Missouri Injury Lawyer Blog

Tenth Circuit Rules Insurer Has Duty to Defend Suit Over Fall Down Elevator Shaft – Western World Ins. v. Markel American Ins.

Wed, 16 May 2012 09:47:02 -0600

As a Missouri personal injury attorney, I spend a lot of time helping my clients deal with insurance companies. Most injury claims can be paid by an insurance company for the wrongdoer – an auto insurance, property insurance or other policy that covers injuries on the premises or by the covered person. Of course, insurance companies prefer not to pay any money; their ability to make a profit depends on collecting premiums but paying as little as possible in benefits. As a result, they resist covering an injury in any case where they think they can, which leads to disputes. In Western World Insurance Co. v. Markel American Insurance Co., insurance companies were pitted against one another when one refused to defend a lawsuit another had agreed to defend.

The case stems from injuries to Tyler Hodges of Oklahoma City, who was injured while he worked as a ticket-taker at a haunted house. Hodges had to replace a flashlight that had died, so he walked through the house using the light of his cell phone, but turned off that light when an actor complained that it was ruining the illusion. Hodges was trying to reach the house’s freight elevator, where spare flashlights were kept. But due to the lack of light, he didn’t notice there was no elevator on his floor, stepped in and fell 20 feet down the shaft. Though Hodges received a settlement years ago, the haunted house company, Brewer Entertainment, had two insurance companies that fought over who would cover the payments. Western conceded liability, but Markel refused to pay claims, which eventually led Western to sue Markel for half the cost of defending the case. The federal district court found that an escape clause in Markel’s policy permitted it to escape otherwise valid liability and granted summary judgment.

Western appealed, arguing that the escape clause does not take away liability. The Tenth U.S. Circuit Court of Appeals ultimately found that when viewed in context, the clause does not take away liability. Read in isolation, the clause – from a later endorsement to the policy – says that an “insured” does not include any entity that already carries any other insurance, even if that other insurance has been exhausted. But when inserted into the main policy as intended, the Tenth said, it’s clear that the exclusion applies only to the list of entities that count as insureds under the policy. Markel argued that the language is broad enough to apply to the whole policy, not just this list or its final item. But another clause in the policy requires Markel to split the costs of coverage evenly with other primary insurance, the Tenth noted, which would be in conflict with the reading of the escape clause Markel prefers. In a case of ambiguity (or purported ambiguity), the Tenth said, Oklahoma law breaks the tie in favor of the insured, which means Markel must pay. Thus, it reversed the summary judgment order and remanded the case.

I’m pleased to see this victory against an insurance company that seemed to be attempting to wiggle out of its legal duty to defend the case. As the Tenth Circuit observed, insurance companies are willing to squander a great deal of time and money to avoid their obligations, even though it would be simpler to draft contract language that clearly outlines their responsibilities and exclusions to begin with. As a St. Louis premises liability lawyer, I suspect that ambiguities, whether intentional or not, are useful to insurance companies that want to avoid their obligations when an expensive case comes up. It’s not clear what the injuries were in this case, but a 20-foot fall down an elevator shaft certainly sounds grim. Hodges most likely argued that the haunted house company had a legal obligation to make its premises safe for visitors and employees. As a southern Illinois slip and fall attorney, I know this obligation applies to almost any business that invites the public to visit.

US Drug Safety Tracking Insufficient, Says Study

Wed, 16 May 2012 04:30:00 -0600

In addition to its role in verifying drug safety in pre-commercial trials, the FDA should play a role in regularly re-evaluating already approved medications to determine if new safety issues have cropped up over a drug's lifetime, according to a new study by an independent review board.

The Institute of Medicine has suggested that every drug should be periodically reviewed the entire time it's on the market, so as to better keep consumers aware of additional safety issues that crop up over a drug's marketable lifetime. This information should ideally be included in several sources, according to the study. This could include product packaging, but primarily is intended to be placed in a centralized, easily accessible document or database that receives periodic updates about drug safety issues. Ideally, this document would be easy for consumers to access and examine when they have questions about a drug and its potential effects.

The FDA is in no way bound by the IoM's recommendations -- the IoM is not a governing body. The FDA acknowledged the merits of the idea, but expressed reservations about the cost. Medical testing is already an expensive proposition for the FDA to oversee, and adding additional long-term oversight to the matter could cause the Administration to require extensive funding increases.

Currently, the FDA is only required to evaluate a drug's safety issues at one of two points -- when the drug has been prescribe to at least 10,000 patients, or 18 months after the drug goes to market, whichever is later. Further, the FDA relies on side effect reports from the drug makers themselves, or from patients who have been taking the medication. The conflict of interest in the former case is obvious. Patients, particularly those on multiple medications or a new medication for the first time, can often have trouble distinguishing between side effects and whether they should report them. From a safety standpoint, expanded oversight cannot be a bad thing in such a case.

