Other than family, work and running, I have few passions ... except college football. I live in the South, and perhaps you may not get it, maybe you do. IF you do then read on ... .
While I toil away at the office, I start seeing about this time of the year the slightest uptick of emails from lawyers sending along not some PI form for this blog or news about an unsafe drug, but helpful items like ... an SEC football composite football helmet schedule, the two deep QB lists for all D1 squads, and the early "Top 100" high school football players for the 2007 Recruiting Class. And those are just the ones I read.
So here, with many thanks to the boys over at ESPN is how excited we college football nuts are - this week, with a month to go before game one:
Your calendar says the 2006 college football season starts Aug. 31. Mine says it officially began in Birmingham, Alabama on Wednesday July 26th at 12:47 p.m., when grown women clutching footballs and Sharpies climbed over tables, chairs -- even sports-talk radio personnel -- in a crazed attempt to nearly gang tackle Alabama coach Mike Shula as he tried to make his way to the second floor of the Wynfrey Hotel.
Gawd, I love the living, breathing freak show that is the SEC Football Media Days. You don't attend the SEC's 52-hour football overdose as much as you try to survive it. No place in the world has more Urkels per square foot than the lobby of the Wynfrey during the league's annual kickoff sessions. The place is more crowded than a Wal-Mart the day after Thanksgiving.
One of the women got his autograph, thanks to a bull rush around the corner and then over a radio guy sitting at a table. Too bad Bama doesn't need help on the D-line. Also in the crowd was a guy holding a stack of houndstooth hats (can't they let the Bear rest in peace?), a codger wearing shin-high Crimson socks and shorts (pause for fashion scream), and assorted people wearing T-shirts that generally made fun of Tennessee coach Phillip Fulmer.
Shula took an elevator to the room, and missed the media greeting party waiting for him at the nearby escalator: 18 TV cameramen, three photographers and a few goobers like myself who wanted to see if the fourth-year Bama coach would be overwhelmed by the attention and ask for his blanky and a glass of warm buttermilk.
I'll admit it: I usually build my summer around the SEC Media Days. It's the preseason football equivalent of Mardi Gras. It's Tommy Lee kooky. It's off-the-charts excessive.
I'm not alone. There are more than 600 credentialed media members here, which is more credentials than the league issues for its championship game. If you add the credentials given to the conference's corporate and bowl partners, the number reaches 740. Now you know why Shula stammered his way through his SEC Media Days debut in 2003. Or why conference commissioner Mike Slive, also a rookie in 2002, took one look at the massive media crowd and almost required medical assistance.
"I walked in here and I'll tell you, I could hardly breathe," says Slive, who came to the SEC from Conference USA. "I have very little recollection."
Every major conference has football media days. And it usually works like this: Each coach launches into a painful monologue detailing his three-deep depth chart, and then answers such detailed questions as, "When your tight end blocks down on the strongside backer, who seals the cornerback when he forces on run support?"
Only the SEC Media Days has featured Nick Saban's massive dog darting around the Wynfrey's second floor after the pooch somehow escaped from the then-LSU coach's hotel room.
This is the event where some players (two from each of the SEC's 12 teams are invited) actually design and coordinate their own outfits, as if it were the NFL draft. This is where a taxi driver once pulled a gun on a visiting SEC writer.
"It's 24-7-365," Slive says.
And Slive's staff already has prepared the interview schedule for 2007. Is it too early to request a credential?
Go here for the story with pics.
I hear you Geno, I hear you. I just spent my lunch time going over my beloved Gators' O-Line experience/height/weight compared to the team's first four opponents. When we got to the comparison of the Univ. of Georgia's Line, a total stranger sitting next to us not only "harumphed" loud enough to hear, but made a few helpful comments that we had not considered. Why four teams you may be asking? Because the next eight get covered this weekend.
Friday, July 28, 2006
Wednesday, July 26, 2006
Don't Make Your Internet Domain Provider Angry
Seems like the Alabama Law Firm of Pittman, Dutton, Kirby and Hellums is having problems with its site host/provider.
From what I am hearing, the Pittman firm - whose members are some of the most distinguished trial attorneys in the USA - decided to go with another provider other than its current one. The provider threw a hissy fit. The web company took down the Firm's site and now refuses to release the username/password information to the Firm so that www.pittmanhooks.com can be pointed to another page.
While it goes with another provider, the honorable thing would be to put up a one page temp site. But no ...
Does your firm own its name? How do you avoid this? One easy step it to make sure that your Firm is the owner as well as the listed contact. Then, your Firm keeps all pertinent information regarding it. For example, www.bonescandal.com is owned by my Firm. We used an internet domain register company, and that .com points to the site where EJustice provides what you see. If we decide to change course, my firm can point it anywhere in a matter of minutes.
What is significant is that - much like my earlier post about storms and business interruption - the issue faced by Pittman, Hooks was one they never anticipated. It just happened.
Motion in Limine Redux
I was asked for a link to the Motion in Limine, but it has dropped off, so here you go:
PLAINTIFF'S FIRST MOTION IN LIMINE
Plaintiff files this Motion in Limine and moves this Court for an order prohibiting counsel for the defense from making any comment, directly or indirectly, in any manner whatsoever, concerning any of the matters set forth herein.
1. APPROACH THE BENCH: Plaintiff requests that Defense counsel first approach the Bench and obtain a ruling of the Court outside the presence and hearing of all prospective jurors, or jurors ultimately selected in this case, in regard to any alleged theory of such matters contained herein, at trial and mentioned to jury at Voir Dire.
2. INFORM WITNESSES: Plaintiff moves the Court for an Order directing defense counsel to inform any and all defense witnesses of the Court order regarding these matters, and to instruct any and all such witnesses to refrain from mentioning any such matters in the presence and hearing of all prospective jurors or jurors ultimately selected in this case until defense counsel has obtained a ruling in compliance with this order that such matters would be admissible as evidence in this case.
3.COLLATERAL SOURCE PAYMENTS/BENEFITS: Any reference or suggestion that Plaintiff has received, has been entitled to receive, will receive, or will become entitled to receive, benefits of any kind or character from a collateral source, including, but not limited to, the following: (A) Benefits from collateral insurance coverage; (B) Services furnished without charge; (C) Compensation for time not actually worked; (D) Social Security or pensions; (E) Workers' compensation benefits; (F) Medicaid or Medicare. See Denton v. Conway Express, Inc., 261 Ga. 41 (1991); Georgia Power Co. v. Flagan, 261 Ga. 41 (1991); Bennett v. Haley, 132 Ga. App. 512, 525 (1974). See also Warren v. Ballard, 266 Ga. 408 (2), 467 S.E.2d 891 (1996); Worthy v. Kendall, 222 Ga. App. 324, 474 S.E.2d 627 (1996).
4.OTHER COMPENSATION. That the plaintiff, by reason of age, infirmity, or otherwise, is now or may be entitled in the future to receive any compensation or benefits by reason of the Social Security Law of the United States or from any governmental agency such as the veterans' Administration, Medicare, or sources of this nature.
5.ATTACKS ON PLAINTIFF'S TRIAL COUNSEL BY DEFENSE ATTORNEYS. Any reference or suggestion as a personal attack and uncivil comments about plaintiff's trial counsel by the defendant or their attorneys. Personal attacks on adversarial counsel has no place with the truth-seeking context of litigation.
6.ADVERTISEMENT BY PLAINTIFF'S ATTORNEY. Any reference or suggestion to the advertisement or the fact that plaintiff's attorney advertises. This includes slogans, jingles, or reference to the yellow pages, television or any media. The issue of how attorneys obtain business should not become an issue in the case. The fact that plaintiff's counsel advertises to obtain clients is no more relevant that the practice by defense attorneys to join exclusive organizations in which to wine and dine insurance adjusters and corporate clients for business, in order to obtain business.
7. FINANCIAL STATUS OF ATTORNEY OR MEDICAL PROVIDER. Any reference or suggestion to the income or financial status of the plaintiff’s attorney or the treating physicians. The issue of the wealth or income of the attorneys or treating physicians should not become an issue in the case. On at least one occasion, defense counsel has argued in other cases that plaintiff's attorneys advertised and stated to jury "how do you think these attorneys and these doctors can afford such expensive advertisement and have nice offices".
8.AMERICAN TORT SYSTEM OR PLAINTIFF'S LAWYERS IN GENERAL. Any reference or suggestion or the introduction of any evidence by the defense counsel directly or indirectly attacking the American Court System or plaintiffs attorneys or recent tort reform campaigns.
Neither the American tort system or plaintiffs attorneys in general are on trial in this case. The trial of this case should not be an opportunity for defense counsel to voice opinion regarding tort reform. The injuries sustained by the plaintiff are a result of the defendant’s negligence and the defense should not be permitted to ignore the issues in this case and attack the tort system in general. The debate surrounding tort reform is completely irrelevant to this case and would serve only to inflame and prejudice the jury. Such references would poison this case with anti-lawsuit and anti-lawyer bias, which has been highlighted in recent corporate, media campaign and emotional propaganda. The only thing to be gained in allowing defense counsel to discuss these issues would be a concealment of the truth. This subject applies to Trial only and not Voir Dire.
9.UNRELATED CLAIMS. Any reference or suggestion that Plaintiff has had unrelated, prior or subsequent claims, suits or settlements or the amounts thereof. See O.C.G.A. §24-2-1 and §24-2-2; Goforth v. Wigley, 178 Ga. App. 558, 559-60 (1986). Further, no mention should be made concerning any injuries to the defendant(s), that they did not bring a claim or suit for.
10.UNRELATED ACCIDENTS AND INJURIES. Any reference or suggestion that Plaintiff has any other unrelated injuries, diseases, conditions, or illness, or the effects thereof, which are wholly disassociated from and do not relate to or serve as a "sole cause" defense to his/her present claims, and which Defendant cannot medically associate and relate to plaintiff's injuries for which compensatory damages are claimed in this case. See O.C.G.A. §24-2-1 and §24-2-2; Goforth v. Wigley, 1788 Ga. App. 558, 559-60 (1986); United Motor Freight Terminal Company Inc. v. Hixon, 76 Ga. App. 653, 655 (1948); Barnes v. Cornett, 134 Ga. App. 120, 122 (1975). Further, No mention should be made about the plaintiffs having previously filed claims or lawsuits.
11. FINANCIAL CONSEQUENCES OF JUDGMENT AGAINST DEFENDANT. Any reference or suggestion that Defendant is uninsured as to Plaintiff's claims, including, but not limited to, any reference as to Defendant as a little person, or small or struggling, or any other such reference which would tend to convey to the jury the impression that Defendant is a party of modest means who cannot afford to pay a substantial judgment. See O.C.G.A. §24-2-1; Adams v. Camp Harmony Association, 190 Ga. App. 506, 508, (1989); Denton v. Conway Express, Inc., 261 Ga. 41 (1991); Georgia Power Company v. Flagan, 261 Ga. 41 (1991); Northwestern University v. Crisp, 211 Ga. 636, 641 (1955); Brunswick & Western Railroad Co. v. Wiggins, 113 Ga. 842, 850 (1901); Higgins v. The Cherokee Railroad, 73 Ga., 149 (3) (1984); Bennett v. Haley, 132 Ga. App. 512, 525 (1974); See also Georgia State Bar Rules, DR 7-102(A)(3), (4) and (5); DR 7-106(C) (1); Rule 4-102(d) Standard 45 and O.C.G.A. § 9-10-185.
12.PAYMENT OF JUDGMENT. Any indication of any kind that Defendant driver personally will have to pay any judgment that may be entered in this case, especially since Defendant is insured against liability. See O.C.G.A. §24-2-1; Adams v. Camp Harmony Association, 190 Ga. App. 506, 508 (1989); Denton v. Conway Express, Inc., 261 Ga. 41 (1991); Northwestern University v. Crisp, 211 Ga. 636, 641 (1955); Brunswick & Western Railroad Co. v. Wiggins, 113 Ga. 149 (3) (1884); Bennett v. Haley, 132 Ga. App. 512, 525 (1974). See also Georgia State Bar Rules, DR 7-102(A)(3), (4) and (5); DR 7-106(C) (1); Rule 4-102(d) Standard 45 and O.C.G.A. §9-10-185.
13.PLAINTIFF'S USE OF AWARD. Any reference or suggestion as to what Plaintiff will or might do with any award of damages Plaintiff might receive. See O.C.G.A. §24-2-1 and §24-2-2; Gusky v. Candler General Hospital, 192 Ga. App. 521 (3) (1989). See also Hall v. Chicago & Northwestern Railway Co., 125 N.E.2d 77, 86 (Ill.1955); and Law note at 28 ATLA Law Reporter 101 (April 1985).
