Vested Interest - Tort Briefs - January 2002 Issue

Wrong cervical disk removed; $5.6 million verdict

A Will County, Illinois, jury awarded $5.6 million to a 47-year old man, finding his doctors performed the wrong cervical spine operation when he underwent surgery for two herniated disks. The neurosurgeon removed one of the herniated disks and an intact disk, making it necessary for further surgery in another hospital. (Chicago Daily Law Bulletin – November 21, 2001)

Chrysler to fight big judgment

A New Jersey jury ordered Chrysler to pay $20 million to the family of a woman killed when a tire landed on the roof of her mini-van. The sum includes $5 million for each of her three sons because they witnessed her death. The boys were 7, 11 and 14 at the time. The woman was driving a Plymouth Voyager when a tire flew off a Jeep Wrangler and hit her. Confidential settlements were reached with the driver of the Jeep, the operator of a Mobil garage that failed to tighten the wheel and Exxon Mobil Corp. (Chicago Tribune – November 27, 2001)

Airline sues man over Atlanta Security breach

AirTran Airways has sued the man accused of breaching security at Hartsfield Atlanta International Airport, leading to a temporary shutdown of the nation’s busiest airport. AirTran said the cancellations and diversions of flights on November 16 cost it more than $1 million, and it will seek $100,000 in damages. The man was charged with disorderly conduct for running past security guards and down an escalator. He said he did not see any guards and was not aware he had caused the security alert. (AP – November 27, 2001)

Supreme Court says prison firms can’t be sued

A divided U.S. Supreme Court ruled a private firm that runs a correctional facility for the U.S. government cannot be sued in federal court. Correctional Services Corp. argued such lawsuits were not allowed under the 1971 precedent that permits federal officials to be held liable for violating an individual’s constitutional rights. The majority refused to extend the 1971 ruling to allow recovery of damages against a private corporation operating a halfway house under contract with the U.S. Bureau of Prisons. (Reuters – November 27, 2001)

Judge approves settlement for doctor’s failure to diagnose

A Cook County judge approved a $3 million settlement for the family of a 31-year old woman who died after doctors allegedly failed to diagnose a bowel obstruction. The woman went into septic shock after her condition was undiagnosed for three days and emergency surgery was performed too late. (Chicago Daily Law Bulletin – November 28, 2001)

Lawyer sues cigarette makers over “light” claims

An Illinois lawyer has filed lawsuits against Philip Morris, R.J.Reynolds Tobacco and Brown & Williamson Tobacco, claiming labels that brand their products as “light” or “low” in tar and nicotine are fraudulent and deliver toxins to smokers in the same amounts that regular cigarettes do. Madison County, Illinois, judges have already certified two of the lawsuits as class-action cases. The lawsuits represent anyone who has bought “light,” “low-tar” or similarly marked cigarettes in Illinois that were produced by the companies. (AP – November 28, 2001)

$5.4 million verdict for complications from auto crash

A Cook County jury returned a $5.4 million verdict for the family of a woman who died last year from complications of injuries she suffered in a December 1997 automobile crash. The woman was seriously injured when the car she was riding in failed to stop at a construction zone in which the bridge was out. The car plunged into the construction pit. The driver, the woman’s cousin, had a blood alcohol content more than twice the legal limit when tested after the crash. (Chicago Daily Law Bulletin – November 29, 2001)

Baxter settles with 10 families in Spain deaths

Baxter International Inc. said it has agreed to pay about $289,000 to each of the families of ten patients in Spain who died following kidney dialysis treatments using Baxter products. The announcement came three weeks after Baxter said a processing fluid used in routine testing of blood filter products made at its manufacturing plant in Ronneby, Sweden, likely played a role in some kidney dialysis patient deaths in the United States and several other countries. (Chicago Sun-Times – November 29, 2001)

Farm injury Yields $1.45 million settlement

A farmer in Schuyler County, Illinois, settled a lawsuit brought by a former employee for $1.45 million. In 1999, the farmer drove a tractor beneath power lines, and an auger attached to the tractor struck the lines. The employee was touching the machine and received an electric shock. His right arm was amputated below the elbow as a result of his injury. (Chicago Daily Law Bulletin – December 10, 2001)

