What You Need to Know

Transcription

1 Fall 2013 What You Need to Know Page 1 - How Common Seat Defects Can Lead to Catastrophic Injury Page 2 - Seat Belts Pose Dangerous Defects Page 3 - Effective Dram Shop Claims Page 4 - Obtaining a Large Recovery in Spite of Small Medical Bills Page 5 - TBI Cases: Effective Proof of Injury Page 6/7 - L&E Results Coast to Coast Page 8 - How to Spot a Products Claim in a Truck Accident Page 9 - Money Set Aside for Hip Litigation Page 11 - Firm News & Notes Page 12 - Judge Michael Manners Joins Firm Seat Defect Leads to $43.1 Million Verdict Award against manufacturer Johnson Controls is believed to be the largest jury award in Vermont history. Most people are unaware that a simple component the reclining mechanism for their seat back can have catastrophic safety consequences. In this case, the jury held Johnson Controls Inc. (JCI) responsible for our client s devastating injuries. The lawsuit arose from an Aug. 4, 2007, accident in Essex,Vermont. Our client s car, a 2000 Dodge Neon, was struck from behind while stopped at a red light. According to the accident report, the defendant driver fell asleep just before striking our client s car. The collision occurred at only 40 mph, but created severe spinal cord injuries when the car seat back collapsed. If a seat back collapses rearward in a rear impact crash, there is the potential to injure the occupant, and sadly that is what happened in this case, Bob Langdon explained. What we think is horrible about this case is More than $20 Million Paid to Co-Counsel Over the last three years we have paid co-counsel over $20 million. If you have a case you would like to talk about with us, please contact us any time at our toll-free number, that federal standards have not changed for this part of the automobile industry since the 1970s. With this common auto defect, neither the seat belt nor the airbag can prevent injury when even a minor accident occurs. (Continued p. 10)

2 Page 2 Langdon & Emison Newsletter Fall 2013 Pre-Suit Settlement Nets Significant Recovery for Client One child paralyzed, antoher killed by defective seat backs. Kent Emison and Jessica Agnelly Krawczyk obtained a favorable settlement with General Motors for Heavin Raver and the family of Corbin Raver. Heavin, now age 6, was paralyzed in a frontal crash of a 1998 Chevrolet extended cab pickup. Heavin s brother, Corbin, was killed in the crash. Proper restraint systems could have prevented this tragedy. Heavin Raver The Defects Heavin sat in a second row seat equipped with a lap/shoulder belt. Although Heavin was in a booster seat, her shoulder belt did not restrain her in the crash. She slid under the shoulder belt and jackknifed over the lap belt, which caused horrific injuries, including paralysis. Corbin was in a booster seat and was using the available lap belt only (no shoulder belt); the lap belt caused fatal injuries. Safety Tips Never put children in a lap belt only. Never put children in a lap/shoulder belt that does not fit them properly. If the vehicle does not have integrated seat belts, proper booster/child seats must be utilized. GM, as well as all other auto manufacturers, knew for years that lap belts had killed and paralyzed The Defective Lap Belt children in car crashes. Further, these manufacturers have known that integrated seat belts or all belts to seats can prevent these types of injuries. GM has utilized these safer seat belts in some of their other vehicles for many years, but continues to put defective seat belt systems in most models. The Crash The crash was a typical low-speed accident that should not have resulted in the death of one child and catastrophic injuries to another. The driver missed a turn and went head-on into a dirt embankment. No alcohol or drugs were involved. The adults in the pickup were not seriously injured, however the defective seat belts located in the back seat caused devastating injuries to the two children. The Langdon & Emison team working on this case established that Heavin will have significant economic loss over the course of her life and were able to submit a life care plan showing that Heavin would require $5.4 million in future medical care. The settlement will provide Heavin with the best care and allow her to have a much better quality of life. Safer integrated seat belts.