14.MONEY WILL NOT UNDO DAMAGE. Any reference or suggestion to the effect that "money won't undo the injury and damage the plaintiff may have sustained", because such a suggestion is an improper appeal for jury sympathy toward Defendant. and invites the jury to disregard it's duty to apply the legal measure of damages which the evidence shows have been caused by Defendant's misconduct and instead to base a verdict on improper considerations. See O.C.G.A. §24-2-1; Gielow v. Strickland, 185 Ga. App. 85, 86 (1987) (jury cannot be urged to use some other measure of damages than that prescribed by law); Central of Georgia Railway v. Swindle, 260 Ga. 685, 687 (1990) (trial should not be invaded by improper considerations); Adams v. Camp Harmony Association, 190 Ga. App. 506, 508 (1989) (effect of verdict an improper consideration).
15.DEFENDANT IS “SORRY” OR “APOLOGIZES.” Any reference or suggestion that Defendant is sorry or regrets the occurrence in question, because such a suggestion is an improper appeal for jury sympathy toward Defendant, and invites the jury to disregard it's duty to apply the legal measure of damages by awarding such damages as the evidence shows have been caused by such defendant's misconduct and base a verdict on improper considerations. O.C.G.A. §24-2-1; Adams v. Camp Harmony Association, 190 Ga. App. 506, 508 (1989); Gielow v. Strickland, 185 Ga. App. 85, 86 (1987) (jury cannot be urged to use some other measure of damages than that prescribed by law); Central of Georgia Railway v. Swindle, 260 Ga. 685, 687 (1990) (trial should not be invaded by improper considerations).
16.TAXATION OF RECOVERY. Any reference or suggestion that any recovery by Plaintiff either would or would not be subject to federal or state income tax or any other form of taxation. See O.C.G.A. §24-2-1. Also, that any recovery by Plaintiff would not be subject to federal income taxation or any other form of taxation. Atlantic Coast Line R. Co. v. Brown, 93 GA. App. 805, 807 (1956).
17.EMPLOYMENT OF COUNSEL/FEES. Any reference or suggestion regarding the time or circumstances under which Plaintiff employed any of her attorneys. O.C.G.A. §24-9-21(2). Any reference or suggestion regarding the existence of a contingent fee arrangement between Plaintiff and her counsel. See O.C.G.A. §24-2-1; Stoner v. Eden, 199 Ga. App. 135 (1991).
18.FAILURE TO CALL EQUALLY AVAILABLE WITNESSES. Any reference or suggestion that Plaintiff has not called to testify any witness equally available to both parties in this case. See O.C.G.A. § 24-4-22; Bank of Emmanuel v. Smith, 32 Ga. App. 606 (1924); Bradford v. Parrish, 111 Ga. App. 167 (1965).
19.VOUCHING FOR DEFENSE WITNESSES. Any reference or suggestion as to whether or not Plaintiff or any of Plaintiff's witnesses believe that any of the defense witnesses are honorable or otherwise worthy of belief. O.C.G.A. §24-2-1.
20.PERSONAL BELIEF OF COUNSEL. Any reference or suggestion by defense counsel as to his or her personal belief concerning the credibility of any witnesses, or as to the merits of Plaintiff's claims, injuries, or damages. Manning v. State, 123 Ga. App. 844, 845-6 (6) (1971); Georgia State Bar Rules, DR 7-106 (C) (4); EC 7-24.
21.FUTURE INCOME, ETC. OF PLAINTIFF. Any reference or suggestion as to the future income or employment benefits of Plaintiff.
22.UNDISCLOSED PHOTOGRAPHS. Any reference or suggestion as to the existence or contents of any document, photograph, motion picture film or videotape which has not previously been disclosed in the pretrial order until the same has been tendered to the Court and Plaintiff's counsel, outside the presence of the jury, and shown or exhibited to determine its relevance and suitability for introduction into evidence.
23.EFFECT OF CLAIMS ON INSURANCE RATES. Any reference or suggestion regarding the effect or results of a claim, suit of judgment upon insurance rates, premiums, or charges, either generally or as particularly applied to Defendant in this case as a result of this or any other lawsuit or claim. See O.C.G.A. §24-2-1 and §24-2-2.
24.EFFECT OF CLAIMS ON INDUSTRY. Any reference or suggestion that damage awards may drive up the price of products, put manufacturers out of business, or cause jobs to be lost. See O.C.G.A. §24-2-1 and 24-2-2.
25.REQUESTS FOR PLAINTIFF'S FILE MATERIALS. Any demands or requests by defense counsel before the jury for matters found or contained in Plaintiff's or her counsel's files, which would include statements, pleadings, photographs, and other documents directed to the Plaintiff or Plaintiff's counsel during the course of the trial and in the presence of the jury.
26.REQUEST FOR INDEPENDENT OR COMPULSORY MEDICAL EXAMINATION DURING THE COURSE OF TRIAL. During the course of the trial, any demands or requests by Defendant or defense counsel for additional medical examination, physical demonstrations, or other similar requests directed to the Plaintiff or Plaintiff's counsel and in the presence of the jury. See O.C.G.A. § 24-2-1.
27.REQUESTS FOR PHYSICAL DEMONSTRATIONS. Any requests for Plaintiff or any of Plaintiff's witnesses to participate in or assist defense counsel with any physical or other demonstration. See O.C.G.A. §24-2-1.
28.SUPERSEDED PLEADINGS. Any reference or suggestion as to the contents of any pleadings which have been superseded by the current pleadings or the pretrial order on file in this case.
29.EX PARTE STATEMENTS. Any reference or suggestion as to the contents of, or tender of any ex parte statement or report of any person not then and there present in the Court to testify and to be cross-examined by counsel for Plaintiff.
30.TESTIMONY OF UNAVAILABLE WITNESS. Any reference or suggestion as to the probable testimony of a witness available to Defendant who is not called to testify in this case.
31.NOTICE TO DEFENDANT OF SUIT. Any reference or suggestion that no notice of the claim was given to Defendant(s) until the suit was filed in this case, since none is required to be given.
32.SPECIAL EFFORTS REQUIRED BY JURY. Any reference or suggestion that the jury must extend special efforts to be fair and impartial to the defendant.
33.SEAT BELTS. Any reference or suggestion that Plaintiff may not have been wearing a seat belt at the time of the collision made the basis of this suit. O.C.G.A. §40-8-76.2.
34.PRIOR TRAFFIC RECORD. Any reference or suggestion as to any prior moving traffic violations or any prior automobile collisions that Plaintiff may have had in the past. See O.C.G.A. §24-2-1 and 24-2-2; Myers v. Barnard, 180 Ga. App. 192 (1986); Underwood v. Butler, 166 Ga. App 527, 529 (1983). See also Green, Georgia Law of Evidence, 3rd Ed., §§68, 70 and 71 (Harrison Co., 1991 Supp.).
35.CRIMES INVOLVING FIRST OFFENDER STATUS. Any reference or suggestion as to any crimes involving first offender status. O.C.G.A. § 42-8-65(a) obligates the clerk to ensure that such information is disclosed only to those persons authorized to receive it. Witcher v. Pender, 260 Ga. 248 June 8, 1990, held that the first offender record of an adverse witness in a civil case is not admissible for the purpose of impeaching the witness for a crime of moral turpitude. In Georgia, the rule is that a witness may be impeached by proof of a conviction of a crime involving moral turpitude. Hall v. Hall, 261 Ga. 181 (402 S.E. 2d 726)(1991).
The use of the term moral turpitude has been "restricted to the gravest offenses consisting of felonies, infamous crimes and those that are malum in se and disclose a depraved mind", Lewis v. State, 243 Ga. 443, 444 (254 S.E. 2d 830)(1979). Under that definition it is apparent that a misdemeanor conviction for possession of less than an ounce of marijuana, a conviction equivalent to a misdemeanor conviction for DUI. See Hall v. Hall supra, it is not a crime of moral turpitude. It does not suggest an "insensibility to the obligation of an oath". Lewis supra, at 446.
36.CRIMES NOT INVOLVING MORAL TURPITUDE. Any reference or suggestion as to any crime by the plaintiff that does not involve moral turpitude. "In Georgia, the rule is that a witness may be impeached by proof of a conviction of any crime involving moral turpitude. Said to be restricted to the gravest offenses, consisting of felonies, infamous crimes, and those that are malum in se and disclose a depraved mind Lewis v. State, 243 Ga. 443, 444 (1979).
37.MUST HAVE CERTIFIED RECORDS OF PRIOR CONVICTION, IF ANY Any reference or suggestion as to any crime by the plaintiff that defense does not have certified copies of the convictions. A witness may be impeached by the “properly authenticated copy of his conviction”, not by his own admission in a deposition or testimony that he entered a pleas of guilty. Business Resources, Inc. v. General Amusements, Inc., 186 Ga. App. 185 (1988).
38.DUI. Any reference or suggestion as to any crime of DUI by the plaintiff. A misdemeanor conviction for DUI is not a crime of moral turpitude and therefore cannot be used for impeachment. Hall v. Hall, 261 Ga. 188 (April 11, 1991). See Agnor's Georgia Evidence (2nd Edition) Section 5-8 (1986).
39.LIVING TOGETHER OUT OF WEDLOCK. Any reference or suggestion that the plaintiff is or has ever lived with someone out of wedlock.
40.MED-PAY OFFSET FROM VERDICT. Any reference or suggestion that the collateral sources which plaintiff has received including med-pay benefits should be offset from the jury's verdict. Plaintiff intends to offer paid medical bills for the limited purpose of showing the extent of the injuries. There may exist a right of reimbursement or subrogation for any paid bills. The law is clear in that the Plaintiff is not entitled to a double recovery.
The approved way to prevent such double payment is by consent at pretrial, or in the event of contest, by presenting the facts showing such coverage and payment to the Court outside the presence of the jury. Powell v. Manning, 242 Ga. 778, 780 (251 SE2d 522) (1979). If evidence of such damages is introduced for the purpose of proving the extent of injuries, the Court should then charge the jury to exclude consideration of such evidence on the issue of damages. Walls v. Parker, 146 Ga. App. 882, 883 (247 SE2d 556)(1978). McDaniel v. Gysel, 155 Ga. App. 111, 112 (5) (270 SE2d 469)(1980).
41.DISORDERLY CONDUCT. Any reference or suggestion as to any crime of disorderly conduct. Disorderly conduct is a misdemeanor and is not a crime of moral turpitude.
42.BIRTH OF CHILDREN. Any reference or suggestion as to the birth of any of plaintiff's children out of wedlock or the fact that plaintiff's children may have different fathers.
43.REFERRAL TO PHYSICIAN. Any reference or suggestion that plaintiff was given the name of a physician by either his prior or current attorney or that his attorney assisted in scheduling his appointment.
44.ACCIDENT CHARGE. Any reference or suggestion by the defense on the “accident” in this case. Tolbert v. Duckworth, and Shelton v. Smith, 262 Ga. 622, (November 23, 1992) Georgia Supreme Court. The Georgia Supreme Court has eliminated the jury instruction on accident as a defense in civil cases agreeing with the jurisdictions that have repudiated the use of the accident instruction in all civil cases as unnecessary, misleading and confusing.
45.EVIDENCE AND TESTIMONY. Any reference or suggestion to any evidence or testimony not revealed in defendants' discovery responses. Such evidence would be unfairly prejudicial to the plaintiffs' case. All such evidence should have been disclosed to the plaintiffs during discovery.
46.OTHER INJURIES: Plaintiffs moves that the Court exclude any claim, argument or other statement that any prior or subsequent claims and injuries of Plaintiff are related to the injuries now at issue, unless such contention is first established by testimony of someone having sufficient and appropriate medical training and supported by medical records. Such argument cannot be made without first providing medical proof as to such causation. It is clear that neither a witness nor lawyer without any medical training can give such an unsupported opinion. See Eberhart v. Morris Brown College, 181 Ga. App. 516, at 518 & 519 (1987); Thomason v. Willingham, 118 Ga. App. 821, 165 S.E. 2d 865 (1968).
Plaintiff moves that any such argument or statement of counsel be excluded unless and until such causation is established at trial through testimony of a qualified medical expert. This motion by plaintiffs prevents or precludes defense counsel from arguing that the March 1995 automobile collision caused or aggravated any of Mr. Jenkins’ injuries. Without medical support, such argument would permit defense counsel to improperly insinuate injury without testimony or other evidence.
