Missouri Injury Lawyer Blog

The parents of Florida A&M University (FAMU) band member, Robert Champion, have filed a wrongful death suit as of last Monday; specifically against the owner and driver of the charter bus where they allege a brutal hazing ritual took place. The lawsuit maintains that the company's managers have told drivers to ignore hazing rituals among students.

The lawsuit further alleges that the driver of the bus stood guard outside the vehicle the night Champion died. The driver allegedly forced the drum major back onto the bus after Champion got off the bus in order to vomit, although the suit does not stipulate how Champion was forced to do so.

Fabulous Coach Lines owner, Ray Land, sent an email saying that he needed time to prepare a statement regarding the case. Last year, he told the Associated Press that the driver was helping students unload instruments when Champion fell over.

The suit further reveals new details regarding the hazing that Champion allegedly suffered before he died. Two types of hazing were mentioned. In the first, pledges of the band clique Bus C were forced to run a gauntlet from the front of the bus to the back while other band members attacked them with slaps, kicks, hits and trips. Pledges who fell were stomped, then dragged to the front of the bus in order to make them run the gauntlet again.

The second ritual was called 'the hot seat,' in which a pillow case is placed over the pledge's face while forcing them to answer questions. Answering a question correctly allowed the pledge to breathe for a moment before the next question was asked, while failing to provide the correct answer meant the pledge had to answer a new question without the mask being removed.

"Am I suggesting that this bus driver hit him? No," Champion family attorney, Chris Chestnut, said. "Am I suggesting that she knowingly aided and abetted? She opened a bus, it was running, the air condition is on. If that's not participation, then I don't know."

The school's board of governors, overseeing Florida's 11 public universities, opened an investigation this past November into allegations FAMU officials had ignored prior warnings about hazing incidents. The Florida Department of Law Enforcement is conducting its own separate investigation into the band's finances.

As a Missouri auto accident attorney, I know how difficult it is to sue a state agency. Defendants that are government agencies are free to make special rules to protect themselves from liability, usually meaning shorter deadlines to sue, special notice requirements and more. Because these cases often allege a negligent lack of focus on safety, they often require the support of expert testimony, which means plaintiffs also must ensure they have a safety expert who will explain the issues to a jury of laypersons and meet the court’s standards. This was the sticking point for Keevy Dubiel in Dubiel v. Montana Department of Transportation. She lost her husband, Jerome Dubiel, when he was temporarily stopped on the highway during a storm and a tree fell on his car. The Montana Supreme Court affirmed that Dubiel needed expert testimony to establish the standard of care the state should have used.

Jerome Dubiel was stopped on Montana’s Highway 35 because of a windstorm that had blown trees and power lines and poles onto the road. The Montana Department of Transportation was on the road clearing these obstacles, forcing him to wait. As he waited, however, another tree fell on his vehicle, killing him. Shortly afterward, the MDT closed the highway altogether, although it claims in this case that it did not know of the death when it made that decision. About 18 months later, Keevy Dubiel filed suit against the MDT on behalf of herself, the estate of her husband and their two minor children. She alleged that the MDT’s failure to close the road earlier was negligence that led to his death. She retained an expert to establish the family’s economic losses, but not one to establish the standard of care that the MDT should have used. The MDT eventually moved for summary judgment, saying Dubiel could not prove her case without an expert. Dubiel countered that no expert was required because the MDT’s own policies set forth the appropriate standard of care. The trial court found for the MDT and granted summary judgment.

The Montana Supreme Court upheld that decision, finding an expert is necessary to establish the standard of care for road closures. As with all negligence lawsuits, the court said, Dubiel must show the MDT owed her family a duty of care and breached that duty; this requires establishing a standard of care the agency breached. Dubiel argued that the standard is clearly laid out in MDT policies and procedures for road closures, which expressly mention high wind; she claims a jury does not need an expert to explain that conditions are not safe when high winds are blowing trees onto the road, where they land on cars. By contrast, the MDT argued that the average person cannot know what factors it must take into account when closing roads, including the capacity of other roads to handle rerouted traffic and the disruption to local travel. The high court agreed. The numerous interrelated factors affecting the MDT’s decisions aren’t readily obvious and can’t be derived from its official policy, the court said. Thus, the trial court was right to find that Dubiel cannot prove her case without an expert witness, the Supreme Court said.

