Document 2RkZeYKpXjbzX5ZN574DD3J5L

Jt.Vew England rnr^^fdric^R^je,T' and Analysis t been irgoing ;s, and .ble for ionaily .iniiff s uffered lerapist jarticu-" woman' ,he had iverthe an how- expert self es--5S ;he was rrectivejg-S breasts : related her lowjgs .nue thej?$ . for the 2 ife andS'l A MONTHLY REVIEW OF NEW ENGLAND STATE AND FEDERAL COURT CIVIL JURY VERDICTS WITH PROFESSIONAL COMMENTARY AND ANALYSIS. Providing --A BASIS FOR EVALUATION AND SETTLEMENT OF COMPARABLE CASES. --PROFESSIONALLY ORIENTED TRIAL ANALYSIS OF PROOFS, TECHNIQUES AND PRESENTATION. --NAMES OF EXPERT WITNESSES TESTIFYING FOR PLAINTIFFS AND DEFENDANTS. --THEORIES OF LIABILITY AND DEFENSE AS ACCEPTED OR REJECTED BY JURIES. --PERTINENT TRIAL DATA FOR FURTHER REFERENCE. Published Monthly Subscription Price SISO Per Year --- The summarized herein are obtained end selected from a current and ongoing survey of the Stats and the Federal Courts in New England. However members of the bar are encouraged to advise this publication of any current plaintiff or defendant jury verdict they believe to be of sufficient interest to warrant publication. Volume I, Issue 5 -- November, 1985 11 " `-3pl . ' . Table of Contents _ Page 5750,000 Verdict - Products Liability - Breach of warranty - Chemical feed control unit defect.............................................: 1 $500,000 Verdict - Civil rights action-Negligent assault committed by police officer-Traumatic epilepsy......................... 3 Defendant's Verdict - Civil rights action - Plaintiff allegedly assaulted by police officers during alleged false arrest........... 4 5450,000 Verdict - Med Mai - Negligent removal of bile duct during partial hepatectomy procedure - Death.......................,6 Defendant's Verdict - Wrongful job termination - Plaintiff alleges fired without just cause in violation of company policy. 7 Defendant's Verdict - Handicap discrimination - Plaintiff alleges constructive demotion because of hearing impairment... 8 5421.000 Verdict - Auto Collision - Impairedjudgment due to alcohol consumption - Wrongful death................................ 9 Defendant's Verdict - FELA - Railroad worker sustains heart attack 2 weeks after clearing snow from 150 feet oftrack....... 9 5325.000 Verdict - Single vehicle collision - Police allow teenagers to proceed eventhough visibly intoxicated - Death.... 11 Defendant's Verdict - Alleged negligent supervision of child by babysitter - Child struck by auto - Fractured skull............. 12 Verdicts--At--A--Glance........................................................................................................................................................13 -1665^1 danas $750,000 VERDICT - PRODUCTS LIABILITY - BREACH OF WARRANTY Chittenden - DEFECTIVE CHEMICAL FEED CONTROL UNIT ON COOLING TOWER Vermont * LEGIONNAIRES DISEASE. This was a products liability action brought by the 53 year old plaintiff University of Vermont maintenance employee against the defendant manufacturer of a chemical feed control unit which was installed on a University of Vermont Cooling tower for the purpose of feeding purifying chemicals, or biocides, into the cooling system to kill bacteria. The accident occurred while the plaintiff was working on the top of the cooling tower located on top of one of the University's buildings when the fans kicked on automatically and sprayed the plaintiff with a mist of water from the cooling tower. The plaintiff began to feel extremely nauseous about 3 hours later, left work and was eventually diagnosed as suffering from Legion naires Disease caused by the aerosolization from the cooling system. As a result, the plaintiff contended that he sustained severe scarring of the lungs which causes him to become short of -- - front'd on next page/ COPYRIGHT NEW ENGLAND JURY VERDICT REVIEW R ANALYSIS Ml UCC 085868 (Cant'd) ` - breath and fatigued quite easily, preventing him fir m continuing his full time employment. The plaintiffs expert biochemist contended that the automatic xhemical feed control unit was defective in that it failed to inject the necessary amount .of biocides into the cooling tower. The plaintiff related that the brochures and pamphlets accompanying the control unit specifically stated that it was an effective biocide which would kill all microbiological growth in the cooling system. .. Both the plaintiffs biochemical expert and the defendant's biochemical expert acknowledged that Legionella is classified as a microbiological growth. The plaintiff maintained, however, that the particular chemicals or biocides supplied by the manufacturer did not effectively prevent the growth of Legionella bacteria. The defendant's expert biochemist