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After Philip McConkey’s 1991 retirement as a wide receiver for the New York Giants football team, he began a second career as an insurance broker for a New Jersey company. Four years later, McConkey was aggressively recruited by a larger broker, Alexander & Alexander Services Inc., says his attorney Neil Mullin of Montclair, N.J.’s Smith Mullin. In a meeting with Frank G. Zarb, chairman of the board, McConkey expressed reservations about coming to the broker because he had heard rumors “that Alexander & Alexander was on the auction block,” Mullin notes. McConkey did not want to go to a company about to be acquired because, as a middle-management employee, he would be one of the first laid off after the acquisition. “Zarb said the rumors were unfounded,” says Mullin. “Zarb told him, ‘We are the predators, not the prey.’” McConkey accepted the job offer in May 1996. Just seven months later, the brokerage was sold to Aon Corp. A few months later, McConkey was laid off. He then sued Aon and Alexander & Alexander, but not on a claim of wrongful termination. McConkey claimed fraud — specifically, that he had been lied to in order to induce him to take the new job. In December 1999, a Newark, N.J., jury awarded McConkey $10.04 million. It was one of the largest verdicts ever in an employment fraud action and an early indication that those types of lawsuits are becoming one of the hottest emerging causes nationwide. But it’s not the only type of lawsuit showing great promise for plaintiffs this year. Attorneys in many jurisdictions are carving out exceptions to workers’ compensation limits on recovery. Plaintiffs’ lawyers in several states have launched a growing number of lawsuits against laser eye surgery clinics, claiming medical malpractice and consumer fraud. And plaintiffs injured in ballparks, who have long been barred from recovery by tradition or assumption-of-risk defenses, are winning substantial judgments. Each year for the past four years, The National Law Journal has investigated litigation nationwide to produce a report on emerging causes of action. The lawsuits detailed generally describe the transfer of theories accepted in some categories of lawsuit to different sorts of cases, or the response by plaintiffs’ lawyers to changes in legislation, social mores or corporate behavior. The truly new cause of action is rare. Advances in litigation tend to be more evolutionary than revolutionary. These are the causes emerging this past year that seem most likely to succeed. EMPLOYMENT FRAUD � Litigation over broken promises made to prospective employees. As a result of low unemployment rates nationally, employers and recruiters are increasingly giving inflated promises to job candidates, notes Mullin. The nature of these promises can vary, he says. “It’s common for companies to conceal or lie about the nature of the job or lie about the financial condition of the company. They’ll lie about compensation or about the great stock option programs.” But, he adds, employers “are required to be truthful in hiring,” or else they can be liable for charges of fraud. In McConkey’s case, he says, he decided to join Alexander & Alexander because he had been assured that the brokerage was not about to be sold. However, “Zarb was actively negotiating to sell the company to Aon,” Mullin says. To charge fraud against an employer or ex-employer, Mullin says, “you have to show detrimental reliance.” Also, he says, the plaintiff has to be able to prove that the defendant knowingly made a false statement or promise. In McConkey, the plaintiff produced proxy statements by the brokerage describing the sale negotiations. The defense denied fraud, but the jury found otherwise. Post-trial motions to set aside the December jury verdict ruling were denied, but the award was reduced to $6.1 million. The judgment has been appealed. McConkey v. Zarb, No. 845797 (Super. Ct., Essex Co., N.J.). Also, the rise of the executive recruitment industry has led to increased litigation over truth in hiring, Mullin said. Suing recruiters is “the next wave,” he predicted. NEGLIGENCE, GUN SAFETY � The heightened duty of relatives to prevent gun-related incidents. The ultimate responsibility of gun-makers and distributors over the use of guns in crimes and accidents has yet to be determined. But there is a clear trend in actions filed against the relatives of shooters; they are being held to a higher standard of care than in years past. In