Missouri Injury Lawyer Blog

The wrongful death suit filed by the late Marlon Brando's ex-wife on behalf of their son, Christian, has been settled on undisclosed terms.

"All I can say ... is that the matter is being dismissed," said the attorney for Anna Kashfi, who filed the lawsuit in January of last year.

Three years ago, Christian Brando died of pneumonia after being admitted to Hollywood Presbyterian Medical Center.

Kashfi's lawsuit named physician Jay Doostan as liable for her son's death. Doostan had apparently prescribed a certain medication to Brando for his pneumonia days before he was sent to the center, instead of admitting him to the hospital immediately. The suit claimed that Brando could have very easily survived the pneumonia if he had been admitted earlier and given proper medical care.

The case further stated that Brando's estate was damaged by his death, because when he died an inheritance from his father, Marlon's, estate was no longer available to the younger Brando's survivors.

Doostan was the sole remaining defendant in the series of lawsuits that followed Christian Brando's death.

Kashfi had earlier filed suit against CHA Health Systems Inc, a company which owns Hollywood Presbyterian, but this part of the suit was settled in July of 2010. She had also filed other suits against a friend of her son's half-siblings, Robert Ming, as well as the half-siblings themselves — Teihotu Brando and Rebecca Brando. The suit against Ming also reached a settlement, the terms of which included that the two other Brandos were dismissed as defendants, but the other terms remain undisclosed. The nature of this suit is that the three defendants had made arrangements to dispose of Christian Brando's body, but did not inform Kashfi of their decision; the suit thus charged them with negligence in disposing of human remains.

Christian Brando was in the hospital for 15 days before he died of respiratory infection from his pneumonia. He was 49.

As a southern Illinois products liability lawyer, I know that while suing after an injury is often the only available remedy, it’s much better when there’s no injury in the first place. And given human nature, strict regulation is one of the best ways to help consumers avoid injury. Inadequate regulation was at the heart of Bertanowski v. Spin Master, Inc., a Seventh U.S. Circuit Court of Appeals decision centered on defective toys. The toys in question were Aqua Dots, small beads that stick together when sprayed with water. Unfortunately, a Chinese subcontractor substituted a poisonous glue for the glue the manufacturer specified, using GHB, a drug the media has called a “date rape drug” because it causes unconsciousness and amnesia. At least two children ate the beads and fell into comas. About 600,000 out of more than a million defective kits were returned for a non-defective kit, another toy or a refund. Three million more were never sold.

This case centers around claims by a group of plaintiffs who bought Aqua Dots and suffered no injury, but sued to challenge the adequacy of the recall itself. Sarah Bertanowski and others sued Spin Master, Moose Enterprises, Target, Toys R Us and Wal-Mart, alleging violations of the federal Consumer Products Safety Act, breach of express and implied warranties and violations of state consumer protection laws. The cases were consolidated in the Northern District of Illinois. The trial court there denied class certification, saying a class-action case is inferior to a simpler remedy for this class: asking for refunds, which Spin Master had already given out to many customers. The Seventh Circuit authorized an interlocutory appeal.

On appeal, the Seventh quickly dismissed an argument from Spin Master that the plaintiffs had no standing to sue. Though they suffered no physical injury, the financial injury they suffered was adequate to create standing, the court said. It then turned to the merits of class certification. Though it agreed that certifying a class in this case seemed pointless, it chided the trial court for disregarding Rule 23(b)(3), the federal rule for certifying a class, by lumping a recall in with “adjudication.” Instead, the Seventh said, the court should have relied on 23(a)(4), which says a class may be certified only if the class representatives can fairly and adequately protect the interests of the class. Because a class-action lawsuit is much more expensive than participating in the recall, the Seventh found that the class representatives were not adequately representing the class’s interests. It also pointed out that the plaintiffs’ claims for punitive damages could be difficult, given the patchwork of diverse state laws on the subject. And proposed subclasses within each state would still require expensive and difficult notices to each potential class member, the court wrote. Thus, it affirmed the district court’s refusal to certify a class.

