Day on Torts

January 8, 2006

Practice Tip – Look at the Law First

Here is a tip that will improve the quality of your law practice and your life – look at the law first.

Oh, it is different in the run of the mill auto case or other cases that you routinely handle. And it is different if you have recently handled a case that presented the same issues. But unless the new case you have just been offered falls into one of the above senarios take a little time and confirm (or enlarge) your understanding of the law before you accept a new matter.

Why? The law changes – Tennessee appellate courts issue over 200 tort opinions a year. Moreover, as we get older and busier, our memory of what we think the law is can sometimes be just plain wrong. It is far better to spend a little time examining the law before we accept a case than it is to be surprised by a motion to dismiss.

January 7, 2006

Playing Games With Numbers

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

The medical liability insurers, hospitals and doctors are coming at Tennessee consumers this year in the Legislature – a full frontal assault in a effort to limit responsibility for negligence.

I have argued for years that the “reformers” use faulty numbers – and they do. The reformers have figured out that the numbers do not support what they want, so they have changed the focus of their attack to say (a) things aren’t bad in Tennessee yet but it will get bad if we don’t change the law; and (b) people are being deprived access to health care because doctors no longer practice _______ (fill in specialty) in _________ (name of city, town or hamlet).

“The sky is falling argument” is quite easy to defeat because legislators hear that the sky is falling from every lobbyist every day.

January 6, 2006

Anesthesia Standards

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

Here is the website of the American Society of Anesthesiologists that lists their “Standards, Guidelines and Statements.”

There is a gold mine of information here for use in medical negligence cases.

January 5, 2006

Amendments to Rules of Procedure Adopted By Court

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

The Tennessee Supreme Court has approved amendments to the rules of appellate procedure, civil procedure, juvenile procedure, and evidence. The rules will not take effect until they are approved by the General Assembly. The proposed effective date is July 1, 2006.

The most significant change concerning the duty to supplement discovery. The proposed rule is as follows:

“(1) A party who without substantial justification fails to supplement or amend responses to discovery requests as required by Rule 26.05 is not permitted, unless such failure is harmless, to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the court on motion may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses (including
attorney fees) caused by the failure, these sanctions may include any of the actions authorized under Rule 37.02(A), (B), and (C) and may include informing the jury of the failure to supplement or amend.”

January 4, 2006

Tort Law and the Constitution

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

When should a court rule that a state statute “reforming” tort law (i.e. a law restricting the rights of tort victims) violates our constitution? Here are three interesting articles that discuss the issue, including one from my buddy John Vail in D.C.

January 3, 2006

Medical Monitoring – West Virginia

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

This is not a new opinion, but I came across it recently and thought it was worthy of mentioning here. It sets forth the elements that must be proved in a medical monitoring case under West Virginia law. The plaintiff must prove that:

“(1) he or she has been significantly exposed; (2) to a proven hazardous substance; (3) through the tortious conduct of the defendant; (4) as a proximate result of the exposure, plaintiff has suffered an increased risk of contracting a serious latent disease relative to the general population; (5) the increased risk of disease makes it reasonably necessary for the plaintiff to undergo periodic diagnostic medical examinations different from what would be prescribed in the absence of the exposure; and (6) monitoring procedures exist that make the early detection of a disease possible.”

Remember that the Sixth Circuit Court of Appeals recently held that Tennessee would recognize a cause of action of medical monitoring. Read my post about the case here.

January 2, 2006

Forseeability Case Out of Florida

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

Defendant Carter pumped gas into his vehicle and left the station without paying. The station owner gave chase, and during the pursuit the station owner’s vehicle rear-ended Carter’s vehicle, injuring the plaintiff’s daughter. The daughter later died from the pain medication she was administered for treatment of her injuries

Carter moved for summary judgment, “argu[ing that his actions were not the proximate cause of the accident because he was not speeding or braking abruptly at the time the accident occurred.” The trial judgment dismissed the case against him.

The Court of Appeals reversed a grant of summary judgment, saying “we cannot say that no reasonable person could differ in concluding that an accident on a public road of Bay County was unforeseeable as Carter was seeking to escape from the pursuit. … This lawsuit does not concern Carter’s actions only at the moment of the collision, however. We agree with the appellant that Carter’s actions can be seen as a continuum beginning with the theft of the gasoline and continuing by fleeing through traffic from the [store owner’s] vehicle.”

January 2, 2006

Polar Bear Plunge

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

Ok, for decades I made fun of the fools who dove into a lake on New Year’s Day.

Yesterday I did it.

My wife Joy and I joined 20+ other folks at Tims Ford Lake in Winchester, Tennessee for the Third Annual Polar Bear Plunge. I now am the proud owner of a pink t-shirt that tells the world that (a) I am comfortable with my masculinity and (b) I took off my clothes and dove into a lake in the middle of winter.

January 1, 2006

President Confirms Wiretaps of Pizza Restaurants

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

President Bush admitted today that he authorized the National Security Agency and the Central Intelligence Agency to listen to telephone calls to and from restaurants that serve pizza. “We must keep our nation free from future terrorist attacks,” argued the President, “and we have irrefutable evidence that two of the 9-11 terrorists ate pizza three days before that dark day in our nation’s history.”

A reporter from National Public Radio asked the President about the millions of calls being intercepted every day from Americans interested in doing nothing more than ordering a pizza. The President reminded her that honest people have nothing to fear from wiretaps, and then recommended that the next time she ordered a large, four-cheese pizza from Guido’s on Dupont Circle she should ask for a free order of breadsticks.

Vice President Cheney also addressed the assembled group, reminding them the United States must be free to do whatever it takes to protect the security of the nation. A reporter from Fox News asked Cheney how long the wiretaps would continue and Cheney remarked “until the terrorist threat is eliminated, a task made more difficult by Senator McCain and those other liberals in the Senate.” He then mentioned to the reporter that the peppers and mushrooms the reporter liked on his sausage pizza were usually fresher at the Pizza Hut in Georgetown than they were at the Pizza Hut on Capitol Hill.

December 31, 2005

Clinical Trials: Are We Getting the Data We Need?

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

The New England Journal of Medicine is hardly a tool of the plaintiffs’ bar. So when the Journal criticizes the lack of complete disclosures in reports concerning clinical trials people should stand up and take notice.

The editor of the Journal says that some companies “are meeting the letter but not the spirit of the law.” Read the study of the compliance rate of drug manufacturers with the federal law that governs clinical trials here.

Here is an editorial written by the Journal staff on the subject. An excerpt: “In our opinion, it is unacceptable for a trial sponsor not to register its trial in a complete, meaningful, and timely fashion. We call for all clinical investigators and patients to participate only in fully registered trials.”