SEARCYDENNEYSCAROLABARNHART

~SHIDLEY;.

QUARTERLY REPORT TO CLIENTS AND ATTORNEYS· ~ VOl. 95, NO.3

$6.1 Million Verdict In Railroad Death

School Bus Tragedy focuses OnThe Rights Of The Disabled

2139PALM BEACH LAKES BLVD.

WEST PALM BEACHFLORIDA 33409

800-780-8607(407) 686-6300

FAX: (407) 478-0754

P.O. DRAWER 362.6WEST PALM BEACH

flORIDA 33402

ATTORNEYS AT LAW:

f. GREGORY BARNHARTLAWRENCE J. BLOCK. JR.

EARL L. DENNEY, JR.DAVID K. KELLEY, JR.

T. MICHAEL KENNEDYI<ATHERINE A. MARTINEZ

WILLIAM A. NORTONDAVID J. SALESJACK SCAROLA

CHRiSTIAN D. SEARCYJOHN A. SHIPLEY

CHRISTOPHER K. SPEEDTODD S. STEWARTKAREN E. TERRY

C. CALVIN WARRJNER III

PARALEGALS:

LAURIE J. BRIGGSDEANE LCADYJAMES E. COOKFRANK COTTON

EMILIO DIAMANTISDAVID W. GILMOREJOHN C. HOPKINS

TED E. KULESAj.PETER LOVE

EDWARD L. LUTHERMARJORIE A. MORGANWILLIAM H. SEABOLD

KATHLEEN SIMONSTEVE M. SMITH

JUDSON WHITEHORN

NOTE.: The accounts of recenttrials, verdicts and settlements

contained in this newsletter areIntended to illustrate the

experience of the firm in avariety of litigation areas. Each

case Is unique, and the results Inone case do nOI necessarilyindicate the quality or value

of any olher case.

~

n;:ft 6~

Almost four years to the date of the deathof Sergeant Paul Palank, Christian D. Searcy,F. Gregory Barnhart, and Todd S. Stewartreceived a verdict of $6. 1 million on behalfof Angelica Rose Palank and her children,Joe and Taylor. This verdict, followingfive weeks of trial, represented the Jury'scompensation award for the tragic loss thisfamily has suffered. Due to the complexissues and enormity of this case, the trialjudge trifurcated this matter, dividing it intoseparate phases for compensatory damages,punitive liability and punitive damages. Thepunitive liability and damage phases of thiscase remain to be tried.

On July 31, 1991, the AMTRAK Silver Starderailed near Lugoff, South Carolina, killingeight and injuring over seventy. Amongthose fatalities was Sergeant Paul Palank ofthe Miami Police Department. SergeantPalank was traveling to join his family onvacation in Washington, D,C.

As Angelica arrived at the train station tomeet Paul with her four year old son andnine month old daughter, she was informed

Although she was profoundly retarded andrequired near constant care, 7 year oldMegan Tucky was a beautiful, precious littlegiri in the eyes and hearts of her parents,Tom and lisa Tucky of Ft. lauderdale. How­ever, in 1992, Megan was terminally braininjured and subsequently died due to aseizure and asphyxiation while en routehome from school on a Broward Countyschool bus for disabled children, and theTucky's lives were forever changed.

Megan died because no one, including thebus attendant who was supposed to monitorthe children, saw Megan's face turn blue, her

of the derailment and was prOVided an 800number for more information. little JoePalank, who had been planning a ·specialday" with his Dad, wanted to know what thelady in the station meant by ·derailment:After several frantic phone calls, she wascontacted by a South Carolina coroner, whorelayed the tragic news as she stood in thetrain station. Continued on Page Ten.

TUCKYvs.BROWARD COUNTY

SCHOOL BOARD

body stiffen, or her legs jerk so violently thatone of her shoes came off. Moreover, whenthe bus arrived at Megan's stop, the attendantand the driver handed her over to herbabysitter. limp and barely breathing, andthen drove off, not even using the emergencyradio on board the bus. Megan never re­gained consciousness and died the next day.

The Tucky's filed suit against the BrowardCounty School Board for wrongful death andfor violating Megan's rights as a disabledperson. On the eighth day of trial in Ft. laud­erdale, the case was settled for $700,00U,Continued on Page Eight.

PAGE ONE

I The Meeting Corner.

Lance J.Block

Lance ]. Block,a partner at Searcy Denney ScarolaBarnhart &. Shipley, P.A., has beenwith the firm for ten years. Beforejoining the firm, he was an Assis­tant Public Defender, 11th Circuit,Dade County, Florida. Mr. Block'strial practice has been devotedexclusively to representing con­sumers and victims of personalinjury and wrongful death.

Mr. Block graduated cum laudefrom Florida State University in1979 and received his JD from thesame university in 1983. He at­tended Oxford University in Eng­land to augment his legal studies.Many of his cases have involvedthe representation of injured orabused children. His cases haveincluded large compensatory dam­age verdicts to parents due to thewrongful death of a child, as wellas important rulings concerningthe rights of parents to recoverdamages for injuries to theirchildren.

His professional and communityinvolvement includes membershipin the National Association ofCounsel for Children and theAmerican Professional Society onthe Abuse of Children. He is VicePresident and a member of theBoard of Directors for the PalmBeach County Association forRetarded Citizens and a member ofthe State Board of Directors for theAdvocacy Center Foundation forPersons with Disabilities. Mr. Blockis a member of the Executive Com­mittee and Board of Directors forthe Academy of Florida TrialLawyers. He was the recipient ofthe Academy's 1994 'Most Valu­able Player' award and the 1995"Staff Appreciation Award: •

PAGE TWO

frankCotton

Frank Cotton isa paralegal/ investigator withSearcy Denney Scarola Barnhartand Shipley, P.A., joining the firm in1982. He works primarily withLance Block and brings a greatdeal of experience to his position.He assists with case investigation,evaluation, negotiation of settle­ments and trial preparation.

