Here is an interesting case out of the DC Circuit that warns us that an oral motion to amend is not appropriate in federal court and therefore it was not error to deny it.
A Speech by a Boeing Lawyer
This speech, by the General Counsel of Boeing to Boeing executives, is a fine example of a lawyer who is trying to steer his employer in an appropriate direction.
One sample: “We as the leaders of the Boeing Company get to choose what kind of culture we are going to have. And we make these choices every day by what we do and frankly what we choose not to do. But the consequences of all those choices are our collective responsibility.”
There are more of these people out there than some plaintiff’s lawyers would like to admit. Thanks to the WSJ Law Blog for letting me know about this speech.
President Bush: Lawyers to Blame for Lack of Krispy Kreme Stores
President George W. Bush attacked “greedy trial lawyers” again Saturday, explaining that frivilous lawsuits caused millions of Americans not to have ready access to Krispy Kreme and other brands of doughnuts.
Speaking at the 114th annual National Association of Doughnut Manufacturers and Retailers Convention in Sweetwater, Texas, the President explained that 7398 counties in America did not have a Krispy Kreme store. “The only possible explanation for this travesty is stupid lawsuits against the sellers of these wonderful doughnuts. We must get greedy trial lawyers out of the kitchens making up this important industry.”
When asked to identify a single lawsuit against a doughnut manufacturer or retailer, the President wiped some jelly off the corner of his mouth and explained that he was sure that read about some of these lawsuits “on the editorial page of the Wall Street Journal. Or maybe Sports Illustrated.” But, he said, “it makes no difference whether there are any lawsuits yet or not. You and I both know that they are coming. By the way, pass me one of those with the peanut crumbles on it, will ya?”
Comments on the President’s Speech
William Childs, author of the Torts Prof Blg, assembled the thoughts of several bloggers concerning the President’s comments about the lack of OBs in rural areas. He was kind enough to include my prior post on the subject.
Death of Drake Holliday
Drake Holliday, a Legal Aid attorney in Nashville for 30 years, died February 2.
Drake was one of those people who refused to turn his back on the poor. When President Reagan cut back on legal services to the poor, Drake stuck it out and continued to help thousands and thousand of Tennesseans. He knew poverty law, and he used to help people fight back.
He was active in political campaigns for men and women who believed that the poor deserved a fair shake. He was particularly active in Bill Purcell’s political career, helping him get elected to the State House (where he later served as Majority Leader) and later as Mayor of Nashville.
Executive Indicted
Read here about the indictment the executive of the charter company that operated the bus that exploded Sept. 23 on Interstate 45 in Texas, killing 23 residents of a Bellaire nursing home who were fleeing Hurricane Rita.
If he is found guilty, what will his punishment be? Will it be the nine years that Anna got for extortion? Should it be less? Should it be more?
New Punitive Damage Decision From 6th Circuit
The 6th Circuit Court of Appeals has cut a punitive damage award in a products liability case. A jury determined that the defendant produced a defective product that caused the death of the occupant of it. The jury awarded, and the trial judge affirmed, a $3,000,000 punitive damage award.
The appellate court cut the punitive damage award to $471K (200% of the compensatory damage award) and summarized its reasons for doing so as follows: “an application of the Gore guideposts to the facts of this case reveals that (1) Chrysler’s misconduct does not constitute a high degree of reprehensibility, (2) the ratio of punitive to compensatory awards is unjustifiably large, and (3) a wide gap exists between the punitive damage award and comparable civil penalties. The fact of Mr. Clark’s death does not outweigh all.”
Judge Moore dissented, saying “Chrysler’s conduct was reprehensible, the ratio between the punitive and compensatory damages awards was neither breathtaking nor otherwise unreasonable given the circumstances of the case, and the punitive damages award was in line with comparable civil penalties ….”
Thoughts on “Givers” and “Takers”
I attended and spoke at the Tennessee Trial Lawyers Association’s Mid-Winter Convention yesterday. Gary Gober of Nashville was the Program Chair and put together a fine program, as usual.
Gary is but one example of many plaintiffs’ lawyers who are “givers” rather than “takers.” Gary was President of TTLA over 20 years ago, but still gives of his time and money to support the work of our Association. There are many others who fall into this category, men and women, some past officers and some future officers, who step up to the plate time and time again to help advance the cause of civil justice in this state. Some give knowledge, some give time, some give money, and some give all of the above – and each of us is indebted to every single one of them.
On the other hand there are “takers.” There are lawyers who spend thousands of dollars advertising for clients but refuse to give money to support legislative efforts designed to support the rights of those clients. There are lawyers who make a good living representing plaintiffs but refuse to give time or money to support the association. There are lawyers who seek the help of the association or its members when they are need, but turn away when asked to help. These men and women thrive off the efforts of others, giving nothing, taking whatever they can, and smile all the way to the bank.
Limitation of Actions and the Mentally Disabled
We all know that that a person who suffers from an “unsound mind” gets the benefit of a tolling of the statute of limitations under T.C.A. Section 28-1-106, which states that “[i]f the person entitled to commence an action is, at the time the cause of action accrued, either within the age of eighteen (18) years, or of unsound mind, such person, or such person’s representatives and privies, as the case may be, may commence the action, after the removal of such disability, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from the removal of such disability.”
But what if the injured party, prior to becoming of “unsound mind,” granted a durable power of attorney that gave an attorney-in-fact the duty “act in my name, place and stead in any way which I myself could do, if I were personally present, with respect to … claims and litigation…?” Does the presence of that durable power of attorney trump the “unsound mind” statute, mandating the statute of limitations begin to run as if the plaintiff were not of unsound mind?
I have worried about this issue for years. We how have an answer from the Eastern Section of our Court of Appeals hearing a case arising out of the Middle Section. The plaintiff in the case held a durable power of attorney from his father. The father was a resident in the defendant’s nursing home and became of “unsound mind.” According to the opinion, “[t]he plaintiff frequently visited the deceased during the latter’s stay at the defendant’s facility. The plaintiff would later testify that, at the time of his visits, he observed problems in the defendant’s care and treatment of his father, which he believed were harmful to him.” More than a year after the father was transferred from the defendant’s nursing home but within one year of the father’s death {when the disability was “removed,” according to the plaintiff) the attorney-in-fact filed a malpractice suit against the nursing home. Defendant sought summary judgment of the statute of limitations issue, arguing that plaintiff had the power and duty to act on behalf of his father and did not do so in a timely fashion. Plaintiff argued that the cause of action was tolled by operation of Section 28-1-106.
Ethics Reform – Tennessee Legislature
Last night I attended a reception for the General Assembly that was sponsored by the Tennessee Trial Lawyers Association. Several state senators told me that they thought that the legislative special session could end in a couple days.
The House and Senate have passed different “ethics” bills, which means that a conference committee has to attempt to come up with a consensus bill that each body then must vote on. There are some huge differences to work out, although there is no doubt that a bill will be passed.
The end of the special session means the beginning of the ordinary session, which means that we will see a major fight by hospitals, doctors, and their insurers to avoid accountability for medical negligence. This session will be the biggest battle on the issue since the mid-80s.