Day on Torts

April 26, 2005

Update on Finger Case

You have got to hand it to Wendy’s. When someone points the finger at the quality of their food, they don’t just wave it off.

Anna Alaya has been arrested in Vegas and will not fight extradition to California. However, the police have not be able to identify whose finger found its way into Alaya’s chili and to date have not announced that they have any direct evidence that Alaya put it there.

Of course, the legal commenatators are all over this – is there enough evidence to convict Alaya? Will the facts about her litigation history get into evidence? Will she go to jail or will she just get her (4 finger, one thumb) hand slapped?

April 26, 2005

Mold Expert

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

Forbes has written an article on Dr. Gary Ordog, an expert witness who testifies in mold cases. Click here to read the article. The article is not very flattering.

I must confess I have always been a little concerned about these cases. I do not believe that being in the presence of mold does you any good, but the causation is so difficult in these cases that I have stayed away from taking personal injury cases based on mold exposure. I think property damage claims have potential here – people are so afraid of mold (and the clean up cost is so high) that the failure to disclose mold, prior water damage, etc. is a very viable claim.

April 25, 2005

Tort Law Tidbit – Uninsured Motorist Claims

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

Many clients do not understand why their insurance company should have to pay out money because the driver that caused the wreck did not have insurance or did not have sufficient insurance to cover the loss. Those people are reluctant to “sue” their own company, in part because they are afraid that doing so will increase their insurance rates.

T.C.A. Sec. 56-7-1201 (f) gives you information that can help your client feel more comfortable about the decision to seek UM benefits. It provides that an insurer cannot raise insurance rates solely to the payment of a UM claim.

A significant percentage of drivers do not have insurance and a large number of those that do have it have only the mimimum amount prescribed by state law. Consider counseling your clients to increase their liability and UM limits. Many will be surprised how much more protection they can get for a relatively low cost.

April 25, 2005

Doctor Speaks Out In Favor Of Medical Malpractice Litigation

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

A neurosurgeon has written an op-ed piece about his experience with medical negligence litigation and offering his opinion about the role it plays in our society. The article is titled “How Malpractice Suits Keep My Profession Honest.”

The writer gives this example of the pressure faced by doctors who testify for patients: “I remember a Detroit neurosurgeon calling me in desperation to ask what to do after he had testified against a surgeon who had operated on the wrong side of a patient’s head. The Detroit doctor worried that he was being needlessly scrutinized by the American Association of Neurological Surgeons. It reminded me of a case in which I had been an expert witness here in Washington that led to complaints from the professor who had performed the surgery and unrelenting nit-picking from the association. My advice to the Detroit doctor? Resign from the association. That’s what I did.”

Isn’t it nice to see a member of the profession speak out on the side of his patients?

April 22, 2005

New Theory – Bullying

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

Well, that isn’t quite right. “Bullying” is just a sub-class of the tort we all know as intentional infliction of emotional distress.

According to press reports of the trial, the plaintiff perfusionist was the subject of a verbal attack by a heart surgeon. The plaintiff claimed that the attack forced him to leave his job.

The jury found the claim meritorious, and awarded the plaintiff $325,000. No punitive damages were awarded. In final argument, the plaintiff’s lawyer called the defendant “a domineering manager who viewed himself as untouchable” who “wanted to put [the plaintiff] in his place when the [he] threatened to tell hospital administrators that [the defendant] had verbally abused other members of his staff.” Read the post-trial press report here.

April 22, 2005

New Bullying Statute

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

Call it a coincidence, but the General Assembly has passed a bill addressing the subject of bullying in schools. Read an article about it here. The bill requires school districts to develop a policy that prohibits harassment, intimidation or bullying.

To see the bill itself, click here and look up SB 1621 by Senator Black.

April 22, 2005

Break

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

I am taking the weekend off. Those of you who are kind enough to stop by on Saturdays and Sundays (and there are scores of you who do) please know that I will be back on Monday morning.

I am going to Wisconsin (my home state) for a family reunion. Cheese curds and sausage for everyone!

Have a great weekend.

April 22, 2005

Finger Woman Arrested!

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

Remember the woman who said she found a finger in the chili she bought at Wendy’s?

She was arrested late yesterday afternoon. Read the press report here.

There is supposed to be a press conference today so that we can get the details behind the arrest.

April 21, 2005

You Think You Have Had Problems With An Expert?

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

Expert witnesses. Can’t live with ’em. Can’t live without ’em. Can’t kill ’em.

Buy me a drink sometime and I will tell you expert witness stories that will make your head spin. Or, let me buy you a drink and I will bore you with the same stories.

But I must confess that I never had an expert I had difficulty reaching because he was in jail. That’s right: jail. Read the opinion.

April 21, 2005

Tort Law Tidbit – Criminal Injuries Compensation Subrogation

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

Did you know that the Criminal Injuries Compensation Act has a subrogation provision?

T.C.A. Sec. 29-013-113 requires that a crime victim who receives payments under the Act and later receives damages in a civil action re-pay the State for monies received under the Act. If a civil action is filed the local DA and others must be sent a copy of the complaint and all subsequent pleadings.