Articles Posted in Damages

Mary Lewis, Tashwan Banks and Kathleen O’Sullivan filed a class-action lawsuit on behalf of themselves and others similarly situated against Atlantic Richfield Co., ConAgra Grocery Products Inc., NL Industries Inc. and Sherwin-Williams Co. claiming that these entities engaged in civil conspiracy.

In addition, the plaintiff class consisted of parents or legal guardians who incurred expenses, allegations of liabilities in testing their children.

The children, between Aug. 18, 1995 and Feb. 19, 2008, were between six months and six years old. They lived in zip codes identified by the Illinois Department of Public Health as “high risk” areas for lead toxicity.

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Thomas Dempsey, 78, was driving his SUV on a busy four-lane highway during a cross-country trip. He exited the highway to use a restroom. His car approached a line of stopped cars, but he was unable to take his foot off the accelerator and swerved his SUV onto a grassy median, which led the SUV to accelerate and hit a deep drainage ditch.

In turn, Dempsey’s SUV became airborne and eventually landed on top of a truck driven by plaintiff Boris Woodard. The impact caused both the Dempsey SUV and the Woodard truck to cross two lanes of traffic and roll down an embankment.

Woodard suffered eye injuries and bruising. Much worse and tragic was the witnessing of the injury and subsequent death of Woodard’s 25-year-old daughter who was his passenger. Anna Woodard lapsed into a coma and was hospitalized for nine days after the crash before she died. She was a student who had hoped to work in childcare. She is survived by her parents. Her medical expenses were in the hundreds of thousands of dollars.

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The Illinois Appellate Court for the 1st District reversed and remanded a decision entered by a judge in the Circuit Court of Cook County. The issue on appeal was focused on a non-manufacturing defendant in a product-liability case. The defendant identified the manufacturer in order to be dismissed from strict liability in a tort claim. There was a question as to whether the manufacturer was not subject to the court’s jurisdiction and whether the plaintiff should be permitted to reinstate the non-manufacturing defendant.

In this case, Martin Cassidy was working at a warehouse when a flexible bulk container belonging to China Vitamins ripped and leaked, which made the entire stack of containers unstable. One of the stacked containers fell on Cassidy, injuring him.

In 2007, he filed a lawsuit against China Vitamins. The lawsuit alleged strict liability, negligent product liability and one count under res ipsa loquitur.

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In an uninsured motorist case, Holly Shakelford sued Allstate Fire & Casualty Insurance Co. for 9 percent interest on a $16,000 arbitration award. She was seeking the 9% statutory interest provided by Section 2-1303 of the Illinois Code of Civil Procedure.

A more accurate term for Section 2-1303 is the “Judgment Interest Statute,” the Supreme Court explained in Illinois State Toll Highway Authority v. Heritage Standard Bank, 157 Ill.2d 282 (1993). The law provides for 9% interest on arbitration awards, jury verdicts and reports from special masters – as part of the judgment entered on the award, verdict or report – running back to the date of the initial decision. In addition to providing 9% interest on judgments, Section 2-1303 also provides for prejudgment interest on awards, verdicts and reports.

This case was complicated because Shakelford’s claim was that the arbitrator ruled $16,000 was the “gross award,” subject to setoffs and liens “to be resolved by the parties and their attorneys.”  The second issue or twist to the case was that Shakelford sued without first applying for confirmation of the award under the Uniform Arbitration Act.

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In July 2015, Henry Walker, a retired Army sergeant, was at a Wal-Mart store in Phenix City, Ala., when his foot got caught in a wooden pallet and he fell, fracturing his foot and hip. He was 59 years old at the time of this accident. He sought damages against Wal-Mart for negligence.

The jury’s verdict of $2.5 million in compensatory damages included another $5 million in punitive damages.  Walker, who lives in Phenix City, was represented by attorneys Charlie Gower, Shawn O’Hara and David Rayfield. According to the report of this case, the jury trial began on Tuesday, Nov. 14, 2017 and continued until Wednesday, Nov. 15, with a jury reaching its verdict the same day after two hours of deliberation.

According to the attorneys for Walker, Wal-Mart should have covered the pallet so that it would not entangle a shopper’s foot. Wal-Mart countered that argument by maintaining that the display was not dangerous and that the cause of Walker’s injuries was his own negligence. According to Wal-Mart, the same displays are still in use.

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The issue in this case was whether the financial condition of Wexford Health Sources, the defendant in this federal lawsuit, is relevant for Federal Rule of Civil Procedure 26(b) to apply. This rule limits discovery to that which is “relevant to any party’s claim or defense.” If a corporate defendant’s wealth may not be considered when assessing punitive damages, it is not “relevant,” but if it may be properly considered then, of course, it is relevant. In this U.S. Federal District Court of Illinois (Central District) lawsuit, the initial question to be answered was whether Wexford’s financial condition could be investigated through discovery; this was answered mostly by the case of Zazu Design v. L’Oréal, 979 F.2d 499 (7th Cir. 1992).

In Zazu, a case relied upon by Wexford, the defendant in this case, the court considered the defendant’s appeal in a trademark infringement action. The court reversed and remanded, finding that the plaintiff did not have superior rights in trademark to the defendant and, even if it had, the damages award was excessive.

