Day on Torts

August 10, 2005

Tragic Truck Wreck

This article in the Tennessean is a tragic reminder of how quickly a life can be lost as a result of carelessness.

A truck driver for Diamond Logistics fell asleep at the wheel, went into a parking lot at a local market, and killed one man and injured three others.

A review of the records of the driver and Diamond Logistics will reveal whether the trucker was in compliance with the law at the time he was driving and whether Diamond Logistics was aware of a pattern of deviations from the law, if any. We have had considerable success evaluating driver logs and other materials and proving a pattern and practice of unlawful driving leading to hazardous situations. Hopefully, someone will quickly get to the bottom of this situation and find out what happened in the days and weeks preceeding the wreck.

August 10, 2005

“Peer Review” Actions

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

Here is an article from Time about hospitals and doctors going after doctors in the name of “peer review.”

I recently defended a physician charged by a hospital with poor patient care. I must say that after reviewing the charts I was surprised at the charges – not a single case would have been won by a plaintiff in a medical negligence action. The central allegation involved the treatment of a patient for a serious medical condition of which I had some knowledge because of a past malpractice case where I represented the plaintiff. I knew the proper course of treatment, I knew the survivability rate with proper treatment, and I would have turned the case down on the records without even consulting an expert.

The system is really stacked in favor of the hospital in such cases. As a lawyer, I was shocked at the lack of due process in the system.

August 10, 2005

Motorcycle Helmets

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

I ride a BMW 1200 CLC. My wife rides a Harley Sportster. I did not ride until I hit the age of 45 but I must confess there is nothing quite like riding a motorcycle on a country road on a fall or spring day. It is a blast – a true escape.

It would be fun to ride without a helmet. On the other hand, it would also be stupid. Here is a recent article that demonstrates the risks of riding without one as confirmed by two recent articles.

August 9, 2005

Seminar in Mexico

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

The weekend after Thanksgiving 2005 I will be speaking at a seminar in Cozumel that will be of particular interest if you want to scuba dive.

The seminar is sponsored by the Bench Bar Committee of the Tennessee Judicial Conference. Attendees will stay at the Fiesta Americana, an all-inclusive resort.

I will be speaking for 6 hours (3 hours per day) on Saturday and Sunday. Three hours will address tort and comparative fault issues and three hours will be an indepth look at the law of depositions. CLE credit will be available. The sessions will be interactive.

August 9, 2005

“Peer Review” Against Experts Who Testify for Plaintiffs

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

There are many ways that defendants fight medical negligence cases. Some battles are fought in the courtroom. Some are fought in the Legislature. Others are fought against the doctors who choose to testify for plaintiffs.

Read this article about what can happen if a group of doctors doesn’t like your expert’s testimony.

I am familiar with the Fullerton case mentioned in the article; I sit on an ATLA Committee that advises the Center for Constitutional Litigation that is advising Dr. Fullerton. I will let you know when that case is resolved.

August 7, 2005

Safe Roads Save Lives

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

There is a new study out that maintains that relatively minor changes in highway design can say lives.

The study, by the Insurance Information Institute, explains that “urban roads ‘weren’t built to accommodate today’s heavy traffic. They’ve evolved as traffic has increased, and they haven’t always evolved in the best way to enhance safety and ensure a smooth flow of traffic.'” A news report about the study says that “the majority of traffic fatalities happen on rural roads, but safety experts say urban arteries remain dangerous. About 8,000 traffic fatalities and more than 1 million injuries occur annually on urban roads.”

The article gives several examples of how spending a relatively small amount of money can improve safety.

August 6, 2005

A New York Times Review of the Texas Vioxx Trial

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

The NYT has done a review of the testimony to date in the Texas Vioxx trial. The Times concludes that the plaintiff has the upper hand, which one would hope would be true since the defense has not put on its case yet but is still good news for the plaintiff.

The article reviews some of the testimony. For example, consider this excerpt:

Mr. Lanier later asked Dr. Nies [a retired Merck scientist involved in the Vioxx project] about a contract proposal in which Merck had offered to pay researchers at Harvard $200,000 to lead a study that would have directly examined Vioxx’s heart risks. Dr. Nies said the study would have been unethical, which is why the study was ultimately scrapped.

August 5, 2005

Business Litigation Blog

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

Have you had the opportunity to check out our Business Litigation Blog yet? It is full of information for those of us who involved in commmerical disputes.

For example, here is a link to a post on the issue of when attorneys’ fees must be litigated.

August 5, 2005

Vioxx Trial – Plaintiff Rests

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

The Plaintiff closed her case yesterday in the Texas Vioxx trial, and Merck called its first witness, a researcher.

One of Merck’s arguments is that the decedent was a smoker. His widow testified that he had not smoked in 15 years.

I assume that Merck has at least one defense better than that one.

August 4, 2005

Anthrax Scare and Defamation

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

Remember the anthrax scare in the months following the 9/11 attacks? Remember Mr. Z? If you don’t, this opinion will refresh your recollection.

Mr. Z was named in some New York Times articles and did not appreciate being called a terrorist. He sued, had his case dismissed, but the Fourth Circuit Court of Appeals reversed and remanded the case for trial.

He will get his day in court. I wonder if the NYT will be forced to reveal its source(s) for the stories?