Mr. Cotton's claim handling ex­perience began in 1956, followinggraduation from Florida SouthernCollege. He was the District ClaimManager for Allstate InsuranceCompany, in Birmingham, Alabamaand Pensacola, Florida, as well asthe Assistant Vice-President ofClaims for Carolina Casualty Insur­ance Company in Jacksonville,Florida.

His knowledge of the insurance in­dustry is a considerable asset in allareas of personal injury claims, in­cluding automobile liability, pro­duct liability and medical malprac­tice claim handling. Mr. Cotton'sgentle humor and southern charmare often noted and appreciated byclients and co-workers.•

"We can't give upspecialized training

in the highly complexstructure of la w today,but we do het ve to return

to a feeling of what the wholelegal system stands for - ­how It relates to our ownconception of the person

as a human being. ..

- - Paul A. Freund. professorHarvard Law School

Breast ImplantUpdateThe Breast Implant Claims Officehas reported that more than440,000 women filed claims withthe Global Settlement. After ex­tensive evaluations of the claims,attempts to restructure the originalsettlement, and attempts to re­negotiate with the manufacturersfor more funds, it was determinedthat benefits could only be paid ifthey were reduced to approxi­mately 5% of the amounts origi­nally designated under theSettlement.

On October 7, 1995, Judge Pointer,who oversees this litigation, issuedan order declaring that womenwould be given the option of with­drawing from the Global Settle­ment and pursuing individualclaims against the manufacturersof breast implants. Women whoare a part of the Settlement will bemailed information concerningtheir rights under this new order,but no opt-outs will be acceptedby the court until December 1,1995.

Three of the manufacturers, BristolMyers, Baxter, and 3M, have nego­tiated a proposed settlement withwomen who received their im­plants. This settlement has notbeen approved by the PlaintiffsSteering Committee (lawyers atthe national level representingthose breast implant recipientswho filed with the Global Settle­ment). It will be submitted directlyto the women in the Settlement fortheir consideration.•

Medical Records: Getting Yours

Todd S. Stewart

PAGE THREE

~ ~ Cicero.c, 50 Be

"The laws put the safetyofall above

the safety of one.•

Todd S. Stewart, an associate withthe firm, has been devoting alarge amount of his practice dur­ing the past three years to litiga­tion involving railroads. He hasgained substantial knowledgeabout the daily operation of rail­roads during this time. Not onlyhas this experience trained him inthe proper method of safety andinspections of the rails andswitches, but also the mainte­nance and repair of a railroad'ssignaling systems. He has inves­tigated issues such as: properMaintenance of Way inspections,appropriate policies and proce­dures regarding safety inspec­tions, appropriateness of differenttypes of switching mechanisms,the effect track variance has upontrain movement, operation of sidebearings, and derailment recon­struction. In the Palank v. CSXcase, Mr. Stewart was pivotal ininvestigating and proving themechanism of the accident, aswell as debunking other causesfor this accident. He is the NewLawyer Division's liaison to theAssociation of Trial Lawyers ofAmerica's Railroad LitigationSection. Mr. Stewart is availableto answer your questions regard­ing railroad litigation, as well asother areas of trial practice.•

=

(Reprinted from theSeptember/October 1995 issueof Public Citizen Magazinewith permission.)

Thomas Jefferson's axiom that in­formation is power now applies toaccess that patients have to theirmedical records. Since Public Cit­izen published its original HealthResearch Group study--MedicalRecords: Getting Yours--in 1978,Public Citizen has produced moreInformation for consumers onhealth care practioners, includinghospital mortality rates, c-sectionrates, and success rates for cer­tain operations.

Medical Records: Getting Yours,1995 Edition updates the 1992edition and reflects specificchanges in individual states' lawsover the past three years. For thefirst time, half of all states nowhave laws granting patients ac­cess to their records held byhospitals and doctors. Arizona,Missouri, and Nevada recentlyexpanded laws or passed newlaws or regulations requiring pa­tient access to medical records.Laws still vary greatly, however,from state to state.

our CIA or FBI files than to get ourmedical records,- observes authorDr. Sidney Wolfe, director of Pub­lic Citizen's Health ResearchGroup, in the new book's preface."Even though Americans willspend approximately $1 trillionthis year on health care, therecords of why we went to thedoctors or hospitals, what theyfound wrong (or right) with us,what diagnoses they made, whatdrugs they prescribed or surgerythey performed, and whether weimproved as a result are generallykept from us:

This new 74 page book is a con-sumer's guide to obtaining andunderstanding medical records. Ittells why consumers should havea copy of their medical records,how to request a copy of medicalrecords, how to understand whatis in their records, why some doc­tors and medical organizationsmay refuse to release patients'records, the state laws that mayassist consumers in gettingaccess to their records, and therelevant federal statutes andregulations.

Copies of Medical Records:Getting Yours, 1995 Edition,are available for SIO from

"Thanks to the Federal Freedom of Public Citizen Publications,Information Act, it is much easier 1600 20th Street, NW,for most of us to obtain copies of Washington, D.C. 20009.•

~-~

~; ~c!'5?­C?=~~_

Decislons... Decislons... Decislons...

REPORTED "DECISIONS"OMITTING CUENTS'

AND/ORDEFENDANTS' NAMESARE AS A RESULT OF

REQUESTS FORANONYMITY.

