New York Personal Injury Law Blog » Personal Injury Law Round-Up


May 4th, 2007

Personal Injury Law Round-Up #10

The New York Personal Injury Law Blog presents the week that was, taking you from pre-litigation through verdict and appeal:

Before heading into the courtroom, we better check to see that the courthouse doors haven’t been closed on us and take a look at the risks around us:

In this story from, a doctor insists that you sign away your rights to bring a lawsuit before treatment is even administered;

A new Oklahoma Tort “reform” law was vetoed, from Tulsa World (via Point of Law). The old law had been ruled unconstitutional, as I had discussed here some months back and again here (with a copy of decision). Legal Newsline tells us why the Governor vetoed the new law (via TortsProf);

There was a particularly nasty WSJ op-ed by Kim Strassel claiming that trial lawyers are “deeply loathed” (via Overlawyered). Can that be true? Not from my experience questioning 1,000+ jurors, and having them all answer “yes” when I ask if they would hire an attorney to bring suit if they felt it necessary. WSJ fantasy world, meet real world;

Ted Frank discusses at Point of Law a response by the authors of Jackpot Justice to Judge Richard Posner’s critique of it. An interesting part of the response is that the authors were unable to come up with a good answer to this critique: That the data they used came from industry-funded Tillinghast-Towers Perrin, and that:

It is impossible to determine from Tillinghast-Towers Perrin’s report what the sources for most of its data are, and so the figures I have quoted must be taken with a grain of salt

The response, in part, reads like “just trust them” because “Tillinghast’s unique experience as a consulting company for insurers also has given them inside knowledge and historical experience with the industry.” Like asking the fox to guard the henhouse.

Byron Stier at the Mass Torts Litigation Blog brings up this Washington Post story, Pet Deaths Spur Call for Better FDA Screening:Imports Raise Concern About Human Foods. It seems that, from the perspective of the food industry, a little extra work in risk management may be in order;

And more on risk management, MonkeyGirl’s view from the emergency room is that a certain nearby nursing home ought to review its procedures about who gets sent to the hospital and when, as she reviews an extraordinary nursing home dichotomy. It seems that, if they don’t work on their procedures, some very angry patients (or their families) will be visiting an attorney’s office nearby;

An unhappy Professor Stephen Bainbridge, steamed about plastic clamshell packaging designed by the devil, adds a bit more on risks he sees that look like a class action waiting to happen;

And before we start any suit, we want to do a little research. Thanks to Robert Ambrogi for pointing us to: New Site Collects Hundreds of Legal Articles. And yes, Litilaw is free.

And now that litigation is under way:

Our case could get tossed out on summary judgment, even when there is a disagreement as to the facts. You say courts aren’t supposed to be fact-finders, only jurors? Well, tell it to Judge Scalia and the Supreme Court, which this week decided in Scott v. Harris (via SCOTUSBlog) that it likes its own view of the facts, thank you very much, and not the views taken by other judges. Scott Greenfield has a scorching blog posting on the subject in Beer with a Cop Chaser; And then, within 24 hours of his posting, a chase after a car thief results in a bus full of children overturning, discussed in Sadly, Another Point Proven;

A deposition can be an ugly war, both as Steven Lubet reports from The American Lawyer (via How Appealing), and as Above the Law reports where a nasty bench slap was delivered in rhymed couplets;

At Overlawyered, Ted Frank offers a practice tip on how to deal with objectionable questions at deposition, while trying not to run afoul of the prohibitions that may exist for directing a witness not to answer;

And to help us along a bit during discovery, Ronald Miller from The Maryland Injury Law Blog hands out a few tips on Protecting the Injury Victim During Deposition, especially if you think there may be a claims history;

While our trials often deal with lost wages, this is sometimes difficult when the victim is a stay-at-home mom. John Day at Day on Torts reports on an article that works to put a number on the value of mom’s services;

Objecting during summations is also sometimes a problem, as Matt Lerner discusses in New York Civil Law, in the context of a judge that prohibited summation objections;

As the jury goes out to deliberate, we wonder about how the jurors will decide issues of fact and truthfulness, and whether race played any factor. We think about this as Anne Reed at Deliberations points to a study in the New York Times on the subject, in Another Day, Another Unconscious Bias Study;

As we go from verdict to appeal and back for retrial, it seems that second time can be worse than the first for an appellant. A smoker suit had resulted in 1.7M in compensatory damages the first time, and on retrial, a jury came back with $2.5M (Calif. Smoker Gets Higher Compensatory Damages in Second Trial). There had also been $20M in punitive damages the first time, and as of this writing the punitive phase of the second trial had not been completed. The court will now have to craft jury instructions in accordance with the confusing, recent SCOTUS decision in Philip Morris v. Williams.

And finally:

Enjoy the weekend.

(Submissions for next week’s edition may be made to blog[at]

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