Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘deep pocket’

Mikolajczyk v. Ford and Mazda: $27 million in Escort seat litigation

Drunk driver William Timberlake, speeding at 60 mph, rear-ended the Ford Escort in which 46-year-old James Mikolajczyk was stopped at an intersection. Only 3% of fatalities occur in rear-end collisions, so Ford, like most car companies, designs its seat-backs to meet federal safety standards and provide additional protection in other types of collisions–with the unfortunate and unavoidable trade-off that the seat will not perform as well in a rear-end collision. Mikolajczyk’s ten-year-old daughter survived, but Mikolajczyk’s seat collapsed, his head hit the rear of the passenger compartment, and he never regained consciousness before dying three days later. A Cook County jury deliberated all of three hours before finding Ford 40% responsible. And because Ford was found more than 25% responsible, it is on the hook for the entire $27 million award, including $25 million in non-economic damages. Timberlake is in prison. Only the specialty legal press raised the issue of joint and several liability; the mainstream press didn’t even mention the 40/60 split in comparative fault. (Bill Myers, “$27 million verdict in fatal accident”, Chicago Daily Law Bulletin, Mar. 16 (via ICJL); Steve Patterson, “Ford, Mazda ordered to pay $27 million in death”, Chicago Sun-Times, Mar. 17; Chris Hack, “Carmakers to pay in SE Side crash”, Daily Southtown News, Mar. 17; Rafael Romo, “Jury Awards Millions In Fatal Crash Caused By Deffective [sic] Seat”, WBBM-2, Mar. 17; Mikolajczyk v. Ford Motor Co., No. 00 L 3342 (Cook County, Ill.)). More seat-back litigation coverage on this site: Dec. 21; Nov. 24.

Bruce Pfaff, Mikolajczyk’s attorney, previously won a similar seat-back case from an Indiana accident where a cocaine-and-PCP-impaired driver, Kevin Gaczkowski, rear-ended and paralyzed the plaintiff, Lydia Carillo. Ford was found 30% liable (in part because the jury wasn’t told of Gaczkowski’s condition), and paid 100% of the $14.5 million verdict. Carillo v. Ford (Ill. App. 2001). In Carillo, a jury was told to decide whether a vehicle was unreasonably dangerous, but Ford wasn’t allowed to show the jury statistics on how the seatbacks performed in rear-impact collisions (even as the plaintff introduced anecdotal testimony from other paraplegics), or introduce testimony showing that the plaintiffs’ preferred seat-design would have also caused injury. It’s ludicrous enough to have a jury second-guess design decisions as part of a particular case without being forced to be consistent with other juries second-guessing how those same design decisions are operating in other circumstances. But it’s truly absurd to have a jury do this without access to the data of the costs and benefits, thus making the trial purely a game-show over the persuasiveness of hired experts.

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Belated Geoffrey Fieger Report: Wills v. Dillard’s

Jameel Talley had been fired from the local police department, but the mayor of North Randall (pop. 893 and dropping) “sent what he called a ‘second chance’ letter to Maple Heights, saying Talley should not have been fired. The mayor said he ‘erred in judgment’ and ‘recommends 100 percent (that) Talley continue his career in law enforcement.'” So Maple Heights hired him for their police department, where Talley had a spotless record, and the local Dillard’s hired him for off-duty work as a security guard.

Unfortunately, Talley had been fired from North Randall for shooting at a shoplifting suspect.

And, unfortunately again, 41-year-old Guy Wills, under the influence of drugs, decided to shoplift a leather jacket at Dillard’s, and then resist arrest from the much larger Talley. So Talley smashed him upside down into the concrete floor. Unfortunately again, Wills checked himself out of the hospital, got sick at the police station, refused treatment or a trip to the emergency room–and then fell into a coma, and when he woke up, he was dead. Shortly after the incident, Dillard’s shut down the store. Talley was convicted of voluntary manslaughter for excessive force, and sentenced to three years. And Dillard’s, as the deep pocket, was sued. (NewsNet5: Jan. 18 (featuring the great line “Dillard’s attorney, who’s [sic] name is unknown at this time”), June 23, 2003; Nov. 14, 2002; “Dillard’s to close Raleigh Springs store”, Memphis Business Journal, Jan. 27, 2003).

