Day on Torts

I saw this and it reminded me of a recent conversation I had.   I was having dinner with several judges and  was complaining about what I felt have been some rather meager fee awards in consumer protection action cases.   (Note:  I had no pending cases before these judges on any attorneys’ fee issue and I do not have a regular TCPA practice.)  I expressed the opinion that it was always relevant  for a trial judge seeking to determine a reasonable fee for a prevailing plaintiff in a TCPA to have the defendant’s counsel produce his or her bills for an in camera review. 

It just seems to me that a good starting point for determining what the prevailing party’s attorney should be paid is what the losing party paid his or her attorney to lose.  Surely the winner should receive no less than the loser and, indeed, should probably be paid more, particularly if they accepted the case on a contingent fee basis.

Of course, their are many other relevant factors (the timing and substance of settlement proposals, etc.), but why not order production of that data?

My friend Bill Marler is THE man when it comes to food poisoning cases.  His firm, based out of Seattle but with a nationwide practice, knows the science of food poisoning inside out.

We worked together on an e coli  case in East Tennessee that we wrapped up earlier this year and got together in July at his home on Bainbridge Island for a wonderful evening.  We talk regularly – most recently I called to give him grief about a story on him in the Wall Street Journal.

Bill’s firm has more blogs than any firm in America and now Bill has one of his own called, not surprisingly, the MarlerBlog.   Read it to keep up with food litigation across the county.

The Tort Deform Blog is offered by the Drum Major Institute of Public Policy.  They say that they blog "confronts and transcends the arguments put forth by the tort ‘reform’ movement, working to ensure that all Americans can access the courts."

The blog is well-written and provides a lot of information for debunking some of the myths about the civil justice system

We had our hearing on the subrogation issue mentioned in last Friday’s post.  Judge Bivins ruled that the made-whole doctrine survived the adoption of no-fault insurance in Michigan and also found that our clients were not made whole from our prior settlement with the defendants.  Accordingly, he declined to enforce the no-fault insurer’s claimed subrogation right,  increasing our clients’ total recovery by approximately $325,000.

One of our clients (Mr. Fraire) is from Mexico and speaks little English.  He made the trip to Centerville (Hickman County) Tennessee for the hearing.  Can you imagine going to a foreign country and being a part of a court proceeding?  Can you imagine doing so when you cannot speak the language?  (Our client knows more English than I know Spanish but not enough to fully understand what was happening as it was happening in the courtroom.)  Mr. Fraire was more than adequately prepared by Brandon Bass and did a fine job.

The insurer has already indicated that they intend to appeal so I guess we will find ourselves in Nashville for oral arguments in about six months.

Mark Zamora (of A Georgia Lawyer ) and David Swammer (of the South Carolina Trial Law Blog) have been working on a group blog for nearly a year and went live about ten days ago. It’s called the Trial Lawyer Resource Center with a shorter URL of TLRCBlog.com.  I am honored that they asked me to be a part of the group that includes these fine lawyers:

Matt Garretson (Cincinnati, Ohio)
Gary Gober (Nashville, TN)
Jay Harris (Toledo, OH)
Tom Kline (Philadelphia, PA)
Rick Kuykendall (Mobile, Alabama)
Todd O’Malley (Scranton, PA)
Ronald Miller (Baltimore, MD)
John Romano (West Palm Beach, FL)
Randy Scarlett (San Francisco, CA)
Karen Shelton (Charleston, SC) [lifecare planner / nurse case manager]
David Swanner (Myrtle Beach, SC)
Mark Zamora (Atlanta, GA)

In that group there are 5 past state TLA Presidents, 3 past Presidents of the Melvin Belli Society, 2 past Presidents of the Southern Trial Lawyers, the current President of Workers Injury Law & Advocacy Group, plus the incoming President of the Inner Circle of Advocates.  

Employee Froman died in an on-the-job accident.  Darling, one of the owners of the employer, threw away the equipment involved in the accident after being asked by an Indiana OSHA employee to keep it for inspection.

Froman’s estate filed suit against the employer; the suit included claims for negligent and intentional spoliation of evidence.  The trial court refused to dismiss the claims for spoliation,  the Court of Appeals affirmed, and the interlocutory appeal accepted by the Indiana Supreme Court.

The ISC reversed.   It first noted that Indiana does not recognize an independent cause of action for spoliation against a party to the underlying claim (first-party spoliation) but had expressly left open the question of whether it would recognize an independent cause of action for third-party spoliation.  (This sent a pretty strong signal about what was to happen next.)