Missouri Injury Lawyer Blog

As a Missouri personal injury attorney, I sometimes handle “slip and fall” cases involving people who were hurt by dangerous conditions on other people’s property. This is often but by no means always on property open to the public, such as a store or restaurant. The injuries in these cases are frequently more serious than they sound, because a hard fall can mean a back, neck or head injury that can have permanent effects on the victim’s life. In Roderick v. Wal-Mart Stores, Bonnie Roderick sued after she slipped in a Wal-Mart Supercenter in Marysville, Missouri, which ultimately required a hip replacement surgery to fix. At trial, she lost in several disputes over what evidence to admit, and eventually the jury found against her. The Eighth U.S. Circuit Court of Appeals ultimately declined to order a new trial.

Roderick tripped on a rug that had one corner turned up “just enough to catch your toe.” The fall broke her left hip, requiring surgery and rehabilitation, but the screws used in the first surgery ultimately failed, requiring a total hip replacement and more physical therapy. A year later, Roderick fell again; she alleges that this fall was caused by a dropped toe caused by the Wal-Mart fall This fall necessitated a third surgery and a stint in a wheelchair, and created severe personal limitations like a need for help when going to the bathroom and an inability to care for her husband (who had been in a nursing home) before his death. She sued Wal-Mart over the slip and fall accident, but the jury found against her. In her motion for a new trial, she said Wal-Mart’s expert medical witness should not have been admitted; she should have been permitted to raise evidence of prior falls on the same rug; and defense statements about the character of the Wal-Mart’s manager. This was denied and she appealed to the Eighth Circuit.

That court found for Wal-Mart on all of the issues raised. On the medical testimony, Roderick alleged that Dr. Simon (no first name given) prepared a report on her condition that did not meet evidentiary requirements under the Federal Rules of Civil Procedure, and that his testimony was frequently irrelevant or incorrect. However, the Eighth Circuit agreed with the trial court that any error from this was not enough to affect the jury’s decision. The report was not admitted into evidence at all, it noted, and Roderick failed to raise her objections for more than a year after it was made. On the rug issue, Roderick raised evidence found during discovery that the store pulled up that rug after her fall because it was the second fall in the area. She wished to use this to rebut testimony on cross-examination but was denied. The Eighth agreed that the incidents were not similar enough to use as impeachment of the witness or support the idea that Wal-Mart had notice of the danger. Finally, the court agreed that the closing-argument statements, which the court sustained Roderick’s objection to, were not prejudicial.

This verdict is disappointing for Roderick, of course, but as a St. Louis slip and fall accident lawyer, I appreciate the chance to show readers what the repercussions of a serious trip can be. The phrase “slip and fall” sounds like it could lead only to trivial injuries, but even a broken bone can have permanent or long-term effects on the victim’s health. In this case, the circumstances suggest that Roderick was an older woman at the time, and breaking a hip is a serious health event for older people because it has the potential to leave them permanently disabled and dependent on others for help. Other slips and trips can lead to chronic pain, spinal injuries or even head injuries with permanent disability. As a southern Illinois premises liability attorney, I document these cases thoroughly so I can demonstrate their seriousness to the jury.

Continue reading "Eighth Circuit Upholds Denial of New Trial in Missouri Slip and Fall Injury – Roderick v. Wal-Mart Stores" »

The parents of a Chicago teenager have filed a wrongful death suit in his name, laying charges at the feet of the man the police say struck him on the head last July. Jean Kennelly and Kevin Kennelly, Sr. filed the suit in Cook County in the name of their deceased son, Kevin Kennelly, Jr. The defendants named are James Malecek, now 20, his sister who is a juvenile, and his mother, Marguerite Malecek.

Malecek is already set to face felony charges in a criminal trial stemming from the same incident. These charges include involuntary manslaughter, aggravated battery and battery.

The case is an unusual one. The Kennellys have accepted that this case may take years to work through due to a backup of civil cases in the Cook County system, because Chicago subpoenas have more force than nearby Indiana's. Both the Kennellys and Maleceks live in Illinois full time at the moment.

Kevin Kennelly Sr. commented, “In Indiana, the defense is not required to submit certain documents without going through a number of hurdles." Such restrictions are nonexistent or much more lax in Chicago and Illinois, making it the stronger place to stage their suit.

