Vested Interest - Tort Briefs - October 2000 Issue

GIRL SCOUTS SUE TO GET COOKIE BILLS PAID

The Girl Scouts of DuPage County are going after people they claim wrote bad checks for cookies. The Naperville-based organization filed 7 small-claims lawsuits seeking reimbursement for cookie-payment checks that bounced. In one case, a Downers Grove couple is accused of bouncing a check for $375 that was to cover the cost of 125 boxes. About seven or eight additional suits are to be filed shortly, according to the Scouts attorney. The lawsuits were a last resort after the organization tried to resolve the matters internally. In each case, the Scouts are seeking three times the amount of the checks. (Daily Herald - August 2000)

SUIT OVER UNDIAGNOSED CANCER YIELDS $14 MILLION JURY VERDICT

A record $14 million verdict was awarded by a Cook County Jury to a Naperville woman whose lung cancer was delayed several years by a lack of communication among her doctors. The plaintiff, Sandra Hogan, 51, can no longer work as a corporate paralegal because the cancer has metastasized to her brain. The $14,050,000 medical malpractice verdict is the highest anywhere in Illinois in 10 years for failing to diagnose cancer; the next-largest verdict in such a case was $10.3 million. (Chicago Daily Law Bulletin - August 4, 2000)

JUDGE TOSSES OUT CITY'S GUN LAWSUIT

Chicago's landmark lawsuit against the gun industry was tossed out of court. In dismissing the $433 million lawsuit, Circuit Court Judge Stephen A. Schiller ruled that police and lawmakers-not the civil courts-are the proper authorities to tackle allegations of misconduct against gun manufacturers, distributors and dealers. But Corporation Counsel Mara Georges said she was encouraged that another Cook County judge allowed a similar lawsuit against the gun industry to proceed last December. Chicago and Cook County filed the gun suit in 1998, claiming the industry used suburban dealers as a pipeline to flood the city with guns that traffickers in turn supplied to criminals. Chicago is one of 32 cities and counties to sue the gun industry, along with New York state. New Orleans, Atlanta, Boston, Detroit and Cleveland defeated industry efforts to dismiss their lawsuits. But judges tossed out gun suits in Bridgeport, Conn., Cincinnati and Miami-Dade County. (Chicago Sun-Times - September 16, 2000)

APPEALS COURT BACKS CITY IN BICYCLIST'S LIABILITY LAWSUIT

A state appeals court rejected an injured bicyclist's claim that the City of Chicago's efforts to encourage and promote bicycling shows that the city considers bicyclists intended users of its streets. The 1 s' District Appellate Court panel affirmed a trial court's dismissal of a negligence lawsuit brought against the city by Emily Kuldanek. Kuldanek's lawsuit maintained that on August 30,1994, she suffered injuries after falling from her bike on a Southwest side street that was being repaved. Kuldanek's right wrist was broken in several places and had to be reconstructed. The lawsuit alleged the city was negligent in failing to maintain the street and failing to properly warn of defects. Kuldanekis considering asking the court to reconsider its decision or request that the Supreme Court review the matter. (Chicago Daily Law Bulletin - September 8, 2000)

LAWSUITS ALLEGE CONSPIRACY TO PROMOTE SALES OF RITALIN

The makers of Ritalin and the American Psychiatric Association encouraged over diagnosis of behavioral disorders in children and used misleading sales literature to boost sales of the drug, according to a pair of lawsuits filed in New Jersey and California. Novartis Pharmaceutical Corp. and the association promoted the belief that a large number of children need to take Ritalin for attention deficit disorder or attention deficit hyperactivity disorder the lawsuits allege. The companies released misleading sales literature about Ritalin's effectiveness, "without ever advertising...that Ritalin usage would not stimulate or improve academic performance and/or have any long-term effect on the symptoms associated with ADD or and/or ADHA," the California lawsuit says. (AP - September 18, 2000)

