Vested Interest - Tort Briefs - April 1999 Issue

Retired U.S. Supreme Court Justice Harry Blackmun Dies

Justice Harry Blackmun, who served on the U.S. Supreme Court from 1970 until 1994, has died. Justice Blackmun, who had hip surgery in February, was 90. Although noted in legal circles as a strongly independent vote on the court, he is most remembered in the popular mind for the 1973 Roe v Wade ruling, which asserted a constitutional protection for the right of women to choose an abortion. Justice Blackmun was born in Nashville, Illinois, but raised in Minneapolis, where he became friends while in kindergarten with future Chief Justice Warren Burger. (AP, March 4, 1999)

U.S. Supreme Court Expands Use of Scientific Expert Rules

Rejecting an amicus brief filed by the Association of Trial Lawyers of America, the U.S. Supreme Court has ruled that the same standards set for expert scientific witnesses apply to non-scientific witnesses as well. The unanimous ruling, written by Justice Breyer, “conclude[s] that the general holding... applies not only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other specialized’ knowledge.” The ruling came in Kumho Tire v Carmichael (97-1709), in which the Carmichael family sought to introduce testimony from an engineer as to a tire defect that resulted in a fatal car crash. Justice Stevens dissented in part, suggesting that the particular dispute should be returned to the appeals court for resolution. (AP, March 23, 1999)

Falsely Convicted Secure $36 Million Settlement

Four men who were falsely convicted of murder over 20 years ago have secured a settlement with Cook County for $36 million. The men, who maintained their innocence all along, were convicted of two 1978 murders. Student journalists at Northwestern University later proved that racist police suppressed evidence favorable to the defense and lied under oath in an effort to railroad the four. Two of the four were sentenced to death as a result. All told, 11 people have been freed from death row since the death penalty was reinstated in Illinois. (AP, March 5, 1999)

Jury Issues $38 Million Verdict to Family of 12-year-old Killed in Accident

Jill Goldberg of Miami, Florida, was a passenger when another vehicle rammed her mother’s car at an intersection. The 12-year-old was killed. Investigators found that Florida Power & Light had turned off the power grid that fed the traffic lights. Workers were repairing a damaged line 150 feet away, and did not notice that the nearby intersection was also affected. The traffic signal at the intersection was dark at the time of the accident. The utility will appeal. (AP, March 6, 1999)

Supreme Court to Clarify Filing Deadline in Med Mal RICO Suits

Mark Rotella was held in a psychiatric hospital for two years beginning when he was 16-years-old. He later determined that the hospital, a subsidiary of the Psychiatric Institutes of America, had unnecessarily and illegally admitted, treated and retain him as a patient, and that these acts constituted a violation of the Racketeer Influenced and Corrupt Organizations Act (RICO). PIA has pleaded guilty to the RICO charges. But in 1997, Rotella filed suit against the doctors who were in charge of his case. They claim that the statute of limitation in RICO ran out in 1990, four years after he was discharged. Rotella claims the statute doesn’t begin to run until 1994, when he discovered the facts that gave rise to the RICO claim. The U.S. Supreme Court has agreed to hear Rotella v Dallas Psychiatric Associates (98-896) to resolve the dispute. (AP, March 8, 1999)

American Spectator Decries Medical Malpractice

The American Spectator, a conservative journal of opinion, reports with some skepticism on a new effort within the medical community to ascribe malpractice to system errors rather than human incompetence or negligence. While decrying frivolous lawsuits, the article also claims that reverence for “personal responsibility” also means that those who do wrong should be held accountable. Noting the declining influence of the American Medical Association, both in membership and its ability to pass its legislative agenda, the article concludes with a call to “weed out the lazy, the incompetent, the reckless, the inexperienced, and the senile, and to help bring to account the negligent.” (American Spectator, March, 1999)

