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On May 9, 1999, Phoebe Jimenez was sitting in the third row behind the driver of a 15-passenger Ford Econoline van when the right rear tire blew. The driver was unable to control the van and it started to yaw, then rolled over 2 1/2 times. Jimenez, then 10, was ejected and the van rolled over her, leaving her a quadriplegic and “unable to do much more than move her eyes or smile,” says plaintiffs’ attorney Ervin Gonzalez of Miami’s Colson Hicks Eidson. Jimenez sued Ford Motor Co., maker of the van, charging the vehicle was prone to roll over. “The van’s instability made it hard to maintain control when the tire blew out,” says Gonzalez. In September 2001, a Miami jury awarded Jimenez and her parents $30.7 million. The judgment was reduced to $18 million on the jury’s finding that Jimenez was 50 percent responsible for her injuries for not wearing a seat belt. The Jimenez lawsuit was one of the first to go to trial nationally with the claim that 15-passenger vans are inherently unstable. It is unlikely to be the last. In October, for instance, a claim against DaimlerChrysler Corp. and Michelin in the crash of a 15-passenger van in Texas was settled in the opening days of trial. Numerous other such claims are currently pending. For each of the past six years, The National Law Journal has conducted investigations of new and emerging causes of action, looking for trends in lawsuits before they had become commonplace — but after they had begun gaining some measure of success. Litigation involving these 15-passenger vans is among the most prominent of the new waves. With each of these trends, the defendants reject the theories and the claims, but, from the plaintiffs’ viewpoint, these are some of the more promising causes that are emerging this year. PRODUCTS LIABILITY Claims that 15-passenger vans are inherently unstable and prone to rollovers The essence of the claim against the makers of these vans is that “the center of gravity is too high and if the van is loaded up it gets worse,” says Gonzalez. If loaded with passengers and luggage, he charges, “it’s easier to tip it over. If a tire in the rear blows, it’s impossible to maneuver.” There were 12 people in the Jimenez van when it flipped over. “These vehicles fit into a glitch in the regulations,” adds plaintiffs’ attorney Richard L. Denney of Norman, Okla.’s Denney & Barrett. “They’re not passenger cars or buses, so they’re not adequately regulated.” The plaintiffs also claim that the van-makers have failed to warn drivers adequately of the different handling characteristics. “These vans should not be driven when fully loaded,” except by professional drivers, Denney says. Rollovers are particularly common when either of the rear tires blows out, adds plaintiffs’ attorney Ben Hogan of Birmingham, Ala. “At the least, these vans need dual rear wheels.” The charge by plaintiffs in these cases is aided greatly by a 2001 report by the National Highway Traffic Safety Administration (NHTSA), which described these vans, when loaded with passengers and luggage, as significantly more likely to roll over. The number of rollovers and subsequent lawsuits have been on the rise, adds Denney, because of an increase in van sales in the 1990s. In the Florida case, the plaintiff was not able to bring in the NHTSA report. Florida law precluded this, Gonzalez says, but the plaintiff’s expert made much the same claims. The verdict has been appealed. Jimenez v. Ford Motor Co., No. 99-143-53-CA09 (Miami-Dade Co., Fla., Cir. Ct.). The defendants deny that there are any defects in the vehicles. “If any vehicle is loaded, it’s going to perform differently,” says Elaine Lutz, spokesperson for DaimlerChrysler. “If it’s operated properly, there is no unusual risk.” The NHTSA report, she adds, confirmed the industry’s previous warnings that drivers were “required to understand the unique handling characteristics of the vehicle when loaded or unloaded.” MEDICAL MALPRACTICE The rise in lawsuits against doctors and hospitals over aftercare following bariatric or obesity surgery The incidence of bariatric or obesity surgery in the United States has tripled in the past five years to more than 60,000 in 2001, notes plaintiffs’ attorney Herman Praszkier of Anderson & Associates in St. Louis. This rise has been caused, he says, by the spike in the rate of obesity in the U.S., the increased sophistication of the techniques used in bariatric surgery and “the greater willingness by insurance companies to cover the procedures.” Insurance companies, he adds, “have found that it’s cheaper to