Missouri Injury Lawyer Blog

As a southern Illinois defective products lawyer, I know defects in auto products are among the deadliest product defects, because they expose their victims to high-speed auto accidents. Most drivers could stand to be a little more careful, but no matter how much care you use, you’re only as safe as your vehicle is. An alleged defect in a Lincoln Town Car killed a man and badly injured a woman in Jablonski v. Ford Motor Co., in which the Illinois Supreme Court ultimately rejected a large jury verdict in the family’s favor. John and Dora Jablonski were stopped in their Lincoln Town Car when Natalie Ingrahm caused a crash that killed John and left Dora permanently disfigured. Dora and her son, John Jr., won a $43 million verdict in Madison County court, but the Illinois Supreme Court reversed, finding that the evidence for negligent design was not sufficient.

The Jablonskis were heading home when they reached a construction zone and came to a complete stop. Ingrahm rear-ended them at 55 to 65 miles per hour. The crash sent a large pipe wrench in the Jablonskis’ trunk flying into the Town Car’s gas tank, which in turn caused a fire. John died and Dora was severely burned, causing permanent disfigurement. Dora and John Jr. later sued Ingrahm, who settled, and Ford. At trial, they alleged Ford had willfully and wantonly defectively designed the Town Car by placing the fuel tank vertically behind the axle; failing to shield the tank; and failing to warn consumers of the risk. The trial relied heavily on expert testimony on auto design, which noted that Ford has mostly moved away from placing gas tanks behind the axle and allegedly knows this placement is unsafe. It also included evidence of Ford adding gas tank shields to Crown Victoria Police Interceptors — which are designed on the same platform as the Town Car — but not warning the Jablonskis or other Town Car owners. This last theory had never been pleaded and was included in jury instructions over Ford’s objections. Ford appealed the ruling to an Illinois appeals court, and again to the Illinois Supreme Court.

Before the state high court, Ford argued that it should have won judgment notwithstanding the verdict because the plaintiffs did not present enough evidence that Ford breached any standard of care. The high court rejected this as to compliance with industry standards, saying Ford is wrong to argue that compliance with industry standards is enough to show no liability. However, it agreed with Ford that the evidence presented on risk vs. the utility of moving the fuel tank failed to show Ford was negligent. The evidence is too mixed to show that Ford chose an unreasonably dangerous design, it said. Finally, on the post-sale duty to warn count, it found that evidence for it was not truly submitted at trial. The high court also found the jury instructions improperly used language not adopted in Illinois and declined to adopt it. It said Ford’s choice to add shields to the Crown Victoria trunks was a voluntary undertaking that did not extend to civilian vehicles on the same platform like the Jablonskis’. Thus, it reversed the verdict and remanded to trial court.

As a St. Louis auto accident attorney, I know this is an ongoing issue with certain Ford vehicles. That’s especially true for police vehicles, which as this decision notes are frequently involved in high-speed crashes because of the nature of police work. In fact, Ford has recently stopped making the Crown Victoria Police Interceptor altogether. However, even those of us who just use cars to get to work and errands are subject to other drivers’ bad decisions, as the Jablonski family was. This, it’s likely that similar claims will continue to spring up in Illinois, Missouri and across the United States. Of course, the claims in any individual lawsuit may not stand up to legal scrunity. That’s why part of my job as a Missouri personal injury lawyer is to construct and defend my clients’ cases as carefully as possible.

Continue reading "Illinois Supreme Court Throws Out Jury Verdict in Auto Product Liability Case – Jablonski v. Ford Motor Co." »

The children of a slain Horton, Kansas, woman have filed a wrongful death lawsuit against their father, and against a man who has been sentenced to life in prison for the death of Patricia Kimmi.

According to the lawsuit, Roger Hollister, his wife Rebecca Hollister, and Eugene Kimmi conspired to cause the death of Patricia Kimmi. Roger Hollister was sentenced in Patricia's death this April.

