Day on Torts

June 5, 2005

“Anticipatory” Wrongful Death

Is this what a corporation does when it knowingly markets a product that it knows will kill?

No. “Anticipatory” wrongful death is what author Gregory P. Forney calls a claim for loss of earnings and consortium for someone who has arguably had his or her life expectancy shortened because of the negligence of another. In the case mentioned in Mr. Forney’s article, the male plaintiff was negligently not advised of a mass that was lung cancer and the delayed diagnosis greatly shortened his life expectancy. The still-alive plaintiff and his wife brought wrongful death claims; Mr. Forney apparently was one of the lawyers who defended the case.

The article sets forth Mr. Forney’s position on why the plaintiff should not have been permitted to seek such damages – which boil down to the fact that the plaintiff was not yet dead.

June 4, 2005

Punitive Damages From the Standpoint of the Defense

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

Punitive damages are hard to get and harder to keep. Defendants have been pushing the evils of punitive damages for over two decades now, and the United States Supreme Court has placed certain limitations on the award of such damages.

So, the reasonably prudent plaintiff’s lawyer must give careful consideration about whether punitive damages should even be requested. The decision is a complicated one.

To get a better idea of where the defense will be coming from if you seek punitive damages, go to the 2005 Winter Edition of FDCC Quarterly, advance to page 73 and read the article entitled “Making the Most of Your Opportunities: State Farm – Based Litigation and Non-Litigation Strategies to Limit Corporate Liability for Punitive Damages.” This 16-page article is a nice roadmap of what you can expect from your adversary.

June 4, 2005

Anticipatory Wrongful Death – Part II

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

I wrote a couple days ago about “anticipatory” wrongful death. I mentioned that I would try to track down the case that gave rise to the article and see how it turned out.

I found it. The case is Natalini v. Little, 278 Kan. 140, 92 P.3d 567 (Kan.2004). The Kansas Supreme Court reversed the award of wrongful death damages.

The Court said “in circumstances like Natalini’s, even if a malpractice plaintiff’s premature death is highly likely to be caused by the malpractice, plaintiff’s survival for more than 4 years beyond the negligent act means no wrongful death action will ever be possible. K.S.A.2003 Supp. 60-513(c) and K.S.A. 60-1901 will combine to cut it off before it can accrue, i.e., before the death giving rise to the action has occurred. Although family members of the patient would qualify at the time of death as heirs at law entitled to seek recovery in a wrongful death suit, see K.S.A. 60-1902, they would be prevented from bringing an action because 60-513(c)’s repose language would have barred the injured patient’s own lawsuit before his or her death. See K.S.A. 60-1901; Crockett v. Medicalodges, Inc., 247 Kan. 433, 440, 799 P.2d 1022 (1990) (if injured plaintiff’s claim time barred before death, claim of heirs also barred); Mason v. Gerin Corp., 231 Kan. 718, Syl. ｬ? 1, 647 P.2d 1340 (1982) (K.S.A. 60-1901 requires “existence of a right of action in the injured person at the time of his death as a condition precedent to the existence of a right of action for wrongful death”).”

June 4, 2005

Toilet Explodes – Lawsuit Privacy

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

This would be funny – if it wasn’t true.

John Jenkins sat down in a portable toilet to start and finish some personal business and have a cigarette – and the toilet exploded!

Apparently, there was a methane gas leaking from a broken pipe under the toilet. When Jenkins struck the lighter there was an explosion and he was burned.

June 3, 2005

Letter Requesting Preservation of Evidence

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

While investigating a potential case, you may find that a possible defendant has a piece of evidence you want. This is a letter requesting the potential defendant preserve the evidence and make it available for inspection. If the defendant refuses to let you view the evidence – or outright destroys it – you have a paper trail to ask for a spoiliation instruction.

Even if the evidence is in the hands of a third-party with no direct relationship to the case, such a letter may help you avoid any implication that your client passively (or actively) participated in destroying crucial evidence. Download file

June 2, 2005

Products Liability Blue Chipper

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

The Ray by Holman v. BIC Corp., 925 S.W.2d 527 (Tenn. 1996)
case is a leading decision in Tennessee products liability law. Start your products liability research with this case (right after you read the Tennessee Products Liability Act).

The opinion states that that Tennessee Products Liability Act provides for both the consumer expectation test and the prudent manufacturer test, latter of which requires risk-utility balancing in its application. Use of the prudent manufacturer test requires the determination of whether, after balancing all the relevant factors, a prudent manufacturer would market the product despite its dangerous condition. Naturally, a prudent manufacturer would consider usefulness, costs, seriousness and likelihood of potential harm, and the myriad of other factors (i.e. the risk-utility test).

June 1, 2005

Tort Law Trivia

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

The most famous plaintiff in the history of Tennessee tort law is Harry Douglas McIntyre, of McIntyre v. Ballentine, 833 S.W.2d 52 (Tenn. 1992), fame. For those of you who are not from Tennessee, Mr. McIntyre was the gentleman whose case brought the law of comparative fault to Tennessee. The Tennessee Supreme Court decided his case on May 4, 1992.

The question for the day is this:

How many beers did Mr. McIntyre consume in the hours before his vehicle came into contact with a Peterbilt tractor driven by Mr. Ballentine?

June 1, 2005

Outrageous Conduct – Not

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

I would say that this is a familiar story, but that would only be partially correct.

Ok, it starts out familar. Man has affair. He says he loves his girlfriend. He says he is going to leave his wife. He leaves his wife. He and his lover live together. They travel together. They talk about marriage. He says he will support her. But he doesn’t divorce his wife. He stays married. OK. But now we break from the story line we have heard in the past.

This goes on 23 years. That’s right, 23 years. He breaks off the relationship. He gives her some back end cash. She’s upset, and sues him for breach of the promise to marry, fraud, palimony, intentional infliction of emotional distress, and more.

May 31, 2005

The Distinction Between Informed Consent and Battery Cases

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

The distinction between a lack of informed consent case and a pure medical battery case is set out in Blanchard v. Kellum, 975 S.W.2d 522 (Tenn. 1998). An informed consent case requires expert proof as to the standard of care (or recognized standard of acceptable professional practice) of similar medical professionals. The plaintiff must establish what information is provided to patients prior to the procedure, and how the information is disclosed to the patient, in order to prove that the professional deviated from the standard of care. In a medical battery case, on the other hand, the plaintiff must establish either that the patient was unaware that the doctor was going to perform the procedure, or that the patient did not authorize the procedure. Medical battery cases include those in which the doctor performs a surgery that has been discussed with the patient, but performs the surgery on the wrong part of the body (i.e., amputation of the wrong limb). A true medical battery case does not require expert witness testimony on the standard of care, because there is no prior consent to be judged.

This is complaint from a medical malpractice and medical battery case in which a surgeon mixed up two of his patients’ charts, leading him to perform a surgery on the plaintiff to which she had never consented. Download file

May 31, 2005

Drug Companies Withhold Data

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

Do you remember when the drug companies told us that they were going to release more data about clinical drug trials?

That was a year ago. The New York Times has taken a look at the record developed over the last year and discovered that some drug companies are not doing what they said they would do.

Read the story here.