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LACK OF PROTECTIVE RAILING LEADS TO $10.5M VERDICT CASE TYPE: wrongful death CASE: Garza v. City of Galveston, No. 96CV0457 (Dist. Ct., Galveston Co., Texas) PLAINTIFFS’ ATTORNEY: Alton C. Todd, of Alvin, Texas’ Law Firm of Alton C. Todd DEFENSE ATTORNEYS: Ervin Apffel, of Galveston, Texas’ McLeod, Alexander, Powell & Apffel, for the city of Galveston; and Norman Snyder, of Houston’s Tucker, Hendryx, Taunton, Snyder & Slade, for Flagship Hotel Ltd. JURY VERDICT: $10.5 million On the night of March 12, 1996, Kenneth Garza, 34, and Dorey Alice Fabian, 25, were out celebrating Mr. Garza’s upcoming birthday when he backed his car off the Galveston Flagship Hotel pier. The car plunged into the Gulf of Mexico, and Fabian and Garza drowned. But, said plaintiffs’ attorney Alton C. Todd, the drowning was not discovered for two weeks. “Then, on March 26, the body of Kenneth Garza washed up,” he said. Two days later, “a police officer remembered that there had been a break in the Flagship pier railing. On March 28, they found the vehicle and Dorey’s body.” After the bodies were recovered, the families of Garza and Fabian filed wrongful-death actions against the hotel and the city, charging that the defendants had created an unsafe condition on the pier by failing to provide or require a railing. When the pier was built in 1941, “only pedestrian traffic was allowed,” said Todd. But in the early 1960s, the hotel was built on the site and the pier was used for parking. “There should have been a railing to protect vehicles from going off the pier,” he said. The pier is four feet off the ground, which, under the Galveston code, requires a railing, Todd said. The deck did not have a railing; it did have a six-inch-high curb about 53 inches from the edge. But hitting the curb would not stop a vehicle from going over, he charged. The plaintiffs contended that the hotel and city were negligent for not installing a safer railing. The city and the hotel countered that the accident was not caused by the size of the curb, but by the amount of alcohol consumed by Garza before the accident, said defense counsel Ervin Apffel. On the night of the couple’s deaths, he said, they had purchased a bottle of champagne and a liter bottle of Royal Crown whiskey. The pier, he added, was not unsafe. In 40 years, no one else had driven off it, he reported. “If someone runs off the pier, there’s got to be something wrong with the driver.” The plaintiffs contested the charges of intoxication. Said Todd, “There was no evidence of impairment.” Both bodies had been in the water too long for a reliable blood-alcohol test, he added. On April 24, a Galveston jury awarded the plaintiffs $10.5 million, finding the city 50%, the hotel 40 percent and Garza 10 percent responsible for the accident. On the finding of 10 percent negligence by Garza, the verdict will be reduced; prejudgment interest, however, will bring it up to $11 million, Todd said. The defendants will appeal, said Apffel. $7M SETTLEMENT REACHED OVER FATAL PAP SMEAR ERROR CASE TYPE: medical malpractice CASE: O’Kane v. Olympia Fields Medical Center, No. 95 L 17863 (Cir. Ct., Cook Co., Ill.) PLAINTIFFS’ ATTORNEY: Kevin G. Burke, of Chicago’s Corboy & Demetrio DEFENSE ATTORNEY: Mark P. Standa, of Chicago’s Pretzel & Stauffer Chartered SETTLEMENT: $7 million Olympia fields Medical Center agreed on May 8 to pay $7 million to the family of a woman who died after a missed diagnosis of cervical cancer. “Joann O’Kane had a routine Pap smear in July 1992, which was read as normal by a technologist at Olympia,” said plaintiffs’ attorney Kevin G. Burke. She had her second child the next year and returned for another Pap test in 1995. This test, Burke said, showed she had cancer. “As required by law, they looked back at the 1992 tests. This time a pathologist read them and saw the cancer there.” The Mayo Clinic confirmed that the 1992 cancer was the same she had in 1995. By the time of the 1995 diagnosis, he said, O’Kane was pregnant and the cancer had spread. She underwent chemotherapy and radiation and the child was stillborn. Eleven months later, O’Kane, 34, died. Olympia initially claimed that O’Kane was at fault for not returning for a Pap test between 1992 and 1995, said Burke, but settled during jury selection for the trial.

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