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CONSUMER PROTECTION Nike settles claims it lied about employee benefits By agreeing to pay $1.5 million to the Fair Labor Association, Nike-the athletic shoe and clothing manufacturer-settled claims of false advertising and unlawful and unfair business practices filed against it by a California consumer. The settlement was reached on Sept. 12. The Beaverton, Ore.-based Nike had launched a public relations campaign to improve its image with regard to its overseas labor practices. Seeking to portray itself as a conscientious and fair employer that cared about the welfare of all its employees, it made specific claims about employee benefits, which, Mark Kasky, a Nike customer, claimed were false and misleading, and whose purpose was to increase sales. Nike argued that the statements were protected speech. Kasky v. Nike Inc., No. 994446 (San Francisco Co., Calif., Super. Ct.). PLAINTIFF’S ATTORNEYS: Roderick P. Bushnell, Alan M. Caplan and Philip Neumark, Bushnell, Caplan & Fielding, San Francisco; Patrick J. Coughlin, Milberg Weiss Bershad Hynes & Lerach, San Francisco DEFENSE ATTORNEY: James Penrod, San Francisco CONTRACTS Pet store chain’s claim of breach of contract fails A company that had been accused of breaching a contract to install point-of-sale technology was found not liable by an Arizona jury on Sept. 5. PetsMart Inc. of Phoenix entered into an agreement with Datatec Inc. of Fairfield, N.J., to install the technology, including credit card readers, cash registers and support in its 600 stores. PetsMart claimed that Datatec charged it $700,000 more than the $3.3 million estimate, did shoddy work and missed the completion date by more than two months. Datatec claimed that there was no formal contract and that, if one existed, the company was not in breach, and counterclaimed for $172,000 in unpaid invoices. The jury awarded Datatec the $172,000 it sought. Petsmart Inc. v. Datatec Systems Inc., No. CV-200-01758 (Maricopa Co., Ariz., Super. Ct.). PLAINTIFF’S ATTORNEYS: Daniel P. Quigley and Raymond K. Ramella, Cohen Kennedy Dowd & Quigley, Phoenix DEFENSE ATTORNEYS: Joseph C. Kreamer and R. Michael Skupin, Hopkins & Kreamer, Phoenix MEDIA LAW Jury gives $3.7M to man tarred as a ‘sex offender’ An Internet media site’s Oklahoma publishers were directed to pay $3.7 million to a man whose address was listed as the residence of a registered sex offender. An Oklahoma jury handed down the award on Sept. 18. A Web site jointly operated by the Daily Oklahoman and Oklahoma City’s KWTV-Channel 9, www.newsok.com, said that a sex offender lived at Dennis Stewart’s address. The erroneous information was reprinted from a state Department of Corrections e-mail. A neighbor found the information on the Web site and handed out fliers in Stewart’s community stating that Stewart was a registered sex offender. Stewart sued the owner of the Daily Oklahoman, the owner of KWTV and newsok.com. The defendants argue that they had a privilege to publish the information. Stewart countered that the privilege was inapplicable because the Web site also wrote in its search page that the information had been verified. Stewart v. The Oklahoma Publishing Co., No. CJ-02-00490 (Creek Co., Okla., Dist. Ct.). PLAINTIFF’S ATTORNEYS: Douglas E. Stall, Latham, Stall, Wagner, Steele & Lehman, Tulsa, Okla.; Steven E. Chlouber, Fuller, Chlouber & Frizzell, Tulsa DEFENSE ATTORNEYS: Robert D. Nelon and Jon A. Epstein, Hall, Estill, Hardwick, Gable, Golden & Nelson, Oklahoma City PRODUCTS LIABILITY Union Carbide not liable for Fla. man’s asbestosis Union Carbide Corp. was found not liable for a laborer’s asbestosis by a Florida jury on Sept. 19. Joe M. Fernandez worked as a painter and as a drywall finisher from 1966 to 1977. During that time, he regularly sanded joint compound on taped joints. He claimed that he contracted asbestosis from exposure to dust particles created when he sanded a Georgia Pacific Corp. joint compound that contained asbestos fibers sold by Union Carbide. He sued Union Carbide, claiming that the company failed to warn of the dangerous propensities of its asbestos-containing product. Union Carbide argued that it always warned its customers, including