Here is the latest news on the first federal MDL trial currently underway in Houston.
The judge wants this case over quickly; the plaintiffs put on their case in less than five days and the defense has already called several witnesses. Here is a summary of a key witness for the plaintiff who was not called in the two prior trials.
The Connecticut Supreme Court has ruled that an exculpatory clause in a form signed at a snowboarding and snowtubing facility did not bar the plaintiff’s claim.
The Court rejected Plaintiff’s argument that the agreement was ambigious. The Court said “[w]e conclude that the agreement expressly and unambiguously purports to release the defendants from prospective liability for negligence.”
However, the Court said that the exculpatory clause was void as against public policy. The Court acknowledged that ” most states
uphold adhesion contracts releasing recreational operators from prospective liability for personal injuries caused by their own negligent conduct.” However, the Court held that several factors, including the fact that the plaintiff was relying on the defendants to make the premises safe and the fact that the contract was a “take it or leave it” proposition, to declare the clause void.
The judge wanted it done quick – and the defense rested after just a few days of testimony. Read more here.
The article says that the jury is expected to get the case by mid-day tomorrow (Thursday).
Ever had a lawsuit involving a horse? For example, have you ever had a horse and car collision case? A case where a person riding a horse got hurt? How about a case arising out of a breach of contract concerning the sale of a horse?
Here is a site that collects the law of horses. Really.
If you have a PI case that involves a person injured while riding horse be sure to read the Tennessee Equine Activity Act.
The defendant (Dr. Clark) in a civil case sued the plaintiff’s lawyers alleging “claims of negligence, intentional infliction of emotional distress, tortious interference with her business relationship with her insurance carrier and malicious prosecution. Dr. Clark sought compensatory and punitive damages arising from the filing and prosecution of the Dempsey action (the case filed originally filed by the plaintiff’s lawyers) .
The attorneys moved for summary judgment, alleging that they did not owe a duty to Dr. Clark. The trial judge sent two certified questions to the West Virginia Supreme Court. The Court ruled that it “could find no justification for imposing a duty of care in favor of an opposing party upon counsel. Imposition of such a duty can only work to the detriment of counsel’s own client and would adversely impact counsel’s duty of zealous advocacy for his or her own client and would create an impossible and unjustified conflict of interest. Accordingly, we hold that an attorney for a party in a civil lawsuit does not owe a duty of care to that party’s adversary in the lawsuit such that the adversary may assert a cause of action for negligence against the opposing attorney.”
Next, the Court discussed whether there was a litigation privilege applicable defeat the claims. The Court posed the issue as follows: “Is a party to a civil action barred, by virtue of the litigation privilege, from bringing claims for civil damages against the opposing party’s attorney if the alleged act of the attorney in the course of the attorney’s representation of the opposing party is conduct and not a written or oral statement which arose in the civil action and which has some relationship to the civil action?”
Well, if you have, it is gone.
You fellow bloggers know how it works and the rest of you probably have guessed what happens.
The spammners attempt to post comments on blogs. Maybe I should appreciate all the wonderful people telling me where I can buy Viagra, how I can lose weight, and where I can gamble on-line but I do not need the advice of any of them now or in the foreseeable future (ok, maybe the weight loss, but nothing more).
Do you remember that Florida capped fees in medical negligence litigation? Severely? If not, see this post.
Well, lawyers for plaintiffs gave plaintiffs the opportunity to waive the cap. Certain members of the bar (most of them with connections to health care providers) asked the Florida Supreme Court to adopt a rule prohibiting lawyers from doing so. Arguments were heard on November 30. Read about the arguments here. Read the briefs and other documents cocerning the petition here.
Do you want to know how many people died in traffic wrecks in Tennessee? In North Dakota? On two-lane roads? On interstates?
If so, see this report from NHTSA and the United States Department of Transportation.
An excerpt:
“In 2004, the Nation’s crash fatality rate per 100 million vehicle miles of travel was the lowest (1.46) since record keeping began 30 years ago and remained below 1.50 for the second consecutive year. 2004 was also the second year in a row that fatalities from motor vehicle crashes declined. The number of police-reported motor vehicle crashes occurring on our highways dropped to
under 6.2 million from over 6.3 million in 2003, and persons injured in these crashes continued a steady decline. On average, a police-reported motor vehicle crash occurred every 5 seconds, a person was injured every 11 seconds, and someone was killed every 12 minutes.”.”
The Indiana Supreme Court has ruled that personal injury victims cannot receive punitive damages against a person who is dead.
The Court’s summary paragraph puts it this way: “The plaintiffs in this case were injured in an accident as passengers in a car driven by their father while he was intoxicated. After their father died of unrelated causes, the children brought this suit against his estate. We hold that Indiana law does not permit recovery of punitive damages from a decedent’s estate.”
In the text of the opinion the Court says this: “We think, however, there is little, if any, additional deterrence supplied by the prospect that one’s estate may be liable for punitive damages if one does not survive. Most tortfeasors in the case of an accident such as this presumably do not contemplate their own demise. If they consider punitive damages at all, they will deem themselves exposed to that possibility. To the extent the tortfeasor thinks at all about the consequences of his tort after he dies, he will recognize that he and his estate will have the obligation to provide full compensation to any victim. If we ever encounter a case where a tortfeasor seems to have considered his own death as an escape from punitive dam-ages incident to some intentional tort, we can address that issue at that time. For now, we are content to hold that the purposes of punitive damages are not served by recovering them from a decedent.”
A new study published in Health Affairs found that “[t]he United States often stands out with high medical errors and in-efficient care and has the worst performance for access/cost barriers and financial burdens.”
The study looked at the health care delivery systems in Germany, Australia, Canada, New Zealand, the United Kingdom, and the USA.
The study reports that “p]atients in the United States reported the highest rate of disorganized care at doctor’s offices – 33 percent – followed by Germany with 26 percent, Canada with 24 percent and New Zealand with 21 percent. Patients in Britain and Australia reported 19 percent.” The study also found that “U.S. patient-reported lab error rates were significantly higher than the other five countries, with rates double those reported in Germany and the United Kingdom. Lab error rates were also relatively high in Canada.”
