Vested Interest - Tort Briefs - July 1999 Issue

Jury Issues $3.75 Million Verdict for Female-on-Male Sex Harassment

For four years, from 1990 to 1994, Rhonda Turner followed fellow guard Robert Lockley, Jr., around the Mid-State Correctional Facility in New Jersey, attempting to seduce him. He refused and reported her behavior to his supervisor. But the prison took no corrective steps, others began to taunt him for his refusal to break his marriage vows, and his supervisor took retaliatory action against him for reporting the problem. But a lawsuit brought results. A jury returned a verdict including $750,000 in compensatories and $3 million in punitives. The State has appealed. (AP, May 29, 1999)

Pro-Democracy Activists Sue Chinese Government Over Tiananmen Square Abuses

Chinese activists barred from commemorating the protests in Tiananmen Square found another way to mark the anniversary. Ten years after police attacked peaceful activists, killing an untold number, survivors and their families filed a lawsuit in Chinese court, seeking the release of political prisoners and the safe return from exile of the protest leaders. Ding Zilin, whose son was killed, organized the lawsuit, in part by staking out gravesites dated June 4, 1989 and talking to mourners. She has amassed evidence from 160 victims’ families and 70 wounded protestors, all of whom have joined the lawsuit. (AP, June 1, 1999)

City of Philadelphia Pays $1.1 Million to Settle Fatal Police Crash Case

LeeMore Rich and his infant son were walking down a city sidewalk when two police cars responding to a call collided. One car, out of control, hopped the curb and struck the two pedestrians. In pre-trial motions, a federal judge ruled that there was no evidence of intent on the part of the officers to cause the deaths, but that the police department could have displayed deliberate indifference to the possibility of such accidents. Before the case actually went to trial, the city offered to settle for $1.12 million. (AP, June 2, 1999)

Alabama Ethics Commission Questions Judge’s Fund

Alabama authorities are looking into charges that a Gadsden judge improperly used the “mantle of his office” to raise money for a non-profit under his control. Judge Roy Moore first garnered national attention for posting the Ten Commandments in his courtroom. The ACLU brought suit, alleging that the hand-carved display violated the First Amendment’s guarantee of the separation of church and state. The fund in question is officially designed to pay for legal defense in the ACLU suit. The Alabama Ethics Commission alleges, however, that the funds were improperly spent, and may have benefitted Judge Moore, a charge he denies. (AP, June 3, 1999)

Peer Review Records May Be Accessible Through EMTALA: U.S. Appeals Court

David Burrows and Rhoda Thomas took their eleven-month-old son, Cody Burrows, to the emergency room of Redbud Community Hospital in 1996. Doctors at Redbud examined Cody and ordered him transferred from the Clearlake, California, hospital to Santa Rosa Community Hospital, an hour away. Cody died shortly after arriving at Santa Rosa. The parents brought suit under the federal Emergency Medical Treatment and Active Labor Act, and sought access to peer-review documents related to Cody’s treatment. While many state laws hold that peer review records are confidential, the federal EMTALA does not, and the trial and appellate courts held that the peer review records are reachable through discovery. The U.S. Supreme Court rejected the appeal, disappointing several insurer and doctors’ groups who had urged the Court to overturn. The cases are Schug v Burrows (98-1526) and Redbud Community Hospital v Northern District of California (98-1513). (Bloomberg, June 7, 1999)

U.S. Supreme Court Sets Standards for Class Action Settlements

Most class action settlements allow class members to opt out of the group and pursue their own claims against the defendants. When asbestos manufacturer Fibreboard proposed a settlement with a class action in Texas, however, it sought to make its offer binding on all class members. Plaintiffs’ attorneys agreed, and the court approved a settlement that limited total payments to all class members by denying them the right to opt out if they disagreed with the settlement. On appeal to the U.S. Supreme Court, dissident class members sought to have the settlement thrown out. By a 7-2 margin, they got their wish. In Ortiz v Fibreboard (97-1704), Justice Souter for the majority noted that differences between class members mandated that they be given the option of leaving the class if they believed the settlement was not in their best interests. (AP, June 23, 1999)

Chicago Jury Returns $14 Million Verdict Against Com Ed

Nancy Epping was driving around Chicago when the driver of an on-coming Com Ed truck took his eyes off the road, crossed the center line, and smashed into her car. As a result of her injuries, she needs a wheelchair to get around. A jury found for plaintiff, issuing a verdict for $14 million. Com Ed, which admitted liability, said, “We think the jury’s verdict reflects a fair compromise between our two positions.” (Reuters, May 28, 1999)

Doctor’s Failure to Diagnose Bee Allergy Results in $5 Million Verdict

Daniel Topham was stung by two bees in the same week in 1992, causing an allergic reaction that nearly killed him. His allergist, Dr. Gail Shapiro, prescribed epinephrine, which Topham could inject himself if he was stung again. Four years later, Dr. Shapiro administered a skin test for bee allergies that produced negative results. From that point on, she declined to renew Topham’s epinephrine prescription, or to use venom therapy to prepare Topham’s immune system for future stings. Topham was stung again in 1997, and suffered cardiac arrest. After two weeks in a coma, he has permanent and severe brain damage. A Seattle jury agreed that Shapiro should have tried more tests to confirm the accuracy of the negative skin test, and issued a verdict for $5 million. Dr. Shapiro has said she will not to appeal the verdict. (AP, July 1, 1999)