High Court Vacates Summary Judgment in Case Alleging Sign Caused Crash – McIlroy v. Gibson’s Apple Orchard

Fri, 11 May 2012 08:27:25 -0600

As a St. Louis car crash attorney, I handle cases caused by all kinds of human error. Most of them have to do with errors behind the wheel by one or both drivers, but sometimes, a third party is responsible. That would be true if the wreck was caused or worsened by a poorly maintained road, inadequate signage or signals, obstructions to drivers’ views or other non-driver factors. In McIlroy v. Gibson’s Apple Orchard, the Maine Supreme Court ruled that James McIlroy should be permitted to make the case that his accident was caused by a commercial business sign that obscured drivers’ views. McIlroy was nearly hit by Charlotte Small as he passed the sign for Gibson’s Apple Orchard, lost control of his motorcycle and suffered injuries. The trial court granted summary judgment to Gibson’s, but the Maine Supreme Court reversed, saying a jury could reasonably find the sign caused the crash.

Gibson’s places an eight-foot temporary sign at the corner of Route 2 and North Road in Bethel, Maine, during apple-picking season. On the day of the accident, McIlroy was heading west on Route 2 through the intersection and had the right-of-way; Small was on North Road at the corner with the sign. According to McIlroy’s testimony, Small pulled into his lane of traffic, causing him to lose control of the motorcycle and crash. McIlroy argued that the sign obscured Small’s view of the road, requiring her to pull into the intersection in order to safely turn, and thus proximately caused the accident. Small denied entering the intersection, but McIlroy argued that if this is true, the sign still was a proximate cause because Small was still obliged to move around it while on North Road. McIlroy’s claims against Small herself were dismissed with prejudice, but McIlroy appealed only the summary judgment finding that he could not show proximate cause by the sign.

The Maine Supreme Court sided with him, agreeing that a rational jury could find that the sign proximately caused the accident. His claim was for negligence, the high court said, which requires a finding that Gibson’s breach of a duty owed to McIlroy was a proximate cause of the crash. That is, the breach must have been a substantial factor in bringing about the harm to McIlroy. This is a question of fact, the court said, making it appropriate for a jury to decide unless there’s so little evidence for it that the jury would have to speculate to find causation. The trial court concluded that the jury would have to speculate to find causation in this case, but the Supreme Court disagreed. While there was no evidence of the exact location of the sign (which was temporary), a rational jury could find causation from other elements, including various parties’ and witnesses’ testimony about where the sign was placed and how Small was required to drive to make her turn. Thus, the high court vacated the judgment and remanded the case.

I strongly agree that this is an issue of fact that is most appropriate for a jury to decide. As a Missouri motor vehicle accident lawyer, I demonstrate this kind of driving decision to the jury all the time. Most drivers can relate to the need to make a good judgment when entering a partly obscured intersection, and even those who don’t ride a motorcycle can likely sympathize with McIlroy’s decision to swerve out of the way when he saw, or thought he saw, a driver entering his lane. It’s also interesting to me as a southern Illinois auto accident attorney that the claims against Small were dismissed. It’s unfortunately not uncommon for motorcyclists to have one-vehicle accidents that were nonetheless caused by another driver’s bad decisions, because a motorcycle is less stable than a car. Insurance companies see this as an opportunity to deny that their insured is at fault, which is why it’s important for accident victims to fight back.

Tire Explosion Leads to Product Liability Lawsuit

Wed, 09 May 2012 03:52:56 -0600

A West Chicago native, Phil Teasauw, filed a lawsuit against Tire Services Co., a Palos Hills company, because a tire exploded next to him nearly two years ago while he was working on replacing it. Teausaw filed the product liability suit in Chicago's Cook County Circuit Court against the company which sells used tires, particularly tires that have been either refurbished or retreaded.

Teausaw's suit states that he was working on replacing a tire for his own employer, ILoca Services Inc., in Naperville, on April 8, 2010. He was putting the tire on a tractor-trailer, when the sidewall of a retreaded tire acquired by ILoca from Tire Services, Co. exploded. He had just finished filling the tractor-trailer sized tire with air when the sidewall burst, leaving him with injuries the suit describes as both permanent and severe.

According to Teausaw's filing, such a defect indicated that the tire was problematic when ILoca bought it from Tire Services in 2009, and that Tire Services should have been aware it was unsafe. As such it was not only inappropriate, but dangerous and irresponsible for them to sell the tire. Tire Services Co. was not available for comment as of Tuesday morning, May 8th.

