Utah Injury Law Blog

In Sorensen v. Barbuto, (1) the Utah Court of Appeals recently cautioned all physicians to remember that they have a continuing duty of confidentiality to their current and former patients. For many of us, this seems obvious and should not necessitate much discussion, but for one local physician, he had to learn the hard way--being chastised in a published opinion from the Utah Court of Appeals.

It is important to discuss what occurred in this case so as to avoid such conduct. In simple terms, this case is about a physician that violated his former patient's confidences. Although I believe the physician's actions in this case represent extreme conduct, I take this opportunity to summarize the court's admonishment to physicians and direct it also to the attorneys that hire them as experts in litigation.

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1. Sorensen v. Barbuto, 2006 UT App 340, 558 Utah Adv. Rep. 18.
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Read the entire article here.

This article was written by Christopher J. Rogers, Esq., for more information please click here

When recently asked to pen a column on tips for the trial practitioner, I thought about an old experience. When I was starting out as a lawyer, I once asked an older lawyer whom I admired, “Steve, you’ve been around and have seen the best. What’s your secret to how to become a successful plaintiff’s attorney?” The old lawyer replied: “Jeff, go out there and find yourself some really good cases. Any lawyer can get a nice six-figure settlement for a million dollar case.”

This was not the vote of confidence I was looking for at the time. Hopefully, I can offer something a little more useful... or at least something easier to implement.

I’ll start by stating the obvious. The best plaintiff attorneys are able to make cases work that seem unappealing to most people’s first impression. They are somehow able to “spin straw into gold” by looking closely and creatively at a case. But how do you learn these skills? To some extent, they are intuitive, but they can also be learned through the process of carefully round-tabling cases with other experienced lawyers, and through focus groups with non-lawyers.

The jury appeal of some cases can be dramatically increased by carefully developing the proper case themes. To cite one example, there is the case of a 21-year-old woman who suffered a moderately severe frontal lobe brain injury at age 14. The injury did not severely impair Amber’s IQ or her “test taking” skills but it did severely affect the centers of the brain that regulate judgment and inhibition control. Fortunately the brain injury could be seen on an MRI scan. Formerly a strong B+ student in high school without serious behavior issues, after the accident, Amber’s life quickly unraveled. She eventually developed a severe methamphetamine addiction, dropped out of school and, despite her parents’ determined efforts to help her, wound up in prison on a drug conviction. She now has severe mental health problems in addition to her brain injury. Her doctors doubt she will ever be able to support herself with a steady job.

Several lawyers turned down Amber’s case. They told Amber’s parents they could not risk an expensive jury trial for a “drug addict’s” claim in conservative Utah County. However, my office took the case. We know a Utah County jury’s first instinct may be to punish Amber for failing to “control” her drug habit. To overcome this, we will put on expert scientific testimony to explain why the brain damage makes Amber so vulnerable to following the wrong impulses and taking bad risks. Our job will be to help the jury understand why there is such a strong correlation between brain injury and drug and alcohol use.

Continue reading "Tips For Trial Lawyers" »

For as long as any of us have been practicing law, one of the “givens” in our business has been that the job of determining whether an expert’s opinions are credible and should be believed is for the jury, not the judge. In Daubert v. Merrill Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993), the U.S. Supreme Court began chipping away at this notion, holding that in cases involving cutting-edge science, the judge should screen expert testimony and disallow opinions based upon unproven, untested and speculative science.

However, until last month, Daubert was confined in the Tenth Circuit to a narrow strategy of cases. This changed when the Supreme Court decided Kumho Tire Co., v. Carmichael, No. 97-1709 (Mar. 23, 1999). Kumho Tire now gives federal trial judges vast power to regulate and even exclude all expert testimony. There is a good chance that Kumho Tire will eventually become accepted practice in Utah’s courtrooms as well. Therefore, every trial lawyer should closely read this case and understand its import.

…In my view, this case is about power – that is, transferring power from juries to judges. The drafters of our country’s Constitution possessed a deep distrust for authority, especially the authority of judges. The result was the Seventh Amendment to the Constitution, which guarantees the right of the people to a trial by jury, “in any suit, at common law, where the value in controversy shall exceed twenty dollars…” As things developed, we evolved a judicial system in which juries decided which expert’s opinions were right and which were not. In turn, juries have depended upon the abilities of trial lawyers to skillfully cross-examine expert witnesses, thereby separating myth from reality.

Read the entire article here.

This article was written by Jeff Eisenberg, for more information please click here.

During the past ten years, a significant body of case law in Utah has established the rights of plaintiffs’ attorneys to explore during jury voir dire jurors’ attitudes on the subjects of tort reform and the perceived “law suit crisis”. This article, adapted from a presentation to at the Utah Trial Lawyers Conference on Jury Voir Dire, summarizes these cases.

Read the entire article here.

This article was written by Jeff Eisenberg, for more information please click here.