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Plaintiffs’ huge victories make headlines. Defendants often dodge disaster in obscurity. Yet many of the wins by defendants are as noteworthy as the megamillion judgments won by plaintiffs. The National Law Journal tries each year to identify the top defense verdicts — cases won despite problems such as unfriendly venues, sympathetic plaintiffs and tough opposing counsel. We have several criteria. The plaintiff should have had a reasonable chance to win, as indicated by a settlement by a co-defendant, a defense offer of a substantial settlement or previous plaintiffs’ wins in similar cases. The list includes only jury verdicts — no summary dismissals, no bench trials. The amount at risk must be substantial. The win must be complete. A moral victory, such as a million dollar loss instead of a billion, doesn’t count. The jury’s decision must be valid, with no reversals or remands for new trials, though cases that have since been settled are acceptable. The top defense win in 2001, by Thomas & Betts Corp. and Schweitzer Engineering Laboratories in litigation over a Louisiana plant explosion, is reported separately. The rest follow. BREACH OF DUTY NFL’S ATTORNEYS TAKE ON A TOUGH RAIDER OFFENSE CASE TYPE: Breach of fiduciary duty CASE: Oakland Raiders v. National Football League, No. BC 206388 (Los Angeles Super. Ct.) PLAINTIFF’S ATTORNEYS: John J. Quinn and Lawrence J. Hutt of the Los Angeles office of Washington, D.C.’s Arnold & Porter; Joseph M. Alioto of San Francisco’s Law Offices of Joseph M. Alioto DEFENSE ATTORNEYS: Allen Ruby of San Jose, Calif.’s Ruby & Schofield; James Keyte of New York’s Skadden, Arps, Slate, Meagher & Flom; Gregg H. Levy of Washington, D.C.’s Covington & Burling JURY VERDICT: for the defense When the Los Angeles Rams left California and moved to St. Louis in 1995, this left the Los Angeles Raiders as the sole National Football League franchise in the city. But soon after the Rams’ exit, the Raiders left as well, returning to their former home in Oakland, Calif. After the move, the Raiders filed an action for breach of fiduciary duty against the NFL and 16 NFL teams, charging that the league and the teams had prevented the Raiders from consummating a deal to obtain a new, state-of-the-art stadium in Inglewood, Calif., adjacent to the Hollywood Park racetrack. “The Raiders, in effect, said the NFL forced them out of Los Angeles,” said defense attorney Allen Ruby. The plaintiff contended that the league had “imposed onerous conditions on the Raiders and Hollywood Park in order for the stadium project to go forward,” said Ruby. The Raiders were seeking a commitment from the league that multiple Super Bowls would be played at the new facility, but charged that the league had imposed impossible conditions. In particular, the league had required the Raiders to agree to allow a second Los Angeles NFL franchise to play in the stadium. The Raiders charged that “this condition was never required of any other team.” As a result of such conditions, the plaintiff contended, the deal fell through and the Raiders moved back north. There were several obstacles to the defense, Ruby said. “The Raiders were experienced litigants with a history of success in court.” The Raiders had won a major antitrust battle with the NFL in the 1980s when the club originally moved to Los Angeles, he noted. The Raiders contended that the NFL blocked the new stadium project, in part, as revenge over the previous battles with the league. According to the plaintiff, said Ruby, “some of the individual owners had a grudge against Al Davis,” the owner of the Raiders, and the other owners and the NFL commissioner “were trying to get even.” In addition, there was the hometown appeal to Angelenos. “The Raiders were claiming that the NFL cost the city a football team.” The plaintiff also contended that the league pushed out the Raiders in order to grab the city for itself. The Raiders eventually dismissed the individual teams as defendants and proceeded only against the league. The plaintiff’s attorneys introduced at trial numerous NFL internal memos on the league’s plans to add a new franchise in Los Angeles and pointed to these as a smoking gun. To win, the defense put the memos in context and proffered an alternative theory on why the Raiders had moved back to Oakland. “The Raiders moved because they wanted to move. Oakland offered them a better deal.” As for the memos, Ruby said, “they’d put them up on a screen and say, ‘Aha!’ — as if there was something nefarious going on.” The league’s attorneys did not dispute the documents, but told the jury that “the context was important,” said Ruby. There was certainly no attempt to push the team out of Los Angeles, the defense asserted. The memos and the negotiations between the NFL and the Raiders over the new Los Angeles stadium came immediately after the Rams announced they were going to St. Louis, said Ruby. “This left the L.A. area with one team, and the TV networks were concerned there would be no [National Football Conference] team in L.A.” The Raiders are an American Football Conference team; the Rams are in the National Football Conference. “The league wanted the option to address the concern of the networks.” The Raiders were seeking $1.2 billion, plus punitives, but on May 26, 2001, the Los Angeles jury returned a verdict for the defense. CIVIL RIGHTS DEFENSE STAYS IN FOCUS IN POLICE SHOOTING TRIAL CASE TYPE: Civil rights CASE: Stevenson v. City of Jacksonville, No. 2001-13256 (M.D. Fla.) PLAINTIFF’S ATTORNEY: Linnes Finney of Stuart, Fla.’s Gary, Williams, Parenti, Finney, Lewis, McManus, Watson & Sperando; and Noel G. Lawrence, solo practitioner, of Jacksonville, Fla. DEFENSE ATTORNEYS: Brian M. Flaherty (now of Jacksonville’s Farah and Farah) and Paul McLester (now of Jacksonville’s Morgan Colling & Gilbert), both former assistant general counsel for the city of Jacksonville JURY VERDICT: for the defense Before Sept. 11, juror attitudes toward the police had hit an all-time low nationwide. Substantial verdicts were being awarded everywhere over claims of excessive force. Municipalities were settling cases they never would have dreamed of resolving in prior years. In Chicago last May, for instance, the city agreed to pay $18 million to settle a wrongful death claim after a focus group indicated that a jury might award several times that figure. When the city of Jacksonville, Fla., was sued over the death of Shirley June Ansley, it seemed the trial would follow the trend. The case had all the elements: Ansley was an unarmed 56-year-old black woman shot by a white officer newly on the force; unarmed, she was shot four times; the police officer who shot her resigned from the force; the Jacksonville sheriff testified at trial that had the officer not resigned he would have been fired over the incident; a police board found that the officer had violated department procedures in shooting Ansley. Yet, in February, a Jacksonville jury found no liability. The death of Shirley Ansley occurred in 1998. Ansley had been fired from her job as a security guard and appeared at her former workplace. The police were called, said defense attorney Brian Flaherty. “The police asked her to leave and she got into words with the officers.” Ansley left but the police followed her. A low-speed pursuit ensued. Over the next 2 1/2 miles, he said, “the police attempted to cut off her van but she wouldn’t stop.” She drove into a cul-de-sac and was surrounded by the police. “But she tried to smash her way out of it.” Officer Terry Shirley had gotten out of his car and as she slowly drove toward him he shot Ansley four times, killing her. After the shooting, Ansley’s sister Lula Stevenson, filed a civil rights wrongful death action against the city of Jacksonville. The plaintiff contended that Shirley had used excessive force and could have stopped Ansley without shooting her four times. The plaintiff also contended that Shirley put himself in front of Ansley’s vehicle and could have gotten out of the way. Stevenson also maintained that the police should never have pursued Ansley in the first place because she was never accused or suspected of any crime. Initially the case against the city looked bleak. A police review board found that Shirley had violated department procedures in shooting Ansley. Shirley resigned after the incident. At the trial, Jacksonville sheriff Nat Glover told the jury, “I felt the force was unreasonable.” The defense decided to focus on the incident, not the review board or the sheriff’s opinions, said Flaherty. “I believed if the jury had the full picture, they would not believe the action was inappropriate.” The defense team called three of the police officers who had been at the scene. He did not call officer Shirley, he said. “I didn’t see a need to. His personal perceptions were announced. I thought what the other people offered would be more relevant.” These officers gave a blow-by-blow description of what happened once Ansley was cornered in the cul-de-sac. By the time she approached Shirley, said Flaherty, “she had already knocked down two police officers. She was not moving toward officer Shirley at a high rate of speed, but he had a limited way of retreat.” According to the testimony of these officers, Shirley’s actions were not unreasonable. The plaintiff asked the jury for $11 million, but on Feb. 21, 2001, the Jacksonville jury found no violations of Ansley’s civil rights. Before trial, Flaherty said, the plaintiff had turned down a settlement offer of $200,000. EMPLOYMENT BEATING THE EEOC ON HARASSMENT CHARGES CASE TYPE: Employment, racial harassment CASE: Lewis v. EGL Inc., No. Civ.