As a St. Louis car crash lawyer, I sympathize with Dubiel’s position. For someone standing on a road with downed trees, the danger would indeed seem very obvious. The court found that factors other than those a motorist can easily observe also matter, however. The most damaging thing about this decision is that Dubiel may not now re-file her lawsuit and try again, because she has already lost it once. It’s only under rare circumstances that plaintiffs may pursue the same case more than once, and those circumstances are generally extraordinary, such as when they were victims of deception. As a result, it’s absolutely vital for plaintiffs and southern Illinois motor vehicle accident attorneys to make sure their cases are solid the first time around.

Continue reading "Montana Supreme Court Finds Plaintiff in Highway Safety Case May Not Sue Without Expert Testimony – Dubiel v. Montana Department of Transportation" »

Rita Marie Bruce, the widow of a semi truck driver, has agreed to settle her wrongful death lawsuit filed in 2011 in the name of her husband. The suit was filed against H&M International Transportation Inc., Brookwood Insurance Company (H&M's insurance carrier), and Isaac Whitlock, an H&M driver. The agreement was filed on February 8th of this year between the widow and Brookwood Insurance Co. The settlement was for a total of $59,957 on behalf of her deceased husband, James L. Bruce.

Mississippi papers showed via court documents that Brookwood Insurance also included a confidential sum of money in addition to the settlement, as compensation for the injuries and death of James Bruce, as a manner of compromise settlement.

The lawsuit was filed against H&M and their driver, Isaac Whitlock, following the accident on July 21 in 2009. According to the lawsuit's documents, Whitlock was driving slowly and without proper lighting on his vehicle. Her husband therefore didn't see Whitlock's vehicle in time, and rear-ended the larger vehicle with his semi. This caused an explosive accident, killing Bruce almost instantly on Highway 78, near the Myrtle exit in Mississippi's Union County.

Many lawsuits do not always require a full trial, even wrongful death suits. Settlements are actually a fairly routine occurrence, and can be a valuable way of resolving the matter at hand, giving the plaintiffs money with which to pay court and legal costs, settle outstanding bills from funerary and other expenses, and in general have a way to start moving on with their lives.

Negligence is a frighteningly common cause of wrongful death incidents. People failing to signal when turning, or failing to observe basic maintenance on vehicles, or simply driving well past the point they should be, can all contribute to serious accidents such as that suffered by Mr. Bruce. The loss of a loved is difficult enough without having to think that it was caused by the negligent activities of another driver.

As a Missouri product liability attorney, I was interested to see a product liability case out of Arkansas in which the injured person had bought the product secondhand. In Yanmar Co. Ltd. V. Slater, Wanda Slater sued various Yanmar entities, the makers of a tractor involved in the accident that killed her husband, Rudolph Slater. Slater had purchased the tractor secondhand from Chris Elder Enterprises, which bought it from Yanmar Japan. An Arkansas state-court jury awarded Slater $2.5 million in damages for strict liability, breach of warranty, negligence and more, but the Arkansas Supreme Court reversed and dismissed. It found that there was no personal jurisdiction over Yanmar Japan and that Yanmar America owed no duty of care to Rudolph Slater.

The Yanmar tractor in question was manufactured in 1977 and used in Asia until it was sold by a Vietnamese company on the “gray market” to a Texas company that auctioned it to Chris Elder Enterprises. Elder testified that the tractor had been refurbished and gotten cosmetic upgrades like new paint and did not look like a 30-year-old tractor, but had had a part added and another part substituted. Just a few days after buying it, Rudolph was using it to mow grass on a slope when it rolled over, killing him. Wanda Slater sued Yanmar Japan, Yanmar America, Chris Elder Enterprises and later, the Texas and Vietnamese companies. She alleged fraud, strict liability, breach of implied and express warranties, negligence, failure to warn and violations of Arkansas law. Chris Elder Enterprises settled; a jury ultimately split liability between Yanmar America, Yanmar Japan, the Texas company and Rudolph Slater. The Yanmar defendants appealed to the Arkansas Supreme Court.