Further, the Kennellys expressed a desire to help the prosecution with the criminal case. There were a number of discovery issues in the felony investigation, which prompted the Kennellys to make the decision to file their case.

According to the Kennellys, the fight was instigated by the Maleceks -- James and his sister were consuming alcohol, despite her being underage. This led to an argument, potentially initiated by the sister in question, and the fight that saw Kevin Kennelly, Jr. killed. Marguerite Malecek is named in the suit for allegedly allowing her under-age daughter to drink alcohol.

The Kennellys have stated that whether or not they see any actual, physical settlement from the matter, they are content in simply causing the Maleceks additional legal costs in case they attempt to stonewall the criminal investigation.

As a Missouri medical malpractice attorney, I was interested to read a recent Eighth U.S. Circuit Court of Appeals decision on what evidence is admissible in a medical malpractice case. This is frequently an important question, because medical privacy laws may restrict what can be released — yet having evidence admitted is vital to plaintiffs’ ability to prove their cases. In Bair et al. v. Callahan, Robin Bair and Francis Zephier, a married couple from South Dakota, wanted to introduce evidence related to their doctor’s treatment of other patients, but the federal district court denied it. After a jury found for the doctor, Robert Callahan, they appealed the evidentiary ruling as well as the verdict. The Eighth upheld the trial court on both counts.

Bair suffered from a vertebral crack and went to Callahan for spinal fusion surgery, which is intended to repair the break with a bone graft. Not all bone grafts are successful, but placing a screw correctly increases the change of fusion and decreases the chance of nerve damage or pain. During the surgery, Callahan changed his mind about the placement of the screws because one did not have good “purchase on the bone” in its original placement. That spinal fusion was not successful and also left Bair with continued back and leg pain. A second surgery performed by another doctor replaced all the hardware but also did not result in a fusion. Bair and Zephyr ultimately sued Callahan in federal trial court, alleging he placed the screws in an abnormal position, causing the pain and the need for a second surgery.

Callahan moved to exclude evidence about his treatment of other patients, particularly those with misplaced screws, and the court eventually agreed. Concerned about “mini-trials,” the judge allowed Bair to ask just one question at trial about prior treatment: whether or not Callahan had ever misplaced screws on other patients at the same clinic. The jury eventually found for Callahan and the couple moved unsuccessfully for a new trial, arguing that the verdict was against the evidence and also that they should have been able to introduce evidence about other patients. After a hearing, the court denied that motion. This appeal followed.

The Eighth Circuit upheld, agreeing with the trial court on both counts. Under Rule 404(b) of the federal rules of judicial procedure, it said, it was correct to exclude evidence of Callahan’s treatment of other patients. That rule says evidence of other acts or wrongs is not admissible merely to show the actor’s character, though it may be admissible as proof of knowledge. In this case, the Eighth found that the knowledge the couple wanted to prove is not the type of knowledge the rule seeks. Callahan had the knowledge to perform the surgery, the court said; Bair merely sought to show that he applied it wrongly. It would be prejudicial to admit the evidence, because it would distract the jury with the issue of whether Callahan had a propensity to commit malpractice. Similar reasoning applies to Rule 403, the court noted. Finally, the Eighth ruled that the trial court property deferred to the jury’s weighing of evidence when it declined to order a new trial.

As a St. Louis medical malpractice lawyer, I confront the issue in my work of whether prior bad acts by the defendant are relevant to my own case. As the Eighth Circuit noted, federal rules don’t allow certain evidence to be admitted because it might prejudice the jury — that is, it might convince them to rule a certain way even when the evidence is irrelevant to the issue at hand. This is frustrating for plaintiffs when it prevents them from introducing evidence that seems to prove their case, but it helps protect defendants from “character assassinations” and jury decisions based on social prejudice. (Consider the same rule in the context of a criminal case — having stolen in the past is not a reliable way to gauge whether the defendant is guilty of theft today.) As a southern Illinois medical malpractice attorney, I work hard to build cases that rely on strong direct evidence that cannot be excluded.