Rollover cases given class-action status

A U.S. District judge in Indianapolis granted class-action status to most of the “economic loss” lawsuits against Ford Motor Co. and Bridgestone Corp’s Firestone unit from rollover accidents that occurred when tread separated from Firestone tires. Lawyers said the ruling could expose the companies to claims from some 3.5 million people. The judge included anyone who owned or leased a 1991-2001 model year Ford Explorer on or before August 9, 2000, and anyone who owned or leased vehicles equipped with certain Firestone tires from 1990 to present. The ruling does not affect approximately 500 personal injury lawsuits facing the companies. (Chicago Tribune – November 29, 2001)

Court upholds ruling against diminished value for wrecked cars

The Georgia Supreme Court has ruled that State Farm Mutual Insurance Co. must pay for the diminished value of cars damaged in collisions, as well as repairs. One justice noted that State Farm’s promise to its clients is to “pay for loss to your car,” minus any deductible, citing State Farm’s own documents in which the company acknowledged there is a common perception that a wrecked vehicle is worth less simply because it has been wrecked. (Chicago Daily Law Bulletin – November 29, 2001)

Lifescan offers to pay $45 million to diabetics as settlement

Lifescan Inc., a subsidiary of Johnson & Johnson, agreed to pay $45 million to diabetics in the United States to settle a class-action lawsuit that claimed its SureStep meters purchased before August 1997 were dangerously defective. The company pled guilty to charges last year that it knew about these defects but had failed to disclose them before putting the meters on the market in 1996. (Liability & Insurance Week – December 3, 2001)

$4.5 million settlement following death from hemorrhagic shock

A Cook County judge approved a $4.5 million settlement in the case of a 49-year old man who bled to death after surgery. The man had been on blood thinners since a 1995 heart valve replacement. He underwent hernia surgery in 1998 and died from hemorrhagic shock. His attorney argued the hematologist failed to properly establish a plan to monitor the man for internal bleeding, and the surgeon failed to respond to a nurse’s repeated calls regarding the man’s condition. (Chicago Daily Law Bulletin – December 11, 2001)

U.S. judge dismisses most columbine lawsuits

A U.S. district judge has dismissed most lawsuits filed against the Jefferson County sheriff’s department and all claims against the Jefferson County School District over the 1999 Columbine High School shooting, on the basis of governmental immunity. The judge said eight of the nine claims of negligence could not survive because the student shooters “were the predominant if not the sole cause” for the killings of 12 students. (Liability & Insurance Week – December 3, 2001)

$16 million verdict in living mesothelioma case

A jury in Madison County, Illinois, returned a $16 million verdict against ACandS for a man and his wife. The man was exposed to asbestos while working as a fork lift driver at the Owens Illinois Glass bottle manufacturing plant in Alton from 1967 through the mid 1970s. He was diagnosed with mesothelioma in March 2001. The jury found ACandS to be negligent and also awarded punitive damages for willful and wanton conduct. (Press Release – December 4, 2001)

$6.7 million settlement for construction injury

A Cook County judge approved a $6.7 million settlement in the case of an ironworker paralyzed after he fell from a 23-foot pre-cast concrete wall at a construction site. Plaintiff’s attorneys cited a crack in the concrete panel and lack of fall protection. The ironworker died 10 months after the accident, and it was disputed whether his injuries led to his death. (Chicago Daily Law Bulletin – December 12, 2001)

Victory for public right to know

The Superior Court of New Jersey issued a decision allowing Trial Lawyers for Public Justice (TLPJ) and Consumers for Auto Reliability and Safety (CARS) to intervene in a tire safety case and review records that Goodyear Tire and Rubber Company has desperately been trying to keep secret. The case was filed after three U.S. Air Force personnel riding in a General Motors Suburban were killed and three others were injured when a Goodyear tire came apart, and the vehicle rolled over. TLPJ seeks to lift the protective order issued in the case and permit public access to documents believed to contain important information about the safety of Goodyear tires. The judge indicated the protective order in the case had been issued improperly, and public policy weighs against issuing protective orders lightly, especially in cases involving health and safety. (Press Release – December 20, 2001)

Families of Columbine victims fire lawyer

The families of five students killed in the Columbine High School massacre have fired the lawyer representing them in wrongful-death lawsuits against the school and sheriff’s department. The attorney filed a motion in federal court saying a conflict about the future handling of the cases had caused a rift between him and his clients. He wouldn’t say whether the problems stemmed from a difference of opinion about whether to settle the lawsuits. (AP – December 11, 2001)