47.ARGUMENTS UNSUPPORTED BY MEDICAL EVIDENCE: Plaintiffs move that the Court exclude any claim, argument, or other statement that any prior or subsequent injuries, problems or conditions associated with plaintiff's back, jaw, shoulder, or any problems related to psychological stress the plaintiff may have suffered in the past are in any way related to his present injuries, unless such statement is first established by testimony of someone having sufficient and appropriate medical training and such statements are supported by medical records. Once again, such an unsupported statement cannot be made without sufficient proof. See Eberhart v. Morris Brown College, 181 Ga. App. 516, at 518 & 519 (1987); Thomason v. Willingham, 118 Ga. App. 821, 165 S.E. 2d 865 (1968). Any testimony, argument or questioning as to these matters should also be barred unless and until medical proof is first presented.
48.FILING THIS MOTION. Any reference or suggestion that this Motion has been presented to or ruled upon by the Court. Plaintiff moves that Defendant's counsel is instructed not to suggest to the jury, directly or indirectly, that Plaintiff has sought to exclude any matters to this suit.
49.JURY. That the members of the jury should not place themselves in the place, or shoes, or stead of the Defendants. Doe v. Moss, 120 Ga. App. 762, Headnotes 7 & 8, (1969).
50.DOCUMENTS NOT PREVIOUSLY ADDRESSED IN PRE-TRIAL ORDER. That should the Defendants wish to introduce any document, writing, photograph or motion picture or video tape or the like, not previously addressed by the pre-trial order, into evidence, that the same be tendered to the Court and opposing counsel, outside the presence of the jury, and shown or exhibited to determine its relevance and suitability for introduction into evidence prior to and before informing the jury as to its existence or its tender into evidence by the defendants.
51. COUNSEL SELECTION:
That defense counsel be prohibited from asking any questions relating to when, how or why Plaintiff hired litigation counsel, and that Defendant, or any witness interrogated by Defendant's counsel not insinuate, interrogate, testify or argue pertaining to any matter related to the time or circumstances under which the Plaintiff employed attorneys in this case. See _Carlye v Lai_, 783 SW2d 925, 929 (Mo.App 1989). That case properly held:
Accessing the legal system is normally not to be discouraged
and exercising one's right to utilize the legal system within the
rules and procedures should normally not be used to attempt to
discredit a litigant with jury. The right to seek the advise of
counsel risks reversal when attempting to discredit a litigant
cross-examining him about the time and circumstances of his
having consulted an attorney to discuss his legal rights.
See also, _Travis vs. Vandergriff_, 384 S.W.2d 936, 938 (Tex. App.- Waco, 1964, writ ref'd, n.r.e) _Martinez vs. Williams_, 312 S.W.2d 742, 752 (Tex. App.- Houston, 1958, no writ history).
52. MINIMAL IMPACT: Plaintiff seeks a prohibition regarding any reference to this incident being a fender bender, a minimal impact case, or any reference to property damage, in the absence of properly admitted expert evidence. See Davis v. Maute 770 A.2d 36 (Del.Supr.,2001). In that case, a negligence action was brought to recover for soft tissue back, neck, and rib injuries allegedly suffered in automobile collision for which defendant conceded liability. After jury returned verdict awarding plaintiff $8,766, the Superior Court,defense counsel's references during opening statement and summation to collision as “fender-bender” were improper, in absence of expert testimony correlating seriousness of injuries to seriousness of accident; (2) photographs showing minimal damage that plaintiff's car suffered in collision were inadmissible absent immediate limiting instruction.
PLAINTIFF'S FIRST MOTION IN LIMINE
Plaintiff files this Motion in Limine and moves this Court for an order prohibiting counsel for the defense from making any comment, directly or indirectly, in any manner whatsoever, concerning any of the matters set forth herein.
1. APPROACH THE BENCH: Plaintiff requests that Defense counsel first approach the Bench and obtain a ruling of the Court outside the presence and hearing of all prospective jurors, or jurors ultimately selected in this case, in regard to any alleged theory of such matters contained herein, at trial and mentioned to jury at Voir Dire.
2. INFORM WITNESSES: Plaintiff moves the Court for an Order directing defense counsel to inform any and all defense witnesses of the Court order regarding these matters, and to instruct any and all such witnesses to refrain from mentioning any such matters in the presence and hearing of all prospective jurors or jurors ultimately selected in this case until defense counsel has obtained a ruling in compliance with this order that such matters would be admissible as evidence in this case.
3.COLLATERAL SOURCE PAYMENTS/BENEFITS: Any reference or suggestion that Plaintiff has received, has been entitled to receive, will receive, or will become entitled to receive, benefits of any kind or character from a collateral source, including, but not limited to, the following: (A) Benefits from collateral insurance coverage; (B) Services furnished without charge; (C) Compensation for time not actually worked; (D) Social Security or pensions; (E) Workers' compensation benefits; (F) Medicaid or Medicare. See Denton v. Conway Express, Inc., 261 Ga. 41 (1991); Georgia Power Co. v. Flagan, 261 Ga. 41 (1991); Bennett v. Haley, 132 Ga. App. 512, 525 (1974). See also Warren v. Ballard, 266 Ga. 408 (2), 467 S.E.2d 891 (1996); Worthy v. Kendall, 222 Ga. App. 324, 474 S.E.2d 627 (1996).
4.OTHER COMPENSATION. That the plaintiff, by reason of age, infirmity, or otherwise, is now or may be entitled in the future to receive any compensation or benefits by reason of the Social Security Law of the United States or from any governmental agency such as the veterans' Administration, Medicare, or sources of this nature.
5.ATTACKS ON PLAINTIFF'S TRIAL COUNSEL BY DEFENSE ATTORNEYS. Any reference or suggestion as a personal attack and uncivil comments about plaintiff's trial counsel by the defendant or their attorneys. Personal attacks on adversarial counsel has no place with the truth-seeking context of litigation.
6.ADVERTISEMENT BY PLAINTIFF'S ATTORNEY. Any reference or suggestion to the advertisement or the fact that plaintiff's attorney advertises. This includes slogans, jingles, or reference to the yellow pages, television or any media. The issue of how attorneys obtain business should not become an issue in the case. The fact that plaintiff's counsel advertises to obtain clients is no more relevant that the practice by defense attorneys to join exclusive organizations in which to wine and dine insurance adjusters and corporate clients for business, in order to obtain business.
7. FINANCIAL STATUS OF ATTORNEY OR MEDICAL PROVIDER. Any reference or suggestion to the income or financial status of the plaintiff’s attorney or the treating physicians. The issue of the wealth or income of the attorneys or treating physicians should not become an issue in the case. On at least one occasion, defense counsel has argued in other cases that plaintiff's attorneys advertised and stated to jury "how do you think these attorneys and these doctors can afford such expensive advertisement and have nice offices".
8.AMERICAN TORT SYSTEM OR PLAINTIFF'S LAWYERS IN GENERAL. Any reference or suggestion or the introduction of any evidence by the defense counsel directly or indirectly attacking the American Court System or plaintiffs attorneys or recent tort reform campaigns.
Neither the American tort system or plaintiffs attorneys in general are on trial in this case. The trial of this case should not be an opportunity for defense counsel to voice opinion regarding tort reform. The injuries sustained by the plaintiff are a result of the defendant’s negligence and the defense should not be permitted to ignore the issues in this case and attack the tort system in general. The debate surrounding tort reform is completely irrelevant to this case and would serve only to inflame and prejudice the jury. Such references would poison this case with anti-lawsuit and anti-lawyer bias, which has been highlighted in recent corporate, media campaign and emotional propaganda. The only thing to be gained in allowing defense counsel to discuss these issues would be a concealment of the truth. This subject applies to Trial only and not Voir Dire.
9.UNRELATED CLAIMS. Any reference or suggestion that Plaintiff has had unrelated, prior or subsequent claims, suits or settlements or the amounts thereof. See O.C.G.A. §24-2-1 and §24-2-2; Goforth v. Wigley, 178 Ga. App. 558, 559-60 (1986). Further, no mention should be made concerning any injuries to the defendant(s), that they did not bring a claim or suit for.
10.UNRELATED ACCIDENTS AND INJURIES. Any reference or suggestion that Plaintiff has any other unrelated injuries, diseases, conditions, or illness, or the effects thereof, which are wholly disassociated from and do not relate to or serve as a "sole cause" defense to his/her present claims, and which Defendant cannot medically associate and relate to plaintiff's injuries for which compensatory damages are claimed in this case. See O.C.G.A. §24-2-1 and §24-2-2; Goforth v. Wigley, 1788 Ga. App. 558, 559-60 (1986); United Motor Freight Terminal Company Inc. v. Hixon, 76 Ga. App. 653, 655 (1948); Barnes v. Cornett, 134 Ga. App. 120, 122 (1975). Further, No mention should be made about the plaintiffs having previously filed claims or lawsuits.
11. FINANCIAL CONSEQUENCES OF JUDGMENT AGAINST DEFENDANT. Any reference or suggestion that Defendant is uninsured as to Plaintiff's claims, including, but not limited to, any reference as to Defendant as a little person, or small or struggling, or any other such reference which would tend to convey to the jury the impression that Defendant is a party of modest means who cannot afford to pay a substantial judgment. See O.C.G.A. §24-2-1; Adams v. Camp Harmony Association, 190 Ga. App. 506, 508, (1989); Denton v. Conway Express, Inc., 261 Ga. 41 (1991); Georgia Power Company v. Flagan, 261 Ga. 41 (1991); Northwestern University v. Crisp, 211 Ga. 636, 641 (1955); Brunswick & Western Railroad Co. v. Wiggins, 113 Ga. 842, 850 (1901); Higgins v. The Cherokee Railroad, 73 Ga., 149 (3) (1984); Bennett v. Haley, 132 Ga. App. 512, 525 (1974); See also Georgia State Bar Rules, DR 7-102(A)(3), (4) and (5); DR 7-106(C) (1); Rule 4-102(d) Standard 45 and O.C.G.A. § 9-10-185.
12.PAYMENT OF JUDGMENT. Any indication of any kind that Defendant driver personally will have to pay any judgment that may be entered in this case, especially since Defendant is insured against liability. See O.C.G.A. §24-2-1; Adams v. Camp Harmony Association, 190 Ga. App. 506, 508 (1989); Denton v. Conway Express, Inc., 261 Ga. 41 (1991); Northwestern University v. Crisp, 211 Ga. 636, 641 (1955); Brunswick & Western Railroad Co. v. Wiggins, 113 Ga. 149 (3) (1884); Bennett v. Haley, 132 Ga. App. 512, 525 (1974). See also Georgia State Bar Rules, DR 7-102(A)(3), (4) and (5); DR 7-106(C) (1); Rule 4-102(d) Standard 45 and O.C.G.A. §9-10-185.
13.PLAINTIFF'S USE OF AWARD. Any reference or suggestion as to what Plaintiff will or might do with any award of damages Plaintiff might receive. See O.C.G.A. §24-2-1 and §24-2-2; Gusky v. Candler General Hospital, 192 Ga. App. 521 (3) (1989). See also Hall v. Chicago & Northwestern Railway Co., 125 N.E.2d 77, 86 (Ill.1955); and Law note at 28 ATLA Law Reporter 101 (April 1985).
14.MONEY WILL NOT UNDO DAMAGE. Any reference or suggestion to the effect that "money won't undo the injury and damage the plaintiff may have sustained", because such a suggestion is an improper appeal for jury sympathy toward Defendant. and invites the jury to disregard it's duty to apply the legal measure of damages which the evidence shows have been caused by Defendant's misconduct and instead to base a verdict on improper considerations. See O.C.G.A. §24-2-1; Gielow v. Strickland, 185 Ga. App. 85, 86 (1987) (jury cannot be urged to use some other measure of damages than that prescribed by law); Central of Georgia Railway v. Swindle, 260 Ga. 685, 687 (1990) (trial should not be invaded by improper considerations); Adams v. Camp Harmony Association, 190 Ga. App. 506, 508 (1989) (effect of verdict an improper consideration).
