Day on Torts

November 12, 2006

Back from Chattanooga – CORRECTED

Chris Nearn correctly pointed out that my post Saturday had incorrect dates for programs in Memphis and Nashville. I don’t know how I messed that up. Thanks Chris. Here is a corrected post.

Thursday and Friday I was in Chattanooga for the first Justice Programs seminar of the year. We doubled our attendance over that of 2005 and put together a solid seminar program (if I do say so myself). The Reed House is a good venue.

Unfortunately, something has happened with my wireless card in my notebook computer and I was unable to post yesterday.

November 9, 2006

GA Court Answers Evidence Question

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

The Georgia Supreme Court was confronted with this question: "In what circumstances, if any, is evidence of a nurse’s failure to pass a licensing examination admissible in a medical malpractice action against the employing physician?"

Plaintiffs’ son Luke was diagnosed with bacterial meningitis resulting in brain damage and quadriplegia. Plaintiffs claimed that Luke’s pediatrician and his employees should have picked up on the symptoms given the information provided in a series of contacts. Plaintiffs introduced expert testimony that the pediatrician, Dr. Basilio, violated the standard of care by permitting an unlicensed nurse to answer weekend calls and give advice without consulting a supervising physician. To support that testimony, the Sniders showed that Nurse DeVera was not licensed. However, the trial court did not allow the Sniders to show that Ms. DeVera failed to pass the nursing board examination.

The Georgia Supreme Court agreed. It said as follows: "Simply put, the issue in this case is not whether Ms. DeVera was generally competent, but whether Dr. Basilio breached the standard of care in hiring her because she was unlicensed. On this issue, the plaintiffs’ experts were able to testify that Dr. Basilio breached the standard of care by hiring an unlicensed nurse and allowing her to answer weekend calls without supervision. The fact that Ms. DeVera was unlicensed was key to resolving this issue. Why she was unlicensed was not."

November 8, 2006

New Tennessee Subrogation Case

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

The Tennessee Supreme Court issued an opinion yesterday in the Abbott v. Blount County, Tennessee case.

In an opinion by now retired Justice Al Birch, the Court made it crystal clear that an insurance company could not require a plaintiff to get approval of plaintiff’s health insurance company before settling a personal injury suit. The Court said that it is "clear that the made-whole doctrine applies regardless of the language found in the insurance contract. Contract terms that require the consent of the insurer would allow the insurer to withhold consent from any settlement that does not make the insured whole and thereby compel the insured to seek a larger award at trial. We disapproved of allowing insurers to contract away the right to be made whole in York, and we do so again today. Finally, we note that the lack of an insurer’s consent does not make an insured more likely to receive a double recovery."

The Court said that there was a genuine issue of material fact about whether the plaintiffs were made whole.

November 7, 2006

Off Topic – T- Shirt

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

Well, I was wrong about the identity of the person who sent me the t-shirt. It turns out it was a lawyer from Tennessee, a regular reader who is an ND fan (but not an ND grad).

Thanks again.

November 7, 2006

No Locality Rule for Lawyers

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

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.