Vested Interest - Tort Briefs - October 1998 Issue

FORMER U.S. JUSTICE LEWIS POWELL DIES

Justice Lewis F. Powell, who served on the U. S. Supreme Court from 1972 until 1987, was buried on August 31. Powell is remembered as a centrist who played a pivotal role in ideological battles on the court. Prior to his appointment by President Nixon, Powell was a lawyer in private practice and served on the Virginia Board of Education. In a highly unusual speech before his death, Powell said the one vote he most regretted was when he sided with a 5-4 majority in Bowers v Hardwick, which upheld Georgia's sodomy law. (AP, August 31, 1998)

ILLINOIS APPELLATE COURT TO RULE ON TORT IMMUNITY APPLICATION TO COOK COUNTY HOSPITAL

Cynthia Collins arrived at Cook County Hospital with a family history of breast cancer and a lump in her breast in 1986. Although she was examined by three doctors, no biopsies, mammograms, or ultrasounds were conducted, and breast cancer was not diagnosed until 1988. She died one year later. Defending against her malpractice suit, the hospital claimed that its failure to diagnose her condition, rather than constituting malpractice, actually freed it from liability. Citing the Local Government and Government Employees Tort Immunity Act, the hospital claimed immunity from suits alleging failure to diagnose. While trial courts have ruled against the hospital on this point for years, Circuit Court Judge Sophia Hall granted the hospital's motion. Now, for the first time, the matter is before the appellate court. (Chicago Tribune, September 13, 1998)

GROWING TREND: LAWSUITS THAT HAVE NO CHANCE OF COLLECTING

Observers cite several recent high-profile cases as part of a growing trend, of litigation undertaken to prove a point, even when the chances of collecting a judgment are remote. Prominent examples include suits filed by Darrell Cabey, who was paralyzed when shot by Bernhard Goetz, Fred Goldman, who claims his son was murdered by O.J. Simpson, and Steven Pagones, a former prosecutor who says he was defamed by the Rev. Al Sharpton and others. While all plaintiffs won jury verdicts in civil trials, they stand very little chance of collecting damages. Other examples include the Southern Poverty Law Center, which has won numerous judgments against Klan organizations, and the National Organization for Women, which has won judgments against abortion opponents. (AP, August 31, 1998)

JURORS ISSUE $10.2 MILLION IN RUNWAY COLLISION CASE

Donald Hendrickson and pilot Ralph Peterson were taxiing to a take off when their single engine plane was literally run over by a McDonell Douglas MD-80, TWA flight 427. The larger plane' swings sheared the top off of the Cessna Conquest 441, killing the two instantly. A St. Louis jury has returned a verdict, blaming air traffic controllers for failing to issue clear directions to the Cessna, and failing to monitor the runways to keep the TWA flight at a safe distance. The verdict includes $3.4 million to Hendrickson's estate, $3 million to Peterson's estate, and $3.8 million for damages to both planes. The Federal Aviation Administration is responsible for the verdicts. (St. Louis Post Dispatch, May 14, 1998)

TOBACCO RECAP

Observers point to a string of recent setbacks in the legal efforts to hold tobacco companies liable for killing millions of smokers. Recent court decisions have blocked FDA efforts to regulate tobacco as a drug, invalidated a plaintiff's jury verdict, and dismissed suits filed by labor unions seeking reimbursement along a similar theory to ones used by state Attorneys General. Nonetheless, the industry still faces 36 suits filed by individual states, and 72 class action suits.~Citing the release of hundreds of formerly confidential industry reports, Richard Daynard of the Tobacco Products Liability Project is hopeful that the tide is turning, either through litigation or public opinion. Four states have settled their claims, netting $3 6 billion, and the remaining state claims look increasingly strong, he said. (Reuters, September 14, 1998)