June, for instance, the Kansas Supreme Court further stiffened the responsibility of gun owners to prevent access by minors when it ruled that putting an unloaded gun in a locked box did not meet the duty owed “to protect the public from the misuse of a gun.” Wood v. Groh, No. 81826. In March, a Chicago jury awarded $2.5 million to the parents of a teenager who was killed in a July 4, 1994, shooting accident, despite claims by the defendants that the victim and shooter gained access to the weapon through unauthorized entry to the defendants’ home. In the case, Steve Aurenz, then 14, had brought John Zimmer, also 14, to his grandparents’ home on July 4, 1994, to look for fireworks, says plaintiffs’ attorney Stuart M. Kessler of Arlington Heights, Ill. There was a shotgun under the bed in his uncle’s bedroom. “Steve loaded it, and it was one to three feet from John’s head when it went off,” Kessler recounts. John Zimmer’s parents sued the grandparents, Adam and Hildegard Nadj. The defense contended that the boys’ presence in the house was unauthorized and thus that the grandparents had no legal duty to lock up the gun. But the plaintiffs noted, Kessler says, that the boy had a key to his grandparents’ home and knew where the shotgun was. “Foreseeability” was a major aspect of the plaintiffs’ case, he says. Post-trial motions are pending. Zimmer v. Nadj, 95 L 014237 (Cir. Ct., Cook Co., Ill.). CONSUMER PROTECTION � Litigation over business practices and medical treatment in laser eye surgery clinics. Laser eye surgery has quickly become one of the most popular forms of elective surgery in North America. In the past 12 months, more than a million operations have been performed here and in Canada, says Lynn L. Sarko of Seattle’s Keller Rohrback. But, he adds, for many of the patients — up to 50 percent of them — the operations are not turning out as expected. Vision problems, he asserts, are not uncommon, and are irreversible. These results, he says, have led to numerous lawsuits, including a medical malpractice charge and potential consumer class action filed by Sarko in October against a major Canadian laser eye surgery clinic. Harris v. Lexington Eye Institute Ltd., No. 00-2-26941-2SEA (Super. Ct., King Co., Wash.). The plaintiffs in this and other suits are alleging medical malpractice, lack of informed consent and violation of consumer protection laws. There is a particular push for litigation against the laser eye surgery clinics established in southern Canada, says Sarko. There are fewer problems with surgeries performed by ophthalmologists outside of high-volume clinics, he says. Canadian clinics, Sarko charges, are promising results that they cannot necessarily deliver and are inducing patients to sign forum selection clauses providing they can sue for malpractice only in Canada, where damages are capped at $250,000. Sarko’s firm has settled two individual lawsuits, and attorneys in several jurisdictions report a significant increase in lawsuits considered and lawsuits filed. Sarko says, “This is where fen-phen was four years ago.” PERSONAL INJURY, WRONGFUL DEATH � Negligence by failing to provide defibrillation equipment in public places. The realization that portable defibrillators can substantially increase the chances of saving the lives of heart attack victims has given rise to lawsuits charging that the absence of the equipment has led to severe injury or death. Plaintiffs’ attorneys are claiming that the semi-automatic defibrillators should be available in health clubs, at sporting events and in any other public place. Ronald C. Kidd of Springfield, Mass.’ Robinson Donovan Madden & Barry recently settled a wrongful-death action against United Airlines on behalf of Jamie Somes, the widow of Steven Somes, who died of cardiac arrest aboard a United flight in 1995. After the death, United announced that it would deploy the machines in its aircraft. The Federal Aviation Administration subsequently announced regulations requiring all airlines to carry defibrillators on flights of 30 or more passengers, and to train attendants. But, says Kidd, many other industries have not followed suit. The health club industry may prove the most vulnerable, says plaintiffs’ lawyer Gordon Lea of Sunrise, Fla., who recently represented a man who collapsed and fell unconscious at a Plantation, Fla., exercise facility, suffering permanent brain damage, he says. The health club chain’s own records showed that an average of four cardiac events per branch by club