Missouri Injury Lawyer Blog

Further testimony was offered in the wrongful death lawsuit levied against the University of Central Florida by the family of Ereck Plancher. Testimony included comments from players, coaches and the head trainer.

The background of the case states that Plancher and other UCF football players were practicing when, toward the end of the practice, Plancher collapsed and could not make verbal responses. His teammates carried him to a bench and gave him water, but he ultimately died. The autopsy showed that he died of heart complications due to sickle-cell trait, which can be dangerous when aggravated by intensive exercise.

The UFC football coach who was overseeing the training on the day of Plancher's collapse was Coach George O'leary. O'leary testified that he did not see any undue stress placed upon Plancher prior to his collapse. Further, he insisted that no one had ordered water carriers or trainers out of the team fieldhouse.

This last point was contradicted by players of the team who took the stand. During testimony, a player explicitly said, "Well, on that particular day, 'waters and trainers out' meant players and coaches only in the fieldhouse." This testimony was backed up earlier in the week by two other players for the team.

O'leary went on to describe the workout as a whole as "non taxing."

This point is contested by Plancher's family, given the nature of the autopsy results. Further, Plancher family lawyers cited evidence that the head coaches and training staff knew for a fact that Plancher had sickle-cell trait. Interestingly, head trainer Mary Vander Heiden said that she knew about the trait, and yet could not recall for sure if she had told Plancher. Given that the trait can be aggravated by the kinds of workouts a football team is expected to perform, this would seem to be an extraordinarily bad judgment call for a head trainer.

A recent decision from the Missouri Supreme Court caught my eye as a St. Louis personal injury attorney. In Schmitz and Ewing v. Great American Assurance Company, the parents of Christine Ewing sued for wrongful death after their daughter died from falling off a portable rock-climbing wall set up at a minor league baseball game. Kathleen Schmitz and Craig Ewing sued Columbia Professional Baseball (CPB) for wrongful death, and CPB’s primary and excess insurers both denied any duty to defend. The parents made a contract with CPB limiting its financial liability to the amounts of its insurance policies, $1 million and $4 million respectively. After the parents won a suit against CPB, the primary insurer paid out less than the full $1 million limit, and the secondary insurer refused to pay because the primary insurance was not exhausted. In this case, the Missouri Supreme Court ruled that the excess insurance policy did not require exhaustion before it would pay out, allowing the parents to collect the full amount of their judgment.

The parents won their original $4.5 million judgment against CPB in a bench trial. They then filed an equitable garnishment lawsuit against the primary insurer, Virginia Surety, and the secondary insurer, Great American. Prior to the court’s judgment, the parents settled with Virginia Surety for $700,000 and agreed not to seek the full limits of the policy. They then continued the suit against Great American, seeking the balance of the $4.5 million, calculated at about $2.8 million. The court hearing the equitable garnishment case found that they were not entitled to a judgment against Great American because the Virginia Surety policy had not been exhausted. The parents appealed. On review, the Missouri Supreme Court found that the language of Great American’s contract did not require exhaustion — merely an obligation for the first insurer to pay. It also rejected arguments from Great American that the judgment against it was unreasonable. Thus, the Supreme Court reversed and remanded the case for more proceedings.

This ruling is good news for Missouri wrongful death lawyers like me. In essence, it denies insurance companies the opportunity to dodge their legal obligation to provide insurance payments when their customers cause a serious injury. This matters because ultimately, the beneficiary is the injured person or people. After an injury, finances often become a serious problem for injured people, for two interconnected reasons. First, medical care is very expensive, even if you do have health insurance. For a serious injury requiring intensive care or long-term therapy, it can easily reach seven figures. In addition, when the victim was a family breadwinner or provided other services, the family often sees an immediate drop in income — in wrongful death cases, permanently. That’s why, as a southern Illinois injury attorney, I work hard to ensure that clients get the financial compensation they need after a bad accident.

Continue reading "Parents of Wrongfully Killed Girl May Collect Full Judgment – Schmitz v. Great American Assurance Co." »

A civil court lawsuit has been filed against Taney County for the wrongful death of Robert J. Cain of Branson, Missouri. In short, the suit alleges that the negligence of county officials lead to the incident that killed Cain and injured Christy Rush.

