Vested Interest - Tort Briefs - January 1999 Issue

Washington State Supreme Court Overturns Some Tort Deforms

The Washington State Supreme Court has ruled that the statute of repose for medical malpractice cases violates the state constitution’s equal protection clause by discriminating between classes of injury victims. The 1976 provision required that all medical malpractice claims be filed within 8 years of the injury, regardless of the date the injury was discovered. Elsewhere, Washington law requires medical malpractice claims to be filed within three years of injury, or one year of discovery. The ruling held that the statute of repose “does not bear a rational relationship to the purpose of the statute” to justify the discrimination against medical malpractice victims.(Liability Week, November 23, 1998)

District of Columbia Liable for Refusal to Treat Transvestite

A 1995 car crash left several passengers injured. Paramedics arriving on the scene initially started treatment on one, but stopped for at least 5 minutes, during which they ridiculed the victim, when they realized that he was a man in drag. The victim died from his injuries, and a jury has determined that the DC Fire Department is liable for $2.9 million because its paramedics’ actions violated the D.C. Human Rights Act and resulted in the death. The jury also concluded that the hospital provided inadequate care, and should share in the liability. (AP, December 12, 1998)

U.S. Supreme Court Reviews Guidelines for Expert Testimony

An Alabama case has prompted the U.S. Supreme Court to review its 1993 Daubert ruling on expert testimony. Observers expect the Court to use a suit involving a defective tire to determine whether Daubert applies equally to scientific and non-scientific expert testimony. Patrick Carmichael and his family are suing Kumho Tire, alleging defective manufacture caused their minivan to overturn, killing one. They sought to introduce Dennis Carlson as an expert at tire design, but Kumho objected, claiming Carlson failed to meet the Daubert criteria. The district court judge agreed, but the 11th Circuit overturned, setting the stage for the the U.S. Supreme Court to act. (AP, December 7, 1998)

Congressmen Press Supreme Court on Minority Hiring

Three members of Congress, including Rep. Danny K. Davis (D-Chicago), have formally requested a meeting with justices of the Supreme Court to discuss hiring minorities as law clerks. Of the 428 clerks hired by current justices, just 25% were women, and just 2% were black. Writing in response, Chief Justice Rehnquist asserted that the justices were satisfied that their processes were not biased against minorities, and that a formal meeting would be inappropriate, though he noted that individual members of the Court were open to “recommendations and comments from all segments of the bar”, including the predominantly black National Bar Association and the National Organization for Women, both of which have decried the lack of minority hiring. (AP, December 2, 1998)

U.S. Supreme Court Supports Penalty for Frivolous Lawsuit

Bob Glaser claimed to have suffered significant harm at a Billy Joel/Elton John concert at San Diego’s Jack Murphy Stadium, when he encountered women in the men’s room. He sued the city as managers of the stadium and the beer distributor claiming they contributed to his need for the restroom. A trial court threw out his complaint, and forced him to pay $4,000, half to the city and half to the distributor, to cover their costs. The 9th Circuit upheld the penalty, and now the U.S. Supreme Court has refused his appeal. (AP, December 7, 1998)

Guns: The Next Tobacco?

A New York trial judge has allowed claims to go to trial that gun makers negligently market their products without concern for likely illegal uses. For the first time ever, plaintiffs will allege that gun makers sell a disproportionate share of their wares in states with lax gun control laws, feeding a pipeline of illegally transshipped weapons, and steadily increase production of weapons favored by criminals, thus making them civilly liable for damages to shooting victims. Lead plaintiff attorney Elisa Barnes alleges that the gun makers’ indiscriminate marketing constitutes actionable negligence. The cities of Chicago and New Orleans have already filed their own lawsuits against the industry, and others, including Los Angeles, Philadelphia, and Baltimore, are reportedly considering similar suits. (AP, December 24, 1998)

