Day on Torts

June 12, 2005

Guidant Class Action Suits Filed

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.

June 7, 2005

Medical Research on the Web

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

The Internet is the great equalizer. It allows solo practioners in Burning Stump, Tennessee to have access to the same information available to the biggest law firm in the biggest bank building in the the biggest city. All you need is a computer, an Internet connection, and time.

Gloria Miccioli, a law librarian for 23 years, has written a great article that will help us get a grasp on the vast resources available to those of us who do medical research on the Web. It is filled with information about free sites and fee-based sites. If you do (or should be doing) medical research you will want to read this article.

Thanks to Gloria for sharing your knowlege with us. And thanks to Evan Schaeffer and his wonderful blog for informing me about this great article.

June 7, 2005

New Tennessee Business Litigation Blog

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

I am embarrassed to say that six months ago I did not even know what a blog was. Well, maybe I knew what one was – I have some recollection about reading stories about political blogs during the last presidential campaign – but I had never looked at one. I was just busy.

I like to think I stay current in my field, but I must confess that I missed alot by not taking advantage of the knowledge that my (now) fellow bloggers have been sharing via their blogs. I hit several blogs everyday; over the next few weeks I will share my favorites with you.

Our firm hopes to add to this body of knowledge by introducing another blog called the “Tennessee Business Litigation Law Blog.” Brandon Bass of our firm is the chief blogger on this one, but other people in our firm will be adding posts as appropriate. The purpose of this blog is to gather and share information of interest to corporate counsel and executives, small business owners, and the people that represent them about recent developments in commerical litigation and business law. It will concentrate on the law of the Tennessee, but will gather interesting and useful information from around the nation.

June 6, 2005

Chief Justice Drowota Announces Retirement

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

It has been rumored for over a year that our Chief Justice would retire this year, and in fact his retirement party has been in the planning stages for some time. However, it is now official: effective September 2, 2005 we will be losing Frank Drowota as a member of our appellate court. The Chief Justice has served on either the Court of Appeals or the Supreme Court for 31 years. Read his announcement here.

The new justice will be appointed by the Governor from a panel of three selected by the Appellate Court Nominating Commission. I believe that the next judge can come from either Middle or West Tennessee, although I have heard that others have a different opinion. In fact, at least one person thinks that the next justice will be selected in an election.

I will keep you updated.