As a Missouri defective products attorney, I’m disappointed that these plaintiffs won’t be able to pursue their underlying claim about the adequacy of the recall. The Aqua Dots kits retailed for about $20, so it’s true that the financial payments they could have claimed would be small relative to the expense of the litigation. But protecting the priceless lives and health of their children is probably the class’s true motivation for suing. If the recall was inadequate, as they apparently felt, that’s an issue that has a place in the courts. As a product defects lawyer in St. Louis, I frequently handle cases of dangerous products or failure to warn in which vulnerable people suffer serious and very preventable injuries. If federal regulators don’t do an adequate job preventing injuries like this, a lawsuit is the only redress victims may have.

Continue reading "Seventh Circuit Upholds No Class Certification for Families Suing Over Defective Toy – Bertanowski v. Spin Master" »

The first of what is sure to be multiple wrongful death cases has been filed following the collapse of a stage in Indiana. What makes this case particularly interesting is that it also touches on the issues surrounding same-sex marriage in the state.

The suit was filed by 49-year-old Beth Urschel on behalf of her life partner of 10 years, 42-year-old Tammy VanDam. VanDam was killed in the stage collapse, and Urschel herself suffered a number of injuries including a crushed leg and the loss of several toes.

The lawsuit names a number of defendants, including Live 360 Group, Live Nation Entertainment and Mid-America Sound Corp. The Indiana State Fair Commission and the State of Indiana both have been named as well in the interest of evidence preservation. The suit is set at a whopping $60 million, and alleges that the entire tragedy was completely preventable, resulting from negligence and shoddy construction.

The case alleges that the stage was built without an appropriate construction permit, was disastrously overloaded with sound and performance equipment and that it did not meet OSHA guidelines for a venue construction. Further, the suit states that event organizers were clearly warned about incoming thunderstorms as much as an hour before the collapse, and that no action was taken to suspend the venue despite said warnings.

Where the case gets interesting is that the suit also includes demands for the state to surrender VanDam's body to Urschel. Indiana does not recognize same-sex commitments, and have thus far refused to allow Urschel access to the body or to make the appropriate arrangements for her partner's funeral. Instead, the body remains in the custody of the state at the morgue.

The amount sought breaks down into $50 million for VanDam's 17-year-old daughter and $10 million in punitive damages to be awarded to Urschel.

As a St. Louis personal injury lawyer, I was interested to read a court decision voiding certain limitations in insurance contracts as contrary to Missouri public policy. The Eighth U.S. Circuit Court of Appeals made that decision in Carolyn Schubert v. Auto Owners Insurance Policy, a case about an insurance payout for a home destroyed by fire. Carolyn Schubert and her husband’s stepdaughter, Deborah Lee Weiss, stipulated to each owning half of the home after Schubert’s husband, Thomas Schubert, died. Because of this, and because of a provision in the insurance contract, Auto Owners maintained that it owed Schubert only half of the total value of the policy, or $62,250 instead of $124,500. The U.S. District Court for the Western District of Missouri found that this was voided as against public policy, and the Eighth Circuit agreed.

The Schuberts married in 2005 and Thomas Schubert died in 2006. Because he left no will, Carolyn Schubert and Weiss, who was Thomas’s stepdaughter from his first marriage, agreed in probate proceedings that each owned 50 percent of the home. Weiss was living there at the time. After the death, Carolyn Schubert continued making premium payments regularly and renewed the home’s insurance policy twice, although she had also told Auto Owners that she was not sure whether she legally owned the house. However, three months after the probate agreement, Weiss intentionally set the home on fire, causing it to be completely destroyed. Schubert made an insurance claim after the fire. Auto Owners agreed to pay only half, citing a provision in the policy saying it would pay no more than the “insurable interest” the insured had in the property. Schubert filed a lawsuit seeking the full amount, alleging breach of contract and vexatious refusal to pay. The district court ultimately found for Schubert on breach of contract, finding that the provision was both ambiguous and against Missouri’s valued policy statute. Auto Owners appealed.

