Day on Torts

November 16, 2005

Computerized Accident Reconstruction Held Inadmissible

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.”

November 15, 2005

Mass Tort Follow-Up

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

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.'”

November 14, 2005

Board Certification Article Gives Rise to Questions

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

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.

November 12, 2005

Level of Care for Commercial Truck Drivers

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

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:

November 11, 2005

Gone to Pot

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

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.'”

November 11, 2005

No Decision on

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

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.

November 10, 2005

Washington Rejects Doctors’ and Lawyers’ Proposals

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

Washington voters this week rejected two competing measures related to medical malpractice. The first, supported by doctors, hospitals, insurance and pharmaceutical companies, would have capped awards for pain and suffering in medical malpractice cases, and also would have stated that doctors can refuse to serve patients if they do not agree to arbitrate any malpractice claims. The second, supported by the state trial lawyers association, would have revoked the license of physicians who lost three malpractice verdicts in ten years, and would have required public hearings on rate increases for malpractice insurance. Neither measure passed, and now the state legislature is apparently thinking of weighing in.

November 9, 2005

Tort Case in the United States Supreme Court

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

Tort cases are a rare commodity in the SCOTUS (Thank God) but one was argued earlier this week. A woman tripped on packages and other matters left on her porch (rather than in her mailbox) by the Post Office and and brought suit under the FTCA.

The issue is “whether a claim for personal injury caused by the negligence of a United States Postal Service employee while
delivering mail is barred by 28 U.S.C. ㋔ 2680(b), the exception
to the government’s waiver of sovereign immunity in the
Federal Tort Claims Act for claims “arising out of the loss,
miscarriage, or negligent transmission of letters or postal matter.”

The case is Dolan v. United States Postal Service, 04-848. Read more here. You can get copies of the briefs here.

November 9, 2005

Upcoming Seminars

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

Today I am off to Chattanooga for two days of a seminar sponsored by Justice Programs. The 15-credit hour seminar (which includes 3 E & P hours) is designed for lawyers who practice civil litigation. The seminar will also be held in Knoxville on November 17 and 18 and in Memphis on December 1 and 2. Read more here.

Those of you who dive may enjoy a seminar in Cozumel on November 26-29. I will be speaking for 6 hours on torts, comparative fault, and depositions. This program is sponsered by the Tennessee Bench Bar Conference. Contact me for more information.

Finally, our law firm will be holding two seminars in December. On December 14 and 15 we offer a program for young lawyers called “Fundamentals of Civil Litigation.” It is always a well-attended program and has gotten great reviews over the years. On December 19 we will hold our second annual “Beyond the Fundamentals of Civil Litigation” program. Both seminars are held in the Nashville area (Franklin, right of I-65). Read about them at this page on our website.

November 8, 2005

Vioxx Cases – First Federal Trial

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

It is 1 to 1 and we now move to federal court for round 3 in the Vioxx wars. The first federal trial is in Houston, where Jere Beasley from Alabama will serve as lead counsel for the plaintiffs and Phil Beck from Chicago will serve as lead counsel for the defendants.

The trial starts November 29, 2005. Read more here.

The federal trial was orginally set for trial in New Orleans but had to be moved because of Katrina.