members during exercise each year, he says, and once the owners of the health club learned that defibrillators could save lives, they were negligent in failing to provide the equipment in their facilities. The jury returned a defense verdict, but under a high-low agreement, the case was settled for $2.25 million. Chai v. Q The Sports Club, No. 98-10653 (CA) (05) (Cir. Ct., Broward Co., Fla.). HIGHWAY SAFETY � Lawsuits against owners, leasers and drivers of trucks over accidents caused by trucker fatigue. Federal deregulation of the trucking industry and the increased demand for truckers to transport Internet-ordered goods has led to an increase in driver fatigue-related accidents, says plaintiffs’ attorney John S. Jose of Jose, Henry, Brantley & Keltner, in Fort Worth, Texas. To establish liability for the trucker and the owner or lessor of the truck, the plaintiffs must prove that driver fatigue led to the accident. But often, the truckers’ logs recording hours worked are missing or falsified, notes Buffalo, N.Y., sole practitioner Francis M. Letro. To create an accurate picture of the driver’s work hours and probable lack of rest, Jose says, plaintiffs’ attorneys have to piece together travel records, using credit card receipts, dispatch records, telephone records, toll receipts and pay stubs. In his recent representation of the family of a 49-year-old woman who was killed when her car was rear-ended by a tractor-trailer truck, the driver of the truck did not keep any logs. But in the investigation, he says, the plaintiffs’ attorneys found that “the driver had been out more than 20 hours without sufficient rest periods.” This detective work was a major factor in forcing a $24 million settlement in June for the Bartula family. Bartula v. Refrigerated Transport, No. 48-180452-99 (Dist. Ct., Tarrant Co., Texas). The owners or lessors of the trailer or the tractor portion of the truck are liable for the actions of the driver, adds Daniel Moody of Bartow, Fla.’s Pansler & Moody. PREMISES LIABILITY � Negligent failure to protect fans at sports facilities. Traditionally, when a spectator at a sporting event has been hit by an errant baseball, bat, hockey puck or car part, recovery for injuries has been limited. The typical result for litigation has been dismissal of the lawsuit under the doctrine of assumption of risk. In April, the Florida Marlins baseball team was ordered to pay $1 million to a boy who suffered brain damage after being hit in the head by a baseball during batting practice. Numerous other actions against baseball and hockey teams have resulted in confidential settlements, adds James Elliott of Bloomfield, Mich., who won a $1 million verdict, now under appeal, against the Detroit Tigers in 1998. Benejam v. Detroit Tigers, No. 96 618356 NI, in which a girl’s fingers were crushed by the shards of a broken bat. Elliott and others winning judgments against sports facilities are now using basic premises liability theories to get past the assumption-of-risk roadblock. The essence of the charge, he says, is that ballpark owners are aware of the number and location of accidents but have failed to provide Plexiglas screens or netting to prevent injuries. The typical defense is that the injuries were caused by lack of attention by the spectator, he says. But the plaintiffs’ attorneys contend that spectator negligence is not a factor. The ball club owners print waivers of liability on the back of the tickets purchased, he notes. But, Elliott says, the waivers are invalid. “They’re a violation of consumer protection statutes because most spectators are not aware of the waiver and even if they are, they can’t read it until after they’ve bought the ticket.” It is impossible to waive rights unknowingly or after purchase, he says. MEDICAL MALPRACTICE � Sports team doctors sued for failure to provide adequate health care. When an athlete on a professional or school team is injured, there can be a conflict between the needs of the team and the protection of the player. Team physicians owe a duty of care to the athlete to objectively investigate and evaluate the extent of an injury or underlying medical condition, says plaintiffs’ lawyer Robert L. Fogel of Chicago’s Hilfman, Fogel, Martin & Barr. But in a number of current lawsuits, athletes are suing team doctors, contending that the physicians breached this standard. Fogel recently won a $1.55 million medical malpractice verdict for a former running back for the Bears football team who charged that the