On appeal, the Eighth Circuit first decided that it did indeed have jurisdiction, because the entire amount in controversy, $124,500, exceeded the $75,000 legal threshold. It then turned to the question of whether the Auto Owners contract provision did indeed violate Missouri law. The valued contract statute says the value of the property, as listed in the contract, is conclusive unless there was fraud or other wrongdoing. In the case of a total loss, the statute expressly says the settlement should be the amount for which the property was insured. To receive a settlement, the person should have an insurable interest — that is, suffer a financial loss from the property’s destruction or a financial gain from its preservation. This is true regardless of who has title to the property. Furthermore, it noted that Missouri law has generally granted full payments to part owners, absent substantial changes in ownership or strict definitions of interest. The Eighth also agreed that the clause at issue is ambiguous because it failed to define “insurable interest.” Thus, it upheld the district court’s decision and called for Schubert to recover the full policy amount.

This is good news for Missouri plaintiffs and Missouri personal injury attorneys like me, because it allows plaintiffs to recover more money to help them deal with their serious physical and financial injuries. I most often deal with insurance through auto accident cases, where insurance companies can be notoriously unwilling to pay claims, even when the language of their policies makes it clear that they must. Insurance companies routinely offer less than the claim is worth, relying on injured people not to understand their rights. Some insurers deny that the victims are as badly injured as they say, but they may also undervalue the vehicle or the cost of repairs. My job as a southern Illinois car accident lawyer is to fight for a full settlement, through negotiations or, if necessary, in court.

Continue reading "Eighth Circuit Upholds Voiding of Insurance Provision Limiting Recovery as Contrary to Public Policy – Schubert v. Auto Owners Ins. Co." »

Many times there are cases that seem confusing and hard to sort out. Someone is arrested for swallowing a large amount of drugs in an effort to conceal them, and dies when the police don't provide medical treatment. The police, who saw the man swallow the drugs, were clearly negligent — but the man was both breaking the law and willfully swallowing a fatal dose of drugs. Where does the greater degree of fault lie?

Then there are cases like this one, in St. Charles, where a woman was taken by ambulance to the hospital, and suffered a broken arm during the trip. The ambulance crew admitted openly to the injury and what caused it. The woman, suffering from leukemia and Alzheimer's, ultimately died as a result of the complications.

The break resulted from a near-accident in traffic. Disoriented and confused, she attempted to remove an IV from her arm en-route to the hospital. As the medic was attempting to restore the IV, the driver had to put on the brakes hard as the ambulance was cut off. Since the medic was holding her arm at the time, the shock of the braking broke her arm.

The woman's husband filed a wrongful death lawsuit, and as a result of the ambulance crew's openness, the case was settled a mere three weeks later for $50,000.

The details of the case are fairly awful. Her arm was never re-set after the accident, because her condition was too fragile for surgery. As a result, her last 20 days were very painful.

And yet, the woman's husband, an 83-year-old veteran of WWII, says he isn't bitter. He adamantly states that he doesn't want people to be afraid to call the ambulance in the event of an emergency. He said his primary dealings were with the rescue district's insurance carrier.

Once again, it is a sadly cut-and-dried case. The ambulance wasn't properly under control, and it was the responsibility of the district to pay for the injuries and wrongful death. That said, the fact that they were so honest may have cost them the $50,000, and sadly might make other groups hesitant to be so forthcoming about their culpability.

As a Missouri auto accident lawyer, I was interested to see a ruling in an underinsured motorist insurance case involving another part of the Eighth Circuit, North Dakota. Underinsured motorist insurance can be a lifesaver when you are hit by someone who does not have enough insurance to cover the damage they cause — but only if the insurer agrees to pay out. That was the point of contention in Jung v. General Casualty Company of Wisconsin, a case arising out of a serious injury to John Jung of North Dakota. Jung was hit by Richard Martin, whose insurance payout was not sufficient to cover all of Jung’s injuries. Jung and his wife, Janice Jung, sued Jung’s employer’s insurance company for access to its underinsured motorist coverage, but the district court denied this, saying Martin’s excess liability coverage made him not underinsured as a matter of law. The Eighth U.S. Circuit Court of Appeals agreed.

John Jung was at work, driving his employer’s truck, when he was hit by Martin and sustained serious injuries. The employer, Tooz Construction, carried a $1 million underinsured motorist policy. Martin had insurance for $250,000 per person and $500,000 per accident, plus a $1 million excess liability policy. The Jungs eventually settled with Martin and his insurer, Nodak Mutual, for $1.25 million, the limits of the excess liability and per-person insurance. They then claimed the underinsured motorist coverage offered by Jung’s employer’s insurance company, General Casualty, but this was denied on the grounds that Martin was not underinsured. The Jungs sued, and General Casualty moved for summary judgment, arguing that Martin was not underinsured as a matter of law. A magistrate judge’s report agreed, and summary judgment was granted. The Jungs moved to certify a question on the issue to the North Dakota Supreme Court, which was denied. They appealed both issues.

