Day on Torts

April 25, 2006

Discretionary Costs

The Tennessee Court of Appeals has ruled that deposition videotaping expenses (and the cost of synchronizing the deposition with the written transcript) are not recoverable as discretionary costs under Rule 54.04 of the Tennessee Rules of Civil Procedure.

The case is Parker v. Brennan, No. M2005-01376-COA-R3-CV (April 19, 2006).

The Rule should probably be amended to allow the successful party to recover the lesser of the court reporter charge or the videographer charge. Why? Because you do not have to use a court reporter to capture testimony at a deposition; the video counts as the official transcript. Therefore, a party that elects not to have a court reporter present and to rely on the video transcript should be able to recover the cost of the videographer.

April 24, 2006

Keeping Up With Dates

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

Missing deadlines is something that can happen to anyone. This legal malpractice case, against the Baker Donelson firm, demonstrates what can happen when an important deadline (filing notice of appeal) is missed.

April 24, 2006

Tongue Tied?

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

Do you ever get that feeling that you just can’t get the words from your brain to come out your mouth – correctly?

You are not alone.

Thanks to The Wall Street Journal Law Blog for telling me about this story.

April 22, 2006

More from Steven

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

Steven and I have been having a discussion – it started here. Here is his latest missive:

“My mistake, I did not mean to state that this particular lawyer(s) was sleazy, but that the trial bar in general is sleazy. I will admit that there must be some decent trial attorneys just as there are bad doctors, cops, judges, etc.

As for your comment about doctors and EtOH, drugs, etc., it is true that many docs have problems, but experts and studies have shown that the last thing in their life they let go is often their career. This is probably true for most professions as well. Plus, I would never call someone with a disease sleazy, that would be “shallow.”

April 21, 2006

Amounts of Settlement Not Discoverable

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

The Arizona Court of Appeals has ruled that the amounts of settlements made by doctor in other cases are not discoverable in another medical malpractice action against him.

The case is Miller v. Kelly; it is reported at 130 P.3d 982 (Ariz. App. 2006).

The Court held that “the amount paid in settlement of a claim establishes neither negligence nor gross negligence” and that the information is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. The Court noted that “[p]ermitting disclosure of amounts paid in settlement of a lawsuit contrary to an express provision ensuring the confidentiality of that information likely would discourage parties from settling. And disclosure of that information poses the risk that conclusions will be drawn about the paying party’s culpability and the degree of culpability based on the fact that payment was made and the amount.”

April 20, 2006

Was I Too Harsh?

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

I got this comment from Steven concerning my post about the settlement of the medical malpractice lawsuit concerning John Ritter’s death:

“{T]his illustrates the insanity of the system. If a patient arrives in the ER with a ruptured AAA (abdominal aortic aneurysm), his chance of survival is ~50%. 25% die on the table. It is a very big surgery, and most die before making it to the hospital, making the actual mortality higher. An aortic dissection, can be a difficult diagnosis to make, and the surgery while not as challenging is still very difficult with a significant morbidity and mortality. Anyone who has ever had to work up chest pain knows this is part of the differential, but the odds are very small that this is the dx. Also, patients don’t show up and say I have “aortic dissection.” Doctors have to piece together many factors.
While his death is tragic, there is no guarantee that even if the doctor was superman (or superwoman) with Xray vision able to make a diagnosis instantaneously, John Ritter would have survived.
However, it is a sad story, so I guess if I was on the jury, I would listen to the sleazy trial attorney and decide to “award” the attorney some money for all his suffering. Who knows maybe the family will receive some of it.”

My response:

April 20, 2006

Tractor Trailer Wrecks In News Again

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

The FMCSA has a new study out that “[d]rivers of large trucks and other vehicles involved in truck crashes are ten times more likely to be the cause of the crash than other factors, such as weather, road conditions, and vehicle performance ….”

A quick summary from the press release: “The study, conducted with the help of the National Highway Traffic Safety Administration, investigated a national sample of fatal and injury crashes between April 2001 and December 2003 at 24 sites in 17 states. Each crash involved at least one large truck and resulted in at least one fatality or injury. The total sample of 967 crashes included 1,127 large trucks, 959 non-truck motor vehicles, 251 fatalities, and 1,408 injuries. Action or inaction by the driver of either the truck or other vehicle was the critical reason for 88 percent of the crashes.”

Here is the study.

April 19, 2006

Data Concerning Injuries

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

Here is some interesting data about injuries in the United States from the CDC National Center for Injury Prevention and Control:

* 50 million injuries a year require medical attention

* Cost in medical expenses? $80+ Billion

April 19, 2006

Wrong Site Surgeries

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

Go to the Tennessee Medical Malpractice Law Blog for a post on wrong site surgeries.

April 18, 2006

Lawyer and Insurer May Be Sued For Pressuring Opposing Witness Into Not Testifying

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

Teresa Sigmon, attorney for the defendant in a medical malpractice case, allegedly pressured one of the plaintiff’s consulting experts in the case into withdrawing from an agreement to testify for the plaintiff. The plaintiff then sued her, her law firm, and the the medical malpractice insurer for “abuse of process, intentional interference with a business relationship, inducement/procurement of a breach of contract, and coercion of a witness.” (The defendant doctor was also sued originally; that claim was dropped.)

The Sixth Circuit Court of Appeals remanded all of the claims against the lawyer and her law firm for trial except the abuse of process claim.

The Court found the existence of a business relationship between the consultant and the plaintiff and found that a claim existed under both the interference and inducement theories.