Vested Interest - Tort Briefs - April 1998 Issue

U.S. Supreme Court Rules Title VII Bans Same-Sex Harassment

A unanimous U.S. Supreme Court has ruled that federal law barring sexual harassment in the workplace extends to situations involving people of the same sex. The case, Oncale v Sundowner Offshore Services (96-568), stems from a worker’s fear of being raped by his male supervisor while working for four months on an oil rig in the Gulf of Mexico. The district and appellate courts rejected his claim, but Justice Scalia’s opinion reinstated it, holding, "We see no justification ... for a categorical rule excluding same-sex harassment claims from the coverage of Title VII." The Court explicitly rejected arguments from business groups that allowing same-sex claims would turn Title VII in to a "general civility code". Later, the Court remanded a sex harassment claim against Belleville, Illinois, to the 7th Circuit Court of Appeals, with instructions to re-examine the claim in light of Oncale. (AP, March 4, 1998; March 9, 1998)

Six Visiting Judges to Assist Federal Courts in Illinois

Chief U.S. District Judge Marvin Aspen announced that six visiting judges will hear cases in the Northern District of Illinois during 1998. He hopes that the visiting judges will help reduce a backlog of cases pending. Of the 21 posts in the Northern District, three are vacant, and have been for two years. Nationally, 81 judiciary posts are vacant, and Democrats in the U.S. Senate have blamed Republicans for failing to take action on judicial nominees. While the Senate has taken no action on nominees, and created no new judicial posts since 1990, caseloads have soared. Three of the visiting judges are coming from Michigan, two from Indiana, and one from Nebraska. (Chicago Sun-Times, March 24, 1998)

Negligent Doctor Avoids Malpractice Liability Through Bankruptcy...

A unanimous U.S. Supreme Court has ruled that Dr. Paul Geiger can avoid paying a malpractice judgement by entering bankruptcy because he did not intend to cause the injury. A jury in Hawaii had issued a $355,040 verdict to Margaret Kawaauhau after Dr. Geiger’s substandard treatment resulted in the amputation of her leg. Dr. Geiger, who did not carry malpractice insurance, later moved to St. Louis and filed for bankruptcy. While the federal bankruptcy code does not allow filers to avoid liability "for willful and malicious injury", the trial court ruled, and the U.S. Supreme Court has now affirmed, that because Dr. Geiger did not intend to cause Ms. Kawaauhua’s injury, he can avoid paying the judgement by going through bankruptcy. The case is Kawaauhua v Geiger, 97-115. (AP, March 3, 1998)

..But Landlord Must Pay Punitives Despite Bankruptcy

A unanimous U.S. Supreme Court ruled that a New Jersey landlord cannot avoid paying punitive damages by going through bankruptcy. Edward S. Cohen was previously found guilty of charging rents higher than allowed by rent-control laws. He was ordered to pay $31,000 in overcharges, and three times that in punitive damages. After filing for bankruptcy, he sought to avoid paying punitives. The high court ruled that bankruptcy does not void "liability arising from fraud". Justice O’Connor wrote, "The bankruptcy code has long prohibited debtors from discharging liabilities incurred on account of their fraud, embodying a basic policy ... of affording relief only to an honest but unfortunate debtor." (AP, March 24, 1998)

Illinois Supreme Court to Consider Inclusion of Lawyers in Consumer Protection Statutes

An 85-year-old widow was billed $40,000 for estate work that was never done. Her guardian sued her lawyer, claiming breach of fiduciary duty, malpractice, and fraud, citing Illinois consumer protection statutes. The trial judge held that the consumer protection statutes do not apply to attorneys, who are regulated by the Illinois Supreme Court through the Attorney Registration and Disciplinary Commission, but the appellate court reversed. In December, the Illinois high court agreed to hear the appeal. The Illinois State Bar Association has filed an amicus brief in support of the trial court, but the legal reform group HALT (Help Abolish Legal Tyranny) has urged that the appellate court be affirmed. (Chicago Sun-Times, March 24, 1998)

Illinois Appellate Court Cites Best, Affirms Judicial Review of Discovery Documents

The Second District Appellate Court of Illinois has ruled that judges have a right to review documents demanded in discovery, even when defendants claim statutory privilege. With In Re: Bagus (No. 2-97-0394, filed February 20, 1998) Justice Rathje held that defendants could not deny a trial court in camera review of documents that defendants claimed was shielded from discovery. Bagus involves a potential medical malpractice claim against a psychiatrist over the suicide of a patient. Plaintiffs had sought notes which defendants refused to provide, citing the exception in the Mental Health and Developmental Disabilities Confidentiality Act for "personal notes". Citing Best v Taylor, the opinion found that the trial judge was empowered to demand in camera inspection of the disputed notes to determine whether the Act applied. (Copies of the decision are available from the ITLA office)

