Day on Torts

November 9, 2005

Upcoming Seminars

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.

November 8, 2005

Supreme Court Takes “Bad Faith” Case

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

The Tennessee Supreme Court has granted a Rule 11 application in Johnson v. Tennessee Farmers Mutual Ins. Co. With this case, the Tennessee Supreme Court will decide whether the tort of “bad faith” exists is Tennessee.

Judge Inman’s decision in this case renders the tort virtually meaningless. It requires almost intentional conduct to give rise to liability.

Judge Lee’s dissent says that the law of Tennessee is (and should be) that bad faith may be found if the jury determines from a consideration of all relevant factors that good faith was absent. She would not require proof of fraud or dishonesty.

November 7, 2005

Research Tip

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

Plaintiff’s lawyers don’t really do legal research, do they?

Only the plaintiff’s lawyers who want to win.

If you don’t know the law it is difficult to make intelligent case selection decisions. There is nothing wrong with pushing the envelope, but you need to know you are pushing the envelope when you accept the case so that you can make an informed decision that you are taking a case that has appropriate facts that increase the likelihood that you will push the envelope and live to tell about it.

November 7, 2005

New Blog

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

I came upon a new blog – Insurance Scrawl – written by Marc Mayerson in D.C.

Here is how Marc describes the purpose of the blog:

“Insurance Scrawl focuses on the law of insurance, the insurance of business, and the business of insurance. It is the first insurance blog (or insurance blawg) that approaches these issues from the perspective of policyholders. The principal focus is on commercial property-casualty matters (and not life/health/disability/auto or the insurance needs of individuals). The goals of this weblog are to provide current updates, with links to source materials, on matters about which well-informed professionals should be aware and to share my perspective and knowledge about insurance-coverage issues. In-house lawyers, risk managers, brokers, outside counsel, insurance-company and reinsurance professionals, adjusters, professors, law students, and judges are the intended audience. Although Insurance Scrawl approaches the subject from a particular vantage point, readers should find the articles to be more analytical than polemical.”

November 6, 2005

Health Care Survey

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

The Washington Post reports that “Americans pay more when they get sick than people in other Western nations and get more confused, error-prone treatment, according to the largest survey to compare U.S. health care with other nations.”

The Post also states that “Americans also reported the greatest number of medical errors. Thirty-four percent reported getting the wrong medication or dose, incorrect test results, a mistake in their treatment or care, or being notified late about abnormal test results. Only 30 percent of Canadian patients, 27 percent of Australian patients, 25 percent of New Zealanders, 23 percent of Germans and 22 percent of Britons reported errors.”

Read the article here.

November 4, 2005

One Doc Wants Answers

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

Apparently not every doctor in America is willing to accept the propaganda from liability insurance carriers that “your rates are the fault of greedy trial lawyers.” This doctor wants information, and is pushing legislation to get it. Read more here.

November 3, 2005

Second Vioxx Verdict is Coming In

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

Jurors have apparently reached a verdict in the second Vioxx case. It is expected to be announced in the next few minutes. (From ABC News).

November 3, 2005

New Jersey Jury Finds Merck Not Liable

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

In the second Vioxx case, the New Jersey jury ruled Merck not liable. Read about it at Forbes.

November 3, 2005

Suing the Parent Company

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

Here is a great decision out of the state of Illinois, home of the World Champion White Sox. (I never thought I would type that phrase.)

The Fourth Division of the Illinois Court of Appeals said that “plaintiffs presented evidence that one result of the budget cuts mandated by defendant [corporate parent] was a decrease in the number of trained maintenance mechanics at the refinery, undermining the overall level of safety at the refinery. In fact, the fire was apparently caused by workers who were conducting maintenance on machinery that they were not trained or qualified to work on.” The opinion goes on to say that “Plaintiffs here alleged that defendant [parent] was a proximate cause of the decedent’s deaths via its own direct conduct, i.e., by mandating that [its subsidiary] Clark Refinery operate the refinery at “survival mode” and by reducing the capital expenditures to the “minimum sustainable level,” defendant created conditions within the refinery which posed an unreasonable risk of harm to refinery employees like the decedents. In other words, by mandating how Clark Refining was to operate the Blue Island refinery (at a 25% cost reduction), plaintiffs allege that defendant “interposed a guiding hand” in Clark Refining’s management of the refinery, leaving Clark Refining “no choice but to obey.”

After analyzing corporate law and various decisions concerning the relationship between parent and subsidiary corporations and the liability of parent corporations, the Court noted that “it has long been acknowledged that parents may be ‘directly’ liable for their subsidiaries’ actions when the ‘alleged wrong can seemingly be traced to the parent through the conduit of its own personnel and management,’ and the parent has interfered with the subsidiary’s operations in a way that surpasses the control exercised by a parent as an incident of ownership.”