3 Langdon & Emison Newsletter Fall 2013 Page 3 $4 Million Settlement Earned for Motorcycle Accident Victims in a Dram Shop Action Bob Langdon and Phyllis Norman recently obtained a $4 million settlement in a dram shop claim for a young man and his mother who were permanently injured by a drunk driver. The evidence showed that the defendant bar served the drunk driver and his two friends over thirty liquor drinks in less than five hours. The key to any dram shop action is obtaining evidence that the defendant bar served the drunk Bob Langdon Phyllis Norman driver while he was visibly intoxicated. Here, bar patrons eye-witness testimony, including both independent witnesses and friends of the defendant drunk driver, proved that the defendant was visibly intoxicated while at the bar. In addition, the firm obtained the drunk driver s bar tab through discovery. An expert toxicologist was able to assess the drunk driver s height, weight, and alcohol consumption rate to determine the visible effects the defendant Key to the Case Develop evidence that the bar s corporate alcohol service policies encourage-over service. driver exhibited at the time the bartenders served him. addition, depositions showed the bar did not provide adequate policies, procedures, or training to their bartenders regarding observing intoxication behaviors; supervision of servers and bartenders; and, prevention of drunk drivers from leaving the premises. Damages Due to the impact, both mother and son were ejected off their motorcycle and sustained permanent orthopedic injuries. To support future damages in this case, the firm had prepared life care plans in excess of $2.6 million. The team also produced medical illustrations for the injuries which the treating doctors and Plaintiff s orthopedic expert agreed with in deposition. The life care plans and medical illustrations were integral in the mediation and settlement of this case. The firm was able to show how due to their orthopedic injuries they would require several medical procedures including a spinal cord stimulator for pain and ultimately would not be able to withstand the physical aspects of work. Key to the Case Develop evidence to prove the defendant driver was visibly intoxicated at the bar from eyewitness bar patrons and an expert toxicologist. Bob and Phyllis also elicited key admissions from the bar s corporate representative and other bartenders who worked at the bar. Depositions showed that the bar s corporate policies encouraged over-service of alcohol, and bartenders regularly violated city ordinances designed to prevent drunk driving. In Accident Vehicle Damaged Guardrail

4 Page 4 Langdon & Emison Newsletter Fall 2013 Investigation Through Medical Treaters and State Troopers Leads to Significant Recovery in Auto Accident Case Firm obtains a $350,000 settlement for client who paid $20,000 in medical bills. This summer, Langdon & Emison attorneys obtained a successful recovery for a young girl who suffered a torn hip labrum in a 2010 auto accident. Our client, 15 at the time of the collision, had just over $80,000 in past medical bills, of which approximately $20,000 was paid. The case settled on the eve of trial for $350,000. Mark Emison led the legal team in the matter. The case was filed in Johnson County, Missouri. On the morning of April 2, 2010, our client was a passenger on a rural highway on her way to piano lessons. As the car she was riding in approached an intersection with a gravel road, the defendant driver turned right in front of their vehicle and caused her car to strike the left side of the defendant s truck. Mark Emison Key to the Case In spite of the defense s final offer of $8,000 before filing, the firm turned this case into a $350,000 settlement on the eve of trial, even with the client s relatively low amount of medical bills after the injury. Strategy in the Case In the initial accident report, the investigating trooper indicated that the defendant driver stopped at a stop sign before the collision. The defendant also testified he stopped at the stop sign for a couple seconds prior to the collision. Damages Throughout litigation, the defense contested our client s damages and never formally admitted liability. Physicians did not initially diagnose her torn labrum; it was identified eight months after the collision when she was referred to a hip specialist and had surgery performed. Langdon & Emison was able to elicit testimony from the treating hip specialist to support the diagnosis of the torn labrum and its connection to the collision. However, after a thorough interview of the investigating trooper, the legal team was able to show through the trooper s testimony that evidence at the scene supported that the defendant actually ran the stop sign. This testimony was key since it supported our client s testimony and contradicted both the initial report and the defendant s testimony. Without thorough interviews of the trooper on the scene, crucial information would not have been obtained.

