Segal McCambridge Legal Blog

The plaintiff, Claudious Laverty, individually and as the administrator of the estate of her deceased husband, Thomas R. Laverty, filed a complaint in the circuit court of Madison County against CSX Transportation, Inc. (CSX Transportation), and other defendants, for willful and wanton conduct and negligence pursuant to the Federal Employers’ Liability Act (FELA) (45 U.S.C. §51 et seq. (2000)). CSX Transportation appeals the circuit court’s order denying its motion to dismiss on the grounds of forum non conveniens. We reverse and remand with directions.

The decision can be found here

The article from the Madison Record can be found here

The Belleville News-Democrat article can be found here

The Indiana Court of Appeals ruled that compensation for attorney fees and other costs can be awarded under the Adult Wrongful Death Statute (“AWDS”).

From the opinion:

Beverly Brown, as executor of the estate of Barbara Frieden, settled a medical malpractice claim for the statutory limit and then petitioned the Indiana Patient’s Compensation Fund ("the Fund") for additional compensation. The trial court awarded $278,377.55, which included compensation for attorney fees, litigation costs, estate administration costs, and loss of services to Frieden’s parents. The Fund contends that these damages are not authorized by the Adult Wrongful Death Statute ("AWDS"). We affirm.

The decision, INDIANA PATIENT‟S COMPENSATION FUND, Appellant-Defendant, v. BEVERLY BROWN, Appellee-Plaintiff, No. 49A02-1001-CT-80 can be found here

From the Courier Journal.com

In a lawsuit filed 14 years ago, a Floyd County jury has awarded $23.5 million to a New Albany family for severe illnesses to two children caused by a pesticide that was sprayed in their Prestwick Square apartments unit in the mid-1990s.

The award came Thursday in a trial that didn't begin until Aug. 17, following years of motions and delays. It is expected to be appealed.

Todd and Cynthia Ebling and their children, Christina, then 2 years old, and Alex, then 6 months old, moved into Prestwick Square in February 1994. Soon, both children began to suffer seizures and other neurological problems.

According to the Eblings' attorneys, the children's problems were caused by exposure to Creal-O, a chemical based on the pesticide Diazinon. The Environmental Protection Agency banned the pesticide from residential use in 2004.

The Floyd Superior Court jury that heard the case, with Judge Susan Orth presiding, awarded $500,000 each to Todd and Cynthia Ebling, $16 million to Christina Ebling and $6.5 million to Alex Ebling.

Projected future medical costs for Christina are about $14 million, Pardieck and co-counsel Matthew Schad said. But they said it would likely be a long time before any money changes hands because of anticipated appeals.

The story can be found here

On September 9th, the Third Circuit issued an opinion which a district court grant of summary judgment to defendants Viad Corporation and Railroad Friction Product Corporation, finding that the plaintiffs' claims were all preempted by the Locomotive Inspection Act, 49 U.S.C. § 20701, et seq. ("LIA").

Plaintiff’s counsel at oral argument was Robert E. Paul.

A copy of the Third Circuit opinion is here

From the Indianapolis Business Journal

Eli Lilly and Co. on Friday won reversal of a ruling that granted class-action status to a lawsuit by pension funds, unions and insurers who alleged that improper marketing of Zyprexa, its schizophrenia treatment, raised their costs.

A U.S. appeals court in New York threw out a September 2008 ruling by U.S. District Judge Jack Weinstein in Brooklyn. He had said the plaintiffs could pursue as a group claims that Indianapolis-based Lilly's Zyprexa marketing caused them to pay more for the drug than what it was worth. The plaintiffs were seeking $6.8 billion in damages.

The story can be found here

In a 4-3 opinion, the Missouri Supreme Court affirmed a trial court decision which declined to compel arbitration in a complaint which sought class action status and damages for unauthorized practice of law and its deceptive practices connected with the sale of merchandise under the Missouri merchandising practices act (MPA).

The Defendant, Lee’s Summit Honda, claimed that the trial court erred in failing to compel arbitration because the claims were within scope of the parties' arbitration agreement, the unauthorized practice of law claim was subject to arbitration and the arbitration agreement was valid. The trial court overruled Honda's motion to compel, finding that the claim of unauthorized practice of law is not subject to arbitration because the courts exclusively decide what constitutes the unauthorized practice of law. The trial court also found the arbitration agreement to be procedurally and substantively unconscionable.

On appeal, Honda asserted that the trial court erred in determining that the Plaintiff's claims are beyond the scope of the arbitration agreement, that the Plaintiff's unauthorized practice of law claim is subject to arbitration and that the class arbitration waiver was not unconscionable. The Missouri Supreme Court in a 4-3 decision disagreed.

The opinion can be found here

Legallinenews.com report
JACKSON, Miss. (Legal Newsline) – A divided Mississippi Supreme Court has decided a judge was right to buy the story of asbestos attorneys in a “he said, he said” dispute over a private settlement conference, with a group of resentful dissenters lamenting the long-term effects of the decision.

Illinois Central Railroad Co. and the Pittsburgh asbestos firm Peirce, Raimond & Coulter disagreed about the settlement process set up at a private meeting in Pittsburgh in 2006. The process would have settled 216 claims against the company.

However, ICRR argues that it only agreed to immediately settle all claims except the 25 diagnosed by Bridgeport, W.Va., radiologist Dr. Ray Harron, who has been accused of fabricating lung disease diagnoses. The Peirce firm said ICRR agreed to settle all claims at the meeting.

Holmes County Circuit Court Judge Robert Goza agreed with the Peirce firm, as did the state Supreme Court on Aug. 26.