According to documents from the case, Cain and Rush were driving in Taney County on November 26, 2009. Near a particular intersection, a vast amount of water had covered the driving surface. It was at night with visibility impaired, and as a result Cain drove his car into the water. Rush was able to get out of the car and swim to safety, but Cain died by drowning. It is suspected that a combination of the quick submerging of the car and the cold water may have hindered his ability to get out in time.

The basis of the suit is that the county owns the road in question. There were no warning signs or attempts to drain the road put in place, so the suit is charging the county with negligence, as the plaintiffs allege that the county had substantive notice of the road's condition in time to do something about it, but had not done so. Further, the plaintiffs maintain there is evidence that the county had failed to respond to similar incidents on that stretch of road by increasing care for such events.

Attorneys in the case are asking for assorted pecuniary and non-pecuniary damages, ranging from the medical expenses required to treat Rush and the loss of the vehicle, to compensation for grief and mourning, depriving his children of Cain's guidance and companionship, and so forth.

For the most part, Taney county officials have declined to comment on the case. However, one official did say that county officials have doubts as to whether the county actually owns the road. They argue that it more likely belongs to a nearby detachment of the Army Corps of Engineers, and thus they have no ability or responsibility to place signs there.

A recent investigation by the U.S. Department of Justice concluded that Federal Correctional Institution-Perkin inmate Adam Montoya did not suffer injury from neglect by prison staff prior to his death. An autopsy performed on Montoya showed that he suffered an agonizing death, predominantly as a result of failure to receive medical attention for several days. According to Montoya's attorneys, he had repeatedly requested and then begged prison officials to let him see a doctor, a request that was consistently denied.

The denial of the claim by the DOJ has cleared Montoya's family and attorneys to file a lawsuit in federal court, specifically a wrongful death case.

“What this means is that the claim was denied, and by the administrative denial we are allowed to file a lawsuit in federal court,” said Ron Hanna, the Montoya family attorney in the case. “We want to see if anyone is held accountable. What this family is waiting for is for someone to be held accountable for what happened to their son.”

When Montoya was initially examined following his death, the coroner thought he had been savagely beaten given the extensive bruising in a band around his midsection. However, the autopsy revealed that the bruising was caused by extensive internal bleeding. This was determined to be the result of a rupture of the spleen, itself related to B-cell non-Hodgkins lymphoma, a type of cancer.

Given the extent of the bleeding and the rupture of the spleen, there could have been no denying that Montoya was in extraordinary pain, likely to the point of screaming. Yet, the only medication found in Montoya's system was a standard dose of Tylenol. Even this was only present in his urine, which meant that it was taken many hours before his death. No stronger medications of any sort were found in his system, rather clearly putting the lie to the institution staff's claims they had been treating him.

A sad story about a preventable accident caught my eye as a St. Louis car accident attorney. As the St. Louis Post-Dispatch reported June 8, two people were injured on Interstate 270 after a flat tire forced one driver to stop on the inside lane of the highway. The Missouri Highway Patrol said Gwinnell Campbell, 36, was stopped in either the far left lane or the median west of Highway 367, standing behind her disabled van. An approaching motorcyclist, 57-year-old James Annable, slowed down when he saw the disturbance, but a pickup truck behind did not, and hit both Annable and Campbell. Both were hospitalized with serious injuries. The Highway Patrol declined to say whether any of the motorists would be cited or criminally charged.

Campbell, of Florissant, was on her way home from a practice session with her rock band, her boyfriend, Bud Voegtlin, told the newspaper. She told Voegtlin that her tire had blown out at highway speeds and she was going to pull over. The Highway Patrol was not sure whether she was in the far left lane or partly in the median of the highway. Annable, of Worden, slowed when he saw the disabled van, but 30-year-old Joseph Burch, of Lexington, Mo., apparently did not see them and hit both people. Voegtlin, whose phone call with Campbell was unexpectedly cut short, went looking for her in his own truck and came across the accident scene. He said Campbell was conscious when he found her at the hospital, but had two broken bones, a dislocated knee and a bruised lung.

