Vested Interest - Tort Briefs - November/December 1999 Issue

Justice Moses W. Harrison Elevated to Chief Justice

Justice Moses W. Harrison will begin the new millennium serving as Chief Justice of the Illinois Supreme Court. Justice Harrison, who first served on the Madison County Circuit Court, was elected to the Supreme Court in 1992. He succeeds Justice Charles E. Freeman, the first African American elected to the high court. A native of Collinsville, Illinois, Justice Harrison graduated from Washington University School of Law in 1958. (Chicago Sun-Times, November 9, 1999)

SUPREME COURT CONSIDERING FDA DEFENSE APPEAL

The U.S. Supreme Court has asked attorneys for pharmaceutical companies and the Federal Drug Administration to submit briefs on a case that could determine how FDA approval affects corporate liability in a subsequent injury. The case, Buckman Co. v Plaintiffs Legal Committee (98-1768) arose when patients implanted with pedicile screws in their spines complained that the screws were twisting and breaking. The FDA, acting on an application submitted by Buckman for AcroMed, had approved the screws for use in patients’ hands and feet, but had twice rejected the screws for spinal use. Doctors, however, have inserted the screws into patient’s spines as an “off-label” use, which is allowable under FDA rules so long as the manufacturer does not advertize the use. Should the Court agree to hear an appeal in Buckman, it would likely revisit the 1996 Medtronic ruling, which bars states from enacting regulations that compete with the FDA. (AP, October 4, 1999)

Missouri Jury Issues $160 Million Verdict in Railroad Crossing Case

Kimberly Alcom was riding in a car near Sedalia, Missouri, when the driver came to a railroad crossing in 1997. Alcom’s car was struck by an Amtrak train moving at 70 mph, breaking her back and over 20 other bones in her body, and resulting in severe and permanent brain damage. The crossing was without gates or lights, and had been the site of a similar accident earlier that same year. State officials had notified Union Pacific, which operated the track, that the crossing was hazardous a year prior to Alcom’s accident. A jury returned a verdict for $40.4 million in compensatories, assigning 75% to Union Pacific and 25% to Amtrak, and another $120 million in punitives. The verdict was the largest of its kind in Missouri, and the fourth largest of its kind in the country. (Reuters, September 29,1999)

U.S. Supreme Court to Hear Another Illinois HMO Case

Cynthia Herdich was treated by doctors under contract with Carle Clinic Association, who treated her for appendicitis in 1992. She claimed that the doctors delayed treatment because of financial inducements in their contract with Carle, and sued Carle under ERISA, arguing that the inducements are contrary to the HMO’s duty to provide treatment to patients. The U.S. Supreme Court has agreed to review Pegram v Herdrich (98-1949) to determine if HMOs can be sued for offering financial incentives to doctors to influence treatment decisions. The case is different from Petrovich v Share Health Plan of Illinois, in which the Illinois Supreme Court recently ruled that HMOs can be sued for malpractice where they delay or deny treatment. (AP, September 28, 1999)

California Appellate Court Allows Suit Against Gun Maker for Criminal Use

The First District Court of Appeals in San Francisco has ruled that Navegar, Inc, will have to defend a suit alleging that its TEC -DC9 handgun was designed and sold with the knowledge that it would likely be used in criminal acts. Citing the weapon’s unusual firepower and the apparent absence of any legal civilian use, the court ruled that the victims of a 1993 shooting spree at an office building could hold the gun maker liable if it reasonably could have forecasted the likelihood of the illegal use of the gun. The case is the first to reach trial. The limited ruling does not authorize any victim to sue gun makers, but sets narrow parameters essentially limited to the TEC-DC9. (AP, September 30, 1999)

U.S. Supreme Court Rejects Appeal in Judicial Selection Case

Black voters in Ohio objected to that state’s practice of electing judges at-large within counties, alleging that the practice unconstitutionally dilutes black voting power. The 12 black plaintiffs claimed that reducing judicial elections to districts would be more fair. U.S. District Judge George Smith rejected the claim, noting that the 12 “failed to prove that African-Americans were denied an equal opportunity to elect judges of their choice.” That ruling was upheld by the 6th Circuit. The U.S. Supreme Court has refused to hear the appeal. The case is Mallory v Ohio (99-261) (AP, October 18, 1999)

U.S. Supreme Court to Consider Federal Rape Liability Law

The 1994 Violence Against Women Act allows rape victims to sue their attackers in federal court for damages arising from the attack. The first woman to use the statute is a former Virginia Tech student who alleges that two football players at the school raped her in her dorm room. The defense, however, has challenged the constitutionality of the law, and a three judge panel of the 4th U.S. Circuit agreed, finding that the statute “sought to reach conduct quintessentially within the exclusive purview of the states.” The Clinton administration, together with amicus briefs from 31 states, including Illinois, have argued for the constitutionality of the law. (AP, September 28, 1999)

Justices Warn of European Encroachment

U.S. Supreme Court Justices Anthony Kennedy, Sandra Day O’Connor, and Stephen Breyer participated in a panel discussion of the growing role of the judiciary in Europe. Justice Kennedy argued that courts are too influential in European society. Europeans have “committed a tremendous amount of confidence, a tremendous amount of power... I think too much, to the judiciary,” he noted. Justice Breyer noted that the court has an important role in “protect[ing] basic human liberty”, and hoped that courts would use their power “circumspectly”. Justice O’Connor used the occasion to note that justice is for all, even though many, especially African -Americans, feel that the courts do not work for them. “We have some work to do” in that area, she said. (AP, October 16, 1999)

Illinois Hospital Pays $7.9 Million to Settle Malpractice Claim

Vincent Gargano was 41 years old when he sought treatment at the University of Chicago Hospital for testicular cancer. His treating physician recommended chemotherapy, but his order was illegible, and the pharmacy dispensed a lethal amount, four times the recommended dose, for four straight days. The error resulted in kidney failure and other infections which killed Gargano. The Hospital has agreed to a $7.9 million settlement, and has also pledged to implement new policies to ensure that similar accidents do not happen in the future. (AP, October 8, 1999)

Texas Jury Issues $450,000 Verdict for Illegible Prescription

Ramon Vasquez was treated by Dr. Ramachandra Kolluru for a heart condition. Dr. Kolluru recommended 20 milligrams or Isordil, but the pharmacist who filled the prescription could not read Kolluru’s handwriting and delivered 20 milligrams of Plendil, a blood pressure drug, instead. The highest recommended dosage of Plendil is 10 milligrams. Vasquez died one day after he started taking the incorrect pills. A Texas jury found the doctor liable along with the pharmacist, and issued a verdict for $450,000. (AP, October 22, 1999)

Police Liable for $98 Million in Informant’s Death

Police in the District of Columbia were investigating a murder when Terry Butera, a recovering drug addict, told them he overheard talk of the killing while buying drugs. Rather than use a trained undercover officer to investigate the drug house, they sent Butera, with marked money, to buy drugs so that the police could get a search warrant. Instead, Butera was beaten and killed while on the drug buy. His killers were caught and convicted, but his estate sued, arguing that the police intentionally put him in an extremely dangerous situation and failed to protect him. Jurors agreed, and issued a verdict for $98 million to his mother. (AP, October 21, 1999).