contended that the subject biocides were state of the art chemicals and that there were no chemicals in existence at the time of contracting which could have prevented the growth of Legionella bacteria. The plaintiff countered that the defendant should have made the University of Vermont aware, at the time of contracting'that if - was is impossible to prevent the growth of Legionella so that the University might have taken steps to lessen the chances of such growth, such as adding chlorine to the system, especially given the fact that the defendant was aware that this particular cooling tower was tested positive for the growth % ' of Legionella approximately one year before. The plaintiff additionally produced an internal memo W- - of the defendant company dated prior to supplying the University with the automatic feed control' * unit, which listed the most effective chemicals against Legionella bacteria and which did not include any of the chemicals supplied to the University of Vermont. The plaintiff related that he continues to work part time in his previous position as a University of Vermont employee maintenance worker and that he is precluded from working full time because of severe and permanent lung scarring and weakness in both legs, which the plaintiffs expert pulmonary specialist maintained results from the Legionnaires Disease suffered. The defendant made no offers of settlement until after the plaintiffs opening statement at which time it offered $50,000 to settle the case. The plaintiff had offered to settle the case 3 years prior to trial for $300,000. The _ jury found the defendant 100% liable and awarded the plaintiffs $750,000 including $190,000 to the plaintiff wife for loss of consortium. The caseis presently on appeal. Plaintiffs expert biochemist: George Mallison of The Center of Disease Control in Atlanta. GA. Plaintiffs expert pulmonary specialists: Gerald Davis, M.D. and Michael Scollings, M.D., both of Burlington. VT. Plaintiffs expert psychologist: James Rosen of Burlington, VT. Defendant's expert biochemist: Carl Flicrmans of Georgia. Joseph and Kari Brennan vs. The Mogul Corporation. Case no. 88-8lCnC; Judge James Morse, 4-85. Attorney for plaintiffs: Gareth Caldbeck of Chalbume, VT.; Attorneys for defendant: Peter Plante and Douglas Richards of White River Junction. VT. COMMENTARY: The plaintiff was able to prevail on the theory that the defendant had misrepresented that its product would effectively kill all microbiological growth, a category of which Legionella bacteria is undisputedly a member. In this regard, the defendant was charged with a higher knowledge since the defendant was the supplier of the feed control unit and the chemicals, and was aware that there were no chemicals in existence at the time of contracting which would totally eliminate the problem of legionella. An important aspect of the liability picture were the proofs that this cooling tower was found to be the source of a Legionnaires epidemic one year prior. This evidence supported the plaintiff in his causal relationship allega tion and, in addition, accentuated the defendant's alleged conduct in implying that their product would render the potential of this disease harmless. In addition, the plaintiffs introduction of the defendant's internal memorandum listing the chemicals most effective against the legionella bacteria, which included none of the biocides supplied to the University for use in the feed control unit, was devastating to the defense that the chemicals provided were state of the art. The plaintiff's medical experts were particularly effective in their utilization of illustrations demonstrating how legionnaires disease invades and damages the lungs. "NEW ENGLAND JURY VERDICT REVIEW AND ANALYSIS is published Monthly for SI 50/year by Jury Verdict Review Publications, Inc., Suite 1722 * 24 Commerce St., Newark, N.J. 07102. Second Class Postage Pending at Newark, N.J. and additional mailing offices. Postmaster. Send Address Changes to New EnglandJury Verdict Review andAnalysis, Suite 1722 24 Commerce St,. Newark. N.J. 07102" PAGE 2 (tout'd on next page) UCC 085869 T ; ^"conclusion that he would not recommend the corrective surgery advanced by the defendant -? -? because it would require a total severing ofthe nerve with no assurance ofany positive result. ^ % - $940,000 GROSS VERDICT - MEDICAL MALPRACTICE - HALOTHANE Suffolk Vr1. *' ' -sankr- r ANESTHESIA IMPROPERLY ADMINISTERED TWICE JN XEN DAY "Mass. 7 PERIOD TO OBESE MIDDLE-AGED FEMALE - NECROSIS OF LIVER RESULTS IN T ^-.WRONGFUL DEATH. This was a medical malpractice action brought by the estate of the 621 i. -A year old female decedent against the defendant Peter Brent Brigham Hospital and the defendant ~.7& i ^ anesthesiologists, for allegedly negligently administering halothane anesthesia to the decedent - _ during two separate operative procedures which were performed within a one week period. 