The lawsuit claims that Tire Services is liable for negligence, two counts of breach of implied warranty for selling an obviously unsafe product, and seeks damages of at least $200,000 to help Teausaw deal with his extensive injuries. The sum that Mr. Teausaw is seeking is well within the range of a medical injury award where the injury was caused by a defective product purchased in good faith from a company that implied a warranty of proper function when they sold it, in this case, to his employers.

State Supreme Court Rules Medical Records Admissible in Uninsured Motorist Lawsuit – Arnold v. Wallace

Wed, 02 May 2012 08:37:08 -0600

As a St. Louis auto accident lawyer, I frequently have to counsel my clients on claiming benefits for uninsured or underinsured motorists. This is a type of insurance that covers drivers when they are injured through no fault of their own by someone who doesn’t have any insurance at all, or doesn’t have enough insurance to cover all the injuries created by the accident he or she caused. Missourians are required by law to carry uninsured/underinsured motorist coverage, along with the minimum liability insurance coverage. Unfortunately, people in Missouri and across the United States have frequently had trouble actually using those benefits, because insurance companies save money when they can deny claims. One case like this, out of Virginia, was the Virginia Supreme Court’s decision in Arnold v. Wallace et al., which upheld a small verdict in favor of Mary Arnold. Arnold appealed the admission of her medical records and the use of an expert witness, but the high court affirmed both.

Arnold was injured in a 2005 collision with Jonathan Wallace, who had no insurance at all. To collect from her uninsured motorist policy, she brought a suit against Wallace, triggering a defense by her insurer, Travelers Insurance Company. At trial, Arnold argued that the crash had caused neck and back pain as well as post-concussion syndrome. Travelers introduced Arnold’s past medical records over her objection that the company had not made its case for a business records exception to the hearsay rule. Travelers then cross-examined Arnold’s doctor about other doctors’ notes on her medical conditions, including a deteriorating cervical disc and migraines. Arnold also objected at trial to expert defense witness Dr. Charles Citrin, who Arnold had previously hired. The trial court agreed that Citrin had conflicts, but permitted Travelers to substitute Citrin’s partner, Dr. Elizabeth Hartman, over more objections. The jury ultimately awarded $9,134.61 to Arnold, who appealed.

The Virginia Supreme Court upheld both decisions. On the medical records, Arnold claimed Travelers should have shown that the records contained facts and not medical opinions, and thus did not adequately establish a business records exception to the hearsay rule. The high court disagreed. No past Virginia Supreme Court decisions have required that business records be entirely factual and free of opinions, it noted. Furthermore, it agreed with Travelers that objecting to the admission of the records does not encompass objecting to each individual record discussed — which Arnold had failed to do. Thus, her objections are waived, the court said, and the foundation of the business records exception was sufficient. The high court also rejected Arnold’s contentions that Hartman had a conflict of interests, in particular because she was given documents from Citrin including handwritten notes that could have contained confidential information from when Citrin had been hired by Arnold. However, no evidence shows any transfer of confidential information from Arnold to Citrin or Citrin to Hartman, and many of the notes were handwritten and indecipherable. Thus, it upheld the trial court on both counts.

I understand why Arnold would have been disappointed by the relatively small recovery in her case. While $9,000 would be a nice windfall for many people, I know from my work as a Missouri car accident attorney that it likely won’t cover treatment for the typical neck and back injuries sustained from a car accident. Most people don’t realize that even a low-speed wreck is enough to throw the spine out of alignment, causing chronic pain and difficulties with daily life. Unfortunately, these soft tissue injuries are also difficult to prove, so plaintiffs like Arnold can have trouble collecting the full amount of their losses. Here at Carey, Danis & Lowe, we tell all of our clients to save every piece of documentation related to their injuries, even seemingly unimportant things like drugstore receipts. Armed with evidence that our clients took their injuries seriously from the beginning, our southern Illinois motor vehicle accident lawyers can make a strong case for fair compensation.

Traffic Safety Settlement Reached in Lincoln Park Hit and Run

Wed, 02 May 2012 04:30:00 -0600

The family of a young girl killed in a 2006 hit and run accident has reached a settlement with the city of Lincoln Park in Chicago, IL, regarding the traffic safety conditions that led to 4-year-old Maya Hirsch's death. In the days leading up to the settlement, the case had become a lightning rod for traffic safety advocates across Lincoln Park and Chicagoland as a whole.

Details of the settlement are not forthcoming at this time. The Hirsch family attorney said that any statement from the family would wait until such time as a joint statement between the family and the city could be reached and released simultaneously. City Law Enforcement officials could not be reached for comment by local news sources for comment at all.

