Day on Torts

March 26, 2005

Just When You Thought It Couldn’t Get Worse …

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.

March 22, 2005

Another State Questions Med Mal Crisis Hype

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

The Insurance Commissioner from the State of Washington has issued a report that examines whether or not there is a medical malpractice insurance crisis in the state.

Rather than relying on simple statements from doctors and their insurers the Insurance Commissioner did a closed claim study covering about 90% of the physicians from the state. The report shows that the number of $1,000,000+ verdicts or settlements is relatively flat and that there were only 50 verdicts for the plaintiff in the 10 – year period covered by the study. Seventy-three percent of the claimants recovered nothing.

This data, not dissimilar from information received from the a recent Texas study, adds further support for the notion that rising medical malpractice insurance rates are out of control or that they are caused by a defect in the jury system that will be fixed by caps on damages.

March 22, 2005

Blue Chipper – Premises Liability

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

Coln v. City of Savannah, 966 S.W.2d 34 (Tenn. 1998), is a must-know for anyone handling a slip and fall or trip and fall case in Tennessee. Indeed, it is important reading for anyone handling any type of premises liability case in this state. It is the first Tennessee Supreme Court decision in the field after the adoption of comparative fault.

Be sure to read both the majority opinion and the concurring opinion to see a philosophical divide on the subject as wide as the one between Nietzsche and St. Thomas Aquinas.

In my mind, the Tennessee Supreme Court has unduly complicated the job of a trial judge in the typical premises liability case. I agree with Judge Holder’s concurring opinion – there is no need to undertake a duty analysis is the typical premises liability case.