Day on Torts

June 24, 2005

The “100 Grand” Lawsuit

Radio station has a contest. If you are the 10th caller during a given hour you get “100 Grand.” Woman wins, and they give her a “100 Grand” candy bar. Woman, disappointed and undoubtedly a little embarrassed because she told her family she had won $100,000, sued the radio station. Read the articlehere.

I don’t know how I feel about this. I would have to hear the announcments concerning the prize to try to see in what context they used the phrase “100 Grand.”

One thing is for sure – the station has gotten alot more than $100,000 worth of publicity out of this little stunt – which may well have been the intention all along.

June 24, 2005

First Vioxx Trial Next Month in Texas

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

The first Vioxx trial will occur next month in Texas. Mark Lanier is the lawyer for the plaintiff; his client is the widow of a 59 year old triathlete who died in his sleep. He had been taking Vioxx for about 6 months.

Mark has a great reputation. It should be a dang good trial.

June 23, 2005

Merck Tried to Make Changes to Vioxx

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

Here is a fascinating article about what was going on at Merck a few years ago.

Here’s a clip to wet your whistle:

“The widely publicized study in March 2000 found that patients taking Vioxx were five times more likely to have heart attacks than individuals using the generic medicine naproxen. Merck insisted at the time that this was a result of naproxen’s cardioprotective properties and not any defect in Vioxx.

June 23, 2005

Arrows for your Quiver

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

Aren’t you sick and tired of these jerks who attack your clients and your profession? I have been jerked around at Little League games, my kids’ basketball games, cocktail parties, church – it never stops.

Here is some ammo you can use to fight back – unless you think that the better course of action is to simply walk away.

June 22, 2005

Online MUTCD

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

The Manual on Uniform Traffic Control Devices is available, free of charge, online at the Federal Highway Administration website. The site not only has the latest 2003 edition, but goes back as far as the 1993 revisions. You should be able to find the right edition to address any pending or potential claim for a roadway that is dangerously unmarked. Compliance with the MUTCD is necessary, but not always sufficient. The MUTCD and the law still require reasonableness by a contractor or highway planner.

The MUTCD is incorporated by reference into the regulations of the Tennessee Department of Transportation. Therefore, violation of the MUTCD is negligence per se.

June 22, 2005

Michael Jackson – The Closing Argument

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

Any lawyer can benefit by reading a good closing argument in any case. Of course, it is better to see it live – the paper cannot capture the emotion of an argument. But if you don’t have time to sit around in courtrooms all day a transcript is the way to go.

Here is the transcript of the argument of Thomas Mesereau, the attorney for the King of Pop.

Thanks to New Orleans lawyer A.J. Levy for letting me know how to find it. I met A.J. 12 or 15 years ago at an ATLA meeting; he was and is ahead of the technology curve. His blog is Out of the Box Lawyering.

June 21, 2005

Raise a Glass to Anesthesiologists

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

Consumers and trial lawyers have been saying for years that if doctors would do a better job establishing standards and policing their own there would be less injuries and death and therefore less malpractice claims and (maybe) lower malpractice insurance.

The anesthesiologists figured this out and today, in constant dollars, they pay less for malpractice insurance than they did 20 years ago.

More importantly deaths have have dropped from 1 in 5000 cases to 1 in 200,000 to 300,000 cases.

June 20, 2005

Guidant Defibrillators Recalled

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

The good news is that the FDA has recalled Guidant defibrillators. Here is the press release that discusses the recall and lists the models that are being recalled. Somewhere between 40,000 and 50,000 people are affected by the recall.

It is known that two people have died because of a malfunction in the device.

The bad news is that Guidant has not yet indicated that it will pay for the full cost of the replacement (including surgeon and hospital fees). Reportedly, it is only going to pay (i.e.not charge) for the cost of a new device. A hospital charges about $2000 for a device like this; the cost to Guidant is a fraction of this amount.

June 19, 2005

Tort Law Tidbit – One Thing We Have Missed

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

As a lawyer who has done medical malpractice work for 24 years I am embarrassed to say this, but I came across this little tidbit a couple weeks ago while preparing for an argument in the Tennessee Supreme Court.

Do we have the discovery rule for med mal cases? “Yes.” What is the test? “Plaintiff must file suit within one year of the date that plaintiff knew or reasonably should have known about the injury.” Right? Wrong. (Well, it might be wrong.)

The statute (T.C.A. Sec. 29-26-116(a)(2)) says “In the event that the injury is not discovered within such one (1) year period, the period of limitation shall be one (1) year from the date of such discovery.” The test appears to be subjective, not objective.

June 19, 2005

You Think You Don’t Need Technology in the Courtroom?

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

Ok – this article is not about the trial of a personal injury or wrongful death case. But it is about trial. And it is about the benefits of the use of technology at trial.

We have used Powerpoint in trial for over five years. We first used digital video clips to impeach over three years ago. It is time-consuming to prepare. It is expensive.

It is also very effective.