The complaint leveled by the Hirsch family against the city revolved around the traffic safety lights that were in place around the intersection where Maya was struck and killed by a fleeing driver. The Hirsch family's complaint stated that the traffic safety lights were placed improperly, as well as poorly maintained, both conditions leading to confusion and safety risks for those who used the intersection.

The driver of the car that struck Maya was David Roth, a 57 year old driving instructor with multiple driving offenses on his record. He struck Maya, her sister, and their mother, then drove away from the scene. Onlookers called and pleaded with Roth to stop, but he did not. Police later arrested and incarcerated Roth for an eight year term for leaving the scene of an accident. Roth later died in prison in 2008.

Maya's family had named Roth's estate in the lawsuit along with the city of Lincoln Park. The settlement reached includes an accord with the Roth Estate as well, bringing this unhappy saga to a close, hopefully one that will open the city's eyes about its responsibility to good traffic safety.

Eighth Circuit Finds Umbrella Insurance Policy Does Not Cover Judgment for Online Harassment – Heacker v. Safeco Insurance Co.

Wed, 25 Apr 2012 18:46:08 -0600

Here in St. Louis, we still remember the sad story of Megan Meier, a 13-year-old girl who committed suicide after cyberbullying by someone who turned out to be her adult neighbor. One result of that case was a series of laws in Missouri making it illegal or civilly actionable to harass someone else online. In the handful of years since, there have been a few cases of people prosecuted or sued under those laws, but this is still a new area of the law, which means legal systems aren’t always set up to handle real-life circumstances as they arise. That’s why, as a St. Louis personal injury attorney, I was interested to see the Eighth U.S. Circuit Court of Appeals decision in Heacker v. Safeco Insurance Co. et al.. Lewis Heacker sued Jessica Wright for a variety of causes of action, all stemming from five years of harassment and defamation that included hacking into his voicemail and online accounts.

Heacker’s Jackson County, Mo., lawsuit accused Wright of sending disparaging letters and emails about him, hacking into his voicemail and Facebook accounts and making anonymous phone calls and texts, all with the intent of defaming and harassing him. The opinion didn’t go into the cause of their dispute, but media reports say Heacker was hired at age 13 as a babysitter to Wright’s kids. Wright reportedly developed a sexual relationship with Heacker that continued until he finished high school and cut off contact, at which time the alleged harassment began. He alleged this caused emotional distress leading to post-traumatic stress disorder and alcoholism, and his lawsuit alleged a variety of tort claims including failure to supervise children, including Heacker as well as Wright’s own children.

Heacker won a $7.3 million judgment in Missouri state court, but was able to collect from only one of Wright’s several insurers and sued the others for equitable garnishment. After removal to federal court, the Missouri district court dismissed, finding no coverage from the policies at issue for the acts and time periods covered.

Heacker’s injuries. Furthermore, the Eighth agreed with the district court that “bodily injury,” under Kansas law, cannot apply to mental illness and alcoholism, even those aspects that are physical. Finally, it rejected arguments that a coverage exclusion for “mental abuse” in the umbrella policy was ambiguous, saying failure to define a term doesn’t necessarily make it ambiguous. Thus, it upheld the district court.

This case underscores a frustration for me and my clients, as a Missouri personal injury lawyer: Just because we win a case doesn’t mean the defendant will pay the full judgment. A case against an individual like Wright can be legally enforced, but Wright is unlikely to have the $7.3 million ordered by the court, so enforcement will simply hurt her credit without getting Heacker any money. The rather large amount of insurance policies Wright carried might have helped if Heacker had been injured by Wright’s dangerous dog or slipped on her front stairs, but they were written to expressly exclude the kind of intentional acts she actually did commit. That’s why, as a southern Illinois personal injury attorney, I start each case by considering what recovery is available, so I can give my clients a realistic assessment of their chances — and plan the litigation.

Parents of College Student File Wrongful Death Suit Against Police

Wed, 25 Apr 2012 04:30:00 -0600

In what is sure to be an emotionally-charged motion, the parents of college student Kendrec McDade have filed a wrongful death suit against the Pasadena police department. The same day, they also filed a civil rights violation lawsuit against the city of Pasadena.

The decision came after the death of Kendrec at the hands of police on March 24, around 11 pm.

Kendrec's parents say that the shooting is the latest in a pattern of unwarranted shootings by the Pasadena police aimed at young black males.

The shooting came as the result of information received from local resident Oscar Carillo, who told the police that two armed men had held him up and stolen his backpack. Officers soon saw Kendrec running, and opened fire. Officers at the time stated that they believed Kendrec had been reaching for a weapon. However, no weapon was found on Kendrec's body, calling their account into doubt.

