Day on Torts

April 30, 2005

Can a Plaintiff Introduce Evidence That He Paid Medical Bills Out of HIs Own Pocket?

Plaintiff’s vehicle was rear-ended by a vehicle driven by Defendant and Plaintiff was injured. Defendant successfully moved in limine for an order prohibiting Plaintiff from introducing evidence or arguing that he had paid his medical bills out of his own pocket. Defendant hired a doctor to evaluate the plaintiff; that doctor testified that Plaintiff’s “self interest for monetary gain” may be influencing Plaintiff’s complaints of pain.

The jury awarded $20,500, including $15,000 for medical expenses, an amount which was just slightly over one-half of the amount the Plaintiff had paid out of his own pocket for medical bills. The only issue on appeal was whether the trial judge should have excluded the evidence that the Plaintiff paid his own medical bills.

The California Court of Appeals reversed, saying that fact that the Plaintiff paid his own medical bills should have been admitted into evidence. Why? Because that fact helped demonstrate that the bills were reasonable and was helpful to the plaintiff in rebutting the defense that he was malingering. The Court found the exclusion of the evidence prejudicial, reversed the judgment and remanded the case for a new trial. Read the opinion here.

April 29, 2005

Blue Chipper – Negligent Infliction of Emotional Distress

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

I have already written about one blue-chip case in the field of negligent infliction of emotional distress. This case is the second decision to advance the law in the field.

In Ramsey v. Beavers, 931 S.W.2d 527 (Tenn. 1996), the court reversed the dismissal of a lawsuit filed man who saw his mother hit by a car. The court allowed him to assert a claim of negligent infliction distress, saying that its “holding today abandons the hypertechnical approach of the zone of danger rule and recognizes that in certain circumstances a plaintiff whose physical safety is not endangered may nonetheless suffer compensable mental injury as a result of injuries to a closely related third person which plaintiff observes sensorily.”

This decision helped Tennessee start down the path of recognizing that pain in the mind and heart is as worthy of protection as a pain in the back. That journey continues.

April 28, 2005

Tort Law Tidbit – Tape Recordings

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

Can I tape record a hearing or trial?

Yes. T.C.A. Sec. 20-9-104 gives a lawyer the right to use a tape recorder as an aid in making notes of any public proceedings.

April 28, 2005

Piercing the Corporate Veil

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

The Court of Appeals just handed down a new decision that addresses the circumstances under which one may pierce the corporate veil. The case is Boyles v. National Development Company; read the opinon here.

The court affirmed the imputation of liability through the corporation to the person who set it up and ran it. In doing so, the Court re-afffirmed the application of the Allen test. The Allen test says this:

“Factors to be considered in determining whether to disregard the corporate veil include not only whether the entity has been used to work a fraud or injustice in contravention of public policy, but also: (1) whether there was a failure to collect paid in capital; (2) whether the corporation was grossly undercapitalized; (3) the nonissuance of stock certificates; (4) the sole ownership of stock by one individual; (5) the use of the same office or business location; (6) the employment of the same employees or attorneys; (7) the use of the corporation as an instrumentality or business conduit for an individual or another corporation; (8) the diversion of corporate assets by or to a stockholder or other entity to the detriment of creditors, or the manipulation of assets and liabilities in another; (9) the use of the corporation as a subterfuge in illegal transactions; (10) the formation and use of the corporation to transfer to it the existing liability of another person or entity; and (11) the failure to maintain arms length relationships among related entities.”

April 27, 2005

Waiver of Objection When Privilege Log Was Not Timely Served

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

How many times have you seen this discovery response: “Objection; this request for production of documents is vague, ambigious, oppressive, unduly burdensome, seeks information not reasonably calculated to lead to the discovery of admissible evidence, and seeks the discovery of material protected by the attorney client privilege, the work product doctrine, and the Magna Carter. Notwithstanding this objection and without waiving the same, a paralegal intern with 20/400 vision and no knowledge of the facts of this case or the law has gone to a warehouse (with a non-fat latte in hand), stared in the general direction of scores of unmarked boxes containing unknown documents and has determined that there probably isn’t anything in any of those boxes that you want. We promise. If you file a motion to compel and ever get an order to look at these documents, you can go to our warehouse in Burning Stump, Georgia between the hours of 12:00 Noon and 3:00 p.m. on any Friday, Saturday or Sunday in July for a inspection. As a professional courtesy you are advised that there is no air conditioning in this warehouse and the closest photocopier is 23 miles away.”

Well, maybe you haven’t got that objection. But you have seen lots of objections to discovery, including those that did not attach a privilege log. One federal appellate court has ruled that, under the facts of that case, the failure to produce a privilege log was a waiver of the objection.

The case is Burlington Northern & Santa Fe Railway Co. v. United States District Court for the District of Montana, 2005 WL 730193 (9th Cir. 2005). Read the decision here.

April 27, 2005

Dealing with Difficult Clients

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

Here is an interesting article published by the ABA called “Dealing With Difficult Clients.” The article is a condensed version of a 14-page paper on the same subject. The author is Carole Curtis, a lawyer from Toronto.

I recommend both, especially the 14 page paper. It is a helpful reminder.

April 26, 2005

Update on Finger Case

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

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?