Continue reading "Eighth Circuit Upholds Exclusion of Evidence About Other Patients in Medical Malpractice Trial – Bair v. Callahan" »

The family of a man who died after wandering away from his caregivers on the grounds of the Sierra Tucson Rehabilitation Center near Tucson, Arizona has sued the facility for the man's wrongful death. Sierra Tucson is considered an upscale, high class service rehab center.

Dr. Ken Litwack, who was 71 years old, was observed to have had suicidal thoughts by facility staff the day before he was found to be missing. He had expressed thoughts of extreme depression, claiming he felt out of place because he was so much older than anyone else at the facility.

According to his records, he was suffering from anxiety and depression when he checked himself into the center on August 12th of last year. According to reports, he was found dead on the grounds of the center on August 30th, a full two weeks after he was reported missing by the facility.

His body was found in an area near the stables, slightly off the most routinely traveled paths and areas of the facility, but definitively within facility grounds. The body was already so badly decomposed that coroners were unable to determine a cause of death for Litwack.

The lawsuit is alleging facility staff negligence as the primary factor leading up to the incident. According to family representatives, "a drive toward improving profitability at the expense of patient care and safety caused Dr. Litwack's death."

For their part, Sierra Tucson Rehabilitation Center intends to defend itself against all such allegations. According to the acting executive director, John Poloquin, "Sierra Tucson continues to be an industry leader in the treatment of addictions and behavioral disorders, has helped over 25,000 individuals over the course of our 28-year history, and maintains some of the highest clinical staffing ratios in this industry. We remain committed to providing high-quality client care at our voluntary treatment facility."

As a Missouri auto accident lawyer, I know railroad crossings can be a serious hazard for Midwestern drivers. A crash between a car and a train is no contest at all, and some crossings, particularly rural ones, can be dangerously poorly marked. So I was interested to see an adverse ruling from the Tenth U.S. Circuit Court of Appeals for a man who lost his wife in a train accident. In Cornwell v. Union Pacific Railroad Co., Dennis Cornwell lost in trial court after the court dismissed three of his four expert witnesses testifying as to the crossing’s safety. He challenged those dismissals on appeal and also the summary judgment granted to Union Pacific on other safety claims. The Tenth upheld the district court, finding its decisions well supported by precedent.

Renia Cornwell hit a Union Pacific locomotive at 11:45 a.m. at an at-grade crossing, killing her at the scene. Some, but not all, witnesses heard the train’s horn sound before the collision, and the train’s onboard recorders provided contradictory information on the horn. The crossing also had warning signs, but no lights or gates; the installation of those safety features was completed about a month after the accident. Dennis Cornwell eventually sued Union Pacific for negligent, reckless and intentional wrongdoing in the operation of the crossing and the horn. At trial, the Oklahoma district court excluded three of Cornwell’s four witnesses, finding their testimony unreliable under Daubert. Cornwell went to trial with the fourth expert witness, but the jury found for Union Pacific.

On appeal, Cornwell argued that the district court incorrectly assessed the evidence the witnesses were offering. One, general railroad expert Alan Haley, Jr., was deemed unqualified, unreliable and relying on insufficient data. Two others, accident reconstructionist Robert Painter and his videographer, Bryan Schubert, were excluded because their accident reconstruction was dissimilar to the conditions of the actual crash, and also because they had trespassed on Union Pacific property during their research. The Tenth Circuit upheld these. Haley “lacked the proper background,” the Tenth found, and frequently changed his opinions on specific factual issues like the reliability of the train’s onboard video. Thus, he would not be able to give meaningful help to the jury. Similarly, the Tenth found Painter and Schubert’s reconstruction was speculative and conclusory because they tried to reconstruct Renia Cornwell’s view using a minivan rather than an SUV and the wrong type of locomotive, and made assumptions about how her eyes would have tracked as she reached the intersection. However, it declined to reach the trespassing issue, noting that the Daubert reasons were enough to uphold their exclusion and well supported by Tenth Circuit precedent and other caselaw.

As a southern Illinois car crash attorney, I am disappointed in this ruling. Excluding witnesses is not just a procedural matter; excluding expert witnesses is essentially excluding evidence. Because there’s no clear other way to demonstrate certain issues to a jury, having experts excluded can sound a death knell for the case. For this reason, defendants like very much to exclude the plaintiff’s expert witnesses, then try to have the case dismissed for lack of evidence. It’s also disappointing that the court declined to reach the trespassing issue, which is unusual — most accident reconstruction takes place on public roads not requiring permission, and permission from the adverse party might be difficult to get. As a St. Louis motor vehicle accident lawyer, I’d be pleased to see it revisited in other cases.

