Day on Torts

March 22, 2006

Natalee Holloway

The death of Natalee Holloway is a tragedy in every sense of the word. It is a tragedy compounded by screaming skulls (as opposed to talking heads) like Nancy Grace, a pseudo-journalist who has successfully managed to purge any gray matter she might have of anything she was supposed to learn in law school about the Bill of Rights. Nancy Grace is a poster child for what is wrong with cable “news” shows.

Back to Natalee. Her parents have filed a wrongful death lawsuit against Joran Van Der Sloot and Paulus Van Der Sloot. Under the law in every state, they certainly have a right to do so, i.e. they have a right to prove in the civil justice system what the criminal justice system has not been able to prove.

The Van Der Sloots have been sued in New York. Natalee’s parents are asking Alabama law to apply to that case.

March 21, 2006

Lanier v. Merck, Round 2, Post 10

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

The news from the New Jersey Vioxx trials.

March 21, 2006

SCOTUS Denies Cert in Punitive Damages Case

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

The Supreme Court denied cert in a cigarette case yesterday, letting a $50,000,000 punitive damages award stand against Phillip Morris. The compensatory damages in the case were $5,500,000.

This will be an encouragement to the plaintiff in the Oregon tobacco case; recall that the Oregon Supreme Court affirmed a $79.5 million punitive damage verdict for that plaintiff recently.

Lanier v. Merck, Round 2, Post 9

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

The plaintiffs are wrapping up their case in New Jersey. Here is a report of the events of last Friday.

March 20, 2006

Discretionary Costs

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

Yesterday I wrote about Carpenter v. Klepper and its discussion about the locality rule. The last third of that opinion is worth reading, too – it addresses the level of specificity required when seeking discretionary costs under Tennessee Rule of Civil Procedure 54.04(2). Read it for some insight on how these issues should be addressed via post-trial motion.

March 19, 2006

Doctor and Employer “Bit By Their Own Dog”

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

The locality rule in medical malpractice cases is absolutely ridiculous. It is designed to create an artifical barrier to recovery, to protect doctors and hospitals, particularly those in rural areas, from malpractice suits. It pretends that there is a difference in the standard of care given the size of the community, as if people from smaller towns are entitled to less quality of care than those of bigger towns.

(Don’t get me wrong – there are some services that hospitals in rural towns that are not and should not be provided and there are some doctors in rural areas who lack the practical experience of taking care of some types of patients. The patients who need this help need to referred to a place where such help is routinely given.)

Well, a doctor and his group in Clarksville just got bit by their own dog. A medical malpractice verdict for the plaintiff was reversed because the Court of Appeals found that the defendents’ experts did not meet the qualifications of the locality rule.

March 17, 2006

Introducing “Bad” Documents

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

The “smoking gun” document does not do you any good unless you can find a way to get it introduced in to evidence. You have to determine what foundation must be established to introduce the document into evidence, call the witness or witnesses necessary to establish that foundation, and be able to link the document to your theory of the case as set forth in the complaint (to establish that it is relevant).

Here is an article by Leslie O’Tool and Wendy Sexton, two defense lawyers, which explains how your opponents intend to try to keep that smoking gun document out of evidence.

The article appeared in the Fall, 2005 edition of FDCC Quarterly, PDF page 79.

March 16, 2006

Lanier v. Merck, Round 2, Post 8

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

Here is the latest on the Vioxx trial – with two plaintiffs – currently underway in New Jersey. Recall that this is the case where each plaintiff claims more than 18 months of use of the drug, a critical factor in the minds of all concerned.

March 16, 2006

Waiver of Expert Witness Rule

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

Back in 1975 the Tennessee Legislature determined that the only health care providers who could testify against a Tennessee health care provider in a malpractice case where experts from contigious states. This is an assine rule – but it is still the law.

You can avoid the contigious state rule with permission of the trial judge. This opinion in Steele v. Berkman reminds us that we have to have some proof of the efforts made find an expert from a contigious state so that the court can determine that a waiver of the rule is appropriate.

The waiver has been applied in Childress v. Bennett, 816 S.W.2d 314, 316 (Tenn.1991) and Steele v. Ft. Sanders Anesthesia Group, 897 S.W. 2d 270, 281 (Tenn.Ct.App. 1994). It was denied in Rose v. HCA Health Services of Tennessee, 947 S.W. 2d
144, 148 (Tenn.Ct.App.1996).

March 15, 2006

Trip to the 11th Circuit

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

As I mentioned Sunday, I went to Atlanta Sunday night, locked myself in a hotel room, and spent all day Monday and several hours early Tuesday morning preparing for an argument in the 11th Circuit Court of Appeals. As a result, I am very behind in my work and need to concentrate on it today.

Back in the saddle tomorrow!