-00-751-R (W.D. Okla.) PLAINTIFF’S ATTORNEYS: Raymond Durbin, solo practitioner, Oklahoma City; Holly Waldron, Oklahoma City office of the U.S. Equal Employment Opportunity Commission DEFENSE ATTORNEYS: Nancy L. Patterson of the Houston office, and Foster Reese, of the Dallas office, of San Francisco’s Littler Mendelson JURY VERDICT: for the defense Jimmie Lewis was hired as a freight handler at the Oklahoma City terminal of EGL Inc. in the fall of 1997 after working briefly as a temp for the Houston-based airfreight handling company. Lewis contended that his new supervisor, a younger white man, had harassed him, said defense attorney Nancy L. Patterson. “Lewis alleged the supervisor referred to him as ‘boy’ and made racially derogatory statements.” Lewis said he complained to his superiors about the alleged racial harassment and that he had written letters to the regional operations manager, she added. Lewis was fired in April 1998 and he subsequently filed a complaint with the U.S. Equal Employment Opportunity Commission, contending that he was subjected to racial discrimination and harassment and that he was terminated because he had complained. The Houston office of the EEOC investigated and issued a determination that Lewis had been subjected to harassment and retaliation. In April 2000, the EEOC sued EGL on Lewis’ behalf. The agency demanded that Lewis be reinstated with full back pay and be paid $225,000 in compensatory and punitive damages. Lewis also filed a private lawsuit against the company, but the EEOC attorney took the lead in the trial, said Patterson. The agency had filed a class action against the company, alleging discrimination, and it had decided to use the Oklahoma trial as a test case, she reported. “They felt a victory there would strengthen the class action and put pressure on the company to settle.” There would be no such victory. At trial, the EGL attorneys concentrated on proving that the EEOC determination was wrong and that there had been no harassment and no retaliation. To counter the plaintiff’s claims and the EEOC investigation, EGL produced as witnesses at the trial workers and supervisors from the Oklahoma City facility who testified that they had never seen or heard any of the incidents of racial harassment. “This was a small facility and it was implausible that it could have happened without other people observing,” Patterson said. EGL contended that Lewis had never complained to his superiors and that the letters he wrote did not contain any specific complaints of racial harassment. Lewis produced a complaint letter that he contended he had sent to a superior, “but we showed that he had never sent it until after he was terminated,” thus negating any claim of retaliation, Patterson said. EGL’s attorneys put on several witnesses who detailed the company’s policies for reporting, and responding to, charges of racial harassment to point out, she added, “that the company had a well-publicized policy but he didn’t take advantage of it.” Lewis was seeking unspecified compensatory and punitive damages, but on March 29, 2001, an Oklahoma City jury found no discrimination, no harassment and no retaliation. After the trial, the class action settled, for $8.5 million, far less than the EEOC had been demanding before the Lewis verdict, Patterson said. ENVIRONMENTAL DUPONT’S BIG CHART IS KEY TO COURT WIN CASE TYPE: Environmental, trespass, pollution CASE: Cordts v. E.I. du Pont de Nemours & Co., No. 1:99CV85 (E.D. Texas) PLAINTIFFS’ ATTORNEYS: Greg Thompson, John Keith Hyde, David P. Wilson, Darren L. Brown and Gregory F. Cox of Beaumont, Texas’ Provost Umphrey DEFENSE ATTORNEYS: Damond R. Mace and Philip M. Oliss of Cleveland’s Squire, Sanders & Dempsey; M.C. Carrington and Sandra F. Clarke of Beaumont’s Mehaffy & Weber; and Thomas L. Hanna, solo practitioner, of Nederland, Texas JURY VERDICT: for the defense Since the 1980s, the E.I. du Pont de Nemours & Co. chemical plant southeast of Beaumont, Texas, has been disposing of hazardous wastewater through the use of deep injection wells. Over the years, DuPont has disposed of some 3.6 billion gallons of wastewater into these wells, which are buried deep below the ground, said defense attorney Damond R. Mace. The land across the street from the DuPont plant was owned by the McFaddin family, one of the most prominent in Beaumont. The McFaddins also owned the mineral rights to the land where the plant was built. In 1999, the McFaddins, including several individuals, trusts and estates, sued DuPont, charging that the company’s wastewater had seeped below the McFaddin land, that these waste deposits diminished the value of the land and the mineral rights, and that the wastewater would ultimately reach the surface, creating a health hazard. The McFaddins charged intentional pollution and trespass and contended that DuPont should pay an underground storage fee. The plaintiffs were seeking $43 million in compensatory damages and $130 million in punitives. For DuPont, losing the case carried considerable risks: The damages sought were substantial and the company would have faced litigation over other deep injection wells. There was a risk to other corporations as well, Mace said. “There are 500 of these Class I injection wells across the U.S.” DuPont fought the plaintiffs’ claim on two fronts. The plaintiffs stressed family ties to the land in question; the defense pointed out that the land was not owned by family members any more, but by corporate entities, such as estates, trusts and banks. But the key to winning, Mace said, came with “communicating the reality of the science and the process of deep-well injection.” In the defense presentation at trial, Mace reported, the DuPont team produced several significant visual aids, he said, to show the jury the defense contentions that the plaintiffs “hadn’t presented the accurate geology” and that the injection wells did not pollute. The chief visual aid was an eight-foot-tall stratographic chart showing the various layers, including aquifers, shale and clay, beneath the DuPont plant. The chart was drawn to scale, going from the surface down 8,000 feet, with Beaumont’s tallest building on top as a reference point, he noted. The defendant’s primary geology expert, Don Warner, dean emeritus at the School of Mines and Minerals at the University of Missouri-Rolla, used this chart, along with site data, well logs and seismic data to render his opinion that the geology would not allow the wastewater to flow where the plaintiffs claimed it had, said Mace. The defense also countered that the wastewater pumped thousands of feet below the surface could not pollute because the brine water already at that level was unusable for human or other consumption. On March 13, 2001, the Beaumont jury found no trespass, no violation of the plaintiffs’ storage rights and no intentional pollution. There was no appeal. PROPERTY DATABASE MAKES POINT ON WASTE DISPOSAL CASE TYPE: Environmental contamination class action CASE: Baker v. Motorola Inc., No. CV92-02603 (Maricopa Co., Ariz., Super. Ct.) PLAINTIFFS’ ATTORNEYS: Anthony R. Lucia of Phoenix’s Treon, Strick, Lucia & Aguirre; and Robert L. Jennings Jr. of Pittsburgh’s Goldberg, Persky, Jennings & White DEFENSE ATTORNEYS: Garrett B. Johnson, Helen E. Witt, Thomas E. Dutton, W. Allen Woolley, Terrence J. Dee and Maria Pelligrino Rivera, of the Chicago office, and Susan M. O’Sullivan McGuire, of the Washington, D.C., office of Chicago’s Kirkland & Ellis JURY VERDICT: for the defense From 1957 to 1975, Motorola Inc. used the degreasing agent trichlorethylene (TCE) to clean electronics parts made in its south Scottsdale, Ariz., plant. “Motorola had begun phasing out TCEs in the 1970s because of air pollution concerns,” and in early 1975, after some reports on animal testing indicated that TCE could be a carcinogen, “Motorola completely phased it out,” said defense counsel Garrett B. Johnson. By that time, however, a significant amount of TCE had been dumped into the area around the plant, and TCE had contaminated the groundwater. The area was identified as a Superfund site in 1983 and Motorola began paying to remove the TCE, he said. But the owners of property near the plant contended that the contamination of the groundwater had severely diminished the value of their holdings. In 1992, they filed a class action against Motorola. In 1994, a class was certified covering the owners of 22,000 homes and 1,500 commercial buildings in south Scottsdale. The plaintiffs also sued several other companies who used and disposed TCE in the area. The other defendants, including Siemens and AlliedSignal Inc., all settled before trial for a total of more than $45 million. Motorola contended that the company was not negligent in its use or disposal of TCE, because it used disposal methods that “were consistent with the best practices at the time,” Johnson said. But the case turned on Motorola’s contention that the value of the plaintiffs’ property had not been harmed by the contamination. Motorola was concerned that such an argument was counterintuitive, said Johnson, and that prospective jurors would bring with them the prejudice that “if there was contamination, no matter how small, that people would pay less for the property.” Through early research and discussions with real estate agents, however, the defense team developed evidence that was not the case, he said. To establish this point at trial, the defense produced a database, covering every real estate transaction in Scottsdale and the surrounding area, going back to 1973, he said. The database also covered real estate sales in other Arizona cities, such as Phoenix and Tempe. The defense presented the database at trial through its real estate appraisal and property experts, who testified that the properties in south Scottsdale “did as well or better than properties in other areas,” Johnson said. The plaintiffs were seeking $260 million in actual damages, plus punitives, but on May 22, 2001, a Phoenix jury rejected the claim. There was no appeal. After the trial, Motorola settled for a total of $15 million; the settlement covers the Scottsdale plaintiffs, property owners in east Phoenix who were suing over another Motorola facility, plus personal injury and medical monitoring claims. HEALTH CARE HMO’S WIN FEATURED CROSS-EXAM OF WIDOW CASE TYPE: Violations of the Texas Health Care Liability Act CASE: Brewer v. Chang, No. A991336-C (Tom Green Co., Texas, Dist. Ct.) PLAINTIFFS’ ATTORNEY: Ryan Krebs of Austin, Texas’ Krebs & Webre DEFENSE ATTORNEY: John B. Scott, (now of Dallas’ Scott Yung), then of Dallas’ Susman Godfrey; and Dana Diane Banks of San Angelo, Texas’ Smith, Rose, Finley, Harp & Price JURY VERDICT: for the defense Health maintenance organizations are not among the nation’s most popular agencies, and when a patient died of lung disease after being refused coverage for a lung transplant, the prospects for the defense seemed bleak. This was particularly so because a new Texas law had expanded the right to sue HMOs. But, in the first case to go to trial under the 1997 law, the jury rejected the claim. The plaintiffs were the widow and daughter of Terry Brewer, who had died at age 49 of interstitial lung disease. Brewer had had a hardening of the lung fibers which prevented him from breathing and he had been referred to the National Jewish Hospital in Denver, where he would have been given a lung transplant. But when he turned to Rio Grande HMO Inc. for coverage, it denied his request. Brewer never received the transplant and died in June 1998. The plaintiffs charged the HMO with violations of the Texas Health Care Liability Act, contending that the company had made a health care treatment decision by denying referral to specialists, that the denials were made in order to save money and that the failure to refer Brewer to the Denver specialist caused the patient’s death. The plaintiffs also sued Peter Chang, Brewer’s treating physician. The defense countered that the HMO was not making a health care decision, said defense counsel John B. Scott. “The HMO just provides a payment mechanism, it doesn’t affect treatment.” When Rio Grande HMO denied an out-of-network referral, he said, “this was not a denial of coverage. There were other places to go within the network.” The plaintiffs contended that the HMO encouraged doctors to put money above patient care, denying referrals for expensive specialists or treatments. But the defense used the plaintiffs’ own physician witnesses to thwart that claim, said Scott. With each treating doctor and plaintiffs’ expert, he said, he used the same question, asking them if they ever considered insurance coverage when treating patients. Each of the doctors answered that they personally never considered the amount of money available for treatment, Scott said. “There’s no answer they’re going to give other than that. They’re not qualified to be doctors” if they suggest they will not provide treatment if coverage is unavailable. The testimony countered the claim that doctors value money over patient care, he said. Sympathy for the plaintiffs was a significant obstacle, Scott added. When Brewer’s widow testified, she brought out the loss to the family by the death. Instead of minimizing the widow’s time on the stand, Scott kept her there for more than 15 minutes during cross-examination. “In my mind, the plaintiff is the most sympathetic in the minds and the imaginations of the jurors. The longer you keep her on the stand, there’s a larger chance of rubbing people the wrong way.” The cross-examination was gentle, the questions were general, but as it went on, the widow indicated that there had been relationship problems with her husband, he said. “She didn’t look as sympathetic as in the beginning.” On July 2, 2001, a San Angelo, Texas, jury cleared all defendants. Post-trial motions were subsequently denied. There was no appeal. INTELLECTUAL PROPERTY BET-THE-COMPANY SUIT LEAVES CHIP-MAKER AFLOAT CASE TYPE: Patent infringement CASE: Intel Corp. v. Broadcom Corp., No. 00-796RRM (D. Del.) PLAINTIFF’S ATTORNEYS: John E. Gartman, Juanita R. Brooks and Christopher Marchese, of the San Diego office; Shelley K. Wessels, of the Menlo Park office; and William J. Marsden Jr., of the Wilmington, Del., office, of Fish & Richardson DEFENSE ATTORNEYS: Ron E. Shulman, James C. Yoon, David S. Steuer, Irwin R. Gross and Michael A. Ladra of Palo Alto, Calif.’s Wilson, Sonsini, Goodrich & Rosati JURY VERDICT: for the defense The term “bet-the-company lawsuit” is bandied about pretty freely in high-stakes litigation, but in this patent infringement action against Broadcom Corp., losing would have clearly put the company into get-out-the-lifeboats mode. The patents at issue covered three quarters of Broadcom’s product lines and some $700 million of the company’s annual revenues, said defense attorney Ron E. Shulman. The plaintiff, Intel Corp., was also seeking an injunction on future sales. If Broadcom lost, said Shulman, “their two most prominent lines would be gone and they would have gone under.” Intel sued Broadcom in 2000, charging infringement of five computer chip patents. The trial in 2001 concerned only two of the patents; another trial will consider the others. One patent at issue covered ethernet networking chips, the chips that allow computers to be connected to an ethernet network. Intel charged that Broadcom’s entire ethernet chip line infringed on this patent. The other patent covered the design of a video decompression chip. Intel contended that Broadcom’s MPEG decoding chip infringed on this patent. Intel had accused Broadcom of willful infringement, but Judge Roderick McKelvie dismissed this claim before trial. Broadcom countered that the patents were not valid, and if valid, not infringed. Before trial, Judge McKelvie held a Markman hearing on the claims construction. On Nov. 6, 2001, he issued a ruling that was clearly in Broadcom’s favor. Broadcom contended that there was a key limitation in the Intel ethernet patent that required every computer hooked up to have a common language. Judge McKelvie agreed, and Broadcom pushed this point throughout the beginning of the trial. “We didn’t have networks like that,” said Shulman. But three days from verdict, he added, McKelvie changed this ruling at Intel’s request. The judge ruled that not every computer had to have a common language, but that just three computers in the network did. “That was devastating for us,” Shulman said. “Our entire theory in our opening, our cross-examining their witnesses and examining our first three witnesses was based on the judge’s original claims construction.” “We had to adjust quickly,” Shulman said. He confronted the problem directly, apologizing to the jury and explaining that the defense was retracting its original position and would argue an alternative position. The essence of this position was much the same, that Broadcom did not infringe and that the Intel patents were invalid, but the defense emphasized different theories to support it. To prove its case, Shulman said, Broadcom turned to an extensive use of graphics and analogies to “make the technology accessible to the jury.” For instance, in order to explain what a “bit string” is, Shulman would compare it to an add-a-pearl necklace. In describing how, under the Intel video patent, information was sent to a chip, he likened it to an orchestra conductor, then explained that “we don’t do it that way.” Intel was seeking $82 million in lost profits and royalties on sales, plus an injunction preventing Broadcom from manufacturing ethernet chips. But on Dec. 14, 2001, a Wilmington, Del., jury found neither patent was infringed and that the ethernet patent was invalid. Post-trial motions are pending. INVASION OF PRIVACY GRIEF GETS ON TELEVISION AND INTO THE COURTHOUSE CASE TYPE: Invasion of privacy CASE: Marich v. MGM/UA Telecommunications Inc., No. BC176082 (Los Angeles Super. Ct.) PLAINTIFFS’ ATTORNEYS: Laurence W. Watts of Missouri City, Texas’ Watts & Associates; and David Alan Cooper, solo practitioner, Glendale, Calif. DEFENSE ATTORNEYS: Mark Helm of Los Angeles’ Munger, Tolles & Olson; and Rex Heinke of the Los Angeles office of Akin, Gump, Strauss, Hauer & Feld JURY VERDICT: for the defense On Oct. 20, 1996, a call came in to the Los Angeles Police Department informing police about a dead body in a Hollywood apartment. As police went to investigate, they were accompanied by a camera