Insurance Restrictions Violate ADA: U.S. District Judge

Two men suffering from HIV infection but who have not developed AIDS sued Mutual of Omaha Insurance Company, claiming that the insurer’s limit on lifetime treatment expenses for HIV-related illnesses were arbitrary and in violation of the Americans with Disabilities Act. U.S. District Judge Suzanne Conlon has agreed, finding the limits “cruel and illegal.” Expert witnesses testified at trial that there is no actuarial basis for the limits on HIV-related illnesses. (Chicago Sun-Times, December 4, 1998)

Lawsuits Force Customs Officials to Re-evaluate Search Policies

U.S. Customs officials searched 49,592 people during fiscal year 1997. Nearly 2,000 were strip searched, almost 700 were x-rayed, and 19 were subjected to body cavity searches by a doctor. Many were detained for hours on end, some for days, without being allowed to call a lawyer or their families. Yet most (73%) were not found to be carrying drugs. Lawsuits around the country, filed on behalf of the innocent, are forcing the Customs Service to reconsider its policies. Noting that those searched were disproportionately minority and female, lawyers have challenged the policies as discriminatory. Customs officials have pledged to find a better way. (AP, December 3, 1998)

Skier Sues Resort Over Sign Placement

Skiers typically enjoy their sport at their own risk. The ethos of the sport and court rulings suggest that participants accept the inherent riskiness of skiing. But a California court has ruled that a skier can sue a resort over the placement of a warning sign. John M. Van Dyke was permanently paralyzed when he hit a warning sign at the Bear Mountain resort in California. He alleged that the sign was not a risk normally accepted by skiers, as trees, rocks, and snow hazards are. Moreover, he claimed the resort obscured the sign in such a way as to make it hidden from view. The case was dismissed at trial, but the 4th Circuit reinstated, concluding that the resort could be liable for the placement of its signs. (AP, November 25, 1998)

Defibrillators Credited with First Saved Life

Perhaps a dozen lawsuits have alleged that airlines should carry defibrillators to assist passengers in the event of a heart attack. American Airlines was the first carrier to agree to place the devices on planes, and now they can claim the first saved life. Michael Tighe was flying from Boston when he suffered cardiac arrest. While his wife performed CPR, flight attendants readied the defibrillator and located a doctor among the other passengers. Tighe was successfully revived, and credits the defibrillator with saving his life. (AP, November 25, 1998)

Lawsuit’s Effect on Lawyer

Jan Schlichtmann, profiled in the recent movie A Civil Action, reports that the environmental case that made him famous changed his life in numerous ways. An experienced trial lawyer before he agreed to take the case, Schlichtmann now says the case ruined him financially and changed the way he approaches potential clients. “Woburn was a war,” he now says, adding “the greatest victories are those that can be shared with everyone.” Today, he is more willing to negotiate settlements, seeking to avoid the all-or-nothing mentality that nearly cost him his sanity and his clients their rightful compensation. (AP, December 26, 1998)

Unanimous 9th Circuit Upholds Suit Over Airline “Service”

Five airline passengers sued their carrier over injuries sustained in flight by an errant food cart, but the carrier sought dismissal under a 1978 law barring state court lawsuits “relating to the rates, routes, or service of any air carrier.” Defendants alleged that “service” under the federal law included food service. Judge Barry Silverman, writing an 11-0 decision in the 9th Circuit Court of Appeals, disagreed. He concluded that, in context, “service” describes the frequency and scheduling of flight schedules, not ‘the pushing of beverage carts, keeping the aisles clear of stumbling blocks, the safe handling and storage of luggage, assistance to passengers in need, or like functions.” (AP, December 1, 1998)

GERMAN DOCS STRIKE OVER INCOME CAP

Doctors across Germany shut their offices on December 18th in opposition to a new law capping their income. It was the first major protest against the 7-week-old government of Chancellor Gerhard Schroeder. At least half of Germany's 110,000 doctors with private practices took part in the one-day action, their national association said, adding that enough physicians remained on the job to guarantee emergency care. (America Online)