Segal McCambridge Legal Blog

From the Indianapolis Star

Law firm sues State Fair on behalf of all stage collapse victims

By Carrie Ritchie

August 23, 2011

An Indianapolis law firm has filed a class action lawsuit on behalf of all victims of the Indiana State Fair stage collapse. Cohen and Malad claims in the lawsuit, which was filed Monday in Marion Superior Court, that the State of Indiana and companies who were hired to set up the stage were negligent and didn’t ensure that the stage was safe. It also claims there were design and manufacturing flaws in parts that held up the stage’s roof.

The stage collapsed Aug. 13 before Sugarland was about to perform.

In a press release issued today, the law firm says it will donate its services so more of the damages can go to victims.

Several victims, including the families of three people who died in the accident, have already sued or say they intend to sue.

From the Indianapolis Business Journal

Damage cap limits state’s potential losses from concert tragedy

Scott Olson
August 18, 2011

Total damages the Indiana State Fair could pay victims of last Saturday’s concert tragedy would be capped at $5 million—an amount personal-injury lawyers say is far too low for the injuries and deaths involved.

Because of a state law that limits individual damage claims against the state to $700,000 and overall claims to $5 million per event, several other entities besides the state fair might become targets of negligence lawsuits, legal experts say. They could include the designer and builder of the stage or even the promoter of the concert, according to lawyers.

“I think there will probably be a large number of defendants listed, just because there’s a limited pot of money,� said local defense lawyer Tom Schultz.

Saturday night’s accident happened when a wind gust estimated at 60 to 70 mph toppled the roof of the stage and the metal scaffolding holding lights and other equipment. The stage collapsed onto a crowd of concertgoers awaiting a show by the country act Sugarland at the fair’s grandstand. Five people died and more than four dozen were injured, some critically.

Several people are still hospitalized, including at least two victims with brain injuries.

Litigation arising from the deadly accident is likely as several local attorneys already have been contacted by family members considering their legal options.

Dan Chamberlain, a partner at the Indianapolis personal-injury firm of Doehrman Chamberlain, said his firm could file suit on behalf of one victim within the next week.

“You’ve got 50 people injured, five who have been killed, and you’ve got $5 million in coverage,� Chamberlain said. “It’s nowhere close to fairly and adequately compensating the families.�

It remains unclear whether anyone had inspected the concert stage that toppled over, or if anyone was supposed to do so.

Fair officials said they have hired New York engineering firm Thornton Tomasetti Inc. to investigate the accident. The firm was involved in a similar investigation of the 2007 collapse of the Interstate 35 bridge over the Mississippi River in Minneapolis.

Indianapolis lawyer Mark Ladendorf, who expects to represent at least two families of the victims, said most firms will launch their own investigations.

“We’re going to have to get answers for our clients,� he said. “We succinctly can’t rely on what the government is going to tell us and what someone hired by the government will tell us.�

Under the Indiana Tort Claims Act, lawyers must notify the state entity they intend to sue within 270 days of the accident.

State fair spokesman Andy Klotz said the fair is self insured against such lawsuits under the Indiana State Tort Claims Act.

He acknowledged to WISH-TV Channel 8 on Wednesday that the fair didn’t follow its own severe weather procedures by failing to inform concertgoers that the National Weather Service had issued a severe thunderstorm warning for the area.

Indianapolis meteorologist Paul Poteet told WXIN Fox 59 that fair officials disregarded his warning to delay or cancel the show.

Questions about whether the fair did enough to anticipate a storm have loomed over the event. Some fairs hire their own meteorologists for just such a scenario.

The local law firm of Wilson Kehoe & Winingham LLC has retained a meteorologist and a structural engineering consultant in anticipation of representing family members, firm partner Bruce Kehoe said.

“When you have that type of catastrophe and that kind of loss, it would be unusual for folks not to want to get answers that are difficult to obtain,� he said.

Schultz, the defense lawyer who is a former president of the Defense Trial Counsel of Indiana, expects numerous claims will be filed.

