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As in all years, some of the biggest verdicts of 2000 and some of the largest verdicts awarded in previous years were eventually thrown out by trial and appellate courts. These reversals include three significant cases from 2000. They are: BENLATE RETRIAL ORDERED IN TEXAS; TWO PLAINTIFFS SETTLE CASE TYPE: Products liability CASE: Quirk Land and Cattle Co. v. E.I. du Pont de Nemours & Co., No. 97-04-14439-CV-A (Maverick Co., Texas, Dist. Ct.) VERDICT AMOUNT AND DATE: $69 million; April 19, 2000 REVISED: Sept. 20, 2000 Three Texas pecan growers sued E.I. du Pont de Nemours & Co., charging that DuPont’s fungicide Benlate had damaged their pecan orchards. On April 19, a Maverick County, Texas, jury awarded the plaintiffs $69 million, including $30 million in exemplary damages. The judgment was entered at $24.2 million, after the application of the Texas caps on punitive damages. DuPont filed motions for new trial, claiming, among other issues, that the attorney for one plaintiff had purchased drinks for jurors and had a private conversation with a juror during trial. The plaintiffs’ attorney, Earl Herring of Eagle Pass, Texas, denied any improper conduct. On Sept. 20, Texas District Judge Amado J. Abascal III ordered a retrial, without specifying what had motivated his decision. Two of the plaintiffs have since settled; the claims of Herring’s client are expected to be tried in 2001, he reported. VIRGINIA JUDGE STRIKES DOWN RR VERDICT AS ‘EXCESSIVE’ CASE TYPE: Personal injury case: French v. Norfolk Southern Railway Co., No. 48914 (Prince William Co., Va., Cir. Ct.) VERDICT AMOUNT AND DATE: $45.94 million; Oct. 12, 2000 REVISED: Jan. 8 Plaintiff Donald French was injured on May 2, 1997, while sitting in his office at a Gainesville, Va., gas station. A Norfolk Southern train derailed and a railroad car loaded with pickup trucks turned over and skidded into his building. French sustained a fractured left leg and a closed-head injury, which left him with permanent brain damage. French sued Norfolk, charging that negligence by railroad employees caused the derailment and his subsequent injuries. Norfolk Southern conceded liability but disputed the extent of the plaintiff’s claims of permanent disability. On Oct. 12, a Manassas, Va., jury awarded French $45.94 million. On the jury’s decision that he was due prejudgment interest from the date of the accident, the amount was scheduled to rise above $60 million. But on Jan. 8, 2001, Virginia Circuit Court Judge William D. Hamblen threw out the jury’s award and ordered a retrial on damages. Hamblen found the verdict “unfair” and “excessive,” and he described it as having “no reasonable relationship to the damages proved.” No retrial date has been set. ZAP! COMIC BOOK VILLAIN’S NAME SPAWNS SUIT, REVERSAL CASE TYPE: Appropriation of name CASE: Doe v. Tele-Communications Inc., No. 97209415 (City of St. Louis Cir. Ct.) VERDICT AMOUNT AND DATE: $24.5 million; July 5, 2000 REVISED: Oct. 31, 2000 In 1993, the dark comic book series “Spawn” introduced a violent, evil mobster character named Antonio Twistelli, nicknamed Tony Twist, said plaintiff’s attorney Robert D. Blitz of St. Louis’ Blitz, Bardgett & Deutsch. The problem was that there is a real Tony Twist, a professional hockey player who has played right wing in the National Hockey League for the Quebec Nordiques and the St. Louis Blues, Blitz said. Twist sued the creator of the comic book, Todd McFarlane, and his various business entities; the publisher of the comic book, Image Comics Inc.; and Time-Warner/HBO — which broadcast the animated Spawn — charging that they had used his name without his consent. Time-Warner/HBO settled before trial for a confidential amount. On July 5, a St. Louis jury awarded Twist $24.5 million. On Halloween, Judge Robert Dierker threw out the verdict by granting the defense’s motion for judgment notwithstanding the verdict or, in the alternative, a new trial. Dierker found that “the jury verdict was against the weight of the evidence and that the instructions he gave the jury were wrong,” reported Blitz. The reversal has been appealed. Some of