Day on Torts

April 18, 2005

Data Recording Devices for Truckers?

The United States Senate has heard testimony from the DOT Inspector General about the need for stronger deterrents to deter “egregious” hour-of-service violations in the absence of mandatory on-board data recording devices for over-the-road truckers. Tragically, the inspector said that some truckers view the current fines as just a cost of doing business. Read the article about the testimony here.

The Federal Motor Carrier Safety Administration has withdrawn a proposal to mandate placement of the devices on trucks, but courts have ordered a review of that decision.

There are many trucking companies that act responsibly. However, there are far too many that force drivers to driver over the mandatory limits of hours of service or who permit drivers to do so. After all, many truckers get paid by the mile, which means that if they are not moving they are not getting paid.

April 17, 2005

Want to Know About ?

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

Believe it or not, there is an entire website dedicated to educating you on the currrent application of the Daubert decision.

This site includes the original decision, later decisions by the USSC on the subject, cse law by area of expertise, recommendations on tactics, some state law decisions, and more.

What a wonderful contribution to lawyers! Thanks to Peter Nordberg, the man who puts it all together for us.

April 16, 2005

Evidence Rules on Line

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

Did you know that you can view the Tennessee Rules of Evidence on line at no charge? Go to this site.

April 15, 2005

Fen Phen

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

For an unflattering look at the current state of the fen phen litigation look at this article from The American Lawyer.

April 15, 2005

Upcoming Speech

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

I have been invited to speak at the Murfreesboro American Inns of Court meeting on April 28, 2005. The speech will address recent developments in tort and comparative fault law.

The meeting is at the Stones River Country Club in Murfreesboro. The social hour begins at 5:30, dinner is at 6:30, and the speech will begin at 7:00 or so.

I will post my handout materials after the speech.

April 14, 2005

New Study Concerning Medical Errors

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

The American Association of Critical Care Nurses has issued a new study concerning medical malpractice in our nation’s hospitals.

This is scary stuff. The reports says that each year “one in twenty in-patients will be given the wrong medication, 3.5 million will get an infection from someone who did not wash his or her hands or take appropriate precautions, and 195,000 will die because of mistakes made while they’re in the hospital.” The study goes on to say that 60% of medication errors are caused by mistakes in interpersonal communication.

The study explains that the majority of health care providers break rules, make mistakes, or apppear to behave incompetently, but less than 1 in 10 say anything about it.

April 14, 2005

Federal Judges: Frivilous Litigation Not a Problem

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

A survey of federal judges concludes that there is not a problem with frivilous litigation in their courts.

Seventy percent of the the judges surveyed said the frivilous litigation was a “small problem” or a “very small problem.” Only one percent of the judges said it was a “very large problem.”

Thanks to Evan for informing me about this report.

April 13, 2005

Woman Not Pointing the Finger at Wendy’s

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

Anna Alaya, the woman who allegedly found a finger in a bowl of Wendy’s chili, has decided not to sue the organization. Read about it here.

Weny’s is still offering a $50,000 reward for information about the source of the finger.

April 12, 2005

Discovery in Bad Faith Cases

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

The Florida Supreme Court recently held that a person bringing a first-party bad faith action against an insurance company has the right to discover all materials contained in the underlying insurance claim and related litigation file. Read the decision by clicking here.

In this type of case there is always a big fight over whether certain materials are protected by the work product privilege. Insurers attempt to invoke the doctrine. Plaintiffs seek the documents, saying that the information in such documents is directly relevant to resolution of the issue of whether bad faith was committed. In Florida, full discovery has traditionally been permitted in third-party claims but the law on first party claims was not as generous. This law opens up discovery in first party bad faith cases.

Florida has a well-developed body of bad faith law. This decision substantially changes the law of discovery in those cases and will greatly impact the law on this subject around the nation.

April 11, 2005

Effective Appellate Advocacy

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

Here is a great article written by Robert Gilbreath in Certworthy, a publication of the DRI Appellate Advocacy Committee. I found it with the help of Evan at his Illinois Trial Practice blog.

The article summarizes points about appellate advocacy made by Karl Llewellyn in a 1960 law review article. Titled “The Seven ABCs of Successful Appellate Advocacy,” Gilbreath’s article appears on Page 13 of the PDF file.

One point made in the article that I think is often missed by those who file briefs and make arguments before appellate courts is the need to make judges understand why good public policy supports your position. Judges are human. They want to do the right thing. It is your job to help them understand that adopting your position is the right thing to do.