“The question is, is there fault somewhere?� he asked. “Right now, we don’t know.�

On June 29, 2011, the Indiana Supreme Court issued three split opinions dealing with what fees are recoverable under the Adult Wrongful Death Statute, holding that attorney fees, litigation expenses, and loss of services can be recovered. Chief Justice Randall T. Shepard and Justice Robert Rucker dissented in each of the three decisions, stating that those items are not permitted under the plain language of the statute.

The justices granted transfer to the three decisions in which separate Indiana Court of Appeals panels had reached opposite conclusions on each of these topics.

The three decisions can be found at
Jeffery H. McCabe v. Commissioner, Indiana Dept. of Insurance

Indiana Patient’s Compensation Fund v. Beverly S. Brown

The Indiana Lawyer has an article on the decisions which is here

In May 2002, Defendant Zubak entered into a contract with Defendant Compton for the construction of a new home to be located at 1185 Driftwood Trail, Crown Point, Indiana. Defendant Compton contracted with Louis K. Walter & Associates to test the soil at the construction site and Robert Neises construction Corporation to excavate the site and set the foundation. At some point after Defendant Zubak started living in her new house, she alleges that there was a problem with the foundation and the home buckled, shifted, twisted, and otherwise moved causing severe damage to her house and its fixtures.

On October 30, 2009, Defendant Zubak, (then the Plaintiff), filed a complaint against Defendant Compton in Lake County, Indiana Superior Court, alleging breach of contract, negligence, breach of statutory warranty, and breach of implied warranty of habitability. She did not allege personal injury or property damage beyond damage to the house.

General Casualty Insurance, the Plaintiff, brought this diversity suit for declaratory relief that its insurance policy does not require it to provide indemnity coverage to, or defend, Defendant Compton in Defendant Zubak’s state law action.

General Casualty issued a Commercial General Liability Policy (“CGL�), to the Defendant Compton for the policy period from February 8, 2002, to February 8,
2003. In its Motion for Summary Judgment, General Casualty argued it is entitled to judgment as a matter of law that it is not liable to provide indemnity coverage to Defendant Compton and had no duty to defend Defendant Compton in Lake Superior Court.

Defendant Compton responded that the Plaintiff is not entitled to judgment
as a matter of law in light of the Indiana Supreme Court’s September 30, 2010, ruling in Sheehan Construction, Inc. v. Continental Casualty Co., 935 N.E.2d 160 (Ind. 2010).

As the U.S. District Court said:

The Indiana Supreme Court reversed summary judgment, which had been granted in favor of the insurer in Sheehan, holding that faulty workmanship can constitute an “accidentâ€� under a CGL policy, which means any damage would have been caused by an “occurrenceâ€� triggering the insurance policy’s coverage provisions. … The Indiana Supreme Court also held that, under identically-worded policy exclusion terms that are at issue in this case, defective subcontractor work could provide the basis for a claim under a CGL policy. … The allegations in this case are that subcontractor negligence led to Defendant Zubak’s injury. Given the Sheehan Construction Court’s holding, the Court will deny the Plaintiff’s Motion because judgment is not appropriate for the Plaintiff as a matter of law.

The Sheehan decision created this “new” standard in Indiana’s construction defect law, and as evidenced by the Federal court, it can be expected that possible long-tail claims will be brought against them for construction defects caused by the alleged negligence of other entities such as subcontractors.

A copy of the March 16, 2011 Order Denying Plaintiff’s Motion for Summary Judgment which can be found here.

In follow up to our post of “Segal McCambridge argues in front of the Indiana Court of Appeals” on March 29, 2011, the Indiana Court of Appeals affirmed the dismissal and compelled arbitration sought by Segal McCambridge client, Brown Mackie.  The Indiana Court of Appeals published opinion can be found here.

Shareholder Jason Kennedy and Associate Jill Felkins represented Brown Mackie on appeal.

From the Chicago Sun-Times

A former Merrillville doctor who’s awaiting sentencing for health care fraud has been ordered to pay $13 million in the first of more than 350 malpractice lawsuits against him.

