Vested Interest - Tort Briefs - March/April 2001 Issue

DEAD SMOKER’S KIN LOSE TOBACCO SUIT

A South Carolina jury rejected claims by the family of a dead smoker that the low-tar, low-nicotine cigarettes he smoked were no safer than the regular variety. His family asked for $970,000 to cover medical costs, lost earnings and other expenses, contending that the tobacco company did not deliver as promised. B&W noted that the plaintiff made no effort to quit smoking until diagnosed with lung cancer in 1995, and knew the dangers and health risks associated with smoking, as disclosed on cigarette packs. (Chicago Sun-Times - February 7, 2001)

JURY GIVES BLIND BOY $7.9 MI

A jury found that an 8-year-old Glenview, Illinois boy lost his sight in both eyes to a rare form of cancer when his doctor, failed to detect the abnormality. The cancer was then discovered after it was too late. The family argued the once treatable tumor should have been visible and recognized during the first year. (The Associated Press – February 7, 2001)

CTA SHELTER COLLAPSE RESULTS IN $3.2 MILLION AWARD

A Cook County jury awarded a 79-year-old woman $3.2 million for damages resulting from injuries sustained when a gust of wind caused a 900-pound bus shelter to fall on her. Plaintiff's successfully argued that the shelter was not adequately attached to its base. As a result the woman sustained long-term disabilities. (Chicago Tribune – January 27, 2001)

CALIFORNIA PUBLIC HAS RIGHT TO KNOW

The California Judicial Council adopted court rules into effect January 1, 2001 to prohibit the sealing of any records filed in a court case merely upon an agreement of the litigants. Only if the court determines there is an overriding interest that outweighs the public’s right to access court records could records be sealed. Members of the public would also have the right to ask the court to unseal previously sealed documents. (The Justice Report, The Foundation for Taxpayer and Consumer Rights – December 2000)

CALIFORNIA UNITED ARTISTS SETTLES DISABILITY SUIT WITH JUSTICE DEPARTMENT

California’s United Artists Theater Circuit, one of the nation’s largest movie theater chains, has agreed to provide more and better seating for the disabled under a settlement agreement with the Justice Department. UA theaters will no longer be allowed to segregate wheelchair customers to front rows where they are forced to crane their heads in order to see the show, but must provide them with wheelchair seating in areas of the theater where viewing angles are as good as the best 50 percent of the theater’s seats. (Liability & Insurance Week – January 22, 2001)

NEW YORK JURY FINDS COMPANIES NOT LIABLE IN SMOKER’S DEATH

A state court jury in Brooklyn, NY, decided major cigarette manufacturers were not liable for the lung cancer death of a woman who smoked for 32 years. Lawyers for the family had accused the companies of failure to warn of the dangers of smoking and fraudulently concealing the addictive qualities of cigarettes. Defendants were Philip Morris Companies, R.J. Reynolds Tobacco Co., Lorillard Tobacco Co., Brown & Williamson Tobacco Corp., and the Liggett Group Inc., as well as two now defunct industry-funded groups, the Council for Tobacco Research and Tobacco Institute. (Liability & Insurance Week – January 22, 2001)

EMPLOYER LIABLE IN DRUNK WOMAN’S CRASH

A Canadian judge ruled a drunk woman’s employer was 25 percent responsible for an accident she was involved in after leaving the company’s all afternoon office party in 1994. She was awarded $200,000. The woman had two drinks at a bar with friends after leaving the office party. On her way home, she lost control of her vehicle and sideswiped a pickup truck, resulting in injuries that have left her unable to work. The judge ruled the employer “ought to have foreseen that by maintaining an open and unsupervised bar, he would be incapable of monitoring the alcohol consumption of his employee, which led her into the danger.” (The Associated Press – February 7, 2001)

