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SETTLEMENT COMES TOO LATE FOR PLAINTIFFS CASE TYPE: asbestos personal injury CASE: In re asbestos litigation Arthur Trial Group, No. 95-C-12-037 (Sup. Ct., New Castle Co., Del.) JURY AWARD: $8.1 million STATUS: settled Eugene Arthur, Donald Herbster and Frank Kisielewski were exposed to asbestos while working in Delaware, and each was ultimately diagnosed with mesothelioma. The plaintiffs sued a slew of makers and distributors of asbestos, charging that the product caused their illnesses. As with nearly all the asbestos trials in 1997, by the time of trial, only Owens Corning Fiberglas Corp. was left as a defendant. The plaintiffs contended that Owens Corning’s pipe-covering product Kaylo had been defective and that the company had failed to warn of its dangers. In March 1997, a Delaware jury awarded the plaintiffs a total of $8.1 million in damages — $3.6 million in compensatories and $4.5 million in punitives. There was no appeal; the parties settled before the court ruled on post-trial motions. The amount is confidential. None of the primary plaintiffs received any of the settlement, said plaintiffs’ attorney David L. Palmer of Baltimore’s Law Offices of Peter Angelos. Arthur and Herbster died before trial; Kisielewski died shortly after. A DISPUTE OVER LIST OF NAMES IS SETTLED CASE TYPE: breach of contract CASE: First National Bank of Omaha v. Trans Union Corp., No. 8:95CV-57 (D. Neb.) JURY AWARD: $23.73 million STATUS: settled First National Bank of Omaha retained Trans Union Corp., a national credit bureau, to run credit checks on the bank’s credit card customers. In March 1993, First National and Trans Union entered into a confidentiality agreement wherein Trans Union promised not to provide the names of these bank card customers to other credit issuers. First National charged, however, that in July 1993 Trans Union began putting the bank’s customers on lists that it sold to other credit issuers. First National sued Trans Union, charging breach of contract. In August 1997, an Omaha, Neb., jury awarded the plaintiff $23.73 million. Trans Union’s post-trial motions to set aside or reduce the verdict were rejected. Trans Union appealed, but the case settled before any appellate court decisions. The amount is confidential. DISNEY FIGHT ENDS OVER MAGAZINE CASE TYPE: breach of implied contract CASE: De Rogatis v. Disney Magazine Publishing, BC 133051 (Sup. Ct., L.A.) JURY AWARD: $4.5 million STATUS: reversed, settled In August 1993, Linda De Rogatis approached Disney Magazine Publishing, a subsidiary of Walt Disney Co., with an idea for a children’s magazine that would be distributed free as an insert in major newspapers on Sundays, said plaintiff’s attorney Glen L. Kulik of Los Angeles’ Kulik, Gottesman & Mouton. After nine months of discussions, the company informed De Rogatis that it was no longer interested in the idea. Subsequently, De Rogatis charged, Disney launched a new magazine that was similar to her idea, publishing one issue in the United States and several issues in England. De Rogatis sued Disney and in May 1997 was awarded $4.5 million. The trial court denied Disney’s motions to set aside the verdict, but in 1999, California’s 2nd District Court of Appeal reversed. The appellate court affirmed the jury’s decision on liability but ordered a new trial on damages, finding fault with the method used by the plaintiff’s expert to calculate damages. The case settled in June 1999, before a new trial was scheduled. The terms are confidential. INNKEEPER AND INN SWAP SUITS, SETTLE CASE TYPE: employment, discrimination, retaliation CASE: Tower Corp. v. Khatib, No. 96CV598 (Dist. Ct., Denver, Colo.) JURY AWARD: $3.785 million STATUS: reduced, settled Rabah Khatib, the manager of Tower Corp.’s Denver Executive Tower Inn, in a letter from his lawyer, complained to the hotel’s owner that he was being discriminated against because of his national origin. Khatib is a Palestinian Israeli. This set off a wave of harassment, which ended in Khatib’s resignation, said plaintiff’s attorney Darold Killmer of Denver’s Miller, Lane, Killmer & Greiser. However, before Khatib could sue Tower, the company sued him, charging theft and conversion — alleging in particular that Khatib, who had been provided a residence by the hotel, had received unauthorized payments for utilities and phone bills. Khatib counterclaimed against Tower and its owner Herbert Wasserman for discrimination and retaliation. In August 1997, a Denver jury awarded Khatib $3.785 million, including $635,000 against Wasserman. The trial court reduced the verdict to about $2.8 million by slicing the $2.2 million in punitives. Khatib appealed the reduction. Tower went into bankruptcy, and Khatib filed a second lawsuit, seeking to pierce the corporate veil and hold Wasserman responsible for the entire judgment. The case settled in August 1998, for a confidential amount, during the trial on this second lawsuit. $14.6 MILLION PAID IN RETURN FOR A LICENSE CASE TYPE: patent infringement CASE: Beloit Corp. v. Valmet Corp., No. 96-C-0087-C (D. Wis.) JURY AWARD: $14.6 million STATUS: paid In 1987, Beloit Corp. made a series of breakthroughs, advancing technology on the dryer sections of huge paper making machines, said plaintiff’s attorney George P. McAndrews of Chicago’s McAndrews, Held & Malloy. Starting in 1989, Beloit was issued patents on the developments, which increased speed and improved quality, he said. Beloit also sued Valmet Paper Co. for patent infringement on certain of these patents and won a $7.87 million verdict in November 1994; this verdict was subsequently by the U.S. Court of Appeals for the Federal