team physician had failed to treat him properly after a concussion sustained during a game. Merril Hoge contended that Dr. John Jay Munsell had failed to re-examine or monitor him and had failed to explain the symptoms of continued head injury before letting him back on the field. A part of the charge in the Hoge case, Fogel notes, was that Munsell had failed to take into account the culture of professional football: that players will play with pain and will minimize complaints. Hoge v. Munsell, No. 98 L 996 (Cir. Ct., Lake Co., Ill.). Team physicians commonly fail to pick up symptoms of traumatic brain injury, says H. Douglas Spruance III of Spokane, Wash. He is representing Jared Hope, a former hockey player in the Western Hockey League whose career was ended when he was pushed to return to play too soon after suffering a severe concussion. Hope sued the Spokane Chiefs and the league, which recently settled, and filed a medical malpractice action against the team doctor. Hope v. Kloc, No. 98-206208-2 (Super. Ct., Spokane Co.). The doctors sued are those under contract, notes Fogel. Plaintiffs cannot sue doctors who are full-time employees of the team due to workers’ compensation regulations. NEGLIGENT UNDERTAKING � Expanding negligence to corporate parents for undertaking a duty of care without follow-through. Faced with medical malpractice caps or other restrictions on recoveries, plaintiffs’ lawyers are increasingly using the charge of negligent undertaking to seek damages from deep pocket defendants. Last November, for example, an Eagle Pass, Texas, jury found Quorum Health Resources Inc., a hospital management company, 65 percent responsible for the injuries sustained during childbirth by a girl now six years old. The parents of Cristina Rodriguez contended that negligence during delivery at Fort Duncan Medical Center in Eagle Pass left the child with severe cerebral palsy, mental retardation and cortical blindness. The plaintiffs could not recover much from Fort Duncan — there was a $100,000 cap on damages because the hospital was county-owned, says plaintiffs’ attorney Mark R. Mueller of Austin, Texas. Nor could they sue Quorum, the manager and administrator, for medical malpractice, because it was not a medical provider. Instead, they sued Quorum for negligent undertaking. The jury awarded $59.5 million; the case was settled on confidential terms last October. Rodriguez v. Quorum Health Resources, No. 96-06-13873-CV (Dist. Ct., Maverick Co., Texas). Trade associations can also be held liable for negligently undertaking a responsibility, says Jan Eric Peterson of Seattle’s Peterson Young. He won an $11 million jury verdict against the National Spa and Pool Institute for a 25-year-old man who was rendered quadriplegic in a 1991 diving accident in a backyard pool. Voluntary standards for placement of the diving board in this pool were established by the NSPI, Peterson says, but as a result of an upslope wall in the pool, the water was only four feet deep at the point of impact. The trade association denied any responsibility, but the Washington state court of appeals upheld the verdict, finding that a trade association “owes a duty of care to the ultimate consumer.” WORKPLACE INJURIES � Developing alternate sources of recovery for workplace injuries. Under workers’ compensation rules, employees cannot sue their direct employers for job-related injuries, but are limited to collecting workers’ compensation benefits. To increase recovery for a workplace injury, plaintiffs traditionally attempt to sue other corporate entities involved in a work site. Plaintiffs’ lawyers have been extending the reach of such suits. In litigation arising out of workplace violence, for example, plaintiffs are suing human resources and security consultants, notes David F. Kirby of Raleigh, N.C.’s Kirby & Holt. If a human resources consultant prepared employee manuals on policies including hiring, firing, background checks and prevention of workplace violence, he says, that could leave the consultant liable for an incident. In addition, plaintiffs are increasingly suing the employer’s parent or affiliated corporations, he says. Last September, a Texas jury awarded $122.59 million to three workers who sustained massive burns in a workplace explosion, after the jury found that the employer’s parent had budgetary control over safety and maintenance. Torres v. Coastal Corp., No. 99-2786 (Dist. Ct., Nueces Co., Texas).

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