Day on Torts

March 17, 2005

Medicaid Subrogation Right Restricted

The Eighth Circuit Court of Appeals has limited Medicaid’s subrogation interest in a tort recovery.

Plaintiff received substantial injuries in an auto wreck. She applied for Medicaid coverage and agreed to assign to the state her “right to any settlement, judgment or award” she might receive from any third parties. Medicaid paid over $215,000 in benefits on her behalf.

Medicaid and plaintiff agreed that plaintiff’s damages exceeded $3,000,000. However, plaintiff settled her case against the tortfeasors for $550,000.

March 17, 2005

Special Courts for Doctors?

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

Most tort reform proposals center on limiting damages for people who are found by a jury to have meritorious claims. Insurance companies that sell malpractice insurance want their exposure capped. (Who wouldn’t?) Do doctors and hospitals get lower premiums in return? Well, that depends on if you ask the insurance companies under oath or if you are reading their PR pieces.

There is another debate out there that is more interesting from an intellectual standpoint – the debate about special courts for health care claims. These courts would run by health care professionals. Two folks are going at it on the Internet right now – Philip K. Howard, Founder and Chair of Common Good and the author of The Death of Common Sense: How Law is Suffocating America and Stephanie Mencimer, a contributing editor of The Washington Monthly and author of a upcoming book on tort reform.

Read the debate by clicking here.

March 16, 2005

Seminar on Fact Finding on the Internet

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

The ABA is hosting a 90-minute teleconference and live audio webcast on how to unearth fact information on the Internet.

Carole Levitt and Mark Rosch, authors of the ABA’s The Lawyer’s Guide to Fact Finding on the Internet will be the speakers. They will address issues like locating public records, locating background information on people and companies, and effective search techniques.

The seminar will take place on April 14, 2005 from 12:30 to 2:00 Eastern time. Call 800.285.2221 weekdays from 8:30 a.m. to 6:30 p.m. Eastern time to register. The program is eligible for 1.5 hours of CLE credit. Click here for more information.

March 16, 2005

Cost of Injuries and Death

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

I came across an interesting website from the National Safety Council the other day. The NSC does lots of stuff; one thing it does it estimate the cost of injuries and death in the USA.

For example, look at this table:

Average Comprehensive Cost by Injury Severity, 2003

March 15, 2005

Punitive Damage Verdict Upheld

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

State Farm v. Campbell was feared to be a dramatic change in the law of punitive damages, but some courts have not taken the bait. In Willow Inn, Inc. v. Public Service Mutual Ins. Co. the United States Court of Appeals for the Third Circuit affirmed a punitive damage award of 75 times the compensatory damage award.

The plaintiff’s property was damaged by a tornado. The trial judge found that the insurer had engaged in obstructive tactics in settling the plaintiff’s property damage claim, which resulted in a two-year delay in the payment of $125,000.

The plaintiff’s bad faith claim resulted in a compensatory damage award of $2,000, punitive award of $150,000 and attorneys’ fees and costs of another $135,000+. The appellate court affirmed, finding the conduct of the insurer “reprehensible” and a combination of “purposefully indifferent actionand intentionally dilatory action.”

March 14, 2005

Police Officer Excluded as Accident Reconstructionist

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

Many of us have attempted to use police officers as expert witnesses at trial. We have also had them used against us.

The Delaware Supreme Court has recently ruled that it was reversible error for a trial judge to permit a police officer to testify to the “primary contributing cause” when the police officer was not qualified as an expert in accident reconstruction. The decision in Lagola v. Thomas may be read by clicking here.

Testimony by police officers in traffic wreck cases often carries substantial weight. This decision may be of assistance to you in your attempt to exclude the opinion testimony of a police officer.

March 14, 2005

Blue Chipper: No Fault for Phantoms

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

The McIntyre opinion permitted fault to be assessed against people who were not a party to the action. From the day McIntyre was released it was clear that a defendant could ask that fault be assessed against a prior defendant who settled before trial. Over the years that followed it became clear that fault could be assessed against certain other people that the plaintiff could not have sued.

In Brown v. Wal-Mart, 12 S.W3d 785 (Tenn. 2000), the defendant tried to blame a phantom party. In other words, it tried to blame not only a person who the plaintiff could not sue but a person who it failed or refused to even identify. The Tennessee Supreme Court rejected that effort. Click here to read the opinion.

The effect of this decision is to either force a defendant to identify a wrongdoer or, if it does not, the wrongdoer cannot be allocated fault. It greatly reduces the possibility of a fraudulent defense.

March 14, 2005

Vioxx Cases MDL Official Website

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

Our firm is handling Vioxx cases. The MDL Panel has just sent all of the cases to the ED of Louisana for pretrial proceedings. Judge Fallon will be handling the case.

The judge has set up a website for pretrial orders and proceedings. Here it is.

March 12, 2005

Legal Technology Blog

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

David Swanner, a lawyer in South Carolina, has a blog focused on the use of legal technology by trial lawyers. David’s blog has a lot of good information on Powerpoint, yet another great weapon that we can use when we go into battle.

David also has a guest post entitled “Twelve Ways Technology Can Make You a Better Trial Lawyer” that he made to another blog. It is filled with good ideas.

All of this demonstrates why technology and the Internet is changing law practice as we know it. When small firm lawyers are ready to share their ideas and invest in appropriate technology, the advantage that large firms have historically had dwindles.

March 12, 2005

Bad Faith Action Survives

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

We have all seen it too many times. Your client has legitimate medical expenses well in excess of policy limits. Liability is not clear but will go to the jury. The defendant’s insurer refuses to settle the case for policy limits.

That happened to defendant Johnson. His insurance company refused to settle an action against him. His $25,000/$50,000 in policy limits were to be of little help paying a judgment of $193,750. He sued his insurance company for bad faith failure to settle the case, and a jury agreed.

You know that Tennessee’s law on bad faith is, shall we say, undeveloped. Well, that is about to change. The verdict against the insurer was reversed, but all three judges found that a jury issue was present on the issue of bad faith. (Two of the three judges thought the verdict should be reversed on other grounds). Each judge wrote an opinion; Judge Inman wrote for the majority (if that is possible when each of three judges writes a seperate opinion). Read Judge Inman’s majority opinion here. You can also read Judge Franks’ opinion and Judge Lee’s opinion.