The attorney was none other than Geoffrey Fieger (Oct. 11 and Aug. 31 and lots of links therein), but the trial wasn’t going so well, so he adopted what seems to be a standard tactic: deliberately try to alienate the judge, and then loudly complain about prejudice.

[Judge Nancy Margaret] Russo leveled a litany of legal wrongs against Fieger, including: insulting and berating lawyers and calling them liars; making faces after she ruled against him; repeatedly interrupting testimony; entering objections loudly; and threatening an insurance adjuster with the loss of his job.

“He has been nothing but bullying, loud, obnoxious and unprofessional,” Russo said. “I have tried for three weeks to rein him in. I have done my best.”

The final straw came Thursday after attorney Larry Zukerman accused Fieger of accosting him and threatening to have his client — former Dillard’s store manager Frank Monaco — arrested for obstruction of justice.

Russo threatened Fieger with contempt, and Fieger responded by pulling himself off the case and asking for a mistrial. For some reason, Russo rewarded the antics with exactly what Fieger wanted, and now Fieger gets to start all over with another judge, and a second bite at correcting whatever problems he saw with the first trial. (James F. McCarty, “Lawyer quits case on judge’s threat”, Cleveland Plain-Dealer, Jan. 29; James F. McCarty, “Mistrial in wrongful-death case of shoplifter”, Cleveland Plain-Dealer, Feb. 1). And shame on our Cleveland readers for not letting us know about this one sooner.

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Update: Mohr v. DaimlerChrysler $53 million verdict

DaimlerChrysler statement on the suit after the jump; it’s almost scandalous what the press accounts (Feb. 26)left out, but not as scandalous as the verdict. The unbelted Vickie Mohr was killed from blunt force trauma to the back of the head–caused when she was hit by the 245-pound unbelted passenger in the backseat. (The jury found that passenger, Carolyn Jones, responsible for only a small percentage.) Brett McAfee, the 17-year-old driver who killed the two plaintiffs when he fell asleep at the wheel going 45 mph, but was found slightly less than half-responsible by the civil jury, pleaded no contest to vehicular homicide criminal charges. (via Dodgeforum, which has an impressive array of photos of the totalled Durango Caravan).

Read On…

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Student’s shooting rampage: law school to pay $1 million

Once again the deep pocket pays for the crime: at the end of last year the Appalachian School of Law in Grundy, Va. agreed to pay $1 million “to settle four lawsuits over a deadly shooting rampage by a struggling student. … The lawsuits accused the [school] of ignoring repeated warnings that Peter Odighizuwa was a threat before he opened fire in 2002, killing the dean, a professor and a student and wounding three other students. Odighizuwa pleaded guilty earlier this year and is serving six life sentences. … The plaintiffs had argued that the school should have foreseen the violence because the 46-year-old Odighizuwa — who has been diagnosed with paranoid schizophrenia — had a history of outbursts, threats and other disruptive behavior.” On the other hand, the Nigerian-born Odighizuwa “told The Associated Press in an interview earlier this year that the students should not get any money from the school. ‘The law school isn’t a psychiatrist. It doesn’t know what’s in my head,’ he said.” (“Settlement Reached in Suits Over Law School Shooting Rampage”, AP/Law.com, Jan. 3)

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LA commuter rail crash II

More on the LA commuter rail crash (Jan. 27): the Los Angeles Times covers the legal aspects of the case, and suggests prospects of recovery are “slim,” because the accident is Alvarez’s doing. Ten paragraphs into the article, however, the Times acknowledges the principle of joint and several liability, whereby the railroad could be on the hook for the entirety of the economic damages if they’re found 1% responsible for the accident. (Tort reform in California has abolished joint-and-several liability for non-economic damages. Cal. Civ. Code Sec. 1431.2.) Overlawyered has covered numerous cases where the deep pocket was held responsible for the crime of another: for example, ankle monitor manufacturer 20% responsible for murder; apartment complex responsible for carjacking and shooting; beer vendor 50% responsible (plus punitives) for drunk driving accident; automaker jointly liable for drunk driving accident.

