Personal Injury


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.

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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.

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.

Jurors awarded $33.2 Million to George Baldwin, a victim injured in a drunk driving case in Lake County, Illinois, according to a story in the Lake County News-Sun.   The driver of the vehicle was a friend of Baldwin’s who had participated in under-aged drinking with Baldwin before the accident, at a friend’s house.  The car involved in the accident was traveling 120 miles per hour seconds before the accident, according to the car’s black box.

This story is related to another story I blogged a few weeks ago.  The owner of the house where the drinking party occurred, previously agreed to pay the victim $2.5 Million to settle the negligent supervision claims against her.  That post is here.

The victim is paralyzed from the chest down and is disabled for life.

According to a story on the Denver Business Journal, a bill aimed at doing away with the tort system for auto accidents was killed in committee last week.  The bill sought to reinstate the “no fault” system in Colorado.  Up until 2003 Colorado had a “no fault” system for dealing with auto accidents, where the consumer purchases insurance to cover damage done to the consumer in an auto accident and damages aren’t paid for by the person who caused the wreck. 

In 2003 the state instituted a tort system to deal with auto accidents, where the at fault party pays for the damage they cause.  The new “no fault” bill was opposed by both trial lawyers and the insurance industry.  A 2007 study showed that car insurance premiums dropped $322 for the average motorist, since the tort system was put in place, a 35% decrease in premiums. 

The people behind this no fault bill were medical providers.  They claim that under the no fault system they were paid for 60% of the care they provided to car accident victims, while under the tort system they are reimbursed for only 36% of the care they provide.  Insurers claim that the no fault system is subject to abuse.

Several articles in the news recently on adult responsibility for failing to supervise their children, or even worse, providing their children with alcohol.  CNN’s article “Teen Drinking Leads to Crackdown on Cool Parents”tells the story of a mother, Kecia Evangela, who allegedly served alcohol to one of her son’s friends, a 16 year old boy.  The boy subsequently crashed his car and died.  Ms. Evangela was arrested for furnishing alcohol to a minor and reckless conduct.

States have reacted to “social hosting”, the act of parents providing their teenage children’s friends with alcohol, by passing laws requiring fines on parents whose homes are used for drinking parties, whether the parent knows about the party or not.  24 states now have fines of several thousand dollars for each offense of social hosting.  The hope is that the hefty fines will deter this activity. 

The article also cites a 2005 AMA study that found 1/3 of teens said it was easy to obtain alcohol from their parents.  The same survey found that 40% of teens reported that it was easy to obtain alcohol from their friend’s parents.  Clearly a sign that kids know who the “cool” parents are. 

Chicagotribune.com has the storyof a woman whose home-owner’s insurance paid $2.5million to settle a lawsuit claiming that she failed to supervise her children, who held an underage drinking party in her home.  Two of her daughters’ friends drank beer in her daughter’s bedroom.  One of the teens crashed their vehicle while driving home from the drinking party.   The other teenager was paralyzed in the wreck.

The lawsuit did not allege the mother provided the children with alcohol, and it was not alleged she even knew that the children were drinking in her house.  The lawsuit claimed she failed to monitor the teens in her house and should have monitored them, because her children had been caught drinking before in her home. 

Mother Against Drunk Driving is an organization committed to eliminating drunk driving and toughening penalties on those who provide teens with alcohol.  They deserve support for their mission.

A story on Yahoo News reports W.R. Grace settled a class action against the company relating to asbestos containing attic insulation the company sold.  THe company will pay $30 Million up front to fund a trust, another $30 Million after 3 years, and up to ten annual payments of $8 Million if terms of settlement are met, up to $140 Million total over the life of the settlement. 

The class action stems from the company’s sale of Zonolite Insulation, an asbestos containing product the company sold across the country for many years.  Over the years the product was installed in millions of homes.  The fund will pay the claims of individuals injured by this dangerous and sometimes deadly product.

Zonolite insulation was made primarily of vermiculite, an ore mined at the W.R. Grace mine in Libby, Montana.  The vermiculite in the mine contained asbestos.  The community of Libby has been devastated by asbestos related diseases, including mesothelioma, lung cancer, and asbestosis.  Whole families in Libby have been destroyed by these horrible diseases.  Others in cities and towns all across the country have been injured by this product, which was used to insulate their attics. 

The lawsuits alleged W.R. Grace knew of the dangers of asbestos for years, but continued to use the product and never warned anyone of the potential dangers of the product.

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