Carillo later admitted that the men who allegedly took his backpack from him were not actually armed, despite what he told the police dispatcher who passed the information on to the police. Police tried to bring manslaughter charges against Carillo in connection with the shooting death, but the public prosecutor declined to do so. Carillo is under investigation with an aim toward deportation, but these proceedings have been suspended while the criminal investigation is still ongoing.

Perhaps the most disturbing information about the case is that Kendrec McDade did not die immediately from the gunshots. Instead he was left in the street for some time without medical aid, and according to witnesses attempted to talk to the police as he lay bleeding and dying.

The lawsuits filed by Kendrec's parents are seeking unspecified amounts of general and personal damages. There is no word yet on any court date, or which judge or judges will hear the respective cases.

Eighth Circuit Upholds Dismissal of Railroad Accident Lawsuit Due to Federal Preemption – Grade v. BNSF

Wed, 18 Apr 2012 16:54:56 -0600

As a Missouri personal injury attorney, I’ve written here several times before about accidents involving railroad crossings. These are particularly dangerous here in the Midwest, where we have a lot of railroad lines and the crossings aren’t always as well marked as they should be. Railroads are frequently federally regulated, however, which means different laws are likely to apply than would if the crash had been between two cars. In Grade v. BNSF Railway Co., the Eighth U.S. Circuit Court of Appeals upheld dismissal of most of the claims on the basis that they were preempted by federal railroad laws. Steven Grade of Nebraska was injured after he drove his car into a stopped railcar on a day when an ice storm greatly reduced visibility. He sued BNSF for blocking the crossing without adding a warning or breaking up the line of railcars.

Grade and his wife were coming back from a trip to buy groceries in Hastings, Nebraska. The trip was at night in late December, and an ice storm had affected both the roads and the visibility. As Grade attempted to drive through the railroad crossing, he hit a railcar that had been detached from a BNSF engine and left parked unattended at the crossing, waiting for a crew change and maintenance. (In fact, the line of parked railcars was so long that the court noted, in a footnote, that another driver hit it at a different intersection on the same night.) Grade’s car was totaled and he suffered disabling injuries to one arm. His lawsuit alleged BNSF should have supervised its railcars; warned drivers about the obstruction; and/or broken the line of railcars so it wouldn’t block the intersection. The federal district court granted summary judgment to BNSF, finding most of the claims were federally preempted and the “break the line” argument lacked proof of causation.

Grade appealed on all counts, but the Eighth Circuit ultimately affirmed. On the inadequate warning claims, the court found that they were preempted by the U.S. Supreme Court’s 2000 decision in Norfolk Southern Railway Co. v. Shanklin, which said any state-law claim of inadequacy at a railroad crossing is preempted when the warning device was installed with federal funds. It rejected an argument that a 2007 law superseded Shanklin, because that law applies to ongoing obligations, not the installation standards at issue. Similarly, a claim that BNSF should have used more reflective material fails because it was using as much reflective material as federally required. On the claims for improper blocking of the crossing and failure to break up the railcars, the court found that Grade did not show that his injuries were the natural and probable result of BNSF blocking the intersection for longer than the ten minutes permitted by state law. Finally, the Eighth found that Grade never showed BNSF’s railcars were not under its control, so the control claim failed as well.

This outcome is another in a lengthening list of state-law personal injury cases rejected for federal preemption reasons, which is disappointing for southern Illinois auto accident lawyers like me. Followers of the U.S. Supreme Court may remember the court rejecting cases involving medical devices and generic prescription drugs, all of which it says are preempted by federal law. Attorneys for big businesses that are likely targets of lawsuits have busily expanded the idea to nearly every area with federal regulations, sometimes with thin justification. The end result is that injured people like Grade don’t get their cases heard — that is, a jury never even considers them. Instead, the large companies that harmed them avoid responsibility for their own actions — in fact, they avoid even scrutiny of those actions. As a St. Louis car crash attorney, I don’t believe this unfettered power of the strong over the weak is good for our society.

Permanent Disability Claimed in New Levaquin Lawsuit

Wed, 18 Apr 2012 04:30:00 -0600

Mathew G. Howell is a 26-year-old man who has filed a Levaquin lawsuit for being disabled after suffering from severe tendon damage that began only six days after beginning a Levaquin regimen. Howell has since filed a Levaquin lawsuit against Johnson & Johnson, the makers of the drug, in U.S. District Court, District of Minnesota on March 28, 2012.

