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Case Notes: August 2016

CASE NOTES

Summaries of recent litigation in and around Chicago

Family of First Divvy Rider Killed in the U.S. Brings Wrongful Death Suit.

In Jim Murray v. A & B Flooring Supplies, Inc. et al., Cook County No. 2016-L-007570, a truck that turned right after waiting for a red light to change, hit and killed a Divvy bike rider who had been beside the truck while also waiting for the light.  The driver was charged with failure to yield to a cyclist in the roadway.  The woman is believed to be the first person killed in an accident while riding a Divvy bike.

The woman's family has filed a wrongful death suit against the driver and the owner of the truck.  They have also named Divvy Bikes and the City of Chicago in the lawsuit, as "respondents in discovery." This means the plaintiff has one year to conduct discovery regarding Divvy Bikes and the City and to decide whether or not to convert them to defendants.  While conversion to defendant status can often be almost a formality after a plaintiff gathers basic information from expected future defendants, that will likely not be the situation this time.  All aspects of discovery regarding these defendants will likely be carefully scrutinized, if not hotly contested.

The plaintiff's counsel has reportedly stated that he does not yet feel he has a clear basis for suing Divvy or the City.  However, counsel's comments indicate he may be well looking for a way to make Divvy and the City defendants.  Such comments include talk about the City and Divvy encouraging bike use which has risen dramatically, about the lack of a bike lane at the accident location, and about increasing bike use without increasing infrastructure.

This will surely remain a closely watched case.

Diabetic Plaintiff Does Not Convince Jury that Collision Caused Blood Sugar Spike.

In Kelvin Terry v. Guadalupe Urbina, Cook County No. 14 L 2030, a driver stopped at a red light was rear-ended.  He claimed consequent soft tissue injuries to his neck, back and chest.  Interestingly, he also claimed that the collision caused a spike in his blood sugar that resulted in his hospitalization for three days.

At trial, the plaintiff did not present medical testimony actually linking the hospitalization to the accident.  The defense argued the impact amounted to only a very light tap without any injury, much less responsibility for the already diabetic plaintiff's subsequent blood sugar problems. The jury apparently agreed and delivered a not guilty verdict.

Jury Returns Massive Verdicts for Plaintiffs in Multi-Vehicle Collision Case.

In Estate of Aaron Swenson, et al. v. Hussman Corp., et al, Cook County No. 12 L 6440 (consolidated with No. 12 L 12470), the defense stipulated to liability regarding a multi-car collision in which the defendant truck driver drove, at 57 mph, into the back of a car stopped in traffic.  That car was forced into the one in front that was being driven by the second plaintiff.  Admitting liability was probably not wholly unexpected given these facts and the fact that tests following the crash showed the truck driver had multiple narcotics in his system.

The first plaintiff, a 31 year-old married male, died at the scene.  He was survived by his pregnant wife, who was not involved in or near the scene of the accident. She suffered a miscarriage 3-4 weeks after the accident, and her doctors testified the stress could have been a cause of it. 

The second plaintiff was a 22-year old male.  He suffered back injuries including bulging discs and chronic back pain with pain radiating to both legs.

Although the defense admitted liability for the crash, it denied that the accident proximately caused the miscarriage; denied that the driver was actually impaired at the time of the accident; and contested damages.  At trial, the defendant truck driver asserted his 5th amendment rights and refused to testify.

At trial, the first plaintiff and family sought $32,830,000, and the second plaintiff sought $11,000,00 - $15,000,000.  All plaintiffs sought punitive damages.  After deliberating for less than half a day, the jury returned with a total verdict of $35,129,371.  $22,729,371.00 was awarded to the first plaintiff's estate and family, including $10,000,000 for loss of society and $10,000,000 for grief and sorrow.   $12,300,000.00 was awarded to the second plaintiff, including $4,000,000 for past and future loss of normal life; $3,000,000 for past and future pain & suffering; $1,000,000 emotional distress; but only $100,000 in punitive damages. 

Interestingly, the jury delivered a not guilty verdict on the personal injury claims of the first plaintiff's wife and on the claims by the miscarried baby's estate.

Manufacturer Wins Massive Damages for Competitor's Willful Trademark Violation.

In Black & Decker Corporation, et al. v. Positec USA Inc., et al., USDC Case No. 11 C 5426, the plaintiff, Black & Decker, sued for infringement of trademarks and trade dress regarding its DeWalt brand power tools, long known for their black and yellow color scheme.  One defendant makes a competing line of tools, and the other defendant sold them online.

