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Case Notes: March 2017

CASE NOTES

Summaries of recent legal matters in and around Chicago

ESTATE RECOVERS NOTHING IN MESOTHELIOMA ASBESTOS EXPOSURE CASE

Estate of James Wagner, deceased v. Eaton Corporation

Cook County Circuit Court Case No. 14 L 9158

Plaintiff worked as a truck mechanic from 1987 to 1989, during which time he was allegedly exposed to asbestos while working with truck brake linings that were manufactured by Defendant and that allegedly contained asbestos. His alleged exposure to asbestos allegedly caused him to develop mesothelioma by 2014 and subsequently pass away. His estate asserted the standard product liability claims that Defendant was negligent in manufacturing and distributing its products despite knowledge of the dangers of asbestos, and in failing to sufficiently warn of the dangers.

The Defense contended that the alleged exposure purportedly occurred when almost all of Defendant's truck brakes were asbestos-free, and that the limited line of brakes that still contained asbestos at that time all had adequate warnings before 1987. This proved to be a winning argument as the jury returned a full not guilty verdict for the Defendant manufacturer.

ESTATE OF BUSINESS OWNER KILLED IN AIRPLANE CRASHES AND BURNS AT TRIAL

Estate of Gary Egbers, deceased v. Honeywell International, Inc.

No. 06 L 6992

The 54-year-old business owner Plaintiff was on a single engine plane that crashed while on approach, in a heavily wooded area, a half mile from the targeted runway. All five people on board died. Due to a lack of surviving evidence to show who was at the controls, there was a dispute as to who was piloting the plane at the time of the crash, with the defense contending that the decedent business owner was flying the plane.

The Estate contended the Defendant manufacturer of the 20-year-old plane's flight control and autopilot systems negligently designed the flight control system and failed to incorporate design features to prevent a mechanical jam that allegedly resulted in an uncontrollable left bank of the plane and caused the crash.

The Defendant flight system manufacturer denied its product malfunctioned, that its design was negligent and that it played any role in the crash. It contended that crash was caused by pilot error in adverse weather conditions, with a pilot at the controls who was inexperienced with nighttime instrument conditions.

The Estate sought $39,865,728 at trial. And offered a settlement consisting of a high-low of $1-$5 Millions. It is unknown what the Defendant manufacturer offered but, whatever it was, it was more than the Estate recovered at trial. The jury returned a full defense verdict.

CTA TRAIN OPERATOR INJURED IN CRASH WITH POLICE CAR RIDES TO VICTORY

Jeffrey Bryant v. City of Chicago, Charlotte Gonzalez

Cook County Circuit Court Case No. 13 L 9007

The 48-year old male Plaintiff was operating a street-level Chicago Transportation Authority ("CTA") commuter train as it approached a street crossing where the safety gates had descended blocking cross-traffic in lanes from both directions. Plaintiff sounded the train horn as he approached the crossing. Despite this state of affairs, a Chicago police officer, in pursuit of a bicyclist who was illegally riding on the sidewalk, maneuvered her unmarked police car around the lowered gates and onto the tracks. It was struck by the oncoming train which was unable to stop in time despite use of the emergency brakes by Plaintiff.

Plaintiff was thrown forward on impact and suffered injuries including two herniated discs and assorted soft tissue injuries leading to requiring physical therapy, epidural injections and a two-level lumbar fusion surgery. Plaintiff was left with decreased range of motion in his lower back and was off work for five months.

Plaintiff contended that the officer stopped at the crossing for thirty seconds before then maneuvering her car around the gates onto the tracks. At trial, Plaintiff argued that the officer was willful and wanton in operating her police car by her alleged: violation of a Police Department General Order requiring officers to assess whether the danger posed by a fleeing suspect outweighs the dangers of the motor vehicle pursuit; and violated of state laws regarding traffic at railroad crossings.

The City denied the officer's conduct was willful and wanton. It denied her alleged failure to comply with any applicable general order, argued somewhat creatively that the General Order identified did not apply because the officer was pursuing a bicycle and not a motor vehicle as stated in the Order's language. The City further argued that, even under the balancing of harms required by the general Order, the officer did act properly because: the bicyclist posed a threat because he was wearing attire similar to that of a local gang, he appeared to be casing vehicles, and was tugging at his waist which led the officer to believe he was concealing a weapon; and she was concerned for the safety of her partner who was pursuing the bicyclist on foot. The City further argued that Plaintiff could not have been injured to the extent claimed because the collision was that of a 200-ton train and a 2-ton car and he did not report back pain at the emergency room immediately following the accident. The City also pointed to the Plaintiff's ability to work without any evidence of back or leg pain, once he went back to work five months after the accident.

The jury was unswayed by the City's arguments. It specifically found that the officer's conduct did "show a conscious disregard and utter indifference for the safety of herself and others," and returned a verdict of $2,480,547 against the City, including all $331,747 for past medical expenses; $1,200,000 for past and future pain and suffering; and $948,800 for past and future loss of normal life.

BICYCLIST ON SIDEWALK HITS CAR BUT MISSES RECOVERY

Mary Joy Clarence Cabarle v. Marc B. Buhmann

Cook County Circuit Court Case No. 15 L 7444

The 18-year old female Plaintiff was riding her bicycle on the sidewalk along a busy street. As she rode across a driveway for the Kentucky Fried Chicken restaurant, she collided with the car being driven by the defendant who was exiting the drive-through. Plaintiff allegedly suffered soft-tissue injuries to her head, neck, back and arm, requiring physical therapy and injections.

The front of the restaurant abutted directly against the sidewalk, right next to the drive-through exit lane. This set-up obstructed the views of motorists exiting the drive-through and of anyone traveling past on the sidewalk.

Plaintiff claimed that Defendant was negligent when he allegedly came out of the drive-through at a high speed and hit Plaintiff with the front of his car. The Defendant highlighted the testimony of the responding paramedics who said Plaintiff told them, at the scene, that she was riding with her headphones on when Defendant's car slowly pulled out in front of her, going less than 2 miles per hour, and stopped before she ran into it. Defendant denied any negligence or liability based on those facts and the fact that the architectural arrangement made it impossible for him to see Plaintiff before she crossed the driveway.

Prior to trial, Plaintiff offered to settle for $20,000, and Defendant offered nothing. At trial, Plaintiff asked for $100,000 and the jury awarded nothing.


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