In his complaint, Howell, who is an accountant from Gilbert, Arizona, claims that he was prescribed Levaquin as a treatment for a urological infection. He started taking the pill on April 3, 2010 and stopped by April 9, 2010 after experiencing “severe and debilitating pain in the tendons and muscles of his legs and calves.” By April 10, Howell was taken to the Oakley Urgent Care Clinic in Cincinnati, Ohio, where he received his diagnosis of tendonapathy, nerve and muscle damage and tachycardia. He is now required to go through physical therapy as part of his ongoing treatment. Like so many other Levaquin lawsuits, Howell’s lawsuit is alleging that Johnson & Johnson didn’t properly warn him of the risks involved in taking the drug beforehand.

Levaquin is an antibiotic medication that is mostly used to treat various infections including upper respiratory infections and sinusitis. Warnings on the drug’s labels have been updated to include the fact that patients aged 65 and older are at a higher risk of developing tendon ruptures as well as those patients taking corticosteroids. Research has proven that the controversial antibiotic can cause various adverse side effects like the ruptures and rotator cuff tears, which is why many Levaquin patients have filed drug injury lawsuits, and the FDA issued a black box warning against the drug. Black box warnings are the strongest warnings the FDA can give.

Missouri Supreme Court Affirms Wrongful Death Judgment in Medical Malpractice Case – Sanders v. Ahmed

Thu, 12 Apr 2012 08:57:17 -0600

As a Missouri medical malpractice attorney, I was interested to see an appeal that sought to challenge our state’s cap on damages in medical malpractice cases. I dislike damages caps in any context because juries and judges should be free to make their determinations according to the facts of each individual case, without an arbitrary limit placed by legislators who couldn’t know the context. I particularly dislike them in medical malpractice cases because these are highly politicized cases in which good legal judgment often takes a backseat to pleasing voters or special interest groups. In Sanders v. Ahmed, a cap on noneconomic damages was ultimately found constitutional under the Missouri constitution, but reversed a reduction in damages under another state law because of discovery violations.

Ronald Sanders lost his wife, Paulette Sanders, after treatment with a drug that Ronald Sanders said her body could not process. Paulette Sanders had a history of seizure disorders; she sought emergency room treatment in 2003 for numbness of the legs and trouble walking. Dr. Iftekhar Ahmed, a neurologist, examined her and ordered a change in medications to Depakote. Her condition worsened and she had a seizure six days after starting the Depakote, after which Ahmed discontinued it. Nonetheless, Paulette Sanders deteriorated both physically and mentally, lapsing into a coma. She lived in a nursing home until her death in 2005. Ronald Sanders sued for medical malpractice and eventually wrongful death, alleging that Ahmed failed to recognize and treat problems Paulette’s body had processing the Depakote. The jury returned a verdict of $920,745 in economic damages and $9.2 million in noneconomic damages, but the judge reduced the noneconomic damages to $1.2 million under a Missouri damages cap.

Both parties appealed, with Sanders arguing that the damages cap violates the state constitution. Ahmed challenged the award itself and argued that the damages should have been reduced by the amount of the previous settlements, and he should have been granted a payment plan. The Missouri Supreme Court started by rejecting the appeal from Sanders. The constitutionality of the damages cap has already been decided as to common-law claims, it said, and it’s even more clear as applied to a statutory claim like wrongful death. Remedies for statutory violations are questions of law not decided by a jury, the court said. It next rejected Sanders’s arguments that a payment plan option is unconstitutional, but also rejected Ahmed’s argument that the court should have ordered a payment plan. The court noted that past damages are always due right away, and said it was permissible for the trial court to construe the entire reduced number as past damages. Nor did the facts support judgment notwithstanding the verdict, it said. However, the high court did agree that Ahmed should have been permitted to discover the amounts of Sanders’s previous settlements in order to argue for a reduction, and reversed and remanded that part.

Interestingly, two justices dissented from the decision on the constitutionality of the damages cap, arguing that the cap is unconstitutional because it violates plaintiffs’ rights to a trial by jury, as well as encroaching on the authority of the courts. As a St. Louis medical malpractice lawyer, I’m pleased to see this argument taken up by justices in our state’s highest court. I agree with the justices that allowing the legislature to arbitrarily limit the decisions of juries undermines the right of trial by jury and an important function of juries. I also agree with their separation of powers argument, which says the legislature cannot make a rule that replaces the important fact-finding function of the courts. This dissent is not the law of our state, but as a southern Illinois medical malpractice attorney, I’ll continue to watch for cases that address the issue.

Wrongful Death Lawsuit Filed in Indiana's Marion County

Wed, 11 Apr 2012 04:30:00 -0600

The parents of one-year-old Juan Cardenas have filed a wrongful death lawsuit in Indiana's Marion County Superior Court. This February, day care workers found Juan lying face-down in the baptismal of the local Praise Fellowship Assembly of God church, drowned. He was found in 2 feet of water. Juan's parents, Juan Gabriel Cardenas and Maricela Serna, are filing the lawsuit in the pursuit of justice - they know that the lawsuit will not bring them any peace with their son's death, but they want the responsible parties held accountable. No criminal charges were brought against the church or any church workers in Juan's death.