OBSERVERS SEE TREND IN WORKPLACE ARBITRATION AGREEMENTS

Employers are increasingly likely to insert a mandatory arbitration clause into their standard employment contracts, observers note. Pending U.S. Supreme Court case will likely outline the extent to which workers can sign away their right to sue. The case arose when a longshoreman alleged ADA violations by seven shipping companies. The companies argued that the man's union contract mandated arbitration, and the 41b Circuit dismissed his claim. The ACLU, the AARP, and the AFL-CIO all argue that a union cannot bargain away workers' legal rights. Employers, led by the National Association of Manufacturers, and the U.S. Chamber of Commerce, argue the other side. Oral arguments are expected this year, with a decision next Spring. (AP, September 11, 1998)

RACE FAN'S FAMILY SUES SPEEDWAY

Ken Fox was thrilled to attend the US 500 race at the Michigan Speedway in July, but his fart came to an end when driver Adrian Fernandez crashed, sending 200-mph debris into the stands. Fox, struck by a tire and axle, died instantly. His family now claims that the speedway should have taken additional steps to protect fans from such incidents. Noting that the Indianapolis Motor Speedway has 19-foot protective barriers, Fox's family claims that the 11-foot fence in Michigan was inadequate. The family seeks $1 million in compensatories and $10 million in punitives. (AP, September 11, 1998)

VIDEOTAPED BEATING LEADS TO SUIT AGAINST JOLIET POLICE, CASINO

Barry Stewart wanted to try his luck at Harrah's Casino in Joliet. However, security guards picked him up on suspicion of disorderly conduct, and, together with an on duty Joliet police officer took him to a private room and beat him. The officer then filed assault charges, which resulted in a grand jury indictment against the 39-year-old bakery worker. Lucky for Stewart, the beating was caught by video surveillance. As a result, the felony charges were dropped, but no disciplinary actions were taken against Office Bruce Larson. Stewart is now pursuing legal action against Harrah's, the Joliet police department, and Officer Larson. (Chicago Tribune, September 9, 1998)

DEBUNKING FILE: IS LIABILITY KILLING SMALL BUSINESSES?

Opponents of the jury system often claim that fear of lawsuits harms small businesses. But a new report by business consultant Roger Herman suggests that small businesses are now doing better than ever. He estimates that, in the mid-1980's, just 52.7% of new small businesses were still doing business after four years. A decade later, the success rate had grown to 75.5%. Herman credits years of corporate downsizing for the change, claiming that well trained and experienced managers, flush with severance packages, ran many of the new start-ups. These managers were better able than most to steer their new enterprises through the many pitfalls that result in failure. If new small businesses are doing so well, how can society justify further victim bashing? (Herman's report is summarized in the Chicago Sun-Times, August 23,1998, and is-taken from his book, Lean and Meaningful.)

SECOND REPORT FINDS THAT DOCTORS FAIL TO MEET STANDARD OF CARE

A study published in the Circulation, the journal of the American Heart Association, found that medical professionals routinely fail to ask cardiac patients about warning signs of disease. Of the eight factors guidelines say should be checked, doctors ask about just three on average. Residents and recent medical school graduates did the best, while doctors who were farther along in their profession were least likely to ask about warning signs. Dr. Joseph P. Frolkis, author of the study, said that training was not the problem. "If you gave physicians a quiz on these guidelines, they'd do very well. But sometimes, that information just doesn't translate into how things are done in the real world." (Chicago SunTimes, September 2, 1998)

NAPERVILLE POLICE SUED FOR HARASSMENT, DISCRIMINATION

Brooke Simon, in training to become a Naperville police officer, followed department guidelines by reporting sexually harassing comments by her training supervisor. Her reports resulted in an internal investigation and disciplinary action against Officer Glen Gurski. An unintended consequence, however, was that fellow officers expanded the harassment, and threatened to ignore her calls for backup while on patrol. When the Department ignored her complaints about these threats, often made in the presence of department officials, Simon went forward with a sexual harassment suit and a complaint with the Equal Employment Opportunity Commission. (Chicago Tribune, September 11, 1998)