FLANAGAN vs,ST. MARY'SHOSPITAL

Christina Flanagan, a 39 year oldmother of three, became seriouslyill with meningitis. After receiv­ing specialized neurological careat Miami's Jackson Memorial Hos­pital, she was transferred to St.Mary's Hospital in West PalmBeach for rehabilitation treatment.She was improving, able to speak,following commands and trackingwith her eyes. Medical expertspredicted she would have im­proved to where she cou Id havecarried on the activities of dailyliving without help. While shewould have had deficits resultingfrom her bout with meningitis, shecould have functioned as a wifeand mother, enjoying her liferelatively independently.

At St. Mary's, Mrs. Flanagan'smedical condition deteriorated,necessitating a transfer to the in­tensive care unit. The nursingstaff in the leu failed to properlymonitor her condition. Her respi­rations and heart rate dropped.Her respiratory line had fallen out,setting off an alarm. The nursewas on break and failed to hearthe alarm or read the telemetry atthe nurse's station as her respira­tory status deteriorated. Mrs.Flanagan arrested and was with­out oxygen for six to nine min­utes until finally being resusci­tated. She suffered severe braindamage and will remain in acoma for the rest of her life,forever dependent uponattendant care.

PAGE FOUR

St. Mary's Hospital admitted theirliability under a new medical mal­practice statute which limits non­economic damages (e.g. pain andsuffering) to $250,000. After abitterly fought discovery and in­vestigative process conductedby F. Gregory Barnhart andDavid j. Sales, a settlement wasreached for $3,085,000. The vastmajority of the settlement amountwas for long term care andlost wages.•

SUSAN WELLS vs.FRANK FlUBERTO, M.D.

Susan Wells, a 5 1 year old highschool teacher, broke her nosewhile vacationing in Canada.Upon her return home, she soughtout treatment from Dr. Filiberto,the otolaryngologist (ENT) whohad provided care for her severalyears earlier for polyps on her lar­ynx. Dr. Filiberto told her sheneeded rhinoplasty and septo­plasty to repair the damage to hernose.

During surgery, in addition to thescheduled procedures to whichshe had consented, the doctorperformed a turbinectomy and re­moved the turbinates from Ms.Wells' nose. It was only after thesurgery had been performed andhealing was not progressing asexpected that the doctor dis­closed that th is additional proce­dure had been performed.

Following the surgery, she devel­oped chronic nasal infections. Af­ter antibiotics failed to work, shehad treatments ranging from de­bridement in her nose to hy­perbaric chamber treatment.Ms. Wells continues to suffer fromsevere rhinisitis caused by a lackof turbinates. She has difficultywith atmospheric pressure (i.e.flying) and her sense of tasteand smell have been affected.Katherine Martinez and LanceBlock negotiated a settlement of$150,000 at mediation.•

JACKSONvs. PATEL

Burton Jackson was married toEleanor jackson for 44 of his 67years. They raised children and weresurrounded by extended family in theTampa area He was in fine health, buthis wife had been diagnosed and sur­gically treated for very advanced can­cer. Mr. jackson was admitted to aTampa area hospital for abdominalpain and cramping. He was assignedto the on-eall surgeon who chose notto see him for almost eighteen hours.Eventually the surgeon saw Mr. jack­son. His pain picture had changed, re­sulting in a diagnosis of diverticulitis.Unfortunately, the surgeon remainedcommitted to his diagnosis for sixdays. On the sixth day, a cat-scan re­vealed an abdominal mass. Tragically,surgery was not performed for anothereighteen hours. During surgery a rup­tured appendix was discovered. Mr.jackson became septic and remainedcritically ill for almost a month beforehe passed away. Cal Warriner settledthe case on the eve of trial for$505,000 after a long debate overMrs. Jacl<son's life expectancy.•

PI W QUARTERLY REPORT TO CLJENTS AND ATTORNEYS - VOL. 95, NO.3

ROWEvs.XYZ PHARMACY

janie Rowe was a twin born at 36weeks gestation. She had severerespiratory problems and wastransferred to a higher level hos­pital and then ultimately to a Chil­drens' Hospital in South Florida.Janie required a protracted courseof mechanical ventilation, havingdeveloped pulmonary emphy­sema and multiple pneumotho­races requiring chest tubes. Sincesome of her medication, includingLasix, was potentially toxic tohearing (ototoxic) a special testwas performed on this infantwhich determined that her hear­ing was normal.

Upon discharge, her physicianprescribed "oral Lasix, 4 mg. (0.4Cc.) a day". Janie's parents hadthis prescription filled at a locaipharmacy and mistakenly, thepharmacy's instructions on the la­bei indicated "take 4 cc. (4 mildaily". This calculates to 10 timesthe actuai prescribed dosage.janie's mother followed the pre­scription to the letter. In fact, shephoned the pharmacy when sheobserved difficulty in giving hersmall child such a large volumeof medication. The pharmacy'spersonnel simply responded "putit in her formula'.

Subsequent to this massive over­dose, it was discovered janie'shearing was impaired and herhearing was tested again. Theseresults were very abnormal andindicated permanent and pro­found hearing loss. Janie contin­ues to this day with absolutely nohearing as a result of this misfill­ing of the prescription. The eco­nomic damages. the emotionaldamages, and janie's future lossesdue to her total hearing loss weresubstantial.

Earl Denney and Chris Searcy re­solved this case for the total sumof $1.8 million. The settlementproVided for very substantialsums initially to pay the substan­tial medical costs invoived and

provide for janie's immediateneeds. It included a structuredsettlement involving periodicpayments which would protectJanie and provide for her lifetimesecurity. This settlement will as­sure Janie's ability as a totally im­paired individual to be secure in aworld not always a friendly placefor the hearing impaired.•

THOMASvsKIDD ANDHUMANA

MEDICAL PLAN. INC.

