaintiff was transferred and was determined to have developed C-7 paraplegia.
The ER doctor testified that Ebeling’s refusal to come in was the first time a doctor had refused to come to the ER because of fatigue.
Plaintiff sued Ebeling (and others); Ebeling defended by saying that there was no physician-patient relationship between him and Plaintiff and that he was not negligent.
The Supreme Court of Connecticut recently determined that a cause of action exists for intentional spoliation of evidence.
Plaintiff was hurt in a ladder incident (it collapsed), filed suit, and repeated asked the defendant to preserve the ladder and requested the opportunity to inspect it. Defendant’s expert examined the ladder, found it not to be defective, and then destroyed it. Plaintiff amended his complaint to allege intentional spoliation of evidence as an independent tort.
The Court said that "[d]estroying evidence can destroy fairness and justice, for it increases the risk of an erroneous decision on the merits of the underlying cause of action. Destroying evidence can also increase the costs of litigation as parties attempt to reconstruct the destroyed evidence
or to develop other evidence, which may be less accessible, less persuasive, or both." The Court concluded that "the existing nontort remedies are insufficient to compensate victims of spoliation and to deter future spoliation when a first party defendant destroys evidence intentionally with the purpose and effect of precluding a plaintiff from fulfilling his burden of production in a pending or impending case. We therefore conclude that the recognition of an independent cause of action for spoliation of evidence is necessary to fulfill the public policy goals of the tort compensation system."
Some of you will recall that a couple of years ago former Tennessee Supreme Court Justice Penny White, former Court of Criminal Appeals Judge Joe Riley and I started "Justice Programs." For the third consecutive year Justice Programs is offering a 15 hour seminar program in Memphis, Knoxville, Chattanooga and Nashville that is designed for civil trial practitioners.
I will be speaking for three hours on tort and comparative fault issues, and hour and fifteen minutes about developments in tort law around the nation, and one hour about developments in the law of civil procedure. Penny and Joe will bring attendees up to date on USSC cases, evidence, and other significant cases outside the field of torts, civil procedure and evidence. There will be a one and one-half hour discussion entitled "Witnesses – A to Z" and Penny and Joe will offer three hours of ethics and professional credit. (The E & P hours will be offered continuously on Friday afternoon for those who want to attend only that portion of the program.)
Here is our schedule:
