Vested Interest - Tort Briefs - December 2003 Issue

Jury Returns Verdict for Widow

A Cook County jury returned an award to the widow of a 35-year-old electrician who plunged to his death at a work site. Two workers had removed a section of grating on the walkway and did not mark it properly. The electrician, who was monitoring electrical wiring on the gangplank above him, stepped through the hole in the walkway and plunged to his death. (Chicago Daily Law Bulletin – October 29, 2003)

Settlement Reached in Birth Infection

A judge approved a settlement filed on behalf of a 12-year-old boy who was born mentally retarded. Attorneys for the boy said doctors did not treat the mother’s infection while she was giving birth. The infection spread to the boy, who now suffers from cerebral palsy and mental retardation. (Chicago Daily Law Bulletin – October 30, 2003)

Judge Certifies Class Action for Groundwater Contamination

A federal judge has certified a class in a lawsuit accusing the manufacturer Pilkington North America Inc. of contaminating the soil and groundwater in the Village of Naplate, Illinois. The residents and landowners all claim they suffered injuries as a result of the disposal of arsenic-containing waste generated at PNA’s glass-making facility in nearby Ottawa. The judge said the allegedly negligent or reckless disposal of the waste form "a common nucleus of operative facts" on which the class members’ cases are based. He also said that "trying these claims separately would result in a large amount of repetition" in light of the common questions of law and fact. (Chicago Daily Law Bulletin – November 4, 2003)

Settlement for Spinal Injection

A man who suffered paralysis as a result of complications from an outpatient spinal injection for neck strain reached a settlement with the medical center and doctor who treated him. The injection of an anti-platelet drug to alleviate neck pain resulting from an earlier car accident caused a blood clot in his spinal cord. His attorneys argued too much time had passed between the onset of symptoms and summoning an ambulance, causing permanent paralysis of his lower extremities. (Chicago Daily Law Bulletin – November 4, 2003)

Halliburton to Compensate Asbestos Injury Claimants

Halliburton has agreed to privately settle more than 95 percent of asbestos-related claims against the company and its subsidiaries, ending its efforts to get federal protection. There are currently about 330,000 claimants seeking compensation. The terms of the deal must be approved by 75 percent of the claimants to go forward. Halliburton opted out of the proposed federal trust fund because there was no guarantee that the legislation would have protected the company. (Chicago Daily Law Bulletin – November 7, 2003)

Sign Here if You’re Injured

Martha McJimsey was pulling brains out of cow carcasses coming down the line at IBP in Amarillo when she split one of her fingers wide open. But before a nurse would stop the bleeding and stitch her up, McJimsey had to sign a waiver promising not to sue the company now called Tyson Fresh Meats. It didn’t matter that her right hand - her writing hand - was dripping blood. "You have to sign a waiver every time you get hurt," said McJimsey, who consented to four post-injury waivers during her 25 years at the plant. "The only excuse is if you’re completely unconscious." McJimsey said her union representative assured her not to worry because she was signing the waiver under duress and that should she decide later to sue, it wouldn’t stand up in court. To her surprise, the 59-year-old, who has since left the company, later discovered the waiver was valid and she had no legal right to sue. Until state law forbade companies from seeking pre-injury waivers in 2001, some got workers to agree not to sue if they suffered injuries. With that avenue cut off, some companies have resorted to asking workers to sign legal waivers after injuries if they want their medical bills paid, as was done in McJimsey’s case. It’s difficult to determine how widespread the use of post-injury waivers is, but they appear to have become standard practice at meatpacking and chicken- processing companies, such as Tyson Fresh Meats, Tyson Foods, Pilgrim’s Pride and Cargill-owned Excel. (ATLA Law News Digest – November 6, 2003)

Denial of Disability Claim Cleared

The Supreme Court ruled unanimously that the government may deny certain disability payments to a person whose health is impaired but remains capable of doing her previous job - even if technology has made the job largely obsolete. The decision, the first to be issued by the high court for the term that began in October, is a relatively narrow victory for the Social Security Administration. It involved a woman who had been laid off in 1995 as an elevator operator and applied about a year later for federal Social Security disability payments, claiming that heart disease and other ailments prevented her from doing other jobs. After the Social Security Administration rejected the woman’s claim, she appealed to an administrative-law judge, who ruled that she wasn’t eligible for disability payments because her impairments didn’t prevent her from doing her past job. The judge rejected the woman’s argument that those jobs no longer existed. Most elevator-operator jobs have long since been eliminated by automation. Ironically, the Supreme Court, along with the Congress, are two of the few facilities where elevators still are operated by people. (ATLA Law News Digest – November 20, 2003)

Appeals Court Reinstates Suit Against Gun Industry

A federal appeals court reinstated a wrongful death lawsuit against the gun industry in a decision expected to re-ignite debate over legislation immunizing gun makers from being sued for crimes committed with their products. The 2-1 ruling by the San Francisco-based 9th U.S. Circuit Court of Appeals reinstates a lawsuit filed against gun manufacturers and distributors whose weapons were used by a white supremacist who shot a Filipino-American postal worker to death and wounded five people at a Jewish day-care center in a 1999 Los Angeles rampage. Survivors charged that several weapons companies had produced, distributed and sold more firearms that legal purchasers could buy. In addition, they said the industry had knowingly participated and facilitated an underground illegal gun market. Since 1998, at least 33 municipalities, counties and states have sued gun makers, many claiming that manufacturers, through irresponsible marketing, allowed weapons to reach criminals. (AP – November 21, 2003)