Day on Torts

March 2, 2006

Public Citizen Challenges Trucker Service Rules

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.

February 26, 2006

Secret Memo Discovered in Hotel Bar!

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

I found this memo at an empty corner table in the bar in the basement of the Hermitage Hotel in downtown Nashville, sitting on table next to an empty bottle of Opus and two wine glasses.

To: TMA Director for Tort Reform

From: AMA Vice President for Tort Reform

February 24, 2006

Indiana Supreme Court Upholds Statute of Limitations

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

The Indiana Supreme Court denied a challenge to the constitutionality of a statute of limitations for minors. The statute required that a suit be filed within two years of the date of injury or by the injured minor’s eighth birthday if injured in the first six years of life.

The statute was challenged under this provision of the Indiana Constitution: “The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.”

The case is Ledbetter v. Hunter. Westlaw subscribers can see it at 2006 WL 401204. The opinion was released on February 22nd.

February 24, 2006

SCOTUS Allows Claim Against Post Office

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

The United States Supreme Court does not hear many tort cases. However, the Court released a tort opinion on Wednesday that held that the U.S. Postal Service is subject to personal injury lawsuits if they do not use due care when leaving mail at people’s homes.

The Pennsylvania plaintiff tripped and fell over mail left on her porch. She sued the Post Office, which claimed immunity. The Court reversed two lower court decisions dismissing the case, holding that that a federal law giving the post office immunity from certain claims was only intended to cut off lawsuits that arise from delivering the mail late or in a damaged condition.

The majority opinion was written by Justice Kennedy. Justice Thomas was the sole dissenter. Justice Alito did not participate.