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William C. Altreuter
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Saturday, February 28, 2015

I've been saying this for years. You want tort reform? Devise a more equitable social welfare system. You want medical malpractice reform? Socialize it. Easy-peasy. I suppose another alternative is just to throw accident victims out on the street: no doubt Orin Hatch and his ilk would have no qualms about stepping over legless beggars in the gutter.

Friday, February 27, 2015

You know what would be nice? I'd like it if the US changed its currency to honor persons other than Presidents. Of course, not all of our dough has Presidents on it-- Benjamin Franklin's there, and I'd keep him, so not every rap song would have to be updated. Alexander Hamilton? Yeah, Alex can stay. Salmon P. Chase, on the other hand, seems undeserving of the honor. I'd propose American Nobel Peace Prize winners, but that would mean swapping out Jackson-- the perpetrator of an American genocide-- with Henry Kissinger, and that would be too raw. I don't think I would ever be able to stop vomiting. The goal, of course, would be to represent the best of what the United States has given the world, so, for example, Louis Armstrong on the $5 dollar bill, Ella Fitzgerald on the $10, maybe Martin Luther King, Jr. on the $20. Keep Washington on the single, and Jefferson on the deuce-- I like $2 bills because they make me think about playing the ponies, and unless we are talking about putting, say, Miles Davis on the $2 I see no reason to change. Promote Lincoln to the $50, or maybe put Julia Child on it-- we should have more women on our money, so maybe Abigail "Remember the ladies" Adams would be a better pick, or Clara Barton. (Given my relationship with money, maybe a special Amelia Earhart series would be good.)

Thursday, February 26, 2015

Haruki Murakami is a Red Sox fan? This is disappointing.

Wednesday, February 25, 2015

I am sickened-- but not surprised-- that the mayor of an American city which operates a secret detention center is unashamedly running for reelection. We've normalized torture, and now it is come home and become part of who we are. We reelected a President who was an avowed torturer-- why should a mayor balk at this fundamental violation of what the idea of America is supposed to stand for?

Rudy Guiliani-- a former mayor who, lest we forget, is likewise associated with torture-- has been seen saying aloud that the President is some sort of crypto-foreigner because he is insufficiently enamored of American exceptionalism. It shouldn't have to be said, but I'll say it: Patriotism is an empty value if it is not an emotion brought about by critical self-evaluation, and if that evaluation establishes that the nation under scrutiny is failing to exist pursuant to the values which purportedly distinguish it from others in the community of nations than it falls to us each to do something about it. President Obama is at least intellectually honest about this, I think. His long and continuing association with Rahm Emanuel gives me hesitation, but hesitation is as far as I will go until further information emerges.

Tuesday, February 24, 2015

Bob Dylan cartoons, Part one and Part two. Related, sort of, "Leopard Skin Pillbox Hat" was on the radio when I started the car this morning.

Monday, February 23, 2015

In my experience the admissibility of custom and practice evidence is poorly understood, and I expect that this is because the rule is incoherent-- or at least generally expressed badly.
in Halloran v. Virginia Chemicals,1 a products liability case in which the defense sought to introduce evidence of plaintiff's "usage and practice" to use an immersion coil to heat the water into which the freon (the product) was placed, causing the explosion seriously injuring the plaintiff.
On cross-examination by defense counsel, the plaintiff, an automobile mechanic, denied ever doing this. The defense offered a witness prepared to testify that he not only saw plaintiff using the immersion coil to heat the freon on previous occasions, but also warned plaintiff of the danger as well. Plaintiff's objection to this proposed testimony was sustained by the trial judge relying on the well-settled rule that extrinsic evidence cannot be used to impeach a witness on collateral matters. The Second Department affirmed, and a question of law was certified for review.
The Court of Appeals, in reversing judgment for plaintiff and granting a new trial, held for the first time that habit evidence of carelessness or carefulness may be admissible under limited circumstances to prove the actor was negligent or not negligent on the occasion in question. In this case, if the auto mechanic had habitually or regularly used the immersion coil to heat water into which the refrigerant container was placed, evidence of that habit was admissible with a proper foundation to prove that plaintiff followed such a procedure on the day of the explosion, and that such evidence in this case was not collateral since it would explain the explosion, and therefore, did not violate the rule against using extrinsic evidence solely to impeach credibility on a collateral issue.
The court reasoned:
Evidence of habit or regular usage, if properly defined and therefore circumscribed, involves more than unpatterned occasional conduct, that is, conduct however frequent yet likely to vary from time to time depending upon the surrounding circumstances; it involves a repetitive pattern of conduct and therefore predictable and predictive conduct. On this view, the excluded evidence was offered to show a particular method of executing a task followed by the mechanic, who, on his own testimony, had serviced "hundreds" of air-conditioning units and used "thousands" of cans of the refrigerant. If on remittal the evidence tends to show that the mechanic used an immersion coil a sufficient number of times to warrant a finding of habit, or regular usage, it would be admissible to aid the jury on its inquiry whether he did so on the occasion in question.
If that makes sense to you, I'll give you a doughnut. In the linked to article Alan W. Clark concludes:
[H]abit evidence, a form of circumstantial evidence, may be admissible in limited malpractice cases by proof of custom and practice to prove carelessness or carefulness of an act or occurrence when there is no recollection of the facts. Such evidence may be used to support or deny summary judgment to a party. However, circumstantial evidence is no substitute for medical expert opinion to prove the relevant standard of care and whether good and accepted medical practice was complied with or violated by the defendant(s).
Moreover, courts must consider whether such habit or circumstantial evidence belongs to the creative imagination of the party or attorney and is being used in such a way to unjustifiably excuse an act or omission of carelessness or negligence where the party has no recollection of the events. One can only imagine the unlimited circumstances where meritorious claims or defenses may be defeated by abuse of circumstantial evidence. Otherwise, we may one day be faced with evidence of a party's custom and practice to do the right thing and never be wrong, despite the facts of the case.


Saturday, February 21, 2015

I always thought Sin Eaters were an Irish thing-- it seems very Irish-- but apparently not. Nevertheless, it is a custom that equates rather well with our glamor profession.

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