Segal McCambridge Legal Blog

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December 13, 2010

Christmas decorating leads to lawsuit

Ah, the Holiday tort season! Its not uncommon for people to sustain injuries with holiday/winter related activities such as shoveling driveways, putting up decorations, shopping (the last one might apply to the author)… Recently, a Highland Park, Illinois man claims he permanently injured himself while hanging garland around his front door in December 2008, according to the Chicago Tribune.

Plaintiff, Michael Montalbano said his palm was pierced, permanently injuring his thumb and forefinger while he was hanging holiday decorations around his door when a metal fastener attached to the garland decoration gouged through his palm. He sued the seller of the decoration.

The Chicago Tribune article can be found here

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Illinois Supreme Court hears arguments in $43 million Jablonski v Ford Motor case

Courtesy of the St. Clair Record

Ford Motor Co. pleaded with Illinois Supreme Court Justices last week to overturn a $43 million Madison County verdict awarded to Dora Mae Jablonski in 2005.

Constantine L. Trela Jr. of Sidley Austin in Chicago, on behalf of Ford, argued that manufacturers would be subject to open-ended liability for years to come if the judgment were allowed to stand, according to a report in the Chicago Daily Law Bulletin.

The case went to the Supreme Court after the Fifth District Appellate Court in February affirmed Madison County Circuit Judge Andy Matoesian, who entered judgment for Jablonski after trial.

Jablonski suffered severe burns and her husband, John Jablonski, died after the fuel tank in their 1993 Lincoln Town Car exploded.

“We firmly believe that the parties received a fair trial in this case,” Appellate Court Justice Bruce Stewart wrote in February.

Justices James Donovan and Stephen Spomer joined the opinion.

In 2003, John Jablonski stopped his Lincoln in a line of vehicles at a construction site on Interstate 270 at Illinois Route 203.

The next vehicle didn’t stop or even slow down.

Driver Natalie Ingram said later that she took her eyes off the road to find sunglasses.

Her vehicle hit the Lincoln.

A pipe wrench in the trunk flew into the tank and ripped it open, igniting the fuel.

John, 74 years old, and Dora Mae, 71, escaped the burning car.

John died, and Dora suffered permanent injuries.

Dora and son John Jr. sued, alleging negligence and seeking punitive damages.

At trial, Ford pleaded unique circumstances and pointed out that no Town Car had ever exploded due to an item in the trunk breaching the tank.

The Jablonskis showed jurors a list of 416 similar accidents that Ford compiled in 1992.

They pointed out that two states asked Ford to redesign tanks in police vehicles because officers had died in similar crashes.

They showed that in 2002, Ford sent warnings and instructions for packing trunks to police departments, dealers, and government agencies that owned 32,000 cars.

Jurors awarded $23 million to Dora for her injuries, $5 million to Dora and John Jr. for loss of John Sr., and $15 million in punitive damages.

At the appellate court, Ford claimed Jablonski didn’t identify a standard of care that it violated.

Ford claimed Matoesian shouldn’t have allowed negligence claims to go to the jury.

Ford claimed Matoesian shouldn’t have permitted punitive damages.

The Fifth District supported Matoesian all the way.

At the appellate court, Charles Chapman of LakinChapman in Wood River represented the Jablonskis. Stephen Strauss of Bryan Cave in St. Louis represented Ford.

At trial, Brad Lakin of the Lakin Law Firm in Wood River represented the Jablonskis. James Feeney of Dykema Gossett in Bloomfield Hills, Mich. and co-counsel Dan Ball of Bryan Cave in St. Louis represented Ford.

The article can be found here

Posted By:
December 10, 2010

Minnesota jury rules against Johnson & Johnson in Levaquin case

Courtesy of the Wall Street Journal

MINNEAPOLIS— A federal court jury on Wednesday ordered health- care company Johnson & Johnson to pay damages of $1.8 million in the case of an 82-year-old man who sued over claims the antibiotic Levaquin caused him severe tendon injuries.

