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Can Civil Damages Right the Wrong of Police Misconduct?

This month our country was stunned by another jury verdict exonerating a police officer for criminal conduct in shooting an innocent black person. Police officer Jeronimo Yanez of St. Anthony Minnesota shot Philando Castile five times during a routine traffic stop in which Mr. Castile volunteered the information that he was in lawful possession of a firearm.

The video footage of the incident is heartbreaking. Mr. Castile’s girlfriend demonstrated remarkable composure, respect and even deference to the officer as her boyfriend lay dying. Even more gut wrenching is the bodycam footage released this week showing the officer literally becoming unhinged and firing shot after shot into his helpless victim. Then there’s the final excruciating image of the child in the backseat getting out of the car in the aftermath of the shooting.

It’s difficult for me to indict the legal system to which I’ve devoted my career or the jury of twelve that included two members of the black community (who incidentally voted to acquit within the first day of deliberations). I remind myself that we do not see the evidence as they see it; nor is the court of public opinion bound by the rules of evidence or the law as laid out in the jury instructions. I know members of the jury can feel cowed or hamstrung by those instructions, and yet, in my experience, the majority of the time they do their duty and follow the law. But I can’t shake the feeling that justice was not served in that criminal court in Minnesota. So, is there a small measure of solace knowing that the Castile family has a second chance at justice in civil court, the arena in which I practice? A bit, just a tiny bit.

Likely due to public pressure and outcry, the family’s quest for a civil remedy proved less arduous. Shortly after the bodycam video was released this week the City of St. Anthony announced the settlement of the Castile family’s civil case against it for $3,000,000, the limits of the City’s insurance policy. Is this mere consolation? It certainly is. There is no amount of money that can restore Philando Castile to his loved ones, or obliterate the images of that horrific incident. Nevertheless, it does represent a form of justice within the design or our imperfect legal system, something the family can hold onto that represents acknowledgement by the wrongdoer that they indeed suffered a wrong. It empowers them to use the settlement money to honor the memory of their loved one. This may be in the form of their own mental health care or grief counseling, a memorial, a scholarship fund or any number of ways that hopefully sets them on the path to healing.

If they operate as intended, in their purest form civil damages should also have a deterrent effect. No entity, or insurer, for that matter, wants to see its payment of a multi-million dollar settlement on the news crawl, or reported at the city council meeting. And as we know there have been many such settlements recently: Tamir Rice, $6 million, Freddie Gray, $6.4 million, Eric Garner, $5.9 million. Heads do roll, regulators come knocking, people lose their jobs and those in power are taken to account. When the dust settles, the eternal optimist, Officer of the Court in me hopes that better police training programs are implemented, regular and mandatory on-the-job training includes race and cultural sensitivity training and counseling, that concerted and innovative efforts are made by police departments to engage the community and restore trust.

We’ve never gotten this quite right. In the face of so much that is wrong, a firestorm of tremendous loss and injustice, civil damages can carve the way forward; and generally, is the only one that lowers the grade on that steep road toward healing for a nation and every single one of its citizens.

Product Recalls Plague Consumers

Product recalls are constantly in the news these days. Last month four car companies, Toyota, BMW, Subaru and Mazda, settled a class action covering nearly 16 million vehicles that plaintiffs claimed contained defective Takata airbags. The settlement didn’t even address the multitude of personal injury and property damage claims (those are being handled in other litigation); rather it involved the residual consumer damages such as rental car reimbursement. This highlights the many facets of consumer safety efforts and the roads to redress for consumers whether they suffer residual losses, property damage or personal injury.

In 2015 the U.S. automobile industry logged a record number of product recalls, nearly 900, affecting 51.26 million vehicles according to the national Highway Traffic Safety Administration. Some tout this as emblematic of stellar product safety efforts and tip their hats to regulators and manufacturers alike. I’m not quite as quick to reach for the brim.

While I know the system is not perfect, I would advocate for proactive measures in the manufacturing and quality control inspection process so that fewer defective products get to market resulting in less injuries and fewer lawsuits. As the airbag class action demonstrates with the settlement involving the set up of an outreach program for the recalls, product recalls do not always result in substantial remediation of the problem. Consumers may not get the proper notification and/or the hardship in undergoing the repair necessitated by the recall disincentivizes them to get the repair. So defective cars stay on the road, defective products remain in the stream of commerce, and consumers remain at risk.

As a consumer, what can you do to reduce your own risk? First, register the products that you purchase with the manufacturer. Pay attention to the notices you receive regarding the product, follow-up on any notices and follow instructions for recall or return of the product. If you see something in the news about a specific product and you suspect you own it, then check it out. If you do have the product, visit the company website or call or email them for instructions and follow them. The manufacturer should provide you with a replacement or some form of compensation, if not then ask for it.

If you are injured when using a product, i.e. a motor vehicle, tool, or even food, don’t dismiss the possibility that the product is defective. Retain the product or at least photo or video evidence of it and contact an attorney as soon as possible. Our role as attorneys is to demand better products and safety measures and be vigilant when it comes to making companies accountable for the safety of their products.