5 Langdon & Emison Newsletter Fall 2013 Page 5 How Before and After Evidence Contributes to a Win in Traumatic Brain Injury Case Team from Langdon & Emison settles another auto accident case. Establishing a client s before and after conditions through character witnesses is vital in proving traumatic brain injury. In L&E s latest success in this arena, Kent Emison and Jessica Agnelly Krawczyk served as lead attorneys for a client who was injured during an attempt to help a stranded passenger on the side of an interstate highway in a snowstorm. The Injuries Kent Emison Jessica Krawczyk As a result of the collision, our client now suffers from severe and permanent mental and physical injuries, including a traumatic brain injury and full-blown Post Traumatic Stress Disorder. The Langdon & Emison team proved through interviews of character witnesses that prior to the crash our client was a loving father and husband and was involved in his children s activities, including school, church, and boy scouts. He was fit and enjoying his career in the Army; in fact, a Colonel in the Army described him as the best squad leader under his command. The legal team used convincing testimony from before and after character witnesses to tell the story of how the traumatic brain injury affected our client both at work and socially. The attorneys were able to couple this testimony with the use of highly-sophisticated highresolution diffusion tensor imaging (DTI), which showed the injury. DTI differs from conventional MRI in that it is senstive to micro-structural changes in the white matter of the brain. The use of DTI is imperative for the detection of TBI-related brain abnormalities. Key to the Case Establishing the contrast of before and after the incident from character witnesses shows the traumatic nature of the client s injury in a brain injury case. Kent and Jessica highlighted the contrast of before and after the accident by showing that he s now completely disabled and unable to survive day-to-day without the constant supervision of his wife. Though his appearance does not immediately show the impact of his injuries, the testimony showed his severe deficits. Testimony from unbiased character witnesses is the most valuable. For example, testimony from co-workers, superiors, teachers, clergy members and even store clerks who see the plaintiff on a regular basis can be viewed as more persuasive than that of family members. However, testimony from family members is also critical as often times they are able to paint the entire picture of the effects on the family unit. Brain Injuries are More Common Than You Might Think The number of people who sustain a traumatic brain injury every year in the United States is surprisingly high. Approximately 1.4 million people sustain brain injuries every year; 50,000 of these people die; 35,000 are hospitalized; and 1.2 million are simply released to their caregivers who often are not provided adequate training. Attorneys in these types of cases should realize that brain injury survivors experience a wide range of functional changes in cognition, language, emotion and behavior. Clients in these types of cases typically are susceptible to impaired memory and judgment.

6 Page 6 Langdon & Emison Newsletter Fall 2013 In our 30 years representing injured individuals and their families, we have handled person In our 30 years representing injured individuals and their families, we have handled complex personal between. Beyond the countless results earned in our home state of Missouri, here is just a sam is just a sampling of some of the results the firm has obtained on behalf of clients nationwide. Some o of our greatest results have come in tandem with local counsel in various parts of the U.S., s have a potential case that you would like to collaborate on o on, please c A horrific fuel-fed fire in Washington state led to severe burn injuries to our client, including the loss of limbs. Langdon & Emison proved to a jury that the GM-designed fuel system was defective. A semi-truck collided into an F-150 causing the fuel tank to be punctured. A large fire resulted and three people burned to death, resulting in a $12.5 verdict for the firm s client, whose son and parents perished in this collision. Arguably no other firm in the U.S. possesses as much experience in fuel-fed fire cases nationwide. The firm has represented clients in mass torts litigation nationwide. Most notably we have taken on the manufacturers of drugs and medical devices such as artificial hips and knees. Castillo v. Ford: This auto products defect case yielded a $23.4 million verdict in American Lawyer Media selected this California jury verdict as one of the top verdicts of the year. A successful recovery was made for a woman serving as a missionary on Maui whose Nissan Stanza collided with a Toyota pickup truck in Kahului. In this passive belt case, the client was rendered a quadriplegic as a result of the collision. Langdon & Emison has been lead counsel in the Firestone Detread Litigation from accidents occurring in Mexico, Texas and other locations. The firm has litigated cases over defective tires nationwide.