Howard Thomas, a 69 year old di­abetic, had a small ulcer on theside of his right fourth toe. As aHumana Gold Plus Pian patient hewent for treatment to RichardKidd, D.O. at a primary care cen­ter. For three months, Dr. Kiddtreated the problem with periodicoffice examinations and antibi­otics. No cultures and sensitivitystudies were performed, no con­sults were ordered, and the pa­tient was never evaluated for os­teomyelitis or a deep wound in­fection. Mr. Thomas' conditiongradually worsened. He was ad­mitted to the hospital with celluli­tis, probable osteomyelitis, andgangrene in his right foot. Heunderwent the surgical amputa­tion of two of his toes, then hisright foot and finally his rightlower extremity below the knee.T. Michael Kennedy settled thecase for a total of $550,000. Hu­mana settled one week beforetrial for $40,000. On the eve oftrial, Dr. Kidd and his P.A. settledfor their policy limits of $500,000plus an additional $10,000 abovethe policy limits.•

SEARCYDENNEYSCAROLABARNHART

~SHIPLEV..

JOHN DOE vsPRUDENTIAL SECURITIES

In connection with the largest in­cident of securities fraud in WallStreet history, defrauded investorsare now pursuing claims of un­suitability and misrepresentationagainst Prudential Securities, Inc.for its sale of limited partnershipinvestments during the 1980's.After reaching an accord withfederal and state regulators, Pru­dential agreed to set up a restitu­tion fund for defrauded investorswho had limited partnershiplosses stemming from Prudential'smisconduct.

In the summer of 1994, john Doe,a 77 year oid retiree from Hills­boro Beach, Florida, filed a claimwith the restitution fund in con­nection with limited partnershipinvestments sold to him by Pru­dentiai shortly after the death ofhis wife. Mr. Doe's limited part­nership investments totaied closeto $600,000. Despite determin­ing Mr. Doe's net ioss, excludinginterest, exceeded $47,000, Pru­dential rejected his claim andmade him no offer of settlement.

Mr. Doe then retained William A.Norton and co-counsel Robert H.Rex of Dickenson Murdoch Rexand Sloan who demanded an ar­bitration hearing on his behalf.Rex and Norton have handledhundreds of investor claimsagainst Prudential. Following aone-day hearing, at which Nortonand Rex presented evidenceregarding the unsuitability of theinvestments and the misrepresen­tations made to Mr. Doe, thearbitrator awarded him the sumof $136,904.• (Decisions..,Continued on Page Six.)

PAGE FIVE.

Declslons...Declslons...(Continued from Page Five.)

HARVEYvs.MillAN, WESTLEY

AND HUMANA HOSPITAL

George Harvey was at work atWinn-Dixie in the early morninghours of December 17. 1991when he fainted. He was rushedto the emergency room of the for­mer Humana Hospital in WestPalm Beach. CT scans showedfresh blood was leaking in Mr.Harvey's brain. The radiologistwho reviewed the CT films. KurtWestley. M.D.• failed to detect thepresence of blood. Mr. Harveywas admitted to the hospital un­der the care of a neurologist.Adolfo Millan. M.D.

Mr. Harvey remained in the hos­pital for six days. during whichtime he repeatedly showed signsof suffering from a cerebralaneurysm. During this time. Dr.Millan and the hospital ignoredpossible neurologic causes for Mr.Harvey's condition. Dr. Millan in­sisted that he was suffering fromsome kind of heart condition. de­spite repeated assurances fromcardiologists to the contrary. OnDecember 23. an infectious dis­ease specialist ordered a spinaltap to rule out meningitis. Mr.Harvey's spinal fluid containedblood. which allowed doctors tofinally diagnose his condition. Bythat time. Mr. Harvey had suf­fered at least one additional rup­ture of his aneurysm and hiscondition was very grave. OnDecember 23. a neurosurgeon or­dered an immediate transfer ofMr. Harvey to Good SamaritanHospital. where he planned to dosurgery to repair the aneurysmthe next morning. During theearly morning hours of ChristmasEve. Mr. Harvey died.

Represented by David Sales andJack Scarola. Mr. Harvey's widow.Darleen. and her two youngdaughters. sued the former Hu­mana Hospital. Dr. Westley andDr. Millan. The case recently set-

PAGE SIX

tied for a total of $2.200.000. in­cluding $500.000 from Dr. Millan(his insurance poi icy limits).$925.000 from Dr. Westley (onlimits of $ I .000.000) and$775.000 from the hospital. •

STICKS AND STONES ...

Dr. Alastair McAlees. Presidentof the Palm Beach County Chiro­practic Society. paid a $25.000judgment for defaming his localcolleague. Richard E. Stopek. D.C..in a case prosecuted by DavidSales and Jack Scarola on behalfof Dr. Stopek. Dr. MeAlees wascharged with having made slan­derous statements about Dr.Stopel< to an executive with Inte­gon Insurance Company.

Although the apparent effort byDr. McAlees to divert businessaway from Dr. Stopek was unsuc­cessful. Dr. Stopek decided to pur­sue the case when Dr. McAleesrejected Informal pre-suit effortsto resolve the claim against himand instead republished thedefamatory remarks by printing asettlement demand letter in theChiropractic Society's newsletter.

The ultimate beneficiaries of Dr.Stopek's commitment to protecthis professional reputation werelocal charities to whom proceedsfrom the litigation were donated.•

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KATHERINE A. MARTINEZ hasbeen appoi nted to the FifteenthCircuit Judicial NominatingCommittee by Governor Chiles.She will serve a four-year term.