U Cal Irvine to Pay $20 Million to Settle Fertility Suits

Dozens of couples, seeking treatment for their inability to conceive, trusted doctors at the University of California at Irvine. But two of these doctors failed to earn that trust. They lost and mislabeled embryos and, in some cases, implanted fertilized eggs from one couple into another woman’s womb without permission from any of the parties. At least a dozen of these mix-ups resulted in births. Acknowledging that 46 eggs and embryos were misused, the facility has agreed to pay settlements averaging $184,000 to couples who were wrongly implanted. Total payments are expected to exceed $20 million. (AP, June 15, 1999)

Hospital to Pay $76 Million for Ignoring Pregnant Woman: New York Jury

A Haitian immigrant arrived at Harlem Hospital to deliver her baby. Staff failed to examine her to see how her labor was progressing. They also failed to conduct a sonogram, which would have shown that the baby’s umbilical cord was wrapped around its head. When the baby arrived, no medical staff came to assist – “no doctor, no nurse, no one,” according to her attorney. Now twelve, the baby, a girl named Gaelle, suffers from cerebral palsy, cannot read or write and requires around-the-clock care. A jury has ordered the hospital to pay $76 million for its negligent treatment. (AP, June 15, 1999)

Sexual Abuse Settlement: $500,000 in Florida

A thirteen-year-old altar boy at St. Charles Borrorneo Catholic Church in Florida objected when Choir Director Richard Trepinski began to molest him. He took his complaints to Assistant Pastor Edward McLoughlin, who spanked him and then began his own abuse of the boy, which continued for two and a half years. Officials of the Catholic Diocese of Venice now acknowledge that Rev. Edward McLoughlin had a history of child sexual abuse, and that he was assigned to St. Charles so that his brother, Rev. Nicholas McLoughlin, could watch over him. Trepinski pleaded guilty in a criminal case and was sentenced to twenty years in prison. Rev. Edward McLoughlin is now living in Ireland. The Diocese has agreed to pay $500,000 to settle the boy’s lawsuit. (AP, June 11, 1999)

U.S. Supreme Court Limits Courts’ Authority to Freeze Assets in Civil Suits

Ruling in a commercial case, the U.S. Supreme Court held that courts cannot bar defendants from transferring assets in ways that might frustrate efforts to collect a judgment. The case, Grupo Mexicano de Desarrollo v Alliance Bond Fund (98-231) arose when a Mexican toll road defaulted on $75 million in interest on bonds sold to American investors. The investors sued and sought to prevent the toll road from disbursing $309 million in grants from the Mexican government. The trial court sided with the investors, as did the appellate court and, on appeal to the U.S. Supreme Court, the Clinton Administration. But a 5-4 majority of the court overturned, holding, according to Justice Scalia’s majority opinion, that conferring such powers on plaintiffs “might induce creditors to engage in a race to the courthouse ... which might prove financially fatal to the struggling debtor.” Justice Ruth Bader Ginsburg, joined by Justices Stevens, Souter, and Breyer, dissented, noting that defendants could “make themselves judgement proof” during proceedings. (AP, June 17, 1999)

1996 Prison Litigation Reform Act is Not Retroactive: U.S. Supreme Court

The Prison Litigation Reform Act, which limited attorneys' fees in cases filed on behalf of inmates, took effect April 26, 1996. Officials in Michigan sought to have the act applied retroactively to ongoing legal work on behalf of plaintiffs in a 1985 consent decree. Attorneys in that case had billed at a rate of $150 per hour to monitor the order. Michigan officials wanted that figure reduced to $112.50 for all work, even work completed prior to the effective date of the Act. In Martin v Hadix (98-262), Justice O’Connor wrote for a unanimous court that “to impose the new standards now, for work performed before the PLRA became effective, would upset the reasonable expectations of the parties.” Two justices, Ginsburg and Stevens, concurred, urging the Court to apply the Act only to cases that arose after the effective date, but the other justices declined to take that position. (AP, June 21, 1999)

Maryland Attorney Disciplined for Calling Adversary “Babe”

Betty Sue Aude filed a lawsuit against a man she accused of giving her a sexually transmitted disease. As she left the courtroom during the proceedings, defense attorney Alan Harris muttered that she was probably going to meet another boyfriend. When Aude’s attorney, Susan Green, objected, Harris remarked “I don’t have a problem with you, babe.” When Green asked what Harris meant by “babe”, Harris replied “At least I didn’t call you bimbo.” In addition to winning the case for Aude, Green secured an order prohibiting Harris and his client from having any further contact with either Aude or Green, and ordering Harris to pay Green $1,500 for her additional time to get that order. The Maryland appellate court has upheld the orders against Harris, noting that his use of the word “babe” marked “a crass attempt to gain an unfair advantage through the use of demeaning language.” (AP, June 4, 1999)