Also entertaining is the discussion of the five investigators the California Bar felt they had to send to the scene of the crime and local hospitals to shoo away potentially illegal solicitation by attorneys. (Henry Weinstein, “Victims’ Chances of Winning Big Money Are Slim”, Jan. 28).

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More Madison County forum shopping follies

Luke Lindau lives in a Chicago suburb and suffers from mesothelioma. He sued 59 different defendants for his personal injuries in Madison County; many defendants, expecting to be railroaded, don’t even bother to litigate asbestos cases once they’ve been sued in Madison County (Point of Law Oct. 5 and links therein), so he became a millionaire from the settlements–not bad for a retired 78-year-old who has already exceeded average life expectancy. However, Lindau made his way into Madison County by claiming that he was exposed to asbestos during the construction of Southern Illinois University Edwardsville in 1959-1962. Unfortunately for this theory, it was SIU-Carbondale that was being built then; ground wasn’t broken on the Edwardsville campus until 1963. So the two remaining deep pocket defendants actually insisted on protecting their rights and appealed the venue decision. The plaintiff settled–either to get money immediately or to avoid an adverse precedent for future plaintiffs, though his lawyer, Scott Hendler, has the chutzpah to complain about the “abuse of process” of the appeal. It’s not clear whether the two last settling defendants paid more than nuisance sums, as Hendler elides the issue in his discussion with the reporter. (Brian Brueggeman, “Man reaches $4 million deal in asbestos lawsuit”, Belleville News-Democrat, Dec. 8).

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Jim Butler wins $105M verdict in Chrysler seat litigation

Another example of how personal injury attorneys and the “Center for Auto Safety” actually care very little about auto safety: In 2001, Louis Stockell, driving his pickup at 70 mph, twice the speed limit, rear-ended a Chrysler minivan. Physics being what they are, the front passenger seat in the van collapsed backwards and the passenger’s head struck and fatally injured 8-month old Joshua Flax. The rest of the family walked away from the horrific accident. Plaintiffs’ attorney Jim Butler argued that Chrysler, which already designed its seats above federal standards, should be punished for not making the seats stronger — never mind that a stronger and stiffer seat would result in more injuries from other kinds of crashes because it wouldn’t absorb any energy from the crash. (Rear-end collisions are responsible for only 3% of auto fatalities.) Apparently car companies are expected to anticipate which type of crash a particular vehicle will encounter, and design accordingly. The $105M verdict includes $98M in punitives, a number that will almost certainly be reduced, but the entire verdict is inappropriate. “It is unfairly punishing DaimlerChrysler for a reasonable engineering decision that resulted in a product that met all federal standards,” DaimlerChrysler spokesman Jason Vines said. (Rob Johnson, “Jury awards $105.5 M in baby’s death”, The Tennesseean, Nov. 24; Matt Gouras, AP, Nov. 24; “DaimlerChrysler Is Told to Pay $98 Mln in Van Crash”, Bloomberg, Nov. 23; Sheila Burke, “Chrysler being sued over baby’s van death”, The Tennesseean, Nov. 4). More coverage: Dec. 21.

Read On…

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Damage caps for me, but not for thee

Most of organized lawyerdom, as we know, strongly opposes any notion of capping damages recoverable by victims, even as applied to “non-economic” damages claimed for intangible harms such as pain and suffering or emotional distress. It turns out, however, that the bar enthusiastically supports the capping in nearly every state of one particular form of compensation, namely, the compensation of clients who are embezzled from or otherwise defrauded by their lawyers. In Pennsylvania, for example, the official Pennsylvania Lawyer Fund for Client Security (more) caps damages payable to defrauded clients at $75,000, although the loss actually sustained by the victimized client often runs far higher than that. Columnist Don Spatz of the Reading, Pa. Eagle notices the irony: “Even if you can prove your lawyer stole $200,000 from you, you’re out of luck. There’s a cap. … I haven’t heard lawyers worry about caps taking away those victims’ rights.” (“First, lawyer, heal thyself”, Reading Eagle, Mar. 24, at HALT site).

