Vested Interest - Tort Briefs - March 1999 Issue

Gun Makers Liable: New York Jury

Cities and counties around the country have begun filing liability suits against gun manufacturers in an effort to recoup the costs of treating victims of gun violence. In the first civil trial of its kind, a New York federal jury agreed with plaintiff’s contentions, finding 15 of 25 gun makers liable for $4 million in damages. The New York suit was predicated on a theory of negligent distribution, alleging that defendants deliberately sold more guns in areas with lax laws in order to skirt tougher laws elsewhere. Plaintiffs claim makers sold guns with the knowledge that the weapons would be re-sold. The plaintiffs, all victims of gun violence, convinced the jury that negligent distribution was the proximate cause of their shootings. Others, including the NAACP and several cities and counties around the country, have filed or are considering similar suits. (AP, February 12 & 21, 1999)

California Jury Hands Down $51.5 Million Tobacco Verdict

Patricia Henley started smoking as a teenager and was never told of the risks involved. She now has inoperable cancer, and sued Phillip Morris for damages. A jury agreed that Phillip Morris illegally concealed evidence of tobacco’s addictiveness, leading Henley to smoke until she was too sick to continue. The verdict includes $50 million in punitives. Dr. Stanton Glantz, whose research uncovered the industry’s efforts to conceal the truth, noted, “The truth is out there now. The sheer magnitude of all the lying by the industry, all the covering up by the tobacco companies, has just permeated society.” (AP, February 10, 1999; Bloomberg, February 11, 1999)

Florida Tobacco Verdict Vacated for Improper Venue

Roland Maddox died from smoking-related cancer in 1997. His family secured a $1 million verdict against Brown & Williamson Tobacco Corp. in Duval County Circuit Court. But the First District Court of Appeal ordered the verdict vacated and the case sent to a different county for retrial, claiming that Duval County was not the proper venue for hearing the dispute. The Maddox verdict was the second plaintiff’s verdict in a tobacco case, and also became the second verdict to be overturned on appeal. Plaintiffs vow to fight on. (Reuters, February 1, 1999)

Employer Arrested for Blocking Jury Duty

Jennifer Sutton was happy to do her civic duty by serving on a Texas jury, but her boss was not. Despite advance notice of her court date, Warren Edwards assigned her additional work due that day and fired her when she left work to fulfill her obligation. Upon hearing this, Judge John M. Marshall dispatched deputies to Affiliated Computer Services to arrest Mr. Edwards. The employer now faces the possibility of contempt charges, and a lawsuit by Ms. Sutton seeking reinstatement. (AP, February 8, 1999)

Juror Finances Plaintiff’s Appeal

William Bowen was seated on the jury to hear a lawsuit filed by Joanne Bragg, claiming that her ex-husband had illegally hidden assets in their divorce proceedings. At the conclusion of oral arguments, Judge William C. Beverly approved defendants motion to dismiss. Jurors were offended, having decided that Bragg was due around $250,000 in damages. One juror, Bowen, decided to take action. He has offered to finance Bragg’s appeal. “From my viewpoint, it’s the right thing to do,” said Bowen. (AP, February 4, 1999)

$8.3 Million Verdict in News Anchor Sex-Age Bias Case

When a Connecticut TV station refused to renew Janet Peckinpaugh’s contract, the news anchor thought she smelled a rat. The station employed five anchors, including three women and two men, and she alleged they decided to release one woman to make the pairs come out even. She claimed that the station acted because of her age and gender, and because she had rejected the sexual advances of a male co-anchor. A Hartford jury agreed, issuing a verdict including $4.3 million in compensatories and $4 million in punitives. (Reuters, January 29, 1999)

Negligent HIV Diagnosis Leads Victim to Court

A Chicago resident was diagnosed with HIV, the virus associated with AIDS, in 1990 by Dr. David Blatt. He immediately began taking a daily drug regimen that included AZT and other treatments to preserve his health. Six years later he moved to Ohio, where he began treatment with another doctor, who administered an HIV test. HIV tests have a small false positive rate, and doctors are urged to recheck if the results show a positive response. The new test determined that Mark Savage did not have HIV, nor was he ever infected. When asked, Dr. Blatt was unable to document that he administered an HIV test to Savage in 1990. Savage’s malpractice suit is pending in Cook County. (Chicago Sun-Times, January 28, 1999)

Insurers’ Attorneys Argue Against Releasing Data on Work Practices

Several auto insurers routinely hire outside auditors to review bills from lawyers representing their insureds in lawsuits. In Montana, these lawyers have filed suit to challenge the practice, saying it interferes with attorney-client privilege. The dispute has now reached the Montana Supreme Court, with insurers claiming that since they pay the bills, they have a right to review the legal work. Attorneys for insureds, however, claim they work for the drivers, and claim that releasing information on the scope of their work could violate attorney-client confidentiality, or could violate state rules regarding professional conduct. (Federal & State Insurance Week, January 25, 1999)

Male Paramedic Owed Parental Leave: Maryland Jury

Kevin Knussman was overjoyed at the birth of his daughter, and overwhelmed at the task of caring for her and his wife, who was near death from complications during the delivery. His burden was multiplied when his employer, the Maryland State Police, rejected his request for family leave, claiming he was not the family’s primary caregiver. Instead, the Police claimed he had exhausted his sick leave for the year and denied him time off. Knussman sued, claiming that the 1993 Family Leave Act granted him 12 weeks of unpaid leave over and above his sick time. A jury agreed with Knussman’s claim, issuing a verdict for $375,000. (AP, February 3, 1999)

Former Employee Sues Red Cross, Implicates Dole

As part of his job with the American Red Cross, Gilbert Andrews was responsible for delivering equipment to the Mexican Red Cross in Mazatlan, Mexico. To avoid import duties on the equipment, the American Red Cross claimed it was donating the equipment to its Mexican counterpart. Nonetheless, the Mexican group paid for the shipment, then claimed Andrews embezzled the money when the equipment did not work. Andrews spent the better part of a year in a Mexican prison, waiting for American Red Cross officials to secure his release by clarifying their actions. Andrews is now suing the American Red Cross for $34 million, accusing the directors of “unconscionable and egregious conduct.” (AP, February 16, 1999)

Pennsylvania Jury Finds for Plaintiff in Air Bag Venting Case

Louise Crawley was driving a 1989 Chrysler LeBaron when she was in an accident and her air bag deployed. The air bag was designed with side vents to release the hot gas that inflated it, vents that aimed most of the gas at the exact spot where a driver would have her hands. Ms. Crawley suffered second degree burns, from which she recovered. But her case was certified as a class action, and the jury returned $730 for each of the 75,000 Chrysler cars sold with the defect in Pennsylvania. With punitives of $3.8 million, the total verdict came to $58.5 million. (AP, February 19, 1999)

OSHA Issues Ergonomics Plan

After years of wrangling with business groups and Republicans in Congress, the Occupational Safety and Health Administration has issued an initial draft of the nation’s first ever ergonomics standard. Citing over 600,000 lost workdays related to repetitive motion problems each year, OSHA asserted that the new standards would prevent injuries and reduce costs to employers. But opposition immediately formed, threatening to derail the proposals. Nonetheless, labor groups support the effort. (Reuters, February 19, 1999. Copies of the plan are available at OSHA’s website, www.osha.gov