Learn more about product liability.

Supreme Court Narrows Injured Plaintiff’s Access to Sue Corporate Defendants

The Supreme Court is at it again, sacrificing the rights of plaintiffs for the benefit of the almighty corporation. In its latest turn of the knife, the nation’s highest court has limited the locations where injured personal injury victims may sue corporations. This week the Court decided BNSF Railway v. Tyrrell. The plaintiffs sued BNSF in Montana for claims that occurred outside of the state. The basis for jurisdiction in Montana was that the railroad had more than 2,000 miles of track and 2,000 employees in the state. The Montana Supreme Court found these facts to be sufficient contacts with the state to invoke jurisdiction.

The U.S. Supreme Court said “no” in an 8-1 decision. Rather, it ruled that a corporation cannot be held liable for claims that are unrelated to any activity occurring in the state. State courts may not hear claims by injured parties against companies when they are not based or headquartered in the state or the alleged injuries did not occur there.

This may sound logical at first, until you consider the global economy in which we live. We travel and every day we encounter multi-state and multi-national corporations and their products and services. So, if you’re visiting a neighboring state like Wisconsin and you’re injured using a defective product manufactured by a multinational company like Yamaha but they’re headquartered in New York, you may not be able to sue them in Illinois even though this is where you live and Yamaha does significant business in Illinois.

Under this scenario, the plaintiff is not seeking to sue Yamaha in Illinois because Illinois has laws more favorable to plaintiffs, a strategy we call “forum shopping” and something courts seek to protect against, the victim just doesn’t want to have to travel to Wisconsin to prosecute the case, such as meeting with an attorney, taking depositions and even sitting for trial.

The only dissenting Justice, Sonia Sotomayor, got it right calling it a “jurisdictional windfall” for large multistate and multinational corporations. “It is individual plaintiffs, harmed by the actions of a far-flung foreign corporation, who will bear the brunt of the majority’s approach and be forced to sue in distant jurisdictions with which they have no contacts or connection.” The ultimate irony here is that corporate defendants are the ones that are equipped for and can afford the interstate nature of litigation. Even worse, the overriding effect of this decision will be that less lawsuits are filed as personal injury victims simply can’t afford or don’t have the will to pursue their claims across state lines with such obstacles impeding their access to recovery.

Illinois Appellate Court Lets Stand Plaintiff’s More Than $1.7 Million Win in Medical Malpractice Case

It’s about time plaintiffs get a complete and unequivocal win at trial and on appeal in a medical malpractice case. In Gapinski v Gujrati the jury returned a verdict of $1.727 million for the plaintiff in a case alleging medical negligence against a physician pathologist and her employer for the failure to diagnose cancer that resulted in the patient’s death. 2017 IL App (3d) 150502 (April 24, 2017). The Illinois Appellate Court considered multiple issues on appeal including whether the trial court erred when it barred the doctor and her practice from dual representation during the trial proceedings, an issue of trial management that is wholly within the judge’s discretion (concurring Justice Carter provides an informative exposition on the topic). The Appellate Court also reviewed, the allowance of a supplemental disclosure of the plaintiff’s expert’s opinion and the scope of the testimony of several of her expert witnesses, whether the complaint was barred by the statute of limitations based on when the plaintiff discovered the patient was injured, the denial of the defendants’ motions for a new trial based on the conduct of the plaintiff’s attorney, and finally whether the jury verdict was against the manifest weight of the evidence.

This case will likely be relied on by future med-mal plaintiffs because it appears to shut down many of the typical trial maneuvers of defendants, among them, double-teaming of counsel, accusing the plaintiff of exceeding the boundaries of expert discovery disclosures (when actually exceeding the rules themselves) and trying to limit expert testimony and making statute of limitations arguments that border on the frivolous. The court even foreclosed on defendants’ efforts to paint the plaintiff’s attorney as temperamental and unscrupulous rather than a motivated advocate seeking a fair recovery for his client’s widow. Let’s be clear, some of the defenses would certainly fuel the fire of any plaintiff’s attorney.

Among the more callous of defenses presented by the doctor was that the case was barred by the statute of limitations because the plaintiff suspected cancer before her husband was told by any doctors that he had cancer. This suspicion, according to the defendants, was enough to start the clock on the malpractice claim. Both the trial court and appellate courts rejected that defense and went with the actual day documented in evidence that the doctors gave the diagnosis of cancer. Even worse, the crux of the substantive defense was that the patient was going to die anyway, so the extra two years that cancer was allowed to ravage his body unimpeded didn’t matter. The treating radiologist even testified that he would not have altered his radiation treatment that he believed he was administering to a patient with a benign tumor, if he had known it was a malignant growth. The jury didn’t buy this argument and other defense theories; the trial and appellate court weren’t having any of it either. The court’s opinion in the Gapinski case is a rebuke for all-too-common defense trial tactics meant to marginalize and demonize victims of medical malpractice.