7 Langdon & Emison Newsletter Fall 2013 Page 7 al injury litigation from Hawaii and California to Maine and Florida and all points in injury litigation from Hawaii and California to Maine and Florida, and all points in between. Here pling of some of the results the firm has obtained on behalf of clients nationwide. Some f our greatest results have come in tandem with local counsel in various parts of the U.S., so if you o if you have a potential case you would like to collaborate on, or just want an opinion r just want an opinion on, please don t hesitate to call us. all us. In 2011, a dangerous workplace case was resolved for a family whose son died due to malfunctioning warehouse machinery. The firm has orchestrated several seven-figure recoveries in the state of Illinois throughout the years. In 2013, Bob Langdon served as lead attorney in the largest jury award in Vermont state history. $43.1 million was awarded to our client in a defective seat back case, Heco v. Midstate Dodge LLC, et al. The firm represented a car passenger whose legs were crushed and later amputated as a result of sliding under his seat belt in a wreck. Toyota s failure to warn our client in Kumar v. Toyota about the danger of riding with his seat reclined led to Maryland s largest jury verdict at the time ($59 million). A post-collision fuel-fed fire resulted when gasoline siphoned out of the fuel tank in a head-on collision, causing serious burns to those involved. Our client was awarded $26.4 million. (Wasilik v. Ford) In Martin v. Ford, our client was awarded a $16.9 million verdict by a Jacksonville jury over her Windstar minivan collision that left her a paraplegic. A $7 million jury verdict in federal court in Arkansas was obtained in 2011 in a truck accident case. Kent Emison led a legal team that was able to highlight the fact that the truck driver should not have passed even a minimal hiring screening process. The firm served as lead counsel for a family who lost their teenage girl when the car she was riding in was hit by a train at a railroad crossing that was not protected. Langdon & Emison has litigated railroad accident cases in venues across the country this one yielded a $3.25 million settlement.

8 Page 8 Langdon & Emison Newsletter Fall 2013 How to Spot a Products Case in a Trucking Accident We ve often seen that the manufacturer of the truck (or of its parts), the trucking company, the owner of the trailer, and/or the owner of anypublic or private property whose negligence contributed to an accident all may be appropriate parties to sue in products cases involving trucks. With that in mind, there are a number of product defects to watch for in trucking cases. Defective Truck Tires In our practice, we have seen a good number of products cases arising from truck accidents that happen where the rubber hits the road the tire. All it takes is for one of the 18 tires on a tractor trailer to fail to create a horrific accident. If one of the tires on a dual tire drive axle or trailer axle fails, then the other tires will have to do more and support more weight, creating an untenable situation for the truck. This usually causes neighboring tires to heat up and detread. Fuel System Defects Often fuel tanks will have components added that have the potential to puncture the tank in a collision. This includes components such as The few reforms that have been made over the past 50 years apply to less than half of the heavy trucks on our roads and do not adequately safeguard motorists from devastating crashes. battery boxes, steps, storage compartments, etc. Most side saddle tanks on tractors are constructed of aluminum and are very susceptible to rupturing in a collision. Additional fuel system defects may include fuel line failure, fuel filler pipe failures, or the failure to have a safety valve in the tank to prevent fuel from escaping. If there is a fire in a semi-truck collision which injures or kills someone, the fuel system must be analyzed for defects Underride Guards One design flaw that can be potentially fatal is what is known as the truck s underride guard. Since the 1950s, federal law has required semi-truck trailers to be fitted with metal structures called underride guards on their rears to prevent underride crashes. However, studies analyzing both real world collisions and crash tests indicate federal minimum requirements for underride guards are not sufficient to protect motorists. Underride guards that comply with the minimum federal standards often fail, even at low speeds. Product liability lawsuits against semi-truck trailer manufacturers are common when the failure leads to an injury or death. Consumer-oriented organizations have pushed for more stringent underride regulations since the 1960s, however their push has been repeatedly met with resistance from the trucking industry. The few reforms that have been made over the past 50 years apply to less than half of heavy trucks on our roads and do not adequately safeguard motorists from devastating underride crashes. The federal government must impose higher standards to strengthen and improve underride guards. Regulations should also be extended to cover all heavy trucks that pose a danger of underride. In our own practice, we have seen a number of underride fatalities that may have been prevented if higher standards were in place.

