Day on Torts

August 11, 2006

Guidant’s Attempt to File Papers Under Seal Challenged

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.

August 5, 2006

Ford Recall Extending Recall Concerning Cruise Control

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

Ford Motor Company has recalled 6,700,000 vehicles that have faulty cruise control systems that can cause the vehicle to catch fire.

Ford now agrees that "brake fluid might leak from the switch that deactivated the cruise control once the driver stepped on the brake. That fluid can drip onto the cruise control’s electrical component, cause corrosion and ignite a fire. " Read more here.

This site will allow you to determine if your vehicle has been recalled simply by plugging in your vehicle identification number (VIN). If your vehicle has already burned up your VIN number is on your vehicle registration. If that burned up too your dealer or the governmental entity that licensed the vehicle can give you the number.

August 4, 2006

Depositions and the “Usual Stipulations”

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

Here is a great post – collecting other great posts – about the meaning of the "usual stipulations" in a deposition.

Thanks Evan.

August 4, 2006

Failure to Appeal Cases

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

When a lawyer is sued for negligence in conjunction with the appellate process who decides whether or not the appeal would have been successful, judge or jury?

The judge makes the decision, according to the Illinois Supreme Court. The Court said that "the issue of proximate cause in an appellate legal malpractice action is inherently a question of law for the court and not a question of fact for the jury."

The case is Governmental Insurance Exchange v. Judge, Docket No. 100668 (Ill. S.Ct. May 18, 2006). Read it here.