The suit is seven pages long, and was filed in the civil division of the District Court of Atchison County. It lists four counts against the defendants: intentional infliction of emotional distress; negligent infliction of emotional distress; wrongful death; and civil conspiracy.

According to the civil conspiracy count, "defendants acted together and in concert to inflict physical injuries, severe mental anguish, pain and suffering, and extreme emotional distress on Patricia M. Kimmi, and ultimately, to cause her wrongful death" and “the defendants had a meeting of the minds in the course of such conspiracy with the intent of accomplishing the wrongful and illegal acts of the conspiracy.”

Eugene M. Kimmi II is listed in the charges as the representative of Patricia Kimmi's estate, as well as in his own person as defendant.

The suit is seeking a judgment against the defendants in excess of $75,000.

According to Atchison County Attorney Jerry Kuckelman, Roger Hollister intentionally and with premeditation killed Patricia Kimmi pursuant to an agreement or was a party to the agreement to have her killed.

Hollister was given a six-day capital murder trial, during which multiple witnesses and attorneys for both sides of the case argued that Eugene Kimmi played a contributory role in the death of his wife. However, Kimmi has not been charged in connection with his wife's death at this time.

Hollister was also sentenced to 70 months for aggravated battery and aggravated intimidation of a witness.

As a southern Illinois car crash lawyer and an experienced attorney in product liability cases, I know there are a lot of lawsuits alleging defective vehicles and vehicle parts that caused deadly rollover crashes. The Bridgestone/Firestone tire recalls a decade ago came after faulty tire construction sparked an unlikely increase in rollover crashes. This was made worse by the popularity of SUVs, a vehicle design that raises the vehicle’s center of gravity and thus increases the likelihood of a rollover. That contention was part of Show v. Ford Motor Co., an auto products liability case that ultimately did not survive its trip to the Seventh U.S. Circuit Court of Appeals. David Show and Maria Federici were in a Ford Explorer when another driver hit the left rear tire; the SUV rolled over and both were injured. The Seventh Circuit ruled that they could not continue their case, however, because they did not get an expert to testify on the safety of the vehicle design.

Show was driving the 1993 Explorer through an Illinois intersection at about 30 mph when the other driver hit the vehicle; Federici was a passenger. It was not clear who was at fault or how serious their injuries were. The plaintiffs sued Ford, arguing that the Explorer’s design made it inherently unstable and thus was defective. At the end of discovery, plaintiffs still had not retained an expert witness to discuss the vehicle’s design. The magistrate judge found that this made it impossible for them to establish their claim under Illinois law. Illinois requires plaintiffs to show either failure to perform according to reasonable consumer expectations, or that the design proximately caused the injury. The magistrate granted summary judgment to Ford and the plaintiffs appealed.

On appeal, the plaintiffs did not deny that lacking an expert would make it impossible to establish liability by showing an inherently defective design that proximately caused their injuries. However, they told the Seventh Circuit, ordinary jurors should be able to use their own experience to establish whether the vehicle failed to live up to reasonable consumer expectations. Though the Illinois Supreme Court — whose opinion controls the law in Illinois — has not ruled on the subject, several appellate courts in the state have found expert witnesses to be necessary when some parts of the product’s design are outside of ordinary experience. Under caselaw, the Seventh said, the question of what a reasonable consumer would expect is just one way of examining the issues surrounding whether the product is unreasonably dangerous. In this case, the court said, the design of the 1993 Ford Explorer came from experts and likely requires an expert to explain, even though many jurors own cars. Intuition is not enough, the court said; physics and higher math are involved.

As a St. Louis auto products liability attorney, I’m disappointed that these plaintiffs will not get a chance to finish their case. But as a rule, I use expert testimony in cases like this because it helps the jury understand the facts better. Experts are not necessarily on the side of the auto company; there are plenty of experts who have testified in the past decade about the dangerous proclivity of SUVs to roll over. (In fact, the National Highway Traffic Safety Administration has devoted several studies to addressing rollover problems.) And as the Seventh Circuit pointed out, a rollover accident can be described with physics and higher math. An expert can be expensive, and I prefer that costs to injured people be kept low — but as a Missouri product liability lawyer, I find expert testimony helpful.