Circuit. Beloit, however, alleged that Valmet had committed a separate infringement of its patents, and it filed another lawsuit. In August 1997, at a second trial, a Madison, Wis., jury found infringement and awarded Beloit $14.6 million in damages. There was no appeal. “By the end of the year, they paid us the $14.6 million in return for a license,” said McAndrews. JURY GETS THE SIGNAL IN UHF PATENT CASE CASE TYPE: patent infringement CASE: Comark Communications Inc. v. Harris Corp., No. 95-CV2123 (E.D. Pa.) JURY AWARD: $7.7 million STATUS: doubled, upheld, settled Comark Communications Inc. invented and patented a common amplification device to be used for UHF television signals and soon began dominating the market for such transmitters. Comark sued its rival, Harris Corp., accusing the company of willfully infringing on two patents for the transmission method. In April 1997, a Philadelphia jury awarded Comark $7.7 million, finding that Comark’s patents were valid and that Harris had willfully infringed on them. The jury also determined, however, that Harris did not commit literal infringement, but infringed under the doctrine of equivalents. The trial court doubled the award, under the finding of willful infringement. Harris appealed, but in 1999 the U.S. Court of Appeals for the Federal Circuit upheld the jury’s decision. By then, with interest and attorneys’ fees, the judgment had grown to $20 million. Harris settled, paying 99 percent of the judgment. TREBLED, UPHELD, PAID — AND GONE CASE TYPE: patent infringement CASE: Johns Hopkins University v. CellPro Inc., No. 94-105-RRM (D.Del) JURY AWARD: $2.3 million STATUS: trebled, upheld, paid While jury verdicts are often whittled down after trials, this modest award not only wound up being substantially enhanced, but also sent the defendant into bankruptcy. Johns Hopkins University, Baxter HealthCare Corp. and Becton Dickinson & Co., charged that defendant CellPro Inc. had infringed on two Johns Hopkins biotechnology patents. One patent covered monoclonal antibodies used to isolate and separate stem cells from blood and bone marrow; the second patent covered a highly purified suspension of such stem cells, said plaintiffs’ counsel Donald R. Ware of Boston’s Foley, Hoag & Eliot. This technology is used in the treatment of cancer patients through stem cell transplants. Johns Hopkins licensed the technology to Becton Dickinson, which sublicensed part of it to Baxter. In March 1997, a Wilmington, Del., jury awarded the plaintiffs $2.3 million. On the jury’s finding that CellPro had willfully infringed, U.S. District Judge Roderick R. McKelvie trebled the verdict that July. After prejudgment interest, attorneys’ fees and expenses were added, the total judgment was $8.7 million. Judge McKelvie also granted the plaintiffs an injunction against CellPro’s use of the stem cell technology. This injunction didn’t require CellPro to take its product off the market immediately, in order not to leave untreated needy patients. But it did require the payment of royalties to the plaintiffs, while Baxter obtained Food and Drug Administration approval for is own stem cell selection devices. In August 1998, the Federal Circuit upheld the entire judgment against CellPro. Two months later, CellPro filed for Chapter 11 and the following year the company was liquidated after entering an asset purchase agreement with Nexell Therapeutics Inc. Despite the bankruptcy, the judgment was paid in full, said Ware. Including royalties, “ultimately we received more than $20 million.” A LEGAL BATTLE OVER ‘BOLIS’ ENDS IN REVERSAL CASE TYPE: trademark infringement CASE: Roli Boli Enterprises v. Pizza Hut Inc., No. 94-4530 (D.N.J.) JURY AWARD: $1.72 million STATUS: reversed Roli Boli Enterprises Inc., a small New Jersey sandwich store chain, charged Pizza Hut Inc. with trademark infringement in connection with the franchise giant’s marketing of sandwiches called “bolis” in its New Jersey stores. Roli Boli owner Anthony Felicetta developed and trademarked a sandwich that was lighter than a traditional Italian sandwich, said plaintiffs’ counsel Howard J. Schwartz of Morristown, N.J.’s Porzio, Bromberg & Newman. Felicetta called his sandwich a “boli.” He sued Pizza Hut after the company began marketing similar sandwiches in August 1994. In May 1997, a Trenton, N.J., jury ordered Pizza Hut Inc. to pay $1.72 million to Roli Boli Enterprises. Shortly afterward, the trial court set the verdict aside, finding that “there was not enough proof of confusion” between the products, said Schwartz. Roli Boli appealed, but the reversal was affirmed by the 3rd U.S. Circuit Court of Appeals. There was no further appeal. $250,000 SETTLEMENT SPURNED, $9.2 MILLION WON CASE TYPE: medical malpractice CASE: Grasso v. Wasserman, No. 95-07890 (19) (Cir. Ct., Broward Co., Fla.) JURY AWARD: $9.2 million STATUS: paid When Gia Grasso was 13, she complained to her parents of blurry vision and problems seeing the blackboard in school, said plaintiffs’ attorney Stuart Z. Grossman of Boca Raton, Fla.’s Grossman Roth & Partridge. On March 29, 1993, Gia went to Coral Springs, Fla., optometrist Dr. Louis Wasserman, who diagnosed her with lazy eye and told her to come back in a year. Her vision complaints escalated; ultimately, she was diagnosed with a brain tumor, which had been growing at the point where the two optic nerves meet. Surgery and radiation saved her life, but she was left completely blind. She sued Wasserman, charging that he had failed to diagnose the tumor and that early detection would have prevented her blindness. In February 1997, a Florida jury ordered Wasserman to pay the plaintiff $9.2 million. The verdict was