Day on Torts

September 16, 2005

New Jersey Vioxx Trial

Vioxx vs Patients – Round 2. Venue: NJ

The trial is underway, and the defense has already violated the Judge’s order not to attack the plaintiffs’ lawyers. They spent alot of time attacking Mark Lanier in round one, and it worked so well there I guess they thought they should try it again.

This has become a tactic of some defense lawyers in recent history. Seizing on the dislike of lawyers, some defense lawyers wrap themselves up in the corporate (or doctor) flag and try the lawyers rather than (or in addition to) trying the case. It happened to me in a trial in December.

September 15, 2005

What is a Sunday Spoof?

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

A Sunday Spoof is my occasional attempt to inject a little fun into my otherwise dull life that is overly consumed by the law. It is my attempt to have fun with the law and current events in a way that I hope will cause you to smile. I will accept and, as appropriate, post a Sunday Spoof from a Guest Spoofer; send your submission to jday@branhamday.com.

This portion of the blog is 100% fiction. It is not meant to educate. It is meant to entertain, a goal it may not accomplish. Everything said here is a complete fabrication.

September 15, 2005

Federal Civil Trials Decreasing

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

Federal tort trials are dropping like President Bush’s approval rating. From fiscal year 1985 through 2003 the number of federal tort trials dropped 79%, from 3600 to less than 800. Only 2% of all cases in that time period went to trial.

There were less than 100 products liability trials in federal courts in 2003.

Read the Department of Justice’s press release about the study here. If you want to read the entire report click here.

September 15, 2005

Bluff City Report: Judges and BBQ

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

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.