Continue reading "SUV Rollover Case Cannot Proceed Without Technical Expert’s Testimony – Show v. Ford Motor Co." »

It's somewhat hard to believe, but earlier this week the final wrongful death suit stemming from the 9/11 attacks was dismissed from a New York court. After ten years and many personal struggles, the wrongful death claims that have been made in the wake of that fateful day have finally come to an end, for better or for worse.

The lawsuit was filed by Mary Bavis, mother of Mark Bavis, on her son's behalf. Mark was on United Airlines flight 175, the flight that struck and ultimately brought down the South Tower of the World Trade Center in New York. In short, the suit alleged that United and the airline's security firm, Huntleigh, were negligent in allowing the terrorists who hijacked the plane to board in the first place, a negligence that ultimately lead to Mark Bavis' death.

However, on the 19th of September of this year, Bavis and her attorneys filed papers agreeing to dismiss the suit. No details about the nature of a settlement have been released to the public. Attorney Joseph Rice, one of the councilors for the Bavis family, said, "A resolution was reached out of court between the Bavis family and the defendants."

The case was originally scheduled to go to trial on November 7th of this year. It now will go into the history books as the last of the 95 cases of wrongful death suits filed in the wake of the 9/11 terrorist attacks.

"We're pleased that the parties have resolved the case," said attorneys for security company Huntleigh.

The Bavis family declined to file a claim of compensation with the $7 billion compensation fund, in favor of filing the lawsuit against Huntleigh and United Airlines. Part of the issue is that the compensation fund included stipulations for not filing lawsuits, and limited the total payment. However, the Bavis family apparently feels the issue is settled, and now one aspect of this sad chapter in American history can come to a definite close.

As a defective products lawyer in Missouri, I’m quite familiar with the issue of lead paint in older buildings. Before the 1970s, paint often contained lead as one ingredient. However, its use was banned because lead is a neurotoxin that can cause brain damage; the danger is particularly acute for young children, who may eat or suck on sweet-flavored lead paint chips and peelings, and remodelers who stir up dust. Lead poisoning is permanent and causes brain damage; neurological symptoms like delirium and hallucinations; and physical symptoms like anemia, hearing loss and stunted growth. Lead poisoning was the allegation made in Sherwin-Williams Co. v. Gaines, a Mississippi Supreme Court ruling sending Trellvion Gaines and his mother back to lower court for further evidence.

Gaines was born in 1991, making him 20 years old at the time of the ruling. Early in his life, he lived with his mother and grandparents in a home built in the early 1900s, but which burned in 1994. Blood tests in 1993, when Gaines was two, found elevated blood lead levels; at 20, he has significant cognitive problems that he claims are the result of lead poisoning. Witnesses for Gaines testified that they had painted the home with Sherwin-Williams lead paint; Sherwin-Williams replied that it had stopped manufacturing interior lead paint in 1954 and all residential lead paint in 1972. After this court reversed a summary judgment decision, a trial court heard the case and a jury awarded $7 million to Gaines. Sherwin-Williams appealed, arguing that Gaines used witnesses who were unreliable, prejudicial and disclosed in an untimely manner; it also claimed the jury pool was biased.

On appeal, the Mississippi Supreme Court focused on the issue of whether Gaines sufficiently proved that his injuries were caused by exposure to lead paint. Gaines had just two lead tests, five days apart, showing elevated blood lead levels; his experts opined that he had been exposed from birth to the 1994 burning of the home. Sherwin-Williams argued that Gaines had been exposed only once, which is not enough for lead poisoning to cause brain damage. The high court found the experts employed by Gaines unreliable, in part because they relied upon one another for their diagnoses and in part because they were self-contradictory in places. Because Gaines underwent only two blood lead tests, both in the same week in 1993, expert testimony saying he had been chronically exposed to lead was speculation. And because speculation is inadmissible, and the experts did not sufficiently prove the connection between lead exposure and mental problems, the court said their testimony should not have been admitted. Thus, the high court reversed the verdict and remanded on the issue of causation.