A jury Thursday night in Hammond rendered the judgment against Mark Weinberger, the former Merrillville ear, nose and throat specialist.

The award includes $10 million in punitive damages for the estate of the late Phyllis Barnes.

The Barnes family attorney, Kenneth Allen, said the jury verdict “will be enough to send Weinberger a message that he’s not going to reap any profits from his ill-gotten gains or future deals. This verdict will follow him and make sure that one way or the other, he pays for his wrongs.�

Weinberger, who remains in the Metropolitan Correctional Center in Chicago, did not attend the trial. He’s scheduled to be sentenced April 27 in federal court in Hammond, where he pleaded guilty to 22 counts of health-care fraud.

Weinberger admitted in October to fraudulently billing health insurance companies for $200,000 to $400,000 worth of surgeries he never performed.

He was charged in 2006, two years after he fled the country when clients began to complain and the FBI started to investigate him. He generated national media attention when he was finally caught in December 2009 in northern Italy, living in a tent at the base of a mountain.

In Barnes’ case, Weinberger and Valparaiso physician assistant Joe Clinkenbeard were accused of failing to diagnose the cancer that claimed her life at age 50 in 2004. Weinberger was separately accused of performing unnecessary sinus surgery on Barnes, causing her pain and suffering.

The jury cleared Clinkenbeard of any liability in Barnes’ death.

Before closing arguments, Dr. Dennis Han, an otolaryngologist who treated Barnes after Weinberger’s surgery said he diagnosed her cancer immediately and performed numerous surgeries to remove the tumor and repair her vocal chords. Han repeated his earlier contention that Weinberger should have diagnosed Barnes’ cancer and that the surgery he performed was unnecessary and caused her harm, irreversibly destroying bone and tissue.

Because Indiana law allows a maximum of $1.25 million per incident of malpractice, Weinberger’s insurers are likely to file a motion to reduce the jury’s award.

Weinberger still faces more than 350 other suits, including one scheduled to go to trial in May.

The Sun-Times article is here

Shareholder Jason Kennedy assisted by Associate Jill Felkins recently argued before the Indiana Court of Appeals in the case of Connie Brumley, et al v. Commonwealth Business College Education Corp., d/b/a Brown Mackie College. Segal McCambridge represents the Appellee, Brown Mackie College.  A link to the video of the oral argument can be found here

A summary of the case: Two sets of plaintiffs sued Commonwealth Business College Education Corporation d/b/a Brown Mackie College in two different Lake Superior Courts alleging, among other things, that Brown Mackie fraudulently represented that its surgical technology program was accredited, thereby inducing them to join the program. The Complaint stated that because Brown Mackie allegedly lacked accreditation, students completing the program were ineligible to sit for the NBSTSA certification exam. The cases were eventually consolidated before Judge Gerald N. Svetanoff. Brown Mackie filed a motion to compel arbitration, arguing that plaintiffs executed an Enrollment Agreement containing a provision requiring that any dispute be submitted to arbitration. A hearing was held, at which evidence was presented that all plaintiffs except one also executed an Arbitration Agreement separate from the Enrollment Agreement. Unlike the Enrollment Agreement, the Arbitration Agreement did not contain any representations concerning Brown Mackie’s accreditation. Judge Svetanoff reasoned that although Brown Mackie’s alleged fraud may have affected the enforceability of the arbitration provision in the Enrollment Agreement, it did not affect the enforceability of the separate Arbitration Agreement because that agreement did not contain any of the representations at issue. Accordingly, Judge Svetanoff granted the motion to compel arbitration as to all plaintiffs except the one who did not execute the separate Arbitration Agreement. Plaintiffs appeal arguing that they should be entitled to seek relief through a court of law and not through arbitration.

Here is a link to the video of the oral argument

From NWI.com

CROWN POINT | A Lake Circuit Court jury awarded nearly $31 million to the family of three boys who fell through the ice at Lake Holiday at Lakes of the Four Seasons nearly 10 years ago.

Andrew Kennedy, 11, died while his younger brother James, then 10, was left permanently brain-damaged.

