Day on Torts

July 9, 2006

The Back Door is Open …

Ok, so you spend millions of dollars on Congressional elections trying to avoid responsibility for making a product that a jury may determine is defective or unreasonably dangerous and you can’t get enough votes to make it happen.

What’s a Pharma to do?

Go through the back door, via regulation, with some help from your friends at the FDA. As of June 30 new regulations were placed in force to provide more concise and better organized patient information package insert sheets. In return for the huge inconvenience this places on drug manufacturers, the FDA included language that would exempt drug manufacturers from state product liability.

July 8, 2006

Allstate’s Claims Handling Practice

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

Allstate is notorious for its hardball approach to handling claims. Now, Business Week Online tells about a new book “From Good Hands to Boxing Gloves” that will reveal the role that the consulting firm McKinsey & Co. played in changing the business practices of Allstate.

An excerpt from the article: “Collectively, the documents (obtained by the author of the book) present a portrait of business strategies that are at odds with the insurer’s carefully cultivated public image. Rather than simply rushing to the scene of an accident and doling out cash, Allstate deploys a variety of systems set in place by McKinsey to make sure it pays the minimum necessary — and it plays hardball with those who seek more.”

Another: “One of the key elements of McKinsey’s plan was reducing the number of claimants who turn to attorneys after an accident for help in collecting on their insurance. The consultants even forecast what the potential gains in this area would mean for Allstate’s stock. A 25% drop in attorneys appearing in several categories of cases could add $1.60 to Allstate’s share price, one slide states, according to [book author David] Berardinelli’s notes.”

July 7, 2006

Consumer Protection Act Applies to Claim Against Financial Advisor

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

Judge Bill Koch has written a opinion that is worth a read by everyone who visits this blog. The case is Johnson v. John Hancock Funds, No. M2005-00356-COA-R3-CV (Tenn. Ct. App., M.S., June 30, 2006).

Plaintiffs claimed that they received poor advice from their financial advisor and suffered a loss of money. They brought suit under the Tennessee Consumer Protection Act and also asserted several common law torts.

The trial court dismissed the TCPA claim. The Court of Appeals reversed, saying, in part, that:

July 6, 2006

Blog Report

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

I am happy to report that this blog has reached the 750-post milestone. The blog began in February, 2005 and has grown to appoximately 500 unique vistors per business day (only a couple hundred on weekends).

The experience has been a very positive one. It takes me back to the time I started the Tennessee Tort Law Letter over a decade ago. At the time I thought I had a good grasp on tort law, but after I started reading every tort decision released in Tennessee I began to realize what I didn’t know. Now I make more of an effort to keep up with tort law developments nationally so that I can share what I learn on this blog – and once again find out how much there is to know.

The goal of this blog has always been to help lawyers keep up-to-date with developments in tort law in Tennessee and across the nation. In the coming months I am going to make an effort to add to the Blue Chippers List – people seem to like this feature. If there is other information you would like me to seek out and share please let me know.

July 5, 2006

New Tennessee Supreme Court Opinion on “Foreign Object” Exception to Medical Malpractice Statute of Repose

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

The Supreme Court of Tennessee issued an important ruling on the “foreign object” exception to the medical malpractice statute of repose and statute of limitations. The case is Chambers v. Semmer, M.D., and deals with what exactly constitutes a foreign object. The plaintiff’s theory in the case is that a hemoclip was negligently placed on her ureter during a surgery and left there, later causing her left kidney to fail. The defendants countered that they did not leave any hemoclip on the plaintiff’s ureter, but that “hemoclips are used intentionally and are intended to remain permanently,” so they could not be foreign objects. The Supreme Court rejected the defendants’ argument, ruling “that a hemoclip that is intentionally used but negligently placed and negligently left in a patient’s body following surgery may be a “foreign object” under Tennessee Code Annotated section 29-26-116(a)4) that establishes an exception to the one-year statute of limitations and the three-year statute of repose.”

Read more about the opinion at our firm’s Tennessee Medical Malpractice Blog.

July 5, 2006

Sorry for the Infrequent Updates

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

I am at my cabin right now struggling with problems with the “internets.”

July 2, 2006

Medical Negligence

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

I apologize for the lack of a post Friday and Saturday. Friday morning I was in North Carolina and did not have access to a computer. By the time I made it to the office I had back-to-back conference calls or appointments until 4:15 and just decided to wait until Saturday morning to blog.

Friday night Joy and I went to the cabin. I got up early Saturday morning but for reasons I do not understand I could not get access to the Internet. I spent several hours riding my early birthday present (a Sea Doo RXT) and messing around in the water.

I got up early again this morning and, surprise, the Internet connection is working. So, I decided to bang out this post before Joy and I meet our friend Buzz at 8:00 a.m. to get in some water skiing before the water gets rough

June 29, 2006

Priest Tells All

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

Some of you know that we represented two boys who were sexually abused by a (former) Roman Catholic priest who served in the Diocese of Nashville. I came to learn most than I wanted to know (and more that the confidentiality order will allow me to share) about the Church’s response to misconduct of priests.

Here is a clip from CNN that describes a tell-all documentary from a priest in California.

An excerpt from the article:

June 29, 2006

Breaking News: Supreme Court Bars Ex Parte Talks with Plaintiff’s Doctors

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

The Supreme Court just issued its opinion in Alsip et al v. Johnson City Medical Center et al. More information on the opinion, holding that defense counsel may not participate in ex parte communications with a plaintiff’s non–party treating physicians, is available over at our firm’s medical malpractice blog. I am on the road right now, so commentary will follow later.

June 29, 2006

E. Coli 0157:H7 Outbreak

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

The Tennessean has reported that a E. coli 0157:H7 outbreak has sent four toddlers to Vanderbilt University Medical Center. Six other children also became infected with the potentially deadly organism.

The children became infected at Paulette’s Group Day Care Home. The paper reports that the day care center has been cleared of wrongdoing.

We just settled a case where we represented a teenager who became infected with E. coli 0157:H7 in a treatment center in East Tennessee. She became horribly ill, was hospitalized for weeks and received permanent kidney damage. We worked on the case with Bill Marler’s firm out of Washington State; he has a great blog on E. coli 0157:H7 and his firm has more knowledge about this subject than any law firm in the country, if not the world.