Day on Torts

October 24, 2005

Tort Reform in Texas

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.

October 18, 2005

Portion of Georgia Tort Reform Statute Found Unconstitutional

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

Georgia passed a tort “deform” statute last year. One part of the legislation required a plaintiff to pay a defendant’s attorneys’ fees if the plaintiff did not obtain a judgment of at 25% higher than a defendant’s last offer of judgment.

A trial judge has struck down that provision, saying that “[b]y authorizing attorney’s fees to be awarded against plaintiffs who assert their right to prosecute their claims in court, secure a judgment in their favor, but fail to win as much damages as they hoped, the statute violates [Georgia’s Constitutional] guarantees that “[n]o person shall be deprived of the right to prosecute … [their] cause in any of the courts of this state.”

Here is an articledicussing the ruling.

October 17, 2005

Gay Partner Cannot File Wrongful Death Suit

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

It had to happen sooner or later.

Neil allegedly died from medical negligence in New York. His partner, John, filed a wrongful death suit, alleging and proving that he and Neil had participated in a civil union in Vermont several years earlier and insisting that he could maintain a medical negligence suit.

The Associated Press reports that a divided appellate court in New York rejected the claim, saying that a ruling allowing John to maintain the action would be “taken as judicial imprimatur of same-sex marriages and would constitute a usurpation of powers expressly reserved by our Constitution to the Legislature.”

October 15, 2005

You Have to Make a Record

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

The Tennessee Supreme Court has just reversed a summary judgment because there was not an appropriate record to permit the Court to determine if summary judgment was appropriate. The trial court granted summary judgment in favor of the appellee without indicating its reasoning for doing so. The appellee’s motion for summary judgment did not state the grounds for summary judgment with particularity and no memoranda in support were contained in the record on appeal.

Here is the decision.

The Court put a burden on the appellant and the appellee to ensure that the record is in order. The Court put particular emphasis on the fact that the appellee was trying to uphold a summary judgment.