Day on Torts

March 15, 2005

Punitive Damage Verdict Upheld

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.

March 10, 2005

What is a “Tort Law Tidbit?”

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

Have you ever been presented with a legal question, thought you knew the answer, but could not put your finger on the case or statute that confirmed your recollection? I have, and it drives me crazy. I think I am right. I know the answer is out there. But I can’t confirm it.

My wife, also a trial lawyer, puts it this way: There are things that everybody just “knows” and finding support for those things is hard to do. That is fine, of course, unless what you know ain’t so.

So, I have decided to capture those “tort law tidbits” and put them where you can find them. I will add one every week or so, depending on what else is happening.

March 10, 2005

Tidbit #1 – Release of Agent

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

Everybody knows that if you release the employee you release the employer, right? Try to find a case that says so.

Well, here it is: Craven v. Lawson, 534 S.W.2d 653, 654, 657 (Tenn.1976). This case holds that release of an employee discharges employer’s liability predicated on master-servant or principal-agent relationship.

March 10, 2005

Medical Malpractice Crisis Not A Crisis At All

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

A study from Texas has determined that the medical malpractice “crisis” behind the push for restrictions on the rights of patients is phony, which is no news to anyone who understands the issue.

“We find no evidence of the medical malpractice crisis that produced headlines over the last several years and led to legal reform in Texas and other states,” said the study, conducted by law professors at the University of Texas, University of Illinois and Columbia University law schools.

The article tells us that “‘only a few states have comprehensive insurance databases like that of Texas,’ said David Hyman, one of the study authors, ‘but similar studies elsewhere have found nothing to indicate a link between litigation and rising medical costs.'”

March 9, 2005

Preparing for Trial Checklist

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

Preparing for trial is, by nature, hectic. If you are not wired enough to power the Titans’ Coliseum on a night game, you are not paying enough attention. It’s helpful to have a checklist to see if all of the applicable basics are covered.
This trial preparation is set out in phases – sixty days before trial, thirty days out, at the pre-trial conference, and in the final days before trial. The courtroom is a much friendlier place when you thoroughly prepare yourself.
Download file.

The checklist is not carved in stone. It is not a “must do” list. Rather, it is simply as list of the matters that you may want to consider in the course of your trial prepartion.