pay for the surgery” than to pay for the health costs associated with obesity and are paying premium rates for the procedures. As a result, doctors and hospitals are “jumping in,” Praszkier reports, creating specialties in such procedures and conducting multiple surgeries per day. But as the number of surgeries has increased, so have some serious problems. “The surgery is technically complex, but people aren’t dying from the procedure,” Praszkier says. “The real trouble comes in post-operative care.” Too many surgeons and too many hospitals are not providing proper aftercare, he charges. Perforation of the stomach, for instance, is a common complication of gastric bypass or stomach lap band surgery. This leads to a leak of stomach contents, which, if not detected and treated in time, will kill the patient. If doctors are inexperienced with this surgery, “when something goes wrong, the doctor will not pick up the signs.” Some hospitals, he adds, are ill-equipped to provide aftercare. “In some cases, you need a CT scan to tell, but some hospitals don’t have a CT scan big enough, so they don’t do them.” Praszkier has settled several lawsuits involving patients who have died as a result of undetected leaks and untreated infections following the surgery; each of these has settled for policy limits. He is currently representing the estate of a 49-year-old black woman who underwent gastric bypass surgery and died because a perforation in the stomach was undetected. That lawsuit is in mediation. These cases generally settle, Praszkier says. “If you pick the cases correctly, the doctors do not want to go to trial.” Praszkier selects only actions brought after the death of the patient, or where the patient has been left with a lifelong disability. The disability or death, he adds, has to be connected completely to failure in aftercare. “A hole is not in and of itself negligence.” Only failure to recognize and treat the perforation is negligence, he says. Other side effects of the surgery, including drastic weight loss, are common, but not actionable. “That’s your body reacting violently to the surgery.” PERSONAL INJURY Claims that post-traumatic stress has created an organic brain injury In lawsuits involving plane crashes, plaintiffs are prevented by the Warsaw Convention from recovering for purely emotional injuries. In many states, as well, recovery for emotional distress is severely limited. This can diminish the prospects for collecting damages for post-traumatic stress disorder. But courts have now begun accepting claims of organic brain disease as an end-result of post-traumatic stress. In August 2001, for example, Delta Air Lines was hit with a $1.25 million verdict in a lawsuit brought by a woman who contended that the fright she experienced during a harrowing Delta flight caused a harmful chemical reaction in her brain. Following the flight, plaintiff Kathy Weaver began experiencing “psychotic flashbacks,” in which she would continually relive the incident, reports plaintiffs’ attorney Randy Bishop of Billings, Mont. She contended that the terror had a physical impact on her brain through the release of “excitotoxins” — chemicals that kill brain cells. In the pretrial order rejecting Delta’s motion for summary judgment, U.S. District Judge Jack Shanstrom in Montana found that the plaintiff had provided sufficient proof, in the form of articles in scientific journals and expert reports, that “extreme stress causes actual physical brain damage,” in particular, “physical destruction or atrophy of portions of the brain.” The verdict was reduced to $75,000 and settled. Weaver v. Delta Air Lines Inc., No. CV 98 151BLGRFC (D. Mont.). In January 2002, the Washington Court of Appeals ruled similarly in a separate case. Plaintiff Lein Trinh had been involved in an automobile accident in Seattle in which she was not hit, though one friend was killed and another injured. She contended that the emotional distress she experienced watching her friend die created physical manifestations, says plaintiff’s attorney Betsylew Miale-Gix of Seattle’s Adler Giersch. Trinh had sought benefits from Allstate Insurance, but Allstate rejected the claim, contending that the uninsured motorist policy involved provided no coverage for emotional distress that was not a result of physical injury. The trial court agreed with Allstate and dismissed Trinh’s claim. The Washington appellate court, however, reversed, finding that “‘bodily injury’ includes emotional injuries that are accompanied by physical manifestations” and remanded the lawsuit to trial. In September, the Washington Supreme