Day on Torts

September 8, 2006

Discoverability of Materials Given to Expert Witnesses

The United States Court of Appeals for the Sixth Circuit has ruled that all material given to testifying expert witnesses must be disclosed, including attorney opinion work product materials.

The circuits have been split on this issue. In Regional Airport Authority of Louisville and Jefferson County v. LFG, LLC, Case No. 05-5754 (6th Cir. Aug. 17, 2006), the court clarified the law in the Sixth Circuit.

The precise holding: "The bright-line approach is the majority rule, represents the most natural reading of Rule 26, and finds strong support in the Advisory Committee Notes. Therefore, we now join the "overwhelming majority" of courts . . . in holding that Rule 26 creates a bright-line rule mandating disclosure of all documents, including attorney opinion work product, given to testifying experts." (Emphasis added.) Don’t try to argue that whatever information you gave to the expert wasn’t considered by the expert and therefore is not discoverable; the word "given" was deliberately chosen by the court to void that argument.

September 7, 2006

Newt is Back

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

Remember Newt Gingrich? Of course you do. Former Speaker of the House. Author of the Contract on America.

And now, the author of a new list of issues for Republicans to focus on during the coming months, which he titles "11 Ways to Say: "We’re Not Nancy Pelosi."

His introduction: "Republicans should spend the next two months focused on 11 straightforward, morally grounded issues about which the American people have clearly defined beliefs.

September 6, 2006

Commission Picks Three For TSC Opening

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

The Judicial Selection Commission has selected three people for the open position on the Tennessee Supreme Court: Hon. Bill Koch (Judge on the Court of Appeals, Nashville), Hon. D’Army Bailey (Circuit Judge, Memphis) and Houston Gordon (lawyer, Covington).

None of the appointees was from East Tennessee because there are already two justices from that part of the state (Chief Justice Barker and Justice Wade) and the Constitution limits membership on the Court to no more than two judges from any one Grand Division.

September 6, 2006

Interesting Article on Worker’s Comp

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

I know that this article is off-topic, but I could not let it pass.

It seems that claim severity is down in the worker’s compensation market. This article reports that "[o]verall injury rates have dropped by an average of 3.9% per year since 1996 including an estimated 4.5% decline in 2005, according to the 2006 study. But for the two most recent years, high-cost claims have shared equally in the frequency decline …."

Does this mean rates will be coming down? Nope – because medical costs have seen average increases of 9.1% each of the last four years.

September 5, 2006

Auto Death Rates Decreasing

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

Everyone knows that auto death rates are decreasing. But why?

This study tells us that the reason is safer autos. Issued by the Insurance Institute for Highway Safety, the study says that "an increasingly dangerous traffic environment has been offset since 1994 only because people are driving vehicles that are more protective…."

The press release indicates that the full report, "Trends over time in the risk of driver death: what if vehicle designs had not improved?" by C.M. Farmer and A.K. Lund will be published in the journal, Traffic Injury Prevention, later this year.

September 5, 2006

Labor Day Weekend

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

I hope each of you had a wonderful Labor Day Weekend.

My wife and I spent the weekend at the lake. Saturday and Sunday I did no work whatsoever, the first time in months I have taken two days off in a row with absolutely no work. Monday I was back at it (depositions today) but even then I did not have to put in a full day.

I need to get back to the days when I took the weekends off. I intend to do so. Soon.

September 1, 2006

Vioxx Damage Verdict in New Orleans Thrown Out

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

Judge Fallon has thrown out the $50M compensatory damage award and a $1M punitive damage award in the recent New Orleans Vioxx trial. He ordered a new trial on damages.

No surprise here. The compensatory award obviously had a significant punitive component.

Here is the Order.

August 31, 2006

Day Taking Day Off

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

Wennesday was an 18+ day and today gives rise to hearings in Clarksville in the morning and an important deposition in Brentwood in the afternoon.

Pardon me, folks, but I am taking a day off.

August 30, 2006

Summary Judgment for Drug Manufacturer Reversed

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

Hmm. Summary judgment for a drug manufacturer is reversed? In the 21st Century? In Federal Court? Now, that is something worth writing about.

In McNeil v. Wyeth, No. 05-10509 (August 22, 2006) the Fifth Circuit Court of Appeals faced an appeal after summary judgment was granted in favor of the manufacturer of Reglan, a drug used to treat gastroesophageal reflux disease (GERD). The plaintiff had taken the prescription drug for multiple months over the 12 weeks approved by the FDA; each time the drug was ordered by a physician. McNeil developed Reglan-induced tardive dyskinesia in addition to Reglan-induced extrapyramidal symptoms (EPS).

She sued, alleging that "Wyeth had failed adequately to warn physicians and consumers of the increased risk of tardive dyskinesia that accompanies long-term use of Reglan. McNeil argued that Wyeth’s failure to warn rendered the inherently unsafe product unreasonably dangerous. Further, McNeil alleged that the Reglan label was misleading as to the risk of tardive dyskinesia and failed adequately to warn about the increase in risk associated with exposure to the drug for more than twelve weeks." The lower court found the label adequate and dismissed the case.

August 29, 2006

Bad Faith Law Clarified

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

The Tennessee Supreme Court has issued an extremely important decision in the field of bad faith law.

In Johnson v. Tennessee Farmers Mutual Insurance Company, No. E2004-00250-SC-R11-CV (August 28, 2006), Justice Holder, writing for an unanimous court, reversed the Court of Appeals and upheld a bad faith verdict against Tennessee Farmers.

Johnson sued his own insurer after he got hit for an excess judgment in an auto case. A 2-1 decision of the Court of Appeals took away a plaintiff’s verdict of $279,430.92 against Tennessee Farmers, saying that the trial judge had not charged the jury correctly on the law of bad faith. Judge Lee dissented, saying the trial judge had gotten it right.