Day on Torts

September 6, 2006

Interesting Article on Worker’s Comp

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.

August 29, 2006

Dr. Frist’s Medical License

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

Dr. Bill Frist, who serves both as Majority Leader of the United States Senate and Founder and CEO of APCDBAV (Association of Physicians Capable of Diagnosing Brain Activity Via Videotape), applied for renewal of his medical license in Tennessee, pledging that he met the CME requirements of the State.

This article suggests that he did not.

The excuse? "’As a result of a change in Tennessee’s regulations several years after Dr. Frist came to the Senate, he may be required to complete additional continuing medical education hours,’ spokesman Matt Lehigh said in a statement. ‘A representative of the Tennessee Board of Medical Examiners has been contacted, and Dr. Frist will meet every requirement of the Board.’"

August 28, 2006

Blue Chipper – Parental Liability for Acts of Child

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

The case: Lavin v. Jordon, 16 S.W.3d 362 (Tenn. 2000). Author: Justice William M. Barker.

Why it is a Blue Chipper: Lavin v. Jordan is the leading case on the liability of parents for the willful or malicious tortious acts of their children. It is important to note, however, that despite some rather broad language in Lavin the Eastern Section of the Tennessee Court of Appeals has recently held that neither Lavin nor the statute referenced below are applicable in cases where the child negligently causes injury or death.

The bottom line:

August 26, 2006

Seminars by Justice Programs

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

Former Justice Penny White, former Judge Joe Riley and I are holding our civil trial practice seminars again this Fall.

We started Justice Programs three years ago with the idea that, with increasing specialization in the Bar, a large number of people would prefer to attend an "annual review" program that was focused on the law of interest to civil trial lawyers. Attendance at the seminars have exceeded our expectations and have grown by leaps and bounds each year. We believe that this year’s program will be even better than the one we offered last year and registrations are already flowing into our headquarters in Ripley.

Here is our schedule for 2006: