Vested Interest - Tort Briefs - November 1998 Issue

JUDGES, APPELLATE COURTS REDUCE LARGE VERDICTS: SURVEY

The National Law Journal has surveyed a representative sample of 100 large jury verdicts from 1994 and determined that most are reduced either by the trial judge or on appeal, and many are never paid at all. In all, 32 were set aside at trial or reversed on appeal, another 33 were reduced, and in at least 6 not a dime was ever paid to plaintiff. Larger verdicts were most often hit: of 50 cases with verdicts over $20 million, 22 were reversed. Most likely to be reversed included cases against municipalities or tax-supported institutions. The frequency of reversals and reductions leads many victims to settle post-verdict for a fraction of what the jury issued. (The complete survey is included as Section C of the National Law Journal, September 28, 1998)

FEDERAL JUDGE IN CONNECTICUT ALLOWS HMO LIABILITY CASE TO PROCEED

A sixteen-year-old boy in Connecticut was denied psychiatric treatment after a suicide attempt when his HMO concluded that his actions were not the result of a psychiatric disorder. On the day he was discharged, he tried again to take his life - and succeeded. The parents of Nitai Moscovitch filed a lawsuit against the HMO, Physicians Health Services of Trumbull, Connecticut, claiming that the denial of psychiatric care violated the standard of treatment in such situations. PHS sought dismissal, claiming that ERISA blocked such suits. U.S. District Judge Christopher Droney, however, ruled that the quality of care ordered by the HMO, not the provision of benefits, was at issue. The case has been returned to state court for trial. (AP, October 27,1 998)

TEXAS SEES HMO LIABILITY LAW IN ACTION

Joseph W. Plocica was discharged from a psychiatric ward after his HMO refused to pay for additional treatment. He went home, drank anti-freeze, and died 9 days later. His family has now sued the HMO, NYLCare, under a Texas statute that holds managed care entities liable for the consequences of their treatment decisions. Plocica's treating psychiatrist wanted to continue treatment for at least another two weeks, but a subcontractor for the HMO intervened, telling the hospital that NYLCare would not pay for further hospitalization. The HMO insists that it's decision not to pay had no bearing on the hospital's decision to discharge. The law, passed last year, has survived one court challenge already. (AP, October 20, 1998)

TORT DEFORMERS BREAK RANKS OVER AUTO NO-FAULT

Two academics, prominent in their support for federal tort deform legislation, have announced their opposition to imposing federal auto no-fault. George Priest, a Yale law professor, and Keith Crocker, an insurance professor at the University of Michigan, have previously appeared at congressional hearings to tout the supposed benefits of removing victim's rights in the tort system. But they have concluded that so-called "Auto Choice" proposals, now pending in the Senate, would result in more dangerous drivers, more accidents, and higher insurance rates for consumers. Crocker noted that "what will happen is that people who are not negligent drivers will be worse off. They will pay higher premiums to offset the costs to them of damages caused by negligent drivers." (Best's Review P/C, October, 1998)

PENNSYLVANIA JURY ISSUES $33 MILLION VERDICT FOR UNDIAGNOSED BREAST CANCER

Bonnie Welteroth sought medical treatment for a marble- sized lump in her breast in 1996. Dr. Gene Miller conducted a mammogram, which was interpreted by Spectrascan Imagining Services of Windsor, Connecticut, as being normal. Less than a year later, the lump had grown to the size of a golf ball, leading Welteroth to ask more questions. This time, a biopsy showed cancer. As a result of the untreated but rapidly-growing cancer, Welteroth is expected to die within a year. Jurors in Allentown, Pennsylvania, returned a plaintiffs verdict of $33.1 million. (AP, October 3, 1998)

NEW YORK CITY PAYS $3 MILLION TO SETTLE DEATH CASE

Anthony Baez was playing football in the street with his brothers when amis-thrown ball hit Offcer Francis Livoti's patrol car. The officer approached the men to stop the game, an argument ensued, and Officer Livoti used a choke hold on Baez, suffocating the 29-year-old. While the New York Police Department admitted no liability in the death, and claim that Officer Livoti was acting outside the scope of his duties because he used an illegal hold on Baez, the City has offered $3 million to settle the family's wrongful death claim. (AP, October 2, 1998)