Drug Maker Settles Fen-Phen Suits for $4.8 Billion, Announces Merger

Over 8,000 plaintiffs are named in over 4,000 lawsuits alleging that American Home Products failed to warn patients of severe side effects of Fen-Phen, a drug combination. Patients who took the drug reported a dramatically increased incidence of primary pulmonary hypertension, a potentially fatal condition resulting from damaged heart valves. The payments will be broken into two separate funds, one to pay victims with current problems and another to pay for future medical testing of all other victims. Days after announcing the settlement, AHP announced plans to merge with Warner Lambert, another drug manufacturer. (Reuters, October 7, 1999)

Calumet City Agrees to $1.25 Settlement in Discrimination Lawsuit

Four police officers sued Calumet City, Illinois, alleging that they were fired for failing to support the re-election effort of the incumbent mayor. The case went to a jury, which returned a verdict of $4.75 million last May. But the judge refused to certify that finding, instead pushing both sides toward settlement talks. Calumet City officials insist the firings were for non-compliance with a local ordinance requiring city residency. The four officers have agreed to settle their claims for a total of $1.25 million. (Chicago Sun-Times, October 3, 1999)

Jury Issues $28 Million Verdict to Police Beating Victim

Joey Regalado had been drinking and arguing with his girlfriend when Chicago police arrived. Nervous, he ran, but the officers followed and caught him, beating him about the head with a blunt object. As a result of his injuries, he is now completely paralyzed, able to communicate only by blinking his eyes. Federal jurors issued a verdict for $28 million, the largest of its kind against the City of Chicago. The city, refusing to admit guilt, vowed to appeal, insisting jurors should have heard evidence that Regalado’s drug use could contribute to his condition. Federal Judge Milton Shadur found the evidence lacking. (Chicago Sun-Times, October 26, 1999)

Quaker Oats Agrees to $3.2 Million Discrimination Settlement

In May, 1994, Quaker Oats fired hundreds of salespeople. The company claimed that the firings were related only to a restructuring, but those who were fired noticed a disturbing pattern that suggested age discrimination. The U.S. Equal Opportunity Commission examined the case, finding reasonable cause to think that the company was in violation of federal law. The company has agreed to pay $3.2 million to those aggrieved, without admitting guilt. (Bloomberg, October 10, 1999)

Jury Issues $3.8 Million Verdict in G.M. Seat Belt Case

Rodney Jones was driving his 1985 van when he was struck broadside by a minivan that ran a red light. He was ejected from his vehicle, and suffered severe head trauma with permanent injuries resulting. A Michigan jury concluded that the belt buckle was properly latched at the time of the accident, but released on impact. They issued a verdict for $5 million, but found Jones 25% responsible for the injuries. G.M., reeling from the $4.9 billion verdict in California, later reduced to $1.2 billion, vowed to appeal, noting that the same latch construction has been used in millions of G.M. vehicles. (Bloomberg, October 26, 1999)

Cook County Agrees to $3 Million Malpractice Settlement

James Clay arrived at Cook County Hospital with a stab wound in his cheek. Doctors treating Clay conducted unwarranted and unauthorized tests, and botched them, damaging his spinal cord and leaving him paralyzed in his right leg. His left leg is of only limited use, and he cannot grip with his fingers. To settle his lawsuit, Cook County has agreed to a $3 million settlement. (Chicago Sun-Times, October 20, 1999)

Police Mistreatment Lands Hanover Park in Court, Again

Gisela Stetter was at her Hanover Park home with her 26-year-old son when he experienced an epileptic seizure. She called 911 for medical help. Along with the ambulance, two police officers arrived. Seeing Eric Stetter in convulsions, they tackled him, handcuffed him, and sat on him on the family sofa to hold him down. In the course of the police action, Eric suffocated and died, while Gisela pleaded with the police to let the paramedics treat her son. No crime was ever reported, nor were police ever directly called. The Stetters have filed a lawsuit against Hanover Park, which was the defendant in the Tim Redlin suit, which found that the Village had failed to mark adequately a roadway median, resulting in permanent paralysis of a motorcyclist. The former Mayor of Hanover Park continues to serve on the Board of Directors of the Illinois Civil Justice League, and village officials are active in their opposition to the civil justice system. (Chicago Sun-Times, October 30, 1999)

