Vested Interest - Tort Briefs - March/April 2000 Issue

Grocery Shopper Secures $3.8 Million Settlement

Rose Domenick was shopping for groceries in June, 1998, at Dominick’s Finer Foods in the North Riverside development on Chicago’s north side when rolls of tar paper fell through the ceiling, striking her. The store was open for business during extensive remodeling efforts. The 85-year-old woman was pinned beneath the building material and debris for more than two hours, causing multiple head injuries and requiring seven separate surgeries. Two defendants, Associates Roofing and Waterproofing of Wauconda and Simon Property and Associates, have agreed to settle their claims for $3.8 million. The store remains the only defendant. (Chicago Sun-Times, February 26, 2000)

Appellate Court Upholds $16 Million Pharmacy Verdict

Eight-year-old Gabrielle Hundley was taking Ritalin in small doses to control hyperactivity. Her pharmacy, however, dispensed Glynase, a diabetes treatment that also comes in a small yellow pill. Rite Aid Pharmacist Parham H. Jones, who dispensed the drug, was at the time finishing the last 12 hour day of a 60 hour week. Upon taking her second dose of Glynase, she suffered a seizure resulting in diminished mental capacity and the inability to care for or dress herself. A South Carolina jury returned a verdict for $16 million in 1996, which has now grown to $23 million with interest. The South Carolina Court of Appeals has now affirmed the jury’s verdict. (AP, February 28, 2000)

U.S. Supreme Court Considers Doctor Incentives as Liability Issue

The U.S. Supreme Court has heard oral arguments in a case to determine the interaction between the 1973 Health Maintenance Organization Act and the 1974 Employee Retirement Income Security Act (ERISA). At issue is whether incentive payments by an HMO to its member doctors create an opening for federal tort lawsuits. Observers say the Court seemed skeptical of plaintiff’s arguments. Cynthia Herdrich obtained care through CarleCare HMO, which required her to wait over a week for treatment in order to save money. During the eight days, her appendix burst, causing an infection. She claims that incentive payments from the HMO to her doctor caused the delay, opening the HMO to liability. The case is Pegram v Herdrich (98-1949) (Bloomberg, February 23, 2000)

Judicial Candidates Fail to Reveal Rebukes: Chicago Tribune

The Chicago Tribune has found that 16 former Cook County prosecutors, now running for judicial office, failed to mention that they were cited for prosecutorial misconduct by appellate courts. All told, the appellate rulings reversed the convictions of 20 defendants. The Tribune launched its investigation after it was revealed that Associate Judge John J. Hynes, elected in 1998, had failed to disclose similar findings by higher courts. Among those named by the Tribune are two currently on the bench in some capacity: Associate Circuit Judge Neil Linehan and Administrative Law Judge Bruce Lester. The rest are current or former prosecutors seeking their first seat on the bench. (Chicago Tribune, March 1, 2000)

Two Reports Say Ford Motor Company Cut Corners on Safety

Ford Motor Company is defending itself on two fronts against charges that it cut corners on safety. The Detroit News is reporting that an explosion at Ford’s River Rouge Complex that killed six last year was preventable, had the company paid attention to its own internal safety audits. The audits recommended replacing safety equipment on boilers. One of those boilers later exploded, causing the deaths and another 34 injuries. And the parents of two members of the Prairie View A&M track team who were killed when their Ford 15-passenger van overturned have filed suit, claiming that the vehicle was top heavy and prone to overturn. The families’ attorney notes that the February 10 accident was the fifth such accident in two months. (AP, January 28, 2000; February 28, 2000)

Civil Justice as Civil Defense

Admitting she has only a small chance of collecting damages if they should prevail, Emily Lyons has filed a lawsuit against Eric Rudolph for injuries she sustained in an abortion clinic bombing. Lyons was a nurse at a clinic in Birmingham, Alabama, on January 29, 1998 when a bomb allegedly planted by Rudolph exploded, killing an off-duty police officer and wounding Lyons. The explosion cost Lyons her left eye, and necessitated numerous other operations. Local and federal law enforcement officials have been unable to locate Rudolph for trial, but Lyons believes the civil justice system is an appropriate venue for holding Rudolph accountable for his actions. Rudolph is also a suspect in the 1996 Olympic Park bombing, among five others. (January 29, 2000)