Continue reading "Tenth Circuit Upholds Exclusion of Plaintiffs Experts in Car Accident Lawsuit Involving Train – Cornwell v. Union Pacific Railroad" »

A woman living in Virginia's Fauquier County has filed a six million dollar wrongful death lawsuit against an Orange County subdivision regarding a boating accident that killed her husband.

Lake of the Woods subdivision has been sued by Michelle Goodman due to an accident in which a pontoon boat struck and killed her husband, Jason Goodman, in July 2010. The lawsuit also names the operator of the boat, Charles Schulle. Goodman is also seeking a $500,000 punitive judgment against Schulle for the same incident, citing his direct responsibility for the accident that killed her husband.

Goodman has charged both Schulle and Lake of the Woods with negligence in the accident. She claims that the subdivision operated their lake in an unsafe, unmonitored manner, which directly contributed to Schulle's unsafe operation of his boat on the day of the accident.

The accused parties came to their defenses individually. Lake of the Woods asserts that it has no direct control over operators on the lake, and that Schulle's actions are not the responsibility of the subdivision in this case. Schulle maintains a different assertion, directly accusing Jason Goodman's own negligence as leading to his death in the accident.

In what might be the first blow to Schulle's defense, however, he was fined a total of $1,000 shortly after the accident. The fine was for operating a boat in a reckless and unsafe manner. If he wishes to assert that he was not responsible for Goodman's death, he will most likely have to overcome this particular piece of evidence in court.

As yet, there has been no court date filed to begin proceedings, nor has a judge been announced as overseeing the litigation in the case. Since it is a civil rather than a criminal matter, the process could take some time to proceed through Fauquier County courts.

Much of my work as a Missouri auto accident attorney focuses on insurance coverage — whether insurers should pay claims of their insureds. This is more complex than it might sound, because insurance companies make the most money when the minimize what they pay on claims. And of course, they write their policies to minimize their payments, at least within the confines of the law — but state law allows injured drivers to fight back. That was what happened in Tripp v. Western National Mutual Insurance, an auto accident insurance case decided by the Eighth U.S. Circuit Court of Appeals. Driver Cindy Tripp and her husband, Lyle Tripp, sued Western for bad faith and breach of contract when it refused to provide the full amount of their underinsured motorist coverage. They lost on the bad faith claim but won both the money and attorney fees, and the Eighth Circuit upheld the attorney fee award.

Cindy Tripp and her daughter were going shopping when their car was rear-ended by Jeffrey Christiansen, hard enough to deploy Christiansen’s airbag. Tripp suffered $3,000 in property damage and recurring pain and sleeplessness that have affected her daily life and her work. After the crash, Western offered Tripp only the $5,000 limit of her medical-pay insurance; she settled with Christiansen’s insurance company for an additional $87,000, then made a claim on her own underinsured motorist insurance for $150,000, the limit she could legally obtain. Despite estimating the case’s worth at $120,000 to $150,000, Western offered Tripp $10,000. Instead of taking the offer, she sued for breach of contract and bad faith. The jury found for Tripp on breach of contract and awarded her $150,000, but did not find bad faith. The trial court awarded Tripp attorney fees under a South Dakota state law allowing such an award when an insurer’s refusal to pay is “vexatious or without reasonable cause.”

Western appealed the attorney fee award to the Eighth Circuit, arguing that the trial court was wrong on both the facts and the law to award the attorney fees because Western had won on the bad faith count. The Eighth disagreed. The South Dakota Supreme Court has consistently found no connection between insurance bad faith, a tort, and the statutory right to attorney fees when conduct was “vexatious or without reasonable cause.” When a jury finds in favor of an insured on bad faith, the court noted, South Dakota caselaw requires a separate analysis of whether the refusal to pay was vexatious. Thus, the Eighth expressly ruled that attorney fees for refusal to pay that is “vexatious or without reasonable cause” can stand even when bad faith is not found, and requires a separate analysis. It also rejected Western’s argument that the facts don’t support the “vexatious” finding in its case, noting that Western itself valued the claim at $10,000 to $140,000 more than its original offer to Tripp, and never investigated the loss independently. Thus, it upheld the district court.