15.DEFENDANT IS “SORRY” OR “APOLOGIZES.” Any reference or suggestion that Defendant is sorry or regrets the occurrence in question, because such a suggestion is an improper appeal for jury sympathy toward Defendant, and invites the jury to disregard it's duty to apply the legal measure of damages by awarding such damages as the evidence shows have been caused by such defendant's misconduct and base a verdict on improper considerations. O.C.G.A. §24-2-1; Adams v. Camp Harmony Association, 190 Ga. App. 506, 508 (1989); Gielow v. Strickland, 185 Ga. App. 85, 86 (1987) (jury cannot be urged to use some other measure of damages than that prescribed by law); Central of Georgia Railway v. Swindle, 260 Ga. 685, 687 (1990) (trial should not be invaded by improper considerations).
16.TAXATION OF RECOVERY. Any reference or suggestion that any recovery by Plaintiff either would or would not be subject to federal or state income tax or any other form of taxation. See O.C.G.A. §24-2-1. Also, that any recovery by Plaintiff would not be subject to federal income taxation or any other form of taxation. Atlantic Coast Line R. Co. v. Brown, 93 GA. App. 805, 807 (1956).
17.EMPLOYMENT OF COUNSEL/FEES. Any reference or suggestion regarding the time or circumstances under which Plaintiff employed any of her attorneys. O.C.G.A. §24-9-21(2). Any reference or suggestion regarding the existence of a contingent fee arrangement between Plaintiff and her counsel. See O.C.G.A. §24-2-1; Stoner v. Eden, 199 Ga. App. 135 (1991).
18.FAILURE TO CALL EQUALLY AVAILABLE WITNESSES. Any reference or suggestion that Plaintiff has not called to testify any witness equally available to both parties in this case. See O.C.G.A. § 24-4-22; Bank of Emmanuel v. Smith, 32 Ga. App. 606 (1924); Bradford v. Parrish, 111 Ga. App. 167 (1965).
19.VOUCHING FOR DEFENSE WITNESSES. Any reference or suggestion as to whether or not Plaintiff or any of Plaintiff's witnesses believe that any of the defense witnesses are honorable or otherwise worthy of belief. O.C.G.A. §24-2-1.
20.PERSONAL BELIEF OF COUNSEL. Any reference or suggestion by defense counsel as to his or her personal belief concerning the credibility of any witnesses, or as to the merits of Plaintiff's claims, injuries, or damages. Manning v. State, 123 Ga. App. 844, 845-6 (6) (1971); Georgia State Bar Rules, DR 7-106 (C) (4); EC 7-24.
21.FUTURE INCOME, ETC. OF PLAINTIFF. Any reference or suggestion as to the future income or employment benefits of Plaintiff.
22.UNDISCLOSED PHOTOGRAPHS. Any reference or suggestion as to the existence or contents of any document, photograph, motion picture film or videotape which has not previously been disclosed in the pretrial order until the same has been tendered to the Court and Plaintiff's counsel, outside the presence of the jury, and shown or exhibited to determine its relevance and suitability for introduction into evidence.
23.EFFECT OF CLAIMS ON INSURANCE RATES. Any reference or suggestion regarding the effect or results of a claim, suit of judgment upon insurance rates, premiums, or charges, either generally or as particularly applied to Defendant in this case as a result of this or any other lawsuit or claim. See O.C.G.A. §24-2-1 and §24-2-2.
24.EFFECT OF CLAIMS ON INDUSTRY. Any reference or suggestion that damage awards may drive up the price of products, put manufacturers out of business, or cause jobs to be lost. See O.C.G.A. §24-2-1 and 24-2-2.
25.REQUESTS FOR PLAINTIFF'S FILE MATERIALS. Any demands or requests by defense counsel before the jury for matters found or contained in Plaintiff's or her counsel's files, which would include statements, pleadings, photographs, and other documents directed to the Plaintiff or Plaintiff's counsel during the course of the trial and in the presence of the jury.
26.REQUEST FOR INDEPENDENT OR COMPULSORY MEDICAL EXAMINATION DURING THE COURSE OF TRIAL. During the course of the trial, any demands or requests by Defendant or defense counsel for additional medical examination, physical demonstrations, or other similar requests directed to the Plaintiff or Plaintiff's counsel and in the presence of the jury. See O.C.G.A. § 24-2-1.
27.REQUESTS FOR PHYSICAL DEMONSTRATIONS. Any requests for Plaintiff or any of Plaintiff's witnesses to participate in or assist defense counsel with any physical or other demonstration. See O.C.G.A. §24-2-1.
28.SUPERSEDED PLEADINGS. Any reference or suggestion as to the contents of any pleadings which have been superseded by the current pleadings or the pretrial order on file in this case.
29.EX PARTE STATEMENTS. Any reference or suggestion as to the contents of, or tender of any ex parte statement or report of any person not then and there present in the Court to testify and to be cross-examined by counsel for Plaintiff.
30.TESTIMONY OF UNAVAILABLE WITNESS. Any reference or suggestion as to the probable testimony of a witness available to Defendant who is not called to testify in this case.
31.NOTICE TO DEFENDANT OF SUIT. Any reference or suggestion that no notice of the claim was given to Defendant(s) until the suit was filed in this case, since none is required to be given.
32.SPECIAL EFFORTS REQUIRED BY JURY. Any reference or suggestion that the jury must extend special efforts to be fair and impartial to the defendant.
33.SEAT BELTS. Any reference or suggestion that Plaintiff may not have been wearing a seat belt at the time of the collision made the basis of this suit. O.C.G.A. §40-8-76.2.
34.PRIOR TRAFFIC RECORD. Any reference or suggestion as to any prior moving traffic violations or any prior automobile collisions that Plaintiff may have had in the past. See O.C.G.A. §24-2-1 and 24-2-2; Myers v. Barnard, 180 Ga. App. 192 (1986); Underwood v. Butler, 166 Ga. App 527, 529 (1983). See also Green, Georgia Law of Evidence, 3rd Ed., §§68, 70 and 71 (Harrison Co., 1991 Supp.).
35.CRIMES INVOLVING FIRST OFFENDER STATUS. Any reference or suggestion as to any crimes involving first offender status. O.C.G.A. § 42-8-65(a) obligates the clerk to ensure that such information is disclosed only to those persons authorized to receive it. Witcher v. Pender, 260 Ga. 248 June 8, 1990, held that the first offender record of an adverse witness in a civil case is not admissible for the purpose of impeaching the witness for a crime of moral turpitude. In Georgia, the rule is that a witness may be impeached by proof of a conviction of a crime involving moral turpitude. Hall v. Hall, 261 Ga. 181 (402 S.E. 2d 726)(1991).
The use of the term moral turpitude has been "restricted to the gravest offenses consisting of felonies, infamous crimes and those that are malum in se and disclose a depraved mind", Lewis v. State, 243 Ga. 443, 444 (254 S.E. 2d 830)(1979). Under that definition it is apparent that a misdemeanor conviction for possession of less than an ounce of marijuana, a conviction equivalent to a misdemeanor conviction for DUI. See Hall v. Hall supra, it is not a crime of moral turpitude. It does not suggest an "insensibility to the obligation of an oath". Lewis supra, at 446.
36.CRIMES NOT INVOLVING MORAL TURPITUDE. Any reference or suggestion as to any crime by the plaintiff that does not involve moral turpitude. "In Georgia, the rule is that a witness may be impeached by proof of a conviction of any crime involving moral turpitude. Said to be restricted to the gravest offenses, consisting of felonies, infamous crimes, and those that are malum in se and disclose a depraved mind Lewis v. State, 243 Ga. 443, 444 (1979).
37.MUST HAVE CERTIFIED RECORDS OF PRIOR CONVICTION, IF ANY Any reference or suggestion as to any crime by the plaintiff that defense does not have certified copies of the convictions. A witness may be impeached by the “properly authenticated copy of his conviction”, not by his own admission in a deposition or testimony that he entered a pleas of guilty. Business Resources, Inc. v. General Amusements, Inc., 186 Ga. App. 185 (1988).
38.DUI. Any reference or suggestion as to any crime of DUI by the plaintiff. A misdemeanor conviction for DUI is not a crime of moral turpitude and therefore cannot be used for impeachment. Hall v. Hall, 261 Ga. 188 (April 11, 1991). See Agnor's Georgia Evidence (2nd Edition) Section 5-8 (1986).
39.LIVING TOGETHER OUT OF WEDLOCK. Any reference or suggestion that the plaintiff is or has ever lived with someone out of wedlock.
40.MED-PAY OFFSET FROM VERDICT. Any reference or suggestion that the collateral sources which plaintiff has received including med-pay benefits should be offset from the jury's verdict. Plaintiff intends to offer paid medical bills for the limited purpose of showing the extent of the injuries. There may exist a right of reimbursement or subrogation for any paid bills. The law is clear in that the Plaintiff is not entitled to a double recovery.
The approved way to prevent such double payment is by consent at pretrial, or in the event of contest, by presenting the facts showing such coverage and payment to the Court outside the presence of the jury. Powell v. Manning, 242 Ga. 778, 780 (251 SE2d 522) (1979). If evidence of such damages is introduced for the purpose of proving the extent of injuries, the Court should then charge the jury to exclude consideration of such evidence on the issue of damages. Walls v. Parker, 146 Ga. App. 882, 883 (247 SE2d 556)(1978). McDaniel v. Gysel, 155 Ga. App. 111, 112 (5) (270 SE2d 469)(1980).
41.DISORDERLY CONDUCT. Any reference or suggestion as to any crime of disorderly conduct. Disorderly conduct is a misdemeanor and is not a crime of moral turpitude.
42.BIRTH OF CHILDREN. Any reference or suggestion as to the birth of any of plaintiff's children out of wedlock or the fact that plaintiff's children may have different fathers.
43.REFERRAL TO PHYSICIAN. Any reference or suggestion that plaintiff was given the name of a physician by either his prior or current attorney or that his attorney assisted in scheduling his appointment.
44.ACCIDENT CHARGE. Any reference or suggestion by the defense on the “accident” in this case. Tolbert v. Duckworth, and Shelton v. Smith, 262 Ga. 622, (November 23, 1992) Georgia Supreme Court. The Georgia Supreme Court has eliminated the jury instruction on accident as a defense in civil cases agreeing with the jurisdictions that have repudiated the use of the accident instruction in all civil cases as unnecessary, misleading and confusing.
45.EVIDENCE AND TESTIMONY. Any reference or suggestion to any evidence or testimony not revealed in defendants' discovery responses. Such evidence would be unfairly prejudicial to the plaintiffs' case. All such evidence should have been disclosed to the plaintiffs during discovery.
46.OTHER INJURIES: Plaintiffs moves that the Court exclude any claim, argument or other statement that any prior or subsequent claims and injuries of Plaintiff are related to the injuries now at issue, unless such contention is first established by testimony of someone having sufficient and appropriate medical training and supported by medical records. Such argument cannot be made without first providing medical proof as to such causation. It is clear that neither a witness nor lawyer without any medical training can give such an unsupported opinion. See Eberhart v. Morris Brown College, 181 Ga. App. 516, at 518 & 519 (1987); Thomason v. Willingham, 118 Ga. App. 821, 165 S.E. 2d 865 (1968).
Plaintiff moves that any such argument or statement of counsel be excluded unless and until such causation is established at trial through testimony of a qualified medical expert. This motion by plaintiffs prevents or precludes defense counsel from arguing that the March 1995 automobile collision caused or aggravated any of Mr. Jenkins’ injuries. Without medical support, such argument would permit defense counsel to improperly insinuate injury without testimony or other evidence.
47.ARGUMENTS UNSUPPORTED BY MEDICAL EVIDENCE: Plaintiffs move that the Court exclude any claim, argument, or other statement that any prior or subsequent injuries, problems or conditions associated with plaintiff's back, jaw, shoulder, or any problems related to psychological stress the plaintiff may have suffered in the past are in any way related to his present injuries, unless such statement is first established by testimony of someone having sufficient and appropriate medical training and such statements are supported by medical records. Once again, such an unsupported statement cannot be made without sufficient proof. See Eberhart v. Morris Brown College, 181 Ga. App. 516, at 518 & 519 (1987); Thomason v. Willingham, 118 Ga. App. 821, 165 S.E. 2d 865 (1968). Any testimony, argument or questioning as to these matters should also be barred unless and until medical proof is first presented.
48.FILING THIS MOTION. Any reference or suggestion that this Motion has been presented to or ruled upon by the Court. Plaintiff moves that Defendant's counsel is instructed not to suggest to the jury, directly or indirectly, that Plaintiff has sought to exclude any matters to this suit.
49.JURY. That the members of the jury should not place themselves in the place, or shoes, or stead of the Defendants. Doe v. Moss, 120 Ga. App. 762, Headnotes 7 & 8, (1969).