paid in full, Grossman reported, “even though Wasserman had only $1 million in coverage.” Before trial, the insurance carrier had offered only $250,000 to settle. After the trial, Grossman said, “We threatened the carrier with bad faith [litigation] and they came up with the money.” $4.5 MILLION MED-MAL AWARD SHAVED TO $4 MILLION CASE TYPE: medical malpractice CASE: Blankshain v. Gavani, No. 95 L 4851 (Cir. Ct., Cook Co., Ill.) JURY AWARD: $4.5 million STATUS: settled Plaintiff Jane Blankshain charged radiologists K.S. Vedentham and J. Randall Lester with failing to compare X-rays taken of her lungs in September 1992 with X-rays taken the previous year, thus failing to note abnormalities that would have indicated a need for further tests. Blankshain was diagnosed with lung cancer two years after the radiologists first looked at her lung X-rays. By the time the cancer had been detected, it had spread to her lymph nodes. She also sued her attending physician. In March 1997, a Chicago jury ordered the radiologists and their radiology corporation to pay Blankshain $4.5 million, while clearing the attending physician. The case settled before post-trial motions for $4 million. $63.7 MILLION MOLESTATION VERDICT NEVER PAID CASE TYPE: personal injury CASE: Bernal v. Houston Independent School District, No. 8971518 (S.D. Texas) JURY AWARD: $63.7 million STATUS: reduced, never paid The family of a student who had been sexually abused by Houston elementary school teacher Jerry Asher sued Asher and the Houston Independent School District. The plaintiffs claimed that the school district had failed to protect students from Asher, but the trial court dismissed the case against the school district. The jury considered only the claim against Asher. In March 1997, a Houston jury awarded $45.5 million in damages and $18.2 million in attorneys’ fees. The trial court reduced the attorneys’ fees — finding they were unnecessary for a trial in which the remaining defendant was not represented by counsel — but left the rest of the verdict untouched. The verdict went unpaid; Asher eventually pleaded guilty to child molestation and was sentenced to 50 years in prison, according to his defense counsel in the criminal matter. He had no assets and remains in prison. LIMITS FORCE DEAL IN $10 MILLION TRAIN CRASH SUIT CASE TYPE: personal injury CASE: Start v. Kansas Southwestern Railway, No. 95-C2358 (Dist. Ct., Sedwick Co., Kan.) JURY AWARD: $10.04 million STATUS: reduced, settled On Aug. 25, 1992, Alvin Stark was driving over the railroad crossing at North Tyler Road in Wichita, Kan., when a train smashed into his car, pushing it 523 feet down the track. Stark, who sustained severe, permanent brain damage in the accident, sued Kansas Southwestern Railway, charging that the company had failed properly to maintain the railway crossing. “There were no lights, no bells, and the trees and vegetation obscured the visibility of the driver and the train’s engineer,” reported plaintiff’s attorney Joseph H. Cassell of Wichita’s Cassell & Lower. In March 1997, a Wichita jury awarded Stark $10.04 million, including $1 million for pain and suffering. The award was reduced to $9.2 by the Kansas cap on noneconomic damages and the jury’s finding that Stark was 1 percent responsible for the accident. The case settled in April 1997 for $5.9 million, after the defendant’s attorney “showed us Kansas Southwestern’s insurance coverage was only $5 million” and that the railroad had no attachable assets beyond the insurance coverage, said Cassell. CHEMICAL INJURY SUIT SETTLED IN LOUISIANA CASE TYPE: personal injury, toxic torts CASE: Cauthron v. Conoco Inc., No. 95-1035 (Dist. Ct., Calcasieu Parish, La.) JURY AWARD: $8.02 million STATUS: settled Vista Chemical Co. was transporting ethylene dichloride through a Conoco Inc. pipeline to Vista’s Lake Charles, La., plant, to be used in the production of vinyl chloride monomers. In early 1994, a leak was found in the pipeline near the Calcasieu River on Conoco property, said plaintiff’s counsel Thomas Filo of Lake Charles, La.’s Cox, Cox & Filo. Conoco then hired a contractor to clean up the leak. Donald Cauthron and Robert Mizell worked for Boh Bros. Construction Co., a contractor hired by Conoco to install a wastewater line unrelated to the cleanup. While moving dirt with a backhoe, Filo said, the two workers were exposed to the chemical, both sustaining physical ailments related to the exposure. Each sued Conoco and Vista, charging negligence. Conoco settled before trial, leaving Vista as the only defendant. In October 1997, a Lake Charles jury awarded Cauthron $936,000 and Mizell $90,000 in compensatories and $3.5 million for each in punitives. Vista’s post-trial motions were denied and the company appealed. The case settled in October 1998 before the appellate court issued a decision. The amount was confidential. CALIFORNIA CRASH SUIT IS AFFIRMED AND PAID CASE TYPE: personal injury CASE: Johanson v. Boaz, No. 648896 (Sup. Ct., Orange Co., Calif.) JURY AWARD: $6.87 million STATUS: affirmed, paid David Johanson and Tawnya Boaz were traveling in Johanson’s Chevrolet Blazer in 1990, when the vehicle ran a red light and broadsided another vehicle. Boaz’s injuries were minor, but Johanson, then 19, was partially ejected from the Blazer and sustained a partially severed spinal cord, leaving him quadriplegic. Boaz said Johanson, who had no memory of the accident, was the driver and sued him for her injuries. During an investigation, however, an accident reconstruction indicated that, given Johanson’s post-accident position, he had to have been the passenger, said plaintiff’s attorney Darren Aitken of Santa Ana, Calif.’s Aitken