As a southern Illinois motor vehicle accident lawyer, I applaud the ruling in this case. Judging by this opinion, neither the statute itself nor the caselaw in South Dakota supports Western’s position, making it odd that Western chose to fight the issue into the Eighth Circuit. While insurance companies may have all kinds of reasons to appeal their cases, this kind of protracted litigation can be hard on injured plaintiffs who are obligated to defend themselves and their judgments on appeal. An individual like Cindy Tripp is unlikely to have the financial resources to match Western’s, which means she may have been further strained financially by the case, after already suffering the economic losses of her injury. As a St. Louis car accident attorney, it’s my job to level the playing field whenever possible in the face of this gross power imbalance.

Continue reading "Eighth Circuit Rules Auto Insurer Must Pay Attorney Fees After ‘Vexatious’ Refusal to Pay – Tripp v. Western National Mutual Insurance" »

A Las Vegas Court noted the filing of the 2nd lawsuit against a Las Vegas based helicopter tour operator following a crash that took the lives of five people in early December.

The lawsuit was filed on behalf of the four children of Delwin and Tamarra Chapman, both age 49. Delwin and Tamarra died on December 7th during a helicopter tour to celebrate their 25th wedding anniversary. The suit is asking for unspecified damages, likely related to loss of companionship and income due to the death of both parents of the children.

The crash involved a helicopter operated by Sundance Helicopters Inc., and took place in a remote ravine near Lake Mead. Sundance sent their letter of condolences to the Chapman family, but did not officially reply to the allegations raised in the suit.

“Sundance will continue to work openly with all parties involved in the investigation,” commented Sundance chief executive Larry Pietropaulo.

The lawsuit, along with an earlier suit filed on behalf of the families of Lovish Bhanot, 28, and Anupama Bhola, 26, was put into motion by attorney Gary Robb of Kansans City, Missouri. Bhanot and Bhola were an Indian couple on their honeymoon, also killed in the tragic crash.

Robb has let it be known that he wishes evidence collection for both cases to be consolidated into one effort, simplifying the chain of evidence pertinent to two cases. However, he wishes for the two suits to be considered separate trials.

The pilot of the helicopter was the fifth victim. 31 year old Landon Nield of Las Vegas was also a newlywed, having been married in June.

According to a National Transportation Safety Board (NTSB) review, the helicopter had received extensive maintenance the day before the crash, including replacement of several key parts, such as an entirely new engine.

Robb believes the evidence reported just before the crash, including an erratic flight pattern, indicates either mechanical failure or pilot error.

As a St. Louis head injury lawyer, I know head injuries are complex injuries that often seem like they come from unrelated causes, or more than one cause. That was why I was interested to see the Missouri Supreme Court’s ruling in State ex rel. BNSF Railway Co. v. Neill, a case in which a railroad wants to see the psychiatric records of a brain-injured worker suing for his injures. Michael Patton sued BNSF over injuries sustained in an August 2001 fall resulting in injures to his head, neck and shoulder. Patton was already under psychiatric treatment, and BNSF wanted to argue at trial that the fall was caused by Patton’s use of psychiatric drugs. The trial court prevented the records’ discovery, but the high court reversed in light of the specific circumstances.

Patton, whose job was not specified, was performing heavy manual labor in the heat of a Missouri August when he fell in August of 2001. He fell again at work in October of 2002 when he discovered that colleagues had filled his car with garbage as a prank. In both cases, he alleged that BNSF had negligently failed to provide a safe workplace, which he says has caused recurring seizures or fainting spells. BNSF argues that Patton’s problems stem from abuse of, or withdrawal from, prescription drugs, a theory supported by records of an unrelated previous lawsuit and by medical records, which showed that Patton was receiving powerful prescription medications from two different doctors before the doctors learned of one another’s existence. Patton’s first accident happened shortly after those doctors scaled back his access to the drugs. He later sought the drugs at several emergency rooms.