PRISON OFFICIALS LIABLE FOR LETTING VICTIM HARASS, BEAT CONVICT

In 1992, Zeferino DePina was sentenced to prison for shooting Filipe Montiero during an altercation. Montiero later found work as a prison guard. In 1996, he was assigned to the prison that housed DePina. DePina claimed that Montiero beat, threatened, and harassed him, and that prison officials allowed Montiero to take revenge for the earlier crime. A Boston jury agreed, and issued a verdict for $37,500. Montiero is liable for $5,000, while the Massachusetts Department of Corrections is responsible for $25,000, and other officials and guards must pay the remainder. (AP, October 15,1998)

TEXAS MINISTER LIABLE FOR MALPRACTICE FOR SEX WITH PARISHIONERS

Shelby Baucom, a Baptist minister, had sex with two parishioners while counseling them about their marriages. The two women later sued, claiming Baucom has committed malpractice for the conflict of interest, and had violated a fiduciary responsibility. Baucom claimed immunity, alleging that the First Amendment barred actions against clergy for actions undertaken in the course of their religious duties. A civil jury disagreed, issuing verdicts totaling $230,000, including $170,000 in punitives. The Fifth Circuit Court of Appeals upheld the verdict, noting, "The First Amendment does not categorically insulate religious relationships from judicial scrutiny, for to do so would necessarily extend constitutional protection to the secular component of these relationships." Soon after the U.S. Supreme Court refused to hear Baucom's appeal, another Baptist minister in Texas, Ollin Collins of the Southwestern Baptist Theological Seminary, resigned rather than face charges that he, too, had sex with women during marriage counseling sessions. (AP, October 5 & 6, 1998)

CONNECTICUT PSYCHIATRIST SETTLES FAILURE TO WARN CASE

A Connecticut family was shocked twice: once when they learned that Dr. Joseph DeMasi had molested their child during therapy sessions and again when they learned that DeMasi had told others of his prediction but was licensed anyway. Dr. DeMasi told Dr. Charles Ingram that he fantasized about having sex with young children during therapy sessions included in his training, but Dr. Ingram failed to notify authorities about the risk. Dr. Ingram has now agreed to a settlement which will, according to the plaintiffs lawyer, more than cover the estimated $1.3 million in future medical costs to the child. (AP, October 10, 1998)

AUTO VERDICTS FROM THE DEEP SOUTH

Two southern juries have found automakers liable in crash cases. A Georgia judge sanctioned General Motors for willfully failing to turn over documents ordered released in discovery. Judge Gino Brogdon had ordered GM to produce 81 boxes of documents. GM later handed over 71 boxes, saying they had consolidated the materials into "better boxes". The judge later discovered that GM had withheld 2,300 documents they wanted kept from plaintiffs. Judge Brogdon then ordered the civil jury to assume that the Chevette in the underlying case was defective and assess damages. In a Texas case, a jury ordered Chrysler to pay $80 million in the deaths of two passengers in a Dodge Ram pickup truck. (Reuters, October 1 & 9,1998)

CALIFORNIA GOVERNOR SUED FOR CAMPAIGN CONTRIBUTION

Tony Miller, who failed to win the Democratic nomination for secretary of state, has filed a lawsuit against Gov. Pete Wilson, alleging violations of campaign finance laws. Miller claims that Wilson illegally hid contributions from the National and California restaurant associations to his fund for Prop 226, which would have limited unions' ability to support campaigns. Miller alleges that the two associations donated $250,000 to Wilson on May 10, and that Wilson failed to disclose the contribution until the Friday before the June 2 primary, thereby "deny[ing] the public the right to know who was providing significant finding" for Prop 226. (AP, October 21, 1998)

APPELLATE COURT UPHOLDS BIAS VERDICT AGAINST WAL-MART

Julie Deffenbaugh managed the jewelry department at a New Orleans Wal-Mart when she began dating a sales associate in the menswear department. Deffenbaugh, who is white, later married Truce Williams, the sales associate, who is black. She claimed she was told that her "association" with a black man would hinder her career, and she was later fired. A jury concluded that Wal-Mart fired her illegally and ordered her reinstated with $19,000 in compensatories, plus $100,000 in punitives. The trial judge cut the punitive portion entirely, but on appeal the 5th Circuit upheld the compensatories and reinstated $75,000 of the punitives. (Bloomberg, September 30, 1998)