crew from the syndicated reality TV show LAPD: Life on the Beat. The camera operator filmed the discovery of the dead body of 27-year-old Michael Marich, an aspiring actor who had died of drug overdose, said defense attorney Mark Helm. A police officer called Houston to notify Marich’s parents by telephone of their son’s death. As the officer spoke to Robert and Marietta Marich, the Los Angeles end of the conversation was also filmed and the officer’s lapel microphone picked up the parents’ anguished response. The incident was broadcast nationally on Feb. 5, 1997, showing the body of Michael Marich and carrying the sounds of the parents’ reaction. Shortly thereafter, the parents filed an invasion of privacy lawsuit against the LAPD, the production company, QRZ Media Inc., and the program distributor, MGM/UA Telecommunications Inc. The parents contended that the program invaded their privacy both by showing their son’s body on television and by broadcasting their voices. In November 1997, a Los Angeles court dismissed the action, finding they had no right to sue over the showing of their son’s body on television; because the judge considered the tapes of their voices unintelligible, the lawsuit was knocked out on that count as well. The Mariches appealed, and in 1999, a California appellate court reinstated the parents’ claim of intrusion and eavesdropping in regard to the phone call, finding that even if the parents’ words were unintelligible, their anguished reaction was clear. The court upheld the dismissal of the claim of invasion of privacy for broadcasting pictures of the son’s body. The LAPD settled; QRZ Media filed for bankruptcy, which stayed the action. This left MGM/UA as the sole defendant at trial. The plaintiffs contended, said their lawyer Laurence W. Watts, that the defendant “stole a moment of their privacy to make money.” The Mariches were taped without their knowledge, and their voices were broadcast without their consent. The broadcast, said Watts, was typical of the excesses of reality television and evidence that “the right of privacy is being seriously eroded in this country.” The Mariches contended that the broadcast of their anguished voices caused both significant emotional distress. The defense was made difficult, said Helm, by the judge’s agreement to allow the plaintiffs to run the entire broadcast at the trial. “We tried to exclude the pictures of the body,” Helm said, because these were “very gruesome, disturbing.” The plaintiffs’ case was restricted to invasion of privacy through the phone call. “We were afraid that despite the restriction, that the jurors’ anger and sympathy would affect their judgment. But the court said no, they would get to see the whole broadcast.” The tape was, in fact, played several times during the trial. To diffuse any anger, the defense promoted two themes. First, MGM/UA was not responsible for broadcasting the phone call. “We were the distributor,” said Helm. “We didn’t see it before the broadcast or we would have stopped it.” Second, the plaintiffs were not disturbed by the phone call, but by their son’s death. On this second point, the defense used the plaintiffs’ psychiatrist to advance its theory. “We got him to admit that parents naturally feel guilty when their children die and to reduce this they will project guilt or anger elsewhere,” said Helm. The defense also acquired the medical records of the plaintiffs following the broadcast. At first, he said, “They were only complaining about the showing of the body and the death itself. It was only when [the claim] was narrowed down that they talked about the phone call.” The plaintiffs were seeking $10 million, but on Aug. 1, a Los Angeles jury rejected the claim. The case is on appeal. MEDICAL MALPRACTICE CANCER VICTIM’S ‘HINDSIGHT’ DOESN’T SWAY ARIZONA JURY CASE TYPE: Medical malpractice CASE: Mauk v. Williams, No. CV-99-18707 (Maricopa Co., Ariz., Super. Ct.) PLAINTIFFS’ ATTORNEY: Don Bivens of Phoenix’ Meyer, Hendricks & Bivens DEFENSE ATTORNEYS: Douglas W. Seitz and Ginamarie Rossano of Phoenix’ Snell & Wilmer JURY VERDICT: for the defense In 1993, Sherry Mauk, then 30, underwent a mastectomy of her right breast after the discovery of cancer. During the surgery, 13 lymph nodes were also removed and biopsied to determine if any cancer cells remained, said defense counsel Douglas W. Seitz. The tissue slides were sent to pathologist James Williams, who viewed the slides and pronounced the patient cancer-free. But, five years later, Mauk was diagnosed with liver cancer; she later developed leukemia. At the time of trial, she was expected to die within months. After the return of the cancer, Mauk and her family filed a medical malpractice action against Williams and his employer, the Mayo Clinic. The plaintiffs claimed that Williams had missed clear evidence of cancer in five of the lymph nodes and that this allowed the cancer to grow unchecked for several years. According to the plaintiffs’ experts, Mauk could have undergone chemotherapy when the disease was at a nascent stage and she would have been cancer-free by the time of trial. The sympathy for the plaintiff was significant, said Seitz. From opening statement onward, plaintiffs’ counsel Donald Bivens appealed to the emotions of the jury, stressing the loss to Mauk and her family. “Because these defendants did not do their job, John Mauk has lost his best friend, his wife of 20 years,” Bivens said in opening. Then referring to Mauk’s 9-year-old daughter, he said, “She will likely have very little memory of her mother being well because these doctors did not do their job.” The plaintiffs’ expert pathologist, James Connelly, testified that cancer cells were evident in the lymph nodes and that Williams’ failure to find the cancer was a deviation from the standard of care. The defense concentrated on attacking Connelly head-on, contending that he was predisposed to finding cancer in the slides. “Their expert knew the results at the time he looked at the slides,” said Seitz. “He was looking for cancer.” A defense pathology expert also looked at the slides, but found the cancer only after a second review, when he knew what he was looking for, Seitz said. “You could find it if you looked hard enough,” Seitz said, but it was discernible only if the pathologist already knew that cancer was there. The plaintiffs were using “20-20 hindsight,” Seitz said. “It was not below the standard of care to not find invasive cancer,” he added. The plaintiffs sought more than $15 million, but on March 16, 2001, a Phoenix jury found no liability. There was no appeal. Mauk later died. NEGLIGENCE WIDOW’S TESTIMONY HELPS NURSING HOME CASE TYPE: Nursing home negligence CASE: Moylan v. National Health Care Corp., No. 20005138 CA (Sarasota Co., Fla., Cir. Ct.) PLAINTIFF’S ATTORNEYS: Michael K. Houtz and Alejandro Fiol of Tampa, Fla.’s Morgan Colling & Gilbert DEFENSE ATTORNEYS: George F. Quintairos, Edward C. Prieto and Eric W. Boyer of Miami’s Quintairos McCumber Prieto & Wood JURY VERDICT: for the defense Robert Moylan, then 80, went to the Sarasota Health Care Center in May 1998, suffering from dementia, osteoporosis and other health problems associated with aging, said plaintiff’s attorney Alejandro Fiol. During his stay at the nursing home, Fiol charged, Moylan was malnourished, often dirty and developed several pressure sores, including one that had progressed to stage IV, the infection going to the bone. In February 1999, Moylan fell and fractured his hip. He died a month later. His estate sued the nursing home, charging negligence, wrongful death and violation of his residents’ rights under Florida law. The plaintiff contended that the nursing home had been understaffed during Moylan’s stay and that this understaffing contributed to his poor care, said Fiol. “Moylan was at risk for falling from day one, but they did not assess him and they did not address it in a care plan,” he said. The plaintiff also charged that Moylan was at risk for malnutrition because the nursing home assessed his height at admission at 5 feet, 3 inches, when he was over 6 feet tall. The nursing home denied any negligence in the treatment of Moylan, said defense attorney Edward Prieto. The nursing home also denied there was understaffing. The plaintiff brought on as witnesses caregivers who were on the staff while Moylan was a resident to testify that the home was understaffed. “They said they had too much to do,” said Prieto. But under cross-examination, these witnesses indicated that they did not remember Moylan. Each also testified that, despite any understaffing, “they provided good care; that the care and treatment was unaffected,” he said. But Moylan’s widow proved a critical witness for the defense, said Prieto. She was called during the plaintiff’s case to testify about the treatment of her husband. The plaintiff was contending that the nursing home had failed to prevent Moylan’s fall, which caused the broken hip, which in turn led to his death. During the cross-examination of his widow, the defense brought out that she had once been a resident at the Sarasota nursing home, after she had broken her hip while in her kitchen in her own house. She returned home after several weeks of convalescence. The defense used this information to support some major tenets of its case, in particular that a hip fracture is not a terminal condition and that negligence is not the only reason an elderly person might fall. The widow’s presence at the trial was proof of that, said Prieto. “We asked the jury, ‘Why is she here?’ It’s because she didn’t have his underlying medical conditions.” The defense also disputed that the fall caused the broken hip, contending that the patient’s osteoporosis caused a spontaneous fracture, which caused the fall. The plaintiff was seeking up to $15 million, but on Oct. 30, 2001, the Sarasota, Fla., jury found there had been a violation of Moylan’s resident’s rights but that this had not contributed to his death or any other injuries. Post-trial motions are pending. PRODUCTS LIABILITY CRUCIAL CROSS OF PLAINTIFF’S EXPERT ON ELECTRIC GATES CASE TYPE: Products liability CASE: Stephenson v. The Stanley Works, No. 7682436 (Alameda Co., Calif., Super. Ct.) PLAINTIFF’S ATTORNEY: Debra L. Bridges of San Francisco’s Bridges Law Firm DEFENSE ATTORNEYS: P. Beach Kuhl and Janet M. Alexander of San Francisco’s Sedgwick, Detert, Moran & Arnold; and Michael Welch of Concord, Calif.’s, Caudle Welch & Umipeg JURY VERDICT: for the defense On July 27, 1995, 7-year-old Martell Fowler was found pinned on a security gate at the entrance of the Ross Villas apartment complex in Oakland, Calif. The boy was killed when his head was caught between the outer edge of the electronic swinging gate and the gate post. After his death, his mother, Patrina Stephenson, filed a products liability action against the Stanley Works, maker of the electric motor that propelled the gate. She also sued the Ross Villas Homeowners Association and three defendants that had operated or serviced the gate. These latter defendants settled for about $500,000, leaving Stanley and Ross Villas as the defendants at trial. The plaintiff contended that Stanley should have incorporated a reversing device on its electronic gate motors. Such a device would have bounced the gate back open as it met resistance, rather than continuing to close and killing the child, according to the plaintiff’s complaint. “The plaintiff claimed that he couldn’t have gotten into that position if the gate had a reversing edge,” said defense attorney P. Beach Kuhl. The plaintiff also contended that Stanley had failed to warn consumers about the risk of the gates and had failed to order retrofitting of gates in operation. There are several dozen of these lawsuits nationally, claiming defects in the Stanley product. The plaintiff in this trial introduced details of about 38 other accidents involving electronic gates, including others involving deaths of children. Stanley denied any design defects or any responsibility for the accident. But the other accident reports and the sympathy for the mother of a dead child raised significant obstacles to a defense win, said Kuhl. To counter the accident reports, the defense pointed out the differences between the other gates and the one at the Ross Villas complex. “We picked them apart. There was never one like this,” said Kuhl. Many of the gates were sliding gates; swinging gates used different mechanisms, he said. Stanley also maintained that it was not responsible because the company only made the motor; the installers of the system made the decision not to include a reversing feature. But one key to winning, Kuhl said, was Stanley’s attack on the plaintiff’s mechanical engineering expert, Jordan Kinkead of Oakland, Calif. “I had run into him in an earlier gate case and I knew he had a gate at his estate,” said Kuhl. “So I had someone go down and take a picture of that gate.” The plaintiff had contended that these gates required retrofitting with reversing edges or electric eyes. But, said Kuhl, the gate at Kinkead’s home “had the exact Stanley product, but didn’t have a safety edge.” Kuhl confronted Kinkead with these details during cross-examination at the trial. The witness admitted, he said, that he had not put the safety features on his gate. On June 5, an Oakland jury returned a complete defense verdict for Stanley and the homeowners association. EXPERT’S CAREFUL WORK IS KEY TO WIN BY TIRE FIRM CASE TYPE: Products liability CASE: Benavides v. Uniroyal Goodrich Tire Co., No. 99-08-37836 (Jim Wells Co., Texas, Dist. Ct.) PLAINTIFFS’ ATTORNEYS: Mikal C. Watts and G. Joseph Barrientos of Corpus Christi, Texas’ Watts & Heard; Baldemar F. Gutierrez of the Alice, Texas, Law Offices of Baldemar F. Gutierrez; Douglas A. Allison of Corpus Christi’s Law Offices of Douglas A. Allison; Victor Cerda and Adam Poncio of San Antonio’s Cerda & Poncio DEFENSE ATTORNEYS: Thomas M. Bullion III of Austin, Texas’ Brown McCarroll; Darrell Barger of Corpus Christi’s Barger, Hermanson, McKibben & Villareal; John G. Adami, of Corpus Christi’s Adami, McNeil, Paisley & Appell; Michael Maldonado, of Corpus Christi’s The Maldonado Law Firm JURY VERDICT: for the defense In a year when tire companies were subject to several massive judgments or settlements, the defendant in this products liability action won in a county known for returning eight- and nine-figure plaintiffs’ verdicts. The lawsuit was spurred by an accident in April 1999 on U.S. Route 281 near Alice, Texas. Noe Benavides, 40, was driving a 1989 Dodge pickup when a tread detached from his left rear tire. Benavides “slammed on” the brakes, steered hard to the right and then lost control of the pickup, said defense counsel Tom Bullion. The truck left the road and rolled over. Benavides was ejected during the rollover and killed. His family filed a products liability action against Uniroyal Goodrich Tire Co., maker of the tire, and Michelin North America Inc., which had bought Uniroyal after the tire was made. The plaintiffs also sued Francisco Cadena (doing business as Cadena Tire Service) charging him with improper installation and/or inspection of the tire shortly before the accident occurred, Bullion noted. The claim against Uniroyal and Michelin was that the tire was defectively designed and defectively manufactured at Uniroyal’s Ardmore, Okla., plant in 1990. The plaintiffs brought former employees of Uniroyal to testify that production methods and materials used at the plant were shoddy, Bullion said. The plaintiffs also claimed that the tire’s design left it prone to tread separation. Given the publicity over the failure of Firestone Tires on Ford vehicles, defending a wrongful death action over the failure of a tire can be difficult. This was particularly troublesome for Michelin, said Bullion, because the trial was in Jim Wells County, Texas, where juries have returned four verdicts of more than $50 million recently; after this trial, another Jim Wells jury awarded $44.7 million against a highway construction company over an accident that left an infant quadriplegic. Michelin, however, was convinced there was nothing wrong with the tire and refused to settle, Bullion said. To counter any prejudice against the tire maker, the defense attorneys began in voir dire. “We told them, ‘We’re not Firestone. You have to look at this tire.’ “ The defendants contended that the tire was not defective, but had failed because it was “used and abused,” said Bullion. The tire was nine years old and had been underinflated. To prove this, the defendants brought in tire expert Harold Herzlich, formerly at Armstrong Rubber Co., to testify as to how the tire failed. Herzlich pointed to the signs of compression grooving on the tire, which indicated underinflation operation. Herzlich also explained the consequences of underinflation usage — that the temperature of the tire rises and increases the risk of tire separation, Bullion reported. In his pretrial investigation of the tire, Herzlich had found and photographed “two really small holes on the inner liner of the tire. The plaintiffs’ experts had missed them,” Bullion said. Herzlich testified that the holes caused inner-carcass pressurization, which could contribute to tire failure. The defense also contended that Benavides would not have lost control if he had slowed down rather than slamming on the brakes. The plaintiffs were seeking $80 million in compensatory damages, plus unspecified punitives. “I really thought we were going to win,” said plaintiffs’ attorney Mikal Watts. On Nov. 30, the jury returned a defense verdict. Before the verdict, the excess carrier for Michelin had entered into a high-low agreement with the plaintiffs. The case was settled for the low amount after the verdict. The amount was confidential. Michelin did not settle, said Bullion, just the excess carrier. There will be no appeal. EXPOSURE STANDARD IS KEY TO WEAPONS WORKERS’ SUIT CASE TYPE: Products liability, conspiracy CASE: Ballinger v. Brush Wellman Inc., No. 96-CV-2532 (Jefferson Co., Colo., Dist. Ct.) PLAINTIFFS’ ATTORNEYS: Allen M. Stewart and Steve Baughman Jensen of Dallas’ Baron & Budd DEFENSE ATTORNEYS: Sydney B. McDole, Roy T. Atwood and Jeffrey J. Joyce, of the Dallas office, and Robert S. Faxon, of the Cleveland office, of Jones, Day, Reavis & Pogue JURY VERDICT: for the defense Beginning in the 1960s, Ronald Roerish, Salvadore Valencia, James Tooley and Theorthia Scott worked at the Rocky Flats nuclear weapons facility in Golden, Colo., where they were exposed to beryllium, a metal used in nuclear weapons and missiles. In the early 1990s, each was diagnosed with chronic beryllium disease, a progressive, incurable lung condition caused by beryllium. The Rocky Flats arsenal