Patton later began treatment with a psychiatrist, Dr. Shankararao Rao, who had prescribed drugs for depression and anxiety when Patton’s second accident happened. BNSF subpoenaed all records from Rao’s office related to Patton, believing they would have admissible evidence. The trial court instead granted a protective order to Patton’s records, ruling that Rao’s records were irrelevant.

BNSF petitioned the Missouri Supreme Court for a writ of mandamus reversing that decision. A temporary writ was granted, and in this decision, the writ was made permanent. It first noted that even when information is not admissible at trial, it may still be discoverable if it contains discoverable information. The trial court felt that Patton’s mental condition must be irrelevant to a claim that is solely for physical injuries, but the high court said it had failed to consider the relevance of the information BNSF actually sought. Documents sought must be “reasonably calculated to lead to the discovery of admissible evidence,” the court noted, and these documents meet that test because they are relevant to causation. Trial courts must use their discretion in each case about whether the discovery request meets criteria or is just a “fishing expedition,” the Supreme Court said — but it was incorrect for the trial court to deny discovery simply because Patton made no psychiatric claims.

One dissent argued that BNSF’s request was overly broad, particularly considering that it already had Rao’s prescription records and may have abused the discovery process. Another dissent argued that the situation is not extraordinary enough to justify interference with the trial court.

As a Missouri personal injury attorney, I’m very interested in the issue of when discovery steps over the line. When an individual sues a large company, as in this case, the deck is stacked for the company because of its greater financial resources and legal firepower. This can give the stronger party an incentive to drag out discovery, picking fights over requests it knows very well will not be permitted by a competent judge. One dissent in this case suggests that BNSF abused the discovery process in several ways, and thus the denial of this discovery request may have been a sanction. Whether or not that’s true, it pays for plaintiffs like Patton to have an experienced southern Illinois bran injury lawyer by their sides so they can fight off abusive, invasive discovery requests.

Continue reading "Missouri Supreme Court Allows Employer to View Psychiatric Records in Workplace Injury Case – State ex rel. BNSF v. Neill" »

A couple in Beaufort, South Carolina, has disavowed any responsibility in the death of a 6 year old boy found drowned in the family pool during a party.

The family of Camilo Andres Restrepo-Lopez filed a wrongful death suit in October against John and Julia Sanford after Camilo was found in the Sanford family pool following the party hosted by the Sanfords. He was rushed to the Medical University of South Carolina in Charleston in an effort to revive him, but to no avail. Camilo unfortunately died while in the care of the hospital.

For their defense, the Sanfords argue that they were not told by the Lopez family that Camilo was unable to swim, and that his own family did not attempt to provide supervision of their son. For these reasons and others, the death was ruled an accident by local police authorities, the Beaufort County Sheriff's Office, and no criminal charges were filed in connection with the death.

This prompted the Lopez's civil suit, which is claiming actual and punitive damages as compensation for Camilo's death.

The case is further complicated because it is unclear who will be presiding over the final litigation. The original judge, Judge Marvin Dukes, recused himself from the case for a conflict of interest. He did not make the nature of this conflict clear at the time he recused himself.

The Sanford family are relatives of South Carolina governor Mark Sanford.

Cases such as these illustrate the often complex nature of wrongful death lawsuits. There is clearly a duty for parents to make sure their own children are supervised properly, whether that consists of keeping an eye on the kids themselves or by telling the hosts of a party that a child is unable to swim. On the other hand, there is a duty for the hosts of a pool event where children will be present to be sure that everyone is safe.

As a Missouri injury attorney, I know states have been pursuing lawsuits with tobacco companies for many years, alleging the companies hurt people and drove up state costs by failing to disclose information on the risks of smoking. So I was interested to see a recent Oregon Supreme Court ruling saying that state could not legally release its claim to its share of a large tobacco settlement. Williams v. RJ Reynolds Tobacco Company was filed by Mayola Williams, the personal representative of deceased smoker Jesse Williams, and tied up in appeals in the 12 years since the original victory for Williams in 1999. Reynolds eventually paid the damages slated for the Williams estate, but refused to pay the 60 percent slated for the state of Oregon, saying the state released its claim to the damages in another settlement. In this case, the high court found that the state’s statutory right to the damages is not a “released claim” within the meaning of the settlement.