the largest verdicts of the past several years were also upended by appellate courts in 2000. They include: $25.4M COMPENSATORY DAMAGE AWARD SET ASIDE CASE TYPE: Personal injury CASE: Lockheed Litigation Cases, Judicial Council Coordination Proceeding, No. 2967 (Los Angeles Super. Ct.) VERDICT AMOUNT AND DATE: $785.4 million; July 30 and Aug. 6, 1998 REVISED: June 6, 2000 This 1998 trial concerned the claims of 42 plaintiffs who contended that they had sustained physical illnesses from exposure to a variety of chemicals in the manufacturing of military aircraft at the Lockheed Corp. plant in Burbank, Calif. The plaintiffs were part of a group of about 700 workers who had originally sued Lockheed and settled in 1992 for $33 million. The plaintiffs also sued about two dozen makers of solvents used to clean the metal used in making the planes. By the time of trial, there were five solvent-maker defendants remaining: Exxon Corp., Shell Oil Co., Ashland Chemical Co., E.I. du Pont de Nemours & Co. and Unocal Corp. In July 1998, a Los Angeles jury ordered these companies to pay $25.4 million in compensatory damages to 29 of the plaintiffs, while rejecting the claims of the other 13. Then, in August 1998, the jury added $760 million in punitives. The trial court cut the punitives in half that November, leaving the judgment at $405.4 million. On June 6, California’s 2nd District Court of Appeal set the rest of the judgment aside and ordered a new trial. In a previous trial involving other plaintiffs, the jury had determined that the defendants’ product warnings were inadequate. In the 1998 trial, the court gave collateral estoppel to these findings, applying them to the case and preventing the defense from entering evidence on the adequacy of the warnings. The appellate court found this improper: “Absent the error under consideration, the jury might well have reached different conclusions.” No retrial date has been set. Only the compensatory damages will be reconsidered; the court entered judgment for the defendants on the punitive claim, said defense appellate counsel Ellis Horvitz of Encino, Calif.’s Horvitz & Levy. CALIFORNIA SUPREMES GRANT REVIEW AFTER TWO REVERSALS CASE TYPE: Breach of contract CASE: Mycogen Plant Science Inc. v. Monsanto Co., No. 699882 (San Diego Co., Calif., Super. Ct.) VERDICT AMOUNT AND DATE: $174.9 million; March 19, 1998 REVISED: June 27, 2000 In 1989, Monsanto Co. agreed to license to Lubrizol Genetics Inc. genetic technology covering genes that make crops resistant to pests and herbicides. The contract gave Lubrizol Genetics a 10-year option to license this technology. Lubrizol never exercised the option, said plaintiffs’ attorney Daniel G. Lamb of the San Diego office of San Francisco’s Brobeck, Phleger & Harrison. In 1992, Mycogen Corp. bought Lubrizol Genetics; the following year, Mycogen attempted to exercise the option. Monsanto refused, saying that the right to license was not transferable, Lamb said. Mycogen then sued Monsanto to enforce the license. In 1994, Monsanto won a summary dismissal of the Mycogen claim. This was appealed, and the dismissal was reversed in 1996 by the California Court of Appeal. Mycogen then sued Monsanto for breach of contract. On March 19, 1998, a San Diego jury awarded Mycogen $174.9 million. In June, California’s 4th District Court of Appeal reversed on res judicata grounds, finding that Mycogen should not have been allowed to bring the breach-of-contract claim. “Monsanto said the damage claim had to be made at the time of the first action,” said Lamb. The appellate court agreed. Mycogen appealed, contending that it could not have brought an action for damages at the time it sought to enforce the license “because there were no damages then,” Lamb said. On Oct. 25, the California Supreme Court granted Mycogen’s petition for review. AFTER REVERSAL, PLAINTIFF APPEALS, ASKS FOR NEW JUDGE CASE TYPE: Trademark infringement, unfair competition CASE: Trovan Ltd. v Pfizer Inc., No. 98 0094 (C.D. Calif.) VERDICT AMOUNT AND DATE: $143 million; Oct. 12, 1999 REVISED: May 22, 2000 Trovan Ltd. and its affiliate Electronic Identification Devices Ltd. make radio frequency