(;RE(; BARNHART enjoys publicspeaking. His speeches are wellreceived by legislators. lobbyists.consumer groups and other trialattorneys as his "after speechratings' attest. Recently hespoke at:

The Annual Auto Negligence andInsurance Seminar (Miami). Topic:'What we have learned sinceFabre vs. Marin.'

Academy of Florida Trial Lawyers'Proof of Damages' Seminar (Ft.Lauderdale and Tampa). Topic:'Arguing Non-EconomicDamages: The Art of Persuasionin Explaining Pain.".

I,

til W QUARTERLY REPORT TO CLIENTS AND ATIORNEYS - VOL. 95, NO.3

Jury System Stili Works Bestfor America

- - June L. Tapp.American

psychologist

solution to their Judicial prob­lems? It was the abuses of onesuch panel, the Star Chamber, thatled to England's establishment ofa jury system a few centuries ago.Do we want to return to suchabuses?

The jury system is a positive, de­cisive process for influencing ourgovernment and community. Jus­tice by the people, for the people,is a heritage all Americans shouldproudly share. Please don't tram­ple on it. -- Larry S. Stewart, Esq.

"Publicparticipation

- - as In the Jury trial - ­Is the cornerstone

In theadministration

of Justiceand vital

to oursystem of law,"

DEAR LARRY STEWART: Sorry I'trampled: You are right whenyou say the O.J. Simpson case ishardly typical of a normal trial.Your letter is a splendid explana­tion of why the Jury system is vi­tal to a democratic society.Thanks for making the point..

SEARCYDENNEYSCAROLABARNHART

~SHIPLEY..

(This letter was written in July,1995 to the 'Ann Landers' syndi­cated column -- prior to the con­clusion of the o.J. Simpson Trialand while Larry Stewart was thePresident of the Association ofTrial Lawyers of America)

DEAR ANN LANDERS: I urge youto re-examine the sympathy yourecently expressed for abandon­ing the time-tested American jurysystem. Unfortunately, manyviews have been shaped by whatis happening in the O.J. Simpsoncase, which is hardly typical of anormal trial in the courtrooms ofAmerica.

The truth Is that Americans bene­fit from the countless jury verdictsthat have led individuals and cor­porations to improve their prod­ucts, services and behavior. Be­cause of the jury system,flammable pajamas no longer killinfants. Life-threatening asbestosis no longer used in schools,homes and work places. Contra­ceptive devices that caused steril­ity have been recalled. Trucksnow have alarms that beep whenthey back up. Farm machines thatamputated limbs now have pro­tective guards installed.

Countless improvements aimed atpreventing injuries and savinglives might never have occurredwithout a trial by jury.

If replacing citizens with a panelof judges, as you suggested, issuch a sound idea, why are coun­tries that have this system study­ing the American jury system as a

• -800-780-8607

SEARCYDENNEYSCAROLABARNHART

~SHIPLE'Y.A

~

EN ESPANOl, 1-800-220-7006

NIGHT &. WEEKENDAVAILABILITY

PERSONAL INIURYAUTOMOBILE ACCIDENTS

PRODUCTS LIABILITYMEDICAL MALPRACTICE

WRONGfUL DEATHAIRLlNl &. RAilROAD DISASTERS

COMMERCIAL LITIGATION

LANCE J, BLOCK was awardedthe t 995 'Staff AppreciationAward' at the Academy of FloridaTrial Lawyers annual conventionin October, 1995.•

TODD S, STEWART has beenelected Secretary of the YoungLawyers Section of the Academyof Florida Trial Lawyers.•

PAGE SEVEN

Civil Suits Awards A PittanceCompared To CEO Salaries AndCorporate Profits, Study ShowsHealth care and insurance com­panies seeking to limit the life­time cap to $250,000 on injuryawards for pain and suffering arerun by CEOs, some of whoseearnings even exceed $250,000in just two weeks, Ralph Nader re­cently pcinted out in a newstudy.

The study addresses two bills be­fore the Senate, 5.565, whichseeks to limit punitive awards indefective product suits, and 5.454which seeks to cap pain and suf­fering awards in medical malprac­tice suits. The study is based onPublic Citizen's Congress Watch'sresearch which examined theprofits and salaries of CEOs of thelargest companies that spent mil­lions to pass legislation restrictingconsumers' access to civil justiceand which have the most to gainby reducing their liability for de­fective products and medicalmalpractice.

For example, Maurice Greenberg,the CEO of American Interna­tional Group Insurance Company,a longtime supporter of limitingcivil liability, made $1 2,080,000in 1994, or $464,615 every twoweeks. Many other CEO's of thecorporations examined in thestudy were paid more than$250,000 every two weeks of 1994.

How can a corporate CEO justify a$250,000 lifetime cap on pain

PAGE EIGHT

and suffering when they aremaking over $250,000 every twoweeks?" Nader asked. He added,"These CEOs believe that twoweeks of their time is worth thesame amount of money as alifetime of pain and suffering."

According to the ConsumerFederation of America, the entirecost in 1994 of all productliability settlements and verdicts,insured and uninsured, totalled$4. I billion. In 1994 Ford MotorCompany had net profits of $5.3billion and General Electric hadnet profits of $5.9 billion.

"Obviously, product liabilitylawsuits can not be hurting oureconomy or our competitivenessif single corporations make mOTein profit that it costs to transferthe product liability payouts ofthe entire nation; Nader said."Members of the Senate shouldask themselves why they areeven considering the legislationto deform the product liabilitysystem, when no evidence existsthat the system is in need ofrepair. 5.565 is the mostunnecessary and cruel legislationto be considered by Congress sofar this year." •

(Reprinted from the SeptemberlOctober 1995 issue ofPublic Citizen Magazinewith permission)

lucky(Continued from Page One)

more than three times thesovereign immunity cap applica­ble in suits against governmentalagencies and bypassing the ardu­ous Legislative claims process.

