Here is an article that describes the events of the second trial day (after the completion of jury selection) in the two Vioxx trials currently underway in state court in New Jersey.
New Wrongful Birth Decision
The Ohio Supreme Court has released a decision in a wrongful birth case. Read about it our medical malpractice blog.
Defamation Case Re-instated
Plaintiff Stanton’s photograph was placed alongside a article entitled “The Mating Habits of the Suburban High School Teenager” that ran in Boston magazine. The opinion describes the photograph this way: “[Stanton’s] is one of five young people pictured in a photograph that occupies the entire first page of the article and half of the facing page. The photograph, taken at a high school dance, depicts its three male and two female subjects in formal attire, sitting and standing near an open exit door in the background. Stanton’s image occupies most of the left-hand side of the photograph, where she appears standing, with her face and most of her body fully visible. Although three of the subjects are smoking cigarettes, and another holds a plastic cup, Stanton simply looks at the camera, smiling faintly.” The article talked about the level of sexual activity among high schoolers, etc. Stanton sued, saying that she was defamed.
The First Circuit Court of Appeals reversed dismissal of the case, stating that the article “would tend to hold [her] up to scorn, hatred, ridicule or contempt, in the minds of [a] considerable and respectable segment in the community. A reasonable reader could believe that Stanton, who appears in the lead illustration for the article, is in fact one of the teens whose promiscuous behavior is described in its text.
Metro concedes for purposes of this appeal that “a statement that [Stanton] was ‘promiscuous’ might damage her reputation in the community.” Accordingly, we need not decide whether a false accusation of promiscuousness is defamatory. At the risk of repeating ourselves, we allow that other reasonable readers may take a different view. We conclude only that the article is susceptible to the defamatory meaning Stanton alleges, i.e., that she engages in sexually promiscuous conduct.” [Citations and internal quotation marks omitted.]
The Press Starts to Understand Tort Reform
Tort reform swept through Georgia in 2005, and now the harm and the potential for harm is beginning to be felt. This article from Atlanta’s leading newspaper explains the consquences of the offer of judgment rule.
I hasten to note that the Tennessean has editorialized against tort reform for years.
Thanks to Ken Shigley from telling us about this article.
Lanier v. Merck, Round 2, Post 2
Here is a summary of the opening statements in the Vioxx trial currently underway in New Jersey.
Wouldn’t this Ruin Your Day?
How would you like to receive this Order in the mail? Download file
Worse yet, how would you like to see it on the Internet?
Delay in Obtaining Expert Results in Dismissal of Case
The Supreme Court of Mississippi has granted summary judgment in favor of a physician when the plaintiff failed to timely respond to discovery seeking information about plaintiff’s expert witnesses and did not timely file an expert affidavit opposing the summary judgment motion.
Plaintiff maintained that she was entitled to more time to get an affidavit from an expert.
From the opinion: “In his final judgment, the trial judge denied Stallworth’s request for a continuance and granted the Doctors’ summary judgment motion based on Stallworth’s failure to substantiate the claims of medical negligence. The trial judge based his decision on the fact that in June of 2004, the Doctors served Stallworth with interrogatories to identify a medical expert, and Stallworth never filed sworn answers to those interrogatories. Instead, Stallworth served unsigned and unsworn interrogatory answers by facsimile and mail subsequent to the filings on summary judgment. The trial judge also based his decision on the fact that Stallworth acquired records of her condition and had notice of a possible claim as early as March of 2002, and retained counsel in April of 2002. The trial court also stated Stallworth’s attorney’s affidavit filed on October 22, 2004, was not compliant with the rules requesting the supplementation of the answers to the interrogatories and did not excuse Stallworth from having an expert to support her claim. Based on these facts, we cannot say the trial judge abused his discretion when he denied Stallworth’s request for an additional thirty days to obtain a medical expert’s affidavit. Rule 56(f) is not designed to protect litigants who are lazy or dilatory. We find Stallworth had ample time to locate a medical expert to assist with her claim. Therefore, we find the trial court’s grant of summary judgment to the Doctors was proper.” [Citations omitted.]
Comparative Fault Applies in Nuisance Case
The Eastern Section of the Tennessee Court of Appeals has ruled that comparative fault applies to cases tried under a nuisance theory.
According to the opinion, “[t]he Complaint alleged that plaintiffs and defendants own adjoining property and that defendants constructed a private road on their property through an area of natural drainage adjoining the Plaintiffs’ property. Further, that the road “impeded and/or altered the natural flow of rainwater runoff such that the private road acts as a dam.” The road caused damage to Plaintiff’s home and personal property. Plaintiff brought a nuisance action.
The Court said that “a nuisance action based upon a “wrongful” interference with the natural drainage of surface water necessarily involves fault because such an interference is an act violating the plaintiff’s property rights and imposing liability upon the defendant. Because such an action necessarily involves fault, applying principles of comparative fault is in keeping with McIntyre’s principle of linking liability with fault.”
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.
Republican Congressman Off to Prison
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.