Day on Torts

December 5, 2011

The Importance of Citing Adverse Precedent

We all know that as lawyers have an obligation to cite known adverse precedent to the court.

There are two reasons why this rule should be followed (other than the all-too-obvious point that the rule exists). First, the failure to cite adverse precedent means you have lost the opportunity to either distinguish it or say why it should be reversed.

Second, you will lose credibility with the court – something that will hurt you in all future cases before that same court. Thus, you may win a single battle (if the both the judge and the opposing counsel miss the case), but then risk losing a war that will be fought over the rest of your career.

December 3, 2011

Understanding Brain Injuries – For Lawyers and Juries

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

Our firm represents people with brain injuries and, depending on the nature of the injury, it can be quite difficult to help a jury understand precisely how these injuries can impact the life of the injured person and his or her entire family.

This site offers fundamental principles that one should know about the brain and nervous system, the most complex living structure known in the universe, are a practical resource about:

How your brain works and how it is formed.
How it guides you through the changes in life.
Why it is important to increase understanding of the brain.

As a Tennessee brain injury attorney, I believe that the concepts presented on this page can be used a part of the jury education process about the brain and brain injuries.

November 30, 2011

Medical Malpractice Caps Hurt Patients

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

Here is a great article by Shirley Svorny of the well-known liberal outfit, the Cato Institute. The article originally appeared in The Huffington Post:.

The U.S. House is set to consider on the Republicans’ Jobs Through Growth Act, which contains a section aimed at reforming medical malpractice by imposing caps on economic and non-economic damages similar to those in place in Texas. Texas limits non-economic and exemplary (punitive) damages in all cases, and limits what relatives can get in cases of wrongful death. An obvious disturbing consequence is that caps reduce compensation to severely-injured individuals. Caps would hurt consumers in a second way — lower damage awards would reduce medical professional liability insurers’ financial incentives to reduce practice risk.

Much of the protection consumers have against irresponsible and negligent behavior on the part of health care providers hinges on oversight and incentives created by the medical professional liability insurance industry. A nationwide shift to caps could result in more cases of negligence and substandard care.

November 29, 2011

Will We Have Prosthetic Eyes That Can See?

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

Our firm, The Law Offices of John Day, P.C., has been asked to represent people who have lost their eyesight as a result of medical malpractice or trauma. Thus, we are very interested in scientific advancements that can minimize the horrible effects of vision loss.

This reference fin the Fall 2011 Edition of the Journal of Neuroscience shares some exciting information that provides hope for those who have suffered vision loss:

Sheila Nirenberg of Weill Cornell Medical College presented research on how the eye’s own computational “code” can improve retinal prosthetics. Retinal prosthetic devices now exist, but current models require surgery to implant electrodes into the eye and are only capable of restoring crude vision, such as seeing a spot of light or the edge of an object.

November 28, 2011

Plaintiffs Fall Down Hard in Two Cases Against Louisville Ladder

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

Two plaintiffs lost products liability cases against Louisville Ladder.

In Bielskis v. Louisville Ladder, Inc., No 10-1194 (7th Cir. Nov. 18, 2011) the appellate court upheld the disqualification of plaintiff’s liability expert, Neil J. Mizen. Bielskis was injured while using Louisville Ladder mini-scaffold (model number SM 1404) and alleged a defect to a rolling castor on the device.

The trial judge refused to permit Mizen to testify after a Daubert challenge from the defense and granted summary judgment for the defendant. The Seventh Circuit affirmed, and said that without expert testimony, Plaintiff, who

November 24, 2011

Ford Found Liable for Rollover Crash

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

A Sacramento, California jury has awarded a substantial jury verdict against Ford Motor Company.

The vehicle involved was a 15-passenger Ford E-350 Econoline van. According to the Sacramento Bee, "The van skidded off northbound Interstate 5 in Kern County after the tread separated on its rear right tire. Evidence at trial showed that Ford officials had been contacted by the Goodyear Tire and Rubber Company and knew the product was defective but did not make an effort to contact its dealers or customers."

Jurors did find that one of the two men killed in the rollover, Tony Mauro, who was 41, was not wearing a seat belt when he was killed. But the panel also found that it would not have mattered in a crash in which the van rolled over four times while traveling at 70 miles per hour.

November 22, 2011

Missouri Examining Constitutionality of Cap on Punitive Damages

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

Missouri has a cap on punitive damages. The cap is $500,000 or five times compensatory damages, whichever is greater.

Kansas City Star reports that on November 2, 2011, the Missouri Supreme Court heard oral arguments in Estate of Max E. Overbey and Glenna J. Overbey v. Franklin, Case No. SC91369 that challenges the punitive damages cap. The Overbeys contend that a $1 million dollar punitive award against former car dealer Chad Franklin, which was decreased to $500,000.00 pursuant to the state’s punitive damages cap, should be reinstated because the statute is unconstitutional. They argue that the cap violates the constitutional separation of powers; the Overbeys’ right to trial by jury; the Overbeys’ right to equal protection; the prohibition against special legislation; the due process clause; and the Overbeys’ right to open courts.

According to one firm’s press release:

November 21, 2011

Why Brain Damage Occurs in Premature Births

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

NPR reports that a recent meeting of the Society for Neuroscience discussed why brain damage occurs in premature births.

Research has revealed that the most common cause of brain injury in premature infants is a lack of oxygen in the days and weeks after birth. Apparently, the lack of oxygen damages white matter, which provides the "communication highways" that carry messages around the brain and to distant parts of the body. The babies at greatest risk of this sort of brain damage are those born after as little as six months of gestation.

This lack of oxygen appears to damage the most common type of white matter, myelin, which acts like an insulator around the nerve fibers that carry messages in the brain and nervous system. Without enough myelin, short circuits can prevent these messages from getting through. Evidence of white matter damage was initially found by studying brains from premature infants who died, but recently the researchers have been able to assess premature infants using a special incubator designed to fit in an MRI scanner.

November 19, 2011

Third Circuit Says Equity Applies to Subrogation Rights Under ERISA Plan

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

The Court of Appeals for the Third Circuit has had that equitable principles such as unjust enrichment apply to the subrogation rights of an employer under an ERISA plan.

In U.S. Airways, Inc. v. McCrutchen, No. 10-383 (3rd Cir. Nov. 16, 2011), McCrutchen was seriously injured in a car wreck. He spent several months in physical therapy and ultimately underwent a complete hip replacement. Since the accident, McCutchen, who had a history of back surgeries and associated chronic pain, has also become unable to effectively treat that pain with medication. The accident has rendered him functionally disabled. McCutchen’s Health Benefit Plan (the “Plan”), administered and self-financed by US Airways, paid medical expenses in the amount of $66,866 on his behalf.

Suit was filed on behalf of McCrutchen but a combination of multiple victims of the same wreck and limited liability insurance coverage meant that, after payment of fees and litigation-related expenses, McCrutchen’s net recovery was only $66,000. His law firm placed $41,500 in a trust account, reasoning that any lien found to be valid would have to be reduced by a proportional amount of legal costs.

November 14, 2011

Medical Malpractice Tort Reform in Texas

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

Texas passed an extensive anti-patient reform of its medical malpractice laws in 2003.

How’s it going for them?

Public Citizen says that "while litigation over malpractice in Texas has plummeted since the caps were imposed, residents of Texas (except for people with financial connections to liability insurance companies and, to a lesser extent, doctors) have realized few, if any, benefits. Instead, the health care picture in Texas has worsened significantly by almost any measure."