WOMEN SUE ON CLAIM THEY WERE SEX SLAVES

Fifteen Asian women, forced into sex slavery by the Japanese army during World War II, sued the government of Japan seeking payments for years of rape, beating, starvation and other forms of mistreatment. Lawyers in the case said it is the first lawsuit filed in U. S. courts against the Japanese government for war crimes. Previously, lawsuits were brought against Japanese companies for their use of slave labor during the war. It was also the first U. S. lawsuit on behalf of former sex slaves, called "comfort women" by the Japanese imperial army, which seized them and forced them to service as many as 40 or 50 soldiers a day in battlefield brothels. In addition to the 15 named plaintiffs whose stories were set forth in graphic detail in the legal complaint, the suit sought "class action" compensation for all other "comfort women." It estimated that as many as 200,000 women were victims from 1931 through the end of the war but that only about 1,000 women are thought to be still alive. The vast majority of the women either died of disease and mistreatment or were murdered by Japanese troops during the war. Many of those still held in 1945 as the Japanese war effort collapsed were either killed or abandoned in jungle battlefields by the retreating troops. The suit was filed under the Alien Tort Claims Act, which gives foreign citizens the right to sue other foreign citizens, foreign entities or U.S. citizens in U.S. courts for abuses of international law. None of the 15 named plaintiffs have ever lived in the United States. The 15 named plaintiffs in the "comfort women" suit include six Koreans, four Chinese, four Filipinas and one Taiwanese. (Los Angeles Times - September 19, 2000)

FAMILY FILES SUIT IN GENE THERAPY DEATH

The University of Pennsylvania has been sued for wrongful death, assault and battery and fraud, a year and a day after 18 year old Jesse Gelsinger died in a university gene therapy experiment. Gelsinger died while under the care of Penn's Institute for Human Gene Therapy. Since his death, the U.S. government has made multiple charges of wrongdoing against the Institute and its director. The incident has had widespread ramifications on the entire gene field of gene therapy. (Daily Pennsylvanian - September 17, 2000)

JUDGE APPROVES $3.75 BILLION FEN-PHEN SETTLEMENT

A federal judge has approved a proposed $3.75 billion national settlement of health claims stemming from the diet drug combination fen-phen, which has been linked to potentially fatal heart valve damage. Under the settlement, fen-phen users would get up to $1.5 million, though most would get far less, depending on their level of injury and how long they took the drugs. The settlement also includes money for future medical monitoring. More than 9,000 lawsuits have been filed against American Home Products, maker of fenfluramine, the "fen" in the fen-phen diet drug combination. The company sold the combination under the brand name Pondimin. The drug was withdrawn in September 1997. (Associated Press - September 9, 2000)

AIRLINE LIABLE IN PASSENGER'S ASTHMA DEATH

Invoking an international treaty rarely applied in such cases, a federal judge ordered a Greek airline to pay $700,000 for its role in a passenger's asthma-related death aboard a cigarette smoke filed plane. The U.S. District Judge Charles R. Breyer said Olympic Airways attendants should have switched the seat of Abid Hanson after he complained that nearby smoke was bothering him on the January 1998 flight from Egypt to the United States. In holding Olympic partially liable, Breyer cited the Warsaw Convention treaty. All international carriers must sign the treaty, which sets limits on airlines' financial liability for accident victims. The Judge awarded $1.4 million but cut it in half after concluding the 52-year old victim could have found another seat when the flight attendant told him to "go ask people yourself." (Associated Press - August 29, 2000)

JURY AWARDS $63 MILLION IN ARYAN NATIONS TRIAL

The civil rights lawyer who helped win a $6.3 million j judgment against the Aryan Nations hopes the verdict is j just the first step toward shutting down the white supremacist group. The jury found that Aryan Nations leader Richard Butler, the group and its corporate entity, Saphire Inc., were negligent in overseeing the security guards who assaulted Victoria and Jason Keenan in 1998. The Keenans were chased, shot at and attacked after they stopped to search for a lost wallet outside the Aryan Nations headquarters north of Coeur d'Alene, Idaho. Jurors deliberated about 10 hours over two days before setting $6 million as a punitive damage award and $330,000 in compensatory damages to Victoria Keenan, 44, and Jason, 21. (Associated Press - September 8, 2000)