John Schedin was prescribed Levaquin five years ago to treat a diagnosed case of bronchitis. After three days on the drug, Mr. Schedin ruptured both his Achilles tendons. In 2008, the Food and Drug Administration required Johnson & Johnson and makers of similar drugs to print warnings on the risks of tendon injuries.

That same year, Schedin sued Ortho-McNeil-Jansen Pharmaceuticals, the unit of New Brunswick, N.J.-based J&J that markets Levaquin. The Minneapolis jury on Wednesday decided the company must pay Mr. Schedin $700,000 in actual damages and $1.1 million in punitive damages, though actual damages will be reduced by $70,000 under the jury’s finding of 10% liability for Mr. Schedin in response to the allegation that he exacerbated the condition by initially responding to his tendon pain by exercising.

The trial was the first on more than 2,600 other U.S. lawsuits making similar claims. Mr. Schedin’s attorney Mikal Watts called the trial a bellwether case that he expected would hasten settlement talks in those suits.

“Johnson & Johnson failed to warn these doctors of something they knew would hurt these patients and that’s conduct that should not be tolerated,” the attorney said. “The award of punitive damages in particular sends a powerful message.”

Michael Heinley, spokesman for Ortho-McNeil-Janssen Pharmaceuticals, said the company was disappointed with the jury’s decision and plans to fight the plaintiff’s claims on appeal.

“The verdict and the amount of the compensatory and punitive damages are at odds with the evidence presented at trial,” Mr. Heinley said in a prepared statement. “We believe Ortho-McNeil-Janssen Pharmaceuticals Inc. properly informed of the benefits and risks associated with the use of Levaquin, and that the company acted responsibly by providing appropriate and timely information about Levaquin.”

The article can be found here

Posted By:
September 8, 2010

Eleventh Circuit affirms exclusion of Plaintiff expert under Daubert in Chondrolysis case

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

Posted By:
September 7, 2010

Ford, family settle in death case after Mississippi jury awards $131 million in damages

The story from the Washington Post can be found here

The Associated Press
Thursday, September 2, 2010; 6:15 PM

JACKSON, Miss. — Ford Motor Co. on Thursday settled a Mississippi lawsuit over a 2001 accident in which a New York Mets prospect was killed when his SUV crashed in the Florida Panhandle, a lawyer for the player’s family said.

The settlement came shortly after the jury in Jasper County had awarded $131 million in actual damages to Cole’s family and before it was to consider possible punitive damages, Tab Turner an attorney for the family of Brian Cole, told The Associated Press.

Turner, from Little Rock, Ark., said the settlement amount and terms were confidential.

“The family is glad this is finally over. I thought the verdict was an appropriate response to the evidence. They put zero percent of the fault on Brian Cole and 100 percent of the fault on Ford Motor Co. for a defective and unreasonably dangerous vehicle,” Turner said.

Ford spokeswoman Marcey Evans said the accident was a tragedy and the company offered its sympathy to the Cole family for their loss.

However, Evans said in a statement that the Mississippi court “denied Ford a fair trial by excluding evidence that the jury should have heard and considered about Brian’s driving and the speculative nature of plaintiffs’ claims.”
Cole, then 22, died from injuries he suffered when his Ford Explorer overturned as he drove home on March 31, 2001, from spring training in Port St. Lucie, Fla., to Meridian, Miss., with his cousin, Ryan Cole. Brian Cole was ejected from the SUV.

He was taking his Explorer home and was to fly Sunday to Binghamton, N.Y., to join the Mets’ Double-A team for its season opener.

The one-car accident occurred on Interstate 10 near Florida Highway 286, just south of the Georgia border and about 45 miles northwest of Tallahassee, according to the Florida Highway Patrol.

Brian Cole, who was single and the youngest of five children, was pronounced dead at Jackson Memorial Hospital. Ryan Cole, then 17, was treated and released.

Turner said the family made two claims: the Explorer was unstable and its safety belts didn’t work in rollovers.

“That permitted Brian Cole to be thrown out of the car during the rollover despite being belted,” he said.

Evans said Ford blamed speeding and reckless driving for the accident.