Andrew’s twin brother, Christopher, fell through the ice first, prompting his brothers’ efforts to help. He survived.

The boys walked onto the ice the morning of March 11, 2001. The family filed the suit in March 2003 against the Lakes of the Four Seasons Property Owners Association.

Friday’s jury verdict may be a record, according to the family’s attorney, Timothy Schafer of Schafer & Schafer in Merrillville.

“I know of no other such award in the county,” Schafer said. “The importance of this is that James will be protected and get the care he needs.”

James has the capacity of a third- or fourth-grader and requires daily care, according to trial testimony.

Opposing attorney Daniel Glavin could not be reached for immediate comment after the verdict, but Schafer said Galvin was hired by the company insuring the LOFS Property Owners Association.

The insurance company will be responsible for the entire amount — not the POA — because the insurer opted to forgo a settlement offer in which the family would have accepted the policy’s cap of $6 million, Schafer said.

At issue was the role of an overflow crib in the lake that maintains the level of the lake.

Excess lake water flows into the crib where a pipe drains the water into a creek on the other side of an earthen dam.

The boys, who had tested the ice by throwing rocks into the lake before walking on the ice, fell into the ice some 30 feet from the crib, where water was flowing under the ice but could not be seen, Schafer said.

During closing remarks Friday, Schafer told jurors, “This is a case about the safety of children.”

Schafer charged LOFS with failing to post a warning about potential danger, failing to restrict access and failing to provide safety equipment.

The tragedy could have been prevented by the $70 cost of a warning sign and a rope pulley with which the boys may have been able to save themselves, he said.

Schafer told jurors the community violated dam safety protocol in use for 50 years in the U.S. and Canada.

Ten years later, no warning, restrictions or safety equipment marks the location where the overflow crib may compromise safety, he said.

Glavin argued the circulating water did not play a role in compromising the integrity of the ice. The boys fell in because of changing temperatures to the ice, he said.

Glavin told jurors the tragedy had nothing to do with the crib.

“Ice is dangerous no matter where it is,” Glavin said.

Ice is unpredictable and inconsistent, he said.

Glavin argued there was no reason for the POA to know of a potential problem since neither the LOFS Fire Department nor the DNR had been called to the area in at least 25 years.

“Nobody ever had a problem in that area before,” he said.

As of 2/25/11, the article can be accessed here

A medical investigative team in Indiana used both science and foreign-language experts to trace a persistent cluster of lead poisoning detected in Burmese refugee children. The conclusion: Daw Tway, a traditional Burmese digestive remedy used for children and thanakha, an ethnic cosmetic were the culprits.

From the study:

“We were asked by the Indiana state health department to conduct a study,” Mr. Ritchey said, explaining his work in an interview with Medscape Medical News. “Because the department had discovered 24 cases — or 9.2% of the [Burmese refugee] children under 6 surveyed — of elevated blood lead levels, compared with approximately 1% of the general population of children that age, they wanted to find the source of the lead poisoning.”

The entire article, Lead Poisoning in Children Traced to Traditional Digestion Treatment, can be accessed by clicking on this link. MedScape free subscription is required.

On January 21, 2011, in the case of Jodi McGookin, et al. v. Guidant Corporation, et al. the Indiana Court of Appeals held:

After their newborn daughter was diagnosed with a heart defect, was given a Guidant pacemaker, and tragically passed away at the age of fourteen months, the appellants filed a state law complaint against Guidant. Among other things, they argue that Guidant should have put specific warnings on the pacemaker labeling related to its implantation into pediatric patients. Because the label had been preapproved by the Food and Drug Administration, however, and Guidant was not required to include the additional warnings, the trial court held that any state law-based failure-to-warn claims were preempted by federal law. Finding that the trial court properly found the claims preempted, we affirm.

This decision is in keeping with two recurring themes in preemption cases involving medical devices: 1) that Riegel provides the preemption rules governing Class III medical devices; and 2) that “may� does not mean “must� when determining what constitutes a federal requirement under the MDA’s express-preemption clause.

The opinion can be found here