Day on Torts

October 4, 2005

Passenger vs. Passenger

Can a passenger of one vehicle sue a passenger of a different vehicle alleging that the latter negligently told the vehicle driver that it was safe to back up when, in fact, it was not, and the resulting wreck injured the former?

This is a classic duty question – it has been certified to the Florida Supreme Court. Read the opinion here.

Remember that even if there is not a duty in general there may well be a duty because of the “gratuitous undertaking” of giving the driver advice. But that gives rise to a duty issue itself. Why? Because while the passenger who undertook the duty to “be on the lookout” for the driver of his car would clearly owe a duty to that driver and probably other passengers in that car there is still an issue of whether the passenger would owe a duty to the passengers of other vehicles.

October 4, 2005

New Jersey Vioxx Trial – Update

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

The Plaintiffs’ proof is about over, and the jury has been permitted to ask questions. To read about the current status of this important case, click here.

October 3, 2005

Extreme Makeover Lawsuit

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

Extreme Makeover is a disturbing show that takes advantage of poor self image and glorifies physical beauty. Deleese Williams did not make the final cut of the show and, she now alleges, the experience was so horrible that it caused her sister to take her own life. <a

According to one source, “Williams was videotaped recounting the ridicule she suffered as a child and her years in an abusive marriage to an ex-husband. Her lawsuit alleges that her husband and sisters were also interviewed and encouraged to make disparaging comments about her looks.Here is a copy of the complaint.

It appears that the contestant signed some sort of release before taking part in the activities that may have given rise to an actual appearance on the show.

October 2, 2005

Proposed Rule Change – Supplementation

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

I mentioned in a previous post that the Civil Rules Commission has proposed several rules changes that, if adopted by the Tennessee Supreme Court and the Legislature, will become effective on July 1, 2006.

One proposal is a change to Rule 37 and provides that a party who without substantial justification fails to supplement or amend discovery responses pursuant to Rule 26.05 will not be able to use that evidence at trial. The proposed rule gives rise to the risk of imposition of other sanctions as well, including advising the jury of the failure to amend or supplement. Your can read the proposed rule here.

October 1, 2005

Family Exclusion Held Valid

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

The Tennessee Supreme Court has ruled that the “family exclusion” that exists in every motor vehicle insurance policy I have ever seen is not void as against Tennessee law or public policy. The case came before the Court on a certified question from a federal district court in East Tennessee.

September 30, 2005

Caught

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

As you know, some lawyers just cheat. Some are just ignorant of the law and make mistakes. But others know the law and cheat.

Lawyers who are ignorant about the law need to be educated and warned. But cheaters need to be hammered. Judges who see lawyers repeatedly violate the rules – especially the same rule – need to come down on them.

An appellate court in Florida has made this point loud and clear. Read this excerpt:

September 28, 2005

Vioxx Trial Update

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

Here is the most recent news on the Vioxx trial currently underway in New Jersey.

The author clearly does not understand the law of directed verdict.

September 27, 2005

Proposed Rule Change

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

The Civil Rules Commission in Tennessee has proposed to change Rule 8 of the Tennessee Rules of Civil Procedure and require a plaintiff to state an ad damnum.

Under current law, a plaintiff probably must state an ad damnum at some point, except in medical negligence cases. Why do I say a plaintiff probably must do so? The law is unclear. Nothing in the rules requires an ad damnum but Rule 15 prohibits a plaintiff from moving to amend the complaint post-verdict to increase the amount sued for. The concern is that if no specific amount is listed the amount of the verdict may be capped by whatever amount is in the complaint and if the only amount listed is, say, the jurisdictional amount some court somewhere might apply that as a cap. Once again, there are no cases on point (except in the medical negligence area).

I am opposed to the proposed rule change and, in fact, I do not think a plaintiff should be able state the amount sued for in the complaint. No good can come of it. I intend to write in opposition to the proposed rule. If you want to do so, write to the Supreme Court Clerk.

September 26, 2005

Medical Monitoring

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

When you can’t prove a current injury but can prove that, because of the fault of another, you need to be regularly followed by a health care provider you seek damages for “medical monitoring.” The claim arises is toxic tort and products liability cases.

In a case of first impression, the Sixth Circuit Court of Appeals has ruled that Tennessee law would recognize a cause of action for medical monitoring. The court said “there is something to be said for disease prevention, as opposed to disease treatment. Waiting for a plaintiff to suffer physical injury before allowing any redress whatsoever is both overly harsh and economically inefficient.” (Emphasis supplied). The case, Sutton v. St. Jude Medical S.C., Inc., was brought as a class action on behalf of a proposed class of persons who underwent cardiac by[ass surgery using a medical device called the Symmetry Bypass System Connector.

Sunday Spoof – Merck and Hurricanes

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

A spokesman for Merck announced today that its scientists have discovered a link between between recent hurricane activity in the Gulf of Mexico and the lawyers that are suing the company over its multi-billion dollar drug, Vioxx.

“The scientists have Merck have determined that greedy trial lawyers are the cause of Katrina and Rita,” Merck spokesman Phillip (“Flip”) Glanton said in a press conference earlier today. “Congress must act immediately to stop greedy trial lawyers from filing frivilous lawsuits before the entire Gulf Coast is destroyed.”

When pressed to explain the link between well-known Acts of God that have existed for centuries and trial lawyers, Glanton handed out a 215-page, single-spaced document that he said was prepared by Merck’s best scientists. “Our team of scientists has found that a Category 4 hurricane did not hit New Orleans until after the Vioxx litigation was consolidated in the federal courts in New Orleans. Greedy trial lawyers filed the Vioxx lawsuits, and therefore they are the cause of Katrina. It is a scientific fact.”