Day on Torts

March 30, 2006

Sanctions for Misconduct of Counsel

Lawyers who cheat need to be popped – hard. Here is an article about a defense lawyer who commented during opening statement on evidence that had been excluded by the trial judge. The appellate court reversed an order of sanctions against him.

I was in a trial a little over a year ago where the defense lawyer repeatedly violated an order on a motion in limine. The lawyer knew that we did not want a mistrial and the judge refused to come down hard when the order was violated. I knew that asking for sanctions would be an exercise in futility.

I do not know all of the facts of the PA case so it is difficult to know whether the appellate decision is right or wrong, but from what appears in the article it seems to me that, at the very least, the defense lawyer knew or should have known that he was pushing the envelope. In my opinion it is the responsibility of the lawyer to know what the judge has ruled in limine, and if he or she does not understand the ruling to ask for a clarification. It is not appropriate to gamble on what the order means and ask for forgiveness later.

March 30, 2006

Lanier v. Merck, Round 2, Post 15

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

The end is near in the New Jersey Vioxx trial. Here is the latest.

March 29, 2006

Lanier v. Merck, Round 2, Post 14

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

More proof from the defense in the New Jersey Vioxx trial; read about it here.

The next federal Vioxx trial begins June 12, 2006.

March 29, 2006

Tennessee Legislature Rejects Medical Malpractice Bill

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

Yesterday afternoon the Civil Practice Subcommittee of the House Judiciary Committee voted 3-2 to reject a bill offered by Rep. Doug Overbey that would have capped pain and suffering awards to medical malpractice victims and placed other limitations on recoveries. Voting against the legislation were Chairman Briley, Majority Leader McMillian, and Rep. Brooks. Fifteen to twenty doctors and the spouses of several attended the committee meeting and worked the halls before the vote. Several victims of malpractice also attended and spoke with some of the committee members.

The health care industry reportedly spent $500,000+ on this effort and one of their representatives has told me that they will be back next year. They want caps on damages and will accept nothing less.

The legislators opposing this legislation were under tremendous pressure to vote in favor of the health care industry and exercised great courage by standing up in favor of patients. Each of them deserve our thanks and our support.

March 28, 2006

Medical Malpractice Fight Today

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

The Civil Practice Subcommittee of the House Judiciary Committee meets today to hear testimony on the medical malpractice reform bill sponsored by Rep. Doug Overbey. The legislation caps damages non-economic losses at $250,000 against providers and $250,000 against factilities, with no more than $500,000 awarded in any one case. It mandates periodic payments of future damages, changes the rules concerning expert witnesses, limits the bond that must be posted by a defendant on appeal, requires a certificate of merit, and limits attorneys’ fees. The Bill is HB 3693; read more about it here. The five-person committee will vote at the conclusion of testimony.

I will be spending the day at the Legislative Plaza.

March 27, 2006

Lanier v. Merck, Round 2, Post 13

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

The trial of the Vioxx cases in New Jersey is winding down. Here is a recent update.

March 27, 2006

Defense Lawyers Getting Hit With Malpractice Claims

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

This article from Lawyers Weekly U.S.A. explains that insurance defense lawyers are seeing an increased in the number of professional negligence claims filed against them.

An excerpt: “According to an ABA study released last summer, malpractice claims against personal injury defense lawyers increased 6 percent from 1999 to 2003 – the largest increase in any practice area. Nearly 10 percent of all malpractice claims in 2003 were filed against personal injury defense lawyers. Personal injury-defense now ranks third in malpractice claims, behind top-ranked personal injury-plaintiff and real estate. Family law and trusts and estates rank fourth and fifth, respectively.”

Read the article here. NOTE: Link is broken and article now lost in cyberspace.

March 24, 2006

John Ritter’s Family Settles Med Mal Lawsuit

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

John Ritter died of an aortic aneurysm in 2003. His family filed a medical malpractice lawsuit against various health care providers. It now appears that the case has been settled.

I met John Ritter in New York 5 or 6 years ago. I went to a play and at the end the cast came back onto the stage and auctioned off a prop to raise money for an AIDS group. I “won” the auction and got to go backstage, meet the cast (including Henry Winkler), get photos, etc. It was a good deal of fun.

The reason for that little story is this: John Ritter could not have been more gracious. He spent part of his life in Nashville (his dad was country music legend Tex Ritter), and actually lived in a beautiful house about 4 miles away from my house. We talked about Nashville and he told me what wonderful memories he had of my adoptive home. I could tell that he was a kind, compassionate man.

March 24, 2006

Death of Milda Heath, my Grandmother

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

Wednesday morning at 10:30 a.m. my grandmother died at home at the age of 97. My wife Joy and I leave for Wisconsin this morning; the funeral is Saturday in Platteville, a college town of 10,000 people. Platteville is in the Southwest corner of the state and about nine miles from Rewey, the 200+ person village where my grandma lived most of her life.

Grandma graduated from college at the age of 16 (a teaching certificate took one year in 1924) and began teaching one-room school in a schoolhouse on County Trunk A in Iowa County, Wisconsin about 3 miles outside of Rewey. She taught school for thirty years, interrupting her service to raise two daughters. The last years of her career she taught a combined first and second grade class in the brick school across the street from her little yellow home on Main Street. My grandfather built that home from wood he recovered from an old house he tore down.

Every summer she had each of her grandchildren spent one week with her. This was a big deal for my family – Grandma lived 180 miles of two-lane roads away. How she managed to deal with a room full of little kids throughout the school year and then accept the responsibility of having a kid in her home virtually every week of the summer amazes me to this day.

March 23, 2006

Research on Defense of Punitive Damages Cases

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

Punitive damages in Tennessee are rarer than hen’s teeth. But that doesn’t mean that they shouldn’t be sought in appropriate cases – of course they should.

However, it is not enough to simply say: “what the defendant did was bad, real bad” and hope that you can carry the day. Punitive damage cases are aggressively defended and you need to have a good idea of the way defense counsel is going to approach the case.

Here is an article written by Dale E. Hausman of Washington, D.C. His firm represents insurers in insurance coverage matters. The article is titled “An Insurer’s Defense Against Punitive Damages Claims,” and although it is a little dated on the law it gives you an idea of what you will be facing at trial – and thereafter.