Day on Torts

March 5, 2006

Sunday Spoof – Sale of Certain Sex Toys to Become Illegal in Tennessee

The Capitol and Legislative Plaza is abuzz with discussion about a bill introduced in the Tennessee would ban the sale of dildos effective July 1, 2006. The legislation passed first reading on February 27, 2006 and will now work its way through the committee system.

The bill would make it illegal to sell, advertise, publish or exhibit to another person “any three- dimensional device designed or marketed as useful primarily for the stimulation of human genital organs.”

Certain exceptions will be built into the proposed law. If you are a college student or faculty member you can have a dildo if they are “teaching or pursuing a course of study related to such device.” Use of the device can be prescribed by a doctor or psychologist “in the course of medical or psychological treatment or care.” And, the devices may be available in historical societies, libraries and museums.

March 4, 2006

Republican Congressman Off to Prison

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

Rep. Duke Cunningham got sentenced to prison yesterday for accepting at least $2.4 million in bribes. He was looking at a maximum ten-year prison term and actually received eight years, four months.

Cunningham solicted and obtained bribes from defense industry contractors. He used his position to help his co-conspirators get contracts from the Department of Defense.

So, why is this on a blog about torts? Well, this sentence has nothing to do with torts but makes me think about Anna Alaya. She got nine years in prison for attempting to extort a personal injury settlement from Wendy’s.

March 3, 2006

Florida Supreme Court Gets New Fee Rule

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

The Florida Supreme Court ruled that the limitation of attorneys’ fees in medical negligence cases could be the subject of a knowing, voluntary waiver by a plaintiff in a medical negligence suit. It directed the Florida Bar (Florida has a unified bar association) to come up with an appropriate rule to guide Bar and the public on this issue.

Here is the proposed rule. The written waiver is on Page 47 and 48 of the linked PDF file.

Any state that has a fee cap that will make it impossible for a competent lawyer to represent an injured or deceased plaintiff in a medical negligence (or any other tort) action should look to Florida for guidance on the issue.

March 2, 2006

Public Citizen Challenges Trucker Service Rules

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

Sorry for the delay in posting today. I caught a red-eye flight last night and spent 12 hours traveling.

Public Citizen and four other entities have launched another court challenge to the hours-of-service rules that have been promulgated by the FMSCA.

From Public Citizen’s press release: “More than 5,000 people are killed each year in large truck-related crashes and more than 110,000 are injured,” said Public Citizen President Joan Claybrook. “That FMCSA chose in both rules to expand driving hours is astounding given its statutory mandate to make safety its highest priority and Congress’s specific directive to the agency to reduce fatigue-related incidents. We fully expect the court to find once again that this rule violates the agency’s clear assignment to put safety first.”

March 2, 2006

Crazy Juries

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

Health care industry lobbyists: read this article and then try again to convince me that juries are solely motivated by sympathy.

In fact, given that most med mal cases concern serious injury or death (because of the economics of pursing the claims) what explanation do you have for defense verdicts in any of the cases?

And why is it everytime I do not demand a jury in a medical negligence case the defense demands one? Why would they want to expose themselves a crazy jury?

March 1, 2006

New Lawyer Ad

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

Isn’t this nice?

I discovered this at Home Office Lawyer.

March 1, 2006

Appellate Practice Tips

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

The Supreme Court of North Dakota publishes this list of appellate practice types.

Of course, the citations are to North Dakota law but most of the principles are just as applicable in Tennessee.

Thanks to Jim Calloway.

February 28, 2006

Time Limits Imposed at Next Vioxx Trial

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

The parties have agreed to limit the time each side will have to present evidence in the next Vioxx trial. The time-keeping method? Chess clocks.

New Study Says Malpractice Insurance Crisis Over

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

This study by “Americans for Insurance Reform” says that the so-called crisis in the medical malpractice insurance market is over.

The introduction to the report:

“The most recent data from the Council of Independent Agents and Brokers now confirms that the large medical malpractice insurance rate increases that took hold around the nation in 2001 and 2002 have ended.

February 27, 2006

Discovery of Expert Witness Materials

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

To what extent may a party discover communications between an oppsoing party and its expert witness? The Supreme Court of Rhode Island recently addressed this issue in Crowe Countryside Realty Associates Co., LLC v. Novare Engineering Co. (For some reason I cannot get a good link to the opinion so you will have to track it down on the Rhode Island Supreme Court website, Westlaw or Lexis.)

Here is a handy summary of the 19-page opinion: “Without the ability to protect their own conclusions and theories from discovery, attorneys may not be able to fully and confidently prepare expert witnesses for their clients’ trials. Permitting full disclosure
of everything revealed to expert witnesses might hamper the trial preparation process because attorneys would be reluctant to reveal their mental impressions, legal theories, trial tactics, and strategies to testifying experts. In our opinion, it is the disclosure of just such information that Rule 26(b)(3)’s dictation of the work-product privilege was intended to prevent. … We therefore hold that the clear language in the second sentence of subdivision (b)(3) requires that a court protect all core or opinion work product of an attorney, whether or not shared with an expert. We believe that this command to courts, that they “shall protect” opinion work product, was intended to apply to all discovery requests of materials prepared in anticipation of litigation because of the admonition’s location in the general portion of Rule 26 applying to all discovery. See Rule 26(b)(3).”

The opinion was released February 2, 2006.