That court started with the allegation by Yanmar Japan that the Arkansas state court did not have personal jurisdiction over it, and thus should have granted a directed verdict in its favor. The lower court found the requisite minimum contacts with Arkansas through Yanmar’s sales in the state, and through Yanmar Japan’s relationship with Yanmar America. But under recent U.S. Supreme Court precedent, the Arkansas high court found, this would violate Yanmar’s due process rights by holding it liable for sporadic and random contacts, and it cannot be said that Yanmar Japan is Yanmar America’s alter ego. It turned next to Yanmar America’s argument that it had no duty of care to Slater because it did not design, manufacture, sell or import the tractor; Yanmar Japan made it and third parties imported it, and the two Yanmar entities are separate. The Arkansas high court agreed, adding that there was also no liability imputed by the Yanmar entities’ attempts to stop “gray market” imports; this is not enough to constitute assuming a duty. Thus, it reversed the decision and dismissed the case.

This decision involves issues that affect me as a St. Louis defective product lawyer, which is why I’d be pleased to see more about the jurisdiction issue. Any time a company from out of state is involved in this kind of case, that company may be able to use a jurisdictional defense. Whether the defense works is a different question, of course, and depends a lot on whether the company does enough business in the state. When the contacts are not obvious and clear, as in this case, the issue is likely to come up. However, I’d like a closer examination of the Supreme Court case cited in this case, because the Arkansas court interpreted it to broadly limit jurisdiction over foreign entities. As a southern Illinois personal injury attorney, I believe it’s a vital part of victims’ rights to have access to the courts no matter where they happen to live.

Continue reading "Arkansas Supreme Court Dismisses Product Liability Case Over Alleged Defective Tractor – Yanmar Co. Ltd. V. Slater" »

Rachel Flores, of California, has filed a wrongful death suit on behalf of herself and her two daughters following the death of her husband from mesothelioma in 2008.

Flores's husband did construction work on a building owned and operated by the Kmart corporation in 2002 and 2003. During the work he was exposed to asbestos, which ultimately led to his death from the incurable, inoperable lung cancer mesothelioma. However, before he contracted symptoms, Kmart's reorganization and bankruptcy claim discharged all existing and unmade claims. This led to the initial attempt by Flores to file her lawsuit being dismissed by a trial court.

The family was not going to accept this decision, however. They took the case to a California Appeals Court, and argued that this was a violation of the fourteenth amendment rights of the family. In part, the amendment states "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

While it is true that in legal standing for bankruptcy such as Chapter 11 reorganization, debts and claims are discharged, this decision was argued to be in violation of the privileges of the Flores family. In particular, there was no reasonable way that Mr. Flores could have known about the ramifications of Kmart's Chapter 11 activities, nor was he likely to understand that he was at risk for mesothelioma following work on that particular building. In short, using the Chapter 11 reorganization as a shield violated the family's right to due process.

The California Appeals Court agreed with the Flores's argument and vacated the earlier ruling, claiming that the case could proceed legally. It is unknown whether Kmart corporation will decide to reach an independent settlement with the family, or continue to see the case through the courts. At this time, the Flores family is determined to see the case through.

As a Missouri auto products liability lawyer, I was interested to read an Oklahoma Supreme Court opinion upholding quite a large verdict in a case involving brake failure. In Covel v. Rodriguez et al., the family of H. K. Covel sued Rodriguez Transportes, its owners and its insurance company, alleging the brakes on a Rodriguez bus were defective in the accident that took Covel’s life. After a jury award for $2.8 million in compensatory damages and $5,000 in punitive damages, the defendants appealed, arguing that the plaintiffs’ expert testimony was inadmissible. The Oklahoma Court of Civil Appeals reversed, but the Oklahoma Supreme Court restored the verdict, noting that the defendants waived their appeal by failing to object to the expert at trial.