9 Langdon & Emison Newsletter Fall 2013 Page 9 Money Set Aside for Defective Metal-on-Metal Hip Litigation Firm continues to litigate cases regarding artificial hips. J&J s strategy will be to find a way to negotiate a grid to settle each of the claims based on five or six variables that could be plugged in and changed up or down to determine the value of any claim. - Bloomberg News New reports this summer suggested that Johnson & Johnson (J&J) is prepared to increase its settlement offer regarding defective DePuy artificial hips by at least 50%. In January, the manufacturer reportedly offered $2 billion to resolve more than 10,000 lawsuits over its recalled metal-on-metal hip implants. This August, Bloomberg News reported that J&J had discussed paying more than $3 billion to settle the claims. In that report it was estimated that Johnson & Johnson may be willing to pay more than $300,000 per individual case. A number of bellwether trials set over the new few months are likely pushing both sides to resolve the litigation. Seven trials are scheduled between September and January. Currently, court decisions on the claims are split. Plaintiffs won the first trial, resulting in an $8.3 million verdict. However, DePuy prevailed in the second trial. While settlement talks continue, J&J and lawyers for hip claimants have agreed on the broad outline of a so-called global settlement covering all U.S. cases. Any overall accord would compensate patients based on such factors as age, extent of injuries and whether they had one or more surgeries to replace defective implants. Negotiators would likely rank those and other factors on a matrix or grid. Several obstacles remain including how long Johnson & Johnson may have to pay future claims, reimbursement of Medicare, and compensation for more severe injuries. Langdon & Emison continues to accept cases over defective artificial hips. Johnson & Johnson reportedly offered $2 billion to resolve more than 10,000 lawsuits over its DePuy artificial hips.

10 Page 10 Langdon & Emison Newsletter Fall 2013 $43 Million Jury Verdict in Seat Defects Case (Cont d. from p.1) By the defense s own estimation, lives per year would be saved if this particular defect was modified. This figure does not include those who are quad- or paraplegics as a result of these seatback failures. Additionally, many children are injured each year in collisions when a front-seat passenger hits the child occupying the back seat upon impact. As the legal team showed at trial, this seat model was designed with Bob Langdon Adam Graves a single-sided recliner mechanism. Because the recliner mechanism was only installed on one side of the seat, it permitted the seat to torque and rotate even in low-impact collisions. The torquing of the seat caused the recliner mechanism to bend outward, permitting the seat back to collapse backward into the rear seat. The company s own testing showed the JCI-seat failed at only 6,215 inch-pounds of force. If an auto accident involves serious or catastrophic injuries, the attorney should have it evaluated for seat defects to seat belt defects. Key to the Case Perform a thorough evaluation of a car seat s construction. Trial Strategy The merits of a case like this may not be immediately apparent to many attorneys unfamiliar with seat back failure cases. For instance, this particular type of seat will rebound quite a bit in a collision, so the seat won t necessarily be laying down against the back seat after the impact. This defect cannot be identified until after the seat padding is removed and the seat is examined. In fact, at least three other law firms reviewed and rejected this case. Any auto accident with significant injuries should be fully vetted and investigated before rejecting the case. The investigation should include a review by experts concerning the forces involved in the crash, potential sources of defect, and the occupant kinematics (movement within the vehicle). Attorneys should also compare the client s injuries with the injuries sustained by others in the collision. A disproportionate injury is a tell-tale sign of a product defect. A simple solution was readily available to Johnson Controls: A dual-sided recliner mechanism, which distributes the force equally across the seat back and prevents the kind of torquing of the seat at low force thresholds that caused the JCI design to fail. In fact, Johnson Controls filed a patent for a dual-sided mechanism to prevent this exact failure mode in At trial, JCI put two corporate witnesses on the stand. Neither one testified that this was a safe seat, said Adam Graves. In fact, that was something that several jurors mentioned in speaking with them after the verdict was read. The jurors noticed that Johnson Controls said the right things about corporate responsibility, but were offended that JCI spent most of its time at trial simply trying to blame Chrysler for the design specifications rather than accept responsibility for its product.

