Day on Torts

August 22, 2005

What If Merck Had Won?

This represents my best guess of what the tort reformers would have wrote if Merck had won the Texas Vioxx trial:

“Well, the greedy plaintiff’s lawyers did their best but they could not fool the good people of Texas. Mark Lanier, who is supposed to be a star of the plaintiff’s bar, was rumored by the liberal media to be winning the case, which only shows how out-of-touch they are with mainstream America. Real people can see right through a huckster like Lanier, who apparently left his alleged trial advocacy skills in his plane.

Sooner or later the socialists who have (temporarily) captured the American media will learn that jurors will not fall for the sympathy plays used by Lanier and his ilk. No – jurors listen to and evaluate the facts. They listen to scientific experts and disregard those who create new “science” for the purposes of litigation. The American people are not dummies, notwithstanding the pabulum that they have been served by a media that assumes they are ignorant.

August 22, 2005

Pre-Trial Brief

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

A pre-trial brief takes a lot of effort, but it can really set the stage for success before you walk into the courtroom – particularly in a bench trial.

Preparing for trial is exhausting enough, so it’s tempting to put the pre-trial brief on the backburner. Don’t. Give the court all of the information that should be necessary for you to win, and then a little bit more. Acknowledge the weaknesses in your case so the court isn’t surprised when you walk into trial with half as good a case as your brief would suggest.

Here is an example of a brief Brandon Bass of our office recently used in a construction negligence case where a driver was critically injured in a car wreck on an Interstate exit ramp. We alleged that the State failed to use appropriate signs and other markings to advise drivers and that the failure to do so left the intersection confusing and dangerous. We used photos in the text of the brief to help her understand the confusing nature of the intersection without having to like flip back and forth to an appendix.

August 20, 2005

More Thoughts on Vioxx Verdict

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

I watched some of the news coverage on the Vioxx verdict and have some more thoughts….

First, Merck lost $5B in market cap in a few hours. I am not sure the losses are over. It is clear that the jury did not believe Merck. The jurors I saw interviewed seemed intelligent. They were just outraged that Merck knew about a problem and tell not warn about it. Any investor who saw juror interviews would be more concerned about the value of the company than he or she was before seeing the interviews.

Second, we all know now that thanks to the lobbyists and the Texas legislature the punitive verdict will be cut down below $2,000,000. My guess is that the compensatory verdict will be cut, too – it certainly would be cut in Tennessee.

August 19, 2005

Gaming the System?

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

Many of you have read about the silicosis case in Texas that a judge threw out of court. This case will have repercussions for all plaintiffs and plaintiffs’ lawyers, as explained in this article from Bloomberg.com.

I do not know if the allegations against the plaintiff’s lawyers in the silicosis case are true. I have read portions of the opinion and must admit that what I read there was troubling. If lawyers worked with doctors to manufacture cases the punishment should be swift and significant. We simply cannot allow lawyers to create claims that don’t otherwise exist. It is one thing to advise people of their rights. It is ok to try to advance the law. It is quite another to create “injuries.”

This case is the mass tort McDonald’s case, folks. You will see it used as a tool to hurt the cause of all PI claims, especially those in the mass tort field. You can count on it.

August 19, 2005

Fire Codes

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

There is a change coming in fire safety codes – sprinkler systems will now be required in nursing homes, certain nightclubs and 1-2 family dwellings. The changes were adopted by the National Fire Protection Association and go into effect August 18, 2005. You can read about the changes in this article.

Here is the press release, with links to the changes themselves, from the NFPA.

August 19, 2005

Texas Vioxx Trial

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

The Vioxx jury has asked to see the testimony of the pathologist. Read more here.

August 19, 2005

Vioxx Trial in Texas PLAINTIFF WINS !!!

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

The Plaintiff won $229,000,000 in punitive damages in the Texas Vioxx trial. More later.

This is a very preliminary report. The amount may be compensatory and punitive damages. In fact, I just heard that the total award is $253,400,000, subject to caps. Punitives are capped based on the computation of economic damages.

Addendum: Look here for a photo of a lawyer who just won an important case. There are a couple of other great photos that follow in the slide show.

August 19, 2005

An Early Thought About the Vioxx Verdict

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

I believe that the next trial is in New Jersey next month (plaintiff had an MI; he survived) followed by a trial in federal court in New Orleans in November.

The wonderful thing about this verdict for the rest of the cases is that before trial the plaintiff was not expected to win. Merck thought they had a strong causation case and, as I pointed out in the past, historically the plaintiff loses the first few cases of this type.

Obviously, it would be a mistake to assume that Merck will lay down in these cases given this one defeat. The venue is considered pro-plaintiff, although insiders have indicated that they did not thing that the jury itself was not particularly pro-plaintiff as jury selection ended. In addition, the case was tried by a fantastic lawyer – that obviously makes a difference. Hopefully, Mark Lanier will be invited to try the next few cases.

August 19, 2005

Loss of Future Earning Capacity

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

Can a injured plaintiff who is back to work ask for damages for loss of future earning capacity?

Yes, rules the Eighth Circuit Court of Appeals, given the fact that there was evidence of ongoing physical problems and testimony by the plaintiff that he would probably not be working for as many years.

August 18, 2005

$20 Million Bond for Failure to Comply with Discovery Orders

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

An Arkansas class action case against a nursing home company is getting ugly even in discovery. The trial judge threatened to imprison the defendant company’s officers for refusing to comply with court ordered discovery. Then, the trial judge required them to post a $20 million bond for their failure to comply with the discovery orders. The Arkansas Supreme Court recently affirmed the trial judge’s bond requirement. Read about it over at our Tennessee Business Litigation blog.