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.
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.
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.”
Isn’t that what you have always heard?
Read what can happen when a hospital doesn’t properly sterilize instruments after a procedure on a brain.
Plaintiff settled a case with the hospital concerning care given by the nurses and proceeded to trial against the doctor. Over the plaintiff’s objection, the judge gave this instruction to the jury:
“Every physician using ordinary care has the right to assume, until the contrary is or reasonably should be apparent, that every other medical care provider will use ordinary care. To act on that assumption is not negligence. As I have used the term ordinary care here, I mean that degree of care required of all physicians or medical care providers, as already explained in my definition of negligence.”
The jury decided in favor of the defendant. Plaintiffs appealed, and the Arkansas Supreme Court reversed and remanded. They argued as follows:
Judge Posner of the Seventh Circuit Court of Appeals has a unique writing style. Here is an excerpt of a recent opinion where he addresses the issue of stare decisis; the excerpt gives those unfamiliar with his work a feel for how the man writes (and thinks):
“The plaintiffs’ lawyer asks us to overrule Harkins because,
he contends, it was decided incorrectly. But if the fact that a court considers one of its previous decisions to be incorrect is sufficient ground for overruling it, then stare decisis is out the window, because no doctrine of deference to precedent is needed to induce a court to follow the precedents that it agrees with; a court has no incentive to overrule them even if it is completely free to do so. The doctrine of stare decisis ‘imparts authority to a decision, depending on the court that rendered it, merely by virtue of the authority of the rendering court and independently of the quality of
its reasoning. The essence of stare decisis is that the mere
existence of certain decisions becomes a reason for adhering to their holdings in subsequent cases.’ Midlock v. Apple Vacations West, Inc., 406 F.3d 453, 457 (7th Cir. 2005) (citations omitted). It is not a conclusive reason; the Supreme Court has specified considerations that a court should weigh in deciding whether to follow or to overrule a previous decision. ‘[W]hen this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test
the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case. Thus, for example, we may ask whether the rule has proven to be intolerable simply in defying practical workability; whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation; whether related principles
of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine; or whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.’ Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854-55 (1992) (citations omitted); see also Payne v. Tennessee, 501 U.S. 808, 827-28 (1991); Moragne v. States Marine Lines, Inc., 398 U.S. 375, 403 (1970).”
Interesting. And certainly good advice. Don’t tell an appellate court that a prior decision is “wrong.” You need to do more, much more, to convince an appellate court to change the law.
I am honored to report that our firm’s blogs have been awarded the “Law Firm Blogs Award” by Blawg Review. The award recognizes the efforts we have made coordinating our four blogs over the last year. Our other blogs are Tennessee Business Litigation Blog, Medical Malpractice Blog, and Erisaontheweb, a blog about the law of ERISA concerning the denial of disability and pension benefits.
We have had a lot of fun working on these blogs during the past 10 months. Each of us has been the beneficiary of the knowledge and experience of others over the years, shared in CLE programs, publications, and through war stories in the bar. Blogs are the new method of sharing knowledge and experience, and although we came to this way of sharing information relatively late we are pleased to contribute what we can to help lawyers better serve their clients.
Thanks to Kevin and the nice folks at Lexblog for helping us launch and maintain these blogs. (Kevin – can I get a discount now?)
A new opinion by the Western Section Court of Appeals in a personal injury case has me scratching my head.
The male plaintiff King was hurt in a car wreck. He claimed damages for loss of earning capacity. He was self-employed in the limestone business and his earnings history in the business was a real issue. The jury awarded $1,050,000 in damages on this element. The trial judge approved the award. The Court of Appeals reversed, saying that the amount was speculative.
Specifically, the Court said “King had no contracts for the sale of limestone. Additionally, King’s main customer bought from other sellers of limestone. Given the track record of King’s business and the uncertainty of sales of limestone, any showing of lost business profits would be speculative and not admissible to show lost earning capacity.” (Footnote omitted.)
Today’s Washington Post has this article about another study of the medical malpractice insurance industry.
The study shows that insurer’s overestimated their losses from 1986 until 1994 by almost 50%.
Insurance companies are permitted to estimate losses today on claims that will be paid in the future. This study shows that the companies tend to overestimate what they will pay in the future. Companies often use these estimates to support claims for restrictions on the rights of malpractice victims.
Did you know that court costs are changing in Tennessee effective 1/1/2006?
Historically, plaintiffs paid a relatively small filing fee at the beginning of a case and then additional charges accumulated based on the number of pages that were filed.
Beginning the first of the year, charges will be made similar to method used in federal court: there will be a flat fee of $267.50 charged in “Category One” cases and $192.50 in “Category Two” cases. Lesser fees will be charged in domestic – related cases.
