Vested Interest - Tort Briefs - September 1998 Issue

SILICONE IMPLANT SUIT SETTLED

Hundreds of thousands of silicone breast implant victims have agreed to settle their claims against Dow Corning for a total of $3.2 billion. Under the settlement, victims would be paid depending on the severity of their illness: up to $250,000 total, averaging $31,000 for medical expenses and $5,000 for removal. Victims who opt out of the settlement could pursue individual claims, but their total compensation would be capped at $550,000. Ten days after the Michigan court approved the settlement, the Massachusetts Supreme Court upheld a $1.7 million verdict, which has grown to $2.5 million with interest, against Baxter Healthcare for its involvement in implant manufacturing. (USA Today, July 7,1998; AP, July 17,1998)

PRODUCTS LIABILITY LEVUTS BILL DIES IN U.S. SENATE

In another victory for victim advocates, Democrats in the U. S. Senate successfully blocked legislation to limit the obligations of negligent corporations. The measure was withdrawn after a motion to limit debate failed. All Democrats, including past bill sponsor Sen. Jay Rockefeller of West Virginia, voted against limiting debate, as did two Republicans. The bill would have limited punitive damages to $250,000 in cases against businesses with fewer than 25 employees or $5 million in annual revenues. (Reuters, July 9, 1998)

CORPORATE ATTORNEY URGES CONGRESS TO REJECT PUNITIVE CAPS

Testifying on the so-called "Fairness in Punitive Damages Awards Act" now in the U.S. Senate, Peter D. Zeughauser, former Senior Vice President and General Counsel for the Irvine Co., voiced reasons for corporate America to oppose limits on punitive damages. He noted that in one instance, his insurance company refused to defend a claim until he raised the possibility of large punitive damages if the case went to trial without an adequate defense. In another instance, his company used the threat of large punitives to convince tenant gas companies to pay cleanup costs associated with leaky storage tanks. Individually, the claims were too small to pursue; collectively, the claims would have been unwieldy. But by piling the possibility ofpunitives in personal injury cases that could arise from the failure to clean up the sites, Irvine encouraged its tenants to live up to their contractual agreements. (Liability Week, August 3,1998)

GENEVA CHAMBER OF COMMERCE FOUND LIABLE IN BALLOON CASE

Donald Swanson and Robert Landeness were riding in a balloon at the 1994 Swedish Days Balloon Fest when the inexperienced pilotof the balloon crashed into powerlines while attempting to land. The two and the pilot jumped 30 feet to earth before the balloon exploded, suffering severe injuries in the fall. The two have secured jury verdicts totaling $5.5 million. The jury ruled that the Geneva Chamber of Commerce was partly liable through its' control of the event and its hiring of the balloon. David James, who was piloting the balloon, had just 50 hours of experience in balloons, far short of the usual required for pilots. (Kane County Chronicle, June 20,1998)

NEW JERSEY CRITICIZES ALLSTATE INSURANCE FOR DISCOURAGING LEGAL REPRESENTATION

Amidst much fanfare, Allstate Insurance began mailing brochures to victims of car accidents a few years ago. The flyers, titled "Do I Need an Attorney?", urged victims to negotiate a settlement without legal advice. The New Jersey Supreme Court's Committee on the Unauthorized Practice of Law has now criticized Allstate for the brochure, finding that Allstate is practicing law without authorization. The Committee demands that Allstate make several changes to its practice: it must explain that claims representatives will not answer legal questions, and in acknowledgment of the inherently adverse relationship between it and the victims, it must stop calling victims of car accidents "customers" and referring to its settlement offers as "fair payment". Other changes are also required, though the Committee has jurisdiction only in New Jersey. (ATLA Advocate, August 1998)

CHILDREN SUE BOY SCOUTS OVER HARASSMENT

The Kiwanis Club of Memphis sponsored 80 children from Arkansas to attend a Boy Scouts summer camp in 1997. As adult camp counselors looked on, several teenaged counselors banged on the walls of the girls shower, scaring those inside and forcing some to flee half-dressed. Although an internal investigation claimed that the incident never happened, one of the counselors has joined the suit filed by two of the campers. They also claim racial discrimination, since the campers are black and the counselors were mostly white. (AP, July 21, 1998)

FLORIDA JURY ISSUES $2.4 MILLION VERDICT IN COLUMBIAN PLANE CRASH

An American Airlines j et flew into a mountain in Columbia in 1995, killing all but four passengers. A Florida jury has now ordered the airlines to pay $2.4 million to the parents of one of the dead. The New Jersey couple lost their only child, who was visiting relatives in Columbia. The jury agreed with the plaintiff's contention that the pilots entered the wrong codes into navigational computers on the plane. Negligence was not submitted to the jury after the judge ruled that there was enough evidence to focus instead on damages. (AP, July 17,1998)

