Day on Torts

December 30, 2005

Blawg Review Awards 2005

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?)

December 29, 2005

New Decision Puzzles This Reader

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

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.)

December 29, 2005

Another Study Concerning Med Mal Insurance

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

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.

December 28, 2005

Court Costs

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

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.

December 28, 2005

Ex-Lawyer in Kentucky Makes a Living With Newsletters

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

Here is an article about an unusual former lawyer with an interesting way of making a living.

Here is how the author describes newsletter-publisher Shannon Ragland: “Similar verdict reviews are published in dozens of other states, but what sets Ragland’s apart is his background — he’s a disbarred lawyer and convicted felon — and the fact that he adds his editorial 2 cents, teeing off on lawyers and judges alike for what he describes as strategic blunders, defective reasoning and deceit.”
It just goes to show you that there is always a way to make a buck.

Thanks to Keith Williams for sharing this article with me.

December 27, 2005

Bone Harvesting

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

Here is an article about some conduct alleged to have occurred in New Jersey which, if true, is going to give rise to some strong emotional distress claims.

The article tells us that certain people who received bone transplants have alleged that the bones “were pilfered from cadavers and sold without the consent of the deceaseds’ families or the protective screening required by law, leaving recipients exposed to risk of infection with HIV, hepatitis and syphilis.”

Suits have also been filed by families of the cadavers, alleging emotional distress for taking the bones without consent.

December 26, 2005

Suit Against Expert Fails

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

Plaintiff was injured in a car wreck. She brought an uninsured motorist claim and was subjected to a psychological evaluation at the insistence of her insurer. The evaluator “testified that he believed that Gilbert experienced actual pain relating to the 1994 accident, but that a personality disorder complicated the pain and caused Gilbert to over-report symptoms. He concluded that while Gilbert did not have a major psychiatric disorder, she did have a histrionic personality disorder with narcissistic features that causes her to exaggerate and magnify the degree . . . of pain that shes in and to magnify the degree of disability that she has.”

Plaintiff lost that case and then filed one against the evaluator.

The Alaska Supreme Court affirmed dismissal of the suit, holding that the evaluator’s testimony was privileged. It said that”[t]estimony in a judicial proceeding, if pertinent to the matter under inquiry, is absolutely privileged, even if given maliciously or with knowledge of its falsity. Even defamatory testimony is privileged, and the witness granted immunity, because of the public policy rationale that the privilege leads to more just trials by (1) encouraging more witnesses to come forward and (2) ensuring that witnesses will be more open and honest in testifying.” (Footnotes omitted.)

December 25, 2005

Perfect Christmas Gift

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

What is the perfect Christmas gift for someone who loves the law of torts?

The original Restatement of Torts, published in 1934. My wife found a set for me on EBay.

The comments are full of examples concerning steamships and railroads. It is a real pleasure to see how the law has changed over the past 75 years.

December 25, 2005

Merry Christmas

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

May you and your family enjoy a wonderful Christmas and have a safe and healthy 2006 – and beyond.

December 23, 2005

Anti-Consumer Vaccine Legislation Passes

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

The President will sign a budget bill containing a provision for immunity for manufacturers of certain vaccines. I cannot track down the legislation itself but here is an ATLA summary of it:

“The liability provisions allow the Secretary of HHS to declare that a drug, device, or vaccine is a covered countermeasure for a pandemic, epidemic, or potential public health emergency. Once a product is covered, the manufacturer is provided immunity for even reckless misconduct. The bill does not even provide a compensation fund for injured patients. Instead it established a compensation process, but appropriates no funding to provide compensation for those who are injured.”