was operated by Dow Chemical and then Rockwell International, which employed the four workers, who were precluded from suing Dow or Rockwell because of workers’ compensation rules. The former Rocky Flats workers and their wives instead sued Brush Wellman Inc., which supplied beryllium to Rocky Flats. The plaintiffs charged that Brush Wellman had failed to warn of the dangers of beryllium, contending that the company knew that the Occupational Safety and Health Administration standard of two micrograms of beryllium per cubic liter of air was too lax and that any level of exposure could cause disease in hypersensitive workers. The plaintiffs also contended that Brush Wellman had engaged in a conspiracy with the Atomic Energy Commission and the U.S. Department of Energy to conceal the dangers of beryllium. Several dozen workers sued Brush Wellman making the same claims; Ballinger was the first case to go to trial. Brush Wellman countered that there was no failure to warn and “no evidence of conspiracy,” said defense counsel Sydney B. McDole. Brush Wellman also contended that the plaintiffs’ diseases were in a “subclinical stage” and “if they stay away from beryllium, it will not get any worse,” McDole said. But the primary defense was that “these people didn’t get sick from anything we did,” she said. “Rocky Flats was a mess. Dow and Rockwell never lived up to the standards.” Brush Wellman sent warnings with the beryllium it sent to Rocky Flats, but “the warnings we sent them were torn off by Dow and Rockwell,” she charged. The plaintiffs contended that the exposure standard was too lax. Brush Wellman countered that, considering its level of knowledge at the time, “we believed the standards were good,” McDole said. But whatever the standards, she said, the concentration of beryllium in the air at Rocky Flats was consistently above allowable levels. “The air levels were always way too high,” McDole said. There was limited protection from exposure as well, she said. Workers commonly did not use respirators or protective clothing; ventilation hoods were held together with tape, she added. The plaintiffs also contended that Brush Wellman knew the air standards were too low because the company’s own workers were becoming sick at low levels of exposure. The defense tracked down the exposure level of every Brush Wellman employee with beryllium poisoning. “We went through the cases and showed there was no evidence that any of them had been exposed below the standard,” McDole said. The trial was bifurcated, with liability considered first. On June 26, a Golden, Colo., jury found no failure to warn and no conspiracy. After the trial, the plaintiffs’ attorneys settled this and other cases against Brush Wellman involving beryllium exposure. The amount was confidential, but McDole said, “We were very pleased with the settlement.” VW WINS AIR BAG CASE IN PLAINTIFF-FRIENDLY MISSISSIPPI CASE TYPE: Products liability CASE: Palmer v. Volkswagen of America Inc., No. 251-98-1112 (Hinds Co., Miss., Cir. Ct.) PLAINTIFFS’ ATTORNEYS: Michael J. Malouf Sr. and Michael J. Malouf Jr. of Jackson, Miss.’ Malouf & Malouf DEFENSE ATTORNEYS: David L. Ayers and Jimmy Wilkins of Jackson’s Watkins & Eager JURY VERDICT: for the defense When a child is killed by an air bag, the sympathy for the plaintiff is immense, but in three separate trials in 2001, juries rejected products liability claims brought against automakers in air bag deaths. Any one of these cases could have been included in the list of the best defense wins for 2001. The action against Volkswagen stands out, however, because it came in a state where plaintiffs had otherwise scored a number of big jury verdicts throughout the year. In this case, the plaintiffs were the parents of Jennifer Palmer, who died while riding in the right front seat of a 1995 Volkswagen Jetta driven by her 16-year-old sister Anne. On April 21, 1998, Anne Palmer was driving a two-lane highway in Madison, Miss., when she hit the rear of a Crown Victoria stopped at red light. According to the plaintiffs, Palmer was traveling about 8 mph and there was minor damage to Crown Victoria, indicating a low-speed crash. Upon impact, however, the VW’s air bags deployed, hitting Jennifer with such force, said defense attorney David L. Ayers, “that the base of her skull was lifted off her top cervical vertebrae.” She was taken to a hospital but died that day. After her death, her parents sued Volkswagen, charging that the air bag was defective. The plaintiffs contended in particular that the bag should not have deployed at all or at the least it should not have deployed so violently. “The plaintiffs said the bag was defective because it was unreasonably aggressive,” said Ayers. The plaintiffs also contended that Volkswagen had failed to warn of the dangers of air bags to children. There were several obvious problems for the defense. Beyond the sympathy it raised for the parents, the case was to be tried in Hinds County, Miss. “Hinds County is generally considered to be one of the most dangerous jurisdictions right now,” Ayers said. The defense would contend that Palmer was driving faster than 8 mph, but the driver of the other car could not confirm the defense’s assertion. The driver of the Crown Victoria did not see the Jetta before the impact, said Ayers. “But he did say he didn’t have to repair his car” after the accident. Jennifer Palmer was not wearing a seat belt at the time of the accident, but, Ayers added, although “in Mississippi we have a law requiring people to wear seat belts…if you don’t it can’t be used as evidence of contributory negligence.” Failure to use a seat belt, however, can be used to counter a crashworthiness claim. On the failure-to-warn claim, VW’s lawyers pointed to the owner’s manual, where “there was a great deal of information on putting children in the back seat,” said Ayers, along with advice to wear seat belts. But the attorneys concentrated their defense on demonstrating, said Ayers, “that this was an excellent air bag system that provides a high level of protection, that it was thoroughly designed and tested.” The alternative designs offered by the plaintiffs, he added, “were not feasible and would not have changed the outcome.” To defense sought to prove that Palmer was going faster than she estimated and the air bag deployed properly. To that end, the VW team hired accident- reconstruction expert Ray McHenry of Raleigh, N.C. The plaintiffs had claimed, Ayers said, that the minor damage to the Crown Victoria was evidence that that the bag deployed too aggressively in a low-speed, low-impact crash. McHenry studied databases of accidents between smaller cars, such as the Jetta, and large cars, such as the Crown Victoria. “You have to explain what happens when a very heavy, stopped car is hit by a smaller car,” said Ayers. McHenry compared the damage to such cars, looking at the bumpers and how much they moved, said Ayers, then reconstructed the accident. According to McHenry’s testimony, the Jetta had to have been going 20 mph or faster, and the force of the collision required deployment of the air bag. The plaintiffs were seeking more than $20 million, but on March 27, 2001, a Jackson, Miss., jury found no defects. The case has been appealed. ARGUING DRIVER ERROR, FORD WINS ROLLOVER CASE CASE TYPE: Products liability CASE: Maier v. Ford Motor Co., No. 58942 (Hunt Co., Texas, Dist. Ct.) PLAINTIFFS’ ATTORNEYS: Anthony L. Vitullo and Zackary J. Mayer of Dallas’ Fletcher & Springer; and Bruce Beasley, solo practitioner, of Fort Worth, Texas DEFENSE ATTORNEYS: Ronald Cabaniss of Maitland, Fla.’s Cabaniss, Smith, Toole & Wiggins; Smith Gilley, solo practitioner, of Greenville, Texas; Richard H. Grafton of Austin, Texas’ Brown McCarroll; Patrick E. Broom, of the Tucson, Ariz., office of Phoenix’s Snell & Wilmer JURY VERDICT: for the defense For the past two years, Ford Motor Co. has been embroiled in a public relations nightmare revolving around tread separations in Firestone tires used on Ford Explorers and subsequent rollover accidents connected to these tire separations. In this trial in Greenville, Texas, however, Ford won a complete defense verdict in a products action brought after the death of a man whose Ford Explorer rolled over and whose Firestone tires debeaded. The lawsuit was precipitated by an accident on Route 30 west of Greenville in April 1997. Nathan Maier was driving a 1995 Ford Explorer 4-by-4 Eddie Bauer when the driver of a car in the right-hand lane began moving into his lane. “When the vehicles were about one foot from each other, Maier swerved left onto the median, then overcorrected,” said defense counsel Ronald Cabaniss. “He then came flying back to the road.” This sent the Explorer in a slide sideways. “The right rear tire debeaded as the tire rim dug into the pavement,” he continued. The Explorer flipped over and rolled three or four times. Maier was killed and one of his passengers, Allen Beene, was severely injured, sustaining a collapsed lung and lacerated liver. Maier’s estate and family, along with Beene, sued Ford, charging the vehicle was defectively designed. Two other passengers had also been in the Maier vehicle; one died and one sustained severe injuries. These passengers also sued Ford; their claims were settled on confidential terms before trial. The plaintiffs contended that the Ford Explorer was unreasonably dangerous and had a propensity to roll over during common driving maneuvers. According to the plaintiffs, the vehicle’s center of gravity is too high, its track width is too narrow and its tires are too large. Although the tires on the Ford Explorer were Firestones, the plaintiffs did not claim that the tires were a factor in the accident. Despite the absence of a claim against Firestone, however, the negative publicity over the Ford Explorer/Firestone rollover problems became an overwhelming presence in the courtroom. “These tires were not covered by the recall,” said Cabaniss. “They had no basis to sue Firestone, but you heard ‘Firestone tire’ every other word in the trial.” Ford’s attorneys countered this tactic immediately in voir dire, said Cabaniss, “by asking the jurors, ‘How many of you think this case involves a Firestone tire that caused a rollover?’ ” Several of the prospective jurors raised their hands, he recalled. At that point, he said, “ we let them know that this accident didn’t involve tire separation.” The plaintiffs contended that Ford had failed to properly design and test the Explorer before sending it out on the road. The plaintiffs brought out excerpts from Ford documents to bolster this claim. The defense attorneys brought out the entire documents, to put the excerpts into context and pierce the plaintiffs’ credibility, Cabaniss said. The plaintiffs, he added, tried to focus the trial on the alleged improper behavior of the automaker. Throughout the trial, the defense team turned the focus back to the accident itself. Maier was traveling more than 70 mph when he swerved and then overcorrected, he said. The accident, he said, was caused by driver error. The plaintiffs were looking for nearly $60 million in damages, including punitives. But on April 4, 2001, a Greenville jury found no defects and no negligence. REZULIN GETS ITS ONLY WIN IN CASE OVER LIVER DEATH CASE TYPE: Products liability CASE: Mercado v. Warner-Lambert Co., No. 2000-42692 (Harris Co., Texas, Dist. Ct.) PLAINTIFFS’ ATTORNEY: George M. Fleming of Houston’s Fleming & Associates DEFENSE ATTORNEYS: Jack E. Urquhart and Laura E. DeSantos of Houston’s Beirne, Maynard & Parsons JURY VERDICT: for the defense In 1997, Warner-Lambert Co. brought on the market what was intended to be a miracle medication for Type II diabetics. By March 2000, however, the drug, Rezulin, was taken off the market under pressure from the Food and Drug Administration after a number of patients died from liver failure. This withdrawal from the market came two months after the death of Norma Culbertson, a 58-year-old diabetic, who had been taking Rezulin for two years before her death. Culbertson’s daughters sued Warner-Lambert and its new owner Pfizer Inc., charging that Warner-Lambert knew Rezulin could cause liver disease in its users, yet put the drug on the market and continued to sell it even after reports of serious incidents began piling up. According to the evidence presented by the plaintiffs at trial, in 1998, long before Culbertson’s death, internal Warner-Lambert memos indicated more than 500 reports of serious liver damage and at least 30 deaths. In the past two months, four lawsuits against Warner-Lambert over Rezulin have gone to trial in the United States; two ended in hefty verdicts for the plaintiffs and one ended in a settlement just before verdict. The case marks the only victory for the defense, and although it didn’t set a trend, it clearly indicated that these suits can be defended. The plaintiffs contended that Rezulin caused Culbertson to suffer liver failure, which in turn caused her death. The defense contested this claim, said defense attorney Jack Urquhart. “There was considerable evidence in the medical records and in the death certificate that her diabetes caused renal failure, and that caused her death.” The plaintiffs countered by also pointing to the death certificate, which listed liver disease as a cause of death, and showing that Culbertson was significantly jaundiced when she died. The plaintiffs frequently cited the FDA removal of the drug from the market, along with various reports, including internal memos, linking Rezulin to liver disease. The defense continued to hammer home its other major point: that despite the links to liver disease and the removal of the drug from the market, Rezulin was not defective. “The most difficult hurdle was that Rezulin had been taken off the market,” said Urquhart. “There is a logical presumption that if a drug is taken off the market that there must be something wrong with it.” The defense turned this around, beginning in voir dire and continuing until closing arguments, contending that removal of a drug from public consumption is not evidence of a defect or negligence. Rezulin came on the market because it was needed to treat severe, unresponsive cases of diabetes, the defense argued to the jury. And although it was “associated with some liver problems, including in rare instances, death, the benefit of the drug outweighed the risks,” Urquhart said. The death rate with Rezulin, he argued, was lower than the death rate for insulin. The defense maintained, he added, that Rezulin was cashiered by the FDA, not because of any inherent fault in the medication, but because other drugs had superseded it. “The motivating factor in the withdrawal is that two new drugs had the same effectiveness and had a better safety profile,” he said. “When these drugs were introduced to the market, that led to the obsolescence of Rezulin.” The plaintiffs were seeking $25 million, but on Dec. 17, 2001, a Houston jury rejected their claim. MEDICAL DATA TURN BACK NONSMOKER’S TOBACCO CASE CASE TYPE: Products liability CASE: Fontana v. R.J. Reynolds Tobacco Co., No. 00-01731CA (09) (Miami-Dade Co., Fla., Cir. Ct.) PLAINTIFFS’ ATTORNEYS: Steven Kent Hunter of Miami’s Angones, Hunter, McClure, Lynch, Williams & Garcia; and Philip M. Gerson of Miami’s Gerson & Davis DEFENSE ATTORNEYS: Jonathan M. Engram of Winston-Salem, N.C.’s Womble Carlyle Sandridge & Rice; Douglas J. Chumbley of the Miami office of Carlton Fields; Kenneth J. Reilly of the Miami office of Kansas City, Mo.’s Shook, Hardy & Bacon; and Anthony N. Upshaw of Miami’s Adorno & Zeder JURY VERDICT: for the defense The tobacco industry has been hit with some of the largest verdicts nationally in the past two years. The top verdict of 2001 — $3 billion — came in California in a products liability case brought by a smoker who had contracted lung cancer. Indeed, in a trial in Miami court in 2000, a jury returned the largest jury award in the history of the world — $145 billion — against the industry in a class action brought by Florida smokers. The industry has had some success in trials involving individual smokers, particularly by using an assumption-of-risk defense. There would be no such possibility, however, in this trial. The plaintiff, Marie Fontana, was not a smoker. She was a flight attendant who contended that she had chronic obstructive pulmonary disease (COPD) caused by exposure to secondhand smoke during her years in smoke-filled airplanes. The industry had previously entered into a $300 million settlement of a class action brought by flight attendants; this was the first of the individual plaintiffs to go to trial. Fontana had been a flight attendant for 25 years, until she quit in 1996 because of her deteriorating lung function. She had never smoked and her only exposure to tobacco smoke was on the job. Fontana would appear in court only three times, said defense attorney Jonathan M. Engram, but her appearance as a witness was dramatic. “She came in a wheelchair, hooked up to a portable oxygen tank. She began coughing on the stand and had to stop talking,” Engram said. Fontana testified, he added, that she had coughed up blood in the past. The defense was made more difficult by a pretrial ruling issued by the court regarding the 1997 class action settlement, said Engram. “The court ruled that the settlement was an admission of liability by the defendants, so the plaintiff did not have to prove any defect or failure to warn, only that exposure caused her disease,” Engram said. The plaintiff had been diagnosed with sarcoidosis in 1987, a blood-clogging condition that often sets in the lungs. She contended that exposure to secondhand smoke caused, aggravated and expanded this condition, leaving her with COPD, including emphysema. The plaintiff produced an expert who “brought in a pig’s lung to show how lungs inflate and deflate,” said Engram, then used the lung to show how restrictive lung diseases impair breathing. The defense focused on attacking causation. The defense asserted that Fontana had been diagnosed with sarcoidosis, but not emphysema or chronic obstructive pulmonary disease. “We tried to convey to the jury that the medical or scientific literature established a lack of a link between smoking and sarcoidosis,” Engram said. “We thought we might be too technical,” he noted. So the defense produced a diagram to prove its point that exposure to smoke neither caused nor aggravated her lung disease. The chart covered the last four years Fontana was a flight attendant. “These were the years she was sickest,” Engram said. “The chart showed that when she went to her lung doctor bore no relationship to the dates she flew,” Engram noted. If the environmental smoke had exacerbated her lung problems, he