50.DOCUMENTS NOT PREVIOUSLY ADDRESSED IN PRE-TRIAL ORDER. That should the Defendants wish to introduce any document, writing, photograph or motion picture or video tape or the like, not previously addressed by the pre-trial order, into evidence, that the same be tendered to the Court and opposing counsel, outside the presence of the jury, and shown or exhibited to determine its relevance and suitability for introduction into evidence prior to and before informing the jury as to its existence or its tender into evidence by the defendants.
51. COUNSEL SELECTION:
That defense counsel be prohibited from asking any questions relating to when, how or why Plaintiff hired litigation counsel, and that Defendant, or any witness interrogated by Defendant's counsel not insinuate, interrogate, testify or argue pertaining to any matter related to the time or circumstances under which the Plaintiff employed attorneys in this case. See _Carlye v Lai_, 783 SW2d 925, 929 (Mo.App 1989). That case properly held:
Accessing the legal system is normally not to be discouraged
and exercising one's right to utilize the legal system within the
rules and procedures should normally not be used to attempt to
discredit a litigant with jury. The right to seek the advise of
counsel risks reversal when attempting to discredit a litigant
cross-examining him about the time and circumstances of his
having consulted an attorney to discuss his legal rights.
See also, _Travis vs. Vandergriff_, 384 S.W.2d 936, 938 (Tex. App.- Waco, 1964, writ ref'd, n.r.e) _Martinez vs. Williams_, 312 S.W.2d 742, 752 (Tex. App.- Houston, 1958, no writ history).
52. MINIMAL IMPACT: Plaintiff seeks a prohibition regarding any reference to this incident being a fender bender, a minimal impact case, or any reference to property damage, in the absence of properly admitted expert evidence. See Davis v. Maute 770 A.2d 36 (Del.Supr.,2001). In that case, a negligence action was brought to recover for soft tissue back, neck, and rib injuries allegedly suffered in automobile collision for which defendant conceded liability. After jury returned verdict awarding plaintiff $8,766, the Superior Court,defense counsel's references during opening statement and summation to collision as “fender-bender” were improper, in absence of expert testimony correlating seriousness of injuries to seriousness of accident; (2) photographs showing minimal damage that plaintiff's car suffered in collision were inadmissible absent immediate limiting instruction.
Business Interruption: What Are You Going to Do?
I've been reading blogs that comment on the recent St. Louis power outages, posts from bloggers such as Evan Schaeffer's Legal Underground and Dennis Kennedy (Please send electricity). "We're now on day 5 (or day 4, I guess, depending on how you count) without electricity in St. Louis after the freak thunderstorm last week."
Do you have a plan? A simple one for a day or two? A more complex one? I can tell you the story about a Florida law firm that in advance of Hurricane Ivan did this ... covered servers with a plastic bag in case of water damage, then came back after the storm and found that the roof had caved in and destroyed them all.
For folks in St. Louis, I am sure they thought that a thunderstorm would not render the city helpless. For others planning is a two or three day matter if Hurricane warnings go up.
Most have plans, but do you have at least a basic fall back plan when the power is out for a day or two? It's a pain the ass to deal with, and it's worse when it comes upon you with little warning. I went through it once, and vowed to limit the pain when it came around again.
Get a Generator: I have a generator, a Honda XP4400E that costs about $400. It can take care of the house and essential items like a fridge. It costs less than two nights at the Ritz Carlton, where we stayed during a past, city wide outage.
My tailgating generator also is a backup for home or work, a Honda EU1000i (used). I keep a five gallon gas can in storage as well. The total cost for the two generators was less than $1,500. To me the XP4400E ($400) was a no brainer.
Expecting a power outage I bought matchlight charcoal (20 pounds of it) and an extra propane tank. Total cost is under $50 for both. I've had to resort to one or the other just a handful of times, once when an unprepared neighbor came over asking for the extra propane.
Are you prepared for even a a two day power outage?
Do you have a plan? A simple one for a day or two? A more complex one? I can tell you the story about a Florida law firm that in advance of Hurricane Ivan did this ... covered servers with a plastic bag in case of water damage, then came back after the storm and found that the roof had caved in and destroyed them all.
For folks in St. Louis, I am sure they thought that a thunderstorm would not render the city helpless. For others planning is a two or three day matter if Hurricane warnings go up.
Most have plans, but do you have at least a basic fall back plan when the power is out for a day or two? It's a pain the ass to deal with, and it's worse when it comes upon you with little warning. I went through it once, and vowed to limit the pain when it came around again.
Get a Generator: I have a generator, a Honda XP4400E that costs about $400. It can take care of the house and essential items like a fridge. It costs less than two nights at the Ritz Carlton, where we stayed during a past, city wide outage.
My tailgating generator also is a backup for home or work, a Honda EU1000i (used). I keep a five gallon gas can in storage as well. The total cost for the two generators was less than $1,500. To me the XP4400E ($400) was a no brainer.
Expecting a power outage I bought matchlight charcoal (20 pounds of it) and an extra propane tank. Total cost is under $50 for both. I've had to resort to one or the other just a handful of times, once when an unprepared neighbor came over asking for the extra propane.
Are you prepared for even a a two day power outage?
Tuesday, July 25, 2006
Warning Regarding Black Cohosh (An OTC Herb)
Across the pond comes news that Black cohosh, an herb popular for relieving hot flashes and other symptoms of menopause may if used regularly be raise the risk of liver damage according to the U.K.'s Medicines and Healthcare products Regulatory Agency.
Black cohosh (known as both Actaea racemosa and Cimicifuga racemosa ), a member of the buttercup family, is a perennial plant that is native to North America. Other common names include black snakeroot, bugbane, bugwort, rattleroot, rattletop, rattleweed, and macrotys. Insects avoid it, which accounts for some of these common names.
The treatment has been used for many years in Europe, and in 2002 women in the USA started using it after a much publicized study fund that hormone replacement therapy using drugs such as Prempro raised a risk of heart attack, stroke, and breast cancer.
Symptoms of liver problems include pain on the right side of the stomach just below the ribs, unexplained nausea, flu-like symptoms, dark urine, and yellowing of eyes or skin.
And this from the NYT:
Almost half of American women seek alternative or complementary treatments for the unpleasant symptoms of menopause. A systematic review of the evidence has found little proof that any of them work.
Three of four trials of the herb black cohosh, a common alternative treatment for menopausal symptoms, showed no improvement, but the studies suffered from poor methodology. The fourth, judged “fair” by the researchers, enrolled 304 women, half of whom took black cohosh and the other half a placebo for 12 weeks. Compared with placebo, there was greater improvement in the treatment group as measured by the participants’ own reports. Dr. Anne Nedrow, the lead author of the review, said the study “did show some benefits, but we had to balance it with studies that showed none.”
None of six trials of traditional Chinese medicinal herbs, three using a combination of medicines, showed a significant benefit over controls for menopausal symptoms.
Studies of biological therapies like kava, primrose oil, guar gum, wild yam cream and red clover showed little or no difference in symptoms between those who used the substances and those given a placebo.
Most of the trials lacked consistent or clear reporting of adverse effects, although one five-year follow-up study of soy indicated that it increased the risk for endometrial hyperplasia, a usually benign thickening of the lining of the uterus that can cause abnormal bleeding. Liver toxicity has been reported with both black cohosh and kava.
Black cohosh (known as both Actaea racemosa and Cimicifuga racemosa ), a member of the buttercup family, is a perennial plant that is native to North America. Other common names include black snakeroot, bugbane, bugwort, rattleroot, rattletop, rattleweed, and macrotys. Insects avoid it, which accounts for some of these common names.
The treatment has been used for many years in Europe, and in 2002 women in the USA started using it after a much publicized study fund that hormone replacement therapy using drugs such as Prempro raised a risk of heart attack, stroke, and breast cancer.
Symptoms of liver problems include pain on the right side of the stomach just below the ribs, unexplained nausea, flu-like symptoms, dark urine, and yellowing of eyes or skin.
And this from the NYT:
Almost half of American women seek alternative or complementary treatments for the unpleasant symptoms of menopause. A systematic review of the evidence has found little proof that any of them work.
Three of four trials of the herb black cohosh, a common alternative treatment for menopausal symptoms, showed no improvement, but the studies suffered from poor methodology. The fourth, judged “fair” by the researchers, enrolled 304 women, half of whom took black cohosh and the other half a placebo for 12 weeks. Compared with placebo, there was greater improvement in the treatment group as measured by the participants’ own reports. Dr. Anne Nedrow, the lead author of the review, said the study “did show some benefits, but we had to balance it with studies that showed none.”
None of six trials of traditional Chinese medicinal herbs, three using a combination of medicines, showed a significant benefit over controls for menopausal symptoms.
Studies of biological therapies like kava, primrose oil, guar gum, wild yam cream and red clover showed little or no difference in symptoms between those who used the substances and those given a placebo.
Most of the trials lacked consistent or clear reporting of adverse effects, although one five-year follow-up study of soy indicated that it increased the risk for endometrial hyperplasia, a usually benign thickening of the lining of the uterus that can cause abnormal bleeding. Liver toxicity has been reported with both black cohosh and kava.
Monday, July 24, 2006
Gleevec (Cancer Med): May Lead To Heart Failure
While effectively treating cancer, Gleevec can lead to heart failure in some patients, said Dr. Thomas Force, who teaches medicine at Jefferson Medical College of Thomas Jefferson University in Philadelphia.
The study can be found in the journal Nature Medicine. The study was prompted by reports that ten patients taking Gleevec for chronic myelogenous leukemia developed severe congestive heart failure.
Gleevec (also sold under the name Glivec)had sales of $1.2 billion in the first six months of this year.
The study can be found in the journal Nature Medicine. The study was prompted by reports that ten patients taking Gleevec for chronic myelogenous leukemia developed severe congestive heart failure.
Gleevec (also sold under the name Glivec)had sales of $1.2 billion in the first six months of this year.
Psychiatrist Arrested for Promoting Off Label Drug Use
Dr. Peter Gleason spoke at hundreds of seminars, and was paid very well, when he told physicians that a drug prescribed for narcolepsy - Xyrem - could be prescribed for depression and pain relief. In doing so, New York Prosecutors said conspired with the drug’s manufacturer to suggest it for potentially dangerous uses.
Dr. Gleason now admits that he received more than $100,000 in 2005 from Jazz Pharmaceuticals, which makes Xyrem.
You can read more about this story here.
Dr. Gleason now admits that he received more than $100,000 in 2005 from Jazz Pharmaceuticals, which makes Xyrem.
You can read more about this story here.
Thursday, July 20, 2006
Ketek (Antibiotic): More Bad News
Dr. David Graham, the FDA's chief whistleblower on unsafe drugs, concluded in an email last month that Ketek - made by a French drug company - should be withdrawn.
A message dated June 16, 2006 was a mistake. He wrote that it’s as if every principle governing the review and approval of new drugs was abandoned or suspended where telithromycin is concerned. He added: We don’t really know if the drug works; no one is claiming it works better than other, safer drugs; and we’re flying blind as far as safety goes, except for our own A.D.R. data that suggests telithromycin is uniquely more toxic than most other drugs.”
In addition to liver problems, Ketek may cause blurred vision and loss of consciousness.
You can read more by going here.
A message dated June 16, 2006 was a mistake. He wrote that it’s as if every principle governing the review and approval of new drugs was abandoned or suspended where telithromycin is concerned. He added: We don’t really know if the drug works; no one is claiming it works better than other, safer drugs; and we’re flying blind as far as safety goes, except for our own A.D.R. data that suggests telithromycin is uniquely more toxic than most other drugs.”
In addition to liver problems, Ketek may cause blurred vision and loss of consciousness.
You can read more by going here.
Wyoming Trial Lawyers: New Blog and Broadcast Page
The WTLA has paired up with my friends at The Legal Broadcast Network to creat a website titled, "Broadcast and blog page of The Wyoming Trial Lawyers Association."
The site says: We are now proud to unveil the creation and first efforts of the WTLA Channel, the first state trial lawyers association channel to be featured on The Legal Broadcast Network as well as one of the first trial lawyer association in the nation to provide podcasts, blogging and audio content at no cost to it's members for the general public.
All of the content, both print, audio and video, will be created and provided by The Wyoming Trial Lawyers Association.