Court denied Allstate’s petition for cert. No trial date has been set. Trinh v. Allstate Insurance, No. 002105827 (King Co., Wash., Super. Ct.). Proving a brain injury brought on by psychological stress can be difficult, Bishop notes. “Brain scans are not likely to demonstrate physiological change because any change occurs at the cellular level.” Instead, he says, the plaintiff’s attorney has to provide medical literature on the effect of such stress on the brain and accompany this with testimony and affidavits from physicians and experts. In Trinh, adds Miale-Gix, the plaintiff also used the testimony of lay witnesses to establish the concrete physical manifestations she exhibited following the accident, including hair loss, weight loss and muscle spasms. FRAUD, NEGLIGENCE, CIVIL RICO Lawsuits against casinos for creating and encouraging compulsive gamblers In the past, when a gambler lost money at a casino, it was always considered that he or she accepted the risk of losing when making the bet. Lawsuits seeking to recover loss or additional damages were rarely brought against the gambling houses and, when brought, almost always were quickly snuffed out. This is changing. A combination of the proliferation of legalized gambling operations and a significant increase in the number of compulsive gamblers has plaintiffs’ lawyers increasingly considering litigation against casinos. These lawyers are pointing to a case in Indiana as a precursor of lawsuits to come. The plaintiff, David Williams, gambled at the Casino Aztar riverboat in Evansville, Ind., over a period of nearly four years until he was booted off the boat for being a compulsive gambler, reports plaintiff’s attorney Douglas Briody of Evansville’s Noffsinger Barnett. Williams has sued the casino, charging fraud, negligence and violation of civil RICO laws. The essence of the claim is the charge that the casino was aware of Williams’ out-of-control gambling habit, but that it encouraged and exploited this compulsion. Williams was not barred from the riverboat, says Briody, until long after the casino knew he was a compulsive gambler and after he had lost $175,000. Williams had a “fun card,” issued by the casino that indicated his gambling habits. As a result, the casino knew how much he had lost and how compulsive his gambling had become. A friend had even informed the casino that Williams’ habit had taken a desperate turn, Briody says. “But he was still targeted with promotional mailings designed to lure him back to the boat.” The trial is scheduled for April. There is no way of knowing its ultimate result, but, notes Briody, the case did pass its first hurdle, when the trial court denied the casino’s motion to dismiss. Williams v. Aztar Indiana Gaming Corp., No. EV 01-75-C-T/H (S.D. Ind.). Still pending, however, is the casino’s motion for summary judgment, which “we expect to be successful,” says defense counsel Patrick A. Shoulders of Evansville’s Ziemer, Stayman, Weitzel & Shoulders. “The plaintiff has misrepresented the facts and has no basis for his claims.” Casinos also could be ripe for litigation akin to the states’ lawsuits against the tobacco industry, says Scott Harshbarger, former attorney general of Massachusetts and a mover in the states’ tobacco lawsuits. “It’s now in the speculative stage, but I see some parallels,” says Harshbarger. “The industry acknowledges that 1.5 percent of gamblers are compulsive or problem gamblers. This is a public health issue.” While such lawsuits have not yet been filed in the United States, a class action is under way in Quebec against the province-sponsored video lottery seeking more than $700 million for up to 125,000 compulsive gamblers. NEGLIGENCE Tracking cell phone use by drivers in auto accidents to determine fault, liability for employers Alicia Bustos was a passenger in the back seat of a Buick when her car was hit by a Ford Explorer, leaving her severely injured and ventilator-dependent. Following the accident she sued the driver of the Explorer and the driver’s employer, contending he was responsible. The plaintiff’s attorneys determined from the physical evidence that the Explorer driver had to have been distracted before hitting the Buick, says plaintiffs’ attorney Michael Andrew Haggard of Coral Gables, Fla.’s Haggard, Haggard, Parks, Haggard & Bologna. “He had slowed at the red, then as it turned green, he accelerated right through her car.” The defendant, however, claimed that the driver of the Buick made a left turn in front of him, causing the accident. When there is a dispute over the cause of the accident, determining why or