Day on Torts

October 26, 2005

Rule 9 Granted in Medical Negligence Case

The Tennessee Supreme Court has just granted a Rule 9 application in a medical negligence case, even though the Tennessee Court of Appeals refused to do so.

The plaintiff had an abdominal operation several years ago and learned more than three years later that a clip was left on one of her ureters, resulting in the death of one kidney. She brought suit and the defendants asserted the three-year statute of repose. The plaintiff raised the foreign objection exception to the statute of repose. The defendants then asserted because the clip was of the type that is often left in the body it was not a “foreign object” within the meaning of the statute and therefore the suit was untimely.

Plaintiff asserts that even though the clip is of the type often left in the body it is not supposed to be left on a ureter. Essentially, the plaintiff argues that an object can become a “foreign object” if it was left in the body for an unintended use.

October 25, 2005

Vioxx Dream Team

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

A group of plaintiffs lawyers have formed a “dream team” to take on Merck in Vioxx litigation. Merck has said it will defend every case individually, but now a group of plaintiffs’ lawyers has said they will band together and will press for a continuous trial schedule so that plaintiffs can get their cases heard. The cases will be heard in state court, outside the federal MDL. One leader of the group is Mark Lanier, lead counsel in the Texas case.

The group says they control some 20,000 cases, only 10% of which have been filed to date.

October 24, 2005

Electronic Discovery

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

Here is an interesting article tilted “Understanding U.S. Electronic Discovery and “Best Practices” Therefore” written by Michael Kaminski. It will give you a good idea of the way major law firms are advising their clients on discovery and retention of electronic evidence.

October 24, 2005

Tort Reform in Texas

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

Hopefully you will get to read this article in Texas Monthly before this link is gone. It describes what happened to the people of Texas because of tort reform.

Here is a description of what happened to one family who was looking for a plaintiff’s lawyer to handle a medical malpractice case:

“They saw the first [lawyer] last December. He explained the realities: The facts of the case looked promising, but because their mother was retired, they would have a hard time getting any lawyer to take the case. It was, essentially, the same story Kelly Reddell had told Alvin Berry: Anyone who didn’t work-the elderly, homemakers, or children-was looking at a cap on noneconomic damages of $250,000. Trying such cases was simply not cost-effective for the lawyer or the client. (“It’s an assault on those who are the most vulnerable,” one plaintiff’s attorney told me. “It’s almost legal malpractice to take those cases.”)

October 23, 2005

Roscoe Pound Institute

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

Some of you are familiar with the Rosoce Pound Institute, an organization founded in 1956 which works to “help judges, academics and others understand a balanced view of the U.S. civil justice system.”

Last week, the Institute held a conference at Vanderbilt University School of Law on the issue of medical negligence. Friday afternoon I had the opportunity to participate in a panel discussion about patient safety. Joining me on the panel were Sandy Bledsoe, a nurse by training and now the #2 person in Vanderbilt’s Risk Management Department, Dr. Paul Keckley, the head of Vanderbilt’s Center for Evidence-Based Medicine, and Dr. Gerald Hickson, Director of the Center for Patient and Professional Advocacy.

I was happy to learn about the substantial effort Vanderbilt is making in attempting to reduce patient injuries and claims. The CPPA identifies physcians who are the subject of patient complaints and works with them to approve their skills in communicating with patients. Dr. Hickson has taken this program around the country; I believe he said that his team has been to 18 other institutions with this concept. Dr. Hickson has worked in conjunction with the Risk Managment Department at Vanderbilt.

October 22, 2005

Products Liability Article

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

A recent edition of the journal of the Federation of Defense and Corporate Counsel article called “Handling Difficult Issues in Products Liability Actions: Subsequent Remedial Measures, Similar Accidents, Recalls, and Foreign Defendants.” It is written by Bradley C. Nahrstadt.

The well-written article has a nice collection of cases from around the country on the stated topics. The author describes the article this way:

“The purpose of this article is to apprise defense counsel of three potentially fatal areas of pre-trial discovery and trial testimony in products liability actions – evidence of subsequent remedial measures, evidence of other accidents, and evidence of product recalls – and to provide suggestions regarding alternate ways to deal with such evidence. The final section of this article will discuss some interesting issues that often arise when defense counsel represents a foreign product manufacturer or distributor.”

October 21, 2005

Ford Caught in Inconsistent Statements

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

Ford Motor Company apparently says one thing in the courtroom and another thing in press conferences.

This news article says that Ford’s PR people keep saying that Ford did dynamic testing of its vehicles but that its witnesses at a recent trial said they did not. When asked to explain the discrepency, the Ford folks refused comment.

And now, of course, Ford is trying to seal the courtroom records.

October 20, 2005

Anatomy Help

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

Gray’s Anatomy of the Human Body is the leading textbook on anatomy and now it is available on-line. Click here to review the index of what drawings and information is available.

Thanks to Bob Kraft for bringing this site to my attention.

October 19, 2005

Tennessee Truck Death Toll is Rated as “Deadly”

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

Tennessee has the 13th highest truck crash death rate in the nation, a rate of 2.63 deaths per 100,000 population. This means over 150 people die in Tennessee each year in truck-related crashes.

The Tennessee death rate is 30% higher than the national average. For a listing of the death rates in all states, click here. Almost half of the top 13 states are in the South.

These statistics are released at the same time the Federal Government is taking steps to allow truck drivers to drive an extra 17 to 18 hours per week. Fatigue plays a significant role in truck crashes; the new rules will increase the likelihood that tired truckers will be operating big rigs carelessly.

October 19, 2005

Update – Vioxx Trial

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

Here is the latest on the New Jersey Vioxx trial.

My guess is that we will have a verdict next week.