As a Missouri personal injury lawyer, I would be interested in knowing whether Campbell stopped in the left lane or the median. Of course, not everyone with a disabled vehicle is lucky enough to be able to get into a median in time. Furthermore, and perhaps more importantly, drivers have an obligation to stop when they see a collision risk ahead — that’s what Annable did. If the Highway Patrol eventually determines that Burch failed to stop because he wasn’t paying enough attention to the road, he and his auto insurance company could be held legally liable for the injuries to the other motorists. But if Campbell could have done more to get safely out of the road, it could hurt her chances of getting full compensation. And that matters, because the kinds of injuries she and Annable likely have will be expensive.

Continue reading "Two Hospitalized When Driver Hits Motorists Stopped in Far Left of Interstate 270" »

As a St. Louis wrongful death lawyer, I was saddened to see a series of articles about the death of a young woman at the home of a former Anheuser-Busch executive. August Busch IV had offered a $1.5 million settlement to Blake Martin, the 8-year-old son of Adrienne Nicole Martin. Busch, 47, is a son of the Anheuser-Busch brewing empire and served as CEO of the company until its sale to InBev in 2008. Adrienne Martin was found dead of a cocaine and oxycodone overdose at Busch’s home in December of 2010. Martin’s ex-husband later sued Busch for wrongful death on behalf of their son, and a settlement was in the works until Martin’s parents sought to join the lawsuit. Now, the St. Louis Post-Dispatch reported June 7 that the settlement will be postponed until a court has time to consider the parents’ appeal.

Adrienne Martin had been dating Busch for nearly a year before her death. After a police investigation, authorities decided that her death was an accidental drug overdose with no foul play. However, her ex-husband, Kevin Martin of Cape Girardeau, filed a wrongful death lawsuit alleging that Busch had been negligent in his treatment of her. Their attorneys negotiated a $1.5 million settlement intended to benefit Blake Martin, her son. But before that settlement was completed, Adrienne Martin’s divorced parents stepped in. Christine Trampler and George Eby joined the wrongful death suit, claiming part of the settlement. The judge in the case denied their request to join, but they plan to appeal and the settlement is on hold until a higher court can consider that appeal.

As a wrongful death attorney in Missouri, I’d like to discuss a specific issue raised by this case: Who can file a wrongful death lawsuit? According to state law, the people with the strongest claim are the spouse, children, grandchildren and parents of the deceased. If there’s no relative in that category, sisters and brothers may make claims; and if there is no sibling, a court-appointed representative of the estate can sometimes step in. Thus, Kevin Martin has no claim, but Blake Martin and both parents do. It’s unclear whether the parents would get less priority than the little boy, but as a rule, lack of custody or support doesn’t bar parents from filing suit. This is all separate from the practical considerations about financial support for the child. I hope the appeals court takes those into account as well as caselaw when it decides the parents’ appeal.

Continue reading "Wrongful Death Settlement Postponed in Woman’s Death at Busch Heir’s Mansion" »

The City of Midland, Texas, has agreed to settle with the family of Paul Holland in a wrongful death suit brought on Holland's behalf. The family accepted a settlement of $45,000 in exchange for clearing the officers involved in the fatal shooting.

The complaint filed against the city was a hefty one, going beyond simple accusation that Holland's death was not justified. Specifically, Holland's family argued that the city:

- failed to properly train its law enforcement personnel in various alternatives when performing their duties.

- failed to properly train its personnel in dealing with suspects or citizens who are suffering from mental difficulties.

- neglected to equip SWAT officers with less-lethal alternatives to firearms.

The family claimed that the combination of these factors combined to encourage their fourth charge, that of excessive force.

The Holland family's attorneys maintain that Holland was unarmed and in compliance with officers when he was shot, but the police maintain that Holland was armed and had an extended history of noncompliance with police directives.

Events in the shooting began when a neighbor called police and said that Holland was behaving erratically, including threatening his wife and claiming he was preparing to kill himself. Police set up a barricade around his home. After a standoff of indeterminate length, Holland began to comply with orders and went outside, but then began behaving erratically again. At this point, three SWAT officers opened fire on him, killing him.