identification devices that are implanted into animals for a broad variety of uses. In 1997, the chief executive officer of Trovan, Joseph Masin, learned that Pfizer Inc. was planning to use the name Trovan for a new drug, said plaintiffs’ attorney William E. Levin of Laguna Beach, Calif.’s Levin & Hawes. At the time, Trovan was about to launch a new product, a drug-delivery device. Masin told Pfizer that using the Trovan name for a drug would be confusing and would infringe on the Trovan trademark, Levin said. Undeterred, Pfizer brought out its Trovan drug, and Trovan Ltd. and Electronic Identification sued Pfizer, charging trademark infringement and unfair competition. In October 1999, a Los Angeles jury awarded the plaintiffs $143 million, including $135 million in punitive damages. In May, U.S. District Judge Lourdes E. Baird reversed, ordering a new trial. According to defense appellate counsel Pierce O’Donnell of Los Angeles’ O’Donnell & Schaeffer, Judge Baird called the attorneys for the plaintiffs “ethically challenged” and charged that Trovan had manufactured evidence. Trovan has appealed the decision. The plaintiff will “be asking for a new judge to be assigned if this goes back for a new trial,” Levin said. BOAT BUILDERS’ ANTITRUST SUIT HAS THAT SINKING FEELING CASE TYPE: Antitrust CASE: Concord Boat Corp. v. Brunswick Corp., LLr-C-95-781 (E.D. Ark) VERDICT AMOUNT AND DATE: $44.37 million, trebled to $133.11 million; June 19, 1998 REVISED: March 24, 2000 In December 1995, 22 independent boat builders and Independent Boat Builders Inc. filed an antitrust action against Brunswick Corp. They contended that Brunswick had established a monopoly in the market for stern-drive and inboard engines for pleasure boats. That alleged monopoly put a price squeeze on the independent boat builders who bought the engines, the plaintiffs contended. In June 1998, a Little Rock, Ark., jury ordered Brunswick to pay $44.37 million to 20 of the independent dealers. The court trebled the damages, under federal antitrust law, to $133.11 million. In March 2000, however, the 8th U.S. Circuit Court of Appeals reversed the award entirely. The appeals court found as a matter of law that the statute of limitations barred the plaintiffs’ claims of violations of Section 7 of the Clayton Act. The court also found that the plaintiffs had provided insufficient evidence to establish their claims of violations of Sections 1 and 2 of the Sherman Antitrust Act. The plaintiffs’ petition for certiorari was denied in November by the U.S. Supreme Court. “It’s all over,” said Brunswick attorney Robert F. Fink of Chicago’s Mayer, Brown & Platt. WOULD-BE RESCUER WINS, BROTHER SEEKS NEW TRIAL CASE TYPE: Personal injury CASE: Brown v. The City of New York, No. 40864/92 (Kings Co., N.Y., Sup. Ct.) VERDICT AMOUNT AND DATE: $104.8 million; April 9, 1998 REVISED PARTIALLY: Sept. 18, 2000 Brothers Virgil and John Brown were rendered quadriplegic after diving off the Coney Island Pier in Brooklyn, N.Y., on Memorial Day 1992. Virgil Brown dove in first, hitting his head on the sand below the surface of the water. John Brown dove in to save his brother and also hit his head. They sued the city of New York, charging that its Parks and Recreation Department had failed to post warning signs and that lifeguards had failed to advise of dangerous conditions. In April 1998, a Brooklyn jury awarded $55.4 million to John Brown and $49.4 million to Virgil. The $104.8 million judgment was reduced on post-trial motions to a total of $49.8 million. On Sept. 18, the New York Supreme Court Appellate Division, 2nd Department, set aside the rest of the verdict for Virgil Brown. The appeals court sent his claim back for retrial on the issue of comparative liability for the accident. The court, however, upheld the award given to John Brown, while reducing the award further to $19 million. The city is appealing this part of the decision, said plaintiffs’ counsel Joseph Rosato of New York’s Schneider, Kleinick, Weitz, Damashek & Shoot. A retrial on Virgil Brown’s claim will await the final appellate decision, Rosato said.

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