Day on Torts

August 16, 2006

Destructive Testing

Law.com has posted an interesting article about destructive testing in products liability actions. The article was written by Michael Hoenig and was originally published in the New York Law Journal.

The article discussed the recent case of Mirchandani v. Home Depot, U.S.A., Inc., 235 FRD 611 (D. Md. 2006), in which the court was faced with a request to permit destructive testing of a bolt that allegedly failed on a ladder. The court sought to achieve a "balance between the ‘costs of irreversibly altering the object and the benefits of obtaining the evidence sought in the case.’" In doing so it weighed these four factors:

"(1) whether the proposed testing is reasonable, necessary and relevant to proving the movant’s case;

August 15, 2006

Lack of Sleep and Commerical Drivers

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

A recent study reports about the risk of lack of sleep on commercial drivers. In an article entitled "Impaired Performance in Commercial Drivers: Role of Sleep Apnea and Short Sleep Duration" researchers from the University of Pennsylvania "examined 406 truck drivers and found that those who routinely slept less than five hours a night were likely to fare poorly on tests designed to measure sleepiness, attention and reaction time, and steering ability. Drivers with severe sleep apnea, a medical condition that causes a poor quality of sleep, also were sleepy and had performance impairment," according to a summary of the article at Insurance Journal.

The Penn report indicates that 5600 people per year are killed in wrecks with commercial trucks and that many of them involve drivers falling asleep at the wheel.

The Penn report is published in American Journal of Respiratory and Critical Care Medicine. The article can be accessed here.

August 14, 2006

Assignment of Fault to a Nonparty

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

Under Tennessee law fault cannot be assigned to a plaintiff’s employer but the defendant is permitted to prove and argue that the employer was the cause in fact of the injury.

But what if the defendant wants to ask the jury to apportion fault to an entity that is deemed an employer under Tennessee worker’s compensation law and therefore obtains the benefit of immunity from suit by the plaintiff? Can the statutory employer be assigned fault even though the plaintiff cannot sue it?

In a case of first impression, the Court of Appeals (Western Section) says "yes" in Troup v. Fischer Steel Corp., No. W2005-00913-COA-R3-CV ( August 10, 2006) and in doing so reversed a $500,000+ verdict for the plaintiff. The court ruled that the Trial Court erred when it failed to permit the steel subcontractor defendant from proving and arguing the fault of the general contractor in a personal injury case filed by the employee of the roofing subcontractor.

August 11, 2006

Guidant’s Attempt to File Papers Under Seal Challenged

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

Public Citizen has challenged an attempt by Guidant Corporation to keep secret certain papers filed in litigation in Minnesota.

The Public Citizen press release says that "two subsidiaries of Guidant that produce and sell controversial cardiac rhythm management (CRM) devices sued the health care consulting company Aspen Health Care Metrics for publishing information about the prices of Guidant’s pacemakers. The briefs supporting and opposing summary judgment, and all supporting papers, were filed under seal without any documentation of need for secrecy. … ‘Under well-established law, the public has a presumptive right of access to judicial records, which may only be overcome by a showing of sufficiently important countervailing interests,’ the motion [which was filed to make the records public] reads. ‘Guidant has never made such a demonstration, and it does not appear that Guidant will be able to do so.’"

Recall that Guidant is also involved in personal injury and wrongful death claims concerning problems with its implantable pacemakers.

August 10, 2006

Liability of Manufacturer For Design Defect When Customer Supplies Part of Design

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

The Eighth Circuit Court of Appeals has ruled (applying Minnesota law) that a product manufacturer who is following specs supplied by its customer can be liable for defective design in the evidence shows that the manufacturer particpated in the design of the product.

Of course, the general rule is that a manufacturer which follows the design of another is not liable for defective design unless the specifications are so obviously dangerous that they should not be followed. Here, however, the plaintiff pointed to specific facts from which a jury could conclude that the defendant jointly designed the product.

The case is Thompson v. Hirano Tecseed Company, Ltd., No. 05-2813 (8th Cir. August 1, 2006).

August 9, 2006

Audio Seminar

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

Next Wednesday (August 16, 2006) I will be presenting a one-hour seminar on Tennessee tort law. The seminar is called "Tennessee Tort Law: What’s Hot, What’s Next."

The telephonic seminar is sponsored by M. Lee Smith & Co. and begins at 10:00 CDT. Register here.

August 9, 2006

Illinois Court Decides Duty Issue

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

Did Burger King have a duty to design its stand-alone restaurant in such a way to protect its in-house dining customers from being struck by a car that came through the building’s wall?

The Illinois Supreme Court addressed this problem in the case of Marshall v. Burger King Corporation, Docket No. 100372, ( Ill. S.Ct. June 22, 2006). The Court started its analysis this way:

"The touchstone of this court’s duty analysis is to ask whether a plaintiff and a defendant stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff. This court often discusses the policy considerations that inform this inquiry in terms of four factors: (1) the reasonable foreseeability of the injury, (2) the likelihood of the injury; (3) the magnitude of the burden of guarding against the injury; and (4) the consequences of placing that burden on the defendant. " [Citations omitted.]

August 8, 2006

Playing the Game with Statistics – and Playing it Wrong

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

Author of a recent article published in Medicine, Health Care and Philosophy have taken a hard look at the 1986 article in the New England Journal of Medicine by Karin Nelson and Jonas Ellenberg that led the medical community to sing in chorus that lack of oxygen was rarely a cause of cerebral palsey.

The new article finds that the central argument of the 1986 article relies on "straightforwardly fallacious statistical reasoning." The author’s concern is that the 1986 article improperly influences "how carefully fetuses are monitored during labor and delivery, expert testimony in malpractice cases, and public policy decisions."

(Remember my recent post on the birth-related injuries prevented by Seaton hospitals after they instituted various measures to provide more uniform care to expectant mothers? If lack of oxygen is rarely a cause of cerebral palsey why did those (and other) injuries decrease by almost 90% when new procedures were adopted?)

August 8, 2006

Federal Rules of Evidence

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

Have you ever been struggling with an evidence issue and wanted to avoid standing up to grab a copy o fthe Federal Rules of Evidence?

Here is a copy.

And here is a copy of the Tennesse rules.

August 7, 2006

When Can A Guardian’s Lawyer Be Held Liable to the Gaurdian’s Ward?

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

In Pederson v. Barnes the Alaska Supreme Court was faced with the issue of the circumstances under which a guardian’s lawyer is liable to the ward for the guardian’s wrongdoing.

Aiken became Barnes’ guardian after Barnes’ parents died. (Barnes was a minor at that the time of their death.) Pederson represented Aiken in the proceedings to become Barnes guardian. In about two years the $111,000 estate was almost entirely dissipated.

Barnes sued Aiken and Pederson and another lawyer working with Pederson. The lawyers moved for summary judgment, arguing that they did not have any actual knowledge of wrongdoing by Aiken. The motion was denied, and the jury returned a verdict against Pederson for compensatory and punitive damages.