The Eighth Circuit started with the summary judgment ruling. Under North Dakota law, it said, a vehicle is only underinsured if the limits of its policy are less than the limits of the underinsured motorist policy the injured person seeks to collect from. Martin’s base insurance provided $250,000, the court noted, which is less than the $1 million limit under General Casualty’s underinsured motorist coverage. However, General Casualty argued that Martin’s excess liability policy of $1 million should be counted. The Eighth agreed. A North Dakota case finding UIM was appropriate did not apply here, it noted, because one policy in that case was disregarded for not covering the actual vehicle involved. By contrast, this case involves Martin’s own excess liability insurance covering the vehicle Martin owned and used in the crash. Other jurisdictions using a “gap” method to calculate underinsurance have come to similar conclusions, it noted. Thus, it upheld the summary judgment ruling. It also upheld the certified question issue, saying the Eighth Circuit generally does not allow certified questions after a case is decided, and it saw no need to ask the state high court to get involved.

This kind of case is relevant to my work as a St. Louis car crash attorney because insurance disputes can determine how much money my clients ultimately collect. This case did not specify what kind of injuries John Jung sustained, but they were likely very serious. Not only did the case say so, but the Jungs’ pursuit of the underinsured motorist coverage suggests that $1.25 million was insufficient to cover his injuries. That suggests something very serious, such as a head injury or paralysis, because the most serious injuries are also generally the most expensive. Permanently disabled people often need at least some help with daily life and frequent checkups, and they often cannot work anymore. All of this makes it worthwhile to go back to court for more compensation, even though, as a southern Illinois car wreck lawyer, I know court proceedings can be long, and sometimes upsetting.

Continue reading "Eighth Circuit Denies Uninsured Motorist Coverage Where Negligent Driver Had Excess Liability Policy – Jung v. General Casualty Co." »

Nebraska's Great Plains Regional Medical Center (GPRMC) and five of its doctors are being sued for the wrongful death of a GPRMC patient.

Charles Smythe died on July 23, 2009, and the suit is being filed on his behalf by members of his family. The wrongful death claim was filed in Nebraska's Lincoln County Civil Court. His death was ruled a result of perfusion failure.

The lawsuit maintains that the 85-year-old Smythe's death resulted from complications following a colonoscopy he was receiving at the hospital before his death. Further, the suit maintains that Smythe did not require a colonoscopy to evaluate his chief complaints at the time of treatment. The complications required an emergency surgery to correct the damage, and when it became clear Smythe was continuing to deteriorate, doctors made the call to discontinue life support and declined to perform CPR. These latter actions in particular were taken without any proper consultation of the Smythe family, according to Smythe attorneys.

"As a direct and proximate result of the negligence of the Defendants, Charles H. Smythe sustained unnecessary painful physical discomfort, mental agony and disability which resulted in his ultimate death," a local newspaper reports the lawsuit as saying.

The family of Smythe is seeking general damages, special damages, attorney's fees and all associated costs. Presumably this amount would include pain and suffering, loss of income, and the costs of hospitalization and the surgery Smythe was undergoing at the time of his death.

Representatives of the hospital were contacted, but declined to comment on the matter.

Colon perforation, which appears to be the underlying cause of the problem here, is an incredibly painful experience, and as demonstrated in the above incident, highly life-threatening. Given that men over 50 are encouraged to receive a routine screening via colonoscopy, the doctors administering one should have been aware of the nature of Smythe's complaints and not pushed an unnecessary procedure on the gentleman.

As a Missouri products liability lawyer, I was pleased to see a recent case from the Montana Supreme Court upholding a jury verdict in favor of a family that lost their 18-year-old son in an American Legion Baseball game. In Patch v. Hillerich & Bradsby Co., Debbie and Duane Patch sued the maker of the aluminum bat that was used in the game that killed Brandon Patch in 2003. They alleged that it improved the speed of baseballs so much that it enhanced the risks of playing baseball, and Hillerich & Bradsby should have warned users of those risks. In pretrial motions, the court declined to grant summary judgment to H&B on that issue, and also granted a motion to exclude a defense by H&B that users of the bats assume risks. At trial, the jury awarded the Patches $850,000 on the failure to warn claim. H&B appealed, but the Montana high court upheld that verdict.