The Cardenas' attorney told reporters that the family, “wants to find out what happened. They want whoever was responsible held accountable. They want changes made, so no other families are put in this horrible position.”

The superintendent of Praise Fellowship Assembly of God Church, Inc., said that the death of Juan was a terrible and tragic accident, and that he grieves with the family, but maintains that the church is not responsible for what happened.

"We have met all our requirements for voluntary cooperative fellowship and supervision of these churches. We do not believe the Indiana District Assemblies of God is liable for this accident. That would have to be settled by the court."

The Deputy Prosecutor said regarding the case, that while the incident may demonstrate negligence or recklessness, it does not meet the criteria for a criminal matter, and that the family will have to seek their remedy in the civil court system.

The lawsuit has named the Praise Fellowship Assembly of God organization itself as the defendant in the case. PFAG Inc. represents some 240 Assembly of God churches in the state of Indiana alone.

There has been no court date set as of the time of this writing, nor has a judge been named for the case.

Eighth Circuit Reverses Ruling Releasing Insurer From Liability to Pay Product Defect Case – Gulf Underwriters Insurance v. Burris

Thu, 05 Apr 2012 09:00:37 -0600

As a Missouri defective product lawyer, I know that winning a financial settlement or verdict is often not the end of the story. The verdict or settlement must still be paid, and sometimes, defendants just don’t have the money. That’s why a business, which is almost certainly insured, is often a better bet than an individual — but only if the insurer does not try to wiggle out of its obligations. In Gulf Underwriters Insurance Co. v. Burris et al., Gulf Underwriters Insurance Co. sued for a declaration that its policy did not create an obligation to cover any claims made by Lowell and Joyce Burris in their product liability lawsuit against Versa Products and Menard Inc. Lowell Burris fell from a ladder manufactured by Versa and sold by Menard, and sued those two companies alleging defects in the ladder. The district court granted summary judgment to Gulf, but the Eighth U.S. Circuit Court of Appeals reversed.

Burris sustained serious injuries when he fell from the ladder in 2001, but that accident was not described. In 2003, his injury attorney wrote to Versa asserting a claim for product liability. At that time, Versa was a named insured on a Gulf policy; Menard was an additional insured. The policy also included a $50,000 self-insured retention (SIR) endorsement. The Burrises sued in 2007 and ended up in federal court, where Gulf started a new action seeking a declaratory judgment on its obligations. In a summary judgment ruling, the court agreed that Gulf need not cover Versa or Menard for the Burrises’ claims. It found that because Versa dissolved after the policy expired, it cannot meet its obligations under the SIR. This is a material breach that would end Gulf’s obligations under the policy, the court said. Burris appealed.

The Eighth U.S. Circuit Court of Appeals reversed, finding the summary judgment for Gulf in clear contradiction of the text of the policy. While the policy does say the contract terminates when the insured stops paying, including in bankruptcy, the Eighth noted that it also says “all the terms of this policy... apply irrespective of the application of the Self-Insured Retention.” And of course, the terms of the policy must include restrictions on coverage, the court said. It said while the amount of coverage available depends on the amount of the SIR, which is affected by Versa’s payments, the existence of the coverage is defined exclusively by the policy’s Commercial General Liability Coverage form. Thus, the SIR does not affect coverage for third-party liability, the court found. In further support, the Eighth noted that Gulf supplied no admissible evidence that Versa had breached the contract. It went on to find that the case should be dismissed with prejudice, because the SIR is void as against Wisconsin public policy, and because Gulf failed to disclose that its suit was not ripe under Wisconsin law. On remand, t suggested that the district court may want to consider awarding attorney fees to the Burrises.

As a St. Louis product defect attorney, I enjoy reading about this kind of victory for plaintiffs. It appears from the Eighth Circuit’s final few paragraphs that the appeals court was displeased with Gulf for pursuing this argument at all, and particularly for omitting several pieces of information that made its case substantially weaker. It acknowledged that Gulf may have legitimate arguments on other issues, but found the insurance company’s conduct so dishonest that it warranted the penalty of not being able to assert any more defenses unless and until the Burrises are successful in their claim. This may be an extreme case, but in general, it’s not uncommon for insurers to outspend and out-legal-maneuver individuals facing them in court. Defending injured people from this kind of attack is part of my job as a southern Illinois dangerous product lawyer.