Aitken & Cohn. Johanson then filed a personal injury claim against Boaz, who was covered as the driver of Johanson’s vehicle by Johanson’s own auto insurance policy. In December 1997, a Santa Ana jury awarded Johanson $6.87 million. On a finding that he was 50 percent negligent — for getting into a car with a driver who had been drinking — the net award was cut in half, to $3.43 million. Had Johanson been found at fault, he could not have collected on the insurance policy. The insurer appealed but in 2000, California’s 6th District Court of Appeal affirmed the verdict. The judgment, now up to $5 million with interest, was paid shortly thereafter. Johanson died this spring. $3.6 MILLION ELEVATOR INJURY AWARD REDUCED, PAID CASE TYPE: personal injury CASE: McGilloway v. Block 1289 Associates, No. 111179/93 (Sup. Ct., N.Y.) JURY AWARD: $3.6 million STATUS: upheld, paid In January 1993, plaintiff Kenneth J. McGilloway was trying to reset a malfunctioning elevator in a New York apartment building when a co-worker prematurely released the elevator, which smashed into McGilloway’s left leg, crushing the lower leg and heel. McGilloway claimed that the building owner had violated its nondelegable duty to maintain a safe premises, and in July 1997, a New York jury awarded him $3.6 million. The verdict was sustained on appeal then reduced, as per New York law on future damages, to $2.94 million. This judgment was paid in June 1999. $8.4 MILLION SUBARU SUIT SETTLES BEFORE RULING CASE TYPE: products liability CASE: Adisu v. Subaru of America Inc., A341515 (Dist. Ct., Clark Co., Nev.) JURY AWARD: $8.4 million STATUS: upheld, settled Lilly Abebe Adisu, a 19-year-old college student, was traveling in a 1991 Subaru Loyale near San Bernardino, Calif., when a left wheel of the car came off. The Subaru flipped over and rolled three or four times, landing on its top. Adisu sustained a spinal cord injury in the March 30, 1994 accident, leaving her paraplegic. She filed a products liability action against Subaru of America Inc., charging that the vehicle’s wheel-retention system was inadequate. In June 1997, a Las Vegas jury awarded Adisu $8.4 million. Subaru’s post-trial motions to set aside or reduce the verdict were denied. The company appealed to the Nevada Supreme Court, but the case settled in early 1999, before the court could rule on the appeal, said plaintiff’s attorney Lee K. Hartman of Las Vegas. The amount was confidential. GM PAYS $3.5 MILLION BARETTA CRASH AWARD CASE TYPE: products liability CASE: Helms v. General Motors Corp., CV-95-242 (Cir. Ct., Barbour Co., Ala.) JURY AWARD: $3.5 million STATUS: paid Plaintiff Christopher Ronald Helms was riding in a 1991 Beretta when it hit an embankment and his seat back collapsed. Helms was paralyzed in the August 1995 accident and sued General Motors Corp., maker of the Beretta, charging that the seat was not designed to withstand even minor or moderate crashes. In May 1997, a Montgomery, Ala., jury awarded Helms $3.5 million. After the verdict, General Motors “asked us to take a little less,” said plaintiffs’ attorney J. Greg Allen of Montgomery, Ala.’s Beasley, Allen, Crow, Methvin, Portis & Miles. “We said no, and GM paid the verdict within a month.” COAST GUARD DEATH CASE SETTLED IN TEXAS CASE TYPE: products liability, wrongful death CASE: Gould v. Aerospatiale Helicopter Corp., No. 9543374 (Consol.) (Dist. Ct., Harris Co., Texas) JURY AWARD: $12 million STATUS: reduced, settled Coast Guardsman James A. Pavini, 39, and radio technician Richard Gould, 31, were killed in a crash of a 1988 Aerospatiale helicopter near Galveston, Texas, on July 13, 1994. Six minutes after takeoff, “part of the linkage between the pilot’s controls and the main rotor became disengaged,” said plaintiffs’ attorney John Howie of Dallas’ Howie & Sweeney. The helicopter went into a barrel roll, started pitching and then slammed into the water. The Pavini and Gould families filed a products liability action against the maker of the aircraft, American Eurocopter Corp., successor to Aerospatiale Helicopter Corp., charging that a design defect or improper maintenance instructions had caused the crash. The plaintiffs also filed a negligence lawsuit against Sea Link Helicopters, which had leased the helicopter, charging that improper maintenance and inadequate preflight inspection led to the crash. In July 1997, a Houston jury awarded the plaintiffs $12 million, apportioning 35 percent liability to American Eurocopter and 65 percent to Sea Link. The trial court remitted the verdict to $8 million, and the case subsequently settled. KOREAN AIR LINES DEATH AWARD CUT, PAID CASE TYPE: wrongful death CASE: Ephraimson-Abt v. Korean Air Lines, No. 83-Civ. 3890 (E.D.N.Y.) JURY AWARD: $2.35 million STATUS: reduced, paid On Sept. 1, 1983, Korean Air Lines Flight 007 strayed off course and was shot down by a Soviet fighter plane. All 269 people aboard were killed. Alice Ephraimson-Abt, a 23-year old student, was one of the passengers killed. Her father sued Korean Air Lines for wrongful death. In March 1997, a jury awarded the plaintiff $2.135 million, including $2 million in pain and suffering for the eight minutes the plaintiffs estimated Ephraimson-Abt was alive after the Soviet missile hit the passenger jet, said plaintiffs’ attorney Gerald H. Baker of Hoboken, N.J.’s Baker, Garber, Duffy & Pederson. The pain-and-suffering portion of the award was reversed, however, after the U.S. Supreme Court decided in 1998, in another Korean Air Lines case, that recovery for other than pecuniary loss was barred by the Death on the High Seas Act. Korean Air Lines paid the remaining $135,000 judgment, plus 17 years of interest, said