Day on Torts

January 19, 2012

Witness Preparation

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

Jury Research Institute has a fine article about the all-important task of witness preparation.

The article breaks down the preparation process into three stages:

Stage 1 involves orienting the witness to the courtroom and the roles of the people who the witness can expect to see in the courtroom.
Stage 2 addresses the content of the witnesses testimony, starting from a global perspective and working toward the specifics of the testimony.
Stage addresses communication skills.

You will find that this article will help you in your efforts to prepare your witnesses for trial.

January 11, 2012

Federal Rules of Evidence Restyled – Free PDF

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

The Federal Rules of Evidence have been "restyled" effective December 1, 2011. The objective was to make the rules simpler to understand and use without substantively changing the meaning.

The Federal Evidence Review has a free PDF that not only contains the new rules but also links to legislative history, links from the index to each rule, the ability to search the rules within the PDF using Adobe’s "search" tool, and other benefits as well.

You can download the PDF here. The old version of the rules may be seen here.

January 8, 2012

Waiver of Claim for Economic Loss Contributes to Significant Verdict

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

Two lawyers in Connecticut recently made news when they elected not to put on proof of economic losses in a trial of a personal injury case, instead focusing on non-economic damages. The result? A verdict for $10 million in non-economic damages.

The case arose when representatives of Segway failed to give the plaintiff a helmet during a test drive of the device. The plaintiff fell, hit his head, and had a mild traumatic brain injury. Plaintiff lost his sense of taste and smell. There was no notable loss of mental functioning.

The Connecticut Law Tribune reports that "Adelman [one of the plaintiff’s lawyers] said he didn’t want to distract the jury with claims for medical treatment, lost income or attorney fees. If the jurors had those figures, he said they would not be tempted to use a formulaic multiplier of economic damages to arrive at non-economic damages. ‘We didn’t want the jury to be thinking about what the doctors get, ‘or what the lawyers get,’ said Adelman, “because the case was about John.’”

January 6, 2012

Hand-held Cell Phone Use Banned in Interstate Trucks and Buses

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

U.S. Transportation Secretary Ray LaHood has announced a final rule specifically prohibiting interstate truck and bus drivers from using hand-held cell phones while operating their vehicles. The joint rule from the Federal Motor Carrier Safety Administration (FMCSA) and the Pipeline and Hazardous Materials Safety Administration (PHMSA) is the latest action by the U.S. Department of Transportation to end distracted driving. The new rule went into effective on January 3, 2012.

The final rule prohibits commercial drivers from using a hand-held mobile telephone while operating a commercial truck or bus. Drivers who violate the restriction will face federal civil penalties of up to $2,750 for each offense and disqualification from operating a commercial motor vehicle for multiple offenses. Additionally, states will suspend a driver’s commercial driver’s license (CDL) after two or more serious traffic violations. Commercial truck and bus companies that allow their drivers to use hand-held cell phones while driving will face a maximum penalty of $11,000. Approximately four million commercial drivers would be affected by this final rule.

While driver distraction studies have produced mixed results, FMCSA research shows that using a hand-held cell phone while driving requires a commercial driver to take several risky steps beyond what is required for using a hands-free mobile phone, including searching and reaching for the phone. Commercial drivers reaching for an object, such as a cell phone, are three times more likely to be involved in a crash or other safety-critical event. Dialing a hand-held cell phone makes it six times more likely that commercial drivers will be involved in a crash or other safety-critical event.

December 22, 2011

Evaluating Chest Pain in the Emergency Room

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

This article by an emergency room physician in Texas providers a good summary for the evaluation of chest pain in the emergency room.

The article explains that "The decision to discharge a patient who presents with chest pain as the primary complaint should be made only after careful consideration of potential consequences. Patients with myocardial ischemia (MI), angina, pulmonary embolism, dissecting aortic aneurysm, or pneumothorax all can present with chest pain. Your evaluation and documentation should take into consideration all of these high-risk conditions."

The author explains the importance of documentation with these words:

December 15, 2011

The Law of Indivisible Injury

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

A law student at the University of Texas, Michael T. Raupp, has written a note in the Texas Law Review (Issue 90, Volume 1) titled "The Multiplication of Indivisible Injury." The work is critical of the handling of the subject by the Restatement (Third) of Torts, which prompted a response by the Reporters.

This is a complicated area of the law, and Raupp does a good job gathering case law and describing the applicable public policy concerns.

As Raupp, explains, "the indivisible injury doctrine, [which operates] as an exception to the causation component of damages, rescues the plaintiff from the position of not being able to recover simply because he happened to encounter two negligent actors instead of one. Additionally, it prevents the tortfeasors from escaping liability for their negligent acts simply because the hapless plaintiff was injured a second time."

December 14, 2011

Softball Catcher Held to Assume Risk of Injury From Collision at Plate

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

The Supreme Court of South Carolina has ruled that a father playing catcher in a softball game who was injured during a collision at home plate did not have a claim against the baserunner.

In Cole v. Boy Scouts of America, Opinion No. 27072 (S.C. S. Ct. 12/5/11), South Carolina’s Supreme Court affirmed a grant of summary judgment in favor of the baserunner (Wagner) who collided with the plaintiff’s husband at home plate. Plaintiff’s husband sustained a serious brain injury in the collision.

Defendant Wagner moved for summary judgment contending that he owed no duty to Plaintiff’s husband because because he (the husband) assumed the risks of playing the sport of softball. Plaintiff alleged that Wagner’s behavior was inconsistent with the ordinary risks of softball because the game was intended to be noncompetitive. He also argued that Wagner violated a rule of the game, and he acted recklessly.

December 13, 2011

Trial Techniques Article

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

Alexandra Rudolph has written an informative article titled "Trial Techniques: What Lawyers Should (and Should Not) Worry About in the Courtroom."

Ms. Rudolph, the owner of a Chicago jury research firm, believes that "attorneys spend too much time worrying about things they can’t control, such as opinions expressed during jury selection, and too little time considering how their trial team appears to the court or what a judge might find most helpful."

The Number One thing lawyers should stop worrying about? "Graphics will make me look ‘too slick.’"

December 12, 2011

Defense Costs in Medical Malpractice Cases

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

This article from www.claimsjournal.com reveals data from the Physician Insurer’s Association of America on the monies spent on defense costs in medical malpractice cases.

The PIAA reviewed closed claim data for 2009 and found that the average defense costs for medical malpractice lawsuits was $69,244 for cases that settled and ranged between $140,000 and $170,000 for cases that were tried.

The rates paid were not disclosed. The article did not discuss whether "defense costs" included expenses such as court reporter fees, expert witness fees, etc. Given the numbers that were disclosed, I assume that such expenses were not included in the amounts.

December 8, 2011

Products Liability Case Alleging Failure of Vehicle to Have Rear Camera or Back-Up Sensors To Proceed

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

The Kentucky Court of Appeals has ordered in a trial in a products liability case against Nissan for failure to equip at 2002 vehicle to have a rear camera or back-up sensors.

Sandra and Curtis Messerly alleged that the failure of their 2002 Xterra to have either device caused the death of their 19-month old son, who was killed when his mother backed-up the vehicle.

Plaintiffs sued Nissan alleging that the 2002 Xterra was defective and negligently designed because it was not equipped with a rearview camera or back-up sensors. Nissan moved for summary judgment on the ground that the 2002 Xterra was not defective or unreasonably dangerous as a matter of law. Nissan argued that the risk of striking children while backing a vehicle is an obvious, well-understood risk of operating any passenger vehicle and