Seemingly healthy at birth,Megan began regressing at theage of one year and soon lost allof her learned skills. After nearlytwo years of tests by various doc­tors, she was diagnosed withRett's Syndrome, a rare disorderthat would leave her completelydependent, profoundly retarded,autistic, and unable to talk.Megan had to be fed and wore di­apers, and although she walkedwith difficulty, girls with Rett'ssyndrome usually are in wheel­chairs by their teens or twenties.Many Rett's girls have seizuredisorders, breathing abnormalitiesand other medical complications.Megan Tucky had a seizure disor­der that was difficult to control.Life expectancy for girls with Rettsyndrome is usually in their twen­ties or thirties. Megan's neurolo­gist testified that he saw no rea­son for Megan not to live into hertwenties or thirties.

Megan rode a bus to a school fordevelopmentally disabled chil­dren. Because she and other chil­dren on board the bus weredisabled and medically fragile,there was an attendant on boardto assist the driver. The atten­dant's responsibilities were tohelp the children on and off thebus, and to sit in the rear of thebus and observe the children dur­ing the course of the transport.

On the afternoon of November18, 1992, Megan was assisted onthe bus by a teacher's aide, whoincorrectly fastened her harnessrestraint device. The manufac­turer of the restraint system testi­fied at trial that because of the in­correct fastening of the harness,Megan could have slid down­ward. or submarined in her seat,and that under the wrong circum­Continued on Page Nine.

(Continued from Page Eight.)stances, either the restraint or thechild's posture could cause posi­tional asphyxia or otherwise ob­struct her airway.

In addition to the incorrect har­ness securement, the attendantfailed to sit In the rear of the bus,as schooi board poiicy required.Instead, she sat in the front seatnext to the driver during the en­tire transport. Megan was locatedsome distance behind her on theother side of the bus. The atten­dant testified that she only sawMegan on two occasions prior toarriving at Megan's bus stop. Onboth occasions, she couid not seeMegan's face because Meganwas slumped forward with herchin in her chest. The attendantsaid that she thought Megan wassleeping.

When the bus arrived at Megan'sstop, approximately fifty minutesafter it departed the school, theattendant got up to arouseMegan. When she lifted Megan'shead back, she saw that Meganwas "blue around the mouth". Theattendant called the bus driverback to Megan, who unfastenedher, picked her up and took her tothe babysitter who was waitingby the door of the bus. When thebabysitter saw Megan, she in­quired as to what happened andhow long Megan had been in thatcondition. The driver simplysaid, "She must have had aseizure." The babysitter thenrushed Megan to the house whilethe bus left the scene withouteven making a call for assistanceon the emergency radio.

When the babysitter got Megan inthe house, she detected no pulseand Megan did not appear to bebreathing. The babysitter imme­diately called 91 1, who respond­ed promptly and resuscitative ef­forts were successful. Meganwas rushed to the hospital andplaced on life support, but testsindicated that she was virtuallybrain dead. The next day she wastaken off a breathing machine,and she died soon thereafter.

The defense argued that there arenumerous documented cases ofunexplained sudden death in theRett Syndrome population, andthat Megan died of such un­known causes. The coroner de­termined the death to be from"natural causes", although he of­fered no explanation as to themechanism of her death. In addi­tion, the defense maintained thatMegan often fell asleep on thebus during the afternoon trans­port, and that the attendant actedreasonably in assuming thatMegan was simply napping onthe ride home.

Megan rucky at 8 years old.

The testimony at trial revealedthat the Tucky's were totallydevoted to Megan. Like mostparents with a handicapped child,the Tucky's initially grieved overtheir child's disability, as well astheir own lost expectations.However, they soon learnedto appreciate the challenges andresponsibilities of raising an ex­ceptional child, and viewed therearing of Megan to be a speciaiopportunity that few parents areblessed with.

Because Megan's death was sud­den, unexpected, and due to ne­glect, experts testified that theTucky's grief has been especiallyintense and difficult to resolve.'Tom and Lisa invested so muchof themselves into loving and car­ing for Megan that it is no wonderwhy ielling go has been sopainfui," said Lance Block, whotried the case with Chris Speed.

Although a larger verdict was ex­pected from the jury, the Tuckys

were told by School Board attor­neys that the decision would beappealed and a fight in the Legis­lature over any amount above the$200,000 cap would then follow.Tom Tucky said, "At mediation,the School Board only offered$49,000. It was ridiculous. Then,just before trial, they offered the$200,000 limit, which stillseemed unfair. We only wantedto be treated fairly, and aftereight days of making them facethe truth in a courtroom, we feltthe $700,000 offer was reasonable"

The Tucky trial generated muchpublicity, including televisionnews stories and editorials, aswell as feature articles in theMiami Heraid, Ft. Lauderdale Sun­Sentinel, the South Florida Busi­ness Review, two school trans­portation publications, and an As­sociated Press wire story that ranin newspapers statewide. "Webrought this case primarily for theother disabled children ridingthose buses everyday," said TomTucky. "Hopefully, Megan's casewill be the last."

In preparing the case, Lance Blockfound the Tucky trial to be"particulary challenging" becauseof Megan's profound disabilityand shortened life expectancy."What we had to do was show thejury that despite Megan's disabili­ties, her life had great meaning toher parents," Block said. "We hadto overcome the prejudices andbeliefs that some people havethat parenting a disabled child isjust a burden." But conveying thatto a jury can be difficult becausethe lawyer cannot prove substan­tial economic losses or any otherreason the parents should becompensated besides their men­tal pain and suffering. "Childrenlike Megan are called special kidsbecause they need special care,and Tom and Lisa Tucky learneda lot about themselves by devot­ing so much love, time and en­ergy to Megan," Block said."That's why the Tucky case wasso important, and why it was sucha privilege to represent them." II!