Regarding the punitive damages award, the court noted that although courts “take account of a defendant’s wealth when an amount sufficient to punish or deter one individual may be trivial to another,” such may not be the case when the defendant is a corporation. The court explained:

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This was a pretrial hearing on the motion to add a punitive damage count to a complaint against the Catholic Bishop of Chicago for alleged negligent conduct in hiring, supervising and retaining a priest who allegedly abused John Doe when he was a third-grade student at St. Agatha Academy. The archdiocese argued that Doe shouldn’t have to prove that representatives actually knew about the priest’s wrongdoing and wicked proclivities.

The trial judge ruled that Doe’s evidence about the “utter indifference” of archdiocesan employees’ safety for the young students could justify an exemplary or a claim of punitive damages. The judge certified the question of law for immediate appeal to the Illinois Appellate Court. The appeals panel concluded that the judge “used the appropriate standard” in concluding that Doe may demand punitive damages in his amended complaint.

“Simply put,” Justice Sheldon A. Harris explained, “the trial court may allow a claim for punitive damages if the evidence would reasonably support a finding that defendant acted willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others.”

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Luisa Cruz Mezquital was driving her Mazda minivan when the oncoming 1995 Jeep Wrangler, driven by the defendant Abdulmohsen Almassud, lost control, crossed the center-line and crashed into her minivan. The Cruz driver-side window shattered.  Cruz’s left hand struck the Jeep as it scraped down the side of her minivan.

Cruz, who was 29 at the time, suffered serious injuries to her hand and arm, including a degloving injury to her left, dominant hand with significant loss of skin, muscles, nerves, tendons and fascia. In addition, she suffered severe, open fractures of multiple bones in her hand and closed fractures of the ulnar radius of the left arm.

She underwent open reduction internal fixation surgery to repair the forearm fractures that included installing plates and screws. Her middle left finger was amputated. A four-stage reconstruction surgery to her hand was undertaken, which included a split-thickness skin graft from her upper thigh.

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On July 28, 2008 Mai Leen Aguilar-Santos was injured in a car crash alleged to have been caused by the defendant, Helen Brine. On April 1, 2010 the lawsuit against Brine was filed by Mai Leen Aguilar-Santos seeking to recover damages for her injuries caused in the accident. Mai Leen claimed she sustained injuries to her neck, back and burns to her arm from the deployment of the airbag.

Before trial, the court granted Mai Leen’s motion for partial summary judgment, finding that Brine breached her duty of ordinary care in causing the car collision. Brine then filed an amended answer admitting that her negligence was the proximate cause of Mai Leen’s injuries, but denied that the injuries she sustained in the accident were permanent. Two treating doctors provided trial testimony.

One doctor, Dr. Lim, an orthopedic surgeon, testified that Mai Leen’s injuries and symptoms identified in the medical records were caused by the accident. He said Mai Leen’s condition may deteriorate with age or treatment. Dr. Lim examined Mai Leen recently and testified that she required future and further medical treatment for her pain and problems related to the automobile collision. The other treating physician, Dr. Malek, testified that Mai Leen suffered a permanent injury. Dr. Malek had not seen Mai Leen for 15 months prior to his evidence deposition that was presented to the jury.

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Donald Etherton was injured in a rear-end car crash. The other driver’s insurer settled with Etherton for $250,000, which was the insurance policy limits. Etherton entered a claim to Owners Insurance Co., his underinsured motorist coverage insurer, which had limits of $1 million. He requested that the company pay up to $750,000, which was the remainder of his insurance policy limit. Etherton’s vehicle had only minor damage, but Etherton underwent three back surgeries to repair disk damage to his spine.

Between July and December of 2009, he communicated frequently with Owners. Owners repeatedly indicated it needed additional information to assess his claim. On Dec. 30, 2009, Owners offered to settle the underinsured motorist claim for $150,000. Etherton asked Owners to explain the basis for the low offer. Owners responded that “our $150k offer is based on the documentation you have provided to date . . . We note serious questions of causation of Mr. Etherton’s injuries . . .”  Many other additional communications between Etherton and Owners failed to resolve the matter. Etherton filed this lawsuit in March 2010.

He first filed his lawsuit in the state of Colorado, which was removed to the Federal District Court. As the jury trial approached, Owners filed a motion in limine under Federal Rule of Evidence 702, seeking to exclude Dr. Joseph Ramos, Etherton’s causation expert. Owners argued that Dr. Ramos’s methodology was not reliable under Rule 702 and Daubert v. Merrill Dow Pharmaceuticals Inc., 509 U.S. 579 (1993). After a Federal Rule of Evidence 104(a) Daubert hearing, the presiding federal judge ruled from the bench and excluded Dr. Ramos’s testimony, concluding his methodology was not reliable. Shortly thereafter, Etherton moved for reconsideration wherein the presiding judge recused herself from the case, and the case was reassigned to another judge who granted Etherton’s motion to reconsider. Based upon his review of the Daubert hearing transcript, the new judge concluded Dr. Ramos’s methodology was reliable and he therefore could testify.

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