Philosophy Teacher's Family Files Wrongful Death Suit

Wed, 04 Apr 2012 04:30:00 -0600

The family of a Fullerton High School, California teacher killed in a trafic accident claim that the accident was caused by a negligently constructed or maintained traffic intersection and its control signals. Jeff Rupp, 58, was a government and philosophy instructor, and his school's 2007 teacher of the year. He was riding on his 2003 Harley Davidson motorcycle on January 19, 2011 when he was struck by another driver.

The accident caused Rupp severe head injuries and multiple broken bones. He died of complications from his injuries on February 11th. According to police, Rupp was riding his motorcycle northbound on Euclid street in Orange County when a 2004 Hyundai sedan in the southbound lane made a left turn in front of Rupp on Malvern Avenue. The turn led to the vehicles colliding, sending Rupp crashing off his bike and receiving his fatal injuries.

The lawsuit alleges that the city had been notified of the unsafe conditions of the intersection and its equipment well before the accident, and had received more than sufficient notice to have corrected the danger before the accident took place – the complaints about the intersection were filed as early as September of the previous year.

The case has not been assigned a trial date. City Attorney Dick Jones estimated that at least six months would pass before a judge could hear the case. Jones stated that thus far, the case is merely an allegation, and the two parties involved have not had a chance to meet over the matter.

The documents filed for the suit do not specify what conditions made the intersection unsafe, and the Rupp family's attorney did not return calls when contacted by reporters.

Jones went on to say that no obvious issue could be seen at the intersection, and called the matter a broad allegation lacking substance.

Rupp's widow and two children filed a $2.9 million claim against the city in June, which was denied. The lawsuit has been filed in response to the city's denial of the claim.

Illinois Supreme Court Resurrects Asbestos Exposure Lawsuit Filed by Wife of Rail Worker – Simpkins v. CSX Corp.

Thu, 29 Mar 2012 17:32:59 -0600

As a southern Illinois product liability lawyer, I was interested to see a recent Illinois Supreme Court ruling in an asbestos exposure case from nearby Madison County. In Simpkins v. CSX Corp., the plaintiff was unusual — not a worker exposed to asbestos through a job, but the wife of such a worker. Annette Simpkins alleged she developed mesothelioma after exposure to asbestos brought home on the clothing of her husband, Ronald. Though Annette Simpkins died of the cancer a few months after filing, her daughter and special administrator, Cynthia Simpkins, continued the case. The trial court dismissed, finding CSX owed no duty to a third party like Simpkins, but the Illinois appeals court and ultimately the state’s Supreme Court reversed, finding the court hadn’t taken steps to determine whether she had a claim.

Ronald was employed by CSX from 1958 to 1964. Simpkins alleged that during that time, he brought home asbestos fibers on his clothes and body from asbestos used in CSX’s premises. It was not specified what Ronald did for the railroad. She contended that CSX knew or should have known that exposure to asbestos posed an unreasonable risk of harm to family members like her. She made claims of strict liability for using the asbestos; negligence for failing to take safety measures; and willful and wanton misconduct. CSX moved to dismiss on the grounds that it owed no legal duty to a non-employee like Simpkins. After the substitution of Cynthia Simpkins and a later hearing, the trial court dismissed but allowed an interlocutory appeal on the claims against CSX, which were severed from those against other defendants. The appeals court reversed and the defendant appealed again.

The Illinois Supreme Court affirmed again, finding a duty to third parties like Simpkins may exist — but said merely being the spouse of an employee is not enough. Rather, it said, the question is whether the defendant could reasonably foresee the third party’s injury. To make that ruling, it delved into the question of whether there was a relationship between CSX and Simpkins creating a duty of care. It’s true that Illinois law does not create a general obligation to protect or rescue a stranger, the court said, but when engaging in behaviors with a reasonably foreseeable risk of injury, everyone has an duty to protect others from that risk. Among the factors establishing this duty is the foreseeabilty of the injury. However, in this case, the Illinois Supreme Court noted, Simpkins failed to allege facts specific enough to analyze foreseeability, and CSX raised the issues for the first time in the instant appeal. As a result, it remanded the case for further consideration without considering other factors or ways to find a special duty. Justice Freeman dissented, arguing that the court should have reached the substance of the case.

As a Missouri toxic exposure attorney, I would also be interested in having the issue resolved for good. As the dissent notes, the issue has split the Illinois appeals courts, with another court finding no duty owed in “household” asbestos cases like this one. The question is clearly an important one for families suffering from mesothelioma, as well as for the employers and ex-employers that might be liable for the injuries. However, I do agree with the court that the issue warrants more exploration than simply dismissing on the grounds that Simpkins never worked for CSX; “household” asbestos exposure has been known and even a subject of litigation for years. As a St. Louis dangerous product lawyer, I would prefer that the people of Illinois retain the right to sue the known source of such a deadly cancer, even if the relationship is indirect.