RUSSIA SUES U.S. TOBACCO COMPANIES FOR HEALTH CARE REIMBURSEMENT

Joining a long line of nations seeking retribution against U.S. tobacco companies, Russia is suing the industry for damages in Miami. Russia's lawsuit filed in August seeks, millions, if not billions, in damages to compensate the nation for health care spending on smoking-related illnesses, plus punitive damages. The office of the Kremlin property manager filed the lawsuit. It follows the lines of other lawsuits filed by Ecuador, Venezuela and Brazil. (Associated Press - September 15, 2000)

COPPERFIELD FILES LAWSUIT AGAINST INSURANCE COMPANY

Magic didn't get his $500,000 back, so David Copperfield is turning to the courts. Copperfield, filed a lawsuit against Fireman's Fund Insurance claiming the company improperly denied a claim stemming from his ordeal in getting equipment he used in his shows back from Russia. According to the lawsuit, papers that permitted the magician to shuttle more than $4 million worth of equipment in and out of Russia without paying taxes disappeared after his final performance in Moscow in December. Without the papers, the sealed trunks containing the equipment could not legally leave the country. Copperfield later learned the papers were being held by a company he believes is linked to the Russian mafia. Company officials said they would destroy his property if he didn't pay to have the papers returned. (State Journal-Register - August 28, 2000)

MARYLAND LAWSUIT BLAMES CANCER ON CELL PHONE

A Maryland man has filed an $800 million lawsuit blaming his brain cancer on years of using cellular phones. The suit was filed in Baltimore City Circuit Court on behalf of Chris Newman, a physician who claims he used the hand-held phones several times a day from 1992 to March 1998, when his a tumor was diagnosed. The lawsuit seeks $100 million in compensatory damages and $700 million in punitive damages from Motorola, Bell Atlantic, Verizon Maryland and other defendants. The Food and Drug Administration has said there is no evidence that radiation from cell phones poses a health risk. (Liability & Insurance Week - August 21, 2000)

D.C. SETTLES SUIT OVER DEATH OF TRANSVESTITE FOR $1.75 MILLION

The District of Columbia government has agreed to pay $1.75 million to settle a lawsuit brought by a mother who claimed neglect by the city's fire department and hospital contributed to her son's death after a traffic crash. Tyrone Michael Hunter dressed as a woman, took hormone injections to develop breasts and went by the name Tyra. Rescue personnel from the fire department were treating him after the 1995 crash when they discovered his male genitalia, and according to passersbys they stopped treatment and began laughing. Hunter died later at D.C. General Hospital. His mother Margie sued the city, alleging the rescue workers violated his civil rights and the hospital neglected to give him a necessary blood transfusion. A jury awarded her $2.9 million. The case was under appeal when the city settled. (Liability & Insurance Week - August 21, 2000)

KENTUCKY LAWSUIT OVER SCHOOL SLAYINGS SETTLED FOR $42 MILLION

Families of three Kentucky high school girls slain by a fellow student more than two years ago have accepted a $42 million settlement of their lawsuit, even though payment is unlikely. Plaintiffs' attorney Mike Breen said the families of Jessica James, Kayce Steger and Nicole Hadley had accepted the settlement offer from attorneys for Michael Carneal, who opened fire in the school Dec. 1, 1997. But Carneal has no assets, and his family's insurance company, Kentucky Farm Bureau, insists it isn't liable for his actions. The families originally named 50 defendants, including Carneal's parents and the school district, but a judge dropped all other defendants except Michael Carneal from the suit. (Liability & Insurance Week - August 21, 2000)

ON "DO I NEED AN ATTORNEY?"

