Day on Torts

May 11, 2005

Flow Sheet for Handling a Personal Injury Case

This is a flow sheet for plaintiff’s lawyers to use in personal injury cases, starting with the first client interview and moving all the way up to the pre-trial brief. This is mainly a big picture view to keep you from missing the forest for the trees in litigation. It reminds you to check the answer to see if the defendant has pled the comparative fault of anyone else, to ask opposing counsel for a stipulation as to reasonableness and necessity of medical expenses, and the other important steps along the way in a case. While every file has its own nuances, hopefully this will serve as a nice checklist for you on the more common occurrences in a case.

Download file

May 10, 2005

Failed Vasectomy – Wife Has No Claim

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

James’ vasectomy did not go as planned. His wife Corrine became pregnant. They filed suit against his urologist.

The Maryland Court of Special Appeals held that Corrine could not file suit against the doctor because there was not a physican-patient relationship. In short, the Court ruled that Corrine did not establish that her husband’s doctor owed her a duty of care.

The dismissal of James’ claim on the ground of contributory negligence was also affirmed. (In Maryland, contributory negligence is still an absolute bar to recovery.) The basis for the claim of contributory negligence included the failure to follow doctor’s orders.

May 9, 2005

Plaintiffs’ Jury Verdict Reversed in Metabolife Case

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

A jury verdict for several plaintiffs who alleged that they were injured by the weight-loss supplement Metabolife 356 was recently reversed by the 11th Cir. Court of Appeals.

The Court ruled that the expert testimony offered by the Plaintiff on the causation issue should not have survived at Daubert challenge. The Court said that neither expert used a reliable methadology to prove that Metabolife 356 causes strokes or heart attacks, either generally or in the plaintiffs. The 49-page opinion is a reminder of the risk of pushing the envelope on “new” products cases.

May 8, 2005

– False Light Invasion of Privacy

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

Dayontorts.com knows no bounds to bring you what’s goin’ down in tort law.

Apparently my man Eminem (is it still cool to say “my man”?)(come to think about it, is is still cool to say “cool”?) wrote a “song” called Brain Damage, and told Rolling Stone that the song lyrics that discussed his childhood experiences with the plaintiff DeAngelo Bailey were true. Plaintiff decided to sue Eminem, thankfully deciding that it was a better course than cappin’ the dude. The suit alleged false-light invasion of privacy and negligence.

The Michigan Court of Appeals held that a claim of false-light invasion of privacy was not made out because the song contains several clues that the lyrics should not be taken literally and, given plaintiff’s admission that he picked on Eminem and did “bully type things” to him, the “substantial truth” test was met.
The negligence claim was dismissed because the plaintiff did not properly raise that issue on appeal.

May 7, 2005

Mississippi Rejects Church’s Efforts to Thwart Pedophile Priest Case

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

The Supreme Court Of Mississippi has affirmed a trial court’s denial of motions to dismiss claims brought against a Mississippi bishop and Diocese arising out of priest pedophilia. The Church asserted First Amendment and other claims in an effort to avoid the suit.

A discovery dispute was also resolved by the Court.

Read the opinion here. To those who don’t have time to read the 80+ page opinion (including concuring and dissenting opinions) here is a newspaper article reporting on the case.

May 6, 2005

Seminar Programs

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

Last year former Supreme Court Justice Penny White, former Court of Appeals Judge Joe Riley and I started “Justice Programs.” The company produces seminars for Tennessee lawyers.

Last year was a great success. We had hundreds of people from across the state attend. This year we have expanded our efforts to offer 15 CLE hours in one program, including 3 hours of ethics credit, so that Tennessee lawyers can meet their annual CLE requirement in one program.

For more information see our website

May 5, 2005

Nancy Grace Falls from Grace

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

I know this is off topic – but I don’t care. Nancy Grace disgusts me. I know she lost her future husband to a murderer; that is horrible. I know she is profoundly pro-prosecution; no problem.

But she is also a lawyer. Her outrageous comments about the legal system offend me. She makes no attempt to be objective. She makes no attempt to analyze. She is not a talking head – she is a screaming skull. She is an embarrassment to the profession.

To read about the way she conducted herself as a prosecutor – a public office that represents the people – read this article. Given the way she conducts herself on TV you will not be surprised to learn how she used to conduct herself in a courtroom.

May 5, 2005

It is Now OK to Structure Attorney’s Fees

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

The passage of IRS Code Section 409A cast doubt on the ability of lawyers to structure attorney’s fees in personal injury cases. The IRS has issued new guidelines that make it clear that, if certain conditions are met, attorney’s fees can be deferred in contingent fee cases.

Read about the new guidelines here. To learn more talk to a qualified structured settlement broker.

May 5, 2005

Merck

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

Read this release hot of the press from the New York Times:

May 5, 2005

Merck Announces Resignation of Chief and Names Replacement

May 4, 2005

Maine Rejects Catholic Church’s “First Amendment” Defense in Pedophile Priest Case

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

The Maine Supreme Court has ruled that the Roman Catholic Bishop of Portland cannot assert the First Amendment as a defense to a claim of negligently supervising a pedophile priest.

The Court reviewed the First Amendment law on point and noted that “[t]he Diocese has not asserted that it actually holds to ecclesiastical doctrines concerning sin, penance, forgiveness and redemption that would have prevented or restricted the Bishop from intervening after learning that Melville might be sexually abusing boys, or from otherwise reporting this information to the police or the members of the parish.”

The Cour had this to say about the assertion of the Diocese that “‘the intrinsic logic of any judicial declaration and administration of a standard of care for church oversight of clergy necessarily will involve the [c]ourt deeply in matters of theology and governance:’ We do not accept this logic. It is not self-evident in this case that the application of a duty of due care will cause the Superior Court ‘to probe deeply . . . into the allocation of power within a [hierarchical] church so as to decide . . . religious law [governing church polity]’ in violation of either the First Amendment or Article I, section 3 of the Maine Constitution.” (citations omitted). Read the opinion here.