$3 million settlement in crib death

Playskool-Hasbro and Kolcraft Enterprises agreed to settle a lawsuit for the wrongful death of a 16-month old boy who died in a Playskool Trav’l Lite portable crib when the foldable side rails collapsed on his neck strangling him to death. In 1993 the company recalled the 11,600 cribs sold, but only about 25 percent were returned. At least six infants have died in the cribs. The settlement came just before the parties were to go to trial and only after the defendants agreed the settlement would not remain secret and confidential. (Press Release – December 6, 2001)

Judge dismisses suits against Ford

A federal judge in Detroit has dismissed lawsuits against Ford Motor Co. that alleged the automaker misled investors about the safety of the Explorer sport-utility vehicle and its potential liability for hundreds of deaths and injuries. The judge also said the automaker was not bound by law to forecast in its financial statements the costs of the recall of Firestone tires and lawsuits related to the problems. (Chicago Tribune – December 13, 2001)

FDA charges Red Cross with violations

The U.S. Food and Drug Administration has filed a motion in federal court seeking penalties against the American Red Cross for alleged violations of blood safety rules. The charges include mislabeling blood products containing a potentially dangerous virus, failure to exclude some donors at risk for AIDS or syphilis and performing faulty tests to see if donors might develop anemia from giving blood. The FDA has not identified specific cases in which blood recipients have been harmed. (Chicago Tribune – December 14, 2001)

Viagra coverage prompts lawsuit

A 36-year old flight attendant has filed a lawsuit against American Airlines for allegedly paying for Viagra pills for its male employees but denying women employees health benefits to pay for birth control pills, pap smears or infertility treatments. In a 1999 letter from American, the woman was told that her health plan covers expenses “medically necessary to sustain life. That is why pap smears, birth control pills and infertility treatments are not covered.” The woman was told her infertility treatment would not be covered. (Chicago Tribune – December 14, 2001)

Bush administration urges award restraint

The Bush administration told a federal judge that awarding millions of dollars to each of the 52 American hostages held in Iran two decades ago would undermine U.S. credibility abroad. The Justice Department urged the judge to kill a lawsuit by the ex-hostages, saying the two-decade old agreement that freed them prohibits legal action against Iran. Those taken hostage by the Iranian government late in 1979 when demonstrators overran the U.S. embassy in Tehran are asking for $10,000 apiece for each of the 444 days they were held in captivity. The money would come from frozen Iranian assets, most of them tied up in an international tribunal in The Hague. Family members are asking for millions more. (Chicago Sun-Times – December 14, 2001)

$2.25 million settlement for bone infection

A Cook County judge approved a $2.25 million settlement of a medical negligence case that resulted in a post-surgical infection of the bone. This led to 14 more surgeries and loss of part of the bone in the plaintiff’s right leg. His attorney argued the doctor used a high-risk procedure to fix the broken tibia and failed to properly treat an open wound, leading to infection. (Chicago Daily Law Bulletin – December 14, 2001)

$10.5 million settlement for reverse discrimination

Ford Motor Co. agreed to pay $10.5 million to settle two class-action lawsuits accusing it of discriminating against older white men in the name of diversity. Roughly 620 current and former employees could receive some money. Some will get up to $100,000, minus attorney fees. The lawsuits claimed that Ford’s employee evaluation system favored so-called diversity candidates and that a disproportionate number of older white men were given low grades, costing them raises or promotions. (AP – December 19, 2001)

Medical-malpractice payouts stable over decade

Medical-malpractice insurance companies paid claimants an average of only $42,607 in 2000, only slightly more than the $39,093.31 average payout a decade earlier, says a study conducted by the Center for Justice & Democracy. Medical- malpractice costs as a percentage of national health-care expenditures are at an all time low of 0.55 percent. Best’s Review reported medical malpractice is the eighth leading cause of death in the United States, ahead of breast cancer, AIDS and traffic deaths. (Liability & Insurance Week – November 5, 2001)

Stringer family to sue for $100 million

The family of Korey Stringer will seek more than $100 million in a suit against the Minnesota Vikings for alleged negligence in the Pro Bowl tackle’s death from heatstroke during a July training camp. State OSHA officials said the Vikings violated no health or safety guidelines in Stringer’s death and had provided training about heat-stress hazards as required by state law to players, coaches and trainers. Stringer’s agent said “The OSHA report was thoroughly incomplete. The investigation was useless.” (Chicago Sun-Times – November 8, 2001)