Cook County Judge Criticizes Merit Selection

Judge Leo E. Holt of the Circuit Court of Cook County opined in the newspaper that appointing judges will not ensure diversity on the bench. Judge Holt used the recent appointment of associate judges in Cook County as an example. He noted that just seven of the 30 nominees were African American: two men and five women, and just two black men were among the 15 associates appointed. He also asserts that “a prominent political figure lobbied the Circuit judges with a list of favorite candidates, containing seven names, none of whom were minorities, and all of whom appear to have been appointed.” He concluded his letter to the editor asserting that “the increase in the number of minority judges has been a direct result of the elective process.” (Chicago Sun-Times, October 27, 1999)

Golf Course Must Pay $2 Million for Sexual Discrimination

Nine women golfers alleged that their club denied them equal access to tee times and other benefits and filed suit against the Haverhill Country Club outside Boston. Club rules, they alleged, restricted those benefits to holders of “primary memberships”, and access to those memberships were restricted to deny women the right to buy in. A jury agreed, and issued a verdict for $2 million in damages. The club plans an appeal. (AP, October 27, 1999)

Payne Stewart May Be a Victim of Tort Deform

Golfer Payne Stewart died when his plane crashed in South Dakota after taking off from Florida. The plane he was in was built 23 years ago. Tort Deform legislation in Florida limits the legal rights of passengers flying in airplane built more than 20 years ago in lawsuits filed after October 1 of this year. Supporters of the civil justice system note that the law could deprive Stewart’s family of the legal rights. Opponents of jury verdicts counter that the law includes a four-year grace period, which might allow Stewart’s claim to go forward. (AP, November 7, 1999)

Colorado Lawyer Criticized for Religious Bigotry

Ben Aisenberg, former president of the Colorado Bar Association, has taken the unusual step of publically criticizing another lawyer for client recruitment tactics. Anthony Sturniolo sent a letter to a family who has filed suit as a result of the Columbine School shootings of last spring. He wrote to tell the family that the lawyers they had hired are Jewish. “I know that you are committed Christians and I do not want you to be led astray to a position that might be a poor witness to our Lord,” Sturniolo wrote. Aisenberg noted in response to press queries that the comments could be a violation of the Colorado Bar Association’s ethics rules. (AP, October 30, 1999)

USAir Crash Claim Settled for $25.2 Million

Businessman Marshall Berkman boarded a 1994 USAir flight in Pittsburgh but never reached his destination. Shortly after takeoff, the plane crashed, killing all on board. The National Transportation Safety Board concluded that the crash resulted from rudder problems, but could not determine if the airlines or the airplane manufacturer was responsible. Berkman’s suit against USAir, Boeing, and Parker Hannifin Corp was settled in October with a record $25.2 million payment. Berkman’s attorneys insisted that the problem was with a hydraulic valve, and that the defendants had known since the 1960’s how to fix the problem. (Chicago Tribune, November 4, 1999)

City of Chicago Settles Four Harassment Claims for $1 Million

Three female Chicago police officers suffered months of verbal harassment from a supervisor who propositioned them at work and openly called them “whores” and worse, despite their repeated complaints. To close claims they filed against the City, the Chicago City Council has approved a $725,000 settlement. The supervisor who harassed them has been fired. The Council also agreed to pay $250,000 to a handicapped 911 operator who was verbally abused and denied promotions because of his handicap, in violation of federal law. The City also agreed to spend $25,000 to reconfigure the 911 call center to make it handicapped accessible. (Chicago Sun-Times, November 9, 1999)

IEA Tops Med Society as Top Political PAC

Political contributions by the Illinois Education Association surged 50% in just one election cycle, reaching $1.9 million in 1997-98, making the IEA the largest Political Action Committeein Illinois. The Illinois State Medical Society, which had previously held the top spot, gave $1.5 million to land in second place. Rounding out the top five PACs were the Illinois Hospital and Healthsystem Association at $769,000; the Illinois Manufacturers Association at $690,000; and ITLA, at $625,000. Ken Redfield, director of the Sunshine Project at the University of Illinois which compiled the numbers, noted “the same key players are there year after year.” (Chicago Sun-Times, November 8, 1999)