Day on Torts

July 15, 2006

21% of Tennesse Drivers Uninsured

Motorists Beware! A new study reports that 21% of drivers in Tennessee are uninsured. Read about the study here.

I would love to know what percentage of the drivers that have insurance have only the minimum limits ($25,000 per person, $50,000 per accident).

Use this information to educate your clients about the need to purchase adequate levels of uninsured / underinsured motorist coverage. I have always thought it was an outrage that an agent could persuade a person to waive UM / UIM limits equal to that of their liability limits. While I agree that the limits purchased should be a made of choice, I also think that the agent should be required to say, in writing, what it would cost the customer to have UM / UIM limits equal to their liability limits. Such a rule would ensure that the consumer made an informed decision about what to purchase. I also think that the customer should be required to waive equal limits in writing every year, not just once during the life of the relationship.

July 14, 2006

Doctor Fights Back

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

Dr. Fullerton made a horrible mistake. He testified for a patient in a medical malpractice case. The defendants won the case and turned Dr. Fullerton into the Florida Medical Association "stating, among other things, that his opinion testimony fell below reasonable professional standards, that it was made “for the sole purpose of propagating a frivolous lawsuit for financial gain,” and that he specifically “presented false testimony and false theories about stroke in the hope to prove negligent medical care in an 80-year-old diabetic with previous strokes who suffered a stroke despite appropriate care.” Appellees concluded their letter with a request to the FMA to issue an opinion addressing whether Fullerton’s testimony “fall[s] below standards,” and, if so, to report its findings to the Board of Medicine for appropriate disciplinary action in order “to prevent the Medical profession from being terrorized by similar experts.”

Fullerton (who was not a member of the FMA) responded with litigation, alleging " that the statements in the letter were false and were submitted for processing by the FMA’s Expert Witness Committee (EWC) of FMA’s Council on Ethical and Judicial Affairs (CEJA), which was organized for the purpose ‘of intimidating, hindering, and deterring persons, including plaintiff Fullerton, from appearing as expert witnesses on behalf of plaintiffs in cases involving medical malpractice,’ thereby depriving injured plaintiffs of the ability to pursue medical-malpractice lawsuits. He continued that because of the actions of FMA and the defendant doctors, who acted in concert to inhibit expert testimony in medical malpractice cases, he had suffered damages and would suffer irreparable harm to his reputation and to his capacity to earn income in the future if the defendant FMA’s CEJA and EWC programs were permitted to continue their operations."

The doctors and the FMA claimed they were immune from suit under the peer review statute in Florida. The trial court dismissed the case.

July 13, 2006

Yesterday .. and Today

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

LexBlog provides us various types of service for our four blogs. Yesterday they upgraded our software and therefore we couldn’t blog until the end of the day. And by the end of the day (I left the office at 6:00, came back at 7:45 and left at 9:15) I was ready for bed.

However, today is a new day and we are ready to rock ‘n roll.

I am off to Seattle to the ATLA Convention. I attended by first ATLA Convention in Seattle over 20 years ago. It is a very nice city and I am really looking forward to the trip.

July 13, 2006

When The Snow and Your Client Falls

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

Here is the latest premises case involving freshly fallen snow.

In Clifford v. Crye-Lieke Commercial, Inc., No. M2005-00376-COA-R3-CV (Tenn. App. M.S. July 11, 2006), Judge Koch and his colleagues affirmed a grant of summary judgment in favor of the defendant in a slip and fall case involving freshly fallen snow.

The holding:

July 13, 2006

Merck Wins Vioxx Case

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

Breaking news: Merck won the most recent Vioxx case in New Jersey. The jury decided Merck failred to warn of the risk of heart attack associated with Vioxx, but that failure did not cause the plaintiff’s death. The jury found no fraud or misrepresentation by Merck. Commentary to follow, as John is on the road to Seattle.

July 11, 2006

Jurisdiction Exercised Over Foreign Manufacturer

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

The Illinois Appellate Court has ruled that Illinois courts have jurisdiction over a Japanese parent corporation in a case alleging negligent design.

Plaintiff alleged that her daughter died as a result of a fire started with a Aim ‘n Flame II lighting rod. The lighting rod was designed by Tokai Corporatin in Japan and distributed by its wholly-owned subsidiary, Scripto-Tokai. The subsidiary admitted that Illinois courts had personal jurisdiction over it but the parent contested jurisdiction.

The Court put the issue and holding this way: “This case presents the question of whether a foreign corporation that designs a product can immunize itself from liability for negligent design by marketing the product through a subsidiary. We hold that it cannot. We find that the use of a subsidiary to introduce the product it designed to Illinois markets suffices for the exercise of personal jurisdiction over the foreign corporation for an action for negligent design.”

July 10, 2006

Blue Chipper – Medical Malpractice – Locality Rule

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

The case: Robinson v. LeCorps, 83 S.W.3d 718 (Tenn. 2002). Author: Justice E. Riley Anderson

Why it is a Blue Chipper: Robinson made it crystal clear that a standard of care expert in a medical malpractice case may not base that testimony on a national standard of care and that an expert’s testimony will be excluded if it based solely on a national standard.

The bottom line:

July 9, 2006

The Back Door is Open …

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

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: