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A look at the top plaintiffs’ verdicts of the year 2001, from asbestos to tortious interference. ASBESTOS A BIG WIN IN THE CRADLE OF ASBESTOS LAWSUITS CASE TYPE: Asbestos personal injury CASE: Bell v. Dresser Industries Inc., No. A-920,961-SC19 (Orange Co., Texas, Dist. Ct.) PLAINTIFFS’ ATTORNEYS: Glenn W. Morgan, John Werner and David W. Ferrell of Beaumont, Texas’ Reaud, Morgan & Quinn; and Karl E. Novak of Charleston, S.C.’s Ness Motley Loadholt Richardson & Poole DEFENSE ATTORNEYS: Donald E. Godwin and George R. Carlton Jr. of Dallas’ Godwin Gruber; and D. Ferguson McNiel III and Joseph S. Cohen of Houston’s Vinson & Elkins JURY VERDICT: $130 million The first asbestos case ever filed came in Orange County, Texas, home of the last exit in Texas before crossing to Louisiana. And Orange County was the site in 2001 of two of the largest asbestos verdicts of this or any other year — one for $29.74 million and this one for $130 million. The plaintiffs in this case — Oscar Bell Jr., Samuel Freeman, William Benford, Harris Johnson and Elbert Harris — had worked in Birmingham, Ala., at U.S. Pipe Co. as laborers or millwrights from the early 1960s to the mid-1970s. During this time, said plaintiffs’ attorney Karl E. Novak, each was exposed to asbestos used in steel production. To keep molten steel in a confined area, refractory products were used. The products included asbestos, not just for its insulating properties, Novak said, but because the product was blown in by machine and “asbestos would blow better.” The workers, including his clients, would dump bags of the material in a hopper, mix it with water and shoot it out through a nozzle, like a fire hose. “Up to 40 percent of the product wouldn’t stick, so they’d shovel it.” As a result of this contact with asbestos dust, the plaintiffs charged, Bell and Freeman developed lung cancer, Harris and Johnson were diagnosed with colon cancer, and Benford has asbestosis. Freeman died in 1991 at the age of 48; Harris was 76 at his death in 1993. The plaintiffs sued Dresser Industries Inc., former owner of Harbison & Walker Refractories Co., maker of ChromePak 6, and North American Refractories Co., which makes NarcoGun and NarcoCrete, contending that these refractory products caused their illnesses. The defendants contended that the plaintiffs did not come in contact with their products and disputed the medical claims. But on Sept. 12, an Orange County, Texas, jury awarded the plaintiffs $130 million, including $100 million in punitives. The defendants are appealing. CONSTRUCTION SITE CLEANUP TURNS DEADLY CASE TYPE: Asbestos personal injury CASE: Hernandez v. Kelly-Moore Paint Co. Inc., No. CA-2000-3559 (El Paso Co., Texas, Co. Ct.) PLAINTIFFS’ ATTORNEYS: Lisa A. Blue and Richard I. Nemeroff of Dallas’ Baron & Budd; and Enrique Moreno of El Paso, Texas’ Law Offices of Enrique Moreno DEFENSE ATTORNEY: Gary D. Sharp of the Bloomfield Hills, Mich., office of Minneapolis’ Foley & Mansfield JURY VERDICT: $55.5 million Alfredo Hernandez began working as a cleanup worker at construction sites when he was a teen-ager in California. During this period, from 1973 through 1976, he was exposed to asbestos-containing products, said plaintiffs’ attorney Lisa Blue. In 2000, Hernandez sought medical attention after he began having pains in his rib cage and side, she added. At that time, X-rays revealed that Hernandez had mesothelioma, a cancer of the lining of the lung that is caused by exposure to asbestos. After the diagnosis, Hernandez, along with his wife and children, sued Kelly-Moore Paint Co., charging that his disease was caused by exposure to an asbestos-containing Kelly-Moore joint compound product called PACO. The product was used at many of the construction sites where he had worked, he contended. The plaintiffs argued, Blue said, that Kelly-Moore knew or should have known of the dangers of asbestos at the time that Hernandez was exposed, yet continued to market the product. Kelly-Moore denied any negligence and disputed Hernandez’s identification of Kelly-Moore’s product. On Aug. 29, 2001, an El Paso, Texas, jury awarded $36 million, including $15 million in punitives, to Alfredo Hernandez and $19.5 million to his wife and four children. There will be no appeal; the case settled in November on confidential terms. BREACH OF CONTRACT EXXON DEALERS’ DISPUTE AWARD IS $540M CASE TYPE: Breach of contract class action CASE: Allapattah Services v. Exxon Corp., No. 91-0986 (S.D. Fla.) PLAINTIFFS’ ATTORNEYS: Eugene E. Stearns, Antonio R. Menendez and Mark P. Dikeman of Miami’s Stearns Weaver Miller Weissler Alhadeff & Sitterson; and Jay S. Solowsky of Miami’s Pertnoy Solowsky Allen & Haber DEFENSE ATTORNEYS: Larry S. Stewart of Miami’s Stewart, Tilghman, Fox & Bianchi; and Robert G. Abrams of Washington, D.C.’s Howrey Simon Arnold & White JURY VERDICT: $540 million A class of 10,000 present and former gas station dealers accused Exxon Corp., now ExxonMobil, of failing to fulfill a promise to give the dealers a reduction in wholesale gas prices in return for participating in a discount-for-cash program. The plaintiffs charged that Exxon had instituted the program in 1982, after deregulation of the oil industry, in order to squeeze money out of the dealers, said plaintiffs’ attorney Eugene Stearns. Under the terms of the program, dealers gave customers a discount if they paid cash. In turn, Exxon would give the dealers a discount on the wholesale price of gasoline. Initially, this discount was passed on to the dealers, but, Stearns charged, Exxon “implemented a long-term version in January 1983, raising the wholesale price.” Exxon assured the dealers that the discount was reflected in the wholesale price, he added. “But the dealers couldn’t tell from Exxon invoices whether they were getting the promised discount to offset the higher charge for credit card purchases.” The dealers continually asked Exxon executives, “‘Where’s the discount for cash?’ and Exxon kept telling them, ‘It’s built in the wholesale price.’” Stearns reported. But at a national meeting of Exxon dealers in November 1990, he recounted, “Jim Carter, the director of Exxon marketing, told the dealers, ‘It’s a new day. You haven’t been getting the discount, but you will be getting it now.’ Carter denied saying this, but by then it didn’t matter.” Acting on what they believed Carter said, the dealers filed a breach of contract class action against Exxon. During discovery, Stearns charged, “we uncovered Exxon’s business plan, that they intended to lie to the dealers.” Exxon denied any underpayment, contending that the company had compensated dealers fairly. But, on Feb. 20, 2001, a Miami jury ordered Exxon to pay an average of 1.3 cents per gallon for the gas purchased by the dealers over a 12-year period. This covers more than 40 billion gallons of gas, Stearns said, adding up to a $540 million verdict. But the judgment so far entered is nowhere near that amount. In August, U.S. District Judge Alan S. Gold declined to enter a gross judgment and instead entered judgment only for the nine name plaintiffs in the class. This leaves the judgment, so far, at about $2.5 million. Anything beyond this, Gold ruled, will be determined through a claims process. Exxon was also not required to post a bond. Exxon would wind up paying $540 million, plus interest, only if the company’s appeals are unsuccessful and “if every dealer filed a claim and got the maximum entitled,” said defense attorney Larry Stewart. Stearns noted, however, that the average claim per plaintiff was about $100,000, so that the size of the claim would encourage more than 90 percent of the class members to participate. Including interest, Stearns said, “this is a billion-dollar recovery.” Exxon has appealed. BUSINESS HEADED SOUTH, THEN IT TURNED SOUR CASE TYPE: Breach of contract, tortious interference CASE: COC Services Ltd. v. CompUSA Inc., No. 00-8358-F (Dallas Co., Texas, Dist. Ct.) PLAINTIFF’S ATTORNEYS: Mark S. Werbner of Dallas’ Sayles, Lidji & Werbner; Scott A. Scher of Dallas’ Brown McCarroll; and J. David Brown of Dallas’ Winstead Sechrest & Minick DEFENSE ATTORNEYS: Mark T. Josephs and Alan N. Greenspan of Dallas’ Jackson Walker; Edward B. Mishkin and Deborah M. Buell of New York’s Cleary, Gottlieb, Steen & Hamilton; and Theodore W. Daniel, John A. Gilliam and V. Elizabeth Kellow of Dallas’ Jenkens & Gilchrist JURY VERDICT: $454.5 million; reduced to $121 million In 1997, the chief executive officer of COC Services Ltd., Lawrence McBride, and the president of CompUSA Inc., James Halpin, began talking about a deal whereby COC would acquire the exclusive franchise rights for CompUSA in Mexico, said plaintiff’s attorney Mark S. Werbner. In January 1999, both parties signed a letter of intent, titled a “master franchise agreement,” which gave COC the franchise rights and the ability to bring in a partner, with the proviso that COC maintain at least 20 percent of the resulting partnership, Werbner added. COC came to Carlos Slim Helu, considered to be the richest man in Latin America, “to be a partner, but after he got the financial information about CompUSA, Slim bought CompUSA,” said Werbner. At this point, he said, CompUSA, Halpin and Slim “cut COC out of the deal.” No CompUSA stores were ever opened in Mexico, he added. COC sued Slim, his companies, Grupo Carso and Grupo Sanborns, along with Halpin and CompUSA, charging breach of contract, tortious interference with contract and tortious interference with prospective contract. Slim and his companies countered that “COC never had a final franchise deal with CompUSA,” said defense counsel Mark Josephs. The CompUSA defendants also denied that an agreement had been reached with COC. But on Feb. 8, 2001, a Dallas jury awarded COC $454.5 million, including $364.5 million in punitives. The punitive judgments included $175.5 million against Halpin, $67.5 million against Slim and $94.5 million against Comp-USA. In May, the trial court reversed all judgments against Halpin and CompUSA by law, while upholding the verdict against Slim and his companies. This left the judgment at $121 million. The plaintiffs are appealing the reversal of the CompUSA and Halpin judgments; Slim is appealing the rest of the jury’s decision. FIGHT OVER LOAN PURCHASE BRINGS $96M AWARD CASE TYPE: Breach of contract CASE: Residential Funding Corp. v. DeGeorge Financial Corp., No. 3:00CV202 (D. Conn.) PLAINTIFF’S ATTORNEYS: Philip S. Beck, Jeffrey A. Hall, Rebecca L. Weinstein and Steven E. Derringer of Chicago’s Bartlit Beck Herman Palenchar & Scott DEFENSE ATTORNEYS: Stephen D. Susman, Jonathan J. Ross, Harry P. Susman and Erica W. Harris of Houston’s Susman & Godfrey JURY VERDICT: $96.4 million DeGeorge financial corp. made construction loans to homeowners who were acting as their own general contractors in remodeling or building their homes. Under the terms of these loan agreements, DeGeorge would advance money to the homeowners when it was needed. DeGeorge contracted with Residential Funding Corp., a unit of General Motors Acceptance Corp., to purchase some of these loans. Residential would pay DeGeorge, which would then pay the homeowners, while keeping a share of the proceeds. But DeGeorge began spending too much of the money earmarked for loans on its own “aggressive growth,” said Residential attorney Philip S. Beck. As a result, Residential was concerned that DeGeorge would not have enough money to fulfill the loans promised to the homeowners. Residential notified DeGeorge that it was not going to renew the deal to purchase loans. “DeGeorge ended up going out of business and we had to pay out the loans,” Beck said. Residential sued DeGeorge, charging breach of contract and seeking reimbursement of some $65 million that Residential had paid to help DeGeorge’s customers finish their construction projects. DeGeorge filed a lender liability action against Residential, charging breach of contract, defamation and tortious interference. DeGeorge contended that Residential had agreed to purchase $1 billion in loans but did not fulfill this commitment and that Residential forced DeGeorge into default. DeGeorge was seeking $390 million, plus punitives. Residential countered, said Beck, “that we lived up to our end of the bargain. We were the people who were wronged here.” On Sept. 24, 2001, a New Haven, Conn., jury rejected DeGeorge’s lender liability claims, while awarding Residential Funding $96.4 million. The verdict has been appealed. BREACH SUIT INCLUDES MENTAL ANGUISH AWARD CASE TYPE: Breach of contract CASE: Hico Inc. v. St. Paul Fire Insurance Co., No. 99-0400 (Copiah Co., Miss., Dist. Ct.) PLAINTIFFS’ ATTORNEYS: James D. Shannon of Hazlehurst, Miss.’ Shannon Law Firm; and William Allain, solo practitioner, Jackson, Miss. DEFENSE ATTORNEYS: Gregory Copeland and Thomas C. Gerity of Jackson’s Copeland, Cook, Taylor & Bush JURY VERDICT: $77.5 million Insurance agent Carroll Hood and his agency Hico Inc. had an exclusive contract with St. Paul Fire & Marine Insurance Co. to sell insurance to public entities, such as cities and counties, in the state of Mississippi, said plaintiffs’ attorney Jim Shannon. The plaintiffs originally contracted with Titan Insurance Co. in 1992; St. Paul took over the contract after acquiring Titan’s owner, Shannon said. But in 1998, he charged, “St. Paul set on a course of conduct to put [Hood and Hico] out of business.” St. Paul “manipulated rates, had other individual agents trying to market public entity insurance and refused to pay commissions due,” he alleged. Shannon said St. Paul was attempting to save money, he said. “They saved a half million dollars plus a year if they got rid of him.” As a result of the actions of the insurance company, he said, Hico folded. In 2000, Hood and Hico sued St. Paul, charging tortious breach of contract. The plaintiffs contended that St. Paul put the insurance agency out of business, causing mental anguish to Hood and loss of the value of the business to Hico. St. Paul countered that the relationship was terminated under the terms of the contract. But, on Feb. 27, 2001, a Hazlehurst, Miss., jury awarded the plaintiffs $75 million in punitives and $2.5 million in compensatories. The compensatories included $1.3 million to Hico for the value of the business and $1.2 million to Hood for mental anguish. St. Paul filed motions to set aside or alter the verdict. Copiah County District Judge Mike Smith denied the motions in March. The verdict has been appealed. TYPE OF BID FOR APPROVAL OF DEVICE PROMPTS SUIT CASE TYPE: Breach of contract, fraud CASE: Biomedical Systems Corp. v. GE Marquette Medical Systems Inc., No. 4:99CV01590 (E.D. Mo.) PLAINTIFF’S ATTORNEYS: Gerard T. Carmody, Douglas W. King, Edward L. Dowd Jr. and Cristian M. Stevens of St. Louis’ Bryan Cave DEFENSE ATTORNEYS: John M. Bray, of the Washington, D.C., office, and Chilton Daus Varner, of the Atlanta office, of Atlanta’s King & Spalding; Roger K. Heidenreich and Stephen J. O’Brien of the St. Louis office of Sonnenschein Nath & Rosenthal; and Larry D. Hale of St. Louis’ Hale Law Firm JURY VERDICT: $75 million The plaintiff, Biomedical Systems Corp., developed a home uterine activity monitor, a device used to detect uterine contractions in pregnant women at risk for premature labor, and contracted with the Columbia Hospital System to provide these monitors to Columbia. In January 1997, Biomedical Systems entered into a contract with a division of Marquette Medical Systems Inc. to manufacture and supply these monitors for Biomedical, said plaintiff’s attorney Gerard T. Carmody. Under the terms of the agreement, the Marquette division was required to apply to the federal Food and Drug Administration for a 510(k) clearance, a quick 90-day approval for the monitor, said Carmody. “The contract says 510(k) seven different times. But Marquette filed for reclassification, another form of FDA approval.” As a result, he said, “instead of 90 days, the approval took 3 1/2 years.” This delay, he said, cost Biomedical millions of dollars in lost profits. Biomedical sued Marquette — now called GE Marquette after its purchase by General Electric Co. — charging breach of contract, claiming that Marquette’s failure to apply for the 510(k) clearance was in violation of the contract. Biomedical also charged GE Marquette with fraud, contending, Carmody said, that the defendant “never intended to pursue the 510(k) application.” GE Marquette “fully complied with the contract,” said defense attorney Chilton Varner. To get 510(k) approval required reclassification first, because the uterine activity monitor had not been approved for home use, she said. On April 9, 2001, a St. Louis jury awarded Biomedical $75 million on the breach of contract claim, while rejecting the contention of fraud. GE Marquette filed post-trial motions to set aside or alter the verdict. U.S. District Judge Charles Shaw denied all these motions on July 16. The judgment is on appeal at the 8th U.S. Circuit Court of Appeals. HIDDEN GAS CHARGES SPARK $73M AWARD CASE TYPE: Breach of contract class action CASE: Bridenstine v. Kaiser-Francis Oil Co., No. CJ-2000-1 (Texas Co., Okla., Dist. Ct.) PLAINTIFFS’ ATTORNEY: Robert N. Barnes of Oklahoma City’s Barnes & Lewis; Douglas E. Burns and Terry Lee Stowers of Oklahoma City’s Douglas E. Burns P.C.; and Robert J. Kee of Beaver, Okla.’s Trippet & Kee DEFENSE ATTORNEYS: Joseph H. Bocock of Oklahoma City’s McAfee & Taft; and Keith F. Sellers of Tulsa, Okla.’s Sellers & Bryant JURY VERDICT: $73.76 million About 2,000 owners of mineral rights to 200 natural gas wells in Beaver County, Okla., leased these rights to a gas gathering system in return for royalties on sales of the gas. Under Oklahoma law, said plaintiffs’ attorney R.B. Short of Oklahoma City’s Barnes & Lewis, the royalty owners were not supposed to be charged any fees on this gathering process. But from 1983 onward, the owners and operators of the Beaver gas system began charging an average of 42 cents per million BTUs, he said. These fees included marketing fees, administrative fees and other charges that could not be legally charged to royalty owners, Short said. For years, however, the royalty owners were unaware of the charges, he added. In the mid-1990s, name plaintiffs Galen Bridenstine and his father Glen Bridenstine, who had wells hooked into other systems as well as the Beaver process, “noticed they were getting lower prices and less money,” from the Beaver gas. In 1995, the Bridenstines sued Kaiser-Francis Oil Co., which took over the operation in 1994. The plaintiffs also sued other companies that had operated or owned the system, charging breach of contract, conspiracy, conversion, unjust enrichment and fraud. Other royalty owners joined the lawsuit; these claims were certified as a class action in 1997. In late 2000, several defendants, including Chase Manhattan Bank and Union Pacific Oil & Gas Co., settled, for a total of $26.5 million. Kaiser-Francis was the sole defendant at trial. On Nov. 7, 2001, a Guymon, Okla., jury awarded the plaintiffs $54.96 million in compensatory damages, then two days later added $18.8 million in punitives. Kaiser-Francis will be entitled to some set-offs from the previous settlements, Short said, but the amount has yet to be determined. Post-trial motions are pending. JURY SEES A CONTRACT OVER COMPUTERS FOR BOMBER CASE TYPE: Breach of contract, intentional interference with prospective economic advantage CASE: Cable & Computer Technology Inc. v. Lockheed Sanders, No. CV97-5315 (C.D. Calif.) PLAINTIFF’S ATTORNEYS: Jeffrey S. Davidson, Eric C. Liebeler and Viddell Lee Heard Jr. of the Los Angeles office of Chicago’s Kirkland & Ellis DEFENSE ATTORNEYS: John B. Quinn, Dominic Surprenant and Marshall M. Searcy of Los Angeles’ Quinn, Emanuel, Urquhart, Oliver & Hedges JURY VERDICT: $64.5 million, reduced Cable & Computer Technology Inc. (CCT) contended that it had entered into an oral agreement in 1996 with Sanders, a Lockheed Martin Corp. division, to team up to bid on and win a contract to upgrade the mission computers for the B1-B bomber. The mission computer of the bomber is the central brain of the aircraft, and the Air Force was seeking a defense contractor to bring these computers up to date, said plaintiff’s attorney Jeffrey S. Davidson. CCT and Lockheed Sanders spent six months preparing a bid, he said, but they never signed an agreement. “Then, 12 days before the bid was due, Lockheed Sanders just walked out,” he said. Shortly afterward, Lockheed Martin Federal Systems, a Lockheed Martin subsidiary, was awarded the Air Force contract. CCT sued Lockheed Martin, the subsidiary and Sanders, charging breach of contract, intentional interference with prospective advantage, fraud and breach of confidence. The defendants contended that, as a matter of law, there was no breach of contract, interference or fraud. There was no written or executed contract between CCT and Sanders, the defendants maintained. “There was no oral agreement to team on the procurement at issue,” said defense attorney John B. Quinn. “These things are done in writing.” The plaintiff contended that despite the lack of a signed written agreement, there was a contract, said Davidson. At trial, the plaintiff called as witnesses employees of CCT and Lockheed Sanders. They described actions by both companies in putting together the prospective bid and “who confirmed that there was such a deal,” he said. On March 28, 2001, a Los Angeles jury found the defendants liable on all counts. On April 5, the jury awarded $64.5 million, including $53.28 million in punitives. After trial, Judge Carlos Moreno erased as speculative the compensatory damages awarded for future contracts that CCT might have acquired if it had won the mission computer upgrade contract. The judge also sliced the punitives, leaving the judgment at $31.64 million. CCT is appealing the reduction. The defendants have appealed the entire judgment. EMPLOYMENT EMPLOYER HELD TO HAVE BROKEN LAW ON OVERTIME CASE TYPE: Unpaid overtime class action CASE: Bell v. Farmers Insurance Exchange, No. 774013 (Alameda Co., Calif., Super Ct.) PLAINTIFFS’ ATTORNEYS: Steven G. Zieff, Marcie E. Berman and Jim W. Vogele of San Francisco’s Rudy, Exelrod & Zieff DEFENSE ATTORNEYS: Lee T. Paterson and Jessie A. Kohler of the Los Angeles office of Chicago’s Winston & Strawn JURY VERDICT: $90.01 million Throughout the year, numerous American corporations were embroiled in lawsuits brought by employees claiming they had been unjustly and illegally classified as managers and thus denied overtime pay. Several companies agreed to substantial settlements of these claims in 2001. This case, however, stands as the largest verdict to date on overtime pay claims. The defendant, Farmers Insurance Exchange, classified claims representatives as administrative personnel, exempting them from being paid for overtime work. As a result, said plaintiffs’ attorney Steven Zieff, these claims adjusters continually worked overtime without being paid for the extra work. But, said Zieff, classifying claims adjusters as exempt is contrary to California labor law because these workers are not administrators. “They don’t administrate. They just process the claims,” Zieff said. By not paying overtime to the claims representatives, he added, “Farmers flagrantly violated the overtime law.” Claims representatives for Farmers Insurance Exchange sued the company, seeking payment for overtime worked. A class of more than 2,400 California claims adjusters was certified; the class period covered Oct. 1, 1993 to June 26, 2001. In 1999, Alameda County Superior Court Judge Mark Eaton ordered Farmers to pay the overtime, thus establishing liability, said Zieff; Farmers appealed, but this decision was upheld. On July 10, 2001, an Oakland, Calif., jury awarded the plaintiffs $88.8 million for back time-and-a-half pay and $1.21 million for double time. On Sept. 24, Farmers’ post-trial motions were denied and $34.5 million in prejudgment interest was added to the jury’s award. The judgment of $124.5 million has been appealed. Before trial, said Zieff, Farmers offered $8 million to settle. ENVIRONMENTAL EXXON RADIATION CASE LEADS TO $1 BILLION VERDICT CASE TYPE: Radioactive contamination CASE: Grefer v. Alpha Technical Services Inc., No. 97-15003 (Orleans Parish, La., Dist. Ct.) PLAINTIFFS’ ATTORNEYS: Stuart H. Smith and Jack W. Harang, of New Orleans’ Smith & Harang; and Roger A. Stetter of New Orleans’ Lehmann Norman & Marcus DEFENSE ATTORNEYS: Gregory C. Weiss, Weiss & Eason, New Orleans; Patricia E. Weeks of New Orleans’ The Weeks Firm JURY VERDICT: $1.06 billion Retired Louisiana Judge Joseph Grefer and his three siblings claimed that Exxon Corp. was responsible for radioactive contamination of their land. The Grefers had leased their property near New Orleans to Intracoastal Tubular Services Inc., which contracted with Exxon to clean and refurbish pipes Exxon used in oil-drilling, said plaintiffs’ attorney Stuart Smith. Intracoastal, known as ITCO, “handled 180,000 tons of pipe per year for Exxon.” During the drilling process, Smith said, “scale would build up in the pipes, restricting the flow of oil.” This residue contained radioactive material, radium-226 and radium-228. “As a result of the pipe cleaning process, large amounts of dust blew onto the adjacent neighborhood. Millions of pounds containing radioactive material were deposited on the property and buried,” contaminating the Grefer tract, Smith said. The plaintiffs contended that Exxon had known since the 1950s that oil wells generated radioactive materials and that these materials accumulated as scale in the pipes. “In 1986 Exxon admitted the problem but did not warn ITCO until March 1987,” Smith added. ITCO subsequently went out of business. The plaintiffs sought $50 million to clean up the property, but Exxon contended that there was no substantial contamination. “The position of Exxon is that out of 1.4 million square feet of property, less than approximately 8/10 of 1 percent was contaminated above that of background levels of radiation,” said defense counsel Gregory C. Weiss. While the plaintiffs’ experts contended that the entire property was contaminated, Weiss said Exxon had conducted a subsurface survey of the property in early 2001, at a cost of $330,000, which indicated limited contamination above expected naturally occurring levels of radioactivity. “We dug over 1,000 bore holes to try to find the contamination and couldn’t find it.” Except for five small patches of land, the property was not above the standards for background levels of radioactive material set by the Louisiana Department of Environmental Quality, he said. Overall, he said, “if you took the top two feet of dirt on this property and replaced it, you’d still have the same background levels of naturally occurring radioactive material. You would have to stand on the hottest spot on this property for 115 years before any adverse health effects.” The property, Weiss contended, “is the most worthless 33 acres you could ever see. It’s a landlocked junkyard.” Nevertheless, on May 22, 2001, in a 9-3 vote, a New Orleans jury awarded the Grefers $56 million for restoration of the property, $125,000 in general compensatory damages along with $1 billion in punitives. Exxon, now ExxonMobil Corp., filed several post-trial motions, including one seeking to dismiss the plaintiffs’ claim as barred by the Louisiana statute of limitations. The pipe company ceased operations in 1992, and the plaintiffs “knew well before 1992″ about the radioactive contamination, Weiss said, yet the lawsuit was not brought until 1997. In August, Louisiana District Judge Carolyn Gill Jefferson rejected all Exxon’s motions to dismiss or alter the verdict. Exxon has appealed, calling the verdict “unwarranted” and outrageous.” FRAUD BIG WIN OVER BOND PLAN MAY BRING NO PAYMENT CASE TYPE: Fraud, conversion, breach of fiduciary duty CASE: Universal Express Inc. v. Select Capital Advisors Inc., No. 98-08358 CA 01 (Miami-Dade Co., Fla., Cir. Ct.) PLAINTIFF’S ATTORNEY: Arthur W. Tifford, solo practitioner, Miami DEFENSE ATTORNEY: No one at trial JURY VERDICT: $388.91 million Although it is the sixth-largest verdict of the year, it may not be among the top in terms of money actually collected. The individual defendants were convicted of state racketeering charges involving an unrelated company, the corporate defendant is moribund, and none of the defendants was represented at trial. The lawsuit came as a result of an unconventional financing plan offered to plaintiff Universal Express Inc. by Select Capital Advisors, a Miami-based investment banking firm. In April 1997, Select Capital’s principals Ronald Williams and William Kolker offered Universal, a package shipping company that also operates private postal stores, up to $14 million in conventional financing, plus an additional $4 million in short-term money, said plaintiff’s attorney Arthur W. Tifford. The short-term financing was to be supported by convertible debentures — a type of bond — sold to offshore investors. Under the terms of the transaction, Universal issued these short-term bonds and the investors had the right, after 30 days, to demand payment or conversion of the bonds to common stock in Universal, said Tifford. Williams and Kolker assured Universal that conventional long-term financing would be in place before the investors could demand the stock. “The short-term money was the ambush,” Tifford said. “Williams and Kolker never intended to have the conventional financing in place.” Nor were the investors offshore anywhere. “They turned out to be a group of New Yorkers working in collusion with Williams,” said Tifford. At the end of the 30 days, Universal could not pay the investors, so the investors demanded the stock. Universal issued more than 2 million extra shares to the investors. Then the investors began manipulating the stock, he said, initially hyping it to drive up the price, then after selling high, placing massive short-sell orders and “driving down the price by selling the stock back and forth to themselves.” The price dropped from $2 to 2 cents a share. Universal nearly went under, Tifford said; the scheme cost the company almost $90 million. In 1998, Universal Express sued Select Capital, Williams and Kolker charging fraud, conversion and breach of fiduciary duty. That year Williams and Kolker were convicted of state racketeering charges in Florida involving an unrelated company. No criminal charges were ever filed in connection with the Universal Express matter, Tifford reported. Before the civil trial, Judge Eleanor Schockett issued a default judgment against the defendants, citing discovery abuses. The jury considered only damages. On July 25, 2001, a Miami jury awarded $389 million — $275 million in punitives, $87.62 million in compensatory damages and $26.29 million in prejudgment interest. There were no post-trial motions, and there will be no appeal. “The defendants never even challenged the default judgment,” said Tifford. The plaintiff has begun attempts to execute on the judgment. Although Select Capital is no longer operating, and Williams is still in prison and Kolker is just out, the defendants have assets, Tifford said. He would not give any details on collection efforts. “They’ll just move the money.” MEXICAN FAMILY’S FIGHT IS BEING FOUGHT IN U.S. COURT CASE TYPE: Breach of guarantee agreement, fraud, fraudulent transfer CASE: de Ayala v. Brittingham, No. 98-CVQ-01092-D3 (Webb Co., Texas, Dist. Ct.) PLAINTIFF’S ATTORNEYS: Peter C. Houtsma of Denver’s Holland & Hart; and Carlos M. Zaffirini of Laredo, Texas’ Zaffirini & Castillo DEFENSE ATTORNEYS: Horace C. Hall III and J. Alberto Alarcon of Laredo’s Hall, Quintanilla & Alarcon JURY VERDICT: $108.24 million; reversed Mexican industrialist Don Juan Brittingham and his brother established a tile company that they sold in 1990 for $650 million in cash, said plaintiff’s attorney Peter Houtsma. Don Juan’s daughter, Cristina Brittingham Sada de Ayala, received about $90 million from the sale and transferred $50 million of this to her father for him to manage, he noted. In 1996, Brittingham asked his daughter if he could lend some of the money to his wife, Ana Maria de la Fuente de Brittingham. The daughter agreed, but asked for a promissory note, said Houtsma. The stepmother signed the promissory note for nearly $34 million and also agreed to provide a guarantee for the debt, he said. “Don Juan died in January 1998, and when the note came due in September, Ana Maria wouldn’t pay it,” he charged. Cristina de Ayala sued her stepmother, charging breach of the guarantee agreement, fraud and fraudulent transfer of assets. At trial, the defendant contended that the documents were forged and the $34 million note was never funded. But on May 17, a Laredo, Texas jury awarded de Ayala $108.24 million, including $47 million for breach of guarantee, $54.49 million for fraud, $1.5 million for fraudulent transfer and $250,000 for exemplary damages. The plaintiff would have been required to elect one remedy — either fraud or breach of guarantee. The plaintiff expected to select the fraud count, which would have left the judgment at about $80 million, Houtsma said. But, instead, the entire judgment was erased. The defense filed a motion for judgment notwithstanding the verdict; this motion was denied in July. Then the defense filed a second motion seeking a new trial, claiming jury misconduct. One of the jurors, Houtsma said, filled out a juror profile contending to be a resident of Webb County, Texas. “But every night, he slept at his parents’ house in Nueva Laredo, Mexico. The other side said he was not a citizen of Webb County,” Houtsma said, and therefore could not sit on the jury. “In their motion for new trial, they also said there was insufficient evidence to support the verdict.” In November, Judge Elma Ender granted the new trial, without giving a reason. “In December, we filed a motion asking why.” So far, he said, the plaintiff has not received a response. INVESTORS CONVINCE JURORS BUSINESS DEAL WAS FISHY CASE TYPE: Securities fraud CASE: Moody v. Summers, No. 99CV0471 (Galveston Co., Texas, Dist. Ct.) PLAINTIFFS’ ATTORNEYS: Valorie W. Davenport and Tim Yusef of Houston’s Davenport Legal Group DEFENSE ATTORNEYS: Phillip T. Bruns and Scott Humphries of Houston’s Gibbs & Bruns JURY VERDICT: $75.4 million The plaintiffs, Robert Moody Jr., Harry J. Brisco, Robert H. Williams and Bruce Payette, contended that they had lost money through investment in a bogus fish farming business set up by defendant Jack Summers. “Summers has been in trouble with the [Securities and Exchange Commission] for years and in 1991 was permanently enjoined from selling unregistered securities for defrauding investors,” said plaintiffs’ attorney Tim Yusef. “Summers sets up corporations to lure investments, then gives money off the top to the first group of shareholders in order to lure a second group.” Summers set up several fish farming companies, which were supposed to produce “a predictable, sustainable yield of fish,” Yusuf said. But, he charged, the corporations were Ponzi schemes, existing primarily to “lure investors.” Robert Kirschenberg, then an associate in the New York office of Greenberg Traurig, and his father, Gerald Kirschenberg, invested in an early version of the fish farming concept. This company went bankrupt, said Yusuf, but the Kirschenbergs were allowed to roll their stock into another fish farming company, which also went bankrupt. The Kirschenbergs rolled their stock into yet a third company, Integrated Food Technologies Corp. (IFT), Yusuf said. “Summers and Robert Kirschenberg talked Greenberg Traurig into accepting Summers and IFT as a client,” he continued. The firm was expected to take IFT public; if the initial public offering went through, the Kirschenbergs would have made more than $1 million, he added. Moody invested about $690,000 in this latter company; Brisco, Williams and Payette invested smaller amounts. They lost their investments when that company, too, went belly up. The plaintiffs sued Summers and IFT and other Summers affiliates, charging securities fraud. But they also sued Greenberg Traurig, charging that the firm had aided and abetted the fraud in violation of Texas securities law. “Greenberg was a participant in the fraud by use of their legal work product. They had a duty to disclose or at least withdraw from representing Summers,” said Yusuf. Summers did not appear at trial, and a judgment of liability was entered against him. Greenberg Traurig denied any complicity in, or awareness of, the alleged fraud, but on Dec. 4, 2001, a Galveston, Texas, jury ordered the firm and the other defendants to pay a total of $34.7 million in actual damages. The jury added $40.7 million in punitives the next day. The exact amount that Greenberg Traurig has to pay has yet to be determined, though the jury ordered the firm to pay $22.43 million of the punitives. The plaintiffs contend that the firm is on the hook for all actual damages. Greenberg Traurig has indicated that it will appeal if post-trial motions to set aside the verdict are unsuccessful. REFINANCING SEEN AS JUST RESTARTING CLOCKS ON LOANS CASE TYPE: Fraud, breach of fiduciary duty CASE: Baker v. Washington Mutual Finance Group L.L.C., No. CV-98-0026 (Holmes Co., Miss., Cir. Ct.) PLAINTIFFS’ ATTORNEYS: Richard A. Freese and Leslie McFall of Birmingham, Ala.’s Langston, Sweet & Freese; Tim K. Goss and Mikel J. Bowers of Dallas’ Capshaw, Goss & Bowers; and Edward Blackmon Jr. of Canton, Miss.’ Blackmon & Blackmon DEFENSE ATTORNEYS: Jess H. Dickinson of Gulf Port, Miss.’ Dickinson, Ros, Wooten & Samson; and Mary Brown, solo practitioner, Grenada, Miss. JURY VERDICT: $71.27 million, remitted to $54 million Loan officers in the Greenwood, Miss., office of Washington Mutual Finance Group, the subprime consumer lending branch of Washington Mutual Savings Bank, were convincing customers to refinance loans at a rate nearly seven times higher than other loan offices in the state, said plaintiffs’ counsel Richard A. Freese. In early 1998, 23 of these customers sued Washington Mutual Finance, charging fraud and breach of fiduciary duty. The plaintiffs contended that the loan officers were “fraudulently inducing people to come in and refinance loans, so they could start the clock again on the loans,” thus increasing the interest payments. The plaintiffs also charged that the loan officers were requiring customers to buy unnecessary insurance on the loans. The loan officers, Freese said, were targeting people who couldn’t read or write. Washington Mutual denied any improper practices, said defense attorney Jess Dickinson. “The plaintiffs said that when they came in to take out loans they didn’t know they were taking insurance. But we contended that they did know. They all signed or initialed disclaimers,” attesting to that knowledge, Dickinson said. Many of the plaintiffs could not read the disclaimers, Freese said. On June 13, 2001, a Lexington, Miss., jury awarded the plaintiffs $69 million in punitives and $2.27 million in compensatories. On Nov. 1, Judge Jannie Lewis reduced judgments for six of the plaintiffs substantially, finding that each could not recover damages for emotional distress, leaving the total award at about $54 million. But at the same time, Lewis denied the defense motions for judgment notwithstanding the verdict and new trial. The judgment has been appealed. Similar claims by several hundred other Washington Mutual customers are pending. B.F. GOODRICH HIT WITH $48M IN PUNITIVES CASE TYPE: Fraud, breach of contract CASE: Lockshaw v. The B.F. Goodrich Co., No. 00CC05238 (Orange Co., Calif., Super. Ct.) PLAINTIFFS’ ATTORNEY: William B. Hanley of Irvine, Calif.’s Law Offices of William B. Hanley DEFENSE ATTORNEY: Gregg C. Sindici of the San Diego office of San Francisco’s Littler Mendelson JURY VERDICT: $50.8 million, remitted In November 1997, the 26 shareholders of Tolo Inc., a small, privately held aerospace defense contractor, sold the company to Rohr Inc. As part of the sales contract, Rohr would hold back $2.4 million of the sales price as a contingency to take care of any claims that might arise against Tolo, said plaintiffs’ attorney William B. Hanley. Under the contract, said Hanley, these claims had to arise within two years of the purchase; if there were no claims, the funds then would revert back to the Tolo shareholders. One month after Rohr bought Tolo, The B.F. Goodrich Co. bought Rohr. On Oct. 29, 1999, Goodrich informed the Tolo shareholders that the company would not be returning the money to the shareholders because claims had developed and that certain Tolo contracts were under investigation by the federal government. The investigation covered minor parts shortages that occurred after the sale of Tolo to Rohr, said Hanley. And, he added, “nothing ever came of the investigation.” Nevertheless, Goodrich never paid the $2.4 million. The shareholders, including Tolo founder James Lockshaw, sued Goodrich and Rohr, charging breach of contract and fraud. The plaintiffs contended, Hanley said, “that Goodrich fabricated the reasons for retaining the money.” The defendants disputed the charges, but on May 18, 2001, an Orange County, Calif., jury ordered Rohr and Goodrich to pay $2.8 million in compensatories, then hit Goodrich with $48 million in punitives. After the verdict, Superior Court Judge Francisco Firmat cut the punitives in half. Goodrich has appealed, contending, according to a representative, that there were several “serious errors in the course of the trial.” PSYCHIC ENTREPRENEURS GET A NASTY SURPRISE CASE TYPE: Fraud CASE: Youd v. Western International Media, No. BC 195853 (Los Angeles Super. Ct.) PLAINTIFFS’ ATTORNEYS: Lawrence H. Nagler and Joan Lewis Heard of Los Angeles’ Nagler & Associates DEFENSE ATTORNEYS: Jerry S. Phillips and Brian M. Colligan of Los Angeles’ Richman, Mann, Chizever, Phillips & Duboff JURY VERDICT: $50.69 million; remitted In 1995, Tim Youd and Jason Freeland entered into a joint venture with Western International Media Corp. to create infomercials to show on television, said plaintiffs’ attorney Lawrence H. Nagler. Youd and Freeland would produce infomercials, such as “Psychic Friends,” and Western Media would buy time on various stations. In mid-1997, Western determined that it “wanted to close the business down,” and Youd and Freeland decided to buy the assets, Nagler said. Youd and Freeland formed their own company, MSM Acquisition, and acquired the assets of Western’s infomercial business. To develop MSM, Youd and Freeland borrowed money and hired psychics to take calls spurred by the planned psychic-encounter infomercials. But the business fell apart; Youd, Freeland and MSM sued Western, charging fraud and breach of contract. The partners bought assets in a business that never had a chance of making a profit, said Nagler. In purchasing the infomercial business, he said, “they relied on Western’s financial statements, but the accounting statements were false.” Western, he charged, “didn’t properly report advertising expenses they were incurring.” When Youd and Freeland bought the assets, the expenses turned out to be $2 million higher than indicated, he said. “Western knew the statements were false and intentionally concealed this.” Western International denied the charges, but on March 23, 2001, a Los Angeles jury awarded the plaintiffs $1.56 million in lost wages, $3.78 million for breach of contract and $3.1 million for intentional fraud. On March 29, the jury hit Western with $42.25 million in punitives, leaving the gross award at $50.69 million. The punitives were remitted to $12 million; after offsets and adjustments, the current judgment is about $20 million. Western has appealed. PLANES GROUNDED SO A LAWSUIT TOOK OFF CASE TYPE: Fraud, breach of contract CASE: GATX/Airlog Co. v. Evergreen International Airlines Inc., No. C 96-2494 (N.D. Calif.) PLAINTIFFS’ ATTORNEYS: Steven C. Neal of the San Francisco office of Palo Alto, Calif.’s Cooley Godward, for GATX; Gregory C. Read, of San Francisco’s Sedgwick, Detert, Moran & Arnold, for Central Texas Airborne Systems Inc. COUNTER-PLAINTIFFS’ ATTORNEYS: Mark L. McAlpine of Bloomfield Hills, Mich.’s McAlpine & McAlpine, for Kalitta Air LLC.; and Michael Hennigan of Los Angeles’ Hennigan, Bennett & Dorman, for Evergreen International Airlines JURY VERDICT: $47.5 million to counter-plaintiff GATX/Airlog co., a venture of GATX Capital Corp., converted passenger jets into cargo planes and sold them to air cargo companies. GATX contracted out the actual conversion work to other companies, including Chrysler Technologies Airborne Systems, which later became Central Texas Airborne Systems. Evergreen International Airlines Inc. bought three of the converted jets, and Kalitta Air LLC bought two. In January 1996, the Federal Aviation Administration grounded as unsafe 10 GATX converted jets and subsequently issued 17 service bulletins detailing how the planes had to be fixed to conform with FAA requirements. The FAA was concerned both with design and workmanship on the converted jets, said Kalitta attorney Mark L. McAlpine. Evergreen International Airlines Inc. attempted to fix one of its planes, following the provisos in the FAA service bulletins. Evergreen spent $18 million on this reconstruction project but did not receive FAA permission to fly the plane. Evergreen and Kalitta sued GATX, charging fraud, negligent misrepresentation and breach of contract, contending that GATX’s subcontractors used a defective design to modify the planes and that GATX had failed to disclose problems and complaints involving the planes. The air cargo companies also sued the subcontractors. By the time of trial, only GATX and Central Texas were left as defendants. The trial was bifurcated, with the liability portion going first. GATX contended that the planes should never have been grounded, but on Feb. 16, 2001, an Oakland, Calif., jury found against GATX on the breach of contract and fraud counts. The jury cleared Central Texas on all charges. Shortly thereafter, Evergreen settled, for a confidential amount. Then on March 1, the jury awarded Kalitta $30.35 million, plus interest, on the breach of contract count, and $47.5 million, plus interest, on the fraud count. Although this may appear to be a $77.85 million verdict, it is not. The court’s instruction to the jury before verdict stated that the “plaintiff cannot recover duplicative damages for both fraud and breach of contract” and that the plaintiff would have to elect the recovery. GATX settled soon after the verdict; the amount was not disclosed. The defense verdict for Central Texas has been appealed. HERBICIDE SUIT BRINGS IN $45M HARVEST CASE TYPE: Consumer fraud class action CASE: Peterson v. BASF Corp., No. C9-98-656 (Norman Co., Minn., Dist. Ct.) PLAINTIFFS’ ATTORNEYS: Hugh V. Plunkett III and Robert K. Shelquist of Minneapolis’ Lockridge Grindal Nauen; and Douglas L. Nill, solo practitioner, of Minneapolis DEFENSE ATTORNEY: Brian B. O’Neill of Minneapolis’ Faegre & Benson JURY VERDICT: $45 million, after trebling BASF Corp. makes a herbicide called Poast that kills post-emergent grasses, grasses that appear after a crop is planted and starts growing. BASF sold two versions of this herbicide, Poast and Poast Plus. Poast Plus was sold to farmers who planted so-called major crops, such as cotton, soybeans, peanuts, alfalfa and corn. Poast was sold to farmers who planted minor crops, such as sunflowers, sugar beets, carrots, tomatoes and other common produce, said plaintiffs’ attorney Hugh V. Plunkett. The farmers who bought Poast for their crops began noticing a significant difference in price. Poast cost $32 per gallon, or $4 per acre more than Poast Plus. The farmers were told, Plunkett said, that the cost was different because the formulations were different and Poast Plus had not been registered with the Environmental Protection Agency for use on the minor crops. But, Plunkett said, each form of Poast had the same active ingredient, in the same amount per acre. “They had the same EPA approvals,” he added. “It was essentially the same product.” A group of farmers in Minnesota and neighboring states sued BASF, charging consumer fraud. “They lied in their ads, they lied to the states,” said Plunkett. The farmers’ case was certified as a nationwide class action covering sales from early 1992 through the end of 1996. The case was tried under New Jersey consumer fraud law because BASF is headquartered in New Jersey. “We didn’t do anything wrong,” said BASF attorney Brian O’Neill. “We sold a good product to farmers and always acted upright and forthright.” But on Dec. 6, a Norman County, Minn., jury awarded the class $15 million. This was automatically trebled to $45 million under the provisions of the New Jersey consumer fraud statute. An additional $5 million in prejudgment interest will be added to the award, Plunkett said; this will also be trebled. Post-trial motions are pending. INTELLECTUAL PROPERTY HEART DEVICE FIGHT BRINGS $140M AWARD CASE TYPE: Patent infringement CASE: Cardiac Pacemakers Inc. v. St. Jude Medical Inc., No. IP96-1718-CH/G (S.D. Ind.) PLAINTIFFS’ ATTORNEYS: Timothy J. Malloy and Stephen F. Sherry of Chicago’s McAndrews, Held & Malloy; and Robert K. Stanley and John R. Schaiblen of Indianapolis’ Baker & Daniels DEFENSE ATTORNEYS: John J. Swenson, of the Los Angeles office, and Denis R. Salmon, of the Palo Alto, Calif., office of Los Angeles’ Gibson, Dunn & Crutcher; Michael I. Rackman of New York’s Gottlieb, Rackman & Riesman; Philip A. Whistler of Indianapolis’ Ice Miller; and Jeffrey M. Olson of Los Angeles’ Lyon & Lyon JURY VERDICT: $140 million For the second consecutive year, the largest patent infringement verdict nationally involved a dispute over a medical device used on heart patients. In 2000, two nine-figure verdicts — for $324.4 million and $271.1 million — went to a unit of Johnson & Johnson over the patent rights to stents. This year, the largest patent award, and the only one higher than $100 million, went to Guidant Corp. over its patents covering implantable heart defibrillator devices. Guidant holds several patents for these devices, which are used on high-risk heart patients to deliver timed shocks at a rate below that of external defibrillators. The market for such devices is enormous, estimated at more than $1 billion per year, said plaintiffs’ attorney Timothy J. Mulloy. Guidant has licensed its implantable cardioverter defibrillators for years to numerous companies, including Ventritex Inc. and Telectronics Inc. In late 1996, said Mulloy, St. Jude Medical Inc. announced that it was acquiring Ventritex. Guidant contended that the Ventritex license expired when the St. Jude acquisition was completed in May 1997, but that month, said Mulloy, “St. Jude commenced selling the same items.” Guidant sued St. Jude Medical, Ventritex and Pacesetter Inc., charging infringement on four implantable heart defibrillator device patents. One claim was dropped; another was dismissed, leaving charges of infringement on Guidant’s ’472 patent, issued in 1982, which covered the external programmability of the shock level of the implantable defibrillator, and infringement on the later ’288 patent defining the therapy delivered. St. Jude contended that the Guidant patents were not valid, not infringed and not enforceable. On July 3, 2001, an Indianapolis jury found both patents valid, found infringement on the ’472 patent and awarded $140 million. The jury found no infringement on the ’288 patent and no willful infringement on the ’472. Post-trial motions are pending. EMERGENCY LADDER LEADS TO $116M VERDICT CASE TYPE: Copyright infringement, trade dress infringement CASE: X-IT Products v. Walter Kidde Portable Equipment Inc., No. 2:00-CV-513 (E.D. Va.) PLAINTIFFS’ ATTORNEYS: Robert Tata, Benjamin B. Madison III and Brent L. Van Norman of the Norfolk, Va. office of Richmond, Va.’s Hunton & Williams DEFENSE ATTORNEYS: William F. Devine of Norfolk, Va.’s Hofheimer Nusbaum; and Laura Bernstein Luger of the Durham, N.C., office of Charlotte, N.C.’s Moore & Van Allen JURY VERDICT: $116 million While students at Harvard Business School, Aldo DiBelardino and Andrew Ive designed and developed an emergency escape ladder that was lighter, stronger and more portable than ladders then on the market. They patented the ladder and formed their own company, X-IT Products, to market it. The partners also designed packaging for the product. The packaging included a photograph on the box of DiBelardino’s sister-in-law and nephew climbing out of the window onto the ladder. In August 1998, the partners introduced the X-IT ladder at a national trade show in Chicago. At that time, said plaintiffs’ attorney Robert Tata, they showed the ladder to representatives of Walter Kidde Portable Equipment Inc. Kidde indicated that it wanted to buy the rights to the ladder; negotiations ensued. In June 1999, the parties entered in an agreement, whereby Kidde agreed not to use any confidential information except to evaluate the ladder. “X-IT agrees to supply its patent application to Kidde’s patent attorney,” Tata said, as part of this evaluation process. By then, however, Tata charged, Kidde had already begun plans to copy the X-IT ladder. Kidde had ordered several ladders, then sent them to China to be copied. Kidde introduced its own ladder in late 1999 using X-IT ideas, the plaintiffs charged. Kidde’s patent attorney had been sent to peruse the patent application only to adjust the product to avoid a patent infringement claim, he said. The box containing the Kidde ladder, Tata added, incorporated the X-IT design as well, including a similar photograph of people escaping a fire. “They used all the details on the box.” The Kidde ladder also made the same claims as the X-IT ladder, he added. “They said it fits any window, that it’s flame resistant. But none of that was true on Kidde’s ladder,” said Tata. X-IT Products sued Kidde, charging copyright infringement, trade dress infringement, false advertising, misappropriation of trade secrets and breach of contract. The defendant denied the charges, but on Aug. 17, 2001, a Norfolk, Va., jury awarded the plaintiffs $21 million in compensatories and $95 million in punitives. On Dec. 19, an injunction was entered against Kidde, preventing it from violating the X-IT copyright. Post-trial motions are pending; Judge Robert G. Doumar has indicated that he will reduce the verdict. JURY FINDS INFRINGEMENT OF PLANE DEVICE PATENT CASE TYPE: Patent infringement CASE: Honeywell International Inc. v. Hamilton Sundstrand Corp., No. 99-CV-309 (D. Del.) PLAINTIFFS’ ATTORNEYS: Robert G. Krupka, of the Los Angeles office, and Jonathan F. Putnam of the New York office of Chicago’s Kirkland & Ellis DEFENSE ATTORNEYS: Richard F. Ziegler, Joshua H. Rawson, David Herrington and Justin S. Anand of New York’s Cleary, Gottlieb, Steen & Hamilton JURY VERDICT: $46.58 million A predecessor company of Honeywell International Inc. applied for two separate patents in 1981 covering a system for controlling surge, or airflow, in auxiliary power units for gas turbine engines in commercial aircraft. The auxiliary power units, mounted in the tails of jet aircraft, control power to the reading lights and air vents when the engine is off, said Honeywell attorney Jonathan Putnam. The airflow to the units has to be controlled under varying demands for power or the auxiliary power unit will be damaged, he said. “The Honeywell patents covered a set of novel methods for controlling surge.” In 1999, Honeywell and its subsidiary, Honeywell Intellectual Property Inc., sued Hamilton Sundstrand Corp., charging that Sunstrand had violated the patents on the Honeywell surge control method. Honeywell charged that Sunstrand had copied the Honeywell method in auxiliary power units sold to the French company Airbus, which was also a customer of Honeywell. Hamilton Sunstrand denied any infringement and claimed that the Honeywell patents were invalid on the basis of prior art. But on Feb. 16, 2001, a Wilmington, Del., jury found the patents valid and infringed under the doctrine of equivalents. The jury also found that the infringement was willful, and awarded $46.58 million. Honeywell sought trebling of the verdict under the finding of willfulness. Sundstrand sought a reversal of the verdict, in particular citing Festo v. Shoketsu Kinzoku Kogyo Kabushiki Co., No. 95-1066 (Fed. Cir. 2000), which restricts recovery for infringement under the doctrine of equivalents. Honeywell countered that Festo did not apply to this case, said Putnam. On Sept. 27, U.S. District Judge Gregory M. Sleet upheld the jury’s verdict, but denied Honeywell’s request for trebling. The award, with the addition of prejudgment interest, now stands at $46.87 million. Both sides have appealed. MALICIOUS PROSECUTION CAR DEALER’S ON THE RUN AND OWES $150M CASE TYPE: Malicious prosecution CASE: Potamkin v. Reinke, Sept. 1998 Term, No. 0005 (Philadelphia Ct. C.P.) PLAINTIFFS’ ATTORNEYS: Richard A. Sprague and Joseph R. Podraza Jr. of Philadelphia’s Sprague & Sprague DEFENSE ATTORNEY: No one at trial JURY VERDICT: $150 million From 1994 to 1998, automobile dealers Robert and Alan Potamkin employed Klaus Reinke as a minority equity owner and general manager of a large auto dealership in Delaware, Pa. But in mid-1998, said plaintiffs’ attorney Joseph R. Podraza Jr., Reinke quit. The Potamkins hired forensic accountants, who discovered the dealership was missing about $10 million in inventory and cash. In early 1999, the Potamkins filed a civil action against Reinke, charging fraud and embezzlement. Reinke hired attorney Sol Weiss of Philadelphia’s Anapol, Schwartz, Weiss & Cohan to represent him. The state court entered a finding of liability against Reinke, and he became the subject of a criminal investigation. “Reinke then sued the Potamkins in federal court for purported violation of RICO statutes,” Podraza said. “He contended the Potamkins were responsible for any inventory missing” and that after he left the dealership, they had engaged in a racketeering conspiracy to deny him a percentage of his equity ownership. “The RICO suit lacked any basis in fact or in law,” said Podraza. It was filed in September 1999 and dismissed in May 2000. The Potamkins and their business entities, Springfield Auto Outlet Corp. and R&A Springfield Investments Inc., filed a malicious prosecution action against Reinke and his attorneys. The claim against Weiss and the Anapol Schwartz firm was that they had advised and encouraged Reinke to file the suit under the Racketeer Influenced and Corrupt Organizations Act against the Potamkins and that this was a wrongful use of process and abuse of process. On Sept. 21, 2001, in the second week of trial, Weiss and the firm settled, for a confidential amount, leaving Reinke as the sole defendant. Before trial, Reinke had denied the allegations, but during the trial there were no such denials. Reinke had no counsel at the trial, nor was he present. In 2000, Reinke had been convicted in federal court in Philadelphia of fraud and embezzlement. He was scheduled to appear for sentencing in July 2000, but did not. “He is now a fugitive,” Podraza noted. On Sept. 24, a Philadelphia jury ordered Reinke to pay the plaintiffs $50 million in compensatories and $100 million in punitives. There were no post-trial motions, nor will there be an appeal. The plaintiffs are now seeking to execute judgment. While Reinke is on the run, the plaintiffs expect to be able to acquire some of his assets. “He’s a man of considerable means,” Podraza said. MEDICAL MALPRACTICE WOMAN’S BRAIN DAMAGE RESULTS IN HIGHEST AWARD CASE TYPE: Medical malpractice CASE: Evans v. St. Mary’s Hospital of Brooklyn, No. 4038/91 (New York Co. Super. Ct.) PLAINTIFF’S ATTORNEY: Stephen E. Erickson of Lake Success, N.Y.’s Pegalis & Erickson DEFENSE ATTORNEY: Henry Shaub of New Hyde Park, N.Y.’s Shaub, Ahmuty, Critrin & Spratt JURY VERDICT: $114.87 million This was the largest medical malpractice verdict of the year nationally as well as the second-largest medical malpractice verdict ever in the state of New York. But unlike most large medical malpractice awards — which typically go to children injured during birth — the verdict in this 2001 trial went to an adult. Michelle McCord, then 28, went to the emergency room of St. Mary’s Hospital in Brooklyn at 2:30 a.m. on May 9, 1988, with severe breathing problems. She was intubated, but the process was so difficult that before the tube was actually successfully inserted through her mouth and into her lungs, McCord’s neck was cut open in preparation for a tracheotomy, said plaintiff’s attorney Stephen E. Erickson. Over the next few hours, McCord had several X-rays taken which showed a worsening lung problem, Erickson said. On May 10, medical personnel at St. Mary’s “tried to wean her from the respirator,” he said, then took the tube out at 1:30 p.m. “She began wheezing,” and showing indications of a swollen upper airway. As McCord struggled to breathe, Erickson said, the decision was made to re-intubate her. This was unsuccessful because her throat was so swollen, said Erickson. Ultimately a tracheotomy was performed. But by then, he said, McCord had gone several minutes with insufficient oxygen to the brain, which set off seizures and respiratory arrest. She was revived but sustained permanent brain damage. “She can talk, she can walk but she can’t function on her own,” Erickson said. McCord’s guardians sued St. Mary’s, its parent Catholic Medical Center of Brooklyn and Queens, and Dr. Randahir Bajaj, who had made the decision to extubate. The defendants denied any negligence, contending that the “decision to extubate was reasonable because she was clinically stable,” but that McCord had a laryngospasm, a known complication of extubation, said defense attorney Henry Shaub. On Nov. 9, 2001, after 45 minutes of deliberation, a Brooklyn jury awarded McCord $114.87 million, including $30 million in past and $70 million in future pain and suffering, finding St. Mary’s 75 percent and Dr. Bajaj 25 percent liable. The highest settlement offer had been $2 million, Erickson reported. Post-trial motions are due in February. AWARD IS $107.8M OVER CARE OF NEWBORN CASE TYPE: Medical malpractice CASE: Ballinas v. New York City Health and Hospitals Corp., No. 7709/94 (Bronx Co., N.Y., Super. Ct.) PLAINTIFFS’ ATTORNEY: Thomas A. Moore of New York’s Kramer, Dillof, Livingston & Moore DEFENSE ATTORNEY: Kenneth R. Larywon of New York’s Martin, Clearwater & Bell JURY VERDICT: $107.8 million Thomas A. Moore clients frequently win one or more of the top medical malpractice awards nationally each year. This year, Moore won his largest ever, this time for a child who sustained brain damage after, according to the plaintiff, several pre- and post-natal lapses by personnel at Lincoln Hospital in the Bronx, N.Y. In September 1990, Carmen Ballinas went to Lincoln Hospital for the birth of her son Augustin 30 hours after her water broke, Moore said. She did not go to the hospital sooner, he said, because she was unaware that her water had broken. There was a “slow leak,” instead of a sudden gush, he noted. The prolonged rupture of the membranes increased the risk of infection, Moore said. After Augustin’s birth Sept. 11, 1990, the child was placed in the well-baby unit at Lincoln. The child should have been watched more carefully, but the heightened risk of infection because of the prolonged rupture was never communicated to the pediatric staff, Moore said. “The child began showing signs of an infection, but this wasn’t picked up,” Moore added. The mother was tested and diagnosed with a Group B strep infection, which can cause meningitis. But the mother’s infection was also never communicated to the well-baby unit, he charged. The baby’s condition worsened, and he was brought to the neonate intensive care unit. “They ordered a septic workup and did a blood culture, but they didn’t check the spinal fluid,” Moore said, and thus did not diagnose in time that Augustin had picked up an infection in utero that had developed into meningitis. The child was put on antibiotics. “But this was too little, too late.” The infection caused severe, permanent brain damage, leaving Augustin with cerebral palsy, “uncontrolled movements and no expressive language,” Moore said. The Ballinas family sued the New York City Health and Hospitals Corp., owner of Lincoln Hospital, charging negligence. On May 14, 2001, a Bronx jury awarded Augustin Ballinas $107.8 million. The verdict is worth about $72 million under a New York law that reduces future damages to present value, Moore said. Post-trial motions are pending. BABY NEARLY DIES; PARENTS WIN $75M JUDGMENT CASE TYPE: Medical malpractice CASE: Antunes v. County of Nassau, No. 13780/98 (Nassau Co., N.Y., Super. Ct.) PLAINTIFFS’ ATTORNEY: Steven C. Pepperman of New York’s Bauman & Kunkis DEFENSE ATTORNEY: E. Gordon Haesloop of Mineola, N.Y.’s Bartlett, McDonough, Bastone & Monaghan JURY VERDICT: $75 million When Matthew Antunes was born at Nassau County Medical Center in February 1997 after 28 weeks’ gestation, he weighed 675 grams. As a result of his premature birth, his lungs were underdeveloped and he had breathing problems that required him to be placed on a respirator in the neonatal intensive care unit at the hospital. About two weeks after his birth, at 5 a.m. on Feb. 21, Matthew’s heart rate dropped dramatically, said plaintiffs’ attorney Steven C. Pepperman, from the normal range of 130-150, to the 50s. His oxygen saturation level, which should have been at the mid-90s or above, dropped to the 50s as well. At the time of these events, the senior doctor in the NICU was a second-year resident, Dr. Tanya Leykin, who diagnosed a pneumothorax, or air outside of the lungs preventing Matthew’s lungs from expanding. Leykin performed a needle aspiration to draw air out that had been trapped between the boy’s lungs and his chest, Pepperman said. But the child’s condition did not improve. His oxygen saturation level plummeted, to as low as 12. His heart rate slowed to the low 40s. Hospital personnel attempted to resuscitate the boy. “But by 6:40 a.m., they stopped CPR and all other life-saving procedures,” Pepperman said. Matthew’s parents were called and asked to sign a consent form to remove the infant from the ventilator. First, Anna Maria Antunes held her child for more than an hour. Then, as she put the baby down, Pepperman said, “the mother notices bloody bubbles coming out of his mouth at the end of the endotracheal tube and hears a gurgling sound.” The father brought the attending physician into the room. This doctor changed the endotracheal tube and soon after, the child’s color changed from gray to pink and his oxygen saturation rate neared 100 percent. The child survived but sustained significant brain damage, including cerebral palsy and mental retardation. His parents sued Nassau County, the hospital and Leykin, contending that if Leykin changed the endotracheal tube when Matthew first began crashing that none of the problems would have occurred. On May 16, a Mineola, N.Y., jury awarded $70 million to Matthew Antunes and $5 million to his mother. Before trial, Pepperman reported, the hospital had offered $750,000 to settle; $350,000 of this would have gone back to the hospital to pay off a lien on medical expenses so far incurred. Post-trial motions are pending. AWARD IS $55M FOR CHILD’S BRAIN DAMAGE CASE TYPE: Medical malpractice CASE: Hall v. Henry Ford Health Systems, No. 00017269NH (Wayne Co., Mich., Cir. Ct.) PLAINTIFFS’ ATTORNEY: Brian J. McKeen of Detroit’s McKeen & Associates DEFENSE ATTORNEY: John M. Perrin of Detroit’s Wilmarth, Tanoury, Ramar, Corbet, Garves & Shaw JURY VERDICT: $55 million In March 1997, Keisha Wade brought her 6-month-old daughter Zakyra Hall to St. John’s Hospital in Detroit for evaluation of upper respiratory symptoms. The child was admitted to St. John’s on March 27, then transferred to Henry Ford Hospital and discharged on March 29. Two days later, Wade brought the girl to Henry Ford’s Cottage Hospital, where, according to the plaintiff, the child was given a cursory examination and sent home. On April 1, the child began having severe breathing problems. The mother rushed her to the hospital, but the child went into respiratory arrest en route. She was resuscitated but sustained permanent brain damage, including cerebral palsy and mental retardation. Wade sued Henry Ford Health Systems, St. John’s and a radiologist at St. John’s who had read Zakyra’s chest X-ray on March 27. St. John’s settled before trial on confidential terms. On Nov. 30, 2001, a Detroit jury awarded Zakyra Hall $55 million; all but $500,000 of this was for future damages. The jury assigned liability at 10 percent each for Dr. Kurt Tech and St. John’s, and 80 percent to Henry Ford Health Systems. Under Michigan law, the future damages will be reduced to present value, about $19 million. An appeal is expected. A $44M MED-MAL AWARD THAT NO ONE OWES CASE TYPE: Medical malpractice CASE: Okebiyi v. Ramenofsky, No. 6466/97 (Kings Co., N.Y., Super. Ct.) PLAINTIFFS’ ATTORNEY: Nathan L. Dembin of New York’s Nathan L. Dembin & Associates DEFENSE ATTORNEY: Neil B. Ptashnick of New York’s Ptashnick & Schutzman JURY VERDICT: $44.04 million Although the jury awarded the plaintiff $44 million, this is really a victory for the defense. The jury cleared anesthesiologist Billy Ford of charges that he had been negligent in his treatment of 4-year-old Nicholas Okebiyi, while finding three other doctors responsible. The co-defendants had settled before trial, for a total of $6 million, meaning no one owes this judgment. The plaintiff was admitted to Downstate Medical Center in Brooklyn, N.Y., in August 1995 for removal of a tumor on his kidney, said plaintiffs’ attorney Nathan L. Dembin. Max Ramenofsky was the attending pediatric surgeon; Harold Brem and Brian Gilchrist were the residents, and Ford was the anesthesiologist for the operation. During the surgery, Brem sliced the boy’s inferior vena cava, causing the child to bleed out, said Dembin. Blood transfusions were given, he said, but not enough blood was given to the child fast enough to prevent massive brain damage. The boy is now blind and unable to walk, with a limited intellectual capacity, Dembin added. Okebiyi’s parents sued Ramenofsky, Brem, Gilchrist and Ford, charging negligence. Before trial, all but Ford had settled. The charge against Ford was that he had failed to give enough blood products, had used the wrong size catheter and that he was not present when the child went into arrest, said defense attorney Neil B. Ptashnik. Ford countered that he did not deviate from the standard of care, that the transection of the inferior vena cava was the sole cause of the child’s blood loss and subsequent brain damage and that, in fact, Ford “saved the kid’s life,” said Ptashnik. On June 5, 2001, a Brooklyn jury awarded $44 million, including $36.1 million for future pain and suffering and loss of enjoyment of life. But the child will receive none of this because the jury apportioned liability at 65 percent to Ramenofsky, 25 percent to Brem and 10 percent to Gilchrist, finding no negligence by Ford. There was no appeal. NURSING HOME BONE-DEEP BEDSORES LEAD TO $82M AWARD CASE TYPE: Negligence, fraud, injury to the disabled CASE: Ernst v. Horizon/CMS Healthcare Corp., No. 99-CI-08116 (Bexar Co., Texas, Dist. Ct.) PLAINTIFF’S ATTORNEYS: George W. Mauze II and Barbara Hutzler of San Antonio’s Law Offices of George W. Mauze II DEFENSE ATTORNEYS: Charles R. Dunn and Darrell R. Greer of Houston’s Dunn, Kacal, Adams, Pappas & Law; and R. Brent Cooper and Lanette Lutich Matthews of Dallas’ Cooper & Sculley JURY VERDICT: $82 million Robert Ernst, then 53, went to the Blanco Vista Nursing and Rehabilitation Center in San Antonio in December 1997 for long-term care after suffering a severe stroke. The stroke had left Ernst paralyzed on the left side and, because he was unable to swallow, dependent on a feeding tube, said plaintiff’s attorney George W. Mauze II. Because of the severity of the stroke, he added, Ernst’s condition was not going to improve. While at Blanco Vista, Ernst “became severely dehydrated and malnourished and developed severe contractures of all four extremities.” As a result, Mauze said, Ernst could not turn himself in bed any more and developed 14 bedsores. Seven of these pressure sores were stage IV, the most severe type; with three of these, the infection “had gone all the way to the bone.” In April 1998, Ernst underwent surgery on the bedsores, one of which was so infected, said Mauze, that the surgeon “had to use a hammer and chisel during surgery to chisel away some of the bone.” In June, Ernst was discharged from the hospital, but he did not return to Blanco Vista. He died in October 1998. His wife, as executor of his estate, sued Horizon/CMS Healthcare Corp., owner of Blanco Vista, and Andy J. Sconzo, administrator of the facility while Ernst had been a resident. The plaintiff charged negligence, gross negligence, fraud and injury to a disabled person. The plaintiff charged that the facility was understaffed and that this led to inadequate resident care. The defense contended that Ernst’s contractures and pressure sores were caused by complications from the stroke. But on Feb. 22, 2001, a San Antonio jury awarded $7 million in compensatory damages, finding Sconzo 13 percent and Horizon 87 percent liable; the jury added $75 million in punitives the next day. There was no appeal. On the fourth day of trial, the parties reached a high-low agreement. Within 30 days after the trial, Horizon had paid the Ernst estate $20 million to settle the case. $78M FOR ‘FORGOTTEN’ ALZHEIMER’S PATIENT CASE TYPE: Nursing home CASE: Sauer v. Advocat Inc., No. CIV-2000-5 (Polk Co., Ark., Cir. Ct.) PLAINTIFFS’ ATTORNEYS: Bennie Lazzara Jr. of the Tampa, Fla., office, and Brian David Reddick, of the Little Rock, Ark., office of Tampa’s Wilkes & McHugh DEFENSE ATTORNEYS: M. Darren O’Quinn and David A. Couch of Little Rock’s Dover & Dixon JURY VERDICT: $78.43 million In 1993, Greta Sauer, an 88-year-old Alzheimer’s disease patient, was admitted to Rich Mountain Nursing and Rehabilitation Center in Mena, Ark. By mid-1998, Sauer had been bed-bound for several years and in declining health, but she was not in the terminal stage of the disease, said plaintiffs’ attorney Bennie Lazzara Jr. But, he said, by July 1998, Sauer was not eating, and “a decision was made to begin feeding her with a feeding tube. But they never got around to it.” Instead, he contended, “nobody checked on her for 24 to 48 hours.” During this time, he said, “she had no food or water.” By the time the staff did check on her, he said, it was too late. She died soon after. Sauer’s estate and four of her six sons sued Diversicare Leasing Corp., which does business as Rich Mountain Nursing; Diversicare Management Services Co.; and the parent, Advocat Inc., charging wrongful death, medical malpractice, breach of contract and ordinary negligence. The plaintiffs contended that Sauer died of dehydration and malnutrition connected to continual understaffing at the nursing home. The defense contended that Sauer died from terminal Alzheimer’s and that she received proper care at the nursing home. But on June 22, 2001, a Mena, Ark., jury awarded the plaintiffs $78.43 million, including $63 million in punitives, finding the defendants liable on all counts. Advocat filed motions for a new trial and remittitur. These were denied in July by Arkansas Circuit Court Judge Gayle Ford. Advocat has appealed. FACILITY FAILED TO DETECT FATAL BLEEDING ULCER CASE TYPE: Nursing home CASE: Copeland v. Dallas Home for Jewish Aged Inc., No. 98-04690 (Dallas Co., Texas, Dist. Ct.) PLAINTIFFS’ ATTORNEYS: Kenneth B. Chaiken and Robert L. Chaiken of Dallas’ Chaiken & Chaiken; and James Russell Tucker of Dallas’ Tucker & Ratcliffe DEFENSE ATTORNEYS: Gail N. Friend and Alicia K. Dowdy of Houston’s Friend & Associates JURY VERDICT: $50.03 million Paul Copeland, 83, came to the Golden Acres nursing home in Dallas on April 18, 1996, after being treated for congestive heart failure at a local hospital. Five days later, Copeland was dead. After his death, Copeland’s daughter and his estate sued Golden Acres’ owner, Dallas Home for Jewish Aged Inc., charging negligence and malice. The plaintiffs contended that throughout his stay at the nursing home, Copeland complained loudly and often of stomach pain and that toward the end he was coughing up sputum with feces in it, said plaintiffs’ attorney Kenneth B. Chaiken. These were “classic symptoms” of a bleeding ulcer, said Chaiken, and “the autopsy showed he died from a bleeding gastric ulcer.” But during his stay at Golden Acres, nursing home personnel ascribed his actions and symptoms to dementia caused by Alzheimer’s disease. The plaintiffs charged that the nursing home was responsible for Copeland’s death for failing properly to assess or to monitor his condition, failing to recognize the symptoms of a bleeding ulcer, failing to respond appropriately and failing to carry out doctor’s orders to transport him immediately to an emergency room. The plaintiffs also sued Copeland’s treating physicians, who settled before trial on confidential terms. The nursing home denied any negligence and disputed the cause of death, contending that an ambulance paramedic transporting him to the hospital killed Copeland by improperly intubating him, said defense attorney Gail Friend. Any failure to diagnose a gastric ulcer was the responsibility of the settling physicians, she added. “Nurses can’t diagnose.” The defense was not able to present evidence about the settling doctors, she said. On May 21, 2001, a Dallas jury awarded the plaintiffs $50.03 million, including $34 million in punitives. The verdict has been appealed. PERSONAL INJURY CHILDREN HURT, KILLED IN CRASH WITH POLICE CAR CASE TYPE: Personal injury, wrongful death CASE: Jenkins v. Ranger Construction Industries Inc., No. 98009025AN, No. CL0000169AN (Palm Beach Co., Fla., Cir. Ct.) PLAINTIFFS’ ATTORNEYS: Christian D. Searcy Sr., Darryl L. Lewis, Harry A. Shevin and Lance J. Block Jr. of West Palm Beach, Fla.’s Searcy Denney Scarola Barnhart & Shipley DEFENSE ATTORNEYS: Roy R. Watson and Catherine Lynn Kasten of West Palm Beach’s Adams, Coogler, Watson, Merkel, Barry & Kellner, for Ranger Construction; Brian Boysaw of West Palm Beach’s Ryles & Boysaw, for Palm Beach County; and Lonniell Olds of West Palm Beach’s Olds & Stephens, for Riviera Beach JURY VERDICT: $256 million, but a defense verdict for Riviera Beach On May 7, 1997, Kathy Jenkins was driving her three children through the intersection of Blue Heron Boulevard and Congress Avenue in Riviera Beach, Fla., when their car was broadsided by a car driven by an off-duty Riviera Beach police officer. Kathy Jenkins’ injuries were minor, but her daughter Jasmine, 6, was killed; her son Landon, 3, suffered a spinal cord injury leaving him quadriplegic; and her son Jordan, also 3, suffered a brain injury that left him paralyzed on one side. After the accident, the Jenkins family sued the officer, Andrew Cohan, the city of Riviera Beach, Palm Beach County and Ranger Construction Industries Inc. The plaintiffs claimed that the county and Ranger were responsible for the crash for failing to provide a proper maintenance-of-traffic plan for the intersection, said plaintiffs’ attorney Christian D. Searcy. The trial was bifurcated, and on Jan. 24, 2001, a West Palm Beach jury assigned liability at 50 percent to Ranger, 43 percent to the county and 7 percent to Cohan. The jury found no responsibility for Kathy Jenkins and Riviera Beach. In late March, just before the damages portion of the trial was originally scheduled to begin, Ranger and the county settled for $57 million in cash. Ranger’s insurance carriers will pay the entire settlement, Searcy said, under an indemnification agreement with the county. Despite the settlement, the damages portion was tried and on July 11, the jury awarded the Jenkins family $256 million. Cohan, the only nonsettling defendant found liable, will be responsible for 7 percent, or $17.92 million of this. There were no post-trial motions, and a final judgment was entered against Cohan, who was not represented at trial. But it’s unlikely much of this award will ever be collected, said plaintiffs’ attorney Harry Shevin. Cohan was uninsured, has limited assets and his employer is not on the hook for any of the judgment. 28-FOOT DROP DAMAGED IRONWORKER’S BRAIN CASE TYPE: Personal injury CASE: Benefield v. Halmar Corp., No. 6520/94 (Orange Co., N.Y., Sup. Ct.) PLAINTIFF’S ATTORNEY: Howard R. Borowick of New York’s Sacks & Sacks DEFENSE ATTORNEY: Peter J. Madison of New City, N.Y.’s Adelson, Slater & Madison JURY VERDICT: $85.64 million In October 1992, ironworker Christian Benefield, then 23, was standing on a ladder, tightening anchor bolts for supports on a highway overpass in Orange County, N.Y., when he lost his balance and fell 28 feet, hitting his head on a guard rail on the way down. Benefield, who was wearing a hard hat, sustained “a slight fracture of the mastoid bone of the skull and no other overt injuries” to his head, said plaintiff’s attorney Howard R. Borowick. But as Benefield tried to return to work, he began behaving erratically and exhibiting signs of residual brain injury, said Borowick. “He couldn’t sustain gainful employment,” he was forgetful, unable to sleep and had a constant headache. Benefield began drinking, became “distant, vacant,” and ultimately was institutionalized, Borowick added. He was diagnosed with brain damage linked to the accident. Benefield sued the general contractor of the construction project, Halmar Corp., charging that he had been injured because the contractor had operated an unsafe workplace. When Benefield was ordered to tighten the bolts, said Borowick, “he was provided no safety devices or alternative devices such as a cherry-picker.” Halmar brought in Benefield’s employer as a third-party defendant, contending that Sussex was responsible for workplace safety and had supervised Benefield, so was liable for any accident. Sussex contended that the ladder was safe and that Benefield was responsible for the fall. On May 11, 2001, a Goshen, N.Y., jury found the safety measures at the site inadequate; the liability finding left Sussex the sole defendant at the damages phase, because Halmar was entitled to indemnification. On June 8, the jury awarded Benefield $85.6 million. Under New York law future damages will be structured, so “the present value as it stands is about $45 million,” said Borowick. Post-trial motions are pending. NO SETTLING IN $51M PERSONAL INJURY CASE CASE TYPE: Personal injury CASE: Burch v. Children’s Hospital of Orange County Thrift Stores Inc., No. 00CC00620 (Orange Co., Calif., Super. Ct.) plaintiff’s attorneys: Lawrence P. Grassini, Roland Wrinkle and William R. Chapman of Woodland Hills, Calif.’s Grassini & Wrinkle DEFENSE ATTORNEYS: Darrell Forgey and John Aitelli of Los Angeles’ Hillsinger, Forgey, Hurrell & Star JURY VERDICT: $51.64 million In the typical personal injury case, after a massive verdict, the case settles for considerably less than what the jury awarded. This case is an anomaly. The defense paid, in cash, every penny of the jury verdict, plus interest. The plaintiff, Rebecca Burch, then 19, was injured Feb. 3, 1999, as she was driving through an intersection in Newport Beach, Calif. A truck ran a red light and broadsided her on the driver’s side. She suffered pelvic fractures, a ruptured spleen and a brain injury that caused short-term memory loss, shaking on her right side and spasticity on her left. She is confined to a wheelchair. The truck driver, Eddie Bretado, had taken his eyes off the road to look at a map, said plaintiff’s attorney Lawrence P. Grassini. “He was going 40 mph and never braked.” After the accident, Burch sued Bretado’s employer, Children’s Hospital of Orange County Thrift Stores Inc., and the store’s parent, Children’s Hospital of Orange County. The defense admitted liability, but disagreed with the settlement demands of the plaintiff. Children’s Hospital had an insurance policy limit of $50 million, said Grassini. “We asked for the policy limits.” In settlement discussions, Children’s Hospital had initially offered $4 million, then raised it to $10 million, then $20 million and finally, just before trial, $25 million. Each offer was rejected, Grassini said. The plaintiff sought the higher compensation, he said, to pay for a 24-hour licensed vocational nurse during her life. On May 24, 2001, the Westminster, Calif., jury awarded Burch $51.64 million, including $25 million in pain and suffering. Because the defense turned down the policy-limits offer, Grassini said, the defense was also on the hook for an additional $4.4 million in prejudgment interest. The defense moved for remittitur and new trial. On July 13, California Superior Court Judge Claude Whitney turned down the motions. That day the case settled, with Children’s Hospital paying a total of $52.39 million — the judgment plus about $750,000 in interest. TOT’S AIR BAG DEATH LEADS TO $44M VERDICT CASE TYPE: Personal injury CASE: Ramos v. Bay Inc., No. 98-02-36425 (Jim Wells Co., Texas, Dist. Ct.) PLAINTIFFS’ ATTORNEYS: Steve T. Hastings of Corpus Christi, Texas’ Huerta & Hastings; Rebecca E. Hamilton of Dallas’ Sumner, Schick & Hamilton; Wallace W. Canales of Alice, Texas’ Law Offices of Wallace Canales; and Robert J. Patterson of Corpus Christi’s Patterson & Associates DEFENSE ATTORNEYS: Darrell L. Barger and Tom Hermansen of Corpus Christi’s Barger, Hermansen, McKibbin & Villareal for Bay Inc.; Ronald G. Hole of McAllen, Texas’ Hole & Alvarez for Melinda Garcia JURY VERDICT: $44.73 million, defense verdict for Garcia Rebecca Ramos was driving north through a construction zone on Highway 281 in Alice, Texas, on Sept. 27, 1997, when a Toyota driven by Melinda Garcia going west pulled out in front of her. Ramos’ Suzuki hit the left front side of Garcia’s car, and the Suzuki’s air bag deployed. Erika Ramos, then 18 months old, was in the front seat of the Suzuki and was hit with full force by the air bag. She suffered a broken neck, leaving her a ventilator-dependent quadriplegic. Her brother Randy, 3, who was also in the front seat, was not injured. After the accident, the Ramos family sued Bay Inc., the general contractor for the construction zone, contending that portable concrete barriers placed by Bay had created a blind spot. The accident occurred at 9 p.m., and at night drivers coming into the intersection could not see any cars that had headlights below the height of the wall, said plaintiffs’ attorney Steve T. Hastings. A week after the Ramos accident, Hastings said, “there was an identical accident at the same location.” Bay Inc. brought in Garcia as a third-party defendant, contending that Garcia caused the accident “for failing to keep a proper look-out,” Hastings said. Bay also contended that Rebecca Ramos was negligent for having her children in the front seat. On Dec. 13, a jury sitting in Jim Wells County, Texas, awarded the plaintiffs $44.73 million, finding Bay 100 percent responsible, and rejecting any claims of negligence against Garcia or Ramos. Another $18 million will be added to the verdict for prejudgment interest, Hastings said. The defense has filed a motion for judgment notwithstanding the verdict. On Jan. 7, Judge Shanton Pemberton ordered the parties into mediation. “The mediation didn’t work,” said Hastings. An appeal is expected. PRODUCTS LIABILITY PILOT LOST CONTROL OF PLANE WHEN CESSNA SEAT SLIPPED CASE TYPE: Products liability CASE: Cassoutt v. Cessna Aircraft Co., No. 91-2939-CA-01 (Escambia Co., Fla., Cir. Ct.) PLAINTIFFS’ ATTORNEYS: Arthur Alan Wolk and Richard E. Genter of Philadelphia’s Wolk & Genter DEFENSE ATTORNEYS: Mark A. Dombroff and Henry B. Goddard Jr. of Washington, D.C.’s Dombroff & Gilmore JURY VERDICT: $480 million On Aug. 14, 1989, pilot James Cassoutt touched down his Cessna 185 single- engine, four-seater airplane and intended to go back up when his seat slipped back. “He was holding onto the controls,” plaintiff’s attorney Arthur Alan Wolk recounted, and as a result of the slip, “he lost control of the plane.” The plane pitched upward and stalled; it then crashed and burned in a wooded area near Coastal Airport in Pensacola, Fla. Cassoutt and his two passengers survived the crash, but Cassoutt, then 47, was burned; his wife Cindy, 32, suffered third- and fourth-degree burns over 65 percent of her body and sustained several fractures. The second passenger, Judy Kealy Diaz, 34, suffered a fractured spine that left her with a permanent loss of bowel and bladder control. After the accident, all three sued Cessna Aircraft Co., charging that the pilot’s seat-latching system was defective. The Cessna system, which includes a rail and a steel pin that engages the rail, is prone to slips, Wolk charged. The steel pin locking mechanism, Wolk said, does not always keep the seat from inadvertently moving on the rail. The plaintiffs charged that Cessna should have used an alternative design, which uses a dual pin going into the side of the seat rails, “so there is no way to slip.” This alternative design “also has stronger rails that didn’t flex with the movement of the aircraft,” Wolk added. The latter design, he said, has been used on other Cessna models. Cessna contended that there were no defects, but that the crash was caused by pilot error. On Aug. 15, 2001, a Pensacola jury awarded the plaintiffs $80 million in compensatory damages, including $10 million to James Cassoutt, $25 million to Cindy Cassoutt and $45 million to Diaz. The next day, the jury ordered Cessna to pay the plaintiffs $400 million in punitives, apportioning the amounts to each based on the compensatory award. Cessna’s attorneys declined to comment. The defendant has filed post-trial motions to set aside the verdict. FIRST TRIAL OVER PROPULSID YIELDS $100M AWARD CASE TYPE: Products liability CASE: Rankin v. Janssen Pharmaceuticals Inc., No. 2000-20 (Claiborne Co., Miss., Cir. Ct.) PLAINTIFFS’ ATTORNEYS: James D. Shannon of Hazlehurst, Miss.’ Shannon Law Firm; Edward Blackmon Jr. of Canton, Miss.’ Blackmon & Blackmon; James E. Upshaw and Lonnie D. Bailey of Greenwood, Miss.’ Upshaw, Williams, Biggers, Beckham & Riddick; T. Mark Sledge of Jackson, Miss.’ Grenfell, Sledge & Stevens; and Bob Owens of Jackson’s Owens Law Firm DEFENSE ATTORNEYS: Christy D. Jones and C. Maison Heidelberg of Jackson’s Butler, Snow, O’Mara, Stevens & Cannada; and Robert L. Johnson III, solo practitioner, of Natchez, Miss. JURY VERDICT: $100 million This was the first trial ever in a lawsuit involving the drug Propulsid. And although the court has indicated that the jury’s award will be reduced on post-trial motions, the award remains one of the largest ever in a pharmaceutical products liability action. The plaintiffs were nine adults and one child who were prescribed Propulsid to alleviate acid reflux. The child, Macey Beth Johnson, was 1 week old when she began taking the drug, said plaintiffs’ attorney Jim Shannon. The medication was never approved for use in children and had been linked to heart arrhythmia and heart attacks in adults, he said. As a result of her taking the drug, Shannon said, Macey blacked out three times, suffered a heart attack and “almost died.” She has since recovered with no permanent damage. Propulsid has been linked to more than 100 deaths and hundreds of less severe adverse cardiac events, he charged. In Mississippi, 155 plaintiffs filed a products liability action against Janssen Pharmaceuticals Inc., maker of the drug, and Janssen’s parent, Johnson & Johnson. The complaints of these plaintiffs were set to be tried in groups of 10; Trial Group I contained the action by Macey Beth Johnson and nine adults who had taken the drug between 1993 and 2000. The plaintiffs contended that the drug set off cardiac arrhythmia or a condition called “qt prolongation,” which causes an interruption of blood flow to the heart, said Shannon. The Food and Drug Administration had approved Propulsid for use to treat adult nighttime heartburn. But, Shannon said, between 1993 and 1996, there were reports of dozens of major adverse side effects by users of the drugs, including 37 heart attacks, 20 episodes of qt prolongation, four deaths and 16 resuscitations after death. On four occasions, he added, the FDA cited the drug-makers for using “false and misleading promotional materials.” The FDA also complained that Janssen was not adequately warning of the drug’s adverse effects, Shannon said. The defendants took the drug off the market in April 2000, “under pressure by the FDA.” The plaintiffs charged that the defendants knew of the problems with Propulsid before putting it on the market but failed to warn physicians or the public and “promoted off-label use,” such as giving the drug to children. The defendants disputed the plaintiffs’ claims of Propulsid-caused injuries, contending that Propulsid is safe when properly prescribed and that any cardiac events were connected to other health problems. But, on Sept. 28, a Port Gibson, Miss., jury awarded $10 million to each of the 10 plaintiffs. After the verdict, Circuit Court Judge Lamar Pickard ruled that the actions of the defendants did not warrant punitives. Post-trial motions are pending; Pickard has indicated that he will order a remittitur. PATCHING TIRE SPARKED A CRIPPLING EXPLOSION CASE TYPE: Products liability CASE: Elizondo v. Tradco Corp., No. 98-11-37092 (Jim Wells Co., Texas, Dist. Ct.) PLAINTIFFS’ ATTORNEYS: Anthony F. Constant of Corpus Christi, Texas’ Constant & Vela; and Giancarlo Nisimblat of Alice, Texas’ Nisimblat & Basart DEFENSE ATTORNEYS: John G. Adami of Alice’s Adami, McNeill, Paisley & Appell; and Donald Francis Lighty of Beaumont, Texas’ Stevens, Baldo & Freeman JURY VERDICT: $80 million On June 13, 1998, Robert Perez, then 19, was attempting to patch a flat tire with a sealant called Patch-a-Flat when “he hears a hissing sound and sees a screw [embedded] in the tire,” said plaintiffs’ attorney Anthony F. Constant. “He pulls out the screw and this creates a spark which sets off an enormous explosion.” Perez sustained severe burns and broken hands. His fianc�e, Melissa Elizondo, who was next to him when the explosion occurred, lost her right eye and was left with permanent epilepsy, Constant said. Elizondo and Perez sued Tradco Corp., maker of the Patch-a-Flat sealant, contending that Patch-a-Flat was defectively designed and unreasonably dangerous, said Constant. Patch-a-Flat uses a 97 percent combination of propane and butane to push the sealant into the tire, he said, and as a result, “the product is explosive if you ignite it in an enclosed container.” The plaintiffs contended that Tradco could have made a safer alternative, one that did not use the propane/butane mixture but that Tradco did not use the safer process because this would have driven up the price of the product. Tradco contended that Patch-a-Flat was not dangerous and that the design was not defective. Tradco also denied that Perez was even using the company’s product. But on Jan. 27, 2001, an Alice, Texas, jury awarded $60 million to Elizondo and $20 million to Perez. The damages were all compensatory. Before trial the parties entered a high-low agreement. As a result, the parties settled shortly after verdict. The amount was confidential, said Constant. Earlier reports indicated that the floor was set at $2.75 million and the ceiling at $10 million. USER OF DIET DRUG SHED POUNDS, ACQUIRED PROBLEM CASE TYPE: Products liability CASE: Lopez v. American Home Products Corp., No. 99-0737723 (Jim Wells Co., Texas, Dist. Ct.) PLAINTIFF’S ATTORNEYS: Kathryn Snapka and Gregory W. Turman of Corpus Christi, Texas’ Law Offices of Kathryn Snapka; and Antonio Martinez and Trey Martinez of Brownsville, Texas’ Martinez & Barrera DEFENSE ATTORNEYS: J.A. “Tony” Canales of Corpus Christi’s Canales & Simonson; Randall L. Christian of Austin, Texas’ Clark, Thomas & Winter; Steven G. Reade of Washington, D.C.’s Arnold & Porter; William R. Murray Jr. of Washington, D.C.’s Williams & Connolly; and Joseph Piorkowski Jr. of the Washington, D.C., office of Kansas City, Mo.’s Shook, Hardy & Bacon JURY VERDICT: $56.55 million Gloria Lopez, a 48-year-old school cafeteria supervisor, began taking the drug pondimin — the fenfluramine portion of the weight-reduction medication fen-phen — in April 1997 to lose a few pounds, said plaintiff’s attorney Gregory Turman. The drug was effective and Lopez lost 10 pounds over a five-month period, the lawyer noted. But fenfluramine also left Lopez with “shortness of breath, the feeling that she’s choking when she’s sleeping,” and “moderate aortic regurgitation,” a severe, irreversible defect in her aortic valve, added plaintiffs’ counsel Kathryn Snapka. Before taking fen-phen, Lopez had no history of heart disease, Turman said. After the diagnosis, Lopez sued the maker of Pondimin, American Home Products Corp., along with its affiliates Wyatt-Ayerst Laboratories Co. and A.H. Robins Co., charging that the medication had caused her heart problems. This heart valve defect, Turman said, “is a known side effect of fen-phen. Ultimately it was the reason the drug was removed from the market.” American Home has offered $3.75 billion to settle the claims of fenfluramine users; Lopez opted out of the global settlement. The plaintiff also accused American Home of deliberately concealing reports of adverse effects of the drug before its removal from the market. American Home contended that the plaintiff’s heart valve problems were “caused by a pre-existing medical condition,” said defense attorney Steven G. Reade. But on April 3, 2001, an Alice, Texas, jury awarded Lopez $11.55 million in actual damages and $45 million in punitives. On July 10, the award was remitted to $8.2 million; just under $1 million in prejudgment interest was added, bringing the total award to $9.18 million. The case settled shortly afterward, for a confidential amount. TIRE SEPARATION CASE COMES IN AT $55M CASE TYPE: products liability CASE: Lampe v. Continental General Tire, No. BC 173567 (Los Angeles Super. Ct.) PLAINTIFFS’ ATTORNEYS: Brian J. Panish of Santa Monica, Calif.’s Greene, Broillett, Taylor, Wheeler & Panish; and Taras Kick of Los Angeles’ The Kick Law Firm DEFENSE ATTORNEYS: Walter M. Yoka of Los Angeles’ Yoka & Smith; and Kenneth J. Moran of Richmond, Va.’s Moran Kiker Brown JURY VERDICT: $55.32 million In June 1996, plaintiff Cynthia Lampe, then 28, was driving a 1993 Ford Taurus on Route 15 between Los Angeles and Las Vegas when “the left rear tire tread separated and came flying off the tire, causing her to lose control of the car,” said plaintiffs’ attorney Brian J. Panish. The accident rendered Lampe quadriplegic. She has minimal use of her arms and legs and requires full-time attendant care. Her mother, Sylvia Cortez, was also injured in the accident. Lampe and her parents sued Continental General Tire, maker of the AmeriTech ST tire on the Taurus, contending defects in the design and manufacture of the tire. The tire on the Taurus was made at General Tire’s Mount Vernon, Ill., plant, said plaintiffs’ attorney Taras Kick. The plaintiffs charged that the material was contaminated during the manufacturing process, leading to the separation. “The plant management routinely ordered the floors swept up; then, instead of dumping the waste, worked it back into the rubber mix,” Kick said. The plaintiffs also contended design defects, said Panish. “The insulation strips on the tires were not thick enough,” he charged, and General Tire “didn’t use belt wraps to prevent tread separation.” The defense denied any defects and asserted that any contamination could not have caused or initiated the separation. But, on April 13, 2001, a Los Angeles jury ordered Continental General Tire to pay the plaintiffs $55.32 million, including $49.85 million to Lampe. The jury found defects in the manufacture of the AmeriTech, but no design flaws. General Tire filed post-trial motions to set aside or alter the verdict. These were denied and in August the case settled. The amount was confidential but, said Kick, “our clients were very happy.” ELECTRIC ‘FIREBALL’ ON JOB LEADS TO $55M JUDGMENT CASE TYPE: Products liability CASE: Horan v. Cutler Hammer Inc., No. PAS-L-3786-98 (Passaic Co., N.J., Super. Ct.) PLAINTIFF’S ATTORNEY: Alfred D. Dimiero of Short Hills, N.J.’s Mella & Dimiero DEFENSE ATTORNEYS: Michael L. Zaleski and Margaret Kelsey of Madison, Wis.’ Quarles & Brady; and Richard J. Williams Jr. of Morristown, N.J.’s McElroy, Deutsch & Mulvaney JURY VERDICT: $55 million Electrician Patrick Horan, 38, was working on a construction project at William Paterson University in Wayne, N.J., when a wire that had been coiled in the door of a switchboard passed through a gap in the board, said his attorney Alfred D. Dimiero. The wire struck the energized bus of the switchboard and set off an electrical explosion, he said. Horan was “struck by a fireball of several-thousand degrees in temperature and sustained third-degree burns over half of his body.” Despite repeated surgery, Horan is in constant pain, Dimiero said. Horan and his wife, Faye Paskas, sued Cutler Hammer Inc., maker of the switchboard, charging that the switchboard was defectively designed. The plaintiffs contended, Dimiero said, that the energized bus of the switchboard “is supposed to be barriered to isolate it from people. This switchboard contained a gap,” which allowed the wire to contact the energized portion of the switchboard. The defense denied any defects in the switchboard, contending that the explosion and fire were unrelated to the gap. “It was impossible for the accident to have happened that way,” said defense attorney Michael Zaleski. But on Feb. 2, 2001, a Paterson, N.J., jury awarded Horan $50 million and his wife $5 million. Cutler Hammer, a unit of the Eaton Corp., filed motions for j.n.o.v., a new trial and remittitur. On March 28, New Jersey Superior Court Judge Anthony Graziano denied the motions for j.n.o.v. and a new trial, but remitted the damages to $15.5 million. Graziano then added $578,356 in medical bills, $200,000 in back wages and $4.36 million in prejudgment interest, bringing the total judgment to $20.64 million. Both sides have appealed to the New Jersey Court of Appeals. Cutler Hammer is seeking a reversal of the entire verdict; the plaintiffs are seeking reinstatement of the original jury award. TORTIOUS INTERFERENCE VENDING MACHINE CASE DISPENSES $51M CASE TYPE: Tortious interference with prospective business advantage CASE: Service Vending Co. v. Wal-Mart Stores Inc. (Lawrence Co., Mo., Cir. Ct.) PLAINTIFF’S ATTORNEY: James W. Newberry of Springfield, Mo.’s Newberry, Haden, Cowherd, Bullock, Keck & McGinnis DEFENSE ATTORNEY: Todd Guthrie, corporate counsel for Wal-Mart, Bentonville, Ark. JURY VERDICT: $51.5 million Aurora, Mo.-based Service Vending Co. had been supplying vending machines to Wal-Mart Inc. stores for 13 years, when Wal-Mart suddenly terminated its contract in September 1998. Wal-Mart had acted after a disaffected former employee of Service Vending charged that the vending company had misappropriated funds, said plaintiff’s attorney James W. Newberry. “The allegations turned out to be baseless, but Wal-Mart handed us the pink slip,” he said. Wal-Mart hired Store Service Inc., which contacted Service Vending to buy the Service Vending equipment that was already in the Wal-Mart stores, Newberry said. Wal-Mart, however, would not allow Service Vending to sell the equipment while it was still in the Wal-Mart stores. Instead, Wal-Mart required Service Vending to move the equipment out of all 440 stores in 13 states. Store Service was not interested in buying and replacing the machines in the Wal-Mart stores, so the deal with Store Service fell through. Service Vending then sued Wal-Mart, charging tortious interference with prospective business advantage. Service did not claim, however, that Wal-Mart had committed any wrongdoing in canceling the contract. Wal-Mart denied any tortious interference. “Our contract with the company gave us every right to take the action we took,” said Wal-Mart spokesman Bill Wertz. But on June 20, 2001, a Mount Vernon, Mo., jury awarded Service Vending $1.5 million in compensatories and $50 million in punitives. Wal-Mart’s post-trial motions to set aside or alter the verdict were denied. In October, the company filed its appeal. WRONGFUL DEATH BANKRUPTCY RULING MAKES WAY FOR AWARD CASE TYPE: Wrongful death CASE: Bruce v. Davis, No. 98-2818 (Bay Co., Fla., Cir. Ct.) PLAINTIFFS’ ATTORNEYS: Jay W. Manuel and Waylon Thompson of Panama City, Fla.’s Manuel & Thompson DEFENSE ATTORNEY: Kegan Phillip Davis, pro se JURY VERDICT: $44.61 million On June 8, 1997, Kegan Phillip Davis was driving on a two-lane highway near Panama City, Fla., when he crossed the center line and hit a Chevrolet driven by Patricia Herrington, 60. Herrington suffered massive injuries and brain damage, leaving her unable to talk or to respond beyond winces, moans and groans, said plaintiffs’ attorney Jay W. Manuel. She lingered for a year, undergoing more than a dozen surgeries before dying in June 1998. Her estate and children sued Davis, charging that he had been driving while under the influence of marijuana. Davis had been acquitted of criminal charges of driving while under the influence, but a post-accident test indicated that he had smoked it before the crash, Manuel said. Before the trial, Davis filed for bankruptcy. The bankruptcy court issued a ruling that he had been driving while under the influence of alcohol or drugs and thus could not be protected from paying any debt owed to the plaintiffs. The plaintiffs’ attorneys used this ruling to gain a directed verdict on liability from the trial court, Manuel said. The jury considered only damages. On April 16, 2001, a Panama City jury awarded the plaintiffs $44.61 million, including $37.5 million in punitives. There were no post-trial motions and there will be no appeal. The plaintiffs are unlikely to collect any of the judgment, Manuel said. Davis has no assets. The plaintiffs have petitioned to get the defendant’s driver’s license suspended. “I wish he’d win the lottery,” Manuel said.

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