Farmer awarded $4.25 million settlement

A Rock Island farmer settled a personal injury lawsuit for $4.25 million, the largest ever entered in Rock Island County Circuit Court. The farmer was heading back to his home when a tractor-trailer heading in the opposite direction crossed the median and collided with his van. The accident ended his ability to farm. (Chicago Daily Law Bulletin – November, 2001)

California court of appeal upholds ex-smoker jury verdict

A three-judge state appellate panel has upheld a San Francisco jury’s $26.5 million award against Philip Morris to a woman who started smoking at the age of 15, before warnings about the dangers of smoking were put on cigarette packages or ads, and learned she had lung cancer about 35 years later. The verdict was the first handed down since California repealed, in 1998, a decade-old ban on smokers’ suits against tobacco companies. (Liability & Insurance Week – November 12, 2001)

Ninth Circuit finds $5 billion Exxon Valdex award excessive

The Ninth Circuit Court of Appeals ruled the $5 billion jury verdict against Exxon Mobil Corp. in the 1989 Exxon Valdez oil spill was excessive. The panel left the $287 million award for economic damages intact. The panel noted that although “the jury may well have decided that for such egregious conduct the company responsible ought to have a year without profit…A unique body of law governs punitive damages…The test of whether a punitive damages award survives review cannot be merely whether there is any evidence to support it.” (Liability & Insurance Week – November 12, 2001)

Bridgestone/Firestone to pay $41.5 million to settle tire claims

Bridgestone/Firestone has agreed to pay $41.5 million to settle claims of state attorneys general that the company engaged in deceptive and unfair trade practices by continuing to sell tires after it became aware of safety problems but before the recall of 6.5 million ATX, ATXII and Wilderness AT tires on August 9, 2000. Bridgestone/Firestone did not admit any wrongdoing. Under the settlement, each of the 50 states, the District of Columbia, Puerto Rico and the Virgin Islands is to receive $500,000 with no restriction on how the money is to be spent. In addition, the company is to pay $10 million in legal fees, $5 million on public-service commercials about tire safety and up to $10 million to reimburse customers whose tires had not yet been recalled or who were claiming reimbursements above the $100-per-tire limit the firm established earlier. The tires have been linked to 271 deaths and more than 800 injuries. (Liability & Insurance Week – November 12, 2001)

Housing Authority to pay $2.1 million in boy’s 1994 death

The Chicago Housing Authority and Diversified Realty Group Inc. have agreed to pay $2.1 million to the family of a 5-year old boy who was killed after being dropped out the window of a 14th floor public housing apartment. The settlement came one day before the wrongful death suit brought by the family was to be reheard. The housing authority and the realty management group argued the death was caused by the criminal act of two boys, ages 10 and 11 at the time, who dropped the 5-year old from the vacant apartment when he refused to steal candy for them. (Liability & Insurance Week – November 12, 2001)

Class action sought against maker of dialysis machines

$10 million award to child afflicted with cerebral palsy

A jury in Ogle County, Illinois, awarded $10 million to a child afflicted with cerebral palsy as a result of a delayed diagnosis of pre-term labor. The jury found the local hospital liable for medical negligence in failing to timely recognize signs and symptoms of a 27-week pre-term labor, which resulted in a premature birth, two months of respirator dependence, and severe neurological injury. (Press Release, November 16, 2001)

Arizona class action against state farm settled for $45 million

State Farm has agreed to pay $45 million to settle a class-action lawsuit brought by Arizona policyholders who claimed the company refused to let them “stack” benefits despite its use of language allowing them to do so. Each claimant will receive at least $50,000. The plaintiffs’ attorney told the judge his side decided to settle because of concerns that the case could drag on for years and a jury could be reversed by the Arizona Court of Appeals. State Farm agreed to settle to avoid litigation costs and an “adverse relationship with our customers.” (Liability & Insurance Week – November 19, 2001)

Illinois Supreme Court creates new committee

The Illinois Supreme Court has created a panel to study attorneys’ behavior and recommend ways for them to be more respectful to each other and their clients. The Special Supreme Court Committee on Civility will also look at maintaining civility during depositions and when filing pretrial motions. Attorneys on the panel blame several factors for the apparent rise in incivility. Legal television shows, they say, give clients the impression they need tough-as-nails attorneys to beat the opposition into submission. The panel will meet for the first time in mid-December. (Chicago Sun-Times – November 21, 2001)