PAGE NINE

at' kwJ QUARTERLY REPORT TO CLIENTS AND ATIORNEYS - VOL. 95, NO.3

Palank vs CSX...Continued from Page One.

The investigation of this derail­ment quickly focused on a fauityswitching mechanism on the CSXrails. As the investigation contin­ued, the appearance of negiectand decay on this particular areaof track became quite evident.Several railroad experts have tes­tified that the switch in questionhad been left in a defective condi­tion for at least seven months.Further, the Federal Government'sinvestigation discovered a retain­ing pin, which shouid have beenin place at the time of the acci­dent, was instead buried fiveinches deep in hard packed mudunder the switch stand.

The evidence revealed that thisswitch had been operated onnumerous occasions while in itsdefective condition and couldeasily have been visualized andrepaired. Despite the railroad'sguidelines which provide for bi­weekly inspections, as well asadditional monthiy and annuaiinspections, not one railroad em­pioyee observed this obviousdefective condition. Furthermore,discovery revealed that CSX hadsystematicaliy cut back on itssafety forces since deregulation inthe early 1980's to haif their orig­inal size. This required railroadsafety inspectors to be responsi­bie for more miles of raiis thanthey could reasonabiy inspect.While even CSX admits an in­spector could cover no morethan 20 miles per day, these in­spectors were routinely caliedupon to inspect 50 to 100 milesper day due to the pressure ofthese corporate cutbacks.

Many of the inspectors couid notpossibly perform an adequate in­spection under these time con­straints. Reports showing areastoo large to safeiy inspect werecontinuously ignored as were theinspectors' complaints to supervi­sors. Several railroad empioyeeshave come forward and testified

PAGE TEN

that the managing agent for theraiiroad in charge of safety in thisarea had also falsified govern­ment safety inspection reports.The report faisification continuedeven after this derailment. At theend of each month, this employeewould determine the amount oftrack which was federaliy man­dated to be inspected, but re­mained uninspected, and wouldsimply fill out reports to make upthe difference. Outrageouslyenough, this employee, while pre­tending to be on the track, wouidcontact the dispatcher to receiveclearance to inspect areas oftracle He would remain in his of­fice for the aliotted time it wouldtake to inspect that area of tracieWhen that time expired, he wouldthen phone the dispatcher withthe false report that he had in­spected the area of track andwished for ciearance for still an­other area of tracie After which,this employee would fraudulentlysubmit inspection reports forthese areas.

After three and a half years ofhard fought litigation, the railroadadmitted liability for compen­satory damages and asked for

SEARCYDENNEYSCAROLABARNHART

~SHIPLEY..

the case to be trifurcated. Thetrial judge granted this requestand Phase I went to triai on theamount of compensatory dam­ages. After almost two days ofdeliberation, the jury returnedtheir verdict of $6.1 million, oneof the largest in the State of Flori­da for a single wrongful death.

The Paiank family continues toseek justice through a punitivedamage verdict. But their uitimategoal is the reform of the railroadindustry. The evidence has re­vealed that CSX has saved over$3 billion as a resuit of cuttingtheir safety forces in half sincederegulation. Allowed to makedecisions with little regard for in­dividuals such as Paul, corpora­tions will continue to tear apartthe core of this nation --- its fami­lies --- as this one did when itkilled eight individuals and in­jured many others. A Fort Laud­erdale jury wiil be called upon torender punishment to this corpo­ration and these individuals fortheir reckless behavior and outra­geous conduct. The Palank familyawaits a trial date for Phase II(punitive iiability) and Phase III(punitive damages).•

flORIDA KICK Off CLASSICBenefitting the Advocacy Center Foundation forPersons with Disabilities

Taking ...

Time toCare

munity who have special needs.The proceeds raised from theevent were contributed to the Ad­vocacy Center Foundation for Per­sons with Disabilities, a non-profitcharitable foundation dedicatedto protecting and advocating forthe rights of persons withdisabilities.

Our firm was proud to be a majorcorporate sponsor of this inaugu­ral event, and we look forward tocontinuing our support for the1996 Advocacy Center KickoffBanquet, which will be held onAugust 2, 1996.

If you would likemore Information on theAdvocacy Center foundationfor Persons With Disabilitiesand the important servicesit provides, call:1-800-342-0823or 904-488-9071.•

FSU Quarterback andHeisman Trophy candidateDanny Kanell visiting withan ARC youngster.

On July 28, 1995, thirty collegefootball stars and their coachesfrom Florida State, Florida, Miamiand Central Florida gathered inPalm Beach County to spend theday with disabled children andadults. That evening they raisedfunds for the Advocacy CenterFoundation for Persons withDisabilities.

The day began with the footballplayers visiting various localprograms for persons with disabil­ities. The players tossed footballs,danced and visited with programparticipants at Tri-County Tee inStuart, the Association for Re­tarded Citizens of Palm BeachCounty, the Mental Health Asso­ciation's "Peer Center", Easter Sealsof Palm Beach and the PalmBeach Habilitation Center.

That evening, the players andcoaches attended a reception andbanquet dinner with more than250 guests. There was a touchingmultimedia presentation of theday's events as well as replayedfootball highlights from last year'sseason. The guests heard insightsand predictions from the coacheson this year's college footballseason.

