Day on Torts

June 14, 2005

Client Sues Expert Who Sues Lawyer

Client loses products liability case on summary judgment.

Client gets different law firm and sues expert and expert referral service, saying that expert was unqualified and misrepresented qualifications. Client does not sue lawyer.

Expert and expert service then sued the plaintiff’s lawyers for equitable indemnification, saying that the lawyers should pick up part of the loss. The experts said the lawyers waited too late to hire an expert, did not supply the expert with the right information, did not rehabilitate the expert after his deposition, etc. Lawyers moved to dismiss the indemnification claim, arguing a host of issues.

June 13, 2005

Use of Statistics in Medical Malpractice (and Other) Trials

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

This is a fascinating opinion.

Defendants in medical negligence cases try to argue that, say, because a bowel is perforated in 15 in 10,000 cases of a certain surgery it was not negligent to perforate the bowel in the subject surgery.

The Supreme Court of Virginia just ruled that that evidence could not be introduced and that that argument could not be made.

June 12, 2005

Nothing About Negligence, But Still Interesting

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

We can’t always talk about negligence and other tort law topics.

Here is a fascinating article by Frank Rich.

June 12, 2005

Guidant Class Action Suits Filed

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

I wrote on May 24th about Guidant Corporation. Not surprisingly, Guidant has been hit with class action suits concerning its defective defibrillators; read the accompanying article. This suit does not appear to include people whose loved ones who have already died because of a malfunction of the device; however, I would have to see the actual court papers to know the precise class definion. It does include those persons who currently have the device in their body.

It also appears that someone else has purported to file a personal injury or wrongful death class action – a step that rarely works and, in my mind, is only an attempt to get publicity in an effort to get more cases.

Why do personal injury and wrongful death class actions rarely work? Because the law requires that claims in class actions must be substantially similar. Personal injury and wrongful death claims usually have such different underlying factual circumstances that class certification is impossible without the defendant’s consent. Class actions seeking medical monitoring or payment for removal of the devices may be appropriate for class action certification.

June 11, 2005

Yesterday

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

I apologize for the absence of a post yesterday. I got to the office at 7:00 a.m. and sat down to do a little fact research on the computer. I got wrapped up in that research and it gave rise to re-writing two motions on discovery issues in a pending case. Those motions turned out to be ten and five pages in length respectively, with a total of 24 exhibits. When I left the office at 6:20 p.m., already 45 minutes late for my son’s baseball game, jumping on the computer again was simply not going to happen.

But, it is now 5:00 a.m., I’m at our cabin at Tim’s Ford Lake, and I am ready to rock ‘n roll.

June 11, 2005

Products Liability – Zyprexia Settlement

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

A settlement has been announced in the products liability cases involving the drug Zyprexia.

This drug is alleged to cause diabetes and other serious health conditions. About 7000 lawsuits concerning the drug are pending.

Plaintiffs have a right to opt out of the settlement, which was negotiated between a steering committee of lawyers representing the plaintiffs and the drug’s manufacturer, Pfizer.

June 9, 2005

Reflections After Arguing A Case in the Supreme Court

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

I argued a case before the Tennessee Supreme Court yesterday, and reflecting on that experience last night gave rise to several thoughts that I would like to share.

First, although I have had the opportunity to argue cases before the Court in the past, yesterday is a particularly memorable experience. June 8th was the Chief Justice’s last day of hearing oral arguments, and our argument was the 2nd to last argument he heard as a judge with 35 years on the Bench. Those of you from Tennessee know that Chief Justice Drowota is a good man who has served our State in exceptional fashion. His presence will be missed, his absence felt. I hope that his successor will bring the same sense of honor, compassion and commitment to excellence to the Bench.

Second, the Court’s first order of business yesterday was to swear in a new lawyer who could not attend the group ceremony the day before. I had not attended one of these ceremonies in many years, and it moving to hear the Chief Justice administer the oath. Those of you who have not heard it in a few years need to find an opportunity to hear it. Those words give us strength to fight the good fight.

June 9, 2005

Are You Really Surprised?

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

The Bush Administration decided to pursue the case against the tobacco companies originally filed during the Clinton Administration. The Justice Department has spent the last 5+ years working on the case and it has been in trial for months. One of their experts said the proposed remedy would cost $130 billion dollars. So what does the Administration request from the Judge?

Ten billion dollars. To be paid over five years.

This caused the Judge to comment “Perhaps it suggests that additional influences have been brought to bear on what the government’s case is.” (Read more here.)

June 9, 2005

Cheating Scientists?

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

This should scare the hell out of every one of us who try lawsuits for a living and have to rely on or fight against “scientific studies.”

This article from the Washington Post tells us that (a) “more than 5 percent of scientists answering a confidential questionnaire admitted to having tossed out data because the information contradicted their previous research or said they had circumvented some human research protections;” (b) “ten percent admitted they had inappropriately included their names or those of others as authors on published research reports;” (c)”more than 15 percent admitted they had changed a study’s design or results to satisfy a sponsor, or ignored observations because they had a “gut feeling” they were inaccurate;” and (d)
“13.5 percent who used research designs they knew would not give accurate results.”

It is no surprise that the survey of the 3247 scientists was conducted anonymously.

June 8, 2005

Medical Negligence Judgments Increasing? No – Not Even As Much As Medical Inflation

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

There is yet another article that provides more data undermining the alleged need for restrictions on the right of patients to sue negligent health care providers.

According to the abstract of a study published in Health Affairs “we used data from the National Practitioner Data Bank (NPDB) to study the growth of physician malpractice payments. Judgments at trial account for 4 percent of all malpractice payments; settlements account for the remaining 96 percent. The average payment grew 52 percent between 1991 and 2003 (4 percent per year) and now exceeds $12 per capita each year. These increases are consistent with increases in the cost of health care. A preoccupation with data on judgments, extreme awards, or specific specialties results in an incomplete understanding of the growth of physician malpractice payments.”

Almost every week there is another study that demonstrates that the so-called “crisis” is one manufacturered by the insurance and health care industry. The current “crisis” is about over; the next one will be occur in about seven years.