It should be noted that the damages clients attempt to recover after being defrauded by their lawyers are typically direct out-of-pocket economic losses, as opposed to money for humiliation, psychic distress and the like. Yet lawyers in most states have secured payout caps even lower than Pennsylvania’s $75,000, often much lower: Illinois lawyers cap their collective responsibility at a paltry $10,000 per case, for example, and Nevada’s at $15,000. (2002 ABA Center for Professional Responsibility survey of state plans, reprinted at Michigan Bar Association site, PDF, scroll to Chart II, part 2). Perhaps these lawyers are worried that setting caps at a more generous level (or, heaven forfend, removing them entirely) would increase the premiums currently assessed against them to cover the risk pools. In Pennsylvania, according to columnist Spatz, these premiums were recently running at the very extravagant level of $45 per lawyer per year.

In a number of states, it should be noted, lawyers impose an effective cap of zero on this particular kind of claim, by the simple method of not having established any collective client protection scheme at all. And there is a certain very plausible logic to that position: why after all should rank and file attorneys be asked to clean up the messes left by their errant brethren? Is a lawyer his brother’s keeper? It’s just that this argument would sit better were the leaders of the bar not constantly denouncing the medical profession for its alleged failure to police itself.

Read On…

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Wal-Mart: target

“Encouraged by the press criticism, entrepreneurial trial lawyers, eyeing Wal-Mart’s deep pockets with glee, have made it perhaps the biggest private-sector target of the nation?s plaintiffs’ bar. In just ten years, the number of pending lawsuits against Wal-Mart has increased fourfold, to 8,000, and the company has tripled the size of its litigation department. … Wal-Mart faces a growing number of potentially costly class action lawsuits, exemplified by a sex-discrimination suit brought by the Cohen, Milstein, Hausfeld & Toll firm, notorious for getting Texaco to pay $176 million to black employees in a discrimination suit.” (Steven Malanga (Manhattan Institute), “What Does the War on Wal-Mart Mean?”, City Journal, Spring). See Jul. 7-9, 2000 and more links: Feb. 1, 2004; Dec. 4, 2003; Jan. 11, Jun. 14, and Aug. 29-30, 2001; Sept. 6-7, Sept. 25-26, Nov. 15, and Dec. 13-14, 2000; and Dec. 2, 1999. More: we are linked by Always Low Prices — Always, a blog whose mission is to chronicle “The Best and the Worst about Wal-Mart” and which is put out in part by Kevin Brancato of George Mason U. and the economics blog Truck and Barter. (More: Apr. 19, 2005).

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Lawsuit: school failed to supervise gang initiation

On March 28, 2002, 14-year-old Francisco Belman asked to join the “Latin Mafia” gang at H.E. McCracken Middle School in Bluffton, South Carolina, an initiation that required him to be punched several times in the chest. Midway through the school bathroom ceremony, however, he collapsed and went into convulsions; the gang members tried for a few minutes to revive him with “sink water and paper towels.” School officials were eventually summoned, and gave Francisco CPR while waiting for paramedics; paramedics defibrillated, but Belman’s heart stopped again on the way to the hospital; Belman went into a vegetative state and died ten weeks later. So the parents have sued “the South Carolina Board of Education, Beaufort County Board of Education, town of Bluffton, Beaufort County Sheriff’s Office and the parents of the two boys who pleaded guilty this month to involuntary manslaughter in Francisco’s death.” Especially appalling is the newspaper’s editorial defending the lawsuit against peripheral players as an appropriate mechanism for the parents’ grief, but lapses into self-parody:

Clearly, the Belman family wants and deserves an apology. But from whom? The two boys who were trying to initiate Francisco into their club that fateful day have expressed remorse, and how could they not? They are teenagers; they didn’t know their machismo would ultimately kill Francisco.

(Stephanie Ingersoll, “Lawsuit filed in boy’s beating death”, Carolina Morning News, Mar. 26; “Editorial: Don’t judge Belman family for filing lawsuit”, Carolina Morning News, Mar. 26; “Chronology of a tragic day”, Carolina Morning News, Mar. 26; Noah Haglund, “Trial to begin in McCracken student’s death”, Hilton Head Island Packet, Mar. 14).

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