Cases like this are important for me as a southern Illinois product liability attorney, because lead paint is one of the most widespread dangers for children in the United States. Any home old enough could have lead paint, and parents don’t always realize the problem exists. Lead paint lawsuits are not as common as other product liability lawsuits, like defective toys or unsafe drugs, but they still affect families all over the United States. Like almost all product liability cases, poisoning of children from lead paint is tragic and completely unnecessary. The same child growing up in a different home could easily avoid lead poisoning and live up to his or her full potential, including mental potential as well as physical health. As a St. Louis personal injury lawyer, I always prefer to prevent harm — but if it happens anyway, I believe the at-fault people should be held legally responsible.

Continue reading "Mississippi Supreme Court Reverses Verdict for Lead Paint Victim Based on Experts’ Speculation – Sherwin-Williams v. Gaines" »

Civil rights groups and the family of James Anderson have joined together to file a wrongful death lawsuit against a group of white teens who allegedly beat and killed Anderson because he was black.

The Anderson family filed a claim seeking damages from seven teens, all from the predominately white suburb of Jackson, Mississippi. The complaint states that the teens went into the city after a night spent drinking, where they used profane and inflammatory language to target any black people they encountered.

At a hotel parking lot, they found Anderson. There, they began harassing and beating him. According to the complaint, some of them allegedly used the racist term "White Power" during the attack. Ultimately, Anderson was run over and killed.

To quote the complaint itself, "We allege that all seven individuals took part in what we called a joint venture, to seek out and do harm to a person of color; in this particular instance it was James Craig Anderson, a black individual, whom they did murder."

Investigators say there does not seem to be any reason they would have targeted Anderson other than the color of his skin. The 48-year-old automotive worker did not seem to have any money on his person at the time of the beatings, and even a robbery would not have merited the savagery exhibited in the attack, which was caught on the motel security camera.

The wrongful death suit comes alongside other charges that have been filed in the case. The alleged driver of the vehicle was Deryl Dedmon, who is currently in jail on capital murder charges. Defendant John Aaron Rice has also been charged, though with the lesser crime of assault.

Specifically, the case has drawn the attention of the Southern Poverty Law Center, a group responsible for tracking hate groups and hate crimes, particularly across the southern United States.

Here in Missouri, we follow a legal doctrine called pure comparative negligence that can have important consequences for people with serious personal injuries. In my work as a St. Louis personal injury attorney, I am frequently asked whether it matters that the injury was partly the fault of the injured person, and of course this is a defense to an injury lawsuit. Fortunately, our state allows financial recovery even when you are partly at fault; your financial damages will simply be reduced according to the amount of fault you bear. In Arkansas, this is only true if the injured person is 49 percent or less at fault; a greater proportion of fault means the victim cannot recover at all. That led to protracted litigation in Dupont et al. v. Fred’s Stores of Tennessee, a decision by the Eighth U.S. Circuit Court of Appeals in a case involving a woman’s injury from falling bins at a retail store.

Paula Dupont asked an employee at Fred’s Stores in Holiday Island, Ark., to get some plastic bins off the top shelf so she could look at them. She decided not to buy them and moved into other parts of the store, but returned later. That’s when she says the plastic bins fell from the top shelf onto her head, causing a concussion and strain to her neck. She did not describe the incident in detail, but store employees felt it was necessary to have a friend pick her up from the store. The Duponts allege the concussion caused personality changes, depression and continuing problems with memory, concentration and focus. They sued Fred’s Stores for premises liability and failure to adequately train its employees. Before trial, the Duponts unsuccessfully moved to exclude all evidence of Paula Dupont’s possible contributory negligence, arguing that Fred’s Stores was not pleading contributory negligence and there was no evidence that she had been negligent. The district judge allowed the store to cross-examine Paula Dupont on the issue. He also allowed jury instructions that included the possibility of contributory negligence, over their objections. The jury found for Fred’s Stores and the Duponts appealed the contributory negligence issues.

