Vested Interest - Tort Briefs - May 2003 Issue

Employers Can’t Discharge Employees Who Testify

The 1st District Appellate Court ruled that two construction laborers who were laid off after testifying at a fellow employee’s workers’ compensation proceeding engaged in a "protected activity" and can proceed with their retaliatory discharge case. The court ruled that a discharge after an employee participated in a workers’ compensation proceeding as a witness, if proven, violates the public policy contained in Illinois’ Workers’ Compensation Act. The case is Alan Pietruszynski and Tim Pietruszynski v. The McClier Corp., Architects and Engineers Inc., No. 1-02-1371. (Chicago Daily Law Bulletin – March 25, 2003)

Jury Returns Verdict for Pedestrian

A Cook County jury returned a verdict for a 69-year-old woman killed when she was struck by a school district van. She was hit from behind while out for her morning walk on a residential street. The driver was a school bus driver who was driving a delivery van when the accident occurred. He claimed he didn’t see the woman. The jury award was reduced by 20 percent because the woman was outside of the crosswalk when she was hit by the van. (Chicago Daily Law Bulletin – April 2, 2003)

Faulty Wiring Cause of ’98 Swiss Jet Crash

Canadian investigators have concluded that the 1998 crash of Swissair Flight 111, in which all 229 people on board were killed, was caused by the sparks from faulty wiring that ignited flammable insulation above the cockpit, crippling the aircraft’s electrical system. The report strongly suggested that a hastily installed entertainment system that provided games for passengers in first class and business class was probably at least partly to blame for starting the fire, perhaps by overloading the aircraft’s inadequate electrical wiring. (ATLA Law News Digest – April 3, 2003)

Court Limits Applicability of Millbrook v. IBP, Inc.

The 7th Circuit Court of Appeals ruled in David v. Caterpillar, that Millbrook is applicable in extremely narrow circumstances: where the only evidence of discrimination is that of comparative qualifications, and there is no dispute concerning the honesty of the application of those qualifications/criteria. Employers have cited Millbrook for the proposition that comparative qualifications may not be used as evidence of discrimination unless the disparity in qualifications between candidates is "so favorable to the plaintiff that there can be no dispute among reasonable persons of impartial judgment that the plaintiff was clearly better qualified for the position at issue." David essentially neutralizes Millbrook’s application in the vast majority of cases. David is also significant because of the court’s affirmation of a jury’s substantial non-economic compensatory damages award where there is no evidence of medical treatment or physical trauma, and where the evidence consists solely of the plaintiff’s own testimony of how she felt. (Press Release – March 27, 2003)

Seat Belts Triggering Suits

Claims that DaimlerChrysler’s Gen-3 seat belt sometimes opens when it is most needed have gained momentum in Texas, where a new suit alleges that six of seven belts were inadvertently opened during a fatal rollover accident. The suit, Mendoza v. DaimlerChrysler, alleges that the seat belt, designed with a controversial, protruding release button, failed to restrain six occupants of a 1996 Chrysler minivan. Public Citizen has gathered reports attributing 14 deaths and 19 serious injuries to alleged Gen-3 unlatchings. The group has 138 reported unlatchings from consumers. (ATLA Law News Digest – March 27, 2003)

Acceptance of Benefits did not Bar Claims

In Wren v. Reddick Community Fire Protection Dist., the Appellate Court of Illinois, Third District, ruled that the volunteer firefighters’ acceptance of unsolicited workers’ compensation benefits offered by the fire protection district, for injuries the firefighters sustained while riding on a fire truck, did not bar the firefighters’ common law negligence claims against the district and the driver of the fire truck. The benefits received were in the form of payment of medical bills and temporary total disability payments made voluntarily by the district’s insurance carrier. (ATLA Law News Digest – March 27, 2003)

Jury Awards Damages for Deaths in Cabin Cruiser

A St. Louis jury has ordered Kohler Co. to pay damages to the survivors of a Joplin couple who died when a Kohler generator on their boat leaked carbon monoxide, killing them and their two guests. Plaintiffs attorneys argued that Kohler used inferior metal to make the exhaust tube, which leaked, and had failed to recall the part even though four other people died in similar incidents. (ATLA Law News Digest – April 3, 2003)

Settlement For Failed Cancer Diagnosis

A woman who suffered from breast cancer will receive a settlement from her obstetrician and his employers, who failed to diagnose the disease until about four years after she complained to the doctor of a lump in her breast. The woman found a lump in her breast in 1995 and was diagnosed with stage-two cancer in 1999. A proper diagnosis in 1995 would have found the cancer while it was still in stage-one. (Chicago Daily Law Bulletin – April 4, 2003)

California Sued Over Anti-Tobacco Ads

R.J. Reynolds Tobacco Co. and Lorillard Tobacco Co. have sued the state of California to halt use of state-sponsored ads they claim exceed the state’s authority, are intended to vilify the industry, violate the companies’ constitutional rights and have a prejudicial effect on potential jurors. The ads are paid for under Proposition 99, the California Tobacco Tax and Health Promotion Act, passed by voters in 1998. It imposed a 25-cent tax on each pack of cigarettes, earmarked for research on tobacco-related disease, health education and health care for medically indigent families. (Liability & Insurance Week – April 7, 2003)

