Haimes and Vandervender1

Haimes and Vandervender

Haimes and Vandervender2

Introduction

Personal injury cases are often in the news—car accidents, a fall in a grocery store,

someone gets hurt at a theme park. Sometimes the reasons people sue others sounds rather silly

when printed in the newspapers or on the internet. These cases are legally called “torts” or civil

wrongs. They are not criminal matters, but one person claims another person or business harmed

them through some type of negligence or other wrongful actions. Should people sue when they

are harmed by someone else? Everyone has an opinion. Some of these lawsuits are

understandable; some not so much. ***

Many personal injury lawsuits that are recounted in the paper sound ridiculous to the

readers. To a person who does not know all the facts, another person’s injury can seem trivial.

For instance, a story of a person who files a lawsuit because he slipped on a wet floor at a

restaurant seems like “no big deal” but what if that person sustained a fractured skull, had no

insurance, and the restaurant’s insurance would not help with the bills? It sounds different in that

scenario.

Haimes v Temple University

Plaintiff Judith Richardson Haimes and her husband, Allen N. Haimes, began this

medical-malpractice lawsuit to win damages for injuries which were suffered by Mrs. Haimes.

She claimed to have sustained these injuries as a result of undergoing a computerized

axiotomography (CT scan), a type of diagnostic x-ray. The main damages claimed by plaintiff

(Ms. Haimes) consisted of constant and disabling headaches which totally prevented her from

practicing her livelihood which was a practicing psychic.

Haimes and Vandervender3

There was no “out of court settlement” made, so after a period of time, the case was

ready for trial. A jury trial was held and it took four days to complete. They came in with a

verdict in the amount of $600,000 in favor of the plaintiff and against Judith Hart, M.D., the

physician who was in charge of the CT scan, and also against Temple University Hospital.

During the trial when she testified, Judith Richardson Haimes told the jury that she had

psychic powers since she was born. According to her, having psychic powers means he or she

has the ability to call on an extra “sense,” in addition to the four that most people are born with.

She explained that there are different kinds of psychic powers. Ms. Haimes’ particular special

gift was to read auras. An aura is a certain glow or sort of light that surrounds people and

inanimate objects. She could interpret the shapes, sizes, colors, and flecks of the aura and by

doing so, tell things about the person she was “reading” including the past and the future.

The plaintiff, Ms. Haimes, had opened her professional office in 1969 in New Castle,

Delaware and this is where she practiced psychic counseling. Also, she assisted law enforcement

agencies one day per week, and occasionally lectured, appeared on radio and even on television.

One of the plaintiff’s clients, a medical doctor, suggested she go to an ear, nose and

throat specialist due to some suspected tumors. In September, 1976, she did consult an

otolaryngolist, Dr. Max Ronis. Plaintiff had previously undergone approximately 14 surgeries

for tumors on various parts of her body. Dr. Ronis conducted various tests and referred plaintiff

for a CT scan. Judith Hart, M.D., who had completed a residency in radiology and was then a

fellow in neuroradiology, prepared to give the test. Prior giving the CT scan, a type of dye had to

be introduced into plaintiff's bloodstream. As Dr. Hart was about to inject plaintiff with the dye,

plaintiff told Dr. Hart that she had found through previous medical procedures that she was

allergic to those particular dyes. After using the dye prior to her other surgeries she had suffered

Haimes and Vandervender4

hives, vomiting, and difficulty breathing. Dr. Hart and the plaintiff also talked about whether or

not to go ahead with the test at all, due to plaintiff’s being nervous about it.

Dr. Hart set up an IV (intravenous) line in order to administer drugs quickly if a problem

came about. She also tried a test dose of the dye that was going to be used in the CT scan. At

first, two drops of dye were put into the IV, and a few minutes later, eight more drops were

released. Almost instantaneously, plaintiff developed breathing problems, tightness in her throat,

pain, hives and welts. Dr. Hart stopped the dye and gave plaintiff epinephrine and benadryl to

counteract the reaction from the dye.

Ms. Haimes remained under observation for about 20 minutes in the radiology

department. Dr. Hart examined her and told her that she could go home. Plaintiff was then

driven home by a friend. During the next 48 hours, plaintiff went through a very bad period of

vomiting, nausea and headaches. She had some welts on her body for three days and hives for

several weeks. Additionally, plaintiff testified that she still suffered from headaches and nausea

at the time of the trial.

