JURY AWARDS $2 MILLION IN BYSTANDER MESOTHELIOMA CASE

A jury in McClean County Illinois awarded the family of a deceased mesothelioma victim over $2 million, according to a story on pantagraph.com.  The woman, Juanita Rodarmel, was married to a man who worked at the Union Asbestos & Rubber Company (UNARCO) plant in Bloomington, IL in the 1950’s. 

Ms. Rodarmel’s husband carried home asbestos fibers on his clothes and Ms. Rodarmel was exposed to the asbestos fibers from his clothes every time she was his clothes.  The jury awarded $100,000 in punitive damages against Pneumo Abex, LLC and $400,000 in punitive damages against Honeywell International.  The lawyers for Ms. Rodarmel’s family argued that Pneumo Abex and Honeywell International conspired with other companies to suppress the facts about the hazards of asbestos.

 

ARKANSAS SUPREME COURT STRIKES DOWN TORT REFORM PROVISIONS AS UNCONSTITUTIONAL

The Arkansas Supreme Court found two provisions of a 2003 tort reform bill known as the Civil Justice Reform Act unconstitutional, according to a story on arkansasnews.com.  In the case, Johnson v. Rockwell Automation Inc., a worker sustained severe injuries to his hand, when the safety switch on a starter bucket malfunctioned, and sued Rockwell, the designer of the bucket.

The two issues the court looked at were a provision that allowed jurors to assess fault to non-parties and a provision that abolished the collateral source rule.  The Court found that the legislature went too far in the tort reform bill and that these provisions violated separation of powers provisions of the state constitution. 

In the opinion, Justice Paul Danielson wrote the “(r)ules regarding pleading, practice and procedure are solely the responsibility of the court.”  Because rules regarding pleading, practice and procedure are solely the province of the judiciary, the legislature cannot pass laws in this area, without running afoul of the constitution.

In this case, the defendant wanted to introduce evidence that a non-party shared blame for the defect that caused the injury, which was admissible evidence under the new statute.  The court found that “(t)he nonparty-fault provision bypasses our ‘rules of pleading, practice and procedure’ by setting up a procedure to determine the fault of a nonparty and mandating the consideration of that nonparty’s fault in an effort to reduce a plaintiff’s recovery.”  The Court found that “(b)ecause the nonparty provision is procedural, it offends the principle of separation of powers.”

The collateral source rule is a common law doctrine which dates back to the 1800’s.  It says that evidence that a victim might be compensated for injuries from a source other than the defendant that caused the injury, is inadmissible.  For example, a car wreck victim might have health insurance which pays for some of their doctor bills. 

The reason the defendant cannot ask for a reduction in a case where health insurance pays a bill, is that the health insurer has a right to pay back from the plaintiff, for any money they pay out on the claim (subrogation right).  That means if a jury reduces the amount of an award by the amount the health insurer pays, then the health insurer gets pay back from the plaintiff for what it paid out, the plaintiff ends up under compensated for their injuries. 

The court stated “we have held that the rules of evidence are rules falling within this court’s domain.”  The statute restricts what evidence may be admitted at trial.  Because the statute creates a new rule regarding what evidence is admissible at trial, it violates the separation of powers provision of the state constitution. 

Collateral source and joint liability are two common targets in tort reform attacks in state legislatures.  Joint liability protects plaintiffs from being under compensated when there are multiple defendants and one of the defendants cannot pay their share.  The collateral source rule prevents the at fault party from getting away with paying less than the full amount they owe and short changing the victim.

 

STUDY SAYS MEDICAL MALPRACTICE CAPS IN TEXAS DO NOT WORK

There is a new story on dallasnews.com which discusses new evidence that malpractice damage caps are not a fix for high health care costs.  The argument advanced by tort reformers in the halls of Congress, as well as the halls of state legislatures all over the country, is that 1) doctors pay high premiums to insurance companies to protect themselves against malpractice suits, and 2) the cost of these premiums are passed on to consumers, which makes health care more expensive. 

Texas passed a medical malpractice lawsuit cap in 2003, limiting the amount of general damages (non-economic damages such as pain and suffering, loss of enjoyment of life, and mental anguish) to $250,000, no matter how egregious the harm done to the patient.  According to the article, the law produced a 30 percent drop in doctors’ mapractice insurance premiums.

 However that has not translated into lower medical costs for consumers.  The cost of medical insurance premiums rose faster than earnings in Texas.  According to Families USA, health care premiums in Texas rose a whopping 86.8 percent betweem 2000 and 2007.  Medicare spending in Texas increased 24 percent in the three years after the cap was passed. 

A study published in December 2008 in the journal Health Sciences Review, found that “(t)ort reforms have not led to health care cost savings for consumers.”  The study asks the question “(a)re there other benefits (from tort reform) to consumers? If these cannot be identified, it is difficult to see a justification for the loss of legal rights.”

The benefits acrue to the insurance companies who do not have to pay for the damages covered under their policies.  Those hurt are not people who have small injuries and heal up from the malpractice done to them.  Those who are damaged by the cap are the severally injured, who then become a burden on society, because the person who caused their injury is not having to pay for the damage they have done.