You can find it by going here. Mark Wahlstrom tells me there are high hopes for this endeavor, and you can see that the page will include:
The WTLA Coffeehouse Podcasts: Bi-weekly audio podcasts with Executive Director Marcia Shanor and Association President Attorney Richard Jamison. Other experts and members of WTLA will be frequent guests on this 15 minute call in podcast.
It's an idea that has been discussed for several months, and now you can see the fruit of their labors. I encourage any trial attorney (or Association for Justice Attorney) to contact Mark Wahlstrom if there is interest for your state's Association.
The site says: We are now proud to unveil the creation and first efforts of the WTLA Channel, the first state trial lawyers association channel to be featured on The Legal Broadcast Network as well as one of the first trial lawyer association in the nation to provide podcasts, blogging and audio content at no cost to it's members for the general public.
All of the content, both print, audio and video, will be created and provided by The Wyoming Trial Lawyers Association.
You can find it by going here. Mark Wahlstrom tells me there are high hopes for this endeavor, and you can see that the page will include:
The WTLA Coffeehouse Podcasts: Bi-weekly audio podcasts with Executive Director Marcia Shanor and Association President Attorney Richard Jamison. Other experts and members of WTLA will be frequent guests on this 15 minute call in podcast.
It's an idea that has been discussed for several months, and now you can see the fruit of their labors. I encourage any trial attorney (or Association for Justice Attorney) to contact Mark Wahlstrom if there is interest for your state's Association.
Tuesday, July 18, 2006
Mirapex (Parkinson's Drug): Caused a Gambling Addiction?
From www.courant.com:
Mirapex lawsuit: A man claims that a drug he was prescribed to combat Parkinson's disease caused him to compulsively gamble away $200,000 of his retirement money, according to a lawsuit filed Thursday in Superior Court against the drug's manufacturer and marketers.
Mirapex has been linked to obsessive compulsive behavior in patients. The drug, manufactured by Boehringer Ingelheim Pharmaceuticals, imitates the effect of dopamine.
The prescribing information for Mirapex was updated in fall 2004 to inform patients and doctors of the link between Mirapex and compulsive behavior, including obsessive gambling.
Mirapex lawsuit: A man claims that a drug he was prescribed to combat Parkinson's disease caused him to compulsively gamble away $200,000 of his retirement money, according to a lawsuit filed Thursday in Superior Court against the drug's manufacturer and marketers.
Mirapex has been linked to obsessive compulsive behavior in patients. The drug, manufactured by Boehringer Ingelheim Pharmaceuticals, imitates the effect of dopamine.
The prescribing information for Mirapex was updated in fall 2004 to inform patients and doctors of the link between Mirapex and compulsive behavior, including obsessive gambling.
Drug Trials With a Dose of Doubt
That's the headline from a recent L.A. Go here for the full article. The scope of the article - how a doctor whose government job at the National Institutes of Health was paid by Merck for consulting on drug approvals, and the conflict of interest such work poses.
The article discusses what happens before a drug's approval, in this case, Cancidas. Doctors prescribe it for patients whose immune systems had been ravaged by chemotherapy and who were presumed to have a potentially deadly, invasive fungal infection. In its first five years on the U.S. market, Cancidas was an $859 million drug for Merck.
How can the FDA effectively analyze drug trial results when government doctors may be on Pharma's dole?
The article discusses what happens before a drug's approval, in this case, Cancidas. Doctors prescribe it for patients whose immune systems had been ravaged by chemotherapy and who were presumed to have a potentially deadly, invasive fungal infection. In its first five years on the U.S. market, Cancidas was an $859 million drug for Merck.
How can the FDA effectively analyze drug trial results when government doctors may be on Pharma's dole?
Monday, July 17, 2006
Back from the Beach
A couple of enjoyable weeks at the beach ended today. We spend time at an area of Old Florida known as Seagrove Beach. It's a time to recharge, relax and read.
As I reach my 40's I look back and chuckle when I think about two senior partners in particular who "never" took vacations. It never made sense to me. Are you one of those people? Do you work for one? Thankfully I am at a time in my life where my partners either take more time off than me, or if they take less they don't make an issue of it.
I grew up on the beach in South Florida. Summer meant riding my bike the ten minutes to the Atlantic each day rain or shine. Surfing, fishing, shrimping, crabbing. Running on hardpack sand or flying a stuntkite. I miss those things, and little things like pointing out to a tourist that what they see on the beach is a Portuguese Man-O-War. Now I am the tourist.
Now - practicing in the Atlanta area - it's a five hour commute by car. Ugh.
After two weeks there, I always leave with the same idea: I am going to figure out how to move down here to work.
Do you take a vacation? Where is your place?
As I reach my 40's I look back and chuckle when I think about two senior partners in particular who "never" took vacations. It never made sense to me. Are you one of those people? Do you work for one? Thankfully I am at a time in my life where my partners either take more time off than me, or if they take less they don't make an issue of it.
I grew up on the beach in South Florida. Summer meant riding my bike the ten minutes to the Atlantic each day rain or shine. Surfing, fishing, shrimping, crabbing. Running on hardpack sand or flying a stuntkite. I miss those things, and little things like pointing out to a tourist that what they see on the beach is a Portuguese Man-O-War. Now I am the tourist.
Now - practicing in the Atlanta area - it's a five hour commute by car. Ugh.
After two weeks there, I always leave with the same idea: I am going to figure out how to move down here to work.
Do you take a vacation? Where is your place?
Thursday, July 13, 2006
Law Dawgs
Yes you read that right. Take a look at this site, attorney/blog dog lovers:
http://lawdawglib.blogspot.com/
I turned in my kids (see right) ... maybe I get some attention.
http://lawdawglib.blogspot.com/
I turned in my kids (see right) ... maybe I get some attention.
Tort Deform Article
An article from a trial lawyer, great stuff and worth a read, pulled verbatim from
http://www.corpreform.com/2006/07/trial_article.html
Trial lawyers are always telling stories about victims. They tell stories of grieving parents forced to stand over the graves of children who were killed by defective products. They tell stories of once-strong men and women who can no longer support their families because of on-the-job accidents. They even tell the stories of infants whose futures were stolen during their birth by negligent doctors. But for all their story-telling, they’ve forgotten an entirely different group of victims: the victims of our justice system.
Men like Maurice “Hank” Greenberg, the former chairman of AIG. It took Hank nearly thirty years to build a multibillion-dollar fortune. Throughout those years, Hank was constantly being victimized. He was victimized by a civil justice system that forced his company to pay for the medical bills of individuals injured by his insured. As if that wasn’t enough, he was most recently victimized by Eliot Spitzer, the New York Attorney General who has alleged that Hank made his billions through illegal business practices. Thanks to Mr. Spitzer, Hank was kicked out of the company he built, and he was even forced to transfer over $1 billion in assets into his wife’s name. Is it any wonder that Hank accused trial lawyers of being “terrorists” that must be stopped at any cost?
Or Bernie Marcus, the self-made billionaire who founded Home Depot. In 2004, he wrote an op-ed in which he accused trial lawyers of slowing the economy and scaring people away from helping charities. That same year, Home Depot boasted of “record profits” of over $1.5 billion dollars, and the next year, Mr. Marcus personally gave over $200 million dollars to various charities. It’s easy to see how trial lawyers hurt Home Depot and Bernie Marcus.
And let us not forget courageous Texas Attorney General Greg Abbott, who was confined to a wheelchair after a tree fell on him while he was jogging. Despite his horrific injuries, Mr. Abbott rode his wheelchair to victory in his campaign for Attorney General against a well-funded candidate whom he described as a “liberal plaintiff personal injury trial lawyer who’s made millions suing doctors, hospitals, businessmen and women.” It shocks the conscience that during Mr. Abbott’s campaign, the scoundrels of the Texas Trial Lawyers Association made scurrilous accusations about Mr. Abbott’s character, and even accused him of being a hypocrite! What supposed act of hypocrisy did he commit? Merely advocating a $250,000.00 cap on noneconomic damages shortly after receiving millions of dollars in noneconomic damages from his accident. Thank goodness Mr. Abbott has been able to fight for the rights of Texas citizens in spite of the best efforts of trial lawyers.
Wait a minute! Greenberg, Marcus, and Abbott aren’t victims of the justice system! They’re rich, powerful, and (until recently in Greenberg’s case) admired men who have benefited from America’s robust justice system. Their wealth and station in life leaves them wanting for little. So how have they managed to persuade the American public that they deserve to be helped, and that average citizens who were injured through no fault of their own deserve to be scorned? By tugging at purse strings and not heartstrings.
While trial lawyers valiantly crusade against so-called tort reform because it will endanger the public, tort reformers promise that tort reform will enrich the public. Call it greed, call it selfishness, or call it self-interest, but most Americans today care more about protecting their pocketbooks than protecting society. Plus, let’s be realistic – the average American doesn’t believe that trial lawyers really care about safety, society, or their clients. Thanks to a multiple-decade onslaught of propaganda, most Americans believe trial lawyers have a “Show me the money!” mentality that would embarrass even Donald Trump, who recently filed a lawsuit asking for $2.5 billion in punitive damages against the author and publisher of a book that questioned whether Trump is really a billionaire.
The way to beat the tort reformers in winning the hearts and minds of the American public is to beat them at their own game – make economic arguments in favor of preserving the justice system. This tactic is effective for two reasons. First, our culture is far more individualistic than collectivist; we’re raised to look out for ourselves, not for others. Arguments about preserving the legal system to protect the public often fall on deaf ears because Americans neither see themselves as victims, nor tend to be overly concerned with victims. (Until they or someone they care about becomes a victim, in which case they feel they’re entitled to unlimited punitive damages.) Second, public safety arguments at least in part ask people to believe something they don’t want to believe: That big corporations knowingly develop and market dangerously defective products. No one wants to believe that corporate America is full of psychopaths who will let consumers die just to make a buck. It’s exceedingly difficult to get people to believe something they don’t want to, even if the facts are on your side. One example of this is that depending upon which survey you believe, between 10% and 25% of Americans believe we really did find weapons of mass destruction in Iraq.
While Americans generally feel invincible and unlikely to be the victim of an accident or a defective product, there is one thing they are afraid of: Being ripped off. From shady car dealers to price-gouging oil companies, most Americans feel that someone or something lurks around every corner just waiting to steal their money. So appeal to that fear by revealing what tort reform really is – an enormous scam that will increase the cost of health insurance, reduce access to medical care, and may have to be paid for by tax increases or cuts in entitlement benefits. How best to persuade the public of this?
By destroying the most duplicitous argument tort reformers offer – that tort reform won’t prevent the truly injured from receiving compensation for their injuries, and that it won’t in any way place limits upon economic damages. To sell that lie, tort reformers use words like “fair,” “just,” “reasonable,” and “common-sense.” Trial lawyers know that most, if not all members of the American Tort Reform Association would like nothing more than to make sure their corporate masters never have to pay a dime to an injured consumer ever again, a result that is hardly “fair” or “just.” The “Holy Grail” of the ATRA and its many members is national legislation that bars product liability lawsuits over any product approved by a Federal regulatory agency such as the National Highway Traffic Safety administration or the Food and Drug Administration.
A strong proponent of this exemption is Daimler Chrysler Associate General Counsel Steven Hantler, a failed personal injury lawyer who retreated to the steady paychecks of corporate America when he found himself unable to succeed in the pay-for-performance world of personal injury litigation. If Hantler’s name sounds familiar to you it might be because under his direction, Chrysler spent over $250,000.00 to defend an $8,700 case… and then claimed that its Constitutional right to due process was violated because it had to pay almost $150,000.00 in attorney’s fees to the prevailing party. (I suppose the “loser pays” rule is only fair if you’re the winner, right Steve?) Hantler has also been known to sue plaintiffs’ attorneys for a myriad of reasons, including fraud. As Hantler says, “We want to make plaintiffs lawyers think twice before bringing a meritless case against us.”
In Hantler’s view, any product liability case is meritless if the product in question was approved by a Federal regulatory agency. Since all of Daimler Chrysler’s products are approved by the NHTSA, the legislation Hantler fights for would insure his company is never again sued for manufacturing a defective automobile. Hantler and others who support such legislation hope to persuade the public that king’s-ransom salaries “earned” by corporate executives aren’t passed on to consumers in the form of higher prices, but that the costs of the tort system are. While they rarely say it directly, tort reformers strongly imply that passing tort reform will save the public money.
