Day on Torts

August 19, 2005

Gaming the System?

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.

August 17, 2005

Case Acceptance

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

Well, its 9:30 a.m. and I still haven’t posted on the blog today. Sorry. I gave a speech in Memphis last night to a group of nurse practitioners (more in a later post) and drove back to Music City (180 miles) early this morning.

My post this morning is a Guest Post that I wrote for Evan Schaeffer’s Legal Underground blog. Evan is a plaintiff’s lawyer from Madison County, IL and has a great blog that I would encourage you to put on your RSS feed. He was kind enough to let me put a post on his site. He titled it “A Plaintiff’s Lawyer Explains the Economics of Turning Down Cases.”

Some of you have heard me speak on this topic; it is part of the seminar our firm offers every year to young lawyers who practice civil litigation. This year the seminar will be held on December 14 and 15 in Nashville. A mailer on the seminar will be coming out any day and you will be able to register via the Web. More on that later.

August 17, 2005

First Vioxx Case Goes to Jury

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

The jury in the Texas Vioxx case is hearing closing arguments today. I will let you know when I hear about the verdict.

UPDATE: Here is an article giving a brief summary of the arguments.

August 16, 2005

Florida Tort Reform

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

The Florida voters passed a constitutional amendment to limit attorneys’ fees in med mal cases to 30% of the first $250K in damages and 10% in any recovery about $250K.

So, a $1M verdict would entitle the patient’s attorney to a total fee of $130K. A $2M verdict would result in a fee of $260K. The result: in other than a slam dunk case where no liability or causation discovery was necessary, a plaintiff’s attorney would be working for $100 per hour or less, an amount less than the paralegal rate in major cities.

Florida plaintiffs’ attorneys then starting giving their potential clients the option of waiving their “constitutional right” to a fee cap.