The Covel family asserted at trial that H. K. Covel was struck in traffic by another driver’s car, pushing his pickup truck into the oncoming lanes of traffic. There, Covel’s truck collided almost head-on with the bus, killing him at the scene. They alleged that faulty brakes on the bus made it harder to avoid the accidents. The Rodriguez defendants maintained that even if their brakes were defective, their driver could not have avoided the accident and the brakes were not a cause. After the jury’s decision, the defendants moved unsuccessfully for judgment notwithstanding the verdict or a new trial, then appealed. The Court of Appeals reversed with one judge dissenting. It acknowledged that the defendants never raised objections to the plaintiffs’ expert testimony, and that admitting the evidence was not fundamental error, but still found that the testimony was legally insufficient on Daubert grounds.

On appeal to the Oklahoma Supreme Court, the plaintiffs argued that the expert testimony argument had been waived and therefore the appeals court’s decision was improper. Defendants countered that the admissibility is a question of law properly before the court. Citing federal precedent, the high court decided in favor of the plaintiffs. The Tenth Circuit has held that failure to object to expert testimony forfeits a Daubert challenge, it said; objecting creates an opportunity to clarify as well as rule. Trial courts are not required to challenge expert testimony without an objection. Similarly, Oklahoma rules require parties to object in order to establish that the expert’s testimony is unreliable. Thus, any error in this expert’s testimony is waived on appeal, the high court found. It further agreed with the court of appeals that there was no fundamental error in this case. After reviewing the testimony by both sides’ experts, the court found that the jury had sufficient evidence for its decision. It also dispensed with a slew of objections about how the trial was conducted before affirming the trial court’s decision.

This decision is pleasing to southern Illinois products liability attorneys like me. To establish liability in almost any product defect case, it’s necessary to have an expert testify. The safety of a consumer product’s design is almost always a specialized topic not easily understood by jurors unless they happen to work in a related field. As a result, any case involving defective automobiles or their parts is vulnerable to a challenge to the expert witness’s credibility. In cases where courts agree that the expert didn’t have the right background or didn’t adequately make the case, losing the expert sometimes leads to dismissal because the plaintiff simply can’t find someone else in time. As a St. Louis motor vehicle accident lawyer, I prefer to win or lose on the merits of my cases, not on procedural grounds.

Continue reading "Oklahoma Supreme Court Upholds Use of Expert Testimony in Brake Failure Case – Covel v. Rodriguez et al." »

John Goodman, who has been accused of the wrongful death of Scott Wilson, has chosen an unusual move to try and protect his assets in the civil lawsuit that has resulted: He has adopted his girlfriend as his daughter.

Goodman allegedly ran a stop sign and in so doing, killed Wilson in 2010. The lawsuit has called for substantial damages, and that's what has led to this extremely bizarre attempt by Goodman to protect his assets.

He had previously set up a major portion of his assets as a trust for his two current children. Adopting his girlfriend as his daughter allows her access to another portion of his assets through the same trust, dividing his belongings into thirds among his children.

The move is basically an attempt to further complicate the proceedings. Depending on how the trusts are set up, the assets may be considered the property of Goodman's children and thus exempt from the lawsuit. On the other hand, the courts could easily rule that any of the children, including the recently adopted Heather Hutchins, are not permitted to collect from the trusts until the suit has been settled and the damages properly allocated.

But more than anything, this kind of behavior illustrates the sheer audacity and chicanery a wrongful death defendant might try in an effort to protect their money. Tax shelters and offshore accounts are one thing, but adopting a longtime romantic partner as a daughter, solely in an attempt to limit what the plaintiff may attempt to claim as damages, shows an outright contempt for the legal process -- the rich claiming access to special loopholes not available to a suffering family.

State officials described it as an abuse of the adoption laws of Florida, which are meant to protect and promote parent-child relationships, not this kind of farcical behavior.

As a Missouri auto accident attorney, I know uninsured motorist benefits are some of the hardest to get from an insurance company, even if the facts are clearly on the driver’s side. Insurance companies like collecting premiums for uninsured motorist claims, but after an accident, they will often use a hit-and-run or other facts that are hard to verify as an excuse to deny coverage. That was the claim made by Larry Squires in Allstate Property & Casualty Insurance Co. v. Squires, a decision by the Third U.S. Circuit Court of Appeals. Squires was injured after swerving to avoid a box left in the road; the parties stipulated that an unidentified vehicle dropped the box. Allstate received a declaratory judgment in Pennsylvania state court that it did not owe Squires a settlement. The Third Circuit reversed, finding that direct contact with the uninsured vehicle was not necessary under the policy.

