Day on Torts

August 1, 2005

Medical Monitoring

What do you do when you represent people who have been exposed to a dangerous substance but to date have not experienced an injury? Some lawyers have brought what is known as a medical monitoring claim, asking that the defendant be required to pay money to monitor the health of the plaintiff to identify and then treat health problems related to the exposure.

Plaintiffs in that situation are in a tough spot. If they wait until they suffer an “injury” there will be an argument that a statute of limitations or a statute of repose has run. If they file suit too early the defendant argues that the plaintiffs have not been injured and therefore do not have standing to bring a claim.

What is the state of the law on this issue? The Supreme Court of Michigan has just ruled that plaintiffs may not bring this type of claim. In Henry v. The Dow Chemical Corp. plaintiffs claimed that they were exposed to dioxin and needed medical monitoring. Dioxin is known to cause cancer, liver disease, and birth defects. The State of Michigan determined that the most likely source of the contamination was Dow’s Midland plant.

July 31, 2005

ATLA Convention

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

I ran into fellow blogger David Swanner of the South Carolina Trial Law Blog in Toronto. He was kind enough to grab me as I was walking along oblivious to my surroundings and introduce himself. He has a great blog and a great collection of powerpoint presentations from various lawyers. He will give you a copy of the powerpoint presentations if you ask.

The Convention was a real treat. I have attended the last 21 ATLA Annual Conventions and I have learned many valuable things at each one of them. ATLA has a new commitment to educating the public of the value of the civil justice system. It will be a long, expensive process but, I suggest, one worth the effort. We have to win back the hearts and minds of the jurors.

If you represent plaintiffs and are not a member of ATLA you should join. Not only will you get a great return on your money, but you will also help support the good fight.

July 31, 2005

Wisconsin’s Med Mal Decision Upsets Doctors

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

The Wisconsin Supreme Court struck down the state’s med mal cap, saying that even under the rational basis test the cap did not meet constitutional muster. The med mal insurances companies and the docs are upset. What the insurance companies and the doctors don’t understand is that rational basis does not mean “any ole reason that some lobbyist and pr flack can speculate about” – at least not to real judges who take their job as guardians of the right to trial by jury seriously.

July 30, 2005

Class Action for Third-Party Payors of Vioxx

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

A New Jersey state court trial judge has certified a nationwide class action on behalf of unions and other third-party payors of health claims in a lawsuit alleging that the companies would not have paid for Vioxx had they been warned of the dangers of it. The suit is brought under the NJ Consumer Protection Act. Merck is headquartered in New Jersey.

The judge wrote that “there are significant factual and legal issues common to all class members to make adjudication through class action fair and efficient. Having each individual class member attempt to litigate their claims (separately) would result in needless duplicative discovery, undue expense to the parties as well as an undue burden on judicial economy.”

Although the merits of the litigation have not been decided, the right to bring the case as a class action is a major victory for the plaintiffs.

July 30, 2005

Vioxx Witness Update

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

I wrote yesterday that a trial judge was going to permit the pathologist who performed the autopsy of the plaintiff’s decedent in the Vioxx case to testify.

How important is that testimony to the plaintiff? Well, a good guage of that is that Merck has appealed the decision in the middle of the trial. The court of appeals denied the request for review, and Merck appealed to the Texas Supreme Court.

How can Merck claim surprise when the doctor was on its witness list?

July 29, 2005

Vioxx Trial

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

One of the big fights in the Vioxx trial underway in Texas is the cause of death. The Plaintiff has been granted permission to have the pathologist who did the autopsy testify – and she is giving great testimony that supports the plaintiff.

Here is the complete article:

KRISTEN HAYS
Associated Press

July 28, 2005

Codes for Reading Crash Reports

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

Morgan Adams recently pointed out that this site has the codes for reading crash reports from most states. Great tip, Morgan.

July 27, 2005

Electronic Court Filing

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

Lawyers have a lot to worry about. It’s an occupational hazard. Want one more stressor on your plate? If you’re filing electronically, and the court’s website runs so slowly that you start before the filing deadline but finish an hour after the deadline, your filing may not count. Read about it over at our Tennessee Business Litigation blog.

July 27, 2005

ATLA Convention Update

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

Well, I am still in Toronto at the ATLA Convention. The Covention has been great; it is wonderful to see old friends and meet new ones.

The word here is that the Vioxx trial in Texas is going great for the plaintiff. I have been receiving daily transcripts and from my review it seems like plaintiff’s lawyer Mark Lanier is scoring a lot of good points.

That being said, the first few trials in a products case usually result in defense verdicts. If this one does, people with “good” cases should not lose faith.

July 27, 2005

Probate Litigation Blog

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

Here is a link to an interesting blog about probate litigation.

We were involved in a significant will contest several years ago that ended up going to the Tennessee Supreme Court (Rule 11 denied) and then, believe it or not, to the United States Supreme Court (cert. denied). It was interesting work and, quite frankly, alot of fun.

The blog looks good, too!