The entire story can be found here

The 5th District of Illinois decision of Simpkins v. CSX Corp., 929 N.E.2d 1257 (Ill. App. June 10, 2010), overturned the dismissal of a case brought by the estate of the wife of a worker who allegedly brought home asbestos on his clothes and body, causing the wife to be exposed. The wife contracted mesothelioma and her estate sued the worker’s employer. The court discussed general duty principles, stressing foreseeability. The 5th District followed decisions from Tennessee and New Jersey, but did not discuss opposing cases from elsewhere including two appellate cases from the 1st and 2nd Districts of the Illinois Appellate Court.

In 2009, the 2nd District of Illinois issued its decision in Nelson v. Aurora Equipment, 909 N.E.2d 931 (2nd Dist. 2009) In this case, the plaintiffs, Vernon Nelson and John Nelson were the special administrators of the estate of Eva Nelson, deceased. The plaintiffs appealed from an order of the circuit court of Kane County granting summary judgment in favor of defendant, Aurora Equipment Company. As noted in the opinion, this was a case of first impression in Illinois, specifically where the plaintiffs sought an extension of duty in a premises liability case to a person who did not have contact with the premises but who was allegedly injured by asbestos fibers and dust that escaped from the premises. The 2nd District declined the invitation and affirmed the judgment of the circuit court.

In 2008, the 1st District in Gregory v. Beazer East, 892 N.E.2d 563 (1st Dist. 2008) affirmed summary judgment on behalf of a premises owner. In Gregory, the plaintiff brought failure to warn negligence action against manufacturer of joint compound and owner of oil refinery after her husband, a pipe fitter died from mesothelioma due to exposure to asbestos. The Appellate Court held that the owner of refinery did not retain the degree of control over pipe fitter’s work necessary to owe a duty to warn pipe fitter, employed by independent contractors, of asbestos exposure; the owner of refinery did not breach duty it owed to invitees to use reasonable care to maintain its premises in a reasonably safe condition.

From Bloomberg.com

Pfizer’s Quigley Unit Is Denied Permission to Exit Bankruptcy by Judge

Pfizer Inc.'s Quigley unit, a former asbestos maker, was denied permission to exit bankruptcy by a judge who found the world's largest drug company manipulated the bankruptcy process to benefit itself.

U.S. Bankruptcy Judge Stuart M. Bernstein in New York today rejected Quigley's fourth reorganization plan and said parties should discuss dismissal of the case. He said the plan was filed in "bad faith" by Pfizer and cited testimony that asbestos claims directed at Quigley could total $4.45 billion over the next 42 years.

"In a nutshell, Pfizer bought enough votes to assure that any plan would be accepted," Bernstein wrote.

In a 90-page ruling that covers Pfizer's failed attempts to deal with its growing asbestos liabilities since June 1985, Bernstein noted that a lawyer who represented both Quigley and Pfizer settled claims against Quigley and got releases for Pfizer at no additional cost.

Settling claimants were then given a financial incentive to vote in favor of Quigley's bankruptcy plan through a series of legal moves before and after the bankruptcy filing, the judge wrote.

"The public has the right to know how much they were paid to vote in favor of the Quigley's plans," the judge wrote.

Under the proposed Chapter 11 plan, Pfizer would have paid about $450 million into a trust to satisfy claims about products for which it allegedly has derivative liability.

The bankruptcy code would direct all future claims to the trust, covering death and personal injury claims over Insulag, Panelag and Damit, Quigley products for the steel industry containing asbestos that were made from the time of World War II to the 1970s.

The plan barred claimants from taking future actions against Pfizer. Pfizer was a defendant in 280,343 of the 411,100 claims served against Quigley, Bernstein noted.

"The Pfizer settlements were part of a strategy, conceived and executed in bad faith, to manipulate the vote in this case," Bernstein wrote.

Quigley, founded in 1916, made three products containing asbestos from the 1940s to the 1970s. It was bought by Pfizer in 1968.

The entire story can be found here

The Eleventh Circuit recently affirmed a district court's Daubert ruling favoring the defense in one of the cases alleging that a bupivacaine shoulder pain pump caused chondrolysis (a breakdown of the cartilage in the shoulder joint). The U.S. District Court (S.D. Florida) rejected a general causation opinion proffered by Dr. Poehling, a “an accomplished Board Certified orthopedic surgeon, author, professor, teacher, and lecturer” under Daubert. The District Court also rejected his specific causation opinion.  The Eleventh Circuit affirmed.

The Eleventh Circuit opinion begins:

This is a negligence and products liability action involving the use of a pain pump manufactured by Breg, Inc. for use during and after surgery. The Plaintiff, Douglas Kilpatrick, claiming to have been injured by one of Breg's pumps, proffered a single expert witness on the issue of causation — Dr. Gary Poehling, M.D. The district court determined that the methodology used by Dr. Poehling to reach his conclusions was unreliable and, therefore, his testimony was inadmissible under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). Without the testimony of Dr. Poehling, the district court further determined that Kilpatrick could not establish the causation element in any of his claims, and final summary judgment was granted in favor of Breg. Kilpatrick appeals the exclusion of Dr. Poehling's testimony. Upon a review of the record and this Circuit's precedent establishing a highly deferential standard of review applicable to evidentiary determinations, we find that the district court did not abuse its discretion in excluding Dr. Poehling's testimony.
We therefore affirm.

A copy of the Eleventh Circuit opinion, Kilpatrick v. Breg, Inc., No. 09-13813 (11th Cir. Aug. 12, 2010) can be found here