“Brian Cole had been driving over 80 mph when he drifted off road for unknown reasons, suddenly turned his steering wheel 295 degrees, lost control, and caused the vehicle to roll over more than three times,” Evans said. “He was not wearing his safety belt and died after being ejected from the vehicle. His passenger, who was properly belted, walked away from the accident.”

Brian Cole went to Meridian High School and was Baseball America’s junior college player of the year in 1998 at Navarro Junior College in Texas. He was selected by the Mets in the 18th round of the 1998 amateur draft and turned down a football scholarship to Florida State.

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Indiana Court of Appeals affirms summary judgment in favor of fire truck manufacturer against injured firefighter

As stated in the Indiana Court of Appeals opinion:

While working as a Pike Township firefighter, David Hatter was injured when the cap on a fire truck's rear intake pipe was propelled off the pipe by pressurized air and the cap struck Hatter in the face. Hatter and his wife Kristina brought this products liability action against Pierce Manufacturing, Inc. ("Pierce"), the manufacturer of the fire truck. Following a jury trial and verdict in favor of Pierce, Hatter appeals.1 Hatter presents for our review the following restated issues: 1) whether the trial court abused its discretion by failing to strike two jurors for cause; 2) whether the trial court abused its discretion in the giving of two jury instructions; 3) whether the trial court abused its discretion by excluding certain evidence; 4) whether the trial court erred by denying Hatter's motion for judgment on the evidence as to the fault of two non-parties; and 5) whether the trial court erred by dismissing Kristina's loss of consortium claim as a sanction for a discovery violation. Regarding Hatter's jury selection issue, we conclude Hatter failed to exhaust one of his peremptory challenges and has failed to show that both of his challenges for cause were improperly denied. Further concluding the trial court did not abuse its discretion in its instruction of the jury or in excluding evidence, and finding no other error, we affirm.

The opinion can be found here

Posted By:
August 23, 2010

South Carolina Supreme Court vacates $31M verdict against Ford Motor

In overturning a $31 million dollar verdict against Ford Motor Co., ($16M in actual damages and $15M in punitive damages) the South Carolina Supreme Court adopted the "the risk-utility test with its requirement of showing a feasible alternative design."

The gist of the case involved a defective seat belt sleeve claim, and a "handling and stability" design defect claim related to the rollover issues allegedly found in the 1987 Ford Bronco II 4×2.

The South Carolina Supreme Court stated:

While the consumer expectations test fits well in manufacturing defect cases, we do agree with Ford that the test is ill-suited in design defect cases. We hold today that the exclusive test in a products liability design case is the risk-utility test with its requirement of showing a feasible alternative design. In doing so, we recognize our Legislature’s presence in the area of strict liability for products liability.

In sum, in a product liability design defect action, the plaintiff must present evidence of a reasonable alternative design.  The plaintiff will be required to point to a design flaw in the product and show how his alternative design would have prevented the product from being unreasonably dangerous.  This presentation of an alternative design must include consideration of the costs, safety and functionality associated with the alternative design

There is also a discussion of Plaintiff’s counsel’s improper remarks made during closing statement in the opinion. Specifically:

“The closing argument of Branham’s counsel was designed to inflame and prejudice the jury.

It is unmistakable that the closing argument relied heavily on inadmissible evidence. In addition, as will be discussed below, much of the prejudice resulting from the improper evidence was merged in closing argument with Branham’s pursuit of punitive damages in requesting that the jury punish Ford for harm to Branham and others. (emphasis in original) The closing argument invited the jury to base its verdict on passion rather than reason. The closing argument denied Ford a fair trial.”

A copy of the opinion is here and here.

Of note, the “Overlawyered” blog has a piece on this decision here and offers the following assessment:

“How bad of a judicial hellhole is Hampton County? Though Hale was a co-defendant, she cooperated with the plaintiffs throughout the trial in their case against Ford, even sitting at the plaintiffs' table; but because the judge classified Hale as a co-defendant, it meant that Hale got half of the peremptory challenges of the "defense."”