said, she would most likely see the lung specialist after flying. This did not occur, Engram said. He knew the defense had scored well with this point when during deliberations, “the jury asked for that chart.” The plaintiff was seeking nearly $4 million in economic damages alone, but on April 5, 2001, a Miami jury returned a complete defense verdict. Post-trial motions were denied in September. The verdict will be appealed. RACIAL HARASSMENT PLAINTIFFS’ TESTIMONY USED TO UNDERMINE BIAS CASE CASE TYPE: Racial harassment, hostile work environment CASE: Caban v. Sedgwick Co. Sheriff’s Department, No. 98-1196-CM (D. Kan.) PLAINTIFFS’ ATTORNEYS: Michael E. Waldeck, Nancy M. Wilson and John M. Waldeck of Kansas City, Mo.’s Niewald, Waldeck & Brown; Basil L. North Jr., solo practitioner, of Kansas City; and Christi L. Bright of Kansas City’s Bright & Associates DEFENSE ATTORNEYS: Alan L. Rupe, S. Douglas MacKay and Michael C. Gillespie, of the Wichita, Kan., office of St. Louis’ Husch & Eppenberger JURY VERDICT: for the defense In 1993, the Wichita Ministerial League, a group of predominantly African-American churches, began complaining about the treatment of blacks by the Sedgwick County, Kan., sheriff’s department. The league maintained that black inmates were beaten and otherwise abused by white personnel at the county jail and that the department failed to recruit, promote and train black deputies. Years of marches, press conferences and other protests followed these initial complaints and subsequently, in 1998, 13 African-American deputies sued the sheriff’s department, charging that they had been discriminated against on the basis of their race and subjected to a hostile work environment. The deputies claimed that they were continually confronted by racist comments, jokes and cartoons, said defense attorney Alan L. Rupe. They contended that the black deputies were denied the right to work overtime and were forced to work the worst shifts and the worst jobs. They also charged that the black deputies were forced to watch the abuse of black inmates by white deputies. At the heart of these claims was a picture of the Sedgwick jail as a haven for white supremacists run amok. The plaintiffs claimed, said Rupe, that roving bands of white guards wearing black gloves were beating black inmates out of view of the jail’s security cameras. These white deputies, according to the plaintiffs, were also forcing black inmates to walk naked down hallways in the jail in full view of the other inmates and guards. The plaintiffs also claimed that white deputies had murdered a black inmate who had killed a white Sedgwick officer. These claims, said Rupe, were all allowed in the trial, over the strenuous objections of the defense. What made disproving the allegations difficult, he added, was that “we couldn’t find one African-American witness who would testify for us. The plaintiffs had several white witnesses who would testify against us.” The primary defense strategy, said Rupe, was to “give the plaintiffs as much line as they wanted to take. Let them extend themselves on their claims, because the higher they’d go the harder they’d fall.” Each of the individual plaintiffs was scheduled to testify. “I knew I had strong stuff to blow up most of them.” The plaintiffs had cited 30 different incidents in which they had been subjected to racial harassment. “We created 30 different charts,” said Rupe, one poster board for each incident. On these poster boards, the defense team would attach any information relevant to the charge. “Our theme was perception versus reality. Giving the whole picture was critical.” Then he would use this information during cross-examination of the plaintiffs. On the charge that white deputies were wearing black gloves as a sign of intimidation of blacks, for example, he was able to get one black deputy to admit that he wore black gloves as well. On the charge that white deputies were beating black inmates, several plaintiffs admitted that they had never personally seen any beatings. Another claim particularly stood out, concerning a poster that was placed in a tunnel leading from the jail to the courthouse. The poster, titled “Five Rules for Raising Monkeys,” was clearly inflammatory, said Rupe. Included among the rules were: “Monkeys should be fed or shot” and “The monkey population should be kept below the maximum number the manager has time to feed.” According to Rupe, “You look at those rules and you think racial discrimination.” But, he said, the rules sounded familiar. An assistant in his office began searching for the source. It had appeared in the Harvard Business Review in late 1999 and described how to manage employees. “We found it about a week before the trial, but I didn’t mention it” until after several plaintiffs had already testified. After he confronted one plaintiff with the original source, he said, it was never again brought up by the plaintiffs. On May 21, 2001, the Kansas City, Kan., jury returned a complete defense verdict. There was no appeal. TOXIC TORTS JURY IS CONVINCED THAT THE UNFORESEEN HAPPENS CASE TYPE: Toxic torts CASE: Austin v. Montana Rail Link, No. CV 99-39-M-LBE (D. Mont.) PLAINTIFF’S ATTORNEYS: Ted B. Lyon of Mesquite, Texas’ Ted B. Lyon & Associates; and H. Grady Chandler of Garland, Texas’ Brown, Brown, Chandler & Townsend DEFENSE ATTORNEYS: David B. Potter of Minneapolis’ Oppenheimer Wolff & Donnelly; and Randy J. Cox of Missoula, Mont.’s Boone Karlberg JURY VERDICT: for the defense At 4 a.m. on April 11, 1996, a Montana Rail Link train derailed in Alberton, Mont., and set off the release of 130,000 pounds of chlorine. As the chlorine hit the air it produced a yellow fog of chlorine gas that spread over the town and the interstate highway, forcing the three-week evacuation of more than 3,000 people and the closing of Interstate Route 90 for 17 days. Samuel Austin, then 21, was a passenger in his cousin’s car on I-90, when they drove into the chlorine gas cloud. The gas stopped the car by cutting off the oxygen needed for internal combustion, said defense attorney David B. Potter. The gas then seeped inside the car, and as it came in contact with the mucous membranes of Austin’s body, transformed into hydrochloric acid and burned the membranes. Austin contended that this triggered a return of his asthma, leaving him with permanent respiratory injuries. Austin sued Montana Rail Link, charging the railroad with negligence in the maintenance of the track and alleging that this negligence caused the accident and his subsequent injury. After the derailment, said Potter, more than 2,000 claims were filed against the railroad. Most were settled. Austin’s case was one of about 80 remaining contending personal injuries caused by the derailment. “This was a test case,” to determine liability for the entire group, said Potter. Short damages trials were scheduled to follow for the rest of the plaintiffs. The specific claim against the railroad was that it had failed to maintain the track. A rail had broken as the train passed over it, causing the derailment. The plaintiff contended that the rail that broke had been excessively worn, that Montana Rail Link had used a defective form of rail at the site and that it had not adequately inspected the rail. The plaintiff also charged that the railroad knew this rail was excessively worn but had failed to replace the worn track. The defense contended that the rail break was dramatic, an unforeseen event, and not the result of any wear. “Wear had nothing to do with this. There was no way any human being could have seen this happening, even if it was inspected more,” Potter said. To prove that this was a sudden break, the defense team turned to forensic science, developing computer models of how rails break. “If it’s a fast break, it produces chevrons,” or lines within the metal, Potter said. The defense experts brought in pieces of rail, showed how the metal looks different, depending on how the break occurred. This bolstered the defense contention that the rail break was not caused by wear, but by unusual stress above an unseen internal defect in the rail. One major problem facing the defense, Potter said, was an internal memo about the rail. The year before the accident, the railroad had investigated this particular stretch of rail; it was scheduled to be replaced in May 1996 — one month after the accident. “The memo said the rail was worn out and the memo was played over and over again in the trial.” The defense countered by explaining why and when rail track is replaced. “Rail wear limits are like putting gas in your tank when it’s one-quarter full,” he said. The railroad standard does not mean that the track is ready to fall apart, but that it should be put on schedule for replacement, he told the jury. “There’s a margin of safety of two to three years,” he noted. Austin was seeking $2 million in compensatories and $20 million in punitives. The liability result in this trial could have triggered massive demands in the claims of the remaining 78 plaintiffs. But on April 13, 2001, a Montana jury found that the railroad was not negligent. There was no appeal. This case, along with the rest, was settled following trial. The amount of the settlement was confidential; the plaintiffs’ counsel described the settlement in the case as “substantial.”

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