Baker. MURDERED INFORMANT’S FAMILY COLLECTS AWARD CASE TYPE: wrongful death, civil rights CASE: Monfils v. City of Green Bay, No. 95-C-1239 (E.D. Wis.) JURY AWARD: $2.09 million STATUS: upheld, paid Thomas Monfils, a worker at a paper mill, informed local police that a co-worker was planning to steal property from the James River Corp. mill in Green Bay, Wis. Monfils had begged police not to disclose his identity, but on Nov. 11, 1992, Green Bay police released the tape of Monfils’ accusation to the accused thief. A day later Monfils was thrown into a paper pulp vat. His body was found the following day. The accused thief and five others were convicted of murder and sentenced to life in prison. The Monfils family sued the city of Green Bay and five individual police officers, charging that their negligence led to Monfils’ death. In June 1997, a Milwaukee jury awarded the family $2.09 million. The defendants appealed, but the 7th U.S. Circuit Court of Appeals affirmed the jury’s decision in 1998. In 1999, the U.S. Supreme Court denied defendants’ petition for certiorari. The judgment has been paid in full. FAMILIES IN BUNGEE CASE SPLIT SETTLEMENT CASE TYPE: wrongful death CASE: Steinke v. The South Carolina Department of Labor, Licensing and Regulation, No. 94-CP-26-1785 (Ct. of Com. Pleas, Horry Co., S.C.) JURY AWARD: $1.9 million STATUS: reversed in part, settled Zachary Steinke and Michael Nash were killed in August 1993 when the lifting device at a Myrtle Beach, S.C., bungee jump failed. The families of Steinke and Nash sued the owners of the bungee jump and won a $12 million judgment in October 1995; that verdict was remitted to $6 million and paid, said plaintiffs’ attorney John Kassell of Columbia, S.C.’s Suggs & Kelly. The families also sued the South Carolina Department of Labor, which oversees the safety of amusement rides, charging the department with failing to properly regulate the jump. In March 1997, a Conway, S.C., jury ordered the department to pay $1 million to each family; on the jury’s finding that Nash was 10 percent at fault, his family’s portion of the award was cut to $900,000. The defense appealed. In 1999, the South Carolina Supreme Court affirmed the award to the Steinke family but remanded the award for the Nash family for new trial. The case settled last summer for a total of $1.8 million, split evenly between the two families. CREDIT CARD SUIT HAS A TWIST, FOR ATTORNEY CASE TYPE: breach of contract CASE: 23/23 Communications Corp. v. General Motors Corp., No. 106635/93 (Sup. Ct. N.Y.) JURY AWARD: $24.05 million STATUS: affirmed, paid In 1983, representatives of the marketing and promotion firm Communications Diversified began meeting with the marketing managers of General Motors Corp.’s Chevrolet division to discuss a number of ideas, including one for a credit card with a savings feature, which could be used to purchase Chevy products. In October 1984, Communications Diversified and Chevrolet entered into an agreement wherein, if Chevrolet decided to go forth with the card, Communications Diversified would handle its marketing. In December 1986, Chevrolet informed Communications Diversified that it would not proceed with the idea. In 1992, General Motors launched its GM Mastercard. Communications Diversified notified General Motors that the automaker would have to assign the card’s marketing to it. General Motors declined, and Communications Diversified sued for breach of contract. In May 1997, a New York jury ordered General Motors to pay $24.05 million to the plaintiff. An additional $6 million in prejudgment interest was added to the award. General Motors appealed, but the verdict was affirmed and paid in 2000; by this time, the judgment was up to $40 million, including interest, said plaintiff’s counsel John M. Callagy of New York’s Kelley Drye & Warren. This payment didn’t end the litigation. “My client sued me, claiming fraud,” Callagy said. He had taken the case on a contingency basis, with the client liable for expenses. But the original agreement for 45 percent of the ultimate recovery was modified during the years of litigation after the client failed to pay expenses. The new agreement called for a 55 percent contingency fee; after General Motors paid, the client balked. Litigating the fee dispute took another year. The parties settled, with the Kelley Drye attorneys receiving $20 million. MELLON COLLECTS $32 MILLION IN ELECTRONICS CASE CASE TYPE: breach of contract, tortious interference, unfair competition CASE: Mellon Bank N.A. v. Deluxe Data Systems Inc., No. 95-1768 (W.D. Pa.) JURY AWARD: $30 million STATUS: upheld, paid In late 1994, Mellon Bank N.A. began discussions with Deluxe Data Systems Inc. about joining together to submit a bid on a government contract that would have authorized them to provide money electronically instead of by check to recipients of Social Security, veterans’ benefits, food stamps and other federal benefits. Deluxe Data, a Milwaukee subsidiary of St. Paul, Minn.