Woman Whose Doctor Carved Initials In Her Abdomen Settles for $1.75 Million

Liana Gedz had just delivered her baby by Caesarean section last September 7 when her obstetrician, Dr. Allan Zarkin, carved his initials, “AZ” into her abdomen. Dr. Zarkin, who claimed he acted under the influence of a brain disease, has subsequently lost his license to practice in New York State on February 3 of this year. New York State has also fined the hospital $14,000 for violations relating to its reporting procedure. Published reports indicate that she has agreed to drop her civil lawsuit against Beth Israel Medical Center and to settle her suit against Dr. Zarkin for $1.75 million. Gedz, a dentist, has asked criminal prosecutors not to charge Zarkin, but he still faces criminal assault charges that could carry a prison term of 5-25 years. (AP, February 12, 2000)

American Bar Association Considers Fee-Sharing with Non-Lawyers

At its national convention in Dallas, the American Bar Association is considering proposals that would allow lawyers to form partnerships with non-lawyers. The practice is currently forbidden; non-lawyers must be employees, not partners. But there is growing pressure to create a one-stop shopping system for legal and financial advice, particularly among tax lawyers. Opponents site concerns such as conflict of interest and preserving lawyers’ independent judgement. The ban on fee-splitting with non-lawyers is currently in effect in all 50 states; a change by the ABA in its model rule would not by itself allow partnering with non-lawyers. (AP, February 14, 2000)

Changes Sought in Death on the High Seas Act

Air disasters that occur more than three miles from the U.S. coastline are governed by the Death on the High Seas Act, a 1920 law designed to deal with shipping disasters. Under the Act, victims are barred from receiving non-economic damages. Crashes that occur within the three mile limit are governed by state laws, which often place no limits on non-economic damages. Both chambers of Congress have passed legislation to allow victims to sue under state law regardless of where the crash occurred. The House version puts no limits on noneconomic damages; the Senate version does. Conference Committee talks are on-going. (Chicago Sun-Times, February 13, 2000)

Jury Issues $15.2 Million Verdict to State Senator in Privacy Suit

State Senator Lowell Barron, a Democrat and President Pro Tem of the Alabama Senate, discovered that Alfa Insurance was investigating his background in an effort to blackmail him. Alfa Insurance had questioned his relatives and friends in an effort to force the senator to support a company vice president who was campaigning for a seat on the University of Alabama Board of Trustees. He sued alleging a violation of his privacy. A jury returned a verdict of $200,000 in compensatories and $15 million in punitives. His attorney explained that the verdict would “do more to clean up Alabama politics than anything that has happened in the past 50 years.” (AP, February 21, 2000)

Kansas Considers Civil Tort Suits for Some Workplace Injuries

The Kansas legislature is considering a bill (HB 2287) that would allow workers injured on the job to sue their employers in tort for full damages if the injuries resulted from “gross and wanton negligence.” Workers currently must seek redress under workers compensation laws, which pay only medical and partial wage replacement costs. Worker advocates note that employers who knowingly violate safety statutes can now hide behind workers compensation to avoid the full cost of their carelessness. Insurers and employers vowed to fight the bill. (Liability and Insurance Week, February 22, 2000)

Salaries at Corporate Law Firms Grow

A front page story in the Chicago Sun-Times noted that large corporate law firms are raising salaries, in part to keep staff from defecting to e-commerce start-ups. Skadden Arps Slate Meagher & Flom raised starting salaries from $107,000 to $140,000,while Kirkland & Ellis grew from $97,000 to $125,000. Other firms are considering comparable increases. “There’s a ripple effect across the United States,” said former Cook County Board President and managing partner at Foley & Lardner Richard J. Phalen. Meanwhile, tort deformers are talking about capping fees for lawyers who represent consumers on a contingency basis. (Chicago Sun-Times, February 14, 2000)

California Governor Announces Odd Policy for Judges

California Gov. Gray Davis, a Democrat, has announced that he expects judges he appoints to office to follow his positions when rendering decisions. “My appointees should reflect my views. They are not to be independent agents. They are there to reflect the sentiments that I expressed during the campaign,” Gov. Davis insisted when speaking to the National Governors Association. Observers were quick to criticize Davis’ position. U.S.C. law professor Erwin Chemerinsky said Davis’ views were “outrageous”, adding, “a judge is not a Cabinet member.” U.C. Berkeley law professor Stephen Barnett said Davis’ statements reflect “ a profound misunderstanding of our system of government and the role of judges in it.” (AP, March 1, 2000)