Day on Torts

September 15, 2005

Bluff City Report: Judges and BBQ

Today I am in Memphis to participate in the evaluations of our appellate judges. A couple years ago Lt. Gov. John S. Wilder appointed me to the Judicial Evaluation Commission. The Commission has the responsibility of evaluating judges and composing a summary statement about each judge for publication in newspapers before the upcoming retention election. Data is collected from lawyers who appear before the judges and other judges.

Obviously, the judges take this process very seriously. So do I. We are very fortunate to have a fine judiciary in this State, but appellate judges are not elected and face only a retention ballot and therefore I think it is very appropriate for judges to face an evaluation process. The key, of course, is trying to make the evaluation process meaningful and fair. We admittedly struggle with some issues – how do you define a “good” opinion – but I think the process is working and will continue to improve.

We have six days of interviews scheduled with judges across the state in the next couple months and then some additional dates set aside for discussion. We did a “practice” or “interim” session a year or so ago and it was taxing but interesting. There are a lot of judges and a lot of information.

September 14, 2005

Lyin’ and Cheatin’ in Discovery: Chili Seller Gives the Finger to the Plaintiffs and Co-Defendants

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

Anna Ayala ain’t got nothin’ on these folks. You remember Anna – she gave Wendy’s the finger – in a bowl of chili – and then said that Wendy’s gave it to her. She is going to prison.

Now, a food supplier – of chili – has given the finger to the court system. Their current problem: a bunch of people have grabbed that finger and are about to twist it off.

This article from the Houston Chronicle is a horror story about discovery abuse. Fifteen people got sick and ten were hospitalized after eating from tubs of chili con carne. Litigation followed. Read this excerpt to learn about the discovery issue:

September 13, 2005

Federal Trucking Rules Effective October 1

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

The Bush Administration is pushing forward with new trucking rules, even though the D.C. Circuit Court of Appeals found a similar set of rules “arbitrary and capricious” and “a threat to driver’s health” just last year. The rules come into effect October 1, 2005.

Here is a summary of the “highlights” of the new rules, as prepared by Lawyers Weekly U.S.A. :

*Increase the limit for consecutive driving for long-haul truckers to 11 hours, up from the 10-hour limit that had been in effect until 2003. However, they also shorten the total workday (including non-driving time) to 14 hours, down from 15.

September 13, 2005

Anna Pleads Guilty

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

Anna Ayala, the woman who claimed that she found a finger in a bowl of Wendy’s Chili, has plead guilty to filing a false claim and attempted grand theft. Her husband has also plead guilty for his part in the scheme.

The finger turned out to be that of a co-worker of her husband; it was lost in an industrial accident.

She is facing 10 years in the slammer. He is facing 13 years.

September 12, 2005

Guidant Corp – What did the FDA Know and When Did It Know It?

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

As reported here early earlier, Guidant has a problem with some of its defibrillators and has know about it for over three years. Now, it appears that it disclosed at least a part of what it knew to the FDA in February but the FDA did not act until June.

The New York Times just got the report under a FOIA request – a request orginally rejected by the FDA.

Read more here. For my other posts on this subject click here and here.

September 12, 2005

Mental Capacity Relevant to Victim’s Comparative Fault

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

The Supreme Court of South Dakota has ruled that in a civil action arising out of the decedent’s death by suicide the jury should have been instructed to “evaluate the effect of [the decedent’s] mental incapacity in judging [the decedent’s] contributory negligence.” Because the jury was instructed to use the typical “reasonable person standard” a verdict for the defendant was reversed.

The Court cited with approval the following language from the North Dakota instructions: “If the patient’s capacity for self care is so diminished by mental illness that it is lacking, we agree that an allocation of fault is not appropriate. . . In making the fault comparison, the factfinder should always take into account the extent of the patient’s diminished mental capacity to care for his own safety.”

September 11, 2005

A Tip of the Hat

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

Those of you who read the Tennessee Tort Law Letter know that I depise Tennessee’s limitations on the liability of governmental entities. I think a limb or life of a person should be worth the same regardless of whether the tortfeasor is a person, an entity, or a governmental entity.

Over the years I have been particularly frustrated with how governmental entities, protected by a damage cap, negotiate settlements. This will be no new news to those of you who represent plaintiffs, but it seems that these entities always want “to save a little.” It drives me crazy that a case worth X but subject to a cap of 1/2 X is difficult to settle at 1/2 X. My frustration with this mindset has often caused me to lash out out governmental entities and their lawyers.

Well, we have recently been involved in two cases where the response of the governmental entities and their lawyers was very different. In one, the entity offered the cap before suit was filed. To be sure, the case was worth 10 times the cap, but City stepped up to the plate, did the right thing, and resolved the case.

September 10, 2005

More Q and A with Lanier

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

I know some of you may be sick of reading about the Texas Vioxx trial, but this piece – a Q & A with Mark Lanier with questions posted by readers – is different and very interesting. Note the resources Lanier poured into this trial.

September 8, 2005

Ford Recalls Vehicles – Fire Risk

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

The NYT has reported that Ford has recalled almost 4,000,000 trucks and SUVs, saying that a problem with the cruise control could cause the vehicle to catch fire. There have been almost 1200 reports of fire to date. Ford had earlier recalled almost 800,000 for a simliar concern.

The model years at issue are 1994 – 2002.

According to the Times, “Ford said it believed that brake fluid may leak from the switch that deactivates the cruise control once the driver steps on the brake pedal. That fluid can drip down to the cruise control’s electrical component, cause corrosion and ignite a fire, the company said.”

September 8, 2005

Treatment for MI Patients

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

A new study reports that doctors should not give clot-busting drugs to patients who are going to receive angioplasty. Doing so increased the death rate by 40%. The results were so surprising that the study was stopped before it was complete.