Vested Interest - Tort Briefs - June 2003 Issue

Settlement for Paralysis Following Fall

A man who was left paralyzed below the waist after he fell two stories from a balcony has agreed to a settlement with the property owner and with the hospital that failed to treat his fractured spine. The man fell twenty feet over a railing that was not up to code. The hospital only X-rayed his neck, chest, abdomen and pelvis, not his mid or lower back. The man’s spinal cord was severed while he was in a hospital bed, resulting in permanent paralysis. (Chicago Daily Law Bulletin – April 25, 2003)

Hospital Agrees to Settlement After Failing to Treat

A Chicago hospital has agreed to a settlement with the family of a 15-year-old boy who died in an alley outside the hospital. Workers at the hospital refused to help the boy as he lay suffering from a gunshot wound 50 feet from the emergency room door. A supervising nurse rejected treatment saying it was hospital policy not to help people outside the hospital. The attorney for the family discovered that, in fact, the hospital’s official policy was to help people outside the hospital. (Chicago Sun-Times – May 1, 2003)

Beverly Hills High School a Hazard

Allegations that the elite Beverly Hills High School is the site of a "cancer cluster" are scaring parents and swinging the spotlight again to the environmental sleuth profiled in the movie Erin Brockovich. Ed Masry and Brockovich allege that toxic fumes from oil wells on the campus have caused 280 cases of Hodgkin’s disease, non-Hodgkin’s lymphoma and thyroid cancer since the 1970s. For the population, the statistics are 20 times higher than the national average. (ATLA Law News Digest – May 1, 2003)

U.S. Court Upholds Constitutionality of Federal Law

The U.S. Supreme Court has upheld the constitutionality of a federal law that tolls the statute of limitations on supplemental state-law claims against municipalities while a federal case is pending. The opinion reverses a South Carolina Supreme Court holding in Jinks v. Richland County, which set aside an $80,000 verdict a plaintiff won after her husband died in the county detention center. At issue in Jinks was 28 U.S.C. Sect. 1367 (d). Under that procedural rule, when a federal claim is pending in the U.S. District Court, the statute of limitation is tolled on any supplemental state claims. If the federal claim is dismissed, the judge can dismiss the state claims without prejudice. The South Carolina court struck down a portion of that rule, holding it unconstitutionally interfered with the state’s sovereign power to regulate claims against its political subdivisions, time-barring the plaintiffs claim. (ATLA Law News Digest – May 1, 2003)

High Bar Set for Drug Makers

The Michigan Supreme Court in Taylor v. Smith-Kline Beecham Corp. and Robards v. Gate Pharmaceuticals has upheld the constitutionality of a statute that limits lawsuits against drug makers for defective drugs when the drugs have been approved by the U.S. FDA and comply with its labeling requirements. The ruling arose in the appeal of four separate lawsuits filed against four different manufacturers of the diet drug combination known as fen-phen, after trial courts reached opposite results on the defendants’ motions for summary judgement. (ATLA Law News Digest – May 1, 2003)

Settlement Following Troubled Pregnancy

An Indiana woman who gave birth to twin boys, one of them stillborn and the other severely brain damaged, has settled a malpractice suit against the hospital and medical personnel. The woman contended that an ultrasound test had been misinterpreted, and a correct reading might have alerted her to a troubled pregnancy. The twin born with brain damage is not expected to live beyond age 10 and requires constant care. (Chicago Daily Law Bulletin – May 5, 2003)

Jury Returns Verdict Against Nurse for Failed Care

A Cook County jury returned a verdict in favor of the family of a man who died after a nurse allegedly failed to properly treat the man’s life-threatening illness. The man was treated for diabetes and asthma at the hospital. When he returned home, a home care nurse failed to recognize that he developed pneumonia. He died four hours after family members took him to the hospital. (Chicago Daily Law Bulletin – May 13, 2003)

Gun Maker Found Liable in Shooting

A California jury has awarded compensatory damages in an accidental shooting for which a California gun maker, its designer and its main distributor had been found partly liable. A 7-year-old boy was left paralyzed when his baby sitter accidentally discharged a .38-caliber semiautomatic while trying to unload it. Over the years, the gun industry has argued successfully that the weapons are legal and are performing as intended when they kill or injure. (ATLA Law News Digest – May 15, 2003)

Cellphone Makers Liable for Accidents?

Law professor Jordan Michael believes cellphone manufacturers should be held liable for failing to warn customers about the dangers of talking on the phone while driving. Holding cellphone companies accountable, he argues, is a natural extension of the growing number of lawsuits against companies whose employees get into accidents, because they are encouraged to conduct business while driving. Issuing warnings would also work to the manufacturers advantage, because it would help shield them from liability, said Michael, who teaches law at Bentley College and is a business attorney in Waltham, Massachusetts. (ATLA Law News Digest – May 1, 2003)

Rezulin Plaintiff Awarded Verdict

A New York jury returned an award for a woman who suffered side effects from the diabetes drug Rezulin, but had no evidence of permanent liver damage. With approximately 8,700 Rezulin lawsuits filed across the country, the case was watched closely for indications of whether the mass tort is likely to be successful. Both sides claimed the Morgado v. Warner-Lambert verdict demonstrates the strength of their arguments. (ATLA Law News Digest – May 15, 2003)