 

TRUCKER LIABLE FOR WAVING MOTORIST THROUGH

According to a story on philly.com, a jury in Freehold, New Jersey found a truck driver liable for a traffic accident, where the trucker had no physical contact with the other vehicles in the accident.  The truck driver was stopped in traffic and Thurman Baker, the driver of the car involved in the accident, was in a parking lot, trying to enter the roadway.  The truck driver waved Baker’s car across the lanes of traffic, where the car was hit by a motorcycle traveling in the other lane of travel.

The trucker told an officer at the scene he waved for the driver to enter into the highway, the sign that it is clear to go, but then later changed his story.  The jury in the case awarded the victim $1.5million.  His injuries included a concussion, permanent damage to his arm and five cracked teeth.

 

CONSUMER LAWSUITS AGAINST DEBT COLLECTORS ON THE RISE

According to a story on the Houston Chronicle website, consumers are beginning to fight back against debt collector harassment.  Statistics from the Federal District court in Houston show a 60% increase in these types of suits in the first quarter of this year.   

The story says Texas has especially strong laws to protect consumers from harassment.  In one case, a man won a $1 million judgment against a debt collector who harassed him.  The debt collector was trying to collect $2,700 owed on a Visa card.  The collector told the debtor he had taken out a contract on the debtor’s life and also called a bomb threat into the debtor’s workplace.  In another case, a woman was awarded $15 million, after debt collectors, trying to collect a relative’s debt, threatened that the woman would be arrested.  The woman turned herself into authorities. 

There is a federal law, the Fair Debt Collection Practices Act, that prescribes the activities a debt collector is allowed to take, in pursuing a debt owed by a consumer.  The Act applies to collectors, not the actual party the debt is owed to.  For instance, if you owe Joe Smith Inc., and he hires a debt collection agency or an attorney, the act applies to actions of the people he hires to collect the debt, but not to Joe Smith Inc.  There are also instances where state law might have greater remedies than federal law.  State consumer protection laws vary from state to state.

One person quoted in the story opines that the rise in suits could be linked to the fact that debt collectors are hurting in this economy and presumably, are turning to harsher tactics in trying to collect debts.

 

SOCIAL SECURITY SYSTEM OVERLOADED WITH CLAIMS

According to an article on the Baton Rouge 2theadvocate.com webpage, the system Social Security uses to administer disputed disability claims is severely backlogged.  This is nothing I didn’t know already.  I see it in my practice every day.  I represent people in Social Security disability cases who have an average wait time of anywhere from one year to two years, in this district.  That wait time is from the date of denial of a disability claim to the date of hearing on the claim.  After the hearing it can take anywhere from a couple of weeks to several months to get a decision from the ALJ.

The story quotes Social Security Administration officials, who claim the backlog is the result of underfunding and under-staffing at the Agency, as well as a dramatic rise in the number of cases, and an increasing number of cases dealing with what they call “hard to  prove ailments”, such as back pain, depression  and anxiety.  The thing to remember is that as our society ages, a huge number of baby boomers are moving into their 50’s, an age when major injuries and illnesses can cause disability.  The number of disability cases in the next 10 years should increase significantly, over and above the already high numbers.  The system needs help right now, to clear out the backlog, as well as to prepare for what will become even greater numbers of disabled people in the future.

Nearly 2/3 of applicants for Social Security disability are denied on their initial application.  The next step after denial is to file an appeal and appear for a hearing before an administrative law judge.  Almost 75% of people who hire an attorney win their appeal at the hearing level.  Last year the average wait time for a hearing was one and a half years.  

According to the Administration, the number of people on SS disability is 7.4 million, double the number of people who were on disability in 1990.  In contrast, the number of staffers at the administration is down by five percent.  Obviously a 50% increase in workload and a 5% decrease in people working the claims is a recipe for disaster.  The administration is working on ways to streamline the process.  They recently hired more judges and staff.  Extra funds were allocated to the administration in this year’s budget.  The administration has an electronic records system, to store and manage medical records and other documents more efficiently.  They are also experimenting with video conferencing systems which would allow attorneys to attend hearings via video conferencing equipment in their offices, which will hopefully expedite the hearing process.  

The newspaper article shares the story of a person who has been waiting several years for her determination.  This is a story I hear on a routine basis.  It is worth the efforts of congress and the administration to fix this system, and speed up help for those among us who are in dire need of help.

 

JURY AWARDS $24 MILLION IN CAR WRECK CASE

According to the Chicago Tribune, a jury in Will County, Illinois awarded a $24 million verdict to the families of two people killed, as well as another person who was seriously injured, in a multiple car/eighteen wheeler crash in April 2004.  The verdict was rendered against C.H. Robinson Worldwide Trucking, a Minnesota trucking company, and the truck driver, DeAn Henry. 

A story on Chicagosuburbannews.comsaid that Joseph Sperl was on I-55 the day of the accident, slowing in traffic, when his car was hit by the tractor-trailer.  Mr. Sperl was killed in the accident.  The tractor-trailer also hit a car driven by Thomas Sanders, who lost his life in the accident.  Five other people were injured in the accident that day.

Henry, the driver of the tractor-trailer, subsequently plead guilty to charges of driving on a suspended license and falsifying her log book, in relation to the accident.  The $24 million verdict was the highest verdict in the past fifty years in Will County.

 

FORD ROLLOVER CASE RESULTS IN $40 MILLION VERDICT

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.

 

$20 MILLION SETTLEMENT IN TRAUMATIC BRAIN INJURY CASE

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.

 

CPSC ISSUES RECALL NOTICE ON STATE FARM GOOD NEIGH BEARS

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.