U.S. Supreme Court Limits Judges Ability to Determine Venue

In 1992, a consultancy filed defamation actions in Chicago against parties in New York and California. Pretrial motions were heard in the Federal District Court in Tucson. After dismissing most of the consultancy’s claims, the Tucson judge refused to return the case to Chicago. The U.S. Supreme court has now ruled, in Lexecon v Milberg Weiss Bershad Hynes & Lerach (96-1482) that the trial judged exceeded his authority by refusing to return the case to Chicago. Justice Souter’s majority opinion found that "a district court conducting such pretrial proceedings [may not] invoke federal law to assign a transferred case to itself for trial." (AP,March 3, 1998)

North Carolina Jury Issues Plaintiff’s Verdict for Botched Autopsy

A team of doctors at Duke University has been found liable for conducting an unauthorized autopsy that severely disfigured the dead woman’s body. The verdict included $47,500 each to three relatives for emotional distress, and $11.25 million in punitives. The family of Dora Epps McNair noted that the hospital lacked authority for the autopsy, and that the body was so disfigured that both proper embalming and an open casket viewing were impossible. The hospital claimed that a contract with the Medical Examiners office gave it authority to conduct an autopsy. (AP, March 4, 1998)

Schering-Plough Liable for $900,000 in Sex Harassment Case

A New Jersey jury has issued a plaintiff’s verdict in a sex harassment case. Microbiology lab manager Colleen Ford claimed that her supervisor, Leonard Mestrandrea, harassed her, and that his supervisor, Maurice Greene, failed to take steps to end the harassment and took retaliatory actions against her. The verdict includes $845,000 in back and future pay and $55,000 for emotional distress. Schering-Plough plans to appeal. (Reuters, March 20, 1998)

Chrysler Sues Former Employee for Speaking Out Against Rear Door Latches

Chrysler Corp fired product designer Paul Sheridan in December, 1994, on charges that he leaked confidential test results relating to the safety of rear door latches used on minivans to an automotive magazine. Sheridan later appeared on the ABC News program 20/20 in October, 1995, to discuss the latches. Now, the auto maker has filed a suit, claiming that Sheridan’s public comments about the safety of rear door latches used on the 1984-1995 minivans have cost the company $82 million in damages. "It’s clearly designed to have a chilling effect," Sheridan’s attorney noted. Sheridan has his own lawsuit pending against Chrysler, claiming wrongful termination and defamation. (Reuters, March 19, 1998)

U.S. Supreme Court Agrees to Hear School Liability Claim

A 52-year-old teacher was found naked in a wooded area with a 15-year-old student. The school district had received earlier complaints about the teacher’s relations with other students, but had no reason to suspect that the teacher had any relation with the 15-year-old. The U.S. Supreme Court has agreed to consider whether the 15-year-old has a claim against the school district for sexual discrimination under Title IX of the Education Amendments of 1972. The girl testified that she felt she had no alternative but to accept the teachers sexual advances in order to get advanced coursework. The school claims that the incidents complained of occurred off school grounds and without the knowledge of school officials. Oral arguments in the case, which is from Lago Vista, Texas, are pending. (AP, March 22, 1998)

Texas Priest Abuse Case Ends in $7.5 Million Settlement

Last year, a Texas jury issued a $119 million verdict against the Catholic Diocese of Dallas after 11 former altar boys claimed that Fr. Rudolph Kos sexually abused them. Victims alleged that the priest abused the children over many years, and that the Diocese knew of the problem but did nothing. After the verdict, parties entered into court-ordered mediation and settlement talks. The Diocese and its insurers have agreed to settle the claims of three former altar boys for $7.5 million. The other eight plaintiffs remain in mediation. (AP, March 5, 1998)

Jurors Express Anger at Nursing Home Abuses

Three times in the last four months, juries around the country have issued punitive damages of more than $70 million to plaintiffs suing nursing homes, including the latest, a verdict of $365,580 in compensatories and $95.1 million in punitives issued to Reba Gregory, a 69-year-old who broke her shoulder and hip while being transferred from bed. The jury found evidence of fraud as well as systematic abuse and inadequate staff training. While punitives of such magnitude are often reduced on appeal or by settlement, observers note that jurors seem to be aware that they themselves will likely reside in a nursing home at some point, and are eager to take steps to improve the quality of care. (Wall Street Journal, March 6, 1998)