Tobacco Companies Gave Millions to Fight Reform Legislation

Common Cause has named Phillip Morris the soft money leader, finding $2.4 million in such contributions, most of it to the Republican Party. All told, tobacco companies gave $40 million in soft contributions while trying to fight a tobacco tax hike and new federal regulations. Other big donors include American Financial Group and Chiquita, Inc., both chaired by conservative Carl Lindner. The National Education Association gave $1.1 million in soft money, mostly to the Democratic Party. (AP, February 23, 1999)

Jury Issues $35 Million Verdict in Hemophilia Case: Judge Quickly Overturns

A New Orleans jury issued a verdict for $35.3 million in damages to the parents of Ken Dixon, who died in 1995 from AIDS, which he developed from tainted blood products. Dixon claimed that he was infected in 1985, but did not develop symptoms or realize he had AIDS for many years. He sued in 1993. The jury determined that Miles Inc. failed to test its products adequately and assessed damages at $35.3 million. But after the jury was excused, Judge Max Tobias granted a motion by defendant Bayer Corp., as successor to Miles, to dismiss, arguing that the statute of limitations expired in 1990. Plaintiffs plan an appeal of that ruling. (AP, March 16, 1999)

Chicago Tribune Reports on Problems in Attorney General’s Office

The Chicago Tribune’s headline on March 10 announced “Judges Rip State’s Top Legal Office”. The story reported on complaints of “inept, unethical, petty, and unprofessional” conduct by attorneys and other staff in the office of Attorney General Jim Ryan. As its prime example, the article noted that the Illinois Supreme Court had barred the Attorney General from speaking on behalf of the state in a Death Row appeal, since the A.G. had already received 6 extensions in the case and still was not prepared. The article also noted that the 7th U.S. Circuit Court described the office’s failure to raise relevant defenses as a “familiar” problem. (Chicago Tribune, March 10,1999)

Billing Records Protected by Attorney-Client Privilege: U.S. Appeals Court

Lawyers for the U.S. Attorney General’s office investigating organized crime obtained a subpoena to get billing records from the lawyer representing about two dozen potential defendants. The lawyer, identified in court records only as “Tom Hagen”, the name of the mob lawyer in the Godfather movies, objected, claiming that the information requested was protected under attorney-client privilege. A three-judge panel of the 7th Circuit quashed the subpoena, reversing U.S. District Judge Charles P. Kocoras. For the 7th Circuit, Judge Terence Evans wrote, “we are sure that disclosure of this information would identify a client of Hagen’s who is potentially involved in targeted criminal activity.” (Chicago Sun-Times, March 24, 1999)

Jury Finds ADA Violation at GM Saturn Plant

General Motors has touted its practice of assigning workers to rotating teams that produce cars, rather than fixed locations along the assembly line. Injured workers, however, claimed that the rotations resulted in work assignments that violated medical restrictions on their capabilities. Workers who refused their rotation assignment were sent home on half pay. A Tennessee jury has found that the rotating team structure resulted in violations of the Americans with Disabilities Act. U.S. District Judge Thomas Higgins will now decide if monetary damages are appropriate. (Bloomberg, March 19, 1999)

Florida Jury Issues $15 Million Verdict in Nursing Home Case

U.S. Army veteran John Lee Butler was confined to The Brian Center, a Tampa nursing home. He was in good shape, able to feed and clean himself, when he entered the home in 1989, but that changed, slowly at first, then rapidly. Over the 15 months ending with his death in 1994, he lost 41 pounds. He died from malnourishment and dehydration. His family sued the Center and parent company LCA Operational Holdings, though liability was due from Mariner Post-Acute Network, Inc. They claimed that the home was chronically understaffed and overpopulated. A jury agreed, assessing damages at $15.2 million. (Reuters, March 22, 1999)

Quote:

“They can’t simply pull the power from a traffic control signal and make absolutely no effort to keep the inevitable from occurring. They could have done so many things. And they did nothing.” – Walter Goldberg, whose 12-year-old daughter Jill was killed in 1997. “If you’re a liberal going in to the hospital for whatever, your risk of being injured, maimed, or killed ... is quite high. ... So much for the good news. The bad news is that if you’re a conservative, neoconservative, or libertarian, the odds are exactly the same.” - Edward Grossman, writing in the American Spectator.