Much of plaintiff's testimony concerned her psychic abilities and her inability to practice

following the CT scan incident. To read an aura, according to plaintiff, it is necessary to go into

an “altered state”--a state of deep concentration. However, after the reaction to the dye,

whenever plaintiff entered this altered state she developed debilitating headaches. As a result,

she had to stop reading auras. Obviously, she closed her office in Delaware and stopped assisting

law enforcement officers. She also blamed herself for not being able to see her son’s aura, and

he was killed in an automobile accident.

Haimes and Vandervender5

Plaintiff's husband, Allen N. Haimes, D.D.S., testified about the headaches his wife was

going through, the changes he observed in her and the effect these changes have had on the

lifestyle of the entire family. At the close of both sides of the case, the court instructed the jury

about the law.

Included in the court's instructions were the following things:

"First, I must explain to you, since this was done out of your presence yesterday that, as a result

of a legal ruling I made, certain issues are no longer present in this case and they are not for your

consideration. Specifically, you need not decide whether or not plaintiff, Judith Richardson

Haimes, suffered from or presently suffers from headaches. You also need not decide whether or

not plaintiff ever possessed psychic powers or whether, if she did, she lost her psychic powers as

a result of a reaction to the dye administered to her during the CAT scan. That is not for your

consideration and you are not to concern yourself as to the reasons for my ruling because they all

pertain to matters of law."

The court also told the jury that they could not aware the plaintiff damages for her suffering due

to headaches or the loss of her psychic abilities, resulting in the loss of her profession. ***

2. What are the issues?

The defendants (Dr. Hart and the Hospital) appealed the case because want the jury verdict to be

reversed due to what they say is a decision contrary to applicable legal standards and not

supported by evidence. The jurors have the responsibility to listen to the evidence and evaluate

sometimes complex and conflicting statements, and then come up with a fair and accurate

verdict. But, they said in their brief, the trial court must grant a new trial when the verdict is

Haimes and Vandervender6

practically opposite to what the evidence showed. They went on to say, if the trial court did not

do this, it would be a serious injustice. It is the trial court’s duty to do this. But, a new trial

should not be granted just because there are a few minor errors or conflicts in the testimony.

Although the granting of a new trial is within the sound discretion of the trial judge who is

present at the offering of the testimony, that discretion is not absolute. A new trial should not be

granted because of a mere conflict in testimony or because the trial judge on the same facts

would have arrived at a different conclusion. Rather, a new trial should be awarded only when

the jury's verdict is so contrary to the evidence as to shock one's sense of justice and a new trial

is necessary to rectify the situation. Defendants offer two possible explanations for the $600,000

verdict. First, this award might represent compensation for plaintiff's legally proven injuries. If

this explanation is accurate, the verdict is excessive. Second, the jury disregarded the court's

instructions and took into account the damages that were precluded by virtue of the judge’s

order. If this explanation is accurate, a new trial should be awarded because the jury disregarded

the law. Regardless of which explanation of the jury's verdict is correct, for the reasons explored

below, a new trial is warranted. Since we are certain that one of the above two scenarios

occurred, we need not ascertain which rationale actually supported the jury verdict.

EXCESSIVENESS OF VERDICT

3. What laws apply?

There needed to be expert medical testimony regarding the causal relationship between

defendants' alleged negligent acts and plaintiff's continuing headaches. It is the plaintiff's job , in

Haimes and Vandervender7

this case Ms. Haimes’, to establish a direct connection between defendants' conduct and her

injury. In other words, "defendant's conduct must be shown to have been the proximate cause of

plaintiff's injury." In personal injury cases, it is usually out of the realm of the average person to

be able to tell, without medical testimony, “what causes what.” In other words without

testimony from a medical expert, saying that the problems of the plaintiff was actually caused by

the defendants, the defendants claim the jury could not legally find as they did. To sum up, the

plaintiff must present expert medical testimony establishing the causal relationship between

defendants' conduct and plaintiff's injury. She presented one medical expert only and nothing

pertaining to the loss of her psychic powers. Therefore, the defendants basically said the

appellate court must reverse the verdict because the jury was wrong.