HOOSIER SUES PHONE COMPANY FOR INVASION OF PRIVACY THROUGH TRAINING MATERIALS

Frank Martillotti of Indianapolis was denied credit and was rejected for an apartment because credit reports showed 74 requests for information in a 17-month period. Potential creditors saw the high number as an indication that Martillotti was financially over-extended. He was later shocked to learn that Ameritech Indiana was using him to train employees to request credit reports. Training manuals directed phone company staffers to Martillotti's name and personal information for practice. Martilotti's suit is now pending in Indiana state court. (AP, July 17, 1998)

MASSACHUSETTS JUDGES SET FONT AND TYPE-SIZE GUIDELINES

For years, Massachusetts judges have limited the length of appellate briefs to 50 pages. With the advent of computers, lawyers have been dodging the intent of that rule by adjusting the margins and using smaller fonts and font sizes. Now the courts are cracking down. If current proposed rules are adopted, litigants in Massachusetts appellate courts will have to file in Currier and will have to satisfy margin and size rules as well. Lawyers have objected that the judges have selected a bland font, and that variety makes it easier to read briefs, but the court has been firm, that too many lawyers file briefs that are too small and too elaborate. (AP, July 9,1998)

FLORIDA SUPREME COURT UPHOLDS WAL-MART AMMUNITION LIABILITY

Two teenagers bought .32 caliber bullets from a Wal-Mart store in Pensacola, then used the bullets to rob an auto parts store, killing a clerk in the process. The sale violated a federal law that bans such sales to people under 21. A trial court issued a $2.16 million verdict for the widow of the store clerk against Wal-Mart for negligently selling the ammunition. Now the Florida Supreme Court has upheld the verdict, noting that the federal law anticipates that ammunition sales to dangerous or irresponsible people will likely have tragic consequences, and that the store should have foreseen the possibility of injury or death at the time of the sale. (AP, July 18, 1998)

STUDY FINDS ROUTINE VIOLATIONS OF MEDICAL STANDARD OF CARE

A study conducted by U.S. Healthcare Corp. of drugs prescribed and tests conducted by 1,600 doctors in 4 states found errors in the treatment of one third of the time. Mistakes ranged from the failure to prescribe medications to lapses in ordering tests. Among the findings: only 50% to 70% of heart failure patients were prescribed beta-blockers to treat heart failure; only 59% of diabetics were given glycated hemoglobin tests each year despite the need to check blood sugar levels; and fewer than 80% of women aged 52-64 had mammograms. Dr. Lee Newcomer, author of the study, noted his surprise that doctors got it right so rarely. (Reuters, July 8, 1998)

CARIBBEAN COUNTRIES TO SECEDE FROM BRITISH LEGAL SYSTEM

Four Caribbean countries have announced plans to form their own high court, formally replacing the British judiciary with their own. Barbados, Guyana, Jamaica, and Trinidad all currently remain under the British courts, even though they established legislative and executive independence years ago. The move was prompted by efforts in the islands to execute prisoners. England has outlawed the death penalty, and reaffirmed its ban in 1993. English jurists and politicians have suggested they support the establishment of a separate court if only to eliminate the cost of British taxpayers of maintaining the current system. (AP, July 3, 1998)

U.S. JUSTICES EXPRESS OPENNESS TO EUROPEAN PRECEDENT ON LIABILITY LIMITS

A delegation of American jurists, led by Justices O'Connor, Ginsburg and Kennedy, spent part of the summer touring European courts to familiarize themselves with alternative practices and precedents. The group expressed the belief that the rising influence of international treaties on American corporations will result in an increase in the use of foreign precedents by American courts. "We are going to see in the next century a considerable amount of litigation coming out of these treaties," noted Justice Sandra Day O' Connor. As an example, Justice O'Connor noted the Warsaw Convention, which limits liability in airline crashes. (AP, July 8, 1998)

FLORIDA JURY HOLDS AMTRAK LIABLE IN CRASH

Three train engineers have secured a $2.3 million verdict resulting from a 1995 collision with a truck. The sewage treatment vehicle was crossing unmarked tracks when the Silver Star train hit it at 79 miles an hour, killing one engineer and injuring two others. Relatives of Randall Moses, who was killed, were issued a $1.6 million verdict by jurors, who agreed that marking the crossing would have prevented the accident. The remainder is divided between two other engineers. (AP, July 10, 1998)

ALTAR BOYS SETTLE CASE AGAINST TEXAS DIOCESE

The remaining plaintiffs in the sex abuse case against the Diocese of Dallas have settled their claims for $23.4 million. Combined with the partial settlement announced earlier, the Diocese has agreed to payments of nearly $31 million, mostly paid by insurers. A jury had issued a verdict for $119.6 million last year, but church officials balked at their ability to pay that. The case arose out of the abuse of over a dozen altar boys by Fr. Rudolph Kos, now serving a life prison sentence and barred for life by the Vatican from serving in a ministerial position. (AP, July 19, 1998)