Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘Illinois’

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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Attorney accidentally sues himself

By reader acclaim, from the Illinois county that furnishes so much material for this site: “Alton attorney Emert Wyss thought he could make money in a Madison County class action lawsuit, but he accidentally sued himself instead.” Representing a client who’d bought and then refinanced a house, Wyss advised her that she might be entitled to file a lawsuit against the company that wrote the original mortgage over the $60 fee it charged for faxing two payoff statements, and soon signed her up for a class-action suit to be handled by himself and several other law firms, including the prominent Lakin firm. However, it developed that a company called Centerre Title, owned by Wyss himself, had been the party that collected the allegedly improper fees at closing, and when the mortgage-company defendant learned of this it moved to add both Centerre and Wyss as third-party defendants, much as Jerry, in the old cartoons, sometimes succeeds in bringing Tom’s tail around in circular fashion and presenting it for him to bite. The judge granted the motion, and rather than persist in a suit against himself Wyss resigned the client’s representation. The Madison County Record’s coverage includes deposition-transcript excerpts that serve as a reminder of how essentially passive clients often get steered into class actions in which the lawyers are the real parties in interest (Steve Corris, “Alton attorney accidentally sues himself”, Madison County Record, Mar. 8).

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Beating the clock in class-action-land

The scene in certain counties of Southern Illinois shortly before the signing of the Class Action Fairness Act: “Class-action business was busy last week in Madison and St. Clair counties in anticipation of the new law. Thirty-four class actions were filed in Madison County, and 51 in St. Clair County, with some lawyers making sure Friday morning to get their suits stamped before the Bush signing.” (Paul Hampel, “Where the suits are”, St. Louis Post-Dispatch, Feb. 20).

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Put the blame on games, cont’d

Devin Thompson, 16 at the time, is charged with murdering two Fayette, Ala. policemen and an emergency dispatcher in June 2003. Now members of the victims’ families are suing the maker of the Grand Theft Auto video game, retailers Wal-Mart and Gamestop, and Sony, which manufactures the PlayStation, as well as Thompson himself, on the grounds that the violent game “trained” the teen to commit the real-life killings. Representing the families, if you haven’t already guessed, is attorney Jack Thompson, whose anti-videogame crusade has for years provided material for these columns (Sept. 26 and Dec. 17, 2003, etc.)(Johnny Kampis, “Lawsuit claims video violence precipitated Fayette police shootings”, Tuscaloosa News, Feb. 15; Tony Smith, “Grand Theft Auto firm faces ‘murder training’ lawsuit”, The Register (UK), Feb. 17). More: “The supporters [of anti-videogame government action] think violent games produce violent teens, but the evidence is lacking.” (Steve Chapman, “Violent video games and Illinois’ loopy legislators”, syndicated/Chicago Tribune, Mar. 20)

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Performance review can defame employee

Bad news for Illinois employers: “In a recent state appeals court ruling, a Chicago lawyer accused of allegedly cursing and displaying improper behavior during a performance review won a $300,000 defamation lawsuit against his employer, which fired him after the review. … The appeals court rejected CNA’s argument that what happened during a private corporate meeting — in this case the performance review — did not warrant a defamation claim because it was never printed.” (Tresa Baldas, “Lawyer Wins Defamation Suit Over Performance Review Claims”, National Law Journal, Feb. 10).

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Ted’s mythbusting at Point of Law

Maybe he’s too modest to mention it here, but over at our sister website, Ted has been on a roll with several devastating posts correcting fallacies that have circulated during the past week’s intense news coverage of liability reform:

* The George Soros-sponsored, David Brock-run media gadfly organization, Media Matters for America, recently criticized the Washington Post for running coverage that was not (to its taste) sufficiently critical of medical malpractice reform. Trouble is, as Ted shows, Media Matters itself blundered into whopping errors on the subject, badly misrepresenting the views of the Congressional Budget Office (CBO). “This is what MMFA gets for relying on ATLA fact sheets instead of primary sources.”