4. What did the judge and jury decide?

The trial jury awarded Ms. Haimes $600,000, but the appellate court turned that verdict

over and she ended up getting nothing at all.

5. Did the judge and jury make the appropriate decision based on the applicable laws controlling

the case? Why or why not?

According to the appeals court, the trial court awarded an excessive amount based on the

fact that Ms. Haimes did not present an appropriate amount of medical evidence, in the form of

expert medical testimony, as to her actual injuries. Her basic contention was that the loss of her

psychic powers were a big part of what she sustained as an injury and did not concentrate on the

headaches so much. However, the jury was instructed not to consider that in their decision.

Haimes and Vandervender8

Nevertheless, the appellate court overturned the verdict and award of the money. Part of the

Appellate court decision follows:

“Assuming that the jury verdict represented compensation for plaintiff's legally proven damages,

we must determine whether the award is excessive. In reviewing defendants' claim that the

damages awarded by the jury are excessive, we recognize that the duty of assessing damages is

within the province of the jury and should not be interfered with except where it clearly appears

that the amount awarded resulted from a misconception of law or evidence, caprice, prejudice,

partiality, corruption or some other improper influence. Tonik v. Apex Garages, Inc., 442 Pa.

373, 275 A.2d 296 (1971); Jenkins Towel Service, Inc. v. Fidelity Philadelphia Trust Co., 400

Pa. 98, 161 A.2d 334 (1960). A court should not find a verdict excessive unless it is so grossly

excessive as to shock the court's sense of justice. Thompson v. Anthony Crane Rental, Inc., 325

Pa. Super. 386, 473 A.2d 120 (1984). In determining whether this standard is met, one court has

remarked that "[w]hen the jury's verdict, at the time of its rendition, causes the trial judge to lose

his breath, temporarily, and causes him to almost fall from the bench, then it is truly shocking to

judicial conscience." Swartz v. Smolowitz, 400 Pa. 109, 116, 161 A.2d 330, 333 (1960).

Although this court did not manifest any of the aforementioned gyrations, we nonetheless find

the verdict to be so grossly excessive as to shock the court's sense of justice.”

6. What are the ethical issues in the cases? Do the ethical issues differ from the legal

issues? If so, how? There are really few, if any ethical issues in this case. The doctor, Dr. Hart,

did try using only a few drops of the dye that was going to be used in the CT to test Ms. Haimes’

sensitivity to it. When she seemed to have a reaction, they did not use the substance. However,

shortly thereafter, the doctor did send her home where she proceeded to be sick for several days

Haimes and Vandervender9

to, apparently to the testing of the dye. Whether the doctor should have sent her home, or not,

might have been an ethical “call” but it did not seem to be emphasized in the case.

Cheryl Vandevender v Sheetz, Inc.

1. What are the facts?

Ms. Vandevender (Appellee) was hired to be a clerk by Sheetz, Inc. to work in one of its

convenience stores on June 8, 1989. Within six months, she received a promotion to second

assistant manager. When she was working on January 4, 1991, Appellee hurt her back when she

tried to open a very large jar. She saw a doctor in about this back injury on January 21, 1991.

Even with her injury, she continued to work for several months. Ms. Vandevender began

receiving temporary total disability workers compensation ("TTD") benefits on July 30, 1991,

because she was still in pain with the back injury. She did have back surgery on October 7,

1991.

In either August or October of 1992, Appellee met with the store manager, Karen Foltz,

and told her that she could come back to work but had the permanent limitation of performing no

heavy lifting. Ms. Foltz told Ms. Vandevender that she could not return to work, because of

company policy, unless she had no restrictions. Because the company would not allow her to go

back to work with restrictions, Appellee's physician continued to consider her as totally

temporarily disabled and therefore eligible for benefits.

Sheetz, Inc. sent Appellee a letter on March 15, 1993, telling her that according to their

company, a twelve-month absence from work is treated as a resignation. The letter indicated that

if Appellee was able to come back to work, she should contact the company's human resource

department within one week and that she would be eligible for rehire upon appropriate medical

Haimes and Vandervender10

release. That was, of course, subject to her qualifications and abilities regarding her job duties

and responsibilities. Appellee did not contact either Sheetz' human resource department or her

store manager. Just as the letter said they would do, Sheetz fired Appellee in March 1993.

