Day on Torts

June 23, 2006

Ford Escort Seat Back Defect Verdict for Plaintiff Affirmed

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.

June 17, 2006

The Convention, This Blog, and Giving

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

Well, the 2006 TTLA Convention is over. As I mentioned earlier this week, Gary Gober did a great job organizing the speakers for the event.

Many of you came up to me at the various meetings and parties and expressed your appreciation for my work on this blog. I truly appreciate your kind words. A blog does take more effort than you might imagine, although I must say I do not really find it to be “work” in any shape, form or fashion. I learn with every post and, to the extent that I can help my fellow lawyers do a better job representing their clients by sharing what I learn on this blog, so much the better. A rising tide truly lifts all boats.

Some of you asked what you could do for me for providing this service to the Bar. I have one request: support the Tennessee Trial Lawyers Association and its political action committee, Lawyers Involved For Tennessee. Both organizations perform valuable service for the people of Tennessee. TTLA helps advance the cause of personal injury and wrongful death victims on Capitol Hill and educate its members on how to advance the cause of those citizens in our courtrooms. LIFT contributes money to candidates who have made or are willing to make the sacrific of public service in our Legislature. Both organizations deserve our continued support.

June 15, 2006

Summary Summary Judgment

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

Judge Koch and the Court of Appeals for the Middle Section have ruled that a summary judgment in favor of a doctor in a medical malpractice case must be reversed because the plaintiff was not given adequate time to marshal the facts necessary to respond to it and submit an affidavit necessary to defeat the motion.

I have commented before that it is a mistake for lawyers to assume that a trial judge will automatically give a plaintiff additional time to respond to a motion for summary judgment. But this case tells us that a plaintiff must have a reasonable opportunity to respond to the motion, and recognizes that “[i]t is quite conceivable that careful experts will withhold rendering an opinion based on medical records or supporting affidavits alone.”

Say it again, brother. Lawyers who handle medical negligence cases know that the medical records tell only part of the story and that if you develop, in writing, a theory of the case based on the medical records any gaps in the records will be filled with facts contrary to your theory. Am I saying that health care providers lie? Oh, sometimes – they are human. But in the ordinary course “lie” is too strong of word. It is more accurate, and certainly more polite, to say that most human beings tend to resolve doubts in favor of themselves, particularly when those doubts cannot be controverted by something written in their own hand. Hence, a careful expert, and a careful lawyer, will not assume facts that only can be found in the gray matter of an opponent or potentially hostile witness.

June 13, 2006

Emotional Distress Claims Allowed for Trespass to Real Property

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

The United States District Court for the District of Columbia has allowed plaintiffs in a trespass action to seek damages for emotional distress.

Defendant and its predecessors alleged contaminated ground water with gasoline. Plaintiffs’ claims included claims for emotional distress.

The Court ruled that “[u]nder District of Columbia law, it is firmly established that a plaintiff may recover damages for mental suffering unaccompanied by physical injury where the plaintiff sues for an intentional tort. Adams v. George W. Cochran & Co., Inc., 597 A.2d 28, 31 (D.C. 1991); Parker v. Stein, 557 A.2d 1319, 1322 (D.C. 1989); Barnes v. Dist. of Columbia, 452 A.2d 1198, 1199 D.C. 1982). It is also clear that trespass is an intentional tort. E.g., Cleveland Park Club v. Perry, 165 A.2d 48, 488 (D.C. 1960). Although the parties have not cited – and the Court has been unable to find – a District of Columbia decision addressing the availability of emotional distress damages in a trespass case, the decision in Parker is instructive. In that case, the Court of Appeals for the District of Columbia, applying the established rule regarding intentional torts, concluded that emotional distress damages are available in an action for conversion of personal property. Parker, 557 A.2d at 1322-23. Here, the Court can find no meaningful distinction between personal and real property to suggest that courts in the District of Columbia would permit recovery of emotional distress damages for intentional torts involving personal, but not real, property damage. Accordingly, the Court concludes that emotional distress damages are recoverable for trespass actions under District of Columbia law.”