* Pointing to evidence that payouts by 98 Massachusetts doctors accounted for more than 13 percent of one year’s malpractice payouts in the state, the New York Times concluded that cracking down on bad doctors could greatly help the malpractice crisis. But the numbers announced in the study warrant no such conclusion;

* The Association of Trial Lawyers of America is out with a supposed fact sheet on medical malpractice, which (no surprise) Ted finds to be full of gross distortions. Equally embarrassing, he catches Illinois Democratic Congresswoman Jan Schakowsky posting on her official website a huge chunk of the lame ATLA argumentation, cut and pasted without acknowledgment of its interest-group origins. (Allen Adomite at Illinois Civil Justice League has more).

* Finally, Ted discovers the Alabama Trial Lawyers Association claiming that a profitable year in the property insurance business is reason to doubt that there’s a crisis in the liability insurance business.

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Finding an OB in Illinois

Dr. Benjamin Brewer, who writes the Wall Street Journal’s “The Doctor’s Office” column, discusses the OB shortage caused in Illinois by the medical malpractice problem. Trial lawyers like to blame the insurance industry’s investments and “business practices,” but the leading insurer in Illinois, ISMIE, has only 3% of its funds in the stock market. (Moreover, ISMIE is a mutual insurer–profits go back to its member doctors. The doctors aren’t conspiring to charge themselves too much; ISMIE’s rates reflect the payouts it makes in malpractice cases.) Large swaths of southern Illinois and nearly half the counties in the state have no obstetrical hospital services at all. Brewer concludes “it may take a federal law to stimulate the reform process in Illinois, where entrenched proponents of our broken system hold political and judicial sway.” (“When a Pregnant Patient Struggles to Find Care”, Jan. 4). Our sister site, Point of Law, comments on tomorrow’s Presidential visit to Madison County, where Bush will discuss his litigation reform agenda for the upcoming Congress. (Krysten Crawford, “Bush heads to ‘Judicial Hellhole'”, CNN/Money, Jan. 4; Ryan Keith, “Bush to Highlight Tort Reform in Ill.”, AP/Newsday, Jan. 4; Caleb Hale, “Doctors Are Eager To Hear What Bush Will Say About Crisis”, The Southern, Jan. 4; Mark Silva, “Bush’s tort reform efforts to start at ‘judicial hellhole'”, Chicago Tribune, Jan. 3).

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Watch what you say about lawyers, cont’d

Madison County: Gordon Maag, the trial-lawyer-backed candidate who last month was defeated in a race for the Illinois Supreme Court in what is said to have been the most expensive judicial race in American history, has filed a $100 million defamation suit against an arm of the Illinois Chamber of Commerce for saying bad things about him during the recent campaign. (St. Louis Post-Dispatch/Edwardsville Intelligencer/Southern Illinoisan/Illinois Leader). Jim Copland comments at Point Of Law. For two other widely noted efforts by Madison County lawyers to silence or intimidate their critics, see Nov. 4 and Nov. 30, 1999 and Feb. 29, 2000 (class action lawyers sue Post-Dispatch columnist Bill McClellan for making fun of them) and Jun. 9, Jul. 12, Jul. 26, 2003 (dragging national tort reform groups to court). For efforts to suppress the airing of ads affecting the Maag-Karmeier race, see Oct. 27. For other watch-what-you-say-about-lawyers cases, see Mar. 16 and Nov. 15, 2004, Nov. 30, 2003, and earlier posts; and Point of Law, Oct. 25 and Dec. 22, 2004.

Read On…

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Madison County suit: pharmacy’s fault plaintiff overdosed from stolen drugs

Jode L. Sandbach recently pleaded guilty to a February theft of Oxycontin and Xanax from pharmacist Michael J. Cleary and his pharmacy, The Medicine Shoppe in Wood River, Illinois. She (again illegally, of course) gave the drugs to her boyfriend, Justin Stalcup, who promptly overdosed and died. The death was ruled an accident. Stalcup’s estate isn’t just suing Sandbach, but also Cleary and the pharmacy–notwithstanding the three intervening criminal acts, and the decedent’s own negligence (if not intentional suicide). (Brian Brueggemann, “Man’s estate sues pharmacy where drugs stolen”, Belleville News-Democrat, Dec. 17; Brian Brueggemann, “Woman charged after pal dies from drug overdose”, Belleville News-Democrat, Mar. 20).

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