Fresh off the heels of a recent loss, Chris Seeger and his team are gearing up for more Vioxx cases state court in New Jersey. The judge has decided that one of seven cases will be tried starting January 30, 2006. Each of the cases are on behalf of a person who took Vioxx 18 months or longer; one of the people died.
Cases in which the plaintiff took Vioxx for 18 months or longer are expected to be more difficult for the defense to try.
The next New Jersey case will begin March 27, 2006.
Kaiser Permanente is advancing the cause of patient safety by using a “Preoperative Safety Briefing” similar in concept to preflight checklists used in the airline industry. A one-page checklist was developed and used for the project.
In a six-month trial project wrong site surgeries were eliminated (there had been three in the prior six month period) and positive perceptions by staff about patient safety and teamwork increased.
Read more here and here.
The New Jersey Supreme Court has held that a plaintiff is entitled to a res ipsa instruction in an case in which an automatic door unexpectantly closed and caused injury. Because of that determination, the plaintiff was entitled to get by a summary judgment motion and have a jury decide the case.
More precisely, the Court put the issue this way: “whether the doctrine of res ipsa loquitur permits a jury to infer, based on common knowledge, that a supermarket’s automatic doors ordinarily do not malfunction and close on a customer unless negligently maintained by the store owner, or whether the res ipsa inference is preconditioned on expert testimony first explaining the door’s mechanics.”
The case arose from a malpractice action against an attorney who filed a premises suit on behalf of the plaintiff but allowed the case to be dismissed because of a failure to respond to discovery requests. When the plaintiff discovered the dismissal, she sued her attorney.
I was speaking at a seminar in Knoxville Friday and someone asked me that question. I was a little taken aback, and then remembered that Evan Schaeffer of Legal Underground faced the same issue recently.
The answer is an unambigious “Yes” but I guess some explanation is necessary. I have spent a good amount of time over the years during professional association activities, particularly with the Tennessee Trial Lawyers Association and, in the last decade, the National Board of Trial Advocacy. I also founded and am a co-author of the Tennessee Tort Law Letter, a monthly newsletter on tort law developments in Tennessee and serve, from time to time, on various committees, boards, and commissions. Then, last February, I started playing with this blog. I guess that could cause some people to wonder if I still practice law.
Well, I do, and I believe that the folks in my office will tell you that it is still a full-time practice. How do I work it all in? I typically blog between 4:30 and 5:30 in the morning, although I occasionally prepare a post at night before I go to bed and actually post it the next morning. I do my other writing at nights or on the weekends and squeeze in the professional activities just like the rest of you do. The writing and speaking I do on substantive law actually keeps me very current on the case law in the state and developments in the law around the nation, which I believe helps me better represent our clients.
The Court of Appeals of Washington has ordered a new trial in a criminal case in which the State admited into evidence computer-generated simulation evidence using Version 6.2 of a program called PC-CRASH to prove that defendant had been the driver of the vehicle involved in the wreck.
The Court held that “we cannot be confident that a scientific consensus has been achieved among accident reconstructionists that PC-CRASH is capable of accurately performing the predictions to which the State’s expert witness testified.” Therefore, the Court reversed a jury verdict against the defendant and remanded the case for a new trial.
More specifically, the Court said that “[j]urisdictions that have addressed the issue uniformly hold that the admissibility of computer-generated models or simulations (as opposed to animations) as substantive proof or as the basis for expert testimony regarding matters of substantive proof is conditioned upon a sufficient showing that (1) the computer is functioning properly; (2) the input and underlying equations are sufficiently complete and accurate (and disclosed to the opposing party so that they can be challenged); and (3) the program is generally accepted by the appropriate community of scientists for use in the particular situation at hand. [Citations omitted.] We agree with these courts, and hold that in Washington, computer-generated simulations used as substantive evidence or
as the basis for expert testimony regarding matters of substantive proof must have been generated from computer programs that are generally accepted by the appropriate community of scientists to be valid for the purposes at issue in the case.”
Regular readers will remember that several weeks ago I wrote about the opinion by Judge Jack in a group of silicosis cases pending in Texas.
At the time I wrote “this story will not and should not die.” Well, it has not died. The business community has grabbed this bull by the horns and intends to ride it until it is dead, buried, and fully decomposed. For but one example, read this story in Business Week Online.
Here is a quote from the article: “Expensive investigations into the legitimacy of medical diagnoses, which led to the Jack opinion in In Re: Silica Products Liability Litigation, are just the beginning. Corporate complaints about mass tort fraud have spurred criminal convictions, ongoing criminal probes in three states, and an inquiry by the House Energy & Commerce Committee. The U.S. Chamber of Commerce has also begun building a database that will be used to identify relationships among screening companies, doctors, plaintiffs’ law firms, and claimants, and keep an eye out for repeat plaintiffs. ‘We are at a turning point,’ says Lisa A. Rickard, president of the Chamber’s Institute for Legal Reform. ‘The business model that the plaintiff bar has been using in mass torts is now coming into question and under scrutiny not only by judges but by prosecutors.'”
Some of you read a recent article in the Tennessee Bar Journal about a project that I am working on concerning board certification for lawyers. Unfortunately, the title of the article, “Changes would allow litigators with fewer jury trials to be certified ‘civil trial specialist,” has caused concern for those who are already certified.
Let me put those folks at ease.
The headline is wrong. There is no effort underway and I see no effort on the horizon to reduce the requirements for becoming board-certified. What the National Board of Trial Advocacy is doing is looking at the establishment of another speciality that would allow certification for those lawyers who had demonstrated competence and experience in civil trial work but did not have enough jury trial days to become a certified civil trial specialist. Any person would not be certified as a “civil trial specialist” but instead would be certified in a new, yet-to-be-named field.
An appellate court in California reversed a jury verdict because of a trial court’s refusal to instruct the jury pursuant to the federal standard of care requiring “extreme care” as opposed to the reasonable care standard. The appellate court held that this was prejudicial error requiring a remand for a new trial.
California law has a negligence per se just as we have in Tennessee. It allows violations of federal regulations to give constitute negligence per se.
Read this:
Plaintiff filed a medical negligence lawsuit. She enjoyed an occasional joint, before and after her injury. At trial, the defendant called four witnesses to say that the use of pot could affect a doctor’s treatment of her. None testified that it did affect treatment. The jury returned a verdict for the defendant.
A Florida appellate court reversed, holding that “In the absence of such evidence, the doctors’ testimony that a patient’s use of marijuana could have an impact on treatment decisions did not logically tend to prove or disprove any fact of consequence to the outcome of Shaw’s action. Accordingly, it was irrelevant, and should not have been permitted.”
The Court went on to say that “[e]ven if we assume that the evidence regarding Shaw’s marijuana use had some marginal relevance, however, the outcome remains the same. By repeated reference to Shaw’s marijuana use in opening statement, during the doctors’ testimony, and in closing argument, the marijuana use became a feature of the trial. As such, any marginal probative value it might have had was clearly outweighed ‘by the danger of unfair prejudice, confusion of issues [and] misleading the jury.'”
There is no decision yet in the Calloway case. Until there is, it may be wise to assume that the three-year statute of repose in medical negligence cases trumps the rights of minors.
I will let you know as soon as I hear something on this important case.