Appellee went to see a workers' compensation doctor on June 19, 1994, and decided that

she had reached her maximum degree of medical improvement. As a result of this medical

determination, Appellee's benefits were ended on October 11, 1994 since they were supposed to

be temporary only.

On October 12, 1994, Trudy Rohrbaugh, a West Virginia Rehabilitation Counselor,

called the manager at Sheetz, Inc. to inquire about Appellee returning to work. The manager told

Ms. Rohrbaugh that it was her understanding that it would do no good for Appellee to apply for

her job back, she did tell the rehabilitation counselor to call Sheetz' corporate office. It is not

disputed that neither Appellee nor Ms. Rohrbaugh called Sheetz' corporate office to inquire about

rehiring Ms. Vandevender. ***

On December 1, 1994, Appellee filed a civil lawsuit against Sheetz for refusing to rehire

an employee discharged following a work-related injury. This was allegedly a violation of the

anti-discrimination laws of the West Virginia Workers' Compensation Act ("Workers'

Compensation Act") and in violation of the West Virginia Human Rights Act ("Human Rights

Act"). During discovery in the lawsuit, Ms. Foltz testified that Appellee could have been put on a

lighter duty since the job functions listed by Sheetz requiring employees to lift up to fifty pounds

and to stand for eight hours a day were not particularly necessary. In response to these

statements, Appellee demanded to be returned to her job under the restrictions that the doctor had

set down previously.

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Sheetz, Inc. offered to hire Appellee as a sales clerk on February 3, 1995, and she took

them up on the job. The regional manager, Ms. Imler, was present on the date of Appellee's first

day back and asked that Appellee provide her with a list of work restrictions. Ms. Imler

demanded to see written restrictions even though the company had required Appellee to undergo

an independent medical examination one month prior to her return to work and despite the fact

that Ms. Imler and the district manager, Ms. Anslinger, had seen and discussed the report of

Appellee's medical examination. Ms. Imler said that until she received an updated doctor's

excuse, there were no restrictions. Ms. Imler ordered her to obtain a current medical examination

by Friday of the same week, although Appellee was scheduled to work every day that week.

Pursuant to Ms. Imler's orders, Appellee began to stock the cooler, but had to stop after only

twenty minutes of work because of back spasms. Appellee continued to work for several more

hours, but did not inform anyone at the store regarding her back problems while stocking. She

called her job the next morning and said she would not be returning after speaking to her

attorney.

In June 1995, Ms. Vandevender amended her complaint to say that Sheetz, Inc. failed to

realize and assist her with her restrictions during the period between 1991 and 1995 in violation

of the Human Rights Act and that Ms. Imler's request that she stock the cooler on her return to

work, constituted an unlawful retaliation in violation of the Human Rights Act. See W. Va. Code

§ 5-11-9(7)(C). A three-day jury trial took place in September 1995 and came out well for the

Appellee. She was awarded $130,066 in compensatory damages, $170,000 for noneconomic

damages, and $2,699,000 in punitive damages. Sheetz, Inc. filed a motion for a judgment

notwithstanding the verdict (overturning the verdict and go the other way) or in the alternative, a

new trial. This appeal came after the court denied Sheetz’s motion.

Haimes and Vandervender12

2. What are the issues?

The main issue is that the Defendants/Appellants claim that the Plaintiff/Appellee should not

receive over $2m in punitive damages. Punitive damages are a sort of a punishment the court

awards due to the behavior of the defendant.

3. What laws apply?

The plaintiff must prove the defendant’s actions were the direct cause of her injuries and

must verify how much those injuries actually were. Also, the plaintiff (Vandervender) had to

show the actions which would give rise to any punitive damages.

4. What did the judge and jury decide?

The trial jury awarded Vandevender $130,066 in compensatory (compensation) damages,

$170,000 for noneconomic damages (pain, mental anguish) and $2,699,000 in punitive

(punishment) damages. They found the employer was at fault for her losing wages, being hurt a

second time, and for the actions they took which were obviously mean spirited and retaliatory.