-based Deluxe Corp., would have provided the software links necessary for the electronic transfers of funds. But, Mellon charged, on Aug. 23, 1995, one day before the bid was due, Mellon learned that Deluxe had teamed up with another bank, Citibank, to bid for the contract. This team won the bid. Mellon sued Deluxe Data Systems, charging breach of contract, breach of fiduciary duty, tortious interference, misappropriation of trade secrets, unfair competition and fraud. In October 1997, a Pittsburgh jury ordered Deluxe to pay Mellon Bank $30 million. Deluxe’s post-trial motions were denied and the company appealed. But in 1999, the 3rd U.S. Circuit Court of Appeals affirmed. The judgment — by then up to $32 million with interest — was paid in full, said plaintiff’s attorney W. Thomas McGough Jr. of Pittsburgh’s Reed Smith Shaw & McClay. SAFEWAY SETTLES $6.7 MILLION DISCRIMINATION CASE CASE TYPE: employment, age discrimination CASE: Greene v. Safeway Stores Inc., No. 94-N-691 (D. Colo.) JURY AWARD: $6.7 million STATUS: upheld, settled Robert D. Greene had been working for the Safeway Stores grocery chain for 36 years when he was fired in June 1993. The company claimed he had been fired because he had an intimidating management style, because he had been pessimistic about Safeway’s chances of competing with another grocery chain and because his stores had flat or declining sales, said plaintiffs’ attorney W. Randolph Barnhart of Denver’s Hillyard, Barnhart, Ekker & McNally. Greene filed an age discrimination suit, contending that he had been dismissed because he was two years and four months short of vesting in Safeway’s senior executive retirement investment benefit plan. In February 1995, U.S. District Judge Edward W. Nottingham granted a directed verdict for Safeway, primarily because Greene had been replaced by an older worker. Greene appealed, and in October 1996, the trial court was reversed by the 10th U.S. Circuit Court of Appeals, which cited a U.S. Supreme Court decision establishing that whether “one person in the protected class has lost out to another person in the protected class is … irrelevant, so long as he has lost out because of his age.” In June 1997, a Denver jury ordered Safeway to pay Greene $6.7 million. Safeway appealed, but, in 2000, the 10th Circuit affirmed the jury’s decision; the judgment had by then grown to $8.5 million, through the doubling of back pay and addition of attorney’s fees, said Barnhart. The case was then settled; the amount was confidential. A $6.6 MILLION HARASSMENT AWARD IS CUT, PAID CASE TYPE: employment, sexual harassment, retaliation CASE: McIntyre v. Manhattan Ford, Lincoln Mercury Inc., No. 128889/94 (Sup. Ct., N.Y.) JURY AWARD: $6.6 million STATUS: reduced, reduced, paid Plaintiff Maureen McIntyre charged that she had been subjected to unwanted sexual overtures from a supervisor while working at Manhattan Ford, Lincoln Mercury Inc., and was fired in December 1993 after filing complaints. McIntyre sued the dealership, charging retaliatory discharge, sexual harassment and intentional infliction of emotional distress. In June 1997, a New York jury awarded McIntyre $6.6 million, including $5 million in punitives. Two months later, Justice Lorraine S. Miller of New York’s trial-level supreme court, cut the $5 million in punitives to $3 million and reduced compensatories from $1.6 million to $703,000, leaving the remaining judgment at $3.7 million. Manhattan Ford appealed, but the verdict was affirmed, although the intermediate appellate court sliced it further to $2.2 million. Manhattan Ford appealed again, but in May 1999, the New York Court of Appeals, the state’s highest court, upheld the amended judgment. The defendant subsequently paid the final judgment, about $3 million, including interest, said plaintiff’s counsel Murray Schwartz of New York’s Schwartz & Perry. MEDIATION CLOSES ‘SUPER HEALTH’ CASE CASE TYPE: trademark infringement CASE: Super Health Institute v. Super Nu-Life Products Inc., No. 96-6002 HLH (AJWx) (C.D. Cal.) JURY AWARD: $20 million STATUS: reduced, settled Super Health Institute Inc. formulates and distributes food supplement products to the Asian-American community under a Chinese three-character trademark pronounced “chao jian kang,” which is loosely translated as “super health.” Super Health entered into a licensing and distribution agreement with Super Nu-Life Products Inc., giving Super Nu-Life the exclusive right to market Super Health’s products in China and one location in Rosemead, Calif., that caters to tourists from China. But Super Health charged that Super Nu-Life began selling its products throughout the United States. It filed a trademark infringement action against Super Nu-Life, its president and vice president and a related corporation, Goldenrise Development Corp. In August 1997, a Los Angeles jury, finding willful trademark infringement, awarded Super Health $20 million. The trial court cut the verdict to $12 million, plus $700,000 in attorneys’ fees. The case settled in mediation in early 1998. The amount was confidential. HIGH-LOW AGREEMENT TRIMS $18 MILLION TO $11.2 MILLION CASE TYPE: medical malpractice CASE: Bolduan v. Highland Park Hospital, No. 95 L 403 (Cir. Ct., Lake Co., Ill.) JURY AWARD: $18.6 million STATUS: settled Kimberly Bolduan was admitted to Highland Park Hospital outside Chicago on Aug. 6, 1993, for delivery of her fourth child. During labor, the fetal monitor strip began to show variable deceleration of the baby’s heart rate, but Bolduan’s physician, Dr. Cheryl Perlis, left her to attend to another mother in labor, said plaintiffs’ attorney Joseph E. Kolar of Highland Park, Ill.’s Baizer & Kolar. Dr. Perlis was gone for about an hour, during which time a nurse at Highland Park, “without the consent of the doctor, increased the level of pitocin,” a labor-enhancing drug, said Kolar. Shortly after Perlis returned, the baby, Moises Rojas Jr., was delivered by Caesarean. He suffers from cerebral palsy and cannot walk or talk. Bolduan, on her child’s behalf, sued Highland Park Hospital and Perlis. In September 1997, a Lake County, Ill., jury ordered Highland Park to pay Moises $18.6 million, while clearing Perlis. As a result of a high-low agreement reached before the verdict, the hospital paid the child $11 million, and Dr. Perlis paid $250,000. $16 MILLION AWARD FOR 1990 BIRTH GOES