EGYPT AIR ACCEPTS LIABILITY FOR CRASH OFF MASSACHUSETTS

Egypt Air agreed to accept liability for the crash of one of its planes on Oct. 31, 1999. Noting the NTSB has not yet completed its investigation, Egypt Air said it was not accepting any blame and was reserving its right to sue other parties, presumably Boeing, the manufacturer of the Boeing 767 which crashed. The company agreed to accept liability because it believed the families of about 100 of the passengers eligible to sue in American courts eventually would be paid either by the airline or Boeing. (Liability & Insurance Week – January 28, 2001)

FLORIDA JURY FINDS FUNERAL HOME LIABLE IN BURIAL OF INDIGENT

A Tampa funeral home has been ordered to pay $425,000, including $300,000 in punitive damages, to the mother of a homeless man buried as an indigent in an unmarked grave filled with trash. The mother did not learn of her son’s death until nine months after the burial, although his wallet containing identification was found near his body. She sued the city of Tampa and Hillsborough County as well as Stone’s Funeral Home, but the county entered into a pretrial settlement with her for $29,000. She used the money to exhume the body and found it had not been embalmed and was buried with three bags of trash. (Liability & Insurance Week – January 28, 2001)

MASSACHUSETTS JURY AWARDS $17.5 MILLION TO INJURED BIKE RIDER

A Boston jury awarded $17.5 million to a bike rider who suffered permanent injuries when a gate panel swung open and hit him as he was riding his bicycle. Since the accident in 1998, he has been living in a state rehabilitation facility, but is expected to be moved to his home where he will have 24-hour care. The defendant, M/A-COM, a manufacturing company, claimed the security company it hired failed to secure the gate and a powerful gust of wind forced the gate to open unexpectedly. (Liability & Insurance Week – January 28, 2001)

NEW JERSEY SETON HALL SETTLE WITH FAMILIES OVER DORM FIRE

Seton Hall University reached an out-of-court settlement with families of 12 students killed or injured in a dormitory fire a year ago, when three students were killed and 62 injured. The amounts to be paid was not disclosed, but New Jersey law allows nonprofit entities to claim charitable immunity from negligence lawsuits and caps damages which can be claimed against them at $250,000 per individual. (Liability & Insurance Week – January 28, 2001)

NEW YORK: IBM SETTLES FIRST OF OVER 200 TOXIC FUME CASES

IBM has agreed to settle a lawsuit brought by two former employees who claimed toxic fumes they breathed while working in an IBM factory in East Fishkill, NY, caused birth defects in their son. Terms of the settlement where kept confidential. (Liability & Insurance Week – January 28, 2001)

PENNSYLVANIA JUDGE FINDS ALLSTATE MAILING MISLEADING, DECEPTIVE

A Pennsylvania judge found Allstate Insurance Co. violated Pennsylvania’s consumer-protection law by discouraging people involved in traffic accidents with Allstate policyholders from hiring lawyers to pursue their claims. The judge ruled Allstate intended “to create confusion in the minds of its third-party claimants’ when it sent them a pamphlet, Do I Need an Attorney. (Liability & Insurance Week – January 28, 2001)

WEST VIRGINIA JUDGE DECLARES MISTRIAL IN TOBACCO CLASS ACTION

A judge in Wheeling declared a mistrial in a class-action lawsuit seeking to force five tobacco companies to pay for regular medical tests of about 250,000 healthy West Virginia smokers in order to detect early signs of lung and heart disease. A mistrial was declared after a plaintiff’s witness made an apparently inadvertent reference to addiction even though the judge ruled earlier the issue of addiction to smoking was not to be part of the trial. (Liability & Insurance Week – January 28, 2001)

TRUCK FIRM SETTLES LICENSE-FOR-BRIBES CASE IN CALIFORNIA

Watkins Motor Lines will pay $10.7 million of a $11.8 million settlement to the family of woman killed when her car smashed into an overturned tracter-trailer driven by a Watkins employee on a California fogged highway in Nov. 1998. The California Highway Patrol said the Watkins employee was primarily responsible for the accidents, having made an unsafe turn on the highway. The truck driver admitted to paying a bribe for his license. Federal authorities believe as many as 90 Watkins drivers in Florida and Illinois paid bribes for their licenses. (Chicago Tribune – February 24, 2001)