The United Overbooking Debacle: How it Became A Success Story for Our Working Democracy

The incident with the United Airlines customer being dragged off an overbooked plane is firmly emblazoned in our minds by now. The viral video is unimpeachable evidence of the infliction of personal injury on a victim as the result of negligent and willful conduct by multiple actors, both corporate and governmental. Rarely are we privy to a set of facts that makes such a clear case for the plaintiff. Indeed, the case was so open and shut that it went from incident to settlement in a record 18 days. I have heard people comment that it was “easy money” for the plaintiff’s attorney. What we don’t hear is that the role of the victim’s attorney, in advocating on his behalf, making his case in the media, and stemming the tide of the impunity with which his character is attacked, is vital. We also don’t hear about all the times that an attorney fought long and hard and lost a case he truly believed in.

The plaintiff’s attorney’s role in our legal system is vital to the process that resulted in almost immediate systemic changes in the airline industry relative to this incident. United, and likely its competitors, have changed their rules regarding overbooking, the process of boarding passengers in an overbooking situation, and providing fair compensation to passengers who agree to forfeit their seat for another passenger or airline personnel. Dr. Dao’s harrowing tale was not for naught. While it represents the worst our institutions have to offer, the aftermath represents the best: a working constitutional democracy, in all its glory.

A citizen was victimized by corporate and governmental actors. Thanks to modern technology, the incident was recorded and exhaustively covered in the press. The citizen retained an attorney to enforce the law and obtain a remedy on his behalf. The pressure brought to bear by his counsel, the media and the public, resulted in swift compensation to the victim, an immediate change in policy at the corporate and governmental level, a Congressional investigation and the undertaking of measures to improve corporate policies and governmental intervention. As a society we’re often so consumed with criticism that we fail to see the success when our systems work as designed. In this case we should applaud all of those, attorneys and citizens alike, who stood beside the victim and effected abrupt change because in the end, we all benefit.

Renewed Cry for Tort Reform Will Hurt Victims and Not Stem Healthcare Costs

Congress is aiming to resurrect tort reform as part of its overhaul of the Affordable Care Act (ACA); and we can’t let them get away with it. See nytimes.com. Seemingly undeterred by President Trump’s failed attempts to wipe the ACA off of the books, the recent iteration of the repeal legislation drafted by House Republicans scapegoats patients who are the victims of medical malpractice and lets the real bandits in the healthcare system walk away scot-free. Like I always say, immunity from responsibility promotes irresponsibility.

Citing alleged healthcare cost savings, the bill seeks to impose new limits on lawsuits involving healthcare covered by Medicare, Medicaid or private health insurance policies subsidized by the ACA. These restrictions would apply to medical malpractice claims against doctors, hospitals or nursing homes and even some product liability claims. Anyone who tells you that this is the golden ticket to reducing healthcare costs is trying to extract black and white from gray; it’s just not that simple, and it’s simply not true.

As President of the Illinois Trial Lawyers Association, I lead the charge in opposition to one of three unsuccessful attempts to enact tort reform that was ultimately struck down by the Illinois Supreme Court in Best v. Taylor Machine Works, 179 Ill.2d 367 (1997). Tort reform advocates often point to reduction of high healthcare costs, but caps in other states have neither reduced costs, nor reduced insurance premiums.

The New York Times article references studies that suggest the cost of medical malpractice, “including damages awards, legal fees and the effects of defensive medicine, may represent 2 percent to 2.5 percent of national health spending.” By any measure, this is a small number making tort reform unlikely to significantly reduce overall healthcare costs even if the suggested measures were 100% successful.

It always astonishes me when public policymakers look to the victims, society’s most vulnerable, to recoup or cap allegedly skyrocketing costs. When are they going to focus on the real culprits, like the pharmaceutical and medical equipment companies with monstrous and now infamous profit margins (think EpiPens) or so-called not-for-profit healthcare institutions that can afford to pay their executives in the multi-millions (some reported as high as $8.5 million) or insurance companies that charge astronomical premiums for pitiful high-deductible, low-coverage policies and those CEO’s aren’t suffering either (it was just announced Centene’s Michael Neidorff’s 2016 pay topped out at $22 million).

The reality is that healthcare practitioners are humans treating humans. Mistakes are inevitable. Insurance provides compensation when these mistakes occur. Like most systems, it’s not perfect, but at least it’s fairly balanced. I would be thrilled if we eliminated medical negligence and not one more person suffered as a result of malpractice, but that is an unreasonable expectation, and if the 2.5% figure is correct, it would do little to reverse soaring healthcare costs. The way to truly cut costs is to eliminate the profit motive in institutional healthcare. The same people who advocate tort reform claim the moral high ground, but isn’t it immoral to deny healthcare or, as the draft bill proposes, limit a medical malpractice recovery, because a person is poor or jobless? It’s time to focus our public policy on efforts designed to permanently correct America’s healthcare system, increase competency and reduce incidents of negligence, a win-win-win. And no one would cap those winnings.

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