Their economic argument can be easily refuted by a very basic economic principle: “There’s no such thing as a free lunch.” That well-worn maxim dictates that all costs are paid for by someone. A relevant example is what’s happening today in the State of Michigan. Prior to leaving office, former Governor John Engler signed a bill that prevents injured Michigan citizens from suing pharmaceutical companies over injuries caused by any drug that was approved by the FDA. That means that the thousands of Michigan citizens injured or killed by Vioxx, Zyprexa, or any other FDA-approved drug can’t even sue to recover their medical bills. (So much for the “we don’t want to cap economic damages” lie the tort reformers espouse.)
While Engler made the rights of injured consumers disappear, neither he nor anyone else can make the costs incurred by injured consumers disappear. So who pays for those costs, if not the manufacturers who caused them? If the injured consumer has medical insurance, his or her insurer pays those costs… and without the right of subrogation, insurers are forced to raise health insurance premiums to make up the difference. If the injured party doesn’t have insurance and can’t afford to pay the bills, then the doctors and hospitals that treated the person have to eat the cost… which forces them to raise their prices to make up the difference. And if the injured consumer is on Medicaid, Michigan taxpayers pay those costs. Engler’s legislation has been so deleterious to the health of Michigan’s economy that several staunchly conservative Republican state legislators are breaking rank and joining with Democratic legislators to try and repeal this probably-unconstitutional law.
Just like the losses from shoplifting forces retailers to raise prices, exempting government-approved products from product liability lawsuits forces health insurers and health care providers to raise their prices. Worse still, such an exemption will place an additional burden upon public assistance programs such as the already-overburdened Medicaid and Medicare which will in turn force our legislators to either raise taxes, reduce services… or both.
If Hantler and his cronies in the ATRA have their way, corporate executives in every federally-regulated industry will receive a “free” steak-and-martini lunch to be paid for by every taxpayer in America. As if it isn’t bad enough that the pharmaceutical industry and the manufacturing industry (the National Association of Manufacturers is now run by John Engler.) is pushing for this legislation, the great-granddaddy of all special interest groups will soon join them: Big tobacco.
Altria, the parent company of Philip Morris desperately wants cigarettes to be regulated by the Food and Drug Administration. In their own words, “Altria and Philip Morris USA (PM USA) strongly support the passage of legislation that would give the U.S. Food and Drug Administration (FDA) meaningful and effective authority to regulate tobacco products.” While the merits of such legislation are debatable, one thing isn’t. If that legislation passes, the tobacco industry will spend whatever it takes to pass the government-approved product exemption lobbied for by the ATRA. Together, those two pieces of legislation will insure that the tobacco industry will never have to defend another product-liability lawsuit, and will never be forced to reimburse taxpayers for the billions of dollars in medical bills caused by their products. Clearly, something must be done to prevent the charlatans behind the tort reform movement from passing national legislation.
Thanks to the cheats, liars, and crooks at companies like Enron, Worldcom, and Arthur Andersen, Americans are even more distrustful than ever of big business and corporate executives. Capitalize on that distrust by attacking the cheats, liars, and crooks who tell Americans that tort reform is good for them. When some corporate sock puppet like Sherman Joyce of the American Tort Reform Association claims that lawsuits are slowing the economy, point out that last year, the 500 CEO’s of the Fortune 500 took home over $5.1 billion dollars, up over 30% from 2004. If the economy was really being hurt by lawsuits, corporations couldn’t afford such a generous pay raise to their CEO’s, could they?
Or when a politician in the pocket of the insurance industry accuses trial lawyers of creating a poor business climate in your state, respond by accusing him or her of irresponsible fear mongering that scares off new businesses and discourages existing businesses from expanding. Then go so far as to accuse those politicians of using trial lawyers as an easy target, rather than tackling the real problems facing businesses in your state, like an unfair tax climate, or oppressive insurance rates, or any other issue your state’s Chamber of Commerce is concerned about. Think of how much fun it will be forcing the Chamber of Commerce to decide how to deal with pro-business trial lawyers.
And the next time some schmuck brings up Stella Liebeck and the McDonald’s coffee case, ask why a $2 million dollar lawsuit over third-degree burns to a woman’s genitals is frivolous, but a $5 billion lawsuit over Donald Trump’s ego isn’t. When he or she agrees with you that Trump’s suit is the epitome of a frivolous lawsuit, go on to explain that tort reform won’t prevent him from collecting $2.5 billion in punitive damages because tort reform never focuses on capping damages in financial injury cases, which are generally filed by the rich and the powerful. Instead, tort reform only applies to personal injury cases, which are generally filed against the rich and the powerful. By using clear and concise economic arguments, we can convince the public that if tort reform is anything, it’s a series of un-American changes to tort law to protect the rich and punish the poor.
People often ask me why I spend my time and money running Corpreform.com when I’m neither a lawyer nor on the payroll of a lawyer. I tell them it’s because the thing I hate the most in the world is hypocrisy, and no special interest group has more hypocrites in it than the American Tort Reform Association. I truly believe that the only way to expose these hypocrites and win this war for our justice system is to ruthlessly and relentlessly attack them on every issue and in every forum. The brave men and women who fight for consumer rights have no choice if they want to take our court system back – you don’t win wars by defending.
http://www.corpreform.com/2006/07/trial_article.html
Trial lawyers are always telling stories about victims. They tell stories of grieving parents forced to stand over the graves of children who were killed by defective products. They tell stories of once-strong men and women who can no longer support their families because of on-the-job accidents. They even tell the stories of infants whose futures were stolen during their birth by negligent doctors. But for all their story-telling, they’ve forgotten an entirely different group of victims: the victims of our justice system.
Men like Maurice “Hank” Greenberg, the former chairman of AIG. It took Hank nearly thirty years to build a multibillion-dollar fortune. Throughout those years, Hank was constantly being victimized. He was victimized by a civil justice system that forced his company to pay for the medical bills of individuals injured by his insured. As if that wasn’t enough, he was most recently victimized by Eliot Spitzer, the New York Attorney General who has alleged that Hank made his billions through illegal business practices. Thanks to Mr. Spitzer, Hank was kicked out of the company he built, and he was even forced to transfer over $1 billion in assets into his wife’s name. Is it any wonder that Hank accused trial lawyers of being “terrorists” that must be stopped at any cost?
Or Bernie Marcus, the self-made billionaire who founded Home Depot. In 2004, he wrote an op-ed in which he accused trial lawyers of slowing the economy and scaring people away from helping charities. That same year, Home Depot boasted of “record profits” of over $1.5 billion dollars, and the next year, Mr. Marcus personally gave over $200 million dollars to various charities. It’s easy to see how trial lawyers hurt Home Depot and Bernie Marcus.
And let us not forget courageous Texas Attorney General Greg Abbott, who was confined to a wheelchair after a tree fell on him while he was jogging. Despite his horrific injuries, Mr. Abbott rode his wheelchair to victory in his campaign for Attorney General against a well-funded candidate whom he described as a “liberal plaintiff personal injury trial lawyer who’s made millions suing doctors, hospitals, businessmen and women.” It shocks the conscience that during Mr. Abbott’s campaign, the scoundrels of the Texas Trial Lawyers Association made scurrilous accusations about Mr. Abbott’s character, and even accused him of being a hypocrite! What supposed act of hypocrisy did he commit? Merely advocating a $250,000.00 cap on noneconomic damages shortly after receiving millions of dollars in noneconomic damages from his accident. Thank goodness Mr. Abbott has been able to fight for the rights of Texas citizens in spite of the best efforts of trial lawyers.
Wait a minute! Greenberg, Marcus, and Abbott aren’t victims of the justice system! They’re rich, powerful, and (until recently in Greenberg’s case) admired men who have benefited from America’s robust justice system. Their wealth and station in life leaves them wanting for little. So how have they managed to persuade the American public that they deserve to be helped, and that average citizens who were injured through no fault of their own deserve to be scorned? By tugging at purse strings and not heartstrings.
While trial lawyers valiantly crusade against so-called tort reform because it will endanger the public, tort reformers promise that tort reform will enrich the public. Call it greed, call it selfishness, or call it self-interest, but most Americans today care more about protecting their pocketbooks than protecting society. Plus, let’s be realistic – the average American doesn’t believe that trial lawyers really care about safety, society, or their clients. Thanks to a multiple-decade onslaught of propaganda, most Americans believe trial lawyers have a “Show me the money!” mentality that would embarrass even Donald Trump, who recently filed a lawsuit asking for $2.5 billion in punitive damages against the author and publisher of a book that questioned whether Trump is really a billionaire.
The way to beat the tort reformers in winning the hearts and minds of the American public is to beat them at their own game – make economic arguments in favor of preserving the justice system. This tactic is effective for two reasons. First, our culture is far more individualistic than collectivist; we’re raised to look out for ourselves, not for others. Arguments about preserving the legal system to protect the public often fall on deaf ears because Americans neither see themselves as victims, nor tend to be overly concerned with victims. (Until they or someone they care about becomes a victim, in which case they feel they’re entitled to unlimited punitive damages.) Second, public safety arguments at least in part ask people to believe something they don’t want to believe: That big corporations knowingly develop and market dangerously defective products. No one wants to believe that corporate America is full of psychopaths who will let consumers die just to make a buck. It’s exceedingly difficult to get people to believe something they don’t want to, even if the facts are on your side. One example of this is that depending upon which survey you believe, between 10% and 25% of Americans believe we really did find weapons of mass destruction in Iraq.
While Americans generally feel invincible and unlikely to be the victim of an accident or a defective product, there is one thing they are afraid of: Being ripped off. From shady car dealers to price-gouging oil companies, most Americans feel that someone or something lurks around every corner just waiting to steal their money. So appeal to that fear by revealing what tort reform really is – an enormous scam that will increase the cost of health insurance, reduce access to medical care, and may have to be paid for by tax increases or cuts in entitlement benefits. How best to persuade the public of this?
By destroying the most duplicitous argument tort reformers offer – that tort reform won’t prevent the truly injured from receiving compensation for their injuries, and that it won’t in any way place limits upon economic damages. To sell that lie, tort reformers use words like “fair,” “just,” “reasonable,” and “common-sense.” Trial lawyers know that most, if not all members of the American Tort Reform Association would like nothing more than to make sure their corporate masters never have to pay a dime to an injured consumer ever again, a result that is hardly “fair” or “just.” The “Holy Grail” of the ATRA and its many members is national legislation that bars product liability lawsuits over any product approved by a Federal regulatory agency such as the National Highway Traffic Safety administration or the Food and Drug Administration.
A strong proponent of this exemption is Daimler Chrysler Associate General Counsel Steven Hantler, a failed personal injury lawyer who retreated to the steady paychecks of corporate America when he found himself unable to succeed in the pay-for-performance world of personal injury litigation. If Hantler’s name sounds familiar to you it might be because under his direction, Chrysler spent over $250,000.00 to defend an $8,700 case… and then claimed that its Constitutional right to due process was violated because it had to pay almost $150,000.00 in attorney’s fees to the prevailing party. (I suppose the “loser pays” rule is only fair if you’re the winner, right Steve?) Hantler has also been known to sue plaintiffs’ attorneys for a myriad of reasons, including fraud. As Hantler says, “We want to make plaintiffs lawyers think twice before bringing a meritless case against us.”
In Hantler’s view, any product liability case is meritless if the product in question was approved by a Federal regulatory agency. Since all of Daimler Chrysler’s products are approved by the NHTSA, the legislation Hantler fights for would insure his company is never again sued for manufacturing a defective automobile. Hantler and others who support such legislation hope to persuade the public that king’s-ransom salaries “earned” by corporate executives aren’t passed on to consumers in the form of higher prices, but that the costs of the tort system are. While they rarely say it directly, tort reformers strongly imply that passing tort reform will save the public money.
Their economic argument can be easily refuted by a very basic economic principle: “There’s no such thing as a free lunch.” That well-worn maxim dictates that all costs are paid for by someone. A relevant example is what’s happening today in the State of Michigan. Prior to leaving office, former Governor John Engler signed a bill that prevents injured Michigan citizens from suing pharmaceutical companies over injuries caused by any drug that was approved by the FDA. That means that the thousands of Michigan citizens injured or killed by Vioxx, Zyprexa, or any other FDA-approved drug can’t even sue to recover their medical bills. (So much for the “we don’t want to cap economic damages” lie the tort reformers espouse.)