FAMILY OF CO-PILOT GET $18.9 MILLION

A Cook County jury found Chicago’s Aon Corp 90 percent responsible for the fatal death of co-pilot Robert Hampton Whitener. The family argued the plane’s pilot caused the 1996 crash, and Aon was responsible as the pilot’s employer. The jet slid off the runway at Palwaukee Municipal Airport and burned. The NTSB report released in 1998 blamed pilot error and “faulted Koppie [the pilot] for not aborting the takeoff and Whitener for not taking sufficient remedial action.” (Chicago Tribune, January 1, 2001)

ILLINOIS SUPREME COURT VOIDS $10 MILLION DEFAULT JUDGEMENT

The court ruled a summons on the Chicago Board of Education’s legal department was improper, and as a result, vacated a $10 million default judgement against the board. Sam Sarkissian sued the board in January 1988 for failing to provide appropriate medical assistance when his daughter had an epileptic seizure. The summons was delivered to the receptionist of the board’s attorney. The Code of Civil Procedure says “a summons must be served on the president, clerk, or officer corresponding thereto.” (Chicago Daily Law Bulletin – January 30, 2001)

FAMILY OF BRICKLAYER AWARDED $4.8 MILLION IN COOK COUNTY

The family of a 37-year old bricklayer was awarded $4.8 million. The worker was killed by a collapsing wall in 1995 at the James Jordan Boys and Girls Club construction site. Plaintiff's argued that the Walsh Construction Company was negligent in allowing workers on an untied scaffold during high winds. The family of another bricklayer killed at the same time settled for $365,0000 in a separate action. (Chicago Daily Law Bulletin – January 26, 2001)

FIRESTONE ASKS JUDGE TO DISMISS CLASS ACTIONS; ISSUES TIRE REPORT

Bridgestone/Firestone attorneys filed a motion Jan. 29 asking a federal judge to dismiss about 80 proposed class action lawsuits brought by plaintiffs against the company over the massive tire recall last August. They argued these plaintiffs had not been financially or physically injured, so there is nothing for the law to remedy. On Feb. 2, the tire manufacturer issued a report saying the failures of its tires linked to 148 deaths in this country were caused by a combination of manufacturing and design flaws in the tires that can be exacerbated if the vehicle is overloaded. (Liability & Insurance Week – February 5, 2001)

RAILWAY DROPS EMPLOYEE GENETIC TESTING

Burlington Northern Santa Fe Railway agreed Feb. 12 to stop requiring a genetic testing of employees who file claims for carpal tunnel syndrome. The EEOC filed a federal lawsuit Feb. 9 charging the policy violated the Americans With Disabilities Act. The EEOC said a railroad worker who refused to provide a blood sample after filing an injury claim was threatened with termination. The lawsuit marks the first time the EEOC had challenged genetic testing. (law.com/Illinois – February 13, 2001)

MARYLAND COMPANY CONSIDERS BANKRUPTCY OVER ASBESTOS SUITS

The W.R. Grace & Co. said it was considering filing for Chapter 11 bankruptcy protection because asbestos-related injury claims in 2000 totaled 48,486, up 81 percent from 1999. The company increased its reserves for resolving asbestos suits by $135.2 million during the fourth quarter of 2000, which could bring the total it pays to resolve asbestos suits to $1.11 billion over a 40-year period, including insurance proceeds and tax benefits. (Liability & Insurance Week – February 4, 2001)

TLPJ FILES CLASS ACTION AGAINST KAISER PERMANENTE

Trial Lawyers for Public Justice filed a class action lawsuit on December 6, charging the country’s largest HMO, Kaiser Permanente, is violating California law by forcing its members to split prescription pills. The suit contends Kaiser’s mandatory pill-splitting policy endangers patients’ health soley to enhance the HMO’s profits. It seeks a court order barring Kaiser from forcing its members to split pills and requiring the HMO to disgorge all profits it made from this dangerous policy. (Public Justice – Winter 2001)