Allstate Insurance Co. has agreed to a consent order by Maryland Insurance Commissioner Steven B. Larsen requiring the company to modify its program of advising those with claims against Allstate-insured drivers about whether they need an attorney. In Maryland and elsewhere, Allstate has made a practice of providing such individuals with literature that asks and provides answers to the question, "Do I Need An Attorney?" "It is important that any such literature be accurate and not inappropriately discourage consumers from seeking legal advice," Larsen said in announcing the agreement. Larsen requested that language suggesting that attorney involvement would prolong settlement negotiations or reduce the claimant's net recovery should be balanced with other information suggesting the benefits of attorney involvement. The initial question, which gave the brochure its title, is unchanged. Both versions say, "Am I required to hire an attorney to handle my claim? The answer in the original version was, "No. In fact, each year Allstate settles claims directly with many accident victims with no attorneys involved in the claim settlement process." (Liability & Insurance Week - August 21, 2000)

"SURVIVOR" SURVIVOR SEEKS ANOTHER $1.5 MILLION IN A LAWSUIT

Richard Hatch, who won $1 million on the CBS-TV show "Survivor," has filed a lawsuit seeking another $1.5 million from his home town of Middletown, RI, claiming he was wrongfully arrested when he was charged with child abuse and defamed when the news was released to the media. Hatch, a corporate trainer who revealed during the series that he is homosexual, won the elimination contest filmed on the island of Palau Tiga and returned home in April under a strict vow of secrecy. He was arrested two days later when a teacher asked his adopted son, 9, about a visible bruise and the boy accused Hatch of pulling him up by the ear and wrapping his hands around his neck. Police arrested Hatch and the state Department of Children, Youth and Families removed the boy from his custody for almost a month. Then charges were dropped and the boy was returned after a Family Court hearing. Hatch sued the state in an earlier lawsuit. He says the boy bruised his head when he fell and fabricated the story because he didn't want to participate in a run of several miles at 4:30 a.m. when reporters asked why he took the boy on such a long run so early, Hatch replied it was none of their business. (Liability & Insurance Week - September 6, 2000)

CONNECTICUT LAW LEADS TO $1 MILLION PAS AGAINST MICROSOFT

A federal judge has awarded $1 million in punitive damages to a Connecticut software company that sued Microsoft Corp. after Microsoft refused to renew a contract allowing use of Windows source code. U.S. District Judge Janet Hall of Bridgeport found Microsoft had engaged in "wanton, reckless" and deceptive business practices and awarded the largest damages ever imposed for a Connecticut's fair trade statute - even though a jury had awarded only nominal damages of $1 on that claim last year while finding Microsoft wasn't liable on antitrust claims. Microsoft said it would appeal the ruling, which it said wasn't consistent with the jury verdict. The U.S. Supreme Court has held that punitive damages greatly disproportionate to compensatory damages, at least in cases alleging only economic damages, may violate the constitutional guarantee of due process of law. (Liability & Insurance Week - September 6, 2000)

CONNECTICUT ATTORNEY GENERAL SUES FOUR HMO'S

Connecticut Attorney General Richard Blumenthal filed a federal class action lawsuit against four managed care organizations Sept. 7, saying he wants no money but wants them to stop abusive practices. Defendants are the state affiliates of Anthem Blue Cross and Blue Shield, CIGNA HealthCare, Oxford Health Plans and Physicians Health Services, as well as their parent companies. Blumenthal, a Democrat, said his is the first such lawsuit filed by a state and he hopes other states will join the effort. He was among the leaders of46 state attorneys general in negotiating a $206 billion settlement of their lawsuits against the tobacco industry. The lawsuit accuses the managed care companies of failing to tell patients what drugs are covered in their plans, delaying payments to providers, mishandling patient complaints, marking arbitrary coverage decisions and withholding information about appealing those decisions. Blumenthal said the lawsuit results from a two-year investigation of patient complaints. Responding to the lawsuit, representatives of the companies generally defended their records and said litigation would only increase costs. (Liability & Insurance Week - September 11, 2000)