On appeal, the Duponts argued that Fred’s Stores forfeited a contributory negligence defense by failing to plead it before the deadline to amend had passed. The Eighth Circuit agreed to a point. But it said failing to raise a contributory negligence defense does not bar a defendant from introducing any evidence related to the plaintiff’s behavior. Thus, denying their pretrial motion was not an abuse of discretion. It next turned to the jury instructions issues. The Duponts had proposed to instruct the jury on a theory of res ipsa loquitur (“the thing speaks for itself”), which was rejected, and objected fruitlessly to jury instructions 16, which was inconsistent with res ipsa loquitur, and 14, which implicated contributory negligence. The Eighth said the district court was correct to reject the res ipsa loquitur instruction, because it was not clear that Fred’s Stores had exclusive control over the plastic bins; any customer could have disturbed them. For the same reason, it rejected arguments about instruction 16. Finally, the appeals court said instruction 14 may or may not have been erroneous, but it was ultimately harmless. After all, the instruction did not prevent the jury from finding that Fred’s Stores was ultimately completely responsible. Thus, it affirmed all of the district court’s rulings. Judge Melloy dissented, arguing that instruction 14 was in clear error under Arkansas caselaw, and that the store could have foreseen that another customer might disturb the plastic bins in an unsafe way.

As a Missouri premises liability lawyer, I agree with this dissent. The legal doctrine of premises liability — which gives businesses a responsibility to ensure their premises open to the public are safe — requires employers to take action on reasonably foreseeable risks. This means things like clearing ice off a front walkway, but no obligation to guess that something unusual and unsafe might happen. I agree with the judge that it is reasonable to guess that customers might disturb items on any shelf, even a top shelf, and that heavy items stored on high shelves might end up disturbed in an unsafe way. Thus, the underlying safety issue was still in the control of the store. As a southern Illinois slip and fall attorney, I represent clients from many backgrounds who were injured on someone else’s property, and control over the underlying safety hazard is always, always an issue.

Continue reading "Juries May Consider Plaintiff’s Conduct Even When Contributory Negligence Not Pleaded – Dupont v. Fred’s Stores of Tennessee" »

The parents of a University of Missouri student have filed a wrongful death suit against the driver of the motorcycle she was riding when it crashed, killing her. Caitlin Valora was riding as a passenger on Aaron Hansberry's motorcyle early in the morning of August 9, 2010. As a result of the accident, Hansberry has been charged with involuntary manslaughter.

Hansberry apparently drove through a red light around dawn that morning, only to drive into the curb at the T-intersection of the road on which they were traveling. Hansberry was apparently moving at a very high rate of speed at the time. Further compounding the speed issue as Valora went flying off the bike was the fact that she appeared not to be wearing a helmet. Valora flew over 65 feet from the site of the impact; she received very serious injuries as a result of her fall from the vehicle, and later died as a result.

Hansberry's accident occurred sometime between 5 a.m. and 7 a.m., but he apparently did not report it until 11 a.m. It is believed that his blood alcohol level was well above the legal limit at the time of the accident, which probably contributed to his apparently reckless and dangerous behavior.

Valora's parents have filed a suit that states Hansberry violated numerous traffic laws, including driving at a high rate of speed, failing to stop or slow down at a light and driving while intoxicated, the combination of which caused Valora to suffer greatly from multiple injuries before she died.

Interestingly, the lawsuit also names Hansberry's father, Roger Hansberry. This portion of the suit states that Roger should have known that the younger Hansberry was too inexperienced and reckless to be operating a motorcycle, particularly with a passenger. Hansberry was 21 at the time of the accident.

The news reports do not mention any particular judgement that was sought, nor the monetary value of said judgments. A court date has apparently not been scheduled, either, indicating that these proceedings may, as is usually the case in a wrongful death matter, take a bit of time to properly develop.