Day on Torts

June 28, 2006

Attacked Expert Fights Back – and Wins

Dr. Gary Lustgarten testified the for the plaintiff as an expert in a medical negligence trial in North Carolina. Lustgarten testified that in his medical opinion that certain notes made by one of the defendant’s, Jauffman, were inaccurate. After the case settled, one of the defendants filed a complaint about Lustgarten with the American Association of Neurological Surgeons, which yanked Lustgarten’s membership. One of the defendants also complained to the State Medical Board, which pulled Lustgarten’s license.

Lustgarten appealed the ruling to the Wake County Superior Court, which affirmed. The North Carolina Court of Appeals reversed, saying “we conclude that the superior court erroneously affirmed the board’s determination, as the substantial record evidence does not permit an inference that Dr. Lustgarten made an entirely unfounded statement concerning Dr. Jauffman’s notes.”

This excerpt from the decision tells the story:

June 26, 2006

Trial Is Not a Game

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

I remember years ago trying a case against a well-known lawyer in Nashville (who is still practicing, by the way.) I moved in limine to prevent certain testimony from being introduced into evidence; my motion was granted.

Later that day I saw the witness in the hallway who would have been in the position to offer the excluded testimony. I asked the witness if he had been informed about the ruling. He said that he had been told by my opponent that he (the lawyer) could not ask him (the witness) a question about the matter that was excluded but he (the witness) could volunteer it.

Here is a case from Florida that explains is simple terms the obligation of a lawyer who knows that a witness has testimony that has been ruled inadmissible.

June 24, 2006

Broken Link

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

Moe Levine wrote and let me know that a link to the article that formed the based of my post about admissibility of electronic records was broken. He is right – and now I cannot find the article. I will keep looking.

Sorry about that.

However, if you go to the cases cited in the post you will find the substance of the article.

June 23, 2006

Ford Escort Seat Back Defect Verdict for Plaintiff Affirmed

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

The Eastern Section of the Tennnessee Court of Appeals has affirmed a jury verdict for the plaintiff in a case involving the design of a seat back in a Ford Escort. The case is Potter v. Ford Motor Co., No. E2005-01578-COA-R3-CV; it was decided on June 21, 2006. The opinion was authored by Judge Sharon Lee.

Ford argued that “to establish a prima facie case, the plaintiff must prove ‘the availability of a technologically feasible and practical alternative design that would have reduced or prevented the plaintiff’s harm.” The Court disagreed, saying that no Tennessee state court had ever stated that Tennessee law placed that burden on a plaintiff. Judge Franks concurring, stating that while he agreed that what Ford said should be the law it was not the law of Tennessee.

[As I read the excerpts of the testimony of one of the plaintiff’s experts, the plaintiff introduced testimony that the plaintiff would not have been catastrophically injured if the Escort had been equipped with a belt integrated seat.]

June 23, 2006

Cheating Lawyer Loses Ticket

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

Pennsylvania lawyer Michael Radbill, a Philadelphia attorney who served time in prison for defrauding insurance companies by filing claims on behalf of personal injury plaintiffs who faked injuries and participated in staging slip-and-falls, has been disbarred. He served a one year prison term – which seems light but seems truly unjust when compared to that ordered for Anna Alaya (the finger-in-the-chili-at-Wendy’s woman).

He also had some tax problems – apparently the IRS was disappointed that he was deducting salaries paid to his wife and his girlfriend when neither of them worked in the office.

Here is the article from Law.com.

June 22, 2006

Admissibility of Computerized Records

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

How do you get computerized records into evidence? A recent case, In re: Vinhnee, 2005 WL 3609376 (B.A.P. 9th Cir. Dec. 16, 2005), has an extended discussion of the issue.

This case conflicts with the law in our federal circuit, United States v. Salgado, 250 F.3d 438, 453 (6th Cir. 2001), which has a more permissive approach to laying the requisite foundation.

The case is the subject of a discussion in this article published at www.law.com website. The article cites several different cases on the subject.

June 21, 2006

Pre-Judgment Interest – The Issue That Will Not Die

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

Pre-judgment interest is not the Wicked Witch of the East – it will not die. (Do you remember the unseen WWE? Dorothy parked a house on top of her and ended up with her ruby red slippers – much to the chagrin of WWE’s sister, the Wicked Witch of the West.)

Tennessee does not have a statute that unquestionably permits the award of pre-judgment interest in tort cases, either as a matter of right or of discretion. It is fair to say that after a flurry of activity in the 1990s the issue appeared to be dead – until the Tennessee Supreme Court’s opinion in Hunter v. Ura, 163 S.W.3d 686, 706 (Tenn. 2005). That opinion placed pre-judgment interest on a ventilator, with plaintiffs’ lawyers praying for a full recovery and insurance companies searching desperately for the power cord.

Now, Judge Koch and his colleagues on the Middle Section of the Tennessee Court of Appeals have declared pre-judgment interest dead. How dead? Judge Koch could have cited the medical opinion of the Coroner of the Land of Oz (given to a reasonable degree of coroner certainty) to reflect his views of the viability of pre-judgment interest in Tennessee:

June 20, 2006

Sex Torts

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

I hesitate to use this title – my “comments” log is already filled with posts from people who try to sell sex over the Internet.

But “Sex Torts” is the name of a law review article by Deana Pollard and, at a minimum, that title got each one of you to read this far, didn’t it?

Here is an abstract of the article:

June 19, 2006

Manual For Complex Litigation, 4th Edition

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

The MCL is a great book and it is now available for free. The new edition “updates the treatment of electronic discovery and other aspects of pretrial management and describes major changes affecting case management in the substantive and procedural law in mass torts, class actions, intellectual property, employment discrimination, and other types of litigation.” It has dozens of forms, a good number of which can be used in “normal” cases.

Find the book here.

June 19, 2006

Early Risers

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

There are a good number of you folks – almost 50 of you every workday – who check this blog before 8:00 a.m. I typically get up between 4:00 and 4:30 and do my daily post first thing in morning, so some of you have come to expect that I will have posted by the time you have had your first cup of coffee. Indeed, my friend Keith Williams called me one time when I did not post before 8:00 because he thought I must be ill.

Tomorrow will be a little different. I have to go to Baltimore this morning and Washington, D.C. this afternoon. I have decided not to haul a computer will me so, unless the hotel has a business center with access to a computer, I will not be posting tomorrow until close to Noon.

Thanks for reading. If you have any suggestions for what I can do to improve this blog please let me know.