Vested Interest - Tort Briefs - July 1998 Issue

BLACK WORKERS FILE CIVIL RIGHTS SUIT AGAINST GOODYEAR TIRE

Black workers at a Goodyear Tire facility in New Jersey claim that they have been subjected to racial slurs, denied promotions, and assigned only the most physically demanding tasks, solely because of their race. When grievances filed with their union and with the state Division of Civil Rights failed to correct these wrongs, they turned to the civil justice system, filing a lawsuit to compel the company to take action. The workers note that not one black worker has been promoted from an hourly wage position to a salaried supervisory j ob, even though many whites have been. (AP, June 3, 1998)

STUDY REFUTES HIGH COST" OF PRODUCTS LIABILITY

A new report by the Consumer Federation of America found that the cost of products liability insurance is low and has been declining. The report, written by Robert Hunter, former federal and state insurance regulator, found that the cost of products liability insurance averaged 24 cents for every $100.00 in product cost over the last decade, and cost just 16 centsperS100 in 1996. The study also estimates that the total cost ofproducts liability verdicts over the past decade was just $15.5 billion, or less than g1.6 billion per year. The average payout was just S 11,956. The findings of the CFA study echo the results of a recent report by the Coalition for Consumer Rights entitled, "The Declining Cost of Liability Insurance: Illinois and Other Industrial States, 1990-1996". (Copies of the report are available from the CFA at 202-387-6121)

SUPREME COURT AFFIRMS RULES ADA COVERS HIV INFECTION

Dentist Randon Bragdon refused to treat a patient because she was infected with HIV and he feared he might contract AIDS. The federal district court and the First Circuit Court ruled that Bragdon failed to present sufficient scientific evidence to support his fears, and that his refusal may have violated the Americans with Disabilities Act. The Supreme Court ruling is the first to affirm that HIV infection qualifies for protection under the ADA. Justice Kennedy wrote for a 5-4 court in Bragdon v Abbott (97-156) that "HIV infection satisfies the statutory and regulatory definition of a physical impairment during every stage of the disease." (AP, June 25, 1998)

ATTORNEY-CLIENT PAGE EXTENDS BEYOND DEATH: SUPREME COURT

In a rebuke to Prosecutor Kenneth Starr, the U.S. Supreme Court has ruled that attorneys cannot be compelled to reveal notes of discussions with clients even after the client has died. "The privilege is intended to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice, "wrote Chief Justice Rehnquist for a 6-membermajority. He continued, the "body of law requires that the attorney-client privilege prevent disclosure of the notes at issue in this case." The case was brought by Special Prosecutor Kenneth Starr, in a effort to obtain notes taken by Vincent Foster's attorney just prior to Foster's suicide. (AP, June 25, 1998)

SUPREME COURT AFFIRMS EMPLOYERS' VICARIOUS LIABILITY IN HARASSMENT SUITS

The U.S. Supreme Court has ruled that employers are always potentially liable for sexual harassment committed by their employees against other workers. A 7-2 ruling written by Justice Kennedy concluded that "an employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee-" (Parenthetical original) The ruling answered a pair of lawsuits from Florida and Illinois, Faragher v City of Boca Raton (No. 97-282) and Burlington Industries v Ellerth (No. 97-569). (AP, June 26, 1998)

ILLINOIS SUPREME COURT CLARIFIES REQUIREMENTS FOR WORKERS COMP 19-B-1 PETITIONS

Injured workers whose TTD benefits have been cut off do not need to prove that they are unable to perform any work prior to filing an emergency 19 (b-1) petition. Claimant Sun Choi was injured while lifting a patient at the intensive care unit at Ravenswood Hospital in 1992. In 1993, after her employer had terminated TTD payments, Choi filed for a 19(b-1) hearing. The arbitrator granted the hearing, but Ravenswood appealed, claiming that Choi failed to prove that she was physically incapable of performing any work, citing Kaplan v Industrial Commission [195 11 App 3d 640 (1990)] and won at the Commission, Circuit Court and Appellate Court levels. The Supreme Court reversed without dissent, holding that the phrase "inability to return to work" in Section 19(b-1) does not mean an inability to perform any work, but should be read in the context of the purpose of 19(b-1): "to address the possibility that an unscrupulous employer or insurance company might withhold ... benefits... in an attempt to pressure the employee into accepting a settlement." (At 6). (Copies of the decision, Sun Choi v Industrial Commission, Docket No. 82887, are available from the ITLA office)

FLORIDA APPEALS COURT OVERTURNS TOBACCO VERDICT

In 1996, a Florida jury returned the second plaintiff's verdict in a tobacco case, ordering Brown & Williamson to pay $750,000 in damages to a smoker with cancer. Now an appeals court has overturned the verdict, finding that the plaintiff waited too long to file his claim. Grady Carter waited more than four years from the time he knew or should have known that smoking contributed to his cancer to bring his claim, the court ruled. Carter's verdict was the second plaintiff's verdict in a tobacco case; the first was appealed and later dropped, and the third and most recent is still on appeal. (Chicago Sun-Times, June 23, 1998)

U.S. SUPREME COURT TO DECIDE IF RICO APPLIES TO MANAGED CARE EMS

A group of Nevada HMO customers will have their case against Humana, Inc., heard by the U.S. Supreme Court. Plaintiffs claim that the HMO's refusal to fully disclose the discounts it negotiates with care providers violates the federal Racketeer Influenced and Corrupt Organizations Act (RICO). The discounts affect patients' co-payments and other fees. The HMO cites as its defense the McCarran-Ferguson Act, which reserves insurance regulation to the states. (AP, June 22,1998)