11 Langdon & Emison Newsletter Fall 2013 Page 11 Langdon & Emison Co-Hosts Chicago Lawyers Committee Event In an ongoing partnership with the Chicago Lawyers Committee for Civil Rights Under the Law, Langdon & Emison co-hosted a breakfast roundtable this summer dedicated to public education issues in the city of Chicago. Bob Langdon serves on the educational advisory board of the organization. With the recognition that school often serves as a child s first introduction to society outside the home, the Chicago lawyers from various defense and plaintiff s firms gathered to talk about ways they could contribute to schools so they could have a profound impact on children s lives. The program pointed out disparities in the rate and severity of discipline for those from different class systems within the Chicagoland area, as well as the amount of funding for students education, classroom size, and other factors that help establish social disadvantages at a very young age. Phyllis Norman Named to Missouri Supreme Court Commission Langdon & Emison attorney Phyllis Norman was appointed by the Missouri Supreme Court to the Joint Commission on Women in the Profession for a two-year term. The Commission is made up of members appointed by both the Court and The Missouri Bar. Phyllis will work with the other 16 commissioners identifying gender barriers, combating bias in the justice system and securing full and equal participation of women in the legal profession. Brett Emison Appointed to Four AAJ Committees Partner Brett Emison has been appointed to the National Finance Committee and the Publications Committee for the American Association for Justice (AAJ). He was also named a Trustee of the AAJ s Political Action Committee, as well as a member of the New Lawyers Division s Publications Committee. Brett's term on the National Finance Committee will run through the organization's annual meeting in 2014, while his tenure on the publications group will end at that point in Michael Manners Years of Public Service Recognized with Judicial Excellence Award Langdon & Emison Partner Michael W. Manners received the Theodore McMillian Judicial Excellence Award in September. This prestigious honor is given annually by the Missouri Bar Association to a judge who has set an example of judicial excellence by leadership in the advancement of justice, has provided outstanding public and community service to the people of Missouri, who are persons of the highest character, integrity, and honor, and who inspire other members of the judiciary to similar noble purpose. Langdon, Emison Tabbed Again with AV Pre-Eminent Status Bob Langdon and Kent Emison have once again been recognized with AV Pre-Eminent status by the lawyer peer review group Martindale Hubbell. According to the service, an AV Preeminent Peer Review Rating demonstrates that a lawyer has earned the highest rating available for their legal ability and professional ethics. Bob was named to this elite level of client service in the category of personal injury litigation. In addition, Kent was named a Top-Rated Lawyer by the magazine American Lawyer in the category of personal injury law.

12 Hon. Michael W. Manners Joins Langdon & Emison as Partner Circuit Court Judge Michael W. Manners has joined Langdon & Emison as a Partner, where he will practice civil litigation, particularly in the area of personal injury law. While presiding in Division 2, 16th Circuit, Judge Manners was selected as the Best Circuit Court Judge in the state by Missouri s lawyers, voting in a state-wide poll conducted by the Missouri Lawyers Weekly publication. In September 2013, he was honored with the Theodore McMillian Judicial Excellence Award from the Missouri Bar. Judge Manners was appointed by Governor Roger Wilson on November 17, Prior to his appointment, Judge Manners spent 24 years as a trial attorney with the firm that eventually became Welch, Martin & Albano. While in private practice, he served as President of the Eastern Jackson County Bar Association and the Missouri Association of Trial Attorneys. Judge Manners was retained in office in the 2002 and 2008 elections. He graduated from Central Missouri State University summa cum laude with a B.A. in history and political science. He later attended Georgetown University, where he worked on his Master s degree in government, and the University of Missouri at Kansas City Law School, where he obtained his J.D. degree. Let us help maximize compensation for your clients Swift, Suite 303 N. Kansas City, MO Main Street Lexington, MO *110 E. Lockwood, Suite 150 St. Louis, MO *By appointment only. *55 W. Monroe Street, Suite 3700 Chicago, IL