March 2009


A jury in Buffalo awarded $40 Million to a man who was paralyzed in a car crash 10 years ago, according to a story in the Buffalo News.  Ford and the driver of the vehicle were sued in the case and the jury found both parties equally liable for the accident.  The accident happened on November 20, 1999 when the Ford Explorer, driven by Matthew Smolinski, crashed and rolled over. 

Smolinski’s brother Thomas was in the car and suffered severe spinal cord injuries that left him paralyzed.  Thomas is confined to a wheelchair and unable to care for himself on a daily basis.  The award will help to pay for his care and treatment. 

This is just one of many verdicts against Ford for rollovers.  Others include a 2004 verdict in California of $368 Million for a woman paralyzed in a Ford Explorer rollover and a 2005 verdict in Texas ($31 Million) for two people killed in a Ford Explorer rollover.

A Burger King restaurant in Temecula, CA settled with the family of a 12 year old boy who fell at the fast food facility on August 4, 2005 and struck his head, causing a brain injury, according to a story on mydesert.com.  The boy was playing on a structure inside of the restaurant that looked like monkey bars and a fireman’s pole.  The floor beneath the area was bare tile, with no protective rubber mat installed for safety. 

The boy’s attorney claimed that the restaurant should have installed a rubber mat under the play structure and that parents have an expectation of safety when they take their children to an established playground.  The defendants contended the responsibility for watching the children was with the boy’s father.  Plaintiff’s also contended there was no warning sign at the playground, despite the fact that other restaurants in the chain with similar playgrounds had warning signs installed in the area.

The young boy suffered damage to his parietal lobe, left frontal lobe, and damage to his lungs.  The parties sued were the restaurant franchisee, the parent company, the playground manufacturer, and the playground installer, Delta Marketing, Inc.

The CPSC issued a recall on State Farm Good Neigh Bears, a promotional item given away by State Farm agents and at State Farm events from September 2005 to March 2007.  It is estimated 800,000 of these bears were given away during this time period.  The bears pose a choking hazard to young children, as the plastic eyes can come off and lodge in a child’s throat.

Of course, the bears were made in China.  Consumers are requested to throw the bears away.

I previously posted about new tort reform measures being pushed in the Oklahoma legislature.  A new article in the Tulsa World talks about measures the Oklahoma Bar is taking to counter the unreasonable proposals.  The litany of tort reform measures being pushed include a cap of $300,000 on pain and suffering damages, a requirement that plaintiff hire an expert witness to certify a lawsuit has merit, a limit on attorney’s contingency fees, and attempts to allow the legislature power over the body that appoints judges.

The Bar Association says the measures will “hamper the rights of ordinary citizens to have their day in court”  and give the legislature the power to “set the amount of damages that can be awarded in every case, replacing the constitutional right of citizens to have their case determined by a jury of their peers”.  The Bar Association also believes the free market should set the fee lawyers charge, not the government. 

These are old tricks from the reformer playbook.  The contingency fee allows average citizens to be able to afford legal representation of the same caliber as the corporations and insurance companies they have to sue to enforce their rights. 

The cap on pain and suffering is another classic from the reformer’s playbook.  Plaintiff’s who are entitled to pain and suffering damages of more than $300,000 are the most profoundly affected of plaintiffs.  They have sustained life changing injuries and usually will never be the same.  They are not filers of frivolous lawsuits.  They are the severely injured.  So the tort reformers say caps are needed to prevent jackpot justice and to prevent those who are least deserving from collecting on frivolous matters.  But that isn’t what the cap does.  It prevents the most severely injured from getting the help they need.  Sick.

As to the issue of changing the system for appointment of judges, that is yet another tort reformer classic.  They are constantly looking to change the way the judiciary is elected, apointed, etc.  If judges are elected in a jurisdiction, they say the power to elect judges should be taken out of the hands of people (average citizens are dangerous).  If judges are appointed, as in Oklahoma, they say the legislature should have more power in appointing the judges, to give the “people” more say in the process.  Yeah right.

Good luck to the people of Oklahoma.  Hopefully insurance companies and corporations won’t be successful in completely taking over the state, especially if one of the insurance companies is AIG.

The CPSC issued a recall for 167,000 Kidde fire extinguishers.  According to the CPSC, the hazard posed by the extinguisher is that the “pressurized cylinders in the recalled fire extinguishers could lose pressure and fail to operate. In the event of a fire, this failure could put a consumer and property at risk”.

The recall applies to “Kidde XL Fire Extinguishers with model numbers FX340SC, FX340H, FX340GW, XL5MR, FX210R, FX340SC-2, FX210W, XL2.5TCZ-4, E-340-3 and with manufacture dates between October 2007 and April 2008. “Kidde” and the model number can be found on the label on the front of the extinguisher. The manufacture year is on the bottom of the extinguisher. If your extinguisher is one of the listed model numbers and is marked with the year 07 or 08, contact Kidde to determine if you have a recalled extinguisher”.

The extinguishers were sold at stores across the country from October 2007 through April 2008 for $35.  If your extinguisher has lost pressure, the meter on the extinguisher will be in the redzone.  Contact Kidde for a free replacement if your extinguisher has lost pressure.

According to the Chicagotribune.com, a jury awarded a verdict of $2.6 million in the case of a woman exposed to toxic asbestos particles.  The woman, Jean Holmes, died from asbestos related cancer, mesothelioma, in April of 2006.  Mrs. Holmes’ exposure to asbestos occurred when she washed her husband’s clothes.  Her husband, Donald Homes, was a worker at the Union Asbestos and Rubber Company, in Bloomington, IL in the 1960′s. 

The lawsuit claimed Mr. Holmes worked around asbestos products manufactured and used by the defendant’s.  Mr. Holmes’ work with these asbestos products caused asbestos particles to be lodged on his clothing at work everyday.  Mr. Holmes carried these deadly particles home to his wife, who shook them out of the clothing and breathed the particles into her lungs, while she was preparing the clothes to be washed. 

The plaintiffs claimed the defendants, including Honeywell International, Inc. and Pneumo Abex LLC, failed to warn the workers who used their products about the dangers of asbestos.  It was claimed these defendants knew about the dangers of asbestos for years and conspired to suppress the information about the dangers, so that workers would not learn about the deadly nature of the product they routinely worked with.  The jury found the defendants responsible for their failure to warn the workers about these hazards.

According to newsday.com, the Airlines involved in the 9/11 tragedy have agreed to settle 92 of the 95 lawsuits pending against the Airlines for a total of $500 million.    The majority of the lawsuits were filed by the families of victims who rejected the settlement offered through the fund established by Congress to compensate victims of the tragedy.

Some of those pursuing the lawsuits felt that justice was not possible for their loved ones who perished that day in the system set up by Congress.  They wanted answers and wanted to be heard.  One father of a victim says he is upset that to date no one has accepted responsibility for the lapses in security by the airlines and aviation security companies in charge that day.

Many of the families asked for meetings with airline representatives.  Special mediations were set up where victim’s families met with mediators and representatives of the airlines.  In these meetings the victims were able to express their feelings to the airlines and receive expressions of condolences at these meetings.  After being allowed to confront those responsible for their loss, the families were able move to the next step in the case, discussing settlement.  Great to see mediation being used in that manner, ie. to settle the case and to give the families a sense of justice.

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