Squires put in a claim for uninsured motorist benefits after his accident. The relevant part of the disputed policy says Squires may recover for bodily injury “aris[ng] out of the ownership, maintenance or use of an uninsured auto.” Pennsylvania state law defines an uninsured vehicle to include “an unidentified vehicle that causes an accident resulting in injury,” provided that the victim report it to authorities and his or her insurance company. Allstate filed for a declaratory judgment that it did not owe benefits under the policy; Squires filed counterclaims for insurance bad faith and breach of contract. The trial court granted judgment on the pleadings to Allstate and dismissed the claims by Squires, finding that the sole issue was whether the box-related accident arose out of the “ownership, maintenance or use” of an automobile. It did not, the court said, and found that the policy only applied to accidents caused directly by a vehicle.

Squires appealed, arguing that contact with a vehicle was not necessary under the language at issue. The Third U.S. Circuit Court of Appeals ultimately agreed. Seeking to understand what the Pennsylvania Supreme Court would do, it examined Pennsylvania caselaw and concluded that under the “arising out of” language in his policy, Squires can avoid summary judgment by alleging that the unidentified vehicle’s use caused his injuries. The court cautioned that more may be needed to ultimately make a recovery. It also rejected a case heavily relied on by the district court, in which uninsured motorist benefits were denied to a boy who suffered injures as he bicycled, when another boy intentionally threw hay from the back of a truck. In that case, the injury was caused by the hay-throwing boy, the court said, but in this one, the falling box was a direct consequence of the use of the unknown vehicle to transport cargo. The appeals court noted that Pennsylvania’s auto insurance statute is to be construed liberally and in favor of the insured in close cases. Thus, it reversed and remanded the case.

This ruling is good news for Squires and other Pennsylvania drivers. This decision clears the hurdle of whether the policy language applies to his case. Though the appeals court correctly noted that Squires must still prove his breach of contract and bad faith claims, he can now say his claim for insurance is valid. Thus, he may be able to collect the settlement and move on without worrying about proving the bad faith and breach of contract claims. It’s common, in my experience as a southern Illinois car accident lawyer, for insurers to narrow in on specific policy language as a reason to deny coverage. That’s why it’s important for accident victims to come to a St. Louis car crash attorney like me as soon as possible after realizing they’re not being dealt with fairly. Though negotiations and, when necessary, litigation, we can sometimes reach a fair settlement without the hassle of a trial.

Continue reading "Third Circuit Permits Lawsuit Claiming Uninsured Motorist Benefits for Accident Involving Road Debris – Allstate v. Squires" »

Several weeks ago, Illinois resident David Pittas discovered something terrible had happened. He found his son, 26 year old Timothy Pittas, caught in the machinery of a salt-spreader owned by the family business. Timothy had fallen against the auger -- the device which spreads the salt, and his clothes were immediately tangled in the machine, ultimately strangling him.

“The only reason we’re doing this is so no other person has to go through what I’m going through, or what my wife is going through or my (other) son is going through or my daughter is going through. It’s wrong to bury your son, and it’s wrong that we had to. If I can save one other person’s life with this, then Tim didn’t die in vain," said David Pittas when asked about the nature of the suit.

According to the documents of the lawsuit, Timothy was outside using the spreader when his clothes were snagged and he was killed. David came out to check on Timothy, only to find his son's lifeless body. The suit is naming the manufacturer and the stores selling this model of salt spreader as defendants in the suit, hoping to prevent such accidents in the future. Named in the suit are Buyers Products of North Dakota who manufactured the spreader, Rockenbach Chevrolet who sold the truck and spreader, and Rugby Manufacturing Company of Ohio, who is believed to have installed the spreader. Pittas is seeking damages in excess of fifty thousand dollars in compensation for his son's death. None of the defendants have commented on the case.

David Pittas closed his comments by saying, “It is very difficult for me at the business. It’s where he died. It’s the place he took his last breath, and I see that, and I get real sad — and I get real sad about how horrific his death was.”