Day on Torts

March 28, 2005

Damages in Legal Mal Case Include Punitives in Underlying Case

The defendant law firm was found to have negligently prepared a commercial litigation matter for trial. The plaintiff argued that it would have been able to recover punitive damages in the underlying case had it not been dismissed because of the law firm’s negligence and therefore should be able to recover them in the second case.

The Illinois Court of Appeals agreed, stating that “we believe the proper focus of our analysis to be what would make the plaintiff whole with respect to the defendant attorney’s negligence. When, as in this case, a jury has determined that the plaintiff would have been entitled to punitive damages but for the negligence of the attorney, then such damages must be recoverable in order for the plaintiff to be made whole. We note that this result is consistent with the general principle in this state that ‘[a] legal malpractice plaintiff is entitled to recover those sums which would have been recovered if the underlying suit had been successfully prosecuted.'” [citation omitted].

The court then affirmed a jury verdict including over $1,100,000 in punitive damges. Read the opinion by clicking here.

March 27, 2005

Vigilantes on Trial

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

I need to tell you about a fascinating tort opinion I came across recently, one that presents an interesting yet troubling view of the state of the law at the time.

The decedent was awaiting trial for rape and murder when he was dragged from his jail cell and hanged. Suit was filed against the vigilantes. A White County jury returned a verdict against the vigilantes, but it was appealed as inadequate.

The Tennessee Supreme Court began its analysis with a beautifully written statement about the rule of law. The Court said: “There is neither valor or patriotism in deeds like these. Not valor, because there is no contest – the victim is already in bonds and harmless; nor patriotism, because the country has provided for the proper and legal punishment of offenders and needs not the aid of mass and lawless combinations to wield the sword of justice or quicken its stroke.”

March 26, 2005

Just When You Thought It Couldn’t Get Worse …

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

I wrote yesterday about the bad day the lawyers at Kirkland & Ellis and the folks at Morgan Stanley were having. Well, it got worse.

Matthew McCarrick, the blogger who has the excellent blog I cited yesterday, was kind enough to let me know of a recent development in the case.

Judge Maass has now granted a partial default judgment against Morgan Stanley and has disciplined several K&E lawyers. Perelman need now only prove that he relied on information from Morgan Stanley in connection with the Coleman – Sunbeam sale and that he suffered damages.

March 25, 2005

Tort Law Tidbit – Use of Demonstrative Aids in Closing

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

T.C.A. Sec. 20-9-303 permits a lawyer “to use a blackboard, models or similar devices, also any picture, plat or exhibit introduced in evidence, in connection with his argument to the jury for the purpose of illustrating his contentions with respect to the issues which are to be decided by the jury….” The statute prohibits a lawyer from making an argument “in writing” that could not properly be made orally.

In this era, I think this statute gives counsel the right to use Powerpoint or a similar program during closing argument.

March 25, 2005

You Think You Have Had a Bad Day?

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

The lawyers at Kirkland & Ellis, a major law firm with its home office in Chicago, had a real bad day recently after its client got hammered with sanctions.

Financier Ron Perelman has sued Morgan Stanley for fraud, alleging that it helped appliance maker Sunbeam Corp. conceal accounting woes tht reduced the value of Perelman’s investment in Sunbeam. The trial is scheduled to begin shortly.

The trial judge is Elizabeth Maass. She ruled that Morgan Stanley hid emails and hit failings in its search for emails. “Many of these failings were done knowingly, deliberately and in bad faith,” Judge Maass wrote in her order.

March 25, 2005

Sanctions in Electronic Discovery Disputes

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

Here is a recent law review article that summarizes the state of the law of sanctions in cases involving electronic discovery. The article, entitled “Electronic Discovery Sanctions in the Twenty-First Century,” is authored by a federal court judge and a law clerk.

March 24, 2005

Failure to Warn of Genetic Problem

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

The Supreme Court of the State of Minnesota has held that a physician has an affirmative duty to inform a child’s biological parents about the risks posed by their child’s genetic problem.

The plaintiff’s child was born with an inheritable form of mental retardation known as “Fragile X.” The parents were told that the condition was probably not genetic and the child’s doctors did not do full genetic testing on the child. The parents then had a second child born with the same condition. Later testing revealed that both children and the parents were carriers of Fragile X.

The court recognized that the parents had a right to sue their daughter’s doctors for negligently performing genetic testing. They said that “a physician’s duty regarding genetic testing and diagnosis exends beyond the patient to biological parents who foreseeabily may be harmed by breach of that duty.” The ruling recognizes that as a “practical reality … genetic testing and diagnosis does not affect only the patient.” Read the decision by clicking here.

March 24, 2005

How Does This Happen?

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

Would you think that a doctor who has had 33 medical malpractice payouts in the last decaded would still be practicing medicine?

Dr. Michael Sachs in Manhattan is. His record became news after a 42 year old mother died after a nose job performed in his office. The cause of death was “cardiac arrest.” He also has two malpractice cases pending against him alleging breathing difficulties stemming from botched nose jobs. Read the article here.

The medical community does a horrible job policing its own providers. I have been involved in medical negligence work for over 23 years. I would be surprised in a doctor went his or her entire career without a payout on a medical negligence case; anyone can make a mistake. I can even understand a couple of payouts. But 33 in a decade? Where are the licensing folks?

March 23, 2005

Electronic Discovery

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

Those of you who do any products liability, medical negligence, or commerical litigation know that e-discovery is a hot topic. More and more discoverable data never makes its way to a piece of paper, so a RFP seeking only paper documents will not get you what you hoped to get or are entitled to get.

Likewise, courts are imposing requirements on lawyers to advise their clients to maintain electronic data after a lawsuit has been filed. The failure to act promptly and appropriately can have dire consequences.

A Seattle law firm has created a blog dedicated to electronic discovery. Take advantage of this firm’s resources to educate yourself about and stay current on this important issue.

March 23, 2005

Mother Can Recover Damages for Emotional Distress – Child Stillborn

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

The Wisconsin Supreme Court has ruled that the mother of a stillborn infant may seek damages for wrongful death and for negligent infliction of emotional distress.

The child died as a result of conceded medical malpractice. The misdiagnosis took place several hours before the child died in utero. The mother sued for wrongful death of the child and her own emotional distress. The hospital settled the wrongful death claim but argued that the mother did not have a cause of action for her own emotional distress.

The Wisconsin court disagreed and remanded the case for trial. The court held that the mother could recover damages for the wrongful death of the child as well as the her personal injuries, including those caused by negligent infliction of emotional distress.