The plaintiff claimed defendants' use of a similar black and yellow color scheme misled customers into thinking they were purchasing the plaintiff's established product.  Evidence presented included surveys showing certain consumers overwhelmingly would assume that the manufacturer of the tools is Black & Decker if they observed black and yellow tools in stores or the workplace.  The jury awarded plaintiff $53,960,014 for willful infringement against the defendant manufacturer.  However, it "only" awarded $114,801 against the online retailer.

Woman Breaks Her Back Using Home Gym Equipment and Stumbles at Trial.

In Amy Zehnder v. Jay M. Dutton, Cook County Case No. 13 L 2760, a female personal trainer/fitness instructor was at the home of the defendant who had a piece of home exercise equipment. One of its designed uses was as a doorway-mounted pull-up bar.  The defendant hung his device from an I-beam.  After the defendant did some pull-ups with the equipment thus placed, the plaintiff allegedly tried to do some as well.  The device fell from the beam, along with the plaintiff who fractured her spine at C7-T1 and developed neuropathy of a facial muscle.

The defendant claimed he removed the device from the I-beam before the plaintiff began using it. The plaintiff disputed this.  At trial, the defendant conceded the device was not being used as designed, but denied that that caused the fall.  He argued that the plaintiff decided to swing on the device like a trapeze and that that was what caused it and her to fall.  Apparently the jury was persuaded, delivering a not guilty verdict. 

Two Missed Cancer Diagnoses; Two Very Different Results.

In Susan Starret v. Norman Siddiqui, M.D. Cook County No. 05 L 12736, the plaintiff developed cancer of the cervix two years after a pap smear that was interpreted by the defendant cytopathologist.  She claimed the defendant failed to detect cervical dysplasia, a pre-cancerous cell abnormality that can develop into cancer.  She argued that, because her condition remained undiagnosed, she developed cervical cancer that went undiagnosed for as much as two years.  Although she has been cancer-free for more than ten years, the plaintiff alleged that she required chemotherapy and radiation and sustained severe injuries and disability from radiation damage with significant medical expenses and lost wages.

In addition to the plaintiff's current cancer-free state, the defense argued that the pap smear slide did not contain cervical dysplasia because it was growing beneath scar tissue or was located where it could not be picked up.  The defense highlighted the fact that the plaintiff had normal smears before and after the test at issue.  At trial, the plaintiff sought $21,000,000, but the jury returned a not guilty verdict.

In Juan Avila, Et al. v. Andre Balla, M.D. Cook County No 10 L 11549, the plaintiff had a biopsy of a four-inch mass on the back of his right thigh.  The defendant pathologist who examined the biopsied material did not diagnose malignancy.  The plaintiff claimed that the cancer resultingly went undetected for another year as it grew into a massive tumor extending from his knee to his buttocks and metastasized into the lungs.  At the time of trial, the plaintiff was in hospice care.  The plaintiff also alleged ongoing and severe pain from the tumor pressing on his sciatic nerve.

The plaintiff argued the defendant should have reported the presence of suspicious cells with malignancy not to be ruled out, and should have recommended more tissue be analyzed.  He further argued that timely diagnosis would have allowed a 60% chance of cure.  The defense argued there was appropriate analysis of the biopsy tissue and there was no cancer in the specimen.  The defense also argued that, even if the cancer were diagnosed at the time of the biopsy, it would have made no difference because it had already metastasized to the lungs.  This jury did not agree with the defense and returned a verdict of $10,054,000 for the plaintiffs, with $7,554,000.00 going to the plaintiff and $2,500,000 to his co-plaintiff wife.

So, two matters go to trial in Cook County, both based on allegations that a physician misinterpreted a test that thus allowed the development/progression of cancer.  One plaintiff goes home empty-handed while the other recovers huge damages.  While facts and testimony and the juries themselves obviously had differences, these cases provide a stark reminder of the risks, for both sides, in taking cases to a jury trial.

They also raise a number of questions for legal observers.  For example, one can only wonder how much the jury in the first case was swayed by the plaintiff's decade without cancer since the test.  In the second case, one can only wonder how the jury dealt with the fact that the plaintiff apparently did not take any further steps after the missed diagnosis while he supposedly lived for more than a year with such a massive tumor that allegedly caused him severe and ongoing pain.

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