While Engler made the rights of injured consumers disappear, neither he nor anyone else can make the costs incurred by injured consumers disappear. So who pays for those costs, if not the manufacturers who caused them? If the injured consumer has medical insurance, his or her insurer pays those costs… and without the right of subrogation, insurers are forced to raise health insurance premiums to make up the difference. If the injured party doesn’t have insurance and can’t afford to pay the bills, then the doctors and hospitals that treated the person have to eat the cost… which forces them to raise their prices to make up the difference. And if the injured consumer is on Medicaid, Michigan taxpayers pay those costs. Engler’s legislation has been so deleterious to the health of Michigan’s economy that several staunchly conservative Republican state legislators are breaking rank and joining with Democratic legislators to try and repeal this probably-unconstitutional law.
Just like the losses from shoplifting forces retailers to raise prices, exempting government-approved products from product liability lawsuits forces health insurers and health care providers to raise their prices. Worse still, such an exemption will place an additional burden upon public assistance programs such as the already-overburdened Medicaid and Medicare which will in turn force our legislators to either raise taxes, reduce services… or both.
If Hantler and his cronies in the ATRA have their way, corporate executives in every federally-regulated industry will receive a “free” steak-and-martini lunch to be paid for by every taxpayer in America. As if it isn’t bad enough that the pharmaceutical industry and the manufacturing industry (the National Association of Manufacturers is now run by John Engler.) is pushing for this legislation, the great-granddaddy of all special interest groups will soon join them: Big tobacco.
Altria, the parent company of Philip Morris desperately wants cigarettes to be regulated by the Food and Drug Administration. In their own words, “Altria and Philip Morris USA (PM USA) strongly support the passage of legislation that would give the U.S. Food and Drug Administration (FDA) meaningful and effective authority to regulate tobacco products.” While the merits of such legislation are debatable, one thing isn’t. If that legislation passes, the tobacco industry will spend whatever it takes to pass the government-approved product exemption lobbied for by the ATRA. Together, those two pieces of legislation will insure that the tobacco industry will never have to defend another product-liability lawsuit, and will never be forced to reimburse taxpayers for the billions of dollars in medical bills caused by their products. Clearly, something must be done to prevent the charlatans behind the tort reform movement from passing national legislation.
Thanks to the cheats, liars, and crooks at companies like Enron, Worldcom, and Arthur Andersen, Americans are even more distrustful than ever of big business and corporate executives. Capitalize on that distrust by attacking the cheats, liars, and crooks who tell Americans that tort reform is good for them. When some corporate sock puppet like Sherman Joyce of the American Tort Reform Association claims that lawsuits are slowing the economy, point out that last year, the 500 CEO’s of the Fortune 500 took home over $5.1 billion dollars, up over 30% from 2004. If the economy was really being hurt by lawsuits, corporations couldn’t afford such a generous pay raise to their CEO’s, could they?
Or when a politician in the pocket of the insurance industry accuses trial lawyers of creating a poor business climate in your state, respond by accusing him or her of irresponsible fear mongering that scares off new businesses and discourages existing businesses from expanding. Then go so far as to accuse those politicians of using trial lawyers as an easy target, rather than tackling the real problems facing businesses in your state, like an unfair tax climate, or oppressive insurance rates, or any other issue your state’s Chamber of Commerce is concerned about. Think of how much fun it will be forcing the Chamber of Commerce to decide how to deal with pro-business trial lawyers.
And the next time some schmuck brings up Stella Liebeck and the McDonald’s coffee case, ask why a $2 million dollar lawsuit over third-degree burns to a woman’s genitals is frivolous, but a $5 billion lawsuit over Donald Trump’s ego isn’t. When he or she agrees with you that Trump’s suit is the epitome of a frivolous lawsuit, go on to explain that tort reform won’t prevent him from collecting $2.5 billion in punitive damages because tort reform never focuses on capping damages in financial injury cases, which are generally filed by the rich and the powerful. Instead, tort reform only applies to personal injury cases, which are generally filed against the rich and the powerful. By using clear and concise economic arguments, we can convince the public that if tort reform is anything, it’s a series of un-American changes to tort law to protect the rich and punish the poor.
People often ask me why I spend my time and money running Corpreform.com when I’m neither a lawyer nor on the payroll of a lawyer. I tell them it’s because the thing I hate the most in the world is hypocrisy, and no special interest group has more hypocrites in it than the American Tort Reform Association. I truly believe that the only way to expose these hypocrites and win this war for our justice system is to ruthlessly and relentlessly attack them on every issue and in every forum. The brave men and women who fight for consumer rights have no choice if they want to take our court system back – you don’t win wars by defending.
Monday, July 10, 2006
Motion in Limine Subject - Hiring of Counsel by Plaintiff
I advertise to generate cases as part of my law practice. Because of that I and my client are faced with questions throughout the process regarding advertising - my client is usually asked about the method and manner of my hire, treating doctors may get a question or two, the spouse may be asked questions as well. Of course, those questions never work both ways, mind you.
In nearly every single Plaintiff's deposition I attend, an attorney for a defendant will ask questions that refer to the timing of the hiring of counsel (me) by the deponent/plaintff. Why is this done you ask? Who knows? To intimidate, to see my reaction, to try to create a theme that guys like me add to the so-called "litigation crisis."
While I will object to this line of questioning and go so far as to instruct the Plaintiff not to answer, I have started filing a subject specific Motion in Limine early in a case. Taking early action seems to be helping. In the last dozen depositions no questions on that subject were asked if I first filed a MIL. Here is the content of it:
Motion in Limine: Hiring of Counsel by Plaintiff
[I have a multi-part M.I.L., and have just added this paragraph to it, or use alone]:
# __ . That defense counsel be prohibited from asking any questions relating to when, how or why Plaintiff hired counsel, and that Defendant or any witness interrogated by Defendant's counsel not insinuate, interrogate, testify or argue pertaining to any matter related to the time or circumstances under which the Plaintiff employed attorneys in this case. See Carlye v Lai, 783 S.W 2d 925, 929 (Mo.App 1989), which held:
Accessing the legal system is normally not to be discouraged
and exercising one's right to utilize the legal system within the
rules and procedures should normally not be used to attempt to
discredit a litigant with the jury. The right to seek the advice of
counsel risks reversal when attempting to discredit a litigant
cross-examining him about the time and circumstances of his
having consulted an attorney to discuss his legal rights.
See also, Travis vs. Vandergriff, 384 S.W.2d 936, 938 (Tex. App. 1964) and Martinez vs. Williams, 312 S.W.2d 742, 752 (Tex. App. 1958).
Use it as you own, just tell me if it works.
In nearly every single Plaintiff's deposition I attend, an attorney for a defendant will ask questions that refer to the timing of the hiring of counsel (me) by the deponent/plaintff. Why is this done you ask? Who knows? To intimidate, to see my reaction, to try to create a theme that guys like me add to the so-called "litigation crisis."
While I will object to this line of questioning and go so far as to instruct the Plaintiff not to answer, I have started filing a subject specific Motion in Limine early in a case. Taking early action seems to be helping. In the last dozen depositions no questions on that subject were asked if I first filed a MIL. Here is the content of it:
Motion in Limine: Hiring of Counsel by Plaintiff
[I have a multi-part M.I.L., and have just added this paragraph to it, or use alone]:
# __ . That defense counsel be prohibited from asking any questions relating to when, how or why Plaintiff hired counsel, and that Defendant or any witness interrogated by Defendant's counsel not insinuate, interrogate, testify or argue pertaining to any matter related to the time or circumstances under which the Plaintiff employed attorneys in this case. See Carlye v Lai, 783 S.W 2d 925, 929 (Mo.App 1989), which held:
Accessing the legal system is normally not to be discouraged
and exercising one's right to utilize the legal system within the
rules and procedures should normally not be used to attempt to
discredit a litigant with the jury. The right to seek the advice of
counsel risks reversal when attempting to discredit a litigant
cross-examining him about the time and circumstances of his
having consulted an attorney to discuss his legal rights.
See also, Travis vs. Vandergriff, 384 S.W.2d 936, 938 (Tex. App. 1964) and Martinez vs. Williams, 312 S.W.2d 742, 752 (Tex. App. 1958).
Use it as you own, just tell me if it works.
Doherty Trial Wrapping Up in N.J.
Closing arguments in New Jersey's latest Vioxx trial start Tuesday as lawyers on Monday wrangled over jury instructions.
They also discussed the verdict sheet. This will be the first time that the jury will be asked whether Merck failed to warn individual patients that evidence showed its blockbuster painkiller increased risk of heart attacks. In the other Vioxx trials juries instead have ruled on whether Merck failed to warn doctors of the risk.
Judge Carol Higbee made the ruling because Merck ran broadcast and print ads directly targeting patients.
The jury will vote separately on whether Merck failed to warn doctors and whether it failed to warn patients. Jurors will only have to vote yes on one of those questions to be allowed to consider whether Vioxx caused Doherty's heart attack and whether she should be awarded damages.
They also discussed the verdict sheet. This will be the first time that the jury will be asked whether Merck failed to warn individual patients that evidence showed its blockbuster painkiller increased risk of heart attacks. In the other Vioxx trials juries instead have ruled on whether Merck failed to warn doctors of the risk.
Judge Carol Higbee made the ruling because Merck ran broadcast and print ads directly targeting patients.
The jury will vote separately on whether Merck failed to warn doctors and whether it failed to warn patients. Jurors will only have to vote yes on one of those questions to be allowed to consider whether Vioxx caused Doherty's heart attack and whether she should be awarded damages.
Effexor (Antidepressant): Homicidal Ideations?
A Medical Accountability Network's representative discovered a labeling change to Effexor XR from Wyeth in June, 2006 in the FDA's MedWatch newsletter from November. The Madison, N.J.-based drug company did not send letters to doctors or issue warning labels at any time.
In approving Wyeth's application to use Effexor for panic disorder, the FDA wanted homicidal ideation listed as a rare adverse event, defined as something not proven to be linked to the drug. Wyeth never notified doctors or issued warning labels because it found no causal link between its drug and homicidal thoughts, according to a Wyeth official.
In its typical boiler response, Wyeth's mouthpiece added that the drug is safe and effective.
In approving Wyeth's application to use Effexor for panic disorder, the FDA wanted homicidal ideation listed as a rare adverse event, defined as something not proven to be linked to the drug. Wyeth never notified doctors or issued warning labels because it found no causal link between its drug and homicidal thoughts, according to a Wyeth official.
In its typical boiler response, Wyeth's mouthpiece added that the drug is safe and effective.
Duragesic (Pain Patch) Verdict in Texas
There was a Duragesic Plaintiff's verdict in Houston, TX on Friday July 7, 2006. The jury awarded $772,000. The awarded was made to a 16 year old daughter of a woman who died passed away while on a duragesic pain patch.
Punitive damages were not awarded, as Texas tort reform requires the verdict to be unanimous to go on to the punitive phase. Given the facts as I know them, it was a good verdict. The deceased mother weighed over 300 pounds, and causation was hotly contested. Ms. Thompson, 42, died in 2004 while wearing a Duragesic patch to manage pain from injuries after a car accident. Plaintiff's counsel alleged that the deceased had ten time the amount of the therapeutic dose of fentanyl in her body when she died.
Tommy Fibich was counsel for Plaintiff.
Punitive damages were not awarded, as Texas tort reform requires the verdict to be unanimous to go on to the punitive phase. Given the facts as I know them, it was a good verdict. The deceased mother weighed over 300 pounds, and causation was hotly contested. Ms. Thompson, 42, died in 2004 while wearing a Duragesic patch to manage pain from injuries after a car accident. Plaintiff's counsel alleged that the deceased had ten time the amount of the therapeutic dose of fentanyl in her body when she died.
Tommy Fibich was counsel for Plaintiff.
Wednesday, July 05, 2006
Doherty Trial: No Go - NJ Budget Crisis
The NJ civil court system will be shut down beginning today at 8am. The state has declared a budget emergency and all non-essential state services are being shut down. Civil trials are considered non-essential.
The parties were set to do closing statements July 5, 2006. The jurors have all been called and told not to show up. A mistrial may be declared. Most hope things will be back up and running soon or Judge Higbee may have no choice but to declare a mistrial.
Casinos fall under non-essential services since they are regulated by the state and many are hoping the casino lobby will push hard due to the tremendous financial blow they will suffer to get the state to take action and get back to work.
The parties were set to do closing statements July 5, 2006. The jurors have all been called and told not to show up. A mistrial may be declared. Most hope things will be back up and running soon or Judge Higbee may have no choice but to declare a mistrial.
Casinos fall under non-essential services since they are regulated by the state and many are hoping the casino lobby will push hard due to the tremendous financial blow they will suffer to get the state to take action and get back to work.
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