Vested Interest - Tort Briefs - February 2002 Issue

Mother awarded $2.4 million for child's delayed delivery

A woman whose child died at the age of about 18 months has settled a lawsuit for $2.4 million in which she accused a doctor and two hospitals of contributing to the delay in the performance of a Cesarean section delivery, resulting in fatal birth defects. Her attorney argued she had shown signs of dysfunctional labor after the first 24 hours at the hospital, and her doctor went to another hospital to perform elective surgery while she was in labor. The baby was delivered about 37 hours after the mother arrived at the hospital. (Chicago Daily Law Bulletin – December 18, 2001)

Florida girl can sue mother for injuries suffered as a fetus

A Florida appeals court ruled a 7-year old girl who was permanently injured in a car accident while still a fetus can sue her mother for negligence. The mother has been fighting for her daughter’s right to sue her for the severe injuries she suffered the day before being born two months premature. National Casualty has countersued to have the case thrown out as legally unjustified. If her daughter wins, her insurer, National Casualty, would have to pay for her daughter’s care. (AP – December 20, 2001)

Ford settles harassment suit

Ford Motor Co. said it will pay $300,000 to 23 black plant workers who filed a federal racial harassment lawsuit against the automaker. According to the EEOC, the employees, who work at Ford’s New Model Development Center in Allen Park, Michigan, said a white co-worker placed hangman’s nooses on his forklift, “mocked what he considered to be African-American styles of speech and manner of walking” and used “insulting language.” The employee was suspended without pay for a month and has since retired from the company. (Chicago Tribune – December 22, 2001)

Pfizer settles after losing suit

Hours after losing a $43 million verdict, Pfizer Inc. reached a settlement with lawyers for a woman who said her liver was destroyed by the company’s recalled diabetes drug, Rezulin. The amount of the settlement was not disclosed, but Pfizer general counsel said it was “substantially lower” than the state court jury’s verdict. The company did not admit liability. The deal, which would erase the verdict on compensatory damages, was announced as the jury considered whether to add punitive damages. (State-Journal Register – December 22, 2001)

Jury gives swimmer $10.8 million

A jury awarded a woman $10.8 million from the Sea Dog pleasure boat and its captain for an accident that severed her leg as she was taking a swim with her husband on a warm October day. Witnesses said the boat cruised within 20 yards of the shore and ran her over, cutting off her right foot with a propeller. The Sea Dog’s attorney argued the woman was swimming too far out in the water, more than 50 yards. Jurors said the accident was 80 percent the fault of the Sea Dog and 20 percent the fault of the woman. (AP – December 22, 2001)

Lung ailments plague N.Y. firemen

As many as 500 firefighters who worked at the World Trade Center site are on leave for respiratory problems and other rescue-related injuries, and a union leader warned that the ailments could force many of them into retirement. Many police, fire and other rescue workers went unprotected in the first few days after the catastrophe. The fire department began health screenings for firefighters in late October, conducting lung function exams, chest X-rays, hearing tests and blood work. More than 1,000 firefighters have filed notices to protect their right to sue the city over inadequate protection from dangerous materials at the Trade Center site. (MSNBC – December 28, 2001)

Court Oks nuisance suits

An Illinois appeals court gave a green light to public nuisance lawsuits filed against gun makers and distributors by families of a slain Chicago police officer and four others killed by gang bullets. The court also narrowed the scope of the lawsuits filed on behalf of the five families. It said the families were free to sue manufacturers and distributors of the guns used in the crimes that took the lives of their relatives, but it barred them from suing other gun makers as a public nuisance. The gun makers maintain they had nothing to do with the shootings and that it is unfair to attempt to rope them into involvement in street crime in Chicago just because their lawful products were misused. (AP – January 1, 2002)

EEOC has right to sue for employees

The U.S. Supreme Court has ruled the EEOC has the right to seek money or other damages in court for employees who have signed away their rights to sue. The Court ruled the EEOC may sue on behalf of a short-order cook fired after he had a seizure at a Waffle House restaurant. About 10 percent of American workers agree when hired that any on-the-job dispute would be solved by arbitration. The Supreme Court said the EEOC did not sign such an agreement and is not bound by it. Justice John Paul Stevens wrote the EEOC is “the master of its own case” and free to decide for itself whether it is in the public’s interest to pursue a given lawsuit. (AP – January 16, 2002)