The estate of Jesse Williams sued after his death from lung cancer in 1997, alleging fraud and negligence by Reynolds. It won a total of $79.5 million in compensatory and punitive damages in 1999, and after lengthy appeals, the punitive damages award was upheld in 2009. The state of Oregon is entitled to 60 percent of the punitive damages under a state law funding crime victims’ services. Meanwhile, the state of Oregon itself had also sued tobacco companies, claiming millions in smoking-related losses for Medicaid and state employee health care expenses. That case was combined with other states’ cases and ended in a national settlement in which Oregon and other states released future claims relating to many aspects of tobacco products.

When the Williams case was originally decided, Reynolds told the state that the multistate settlement had relieved it of any duty to pay the 60 percent of the punitive damages in Williams. The state moved to enforce its damages in court, but this was stayed for years during appeals. When Williams was resolved, it recommenced trial and eventually found for Reynolds. Both Williams and the state appealed, and the Oregon Court of Appeals certified the case directly to the state Supreme Court.

Reynolds suffered a reverse of fortune on appeal, where the high court found no release of damages by the state of Oregon. In the multistate settlement agreement, Oregon released Reynolds from liability for “any and all civil claims... liabilities of any nature... whether legal, equitable or statutory.” The question is whether the state’s interest in the Williams settlement is covered by this release, the court noted. That interest was not created by direct participation in the case, it said, but by state statute. And that statute applies regardless of the nature or subject of the underlying claim, the court noted — which means the state’s interest does not truly arise from tobacco-related claims. The state is a judgment creditor, but does not have any special rights or obligations before judgment is entered. Thus, the state’s interest in these damages is not a “released claim” under the multistate settlement, even though that settlement defined “claim” quite broadly. The high court reversed the trial court and ordered an entry of judgment for the state.

As a St. Louis product liability lawyer, I applaud this decision. If Reynolds had succeeded on appeal, it would have been released from liability more than half of the money it was ordered to pay in the original case. And thanks to the decade of appeals in that case, the public can rest assured that those damages are legally valid. As it is, both the Williams estate and the state of Oregon have waited a decade or longer for the money they’re owed. This is possible for large companies like tobacco companies because they have the resources to keep legal issues alive, even when they look like losers, legally speaking. With so much money at stake, companies are often willing to spend a lot on lawyers to file “hail Marys,” because the legal fees are cheaper than paying what they owe. A large part of my work as a southern Illinois defective products attorney is helping injured people overcome the disadvantage their unequal resources gives them when they sue large companies.

Continue reading "Oregon High Court Rules State Cannot Release Interest in Tobacco Class Action Settlement" »

In 2009, on the side of a Utah Highway, a Highway State Patrol Trooper fired a taser into Brian Cardall. Cardall, who is diagnosed with bipolar disorder, was having a manic episode at the time. Seeing Cardall's behavior, the officer fired his taser into the man twice, leaving him lying lifeless on the ground. Cardall's wife, Anna Cardall, asked the officer if her husband was alright. When the officer did not answer, she asked if she could provide her husband with some aid. The officers refused and ordered her to stay inside her vehicle.

No aid was given to Cardall until paramedics arrived on the scene, a factor that representatives for Mrs. Cardall argue contributed directly to the victim's death.

As a result, a federal judge is determining if the wrongful death case will move forward to U.S. District Courts.

The plaintiffs named in the suit are Anna Cardall, her daughters Ava and Bella Cardall, and Brian Cardall's parents, Margaret and Duane Cardall. Defendants named in the suit are Officers Thompson,Hurricane Police Chief Lynn Excell and the City of Hurricaine as defendants.

The suit claims that the actions of officers Thompson and Chief Excell constituted willful misconduct, intentional infliction of emotional distress, deprivation of constitutional rights, and of course wrongful death.

Judge Clark Waddoups heard initial arguments for the case, pertaining to whether he should render summary judgment. These initial debates allowed defense and plaintiff to explain the general merits of the evidence as it is understood so far, with the defense requesting a summary judgment dismissing all charges as frivolous, while the plaintiffs were insisting that the evidence merits going forward.

The defense attorneys for the officers argue that their clients never intended to kill Mr. Cardall, and were responding as best they could after 911 calls indicated Cardall was running around in traffic nude. However, the plaintiffs have argued that there are a number of other responses short of the use of the highly dangerous taser devices.