TO $12.2 MILLION CASE TYPE: medical malpractice CASE: Bellino v. Alexian Bros. Medical Center, No. 92 L 394 (Cir. Ct., Cook Co., Ill.) JURY AWARD: $16.6 million STATUS: settled On Jan. 14, 1990, Madlyn Bellino, then pregnant with her daughter Samantha, went to the Alexian Bros. Medical Center in Elk Grove Village, Ill., complaining of burning abdominal pain. This required an immediate Caesarean delivery, according to plaintiff’s attorney Kevin G. Burke of Chicago’s Corboy & Demetrio. But the child was not delivered until after Bellino’s uterus had ruptured. By then, the placenta had pulled free from the uterine wall, cutting the supply of oxygen to the child, leaving Samantha with cerebral palsy, including poor gross motor control and cognitive deficits. On Samantha’s behalf, her mother sued the medical center and obstetrician Dr. R.S. Raju, charging that a delay in delivery caused the child’s problems. In September 1997, a Chicago jury awarded Samantha $16.6 million. In February 1998, the case settled, with the hospital paying $12 million and the doctor $250,000. CLEVELAND MED-MAL CASE CLOSES AT $12.7 MILLION CASE TYPE: medical malpractice CASE: Watkins v. Cleveland Clinic, CV-301267 (Ct. Common Pls., Cuyahoga Co., Ohio) JURY AWARD: $14.46 million STATUS: reduced, paid Birdie Watkins, then 57, went to Cleveland Clinic for surgery on a deviated septum on May 5, 1995. Before the surgery, said plaintiffs’ counsel Charles Kampinski of Cleveland’s Charles Kampinski Co., Watkins saw surgeon Dr. Elia Shar “and asked him if he was going to do the surgery. He said yes. But he never scrubbed up.” Instead, a resident performed the surgery. After the procedure, Watkins was put on a ventilator to help her breathe. But she was removed from the ventilator “prematurely,” Kampinski said, and she crashed in the recovery room, winding up with severe, permanent brain damage. Her husband, Thomas, sued Cleveland Clinic on his and his wife’s behalf, charging negligence, battery and fraud. At the beginning of the trial, the clinic admitted negligence in prematurely extubating Ms. Watkins but denied the other charges. In June 1997, the Cleveland jury awarded Birdie Watkins $13.16 million and Thomas Watkins $1.3 million. The verdict included $3.5 million for fraud, based on the plaintiffs’ complaint that the operation was performed by a resident rather than the surgeon the patient had expected. In November 1998, the Ohio Court of Appeals reversed this portion of the award. In January 1999, insurers for the Cleveland Clinic paid $12.7 million — the remaining judgment, including interest. $25 MILLION IN CASH PAID FOR POOL INJURY TO CHILD CASE TYPE: products liability CASE: Lakey v. Sta-Rite Industries Inc., No. 94 CVS 00425 (Sup. Ct., Wake Co., N.C.) JURY AWARD: $25 million STATUS: settled Valerie Lakey, then 5 years old, was severely injured after sitting on a drain in a wading pool near her home in Raleigh, N.J., in June 1993. The child became trapped because the drain cover had come off and the suction was so strong that, several adults tried and failed to pull her free. She was finally released when someone turned off the suction pump, but by then 90 percent of Valerie’s small intestine and 75 percent of her large intestine had been sucked out. Since the incident, she has been virtually unable to absorb nutrition from foods and must be hooked up to tubes for 12 hours each night, said plaintiffs’ attorney David F. Kirby of Raleigh, N.C.’s Kirby & Holt. Valerie’s family, on her behalf, sued Sta-Rite Industries Inc., maker of the pool, charging the company with a failure to warn about the dangers of suction and entrapment. In January 1997, a Raleigh jury awarded Valerie $25 million in compensatory damages. The jury was scheduled to consider punitives against Sta-Rite, but the next day, the company settled the action, agreeing to pay $25 million in cash. The Lakeys had previously settled with other defendants, including the owner of the pool and the owner of the suction pump, for a total of $5.9 million. $22 MILLION AWARD STANDS UP IN BLINDNESS SUIT CASE TYPE: products liability CASE: Axen v. American Home Products Corp., No. 9509-06363 (Cir. Ct., Multnomah Co., Ore.) JURY AWARD: $22.8 million STATUS: reduced slightly, upheld Douglas Axen, a 57-year-old teacher, was prescribed amiodarone for heart arrhythmia in August 1994 and, within weeks, began having vision problems. The problems escalated into optic nerve swelling and hemorrhaging in each eye, and he was eventually diagnosed as legally blind. Axen and his wife sued American Home Products Corp., parent of Wyeth-Ayerst Laboratories, maker of amiodarone, charging that the medication caused Axen’s blindness. The plaintiff contended that American Home had not provided sufficient warnings linking the use of amiodarone to permanent blindness and that the company knew for years that the drug caused permanent loss of sight in some patients. In February 1997, a Portland, Ore., jury awarded Axen and his wife $22.8 million, including $20 million in punitives. The $936,000 award to Axen’s wife was reduced to $500,000 but was otherwise left intact. American Home appealed, but in February 1999, the Oregon Court of Appeals affirmed the jury’s verdict, finding that American Home Products “had acted with extraordinary disregard of, or indifference to, known or highly probable risks to others.” The Oregon Supreme Court also rejected the defendant’s appeal and American Home then petitioned for a hearing before the U.S. Supreme Court on the punitive damages claim. But the Supreme Court denied cert in January 2000, and American Home paid the judgment. Not all of the judgment has gone to the Axens, however. The