The appeals court stated that there are certain “guideposts” to decide punitive damages

and that the Due Process Clause concerns of fair notice of the type of conduct that will subject a

defendant to punishment and fair notice of the severity of the penalty that may be imposed for

such conduct. These "guideposts", according to the appeals court are: (1) the degree of

reprehensibility of the defendant's conduct; (2) the ratio of punitive damages to the actual harm

inflicted on the plaintiff; and (3) a comparison of the punitive damages award with the civil or

criminal penalties that could be imposed for comparable misconduct. The Appellate court

lowered the punitive damages to $2 million, and left the other amounts the same.

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5. Did the judge and jury make the appropriate decision based on the applicable laws

controlling the case? Why or why not?

The trial court made the appropriate decision, even though the appellate court lowered the

punitive damages somewhat. The employer and the supervisor at the store were at fault

personally really. At first, they would not take her back to work, they would not pay her medical

bills, and then they insisted on trying to intimidate her when they finally did give her the job

back. One of the things mentioned by the appellate court was that when she finally did get her

job back, they made her do heavy work right away, almost in a mean spirited way. In fact one of

the higher supervisors was there on the job to order her to do the heavy work.

6. What are the ethical issues in the cases? Do the ethical issues differ from the legal issues?

If so, how?

In Vandervender, the company clearly did everything they could to force Ms.

Vandevender out of her job and not pay Workers’ Compensation. Even when she brought in the

correct medical reports they made her stock shelves on her first day back to work. Their

company policy allegedly would not let her come back to work and then gave her difficulty when

she finally got her job back. This went beyond being illegal and was clearly a breach of any

business ethics.

Haimes case was different. When notified that Ms. Haimes had previously had a reaction

to a similar substance that was to be used in her CT, the doctor carefully did tests of minute

amounts to see if there was a reaction. No attempt was made to deceive or to do anything

unethical.

7. I do not believe that either of these cases were frivolous or a waste of time. In the

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Vandervender case, the Appellee hurt her back while trying to open a very large jar of pickles

which was just part of her job. Using the word “pickles” might tend to make the whole case

seem silly, but the facts are not silly at all. A large number of medical professionals were

involved in Ms. Vandervelder, including one who actually did surgery, verifying that the injury

was real. If she had been in a car accident, or been burned by a steam pipe, her injuries would

have not seemed to be frivolous at all.

The other case played out differently. Many witnesses testified as to plaintiff’s psychic

abilities. Ms. Haimes had practiced her profession for over seven years and actually did make

her living reading auras. The loss of her ability to do this meant she could not continue to

practice her profession. Whenever someone loses something of value such as this, they have a

right to seek damages from the person responsible.

In the Haimes situation, the hospital may not have been able to do things any differently

if the injection of this dye was the only way to identify the suspected tumors. But, when Dr. Hart

saw the reaction to the dye, she could have insisted Ms. Haimes stay, perhaps even overnight, to

watch her symptoms and provide medical attention. There is not enough information in the case

to know if more or different medical care would have changed the outcome of the plaintiff’s

medical condition.

However, the Sheetz company would have plenty of things they could have done

differently to prevent the same outcome. When someone is hurt on the job the workers’

compensation law must be followed. Medical bills are to be paid according to the law. And the

employer must follow the laws and rules about offering a position to the employees who can

Haimes and Vandervender15

come back and do the job, even if some accomodations are necessary. There was little this

company did correctly.

Conclusion

Reading headlines in the newspaper or a short synopsis of a possible personal injury case

does not always tell the whole story. What seems trivial or “frivolous” can sometimes belie a

true story of injury and harm to a person, not to mention the almost “evil” intentions of the

people who are supposed to follow the law. A serious injury can result from what at first might

sound like a small incident and it can ruin someone’s career or cause lifelong injury. All the

details should be examined before a decision is made.

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References

http://www.leagle.com/xmlResult.aspx?xmldoc=198642039PaDampC3d381_1354.xml&docbase=CSLWAR2-1986-2006

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http://pa.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19900327_0041094.PA.htm/qx

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http://lawhaha.com/plaintiff-sues-for-loss-of-psychic-powers/