The Patches originally brought claims for defective design, defective manufacturing and failure to warn, but the trial court granted summary judgment on the manufacturing defect claim. It also granted an in limine motion to exclude H&B’s assumption of risk defense. On appeal, H&B argued that it should have been granted summary judgment on the failure to warn claim because Brandon Patch was a bystander not entitled to make a failure to warn claim about someone else’s bat. The Montana Supreme Court replied that this is contrary to both Montana caselaw and the Second Restatement of Torts. Furthermore, it noted that the risks created by using a bat go beyond the user and the purchaser; any player is a consumer placed at risk. And warnings need not only be physically printed on the bat; manufacturers can also distribute flyers, posters, press releases, ads and even oral warnings.

The Supreme Court also took up the issue of whether H&B should have been permitted to make an assumption of risk defense. An assumption of risk defense argues that the injured person had discovered the risk, or the risk is open and obvious, and the injured person thus voluntarily assumed the risk by using the product. The high court agreed with the trial court that the defense does not apply here, however, because no evidence showed that Brandon Patch knew these bats posed an enhanced risk. Without such a showing, the assumption of risk defense would be inappropriate. Finally, the Supreme Court discarded H&B’s challenge to the jury instructions, finding there was nothing wrong with the instructions actually submitted to the jury. Thus, it upheld the verdict and declined to call for a new trial.

Because I am an experienced St. Louis failure to warn attorney, I appreciate that this decision preserve the family’s victory in court. Manufacturers of all kinds of products, from toys to automobiles to prescription drugs, are required to warn their products’ users about risks from using those products. As this case shows, it’s not enough merely to show that any use of a baseball bat carries a risk; the Patches had to (and did) argue that the particular baseball bat carried an unreasonable risk above and beyond the risks of other bats. This allows victims and their families to recover financial damages from companies that unreasonably fail to warn about risks. Perhaps even more importantly, it gives companies an incentive to make sure their products are free of defects and as thoroughly explained as possible. As a southern Illinois wrongful death lawyer, I know injured people would far rather have avoided the injury in the first place than collect money afterward.

Continue reading "Montana Supreme Court Upholds Jury Award in Failure to Warn Case Involving Death of Teen – Patch v. Hillerich & Bradsby Co." »

The family of a man who died in the custody of the Fitchburg, Massachusetts, police department (FPD) has filed a wrongful death lawsuit.

Defendants in the case include the FPD itself, Chief of Police Robert DeMoura, the city of Fitchburg and eight specific police officers.

23-year-old Tavarez Perez of Fitchburg was allegedly observed swallowing containers of cocaine and heroin shortly before police arrested him on August 1, 2008. He was held for the weekend with an arraignment scheduled for the following Monday, but he suffered a fatal overdose while in his cell on Sunday.

The nature of the case revolves around a charge of flagrant and willful neglect on the part of the officers who took Perez into custody.

In short, the police department shows no records whatsoever that Perez received any medical attention after being brought into the jail. This is despite the fact that multiple officers attest that they witnessed him swallowing the aforementioned drugs. Drugs can be stored in the human stomach for a brief period in small bags, but eventually these bags will burst if not removed, and the amounts swallowed were clearly significant. Yet again, nothing was done to remove the drugs from Perez's system.

Further, one of the officers making the arrest, Detective John Maki, was involved in a prior case where a suspect had swallowed a large quantity of drugs. The suspect in this incident became severely ill and had to be hospitalized. Since Maki had prior experience in the case, the Perez attorneys state that it should have been clear to him that Perez would be in similar danger, and that the detective therefore willfully disregarded his duty to maintain the safety of his detainee.

There is very little doubt that Perez broke the law, and bears a degree of responsibility for his actions. However, police are responsible for the safety of those in their custody, and the willful neglect of this responsibility, especially when one of the officers involved had experience in this very same situation, is nothing short of atrocious.