Day on Torts

October 7, 2005

Another Study Concerning Medical Malpractice Insurance Rates

The Insurance Commissioner from the State of Washington has released a fascinating study of malpractice insurance rates for physicians in that state. A news report of the findings says “that the amount doctors pay for malpractice insurance in 2005 is largely equal to or less than what they paid for coverage in 1985 when adjusted for inflation. These findings and others ‘fly in the face of those who claim that something dramatic has changed relating to malpractice suits in Washington,’ said Commissioner Mike Kreidler.”

Claims were also studied: “There were 10,212 closed claims during the period. Of those, 45 claims – less than 1 percent – were decided by a jury. Of those claims, 27 percent resulted in payments to patients. More than 60 percent were for $100,000 or less and less than 2 percent resulted in payments of more than $1 million.”

Here is the study itself.

October 4, 2005

Ford Truck Roof Crush Verdict

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

A jury in South Texas returned a jury verdict against Ford yesterday.

A teenager died when the truck rolled over and the roof crushed. The truck was forced off the road by the actions of another driver. That driver was also apportioned fault in the incident. Ford was given 90% of the fault.

Plaintiffs introduced testing that demonstrated when the truck was dropped from a height of nine inches the roof crushed down to the headrest.

October 4, 2005

Passenger vs. Passenger

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

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.