3, The plaintiff' contended that the standard of care at the time these operations were performed , : - ii. was to avoid repeat administrations of halothane within a two or three month period because r- - of the known risk associated with halothane in causing massive destruction of the liver-in.- - ^certain individuals. At the time of the operations, the decedent was an obese middle aged ~ female, a.category which was concededly at special risk fortbe.development of halothane -! . hepatitis. As a result of the repeat administration of the halothane within a one week period,1' the decedent suffered a massive fulminant liver , necrosis in which the cells of the liver were - ;-T completely destroyed, causing other vital organs to. fail in a domino effect, resulting in her- ^ death approximately 4J/2 weeks later. - 7 VOn January 3, 1977 the decedent underwent a hysterectomy at the defendant hospital which". T. - ^proceeded uneventfully under halothane anesthesia. On January 9,1977, six days subsequent toth&~L first halothane administration, the surgical wound began to come apart, necessitating reclosure'of^- the wound under anesthesia. The defendant, who was a first year anesthesiology resident at the timeyC '^ administered halothane again. The co-defendant, who was a second year anesthesiology residentatST r-7r|pjhe time and who had prepared the decedent for the. second emergency surgery, testified thatKe^ tn ^v% twice urged the defendant not to administer the halothane. Hie defendant countered that the co-clefl; ^^vfendant had concurred with the defendant to repeat the halothane.;The plaintiff's expert anes^, thesiologist offered into evidence a portion of a medical text considered by the medical community ' 7f\to be the "Bible" of anesthesia, in which it is specifically stated with regard to halothane anesthesia^ 7" ^contraindications, not to repeat halothane anesthesia twice within a two month period. The plaintiff ', ----^maintained that neither of the defendants had a full license to practice medicine at the time ofthe.j' p ypfer.- :.^iecond halothane administration and that, therefore, both the defendant and the co-defendant should- ,'T^have been supervised by a fully licensed physician. v p.rJr: .: : The defendant physicians both contended that the supervising staff anesthesiologist was consulted- _r4 by the defendant first year resident prior to the second halothane administration. The plaintiff.' ^ ^-" presented portions of the deposition testimony of the supervising staff anesthesiologist, in which he- 7 p testified that he, was not at the hospital before or during the second administration of the halothaneH: __ defendants contended that the second surgery was an emergency and that there was no acceptable^- alternative method of anesthesia. The plaintiffs expert anesthesiologist countered that there were- '^g^dveral alternative methods to anesthetize the decedent without halothane. ` ; ' ^P^I^^The defendants, further maintained that the fatal hepatitis was contracted from exposure to ther. ^z^dewdent's husband, who was a hepatitis carrier at the time of the two subject surgeries. The plaintiffs 7-f.Vyeipert hepatologist countered that his examination of the decedent revealed a totally different type~^ liver disease than.that carried by. her. husband and .explained that the plaintiff suffered from a 7^ ? r 7 massive fulminant liver necrosis in which the cells of the liver are completely destroyed as opposed 7 .. to a viral hepatitis, such as that carried by her husband, which can be treatable and is curable^.. ; Evidence was introduced indicating that the decedent had suffered approximately 1 weeks conscious ' pain and suffering before her death. The decedent had not worked in over 40 years and, therefore, _ S3 no claim for lost wages was made. The jury exonerated the co-defendant second year resident r ; and found for the plaintiff against the defendant hospital and the defendant first year resident wh -7^^ acrually administered the anesthesia. Plaintiffs expert anesthesiologist* Edward Thomas from Texas.r> j Plaintiffs expert hepatologisirRaymond Koff from Boston.-Defendant's expert pathologist: Merle-. 