Vested Interest - Tort Briefs - September 2004 Issue

Jury finds for Plaintiff in IL Dental Malpractice

A jury returned a verdict in favor of a 39-year-old Lake County resident in a dental malpractice case. The man had gone to his dentist complaining of jaw pain. The dentist determined the pain to be an infection caused by a loose tooth and prescribed antibiotic therapy. A film indicated a lesion may be present, but the dentist failed to advise the plaintiff on her differential diagnosis. After 5-1/2 months, a jaw tumor was diagnosed and a larger portion of the plaintiff’s jaw had to be removed. (Press Release – July 6, 2004)

Jury Awards $17 Million in Worker’s Suffocation

A jury awarded $17 million to the husband of a woman who slowly suffocated while trapped in a milk plant machine that her supervisor allegedly refused to shut off. No one called 911 for twenty minutes after the woman became pinned to a wall by a stack of crates on a conveyor belt. "The supervisor knew how to turn off the machine but he wouldn’t do it and went looking for maintenance because he said it was their job to handle, and he didn’t want to hurt the machinery," said the plaintiffs attorney. (ATLA Law News Digest – July 8, 2004)

Lloyd’s Launches $30 Million Fight

Seeking to recover a $30 million settlement in a swimming pool negligence case, Lloyd’s of London has sued Cozen O’Connor and Carlton Fields for malpractice. The suit contends attorneys failed to advise Lloyd’s to pay the policy limit of $1 million to settle, instead of going to trial. Under Florida law, if the insurer pays the policy limit, the carrier faces no further liability. However, if the policy limit isn’t paid, the insurer is liable for the entire judgment. (ATLA Law News Digest – July 8, 2004)

An Injury Most Foul

A fan struck by an errant baseball while buying a beer may cry foul, the New Jersey Appellate Division ruled. Narrowing the assumption-of-risk doctrine, the court held that stadiums must provide protection for fans not in their seats watching the game because "the activities and ambiance of the concession area predictably draw the attention of even the most experienced and the most wary fan from the action on the field of play." (ATLA Law News Digest – July 22, 2004)

Out-of-State Diet Drug Plaintiffs May Sue in Philadelphia

A Philadelphia Common Pleas Court judge has ruled that 55 fen-phen cases brought by out-of-state plaintiffs against a Pennsylvania-based division of the pharmaceutical maker Wyeth should not be dismissed on forum non conveniens grounds. A plaintiffs’ attorney said the judge’s decision could affect future disputes over out-of-state plaintiffs’ claims - including the majority of the 13,000 fen-phen cases currently pending on the court’s Complex Litigation Center docket. (ATLA Law News Digest – July 22, 2004)

Popcorn Company Settles with Worker

A Missouri popcorn company settled a lawsuit over health problems suffered by a worker who claimed that exposure to the chemical diacetyl in the butter flavoring made at the plant damaged his airways so severely that he will likely never work again. A doctor testified that the worker would likely need a double lung transplant in 5 to 10 years. More than 20 plaintiffs still have lawsuits pending against the popcorn maker, International Flavors. (Belleville News Democrat – July 22, 2004)

Yale Doctors Win $5.5 Million in Suit

A state jury awarded $5.5 million to three physicians who said Yale University punished them for complaining of poor patient care and mismanagement in its radiology department. "I think they gave a patient-care message: You should not penalize doctors who are speaking out in good faith on behalf of their patients," said a lawyer for one of the physicians. The trial hinged on changes Dr. Bruce McClennan instituted when he took over the department in 1995, as forces were reshaping the healthcare industry. Insurance companies and the federal government were paying less for CT scans, MRI tests and other exams even as the demand for diagnostic images was growing. (ATLA Law News Digest – July 29, 2004)

Evidence about Post-Accident Design Changes Admissible in Products Liability Action

In Dewick v. Maytag Corp, the United States District Court, N.D. Illinois, Eastern Division, ruled that evidence about the design changes made after a child’s accident was admissible in a products liability action stemming from an incident in which a child climbed inside the broiler compartment of a kitchen range. The manufacturer placed feasibility into controversy by taking the position that those changes did not render the oven safer and would not have prevented the child’s injury. Furthermore, evidence of the manufacturer’s subsequent remedial measures could be introduced for impeachment of defense witness. (ATLA Law News Digest – July 29, 2004)

Allstate in Texas to Pay $60 Million in Refunds

Allstate Texas Lloyds, the second-largest home insurer in the state announced it will refund $60 million to its 686,000 Texas customers under an agreement with state insurance regulators. The refunds equal 8.75 percent of the premium paid by each homeowner with an Allstate policy during the last year, an average $91. The company cut its premiums 10.1 percent after its rates were challenged by the Texas Department of Insurance. (ATLA Law News Digest – August 12, 2004)

Companies Ask People to Waive Right to Jury Trial

For years many American companies have forced their customers and employees to settle disputes through private arbitration. The rising costs of arbitration proceedings has led some companies to decide they might be better off in the court system. The new tactic: let disputes go to court but on the condition that they be heard only by a judge. So-called jury waivers, which require people to give up the right to have cases heard by their peers, are now appearing in a wide range of routine contracts. The list includes residential leases, checking-account agreements, auto loans and mortgage contracts. (ATLA Law News Digest – August 12, 2004)