OAK LAWN HOTEL SETTLES RACE CLAIM FOR $1 MILLION

A Holiday Inn in Oak Lawn, Illinois, routinely discriminated against black job seekers, marking their applications with the number "8", for the black 8-ball in pool. Roughly 1,000 black applicants for jobs at the hotel were denied employment between 1990 and 1995. Plaintiffs also claimed that the hotel assigned black guests to first floor rooms to facilitate evacuation if the police came to arrest them. The hotel has agreed to settle an EEOC lawsuit by paying plaintiffs $1 million. The hotel admits to the use of the number "8" to designate black applicants, but continues to deny the other allegations. (AP, May 30, 1998)

U.S. SENATE LIMITS LAWYERS FEES, THEN ILLS BILL

The U.S. Senate voted 49 to 48 to limit lawyers fees in the proposed tobacco bill according to a sliding scale based on the length of time since the lawyer became involved in the proposal. "For those who were in this litigation early, the reward they have earned is considerably larger than the awards that will be earned by those who got into this litigation very late, "amendment sponsor Sen. Slade Gorton (R-WA) explained. The next day, however, the Senate killed the tobacco bill by refusing to limit debate. Democrats vowed to try to tack tobacco legislation on to other bills, but did not indicate whether or not the efforts will include limits on attorneys' fees. (New York Times, June 17, 1998; Chicago Sun-Times, June 18, 1998)

JURORS ISSUE $1 MILLION VERDICT FOR LANGUAGE-BASED INSURANCE DENIAL

A Miami couple applied for a policy from Midland Life Insurance through their daughter, an agent of the company. While processing the application, the company asked the agent if the applicants spoke English and were citizens. The company then denied the policy on non-medical reasons. At issue was whether the denial violated federal protections against discrimination on the basis of national origin. At trial, the company's adjuster testified that he denied the policy because the couple did not speak English. Jurors returned a plaintiff's verdict for $1 million. The company may appeal. (AP, May 28, 1998)

JUDGE IN TWA CASE RULES HIGH SEAS ACT INAPPLICABLE

Because TWA Flight 800 exploded off the coast of Long Island, the airline and the airplane manufacturer hoped that the Death on the High Seas Act would limit their liability. The High Seas Act restricts noneconomic damages. U.S. District Judge Robert W. Sweet, though, ruled that because the plane was just 3 miles from shore, the incident did not occur on the high seas, defined by the Reagan Administration as 12 miles off the coast. Still to be decided is that applicability of the Warsaw Convention, which would also limit damages. (AP, June 3, 1998)

U.S. SUPREME COURT DENIES NONECONOMIC DAMAGES TO VICTIMS IN INTERNATIONAL WATERS

According to the appeals court, the 1983 downing of a Korean Airlines plane over Soviet territory resulted from the wilful misconduct of the airlines. While that situation is not covered by the Warsaw Convention, which governs air disasters in international waters, relatives of five of the 230 victims hoped that U.S. courts could allow a jury to issue compensation for pain and suffering. A 1996 U.S. Supreme Court ruling held that the victims could not claim loss of companionship, and in Dooley v Korean Air Lines (97?704), the high court expanded that limit. Justice Clarence Thomas' ruling for a unanimous court blocked compensation for pain and suffering. (AP, June 8, 1998)

LITTLE LEAGUE BALL PLAYER STRUCK BY TEAMMATE

The Union City (Connecticut) Little League has clear rules that players are not to pick up a bat while in the dugout, and signs posted in the dugouts at all games reinforce that rule, but Michael Albert, 8, took practice swings anyway. While swinging, he struck Brittany Gauvin, also 8, in the head. Gauvin suffered trauma and memory loss, and has recurring headaches as a result. Gauvin has now sued both Albert and the league, claiming damages for past and future medical expenses. (AP, June 8, 1998)

9TH CIRCUIT COURT LIMITS POLICE IMMUNITY

When Juan Penilla became seriously ill on the front porch of his home, neighbors called 911. Police responding to the call carried Penilla inside, locked the door, canceled the call for an ambulance, and left. Family members found Penilla dead the next day. In Settles v Penilla (97?664), the 9'" Circuit Court revisited issues from a 1989 Supreme Court decision that held that police have no duty to protect people not in their custody from harm. Plaintiffs argued that the officers' actions significantly added to the danger faced by Penilla. The appellate court agreed, ruling, "The officers alleged conduct ... clearly placed Penilla in a more dangerous position than the one in which they found him." The U.S. Supreme Court has denied certiorari, allowing the case to go to trial.. (AP, June 1,1998)

U.S. SUPREME COURT TO CONSIDER REACH OF FEDERAL LAW IN EMPLOYMENT TERMINATION CASES

Michael Haddle was an at? will employee of Healthmaster, Inc, a Medicare health provider. In 1994, he cooperated in a federal investigation of fraudulent billing at Healthmaster that resulted in guilty pleas by the company president and other officers. The following year he was fired without cause. Haddle sued, claiming that his termination ran afoul of an 1871 federal law banning intimidation of witnesses in federal trials. His suit was dismissed by the district court, and the 11 '"Circuit affirmed. Now the U.S. Supreme Court has agreed to hear his claim, Haddle v Garrison (97?1472). (AP, May 26, 1998)

OREGON DOCTOR LIABLE FOR DELIBERATELY FOSTERING ADDICTION

Larry Benson, who then worked in a grocery store, first sought treatment from Dr. David Rosencrantz in 1979. Rosencrantz issued a prescription forpainkillers. Later, Rosencrantzbegan to demand free food in exchange for the prescriptions. When Benson took a new job at a car dealership, Rosencrantz began to demand free tires, tune-ups for his relatives' cars, and other free equipment, in exchange for writing prescriptions. After Benson, now 42, finally found treatment for his addiction, he filed suit, and a jury returned a verdict for $600,000 in compensatories and $300,000 in punitives. (AP, June 4,1998)