It was truly a rewarding day andevening for the players, the dis­abled participants, and the atten­dees of the banquet. Everyonegained a new understanding andsensitiVity for those in our com-

This holiday seasonwe acknowledge

some of the special friendswe have worked with

over the past yearwhose caring hasenriched the lives

of 50 many:

ADOPT A fAMILY. ADVOCACY CENTER FOUN­DATION FOR PERSONS WITH DISABILITIES •ALZHEIMER'S ASSOCIATION. AMERICAN CAN­CER SOCIETY. AMERICAN HEART ASSOCIATION• AMERICAN LUNG ASSOCIATION • AMERICANRED CROSS. AREA AGENCY ON AGING. ASSO­CIATION fOR RETARDED CITIZENS. AUTISM so­CIETY • BIG BROTHERS/BIG SISTERS. BLOWINGROCKS !'RESERVE. BOCA RATON HISTORiC so­CIETY. BOYS &. GIRLS CLUBS • CENTER FOR CHil­DREN IN CRISIS. CENTER FOR FAMILY SERVICES.CHILD CARE RESOURCE &. REFERRAL. CHILDREN'SHOME SOCIETY. CITIES IN SCHOOLS. COMMU­NITY faUNDAnON FOR PALM BEACH AND MAR­TIN COUNTIES • COMPREHENSIVE AIDS PRO­GRAM. CONNOR MORAN CHILDREN'S CANCERfOUNDATION OF PALM BEACH COUNTY. CON­NOR'S NURSERY/CHILDREN'S PLACE. CRISIS LINEINFORMATION &. REFERRAL SERVICES INC. •DAIL Y BREAD FOOD BANK. D.A.R.E. • DELRAYBEACH CHILDREN'S THEATRE. DELRAY BEACHHISTORICAL SOCIETY. DICK WEBBER CENTER.EASTER SEAL SOCIETY. FARMWORKERS COOR­DINATING COUNCIL OF PALM BEACH COUNTY.FLORIDA ASSOCIATION FOR WOMEN LAWYERS.FLORIDA HEAD INJURY ASSOCIATION INC •FLORIDA HIGHWAY PATROL. FLORIDA JEWISHTHEA TRE • FRATERNAL ORDER OF POLICE •FRIENDS OF ABUSED CHILDREN. GFWC WPB JU­NIOR WOMENS CLUB INC. GOODWilL INDUS­TRIES. GROWING TOGETHER. GUARDIAN ADLITEM. HABITAT FOR HUMANITY. HEALTHYMOTHERS/HEALTHY BABIES. HOLIDAY PROJECT• HOPE HOUSE. HORSES &. THE HANDICAPPED.HOSPICE. I MAKE A DIFFERENCE. INDIANTOWNjA YCEES • JEFF INDUSTRIES. JEWISH FAMILY&.CHILDREN'S SERVICE. JUNIOR ACHIEVEMENT OFPALM BEACH. JUNIOR LEAGUE OF THE PALMBEACHES. KIDZETTE. KIWANIS INTERNATlONAL• LEAF. LEGAL AID SOCIETY. lEUKEMIA SOCI­ETY OF AMERICA. LOVE WORKS INC. PALMBEACH COUNTY BAR ASSOCIATION • THEFLORIDA BAR. THE LORD'S PLACE. THE LUPUSFOUNDATION OF AMERICA. MADO • MARCH OFDIMES. MENTAL HEALTH ASSOCIATION.MORIKAMI MUSEUM. MUSCULAR DYSTROPHY.NAACP. NATIONAL ASSOCIATION OF WOMENBUSINESS OWNERS. NORTHWEST NEIGHBOR·HOOD REUNION FESTIVAL. NATIONAL SOCIETYOF FUND RAISING EXECUTIVES PBC • OPTIMISTCLUB. PALM BEACH COMMUNITY COLLEGE.PALM BEACH COUNTY FAMU • PALM BEACHCOUNTY HEAD INJURY SUPPORT GROUP. PALMBEACH COUNTY LITERACY COALITION. PALMBEACH COUNTY CRIME PREVENTION OFFlCERSASSOCIATION. PALM BEACH COUNTY FISHINGFOUNDATION. PALM BEACH COUNTY SCHOLAS­TIC ACHIEVEMENT COMMITTEE. PALM BEACHCOUNTY SHERIFf'S ornCE. PALM BEACH MARINEINSTITUTE. PALM GLADES GIRL SCOUTS. PAR­ENTS ADOPTION LIfELINE. PARTNERSHIP FOR ADRUG FREE COMMUNITY. SEAGULL INDUSTRIES• SHARE PREGNANCY AND INFANT LOSS OFPALM BEACH COUNTY. SHAW UNIVERSITY •SICKLE CELL fOUNDATION. SOCIALITES CLUB.SOROPTIMIST INTERNATIONAL • SOUTHflORIDA SCIENCE MUSEUM. SPECIAL OLYMrlCS• STOP! CHILDREN'S CANCER. SUN SENTINELVOLUNTEER FAIR. T &. M RANCH. TRI-COUNTYTEC • TV-12 PROJECT THANKSGIVING. UNITEDCEREBRAL rALSY • UNITED NEGRO COLLEGEFUND. URBAN LEAGUE. VERY SPECIAL ARTS OFFLORIDA. VINCEREMOS RIDING CENTER INC.VOLUNTEER BUREAU OF UNITED WAY. WINOHOLIDA Y CHILDRENS FUND. Wf>TV - FOOD FORFAMILIES • WESTSIDE KIWANIS • WOMENSAMERICAN ORT •

PAGE ELEVEN

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QUARTERLY REPORT TO CLIENTS AND ATTORNEYS - VOL. 9S, NO.3

BULK RATEU. S. POSTAGE

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FLORIDAPERMIT NO.

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