EEOC sues Allstate for age discrimination

The EEOC filed suit against Allstate Insurance Co., alleging it had discriminated against thousands of agents when it forced them to sign a waiver giving up their right to sue over job issues if they wished to work as independent contractors. The EEOC said the waiver violated the Age Discrimination in Employment Act and non-retaliation requirements of other civil rights laws. Former Allstate agents filed a class action alleging that more than 6,400 agents were fired in June 2000 as part of an overall effort to get rid of older workers. Some agents were allowed to continue working as independent contractors at a higher commission rate, but they no longer received pensions or benefits. (Liability & Insurance Week – January 2, 2002)

Wal-Mart settles disability case with the EEOC for $6.8 million

Wal-Mart has agreed to pay $6.8 million to settle a lawsuit filed against it by the EEOC and 12 other lawsuits filed by individuals with disabilities who applied for work with the company. The EEOC accused Wal-Mart of discriminating against disabled applicants by seeking too much detailed information about their disabilities in a pre-employment questionnaire. (Liability & Insurance Week – January 2, 2002)

$6.8 million for collision injuries

A Circuit Court judge approved a settlement involving a man hit head-on in a traffic accident, resulting in hip and ankle injuries. The settlement was higher than any other Cook County settlement involving similar injuries as reported by the Jury Verdict Reporter. His lawyer said the man was an avid golfer before the accident and now has a permanent limp, chronic pain and scars and “his quality of life is ruined as a result of the accident.” The lawsuit had been set for trial March 18, but the settlement was worked out and approved by the judge. (Chicago Tribune – January 3, 2002)

Supreme Court limits disabilities act

The U.S. Supreme Court narrowed the reach of a landmark disability rights law, ruling that an assembly line worker with carpal tunnel syndrome was not entitled to special treatment on the job. A unanimous court ruled that a woman’s partial disability did not obligate her employer, car manufacturer Toyota, to tailor a job to suit her wrist, arm and shoulder problems. Her disability did not prevent her from doing many tasks at home and at work. The Court wrote “The central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people’s daily lives, not whether the claimant is unable to perform the tasks associated with her specific job.” (MSNBC – January 8, 2002)

Swedish prosecutor drops case against Baxter

A Swedish prosecutor dropped his criminal investigation of the Baxter International Inc. plant that produced dialysis filters linked to more than 50 deaths worldwide, saying he found no evidence of faulty procedures or of wrongdoing by any of the employees at the plant in Ronneby. The prosecutor said this was a “chain of unfortunate circumstances that together led to the tragic deaths that occurred in several countries.” (Chicago Sun-Times – January 4, 2001)

Fen-phen settlement becomes final

A $3.75 billion class-action settlement for thousands of people who took the recalled fen-phen diet drug combination is now final because no one challenged it by the deadline. The suit includes about 295,000 people. As of September 30, American Home Products, the maker of the drug, had paid about $11 billion to claimants, including some in the settlement, people who settled individually with the drug maker, those who won jury awards and dozens who developed a potentially fatal lung condition. (CNN.com – January 11, 2002)

Georgia policyholders settle with State Farm for lost value

State Farm Insurance Co. has agreed to settle a class-action lawsuit with as many as 700,000 of its auto policyholders in Georgia for the lost value of their cars repaired after crashes. The policyholders had contended cars depreciate if they have been in a crash, no matter how well they are repaired, so they should be reimbursed for the lost value. State Farm and other insurers claimed properly repaired cars did not depreciate in value, but last November the Georgia Supreme Court decided in the policyholders’ favor. (Liability & Insurance Week – January 14, 2002)

Supreme Court bars insurer’s recovery

The U.S. Supreme Court ruled that the Employee Retirement Income Security Act (ERISA) doesn’t allow a health plan to be reimbursed from the proceeds of a personal injury lawsuit for medical expenses it already has paid out. The case arose out of a 1992 crash of a Hyundai automobile that left a woman quadriplegic. The employer’s health plan had a provision saying it had the right to recover from a third party, and the insurer's stop-loss agreement gave it first right of recovery for any amounts reimbursed to the plan in such circumstances. The Supreme Court majority agreed with a federal judge who granted summary judgment to the woman, ruling the language of the plan limited its right of reimbursement to amounts received for past medical treatment. (Liability & Insurance Week – January 14, 2002)