Day on Torts

November 7, 2006

No Locality Rule for Lawyers

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.)

November 6, 2006

Important Decision on Expert Witnesses

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

The Florida Supreme Court has released an important decision on testimony by expert witnesses.

Plaintiff’s counsel sought an order prohibiting a defendant’s expert from testifying that he relied on consultations with colleagues or other experts in forming his opinions. The Florida high court said "that such testimony is inadmissible because it impermissibly permits the testifying experts to bolster their opinions and creates the danger that the testifying experts will serve as conduits for the opinions of others who are not subject to cross-examination." However, the Court made it clear that "our opinion today in no way precludes experts from relying on facts or data that are not independently admissible in evidence ‘[i]f the facts or data are a type reasonably relied upon by experts in the subject.’”

The Court also said that "[a]llowing qualified experts to testify as to the prevailing professional standard of care under section 766.102(1), Florida Statutes (2005), does not permit experts to conduct a survey of a myriad of other experts or colleagues to derive a consensus on the standard of care."

November 3, 2006

No Substantive Post Today

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

No, I’m not dead, just a little tired. I have been in Cincinnati the last two days, preparing a witness one day and attending his deposition on the second day. I did not get home until 8:15 last night and am feeling the effects of spending two long days on the road.

Today I play catch-up until I hit the road at 3:00 to go the Knoxville for the UT – LSU game tomorrow afternoon.

I will be back next week with information you can use to better serve your clients.

November 2, 2006

New Blog on Tort Reform

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

Here is another blog on tort reform.

The introduction: "Tort reform” has become a staple of Republican politics. Limits on lawsuits are offered as a solution to everything from the health care crisis and economic stagnation to America’s moral decline. Americans overwhelmingly believe that the nation is awash in frivolous lawsuits.

And that’s just where The Tortellini comes in. Because most of what you’ve heard about “lawsuit abuse” is wrong. The majority sentiment on legal reform comes courtesy of a long disinformation campaign by the U.S. Chamber of Commerce and other big business sponsors like the tobacco, insurance and automobile industries. These folks have managed to convince voters from to Hawaii to Maine that plaintiffs in civil actions are whiners, hustlers, and layabouts, and that their attempts to win the “lawsuit lottery” have created a “litigation explosion.”

October 31, 2006

SCOTUS Hears Punitive Damages Case

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

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.