7.777 Less from Harvard Medical School. Defendant's expert anesthesiologist: Jack McPeek from Mas- ^Ss"- wTSr - temv on nextpagef* UCC 085870 SWRPAQEjJ Jsachusetts General Hospital. Harvard Medical School. Caputo vs. Jter Bent Brigham Hospital, et. als. Case no. 39158; Judge Herbert Abrams, 11-84. Attorney for plaintiff: Leonard A. Simon of Boston: Attorney for defendant hospital and the defendant first year anesthesiology resident* William Meara of Murphy and Mitchell in Boston; Attorney for co-defendant second year resident: Charles Dunn. Jr. of Dunn and Rodeers in Boston. ~ ^COMMENTARY: The testimony of the co-defendant anesthesiologist, to the effect that he had, in fact, advised the other defendant resident anesthesiologist not to administer the halothane -WTww-J on the second procedure, undoubtedly had the effect of acknowledging the deviation from standard. In addition, the conflicting testimony in this regard between the co-defendants, whatever the result as between the co-defendants, could not help but assist the plaintiff in its case. The jury was undoubtedly positively influenced by the plaintiff's expert's use of the text which is considered by the medical community,to be the "Bible" of anesthesiology, in which it specifically and clearly warns physicians to avoid repeat administrations of halothane anes thesia within a two or three month period, especially when the patient in question is a member of a high risk group as .was the plaintiff. The significant damage award to the estate of a 62 year old woman who had not worked for the past 40 years and whose children had reacted majority age probably reflected the conscious prolonged pain and suffering experienced byjhe, decedent as a result of this debilitating disease, for a one week period prior to her death.' ' : t.'- ---zfrg&sp. $396,200 GROSS VERDICT - ADMIRALTY - OWNER OF WESTERN U.S. Dist. W RIGGED DRAGGER FISHING VESSEL FAILS TO MAINTAIN OR Mass; REPLACE NET BRAKING SYSTEM - BRAKING MECHANISM GIVES WAY WHILE CREW ATTEMPTS TO UNTANGLE NETS CAUSING HEAD INJURY TO CAPTAIN. This was an admiralty action brought by the 48 year old plaintiff captain of a western rigged dragger ~ fishing vessel against the defendant employer/owner of the vessel for head injuries sustained by the plaintiff while the crew attempted to untangle the fishing nets from the port and starboard^ doors, which weigh approximately 550 kilos or 1200 pounds each, and which hold the fishing nets open while the vessel drags the nets along the bottom from the rear of the boat. The air braking system used to hold the doors in place failed while the crew was untangling thenet from the doors, causing the port door to fall against the starboard door, upon which the crew had placed certain tools, which then spun off of the starboard door when struck by the port door, striking the captain in the head, causing him to develop a post traumatic seizure disorder' approximately three months after the injury, necessitating continual use of anti-seizure medi cation without which he would suffer severe and'Yecurrent seizures for the rest of his life'. :The plaintiff captain brought this action under the Jones Act against the defendant employer, MS* who was also the owner of the vessel, contending that the defendant-employer had not exercised reasonable care under the circumstances with regard to the maintenance or replacement of the subject braking system. The plaintiff additionally claimed that the defective braking system rendered the r*St- subject vessel unseaworthy under the common law doctrine of unseaworthiness, in which a particular. part of the vessel, in this case the net braking system, is claimed not reasonably fit for its intended purpose and as a result causes injury. The plaintiff maintained that the subject braking mechanism ' failed because the diaphragm, into which air is exerted causing the plunger mechanism to be pushed out to tighten the brakes, was perforated causing the brakes to release unexpectedly. The plaintiff presented evidence that the . subject braking mechanism had, prior to the accident in question, ' malfunctioned on several occasions, necessitating replacement of.the diaphragm several times over a several month period, which the plaintiff contended, is more often than necessary if the brake mechanism is functioning properly. The plaintiffs expert naval architect opined that the system should have been replaced prior to the accident and further that the vessel should have been equipped with a fail safe back-up system in case of brake failure. This expert further reported that his examination of the system revealed j 'JL,--. f .that the plunger had become old, rusty and pitted, contributing to the increased wear and tear on , . thediaphragm. -The-plaintiff. introduced evidence ofindependent conversations which took place_ prior to the subject accident between members of the crew and the defendant owner of the Vessel" * - _. .... . .7 ~ . (cont'd on i PAGE 4 ; ^ UCC 085871 - j oI y*