Day on Torts

September 12, 2006

A New Way to Limit Access to the Courts

Ok. You have heard of damage caps, certificates of merit, and restrictions on fees that one side of a dispute can pay its lawyers (but no cap on the other side). And you have heard of experts having to know the local standard of care in reading x-rays or determining whether it is appropriate to operate the right leg when a patient has given given consent to operate on the left. And if you are from Tennessee you know that medical experts have to come from contigious states to be qualified to testify in a medical malpractice case.

But the good folks down in Alabama have come up with a new way to erect a hurdle on litigants. How? The Legislature passed a law that says that in Alabama an engineer who is a witness in a case has to be licensed in Alabama. Yep. And that rule was recently upheld by the Alabama Supreme Court in Board of Water vs. Hunter, 2006 WL 2089914 (July 28, 2006). (Alabama does not post its opinions on a website that has free public access, there being no particular reason to let the people know what is going on in the court system. Hell, if they read this stuff they might actually turn out and vote.)

The relevant statutes:

September 12, 2006

Glaxo Pays $3.4 Billion to IRS – No Big Deal

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

Did you see that Glaxo has agreed to pay the IRS $3.4 billion dollars in past due taxes? Read more here. Glaxo had estimated that it might be on the hook for $15 billion.

The good news for Glaxo is that paying the money will not have any significant impact on the company’s earnings. Isn’t that nice?

The Washington Post says that "the case, which began with an IRS audit in the early 1990s, involved the way Glaxo paid taxes on U.S. profits from such popular drugs as Zantac, a stomach remedy, Imitrex, for treatment of migraines, and Ceftin, an antibiotic."

September 11, 2006

New FTCA Case Involving Spina Bifida

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

Timothy Brown sued the United States alleging that his daughter Melody developed spinal bifida as a result of a military doctor recommending to Deborah Brown (Melody’s mother and a member of the military) than she (Deborah) stop taking prenatal vitamins during a critical period in his development in utero. The vitamins contained folic acid, which the Tommy alleged is intended solely to prevent neural tube defects in a developing fetus. Neural tube defects can cause serious spinal cord and brain injury during the first 28 days of gestation, after which the fetal neural tube closes. Deborah Brown sustained no physical injury whatever from the effects of the negligent prenatal treatment, from her pregnancy, or from Melody’s birth.

The United States moved to dismiss, alleging that it was immune from suit under Feres v. United States, 340 U.S. 135 (1950). Feres held that the government “is not liable under [the Act] for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” Id. at 146. Plaintiff argued that the Feres doctrine was inapplicable because Melody’s injury was not derivative of any injury to her mother but was, rather, the result of negligence affecting Melody directly(albeit in utero).

The district court (Judge McCalla in Memphis) dismissed the case, saying the case was controlled by a prior decision of the Sixth Circuit in Irvin v. United States, 845 F.2d 126 (1988), which held that "the treatment accorded to a pregnant member of the military on active duty is inherently inseparable from that accorded to the fetus and that such a claim would therefore force a judge to question the propriety of decisions or conduct of fellow members of the military."

September 8, 2006

Discoverability of Materials Given to Expert Witnesses

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

The United States Court of Appeals for the Sixth Circuit has ruled that all material given to testifying expert witnesses must be disclosed, including attorney opinion work product materials.

The circuits have been split on this issue. In Regional Airport Authority of Louisville and Jefferson County v. LFG, LLC, Case No. 05-5754 (6th Cir. Aug. 17, 2006), the court clarified the law in the Sixth Circuit.

The precise holding: "The bright-line approach is the majority rule, represents the most natural reading of Rule 26, and finds strong support in the Advisory Committee Notes. Therefore, we now join the "overwhelming majority" of courts . . . in holding that Rule 26 creates a bright-line rule mandating disclosure of all documents, including attorney opinion work product, given to testifying experts." (Emphasis added.) Don’t try to argue that whatever information you gave to the expert wasn’t considered by the expert and therefore is not discoverable; the word "given" was deliberately chosen by the court to void that argument.

September 7, 2006

Newt is Back

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

Remember Newt Gingrich? Of course you do. Former Speaker of the House. Author of the Contract on America.

And now, the author of a new list of issues for Republicans to focus on during the coming months, which he titles "11 Ways to Say: "We’re Not Nancy Pelosi."

His introduction: "Republicans should spend the next two months focused on 11 straightforward, morally grounded issues about which the American people have clearly defined beliefs.

September 6, 2006

Commission Picks Three For TSC Opening

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

The Judicial Selection Commission has selected three people for the open position on the Tennessee Supreme Court: Hon. Bill Koch (Judge on the Court of Appeals, Nashville), Hon. D’Army Bailey (Circuit Judge, Memphis) and Houston Gordon (lawyer, Covington).

None of the appointees was from East Tennessee because there are already two justices from that part of the state (Chief Justice Barker and Justice Wade) and the Constitution limits membership on the Court to no more than two judges from any one Grand Division.

September 6, 2006

Interesting Article on Worker’s Comp

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

I know that this article is off-topic, but I could not let it pass.

It seems that claim severity is down in the worker’s compensation market. This article reports that "[o]verall injury rates have dropped by an average of 3.9% per year since 1996 including an estimated 4.5% decline in 2005, according to the 2006 study. But for the two most recent years, high-cost claims have shared equally in the frequency decline …."

Does this mean rates will be coming down? Nope – because medical costs have seen average increases of 9.1% each of the last four years.

September 5, 2006

Auto Death Rates Decreasing

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

Everyone knows that auto death rates are decreasing. But why?

This study tells us that the reason is safer autos. Issued by the Insurance Institute for Highway Safety, the study says that "an increasingly dangerous traffic environment has been offset since 1994 only because people are driving vehicles that are more protective…."

The press release indicates that the full report, "Trends over time in the risk of driver death: what if vehicle designs had not improved?" by C.M. Farmer and A.K. Lund will be published in the journal, Traffic Injury Prevention, later this year.

September 5, 2006

Labor Day Weekend

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

I hope each of you had a wonderful Labor Day Weekend.

My wife and I spent the weekend at the lake. Saturday and Sunday I did no work whatsoever, the first time in months I have taken two days off in a row with absolutely no work. Monday I was back at it (depositions today) but even then I did not have to put in a full day.

I need to get back to the days when I took the weekends off. I intend to do so. Soon.

September 1, 2006

Vioxx Damage Verdict in New Orleans Thrown Out

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

Judge Fallon has thrown out the $50M compensatory damage award and a $1M punitive damage award in the recent New Orleans Vioxx trial. He ordered a new trial on damages.

No surprise here. The compensatory award obviously had a significant punitive component.

Here is the Order.