The family maintains that Holland was actually carrying a cell phone. SWAT officers claim that they "felt threatened," and gave a verbal order to "drop the weapon." However, this makes it unclear and muddled — kevlar-wearing, heavily-armed SWAT officers felt threatened by one individual behaving erratically?

Regardless, the family has elected to settle the case for the aforementioned sum. The agreement also drops all allegations against the officers and clears them of responsibility for the shooting, closing the case.

As a southern Illinois product liability attorney, I know vehicle rollovers are one of the most dangerous types of car wreck — and also one that’s commonly associated with bad vehicle design. So I was disappointed to read that a single-vehicle rollover in Madison County, Ill., has put a mother and three children under the age of five in area hospitals. According to a June 2 article from the Belleville News-Democrat, Jessica Dillon, 25, of Roxana swerved to avoid a piece of metal in her lane on Illinois 255. The maneuver sent her Chevrolet Trailblazer into the left-hand median of the road, overturned, slid into the opposing lanes and was hit by a utility truck. Two of the children and their mother were listed in serious or critical condition as of June 2; the fourth was treated and released.

Jessica Dillon was heading south at about 11:45 a.m. May 31 when she swerved to avoid the metal in the road. The Illinois State Police report said she lost control of the Trailblazer, which overturned in the median. The car was then hit by a utility truck driven by Cody Helms, 16, of Edwardsville. Tristynn Dillon, age 4, was using a seatbelt but not an age-appropriate booster seat and was ejected from the car. She is in critical condition at Cardinal Glennon Hospital in St. Louis. The crash also caused serious injuries to Jessica Dillon and to Timothy Dillon, 2. Tyler Dillon, two months, suffered only minor injuries. The other occupants had age-appropriate safety restraints. Helms was not injured. Illinois State Police were still investigating and had not cited anyone as of June 2.

The newspapers have highlighted the issue of Tristynn Dillon’s safety restraints, and I agree that safety restraints are important. But as a St. Louis car crash lawyer, I’d also like to talk about the possibility that the Trailblazer was defective. SUVs came under fire 10 to 15 years ago, after their rising popularity drew attention to the fact that they were more likely to roll over than conventional passenger cars. Federal data from 2000 shows that rollovers accounted for 22 percent of fatal accidents involving cars, but 61.5 percent of fatal SUV crashes. Safety experts believe SUVs’ higher centers of gravity make them more likely to tip over, sometimes even in common driving situations such as swerving and leaving the road. If that was the case here, it’s possible that an inherently unstable — that is, defective — design was at the root of this family’s crash.

Continue reading "Southern Illinois SUV Rollover Accident Sends Mother and Three Children to Hospital" »

San Francisco's municipal transport system (Muni) was recently served a wrongful death lawsuit in the death of Scott Whitsett. The suit was filed by the attorneys of Scott's husband, Dr. Theodore Glaza, and it charges Muni with carelessness, negligence, inattention and failure to use reasonable care, resulting in the fatal collision. The suit was also filed against the San Francisco county.

According to Glaza's attorneys, "Muni has a terrible safety record, and despite many serious and even fatal accidents each year, it continues to operate in a manner that disregards public safety.” The statement went on to say that Dr. Glaza hopes his suit will prompt Muni to begin taking proper safety steps so that others are not deprived of their loved ones as a result of preventable accidents.

Whitsett was 49 on the April 2010 morning of his accident. He was walking south on Mission near Beale Street when he was hit by the westbound Mission 14 Muni bus. According to the complaint following investigation into the incident, the driver of the bus was distracted at the time, due to unwrapping a candy bar. Thus, she failed to notice the pedestrian. Compounding this, she accidentally pushed down on the accelerator rather than the brake, and drove her vehicle right into Whitsett. The crash pinned Whitsett between the Mission 14 and another Muni bus, knocking him to the ground, where he was then run over by the Mission 14.

The impact left Whitsett with multiple internal injuries and fractures, including a severe head injury. This is what ultimately claimed his life shortly thereafter at the nearby emergency room.

The accident comes on the heels of numerous reports of drivers operating while distracted, whether eating, calling, or texting someone outside of work while on the job. The lawsuit claims that such incidents are far too numerous and endemic to be isolated events, and hopes to prompt a shakeup that will reform the Muni's abysmal safety record in Whitsett's memory.