Workers’ Compensation Claimant Entitled To Benefits During Break

The Nebraska Supreme Court found an employer retained control over an employee who sustained injuries while she traveled off-premises to purchase soft drinks during her break, and thus, her injuries arose in the course of her employment and were compensable under the workers’ compensation statute. The supervisor acquiesced to the employee’s request to go off-premises, and the employee had previously traveled off-premises to purchase soft drinks, sometimes at the request of her supervisor. (ATLA Law News Digest – May 15, 2003)

Wood vs. Aluminum Bat Debate

Aluminum bat manufacturer Hillerich & Bradsby Co. is at the center of a federal lawsuit charging that they knew their bat design increased the risk of injury to pitchers. The former employee that designed the bat quit the firm after saying company officials ignored warnings that its’ Air Attack aluminum bat was dangerous. The suit was filed in U.S. District Court in Chicago on behalf of a high school pitcher who spent 11 days in a coma after being hit in the skull from a ball flying off an Air Attack bat. Two years ago, the U.S. Consumer Product Safety Commission denied a petition to ban aluminum bats due to insufficient data. (Chicago Tribune – May 28, 2003)

Aetna to Settle Suit by Doctors

Aetna, one of the nation’s largest health insurers, has agreed to settle a major class action brought by physicians and to overhaul business practices that doctors say have shortchanged patient care. Aetna Inc. has agreed to be more transparent in how it operates and include physicians in its decision-making. Aetna will pay a total of $170 million, which includes a $100 million payment to the estimated 700,000 physicians in the class action suit. The value to doctors of changes in the way Aetna does business could mean $300 million or more for physicians over the next several years. (Chicago Tribune – May 22, 2003)

Advisory Jury Declines To Find Gun Industry Liable

Gun dealers and manufacturers earned a major victory in People v. Sturm Ruger & Co. when a federal advisory jury refused to hold them liable for the trade in illegal guns that are used in violent crimes against urban blacks. An Eastern District of New York senior judge is now expected to issue a ruling within 30 days that lawyers for both sides expect will embrace the jury’s verdict. The panel of 12 jurors issued a finding of no liability for 45 of the defendants and was unable to reach a verdict for the remaining 23 manufacturers or gun dealers - an indication that a minimum of two jurors voted for liability. Rarely used, an advisory jury does not render a legally binding verdict, but is used by a judge to help render a decision. (ATLA Law News Digest – May 22, 2003)

Ruling Makes Email Evidence More Accessible

UBS Warburg was ordered to pay for the search and recovery of email messages requested by the plaintiff in Zubulake v. UBS Warburg, giving aggrieved investors a new legal tool to support their cases against investment banks. A judge in the Southern District of New York, said that UBS had to dig into its archives and pay for the restoration of a limited batch of email messages sought by a former employee who is suing the firm for sexual discrimination and retaliatory dismissal. The judge’s opinion is already being referred to by lawyers representing investors and investment banks as a definitive piece of jurisprudence. It suggests that investment banks will have to take responsibility and pay for the recovery of email messages as long as plaintiffs can demonstrate that the evidence sought is relevant to their cases. Arbitration lawyers say that the judge’s decision will change the economics of arbitration cases involving investors seeking damages from investment banks over fraudulent research. (ATLA Law News Digest – May 22, 2003)

Injuries Would Not Have Occurred Absent Negligence

In McGuire v. Davidson Mfg. Corp., the United States District Court, N.D. Iowa, Western Division, ruled the evidence was sufficient to support a finding that the injuries a ladder user sustained during a fall when the ladder he was using broke reasonably would not have occurred if ordinary care had been used in manufacturing and distributing the ladder. This finding was required to hold the ladder manufacturer liable for his injuries under a theory of res ipsa loquitur. The user presented alternative theories of recovery relating to defects in both the design and manufacture of the ladder. However, the user presented evidence to support each theory and at no time indicated that he was electing to proceed on only one theory. (ATLA Law News Digest – May 22, 2003)

Wyeth Says 90,000 Opt Out of National fen-phen Pact

Wyeth said 90,000 people have opted out of a national settlement for heart damage linked to diet drugs, raising the possibility that the company might have to set aside more money to cover future claims. Wyeth has recorded $14.6 billion in litigation charges related to the diet drugs Redux and Pondimin, part of the once-popular diet drug cocktail called fen-phen. Wyeth withdrew the drugs from the market in 1997 and ever since has been dealing with claims that they caused heart damage. As part of a national class-action settlement, a trust was established to pay claims that meet specific medical standards. About $600 million remains in the trust, and Wyeth has an additional $1.82 billion in litigation reserves left. (ATLA Law News Digest – May 22, 2003)

Cost of Turning Away Patients

A Michigan jury has returned a verdict in favor of the family of an obese man, because he was denied treatment at a hospital after a car crash. The Michigan jury ordered, in Snider-Smith v. Botsford General Hospital, the hospital to pay the family for the death of a 500-pound man who died en route to a second hospital. (ATLA Law News Digest – May 22, 2003)

U.S. Supreme Court Says States Not Exempt

The U.S. Supreme Court refused to exempt states from a federal law that authorizes employees to sue for back pay if they are denied a leave of absence to care for a sick family member. In an opinion by Chief Justice William Rehnquist, the court turned away arguments by Nevada officials that states were immune from lawsuits by employees under the Family and Medical Leave Act. It said that the law was passed to address historic sex bias in granting leave for family emergencies, and that Congress’ strong interest in addressing sex discrimination trumps any states’ rights concerns. (Chicago Tribune – May 28, 2003)