Posted By:
August 17, 2010

Michigan Court of Appeals clarifies the Apex Deposition Rule

On August 5, 2010, the Michigan Court of Appeals ruled that under the adoption of the “Apex deposition rule” that two high-ranking Toyota executives do not have to give depositions in a personal injury lawsuit involving the death of a woman whose vehicle allegedly suddenly accelerated and struck a tree.

From the Alberto v. Toyota Motor Corporation, No. 296824 (Mich. Ct. App., 8/5/10) opinion:

This is a personal injury, products liability suit wherein plaintiff seeks to depose two high-ranking Toyota corporate officers in connection with the claim that a defect in a Toyota vehicle caused the accident that resulted in the death of plaintiff's decedent.

This appeal presents the question whether Michigan should formally adopt the apex deposition rule in the corporate context. As used by other state and federal courts, the apex deposition rule provides that before a plaintiff may take the deposition of a high-ranking or "apex" government official or corporate officer, the plaintiff must demonstrate that: (1) the government official or corporate officer possesses superior or unique information relevant to the issues being litigated, and (2) information cannot be obtained by a less intrusive method, such as by deposing lower-ranking employees. See, e.g., Baine v Gen Motors Corp, 141 FRD 332, 334-335 (MD Ala, 1991).

We hold that the apex deposition rule applies in Michigan cases involving public and private high-ranking corporate officers.

In adopting the apex rule, we recognize, as have other courts, that an apex corporate officer, like a high-ranking government official, often has no particularized or specialized knowledge of day-to-day operations or of particular factual scenarios that lead to litigation, and has far-reaching and comprehensive employment duties that require a significant time commitment. And, therefore, to allow depositions of high-ranking government officials or corporate officers without any restriction or preconditions, could result in the abuse of the discovery process and harassment of the parties. Accordingly, our adoption of the apex deposition rule should serve as a useful rule for trial courts to use in balancing the discovery rights of the parties.

Posted By:
August 16, 2010

Illinois worker wins $30 million verdict in diacetyl popcorn chemical lawsuit

A Cook County, Illinois jury has awarded a $30.4 million verdict to a chemical-flavoring plant worker disabled by exposure to diacetyl, an ingredient in butter flavoring used at a Jasper popcorn plant where several workers claimed similar injury.

The verdict awarded to Gerardo Solis, 45, and against BASF Corp., a supplier of diacetyl and the world's largest chemical company, is the highest rendered to date in popcorn and butter-flavoring worker lawsuits in the U.S., according to Ken McClain, the attorney for Solis.

Solis worked at a Flavorchem Corp. plant in the Chicago area between the years 1998 and 2006 when he was diagnosed with a rare lung disease called bronchiolitis obliterans. McClain said Solis is totally disabled with 25 percent of normal lung capacity and is projected to require a lung transplant within the next 10 years.

The largest verdict previously awarded to an individual in the cases was $20 million granted by a Jasper County jury to Eric Peoples of Carthage and his wife in 2004. Two $15 million verdicts and a $2.7 million award were rendered to other workers at the former Jasper Popcorn Co. plant. Those cases involved Bush Boake Allen Inc. and International Flavors & Fragrances Inc., suppliers of butter flavoring to the plant and not BASF.

The story is here

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August 6, 2010

New Jersey Superior Court Appellate Division Reverses $10.5 Million Accutane Verdict

Roche Holding AG won reversal of a $10.5 million verdict over its Accutane acne drug because a judge improperly barred the company from using evidence about the medication's use, an appeals court ruled.

Roche's lawyers should have been able to use data about how many acne sufferers had used Accutane over the years throughout Kamie Kendall's 2008 trial of her lawsuit over the drug, the New Jersey Superior Court Appellate Division ruled today. The decision prompted a judge in Atlantic City, New Jersey, to delay the trial of an actor's suit alleging the medication causes inflammatory bowel disease.

"Roche was unduly impeded at this trial from adducing and advocating numerical proofs that could have potentially and reasonably led a jury to reach a different verdict," the appeals court said in an 89-page unpublished decision.

The unpublished opinion from the Kendall v, Hoffman-La Roche, et al., case can be found here

A story on this decision from Bloomberg News can be found here