state of Oregon is claiming half of the punitive award, under a state law in effect at the time of the jury verdict that requires 50 percent of punitives to be paid by the state’s Criminal Injuries Compensation Account. This portion remains under litigation with the Axens and is being held in an escrow account. FORD PAYS OUT $12 MILLION IN ROLLOVER CASE CASE TYPE: products liability CASE: Payne v. Ford Motor Co., No. 95-CV-1158 (Cir. Ct., Dane Co., Wis.) JURY AWARD: $12.2 million STATUS: upheld, paid In May 1994, 13-year-old Daniel Payne was fully belted in the right front passenger seat of a 1994 Ford Taurus when the car’s driver lost control of the vehicle. The car partially rolled over, collapsing the roof on Payne’s side and rendering him a quadriplegic. Payne sued Ford Motor Co., charging that the Taurus’ roof was insufficiently strong to withstand a minimal rollover. In February 1997, a Madison, Wis., jury awarded him $12.2 million. Ford appealed, but the Wisconsin Court of Appeals upheld the verdict and the state supreme court denied review. Ford paid the judgment, more than $15 million, with interest, according to plaintiff’s attorney Daniel Rottier of the Madison office of Milwaukee’s Habush, Habush, Davis & Rottier. A $222 MILLION LIBEL WAR ENDS WITH REVERSAL CASE TYPE: libel CASE: MMAR Group Inc. v. Dow Jones Co., H-95-1262 (S.D. Texas) JURY AWARD: $222.72 million STATUS: reduced, reversed In the Oct. 21, 1993, issue of The Wall Street Journal, reporter Laura Jereski wrote a report about the Houston-based brokerage MMAR Group Inc., which specialized in buying and selling collateralized mortgage obligations. The article described a troubled company that was being investigated by the National Association of Securities Dealers for its allegedly fraudulent dealings with a Louisiana employee pension fund. Within weeks of publication, MMAR’s business had shrunk to nothing and the company closed. MMAR then filed a libel suit against Dow Jones & Co., publisher of The Journal, and the reporter, charging that the article contained eight false and defamatory statements that had been published with negligence and malice. In March 1997, a Houston jury ordered the defendants to pay $22.7 million in compensatory damages. The jury also hit Dow Jones with $200 million and Jereski with $20,000 in punitives. In November 1997, U.S. District Judge Ewing Werlein Jr. set aside the $200 million punitives award against Dow Jones, while upholding the punitive judgment against Jereski. Prejudgment interest was added, bringing the total judgment to $29.5 million. That was the last good news for the plaintiff. In April 1999, the rest of the verdict was tossed, and Werlein ordered a new trial, finding that the plaintiff had wrongfully withheld evidence called for during discovery for the initial trial. Dow Jones had learned of this withheld evidence from a source within MMAR, said defense counsel David H. Donaldson Jr. of Austin, Texas’ George & Donaldson. There was no new trial, however. The plaintiff decided not to pursue the claim, “and we agreed not to pursue the costs,” Donaldson said. EMPLOYEE COLLECTS PART OF $11 MILLION AWARD CASE TYPE: employment, gender discrimination, retaliation CASE: Passantino v. Johnson & Johnson Consumer Products Inc., C96-5044 (N.D. Wash.) JURY AWARD: $11.7 million STATUS: reduced, part remanded, settled Jennifer Passantino, a longtime employee of Johnson & Johnson Consumer Products Inc., was promoted in 1990 to the position of national account manager for military sales, but her career stalled afterwards. Passantino contended that she was subsequently passed over for several promotions, despite excellent performance reviews, and that after complaining to the Johnson & Johnson human resources department, she was subject to harassment. Passantino sued Johnson & Johnson Consumer Products, charging gender discrimination and retaliation in violation of the Washington state law against discrimination and Title VII of the federal Civil Rights Act of 1964. In June 1997, a Tacoma, Wash., jury found retaliation, but no discrimination, and awarded her $11.7 million, including $8.6 million in punitives. Federal law in Title VII cases caps damages at $300,000, and punitives are not available under the Washington state law. In a decision that maximized the plaintiff’s recovery, U.S. District Judge Robert J. Bryan applied the federal cap to the jury’s punitive award but designated the rest of the jury’s verdict as falling under the state law claim and left it intact. The court added attorneys’ fees and costs and entered the judgment at $3.89 million. Johnson & Johnson appealed, contending that the entire judgment should be capped at $300,000 and that Judge Bryan had abused his discretion in apportioning the damages. In March 2000, the 9th U.S. Circuit Court of Appeals affirmed Bryan’s decision, finding that he had “authority to allocate the damages to either claim.” The court rejected as well Johnson & Johnson’s claim that punitives on the federal claim should be reversed because the judgment included no compensatories under Title VII. The appellate court found that the jury’s award of compensatories was sufficient, whatever the post-trial allocation by the judge. The court did, however, remand the issue of punitives for retrial on the issue of vicarious liability established in another employment case, said plaintiff’s attorney Victoria Vreeland of Tacoma’s Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim. There was no retrial, however. Johnson & Johnson paid the judgment. The total by then, with interest, was nearly $5 million, Vreeland reported.

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