how the driver might have been distracted may be critical, Haggard says. Given the ubiquitous nature of cell phones in cars, in any motor vehicle accident, attorneys — for defendants as well as plaintiffs — have to inquire as to each driver’s cell phone use at the time of the accident, he says. “When both sides are maintaining innocence, it’s a difference-maker” in any subsequent trial. In the Bustos case, the driver, Lazaro Leiva, was asked during depositions if he had a cell phone and if he used it for business. He admitted having one but denied using it just before the accident. The plaintiffs subpoenaed the phone records. The records revealed, Haggard says, that just before Leiva called 911 following the accident he was on a phone call. In December, a Miami jury awarded Bustos and her husband $20.98 million; the lawsuit was later settled for $16.1 million. Bustos v. Leiva, No. 01-13370 CA 30 (Miami-Dade Co., Fla., Cir. Ct.). Tracking down cell phone use is also critical in proving vicarious or direct liability for the driver’s employer and thus maximizing potential recovery of damages, says plaintiffs’ attorney Peter Grenier of Washington, D.C.’s Bode & Grenier, who is representing the estate of a 15-year-old girl killed by a driver using a cell phone. “You’re using the age-old principles of vicarious liability applied to the new technological age. Then you couple this with the recent studies that using cell phones while driving is on a par with driving while intoxicated.” If the driver is on a business-related cell phone call at the time of the accident, Grenier says, the employer can be held liable, even if the company has a policy barring its employees from using cell phones in cars. “Cell phone polices are excellent from a safety standpoint, but they do nothing to mitigate the responsibility of the employer. It doesn’t change what the law says.” TELEPHONE CONSUMER PROTECTION ACT OF 1991 Class actions targeting companies sending unsolicited faxes and advertisers promoted by the ‘junk faxes’ Within the Telephone Consumer Protection Act of 1991 was a provision that banned sending unsolicited faxes. Each fax sent without the recipient’s consent would incur a fine of $500 to $1,500. This was intended to stop the already-rampant practice of sending out thousands of unsolicited faxes to advertise a product or company, notes Harry D. Revell of Augusta, Ga.’s Burnside, Wall, Daniel, Ellison & Revell. But until recently, this portion of the law was seldom invoked. A pioneer case was one filed by Revell in Georgia, involving faxes sent on behalf of Hooters of Augusta over a two-month period in 1995. The plaintiffs sued Hooters and the fax agent in 1995 and the lawsuit bounced through the federal and state court system for several years before finally being set for trial in state court. All along the way, Revell notes, the case set legal precedent for such actions, including establishment of a plaintiff’s right to sue both the advertiser and the faxer and his right to pursue defendants through class actions. In April 2001, the class was awarded $11.7 million, with each of the 1,321 class members scheduled to get $1,500 per fax received. This was later settled for $9 million, Revell reports. So far, only $1 million has been paid by Hooter’s primary carrier with the rest tied up in litigation over insurance coverage by the company’s other insurers. Nicholson v. Hooters of Augusta Inc., No. 95-RCCV-616 (Richmond Co., Ga., Super. Ct.). While this lawsuit was a recognized pioneer, there has been a growing number of other cases, including a $1.735 million settlement against the Dallas Cowboys last year and a $3 trillion class action launched this summer against fax.com by the San Francisco firm of Lieff, Cabraser, Heimann & Bernstein. These suits must be conducted as class actions, says Julius Glickman of Houston’s Glickman & Hughes, who represented the plaintiffs in the fax-blasting class action against the Dallas Cowboys. Since the fine is only $500 to $1,500 per fax, “it doesn’t justify one person bringing a case. Bringing a lawsuit for $1,000 is not economically feasible,” for the plaintiff or the lawyer. The suits have to target the advertisers as well as the faxers, adds Glickman. The companies sending out the actual faxes often have limited funds. “They’re basically one- to two-person shops.” The advertisers, adds Revell, are the ultimate beneficiaries of the junk faxes. Sending millions of faxes costs only a fraction of the price of direct mail, he notes. “It shifts all the costs to the recipient.”

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