Georgia Pacific, of the potential hazards inherent in all types of asbestos products. Fernandez v. Union Carbide Corp., No. 02-21136-CA-42 (Miami-Dade Co., Fla., Cir. Ct.). PLAINTIFF’S ATTORNEYS: James L. Ferraro, Todd R. Falzone and David A. Jagolinzer, Ferraro & Associates, Coral Gables, Fla. DEFENSE ATTORNEYS: Morton D. Dubin, Orrick, Herrington & Sutcliffe, New York; Peter L. Wechsler, Ruden, McClosky, Smith, Schuster & Russell, Miami TORTS Disney to pay damages in coffee-scalding suit A father who was badly burned when a waitress spilled a pot of coffee on him was awarded $668,000 in damages on Sept. 5 by a Florida jury. Andrew Allocco, a 31-year-old pilot, sustained first- and second-degree burns to his groin, waist and upper thighs in the accident. He and his family were attending a “character breakfast” at Orlando, Fla.-based Walt Disney World’s Polynesian Resort Hotel. A waitress, holding a tray at shoulder level, spilled an entire pot of hot coffee on Allocco. Allocco and his wife sued Walt Disney World Inc., claiming that the hotel’s policy required that employees hold trays carrying hot liquids at waist level. Disney claimed that Allocco caused the spill by grabbing the coffee, and that he had exaggerated his injuries. Allocco v. Walt Disney World Co. Inc., No. CIO-02-2005 (Orange Co., Fla., Cir. Ct.). PLAINTIFFS’ ATTORNEYS: John Elliott Leighton and Mark A. Sylvester, Leesfield Leighton Rubio Mahfood & Boyers, Miami DEFENSE ATTORNEY: Kurt M. Spengler, Wicker, Smith, O’Hara, McCoy, Graham & Ford, Orlando, Fla. Psychiatrist, hospital, not liable for patient’s suicide A psychiatrist and the hospital in which a woman hanged herself were found not liable for her death by a California jury on Sept. 15. Svetlana Dyakovetsky, 42, was brought to Sharp Mesa Vista Hospital after attempting suicide by overdosing on sleeping medication. Psychiatrist Ronald R. Harrington admitted her to the intensive treatment program, a routine level of observation requiring that she be checked on every 30 minutes. Nine hours later, during one of those 30-minute intervals, Dyakovetsky took her life. Her estate and her family claimed that she should have been admitted to the intensive care unit, where she would have been observed every 15 minutes. The defendants claimed that, based on what they knew of her mental state at the time, putting her on a 30-minute watch was within the standard of care. They also claimed the suicide was unforeseeable. Dyakovetsky v. Sharp Memorial Hospital, No. 779336 (San Diego Co., Calif., Super. Ct.). PLAINTIFFS’ ATTORNEY: Sheldon A. Ostroff, Huffman & Kostas, San Diego DEFENSE ATTORNEYS: Mark L. Brandon, Grace Brandon & Hollis, San Diego; Thomas E. Lotz, Lotz Doggett & Rawers, San Diego WORKERS’ COMPENSATION Refinery, family settle for $36M over blast death The family of a man who was killed in an explosion at an oil refinery settled for $36.4 million on Sept. 9. Jeffrey C. Davis was a 51-year-old construction worker for a company that was hired to repair catwalks on tanks at a refinery in Delaware City, Del. The refinery was operated by Motiva Enterprises, a Houston-based joint venture. Davis was killed and eight others were injured when an explosion occurred after a spark from welding equipment ignited flammable vapors in a 415,000-gallon sulfuric acid storage tank. Davis’ estate and wife, Mary, sued Motiva for wrongful death, arguing that the explosion was caused by an ignition of hydrogen gas emitted from leaks in the tanks as a result of years of neglect. Davis v. Motiva Enterprises LLC, No. 02-3852 (E.D. Pa.). PLAINTIFFS’ ATTORNEYS: Thomas R. Kline and Matthew A. Casey, Kline & Specter, Philadelphia DEFENSE ATTORNEYS: Howard M. Klein and Lauren A. Schochor, Conrad O’Brien Gellman & Rohn, Philadelphia; Paul M. Lukoff, Prickett, Jones & Elliott, Wilmington, Del. More information about these cases, as well as full reports on other verdicts and settlements, can be found in the VerdictSearch National Reporter or at www.VerdictSearch.com. To submit a case, call (212)313-9057, fax (212)313-9145 or use the form at www.VerdictSearch.com/submit. For subscription information or jury verdict research, call (800)832-1900.

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