Day on Torts

April 10, 2005

Tort Law Tidbit – Injuries to Felons

This is another tort law tidbit.

I do not know why anyone would ever take one of these cases, but Tennessee law gives immunity to those property owners or occupiers who intentionally or accidently cause injury or death to a person who a perpetrating one or more of several enumerated felonies. Immunity is only given to persons who harm the perpetrator while he or she is in the act or while the person is trying to apprehend the perpetrator.

This is the “Don’t Mess with Me or Mine or I’ll Blow Your *ss Away and Be Immune from Suit” Bill.

April 8, 2005

Testimony Before Legislature

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

Yesterday I had the opportunity to testify before a group of state legislators interested hearing debate about a bill designed to limit the ability of patients to file medical malpractice lawsuits and recover adequate compensation when they do.

The bill, HB 2122, includes a provision that would give a defendant tortfeasor the right to reduce the damages awarded by the jury by the amount of life insurance paid for by the decedent, the disability insurance paid for by the plaintiff, the social security benefits received by the decedent’s family or the injured person, and worker’s compensation benefits.

It would also wipe out subrogation interests for every insurer who paid benefits to medical negligence victims. Indeed, it even attempts to eliminate subrogation interests for Tenncare, Medicare, and ERISA-based subro claims. Hmmm.

April 8, 2005

Finger in Chili

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

Everyone has heard about the allegations of Anna Alaya: she says she found a finger in the chili she bought at Wendy’s. Wendy’s says that ain’t so. Indeed, someone has persuaded the Sana Jose police to search the woman’s home in search of – I guess – evidence that the finger was planted.

I like Wendy’s. I have never found a finger or any other foreign object in Wendy’s chili. But, if Wendy’s served chili with a finger, they should get nailed for it.

On the other hand, if this woman is trying to extort money from Wendy’s by planting a finger in her chili, she needs a little time in the joint. We cannot have people trying to game the system.

April 7, 2005

FDA Asks Pfizer to Withdraw Bextra From Market

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

The Food and Drug Administration has asked Pfizer to withdraw Bextra from the market “because the overall risk versus benefit profile for the drug is unfavorable.” Pfizer has agreed to do so pending further discussions with the agency. Here is a the FDA press release.

The press release goes on to say that the “FDA is asking the manufacturers of all OTC NSAIDs to revise their labels to include more specific information about the potential CV and GI risks, and information to assist consumers in the safe use of the drugs.” Celebrex is being allowed to stay on the market with revised labels.

This probably means that the FDA will not allow Vioxx back on the market. I will keep you updated.

April 7, 2005

Going to the Scene

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

You cannot (or at least I cannot) get a real feel for a motor vehicle accident scene without going there.

I need to stand and watch traffic move in the area. I want to look at the scene from the viewpoint of all of the participants. I have to get that feel of the area before I take depositions in the case. Intimate knowledge of the scene allows you readily respond to issues that arise in depositions about the scene itself, giving you the opportunity to get helpful admissions or allowing your adversary (or a witness) to make errors that you can later prove.

So, I encourage you to leave the office and visit the scene of the motor vehicle crash. Try to go at the same time of day as when the incident occurred. If you need to take measurements I would encourage you to go very early in the morning when the sun is just coming up but before the traffic gets heavy. Sunday mornings are the best.

April 6, 2005

IRAs Protected in Bankruptcy

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

Are you thinking you got the wrong blog? Bankruptcy law? What does John Day know about bankruptcy law?

The answer is “absolutely nothing.” Well, that is not quite true; I know enough about bankruptcy law to know when to call a bankruptcy lawyer.

But this opinion caught my eye. In Rousey v. Jacoway the United State Supreme Court ruled that creditors may not seize individual retirement accounts in bankruptcy proceedings. Several other courts had reached a contrary position, reasoning that since one can withdraw money from an IRA before retirement the assets in the IRA should not be protected from creditors. The 9-0 opinion was authored by Justice Thomas.

April 6, 2005

You Won’t Believe This!

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

Senator John Cornyn (R-TX) made a speech recently wherein he wondered about a possible connection between violence in courtrooms and activist judges.

You really have to wonder about the intellect (or, at least, the intellectual honesty) of a person who would make such remarks. The suggestion that a criminal court judge in Georgia was murdered because of his politics is patently ridiculous.

Do you see how hard he struggles to find the right words? He knows he is about to say something preposterous, but just can’t help himself.

April 5, 2005

Death by Fire Ants

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

The March 28, 2005 edition of Lawyers Weekly USA reports several cases on behalf of nursing home residents killed by fire ants.

In Florida, a 73 year old man recuperating from surgery was attacked by fire ants. The lawsuit against the nursing home settled for $1,870,000.

The family of a woman in North Port, Florida received an undisclosed settlement for a similar attack. A woman in Bradenton won $1,200,000 for a fire attack assault. She survived.

April 4, 2005

Legislative Update

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

The Tennessee General Assembly has a myraid of tort “deform” bills pending in the medical malpractice field this year. Generally speaking, the bills want to cap damages on meritorious cases, limit attorney’s fees for lawyers who represent patients, cut off subrogation interests, impose periodic payments, etc.

The newest example of outrageous conduct is an attempt by the doctors to let the state medical board establish criteria for expert witnesses. To read the bill, click here, click on “Legislation” and enter House Bill number 1011.

The legislation would require the expert to sign the guidelines – or face cross-examination on the failure to sign them. It would give the state medical board the right to publish additional rules – perhaps even subjecting the expert to displinary action if the expert has been found by the board to given testimony with which it did not agree. This is witness intimidation, nothing more, nothing less.

April 4, 2005

Study from Florida Negates Allegations of Rising Number of Claims

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

A recent editorial quotes the results of a Florida study that demonstrates that there has not been the dramatic increase in the numbers of malpractice cases represented by the insurance industry and doctors.

The editorial said that “the research showed that while the state’s population climbed by 31.5 percent in this time, med-mal claims paid per 100,000 residents actually fell from a high of 12.36 in 1996 to 9.74 in 2003.”

The editorial goes on to say that “the study found the ‘debate about the role of juries in so-called ‘mega awards’ is misplaced.’ In 14 years, the study identified 801 cases in which more than $1 million was paid. Further, the study said 93 percent of the million-dollar payouts were the result of settlements, not jury awards.”