Settlement for Brain Damage from Collision

A driver who sustained brain damage in a head-on collision in a road construction zone settled a lawsuit against the construction company and subcontractor. The driver’s car hit a barricade and collided with another car. He suffered permanent cognitive damage and requires 24-hour care. His attorney argued the construction zone was dangerous and did not comply with the law. (Chicago Daily Law Bulletin – April 9, 2003)

Justices Place Limit on Punitive Damages

In State Farm Mutual Automobile Insurance v. Campbell, the U.S. Supreme Court overturned as excessive a $145 million punitive-damage award and established the clearest standard yet for how judges and juries should handle such controversial penalties. In a 6-3 ruling, the justices said that even though State Farm had mishandled a customer’s claim, the large punitive damage award was "neither reasonable nor proportionate" to the $1 million in actual damages that the jury found State Farm had caused. For the first time, the high court spelled out what it considers a maximum ratio between harm done to a plaintiff and the punitive damages that can be awarded. In almost every case, the justices said, the punitive award should be a single-digit multiple of the actual harm. (ATLA Law News Digest – April 10, 2003)

Settlement Over Newborn Injury

An Oak Lawn hospital has agreed to a settlement with the parents of a boy whose cerebral palsy was the result of medical negligence. The boy was born six to eight weeks premature when a doctor failed to properly treat the boy’s lungs. His lungs collapsed, and his heart rate dropped. The blood did not go to his brain, and the result was development of cerebral palsy. (Chicago Daily Law Bulletin – April 11, 2003)

White House Agrees to Smallpox Compensation

The White House agreed to a compromise on how to compensate health and emergency workers injured or killed after receiving a smallpox vaccination under the federal immunization program. Those permanently disabled by the vaccine would be entitled to receive 66 percent of their wages up to $50,000 a year in lost wages with no lifetime limit. Those with spouses or dependents would be entitled to 75 percent of their wages up to $50,000 per year. Those partially disabled would be entitled to receive up to $50,000 a year but would be subject to a lifetime limitation of $262,000. Spouses or anyone killed by the vaccination would be entitled to a lump sum payment of $262,000. Surviving children would be entitled to an option of either a flat payment of $262,000 or $50,000 per year until they reach the age of 18. The compromise is expected to be included in the wartime supplemental spending bill, in which about $45 million has been set aside for the program. (Liability & Insurance Week – April 14, 2003)

Federal Judge Orders Future Damages

A U.S. District judge entered a court order adding future medical expenses to an earlier verdict in a medical negligence case against the United States. An Army veteran was left paralyzed after doctors in Veterans Administration hospitals failed to offer her surgery that might have prevented spinal damage. The initial award in the Federal Tort Claims Act case was for past medical expenses, housing costs, pain and suffering, disability and disfigurement. (Chicago Daily Law Bulletin – April 21, 2003)

Lawyers Take Aim at Ford on Expert

Questions about the credibility of an expert witness in lawsuits involving rollover accidents are putting the Ford Motor Co. on the defensive, as lawyers for accident victims press claims that Ford covered up evidence that its Bronco II was dangerous. The South Carolina Supreme Court said that the estate of a man whose leg was crushed in a 1990 Bronco II rollover could seek to reopen a case he lost a decade ago. The court cited claims by the man’s lawyers that Ford paid the expert witness, a former Ford engineer, to testify falsely on its behalf. That decision followed a 2001 finding by a federal judge in a West Virginia case that there was evidence of a "conspiracy" between Ford and the engineer. (ATLA Law News Digest – April 24, 2003)

Texas Jury Awards Victim in Rollover

A Texas jury has ordered Ford Motor Co. to pay a Texas man who was left paralyzed after his F-150 pickup truck flipped over. The verdict came less than six months after another Texas jury returned a verdict for the plaintiff involving another F-150. The attorney in the more recent case is urging Ford to recall three million F-150 SuperCab pickups because of complaints over its allegedly weak roof structure. Ford maintains that the truck is safe. (ATLA Law News Digest – April 24, 2003)

H.R. 5 and S.607

The omnibus federal legislation that would cap pain and suffering damages at $250,000 is on hold in the Senate. Most recent information is that Senator Frist does not have enough support to call a vote. Senator Feinstein withdrew support for her "compromise" that would have doubled the cap to $500,000 after the California Medical Society denounced the amendment. In the House, the legislation has been put in the Budget Reconciliation Bill. Call Angela in the ITLA office if you would like more information.

Gun Maker Found Liable in Shooting Accident

A California jury has found a California gun maker, its designer and its main distributor partly liable in an accidental shooting that left a 7-year-old boy a quadriplegic. Gun manufacturers have successfully argued for years that guns are legal products and when they injure or kill someone, they are performing exactly as intended. (ATLA Law News Digest – April 24, 2003)

Damages Do Not Include Child-Raising Expenses

The Indiana Supreme Court held that damages for an allegedly negligent sterilization procedure may not include the costs of raising a normal, healthy child conceived after the procedure. The value of the child’s life to the parents outweighs the associated pecuniary burdens as a matter of law. Recoverable damages in such an action may, however, include pregnancy and childbearing expenses. (ATLA Law News Digest – April 24, 2003)