Category: News

Pedestrian hit by vehicle dies. $4.5M. Los Angeles County.

Summary

Pedestrian struck by company vehicle in a crosswalk.

The Case

  • Case Name: Tran v. TNT USA, INC.
  • Court and Case Number: Los Angeles Superior Court / BC645566
  • Date of Verdict or Judgment: Friday, August 31, 2018
  • Date Action was Filed: Wednesday, January 04, 2017
  • Type of Action: Vehicles – vs. Pedestrian, Wrongful Death
  • Judge or Arbitrator(s): Hon. Charles Palmer
  • Plaintiffs:
    Bihn Tran
    Lawrence Chan
    Ken Tran
  • Defendants:
    TNT USA, Inc., employer of defendant driver.
    Noe Astorga, defendant driver.
  • Type of Result: Jury Verdict

The Result

  • Gross Verdict or Award: $4,528,391.91

The Attorneys

  • Attorney for the Plaintiff:

    The Vartazarian Firm by Steven Vartazarian and Matthew Whibley, Sherman Oaks.

    Daniels Law by Bill Daniels, Sherman Oaks.

  • Attorney for the Defendant:

    Kirk & Myers by Jeffrey Cabot Myers and Brandon M. Corday, Los Angeles.

Facts and Background

  • Facts and Background: On October 24, 2016, at approximately 9:06 a.m., defendant’s employee made a left-hand turn at the corner of Main St and 3rd Street in Alhambra, striking Ms. Tien Ahn Chung. Ms. Chung was a pedestrian walking in a marked crosswalk with a green light and walk signal. Her cause of death was a combination of traumatic brain injury and blunt force trauma to her cardiovascular system. Ms. Chung was 69 at the time of her death and survived by three adult children, the plaintiffs in this lawsuit.
  • Plaintiff’s Contentions: Plaintiffs filed suit for negligence and wrongful death against defendant driver and his employer.
  • Defendant’s Contentions: Defendant admitted liability.

Special Damages

  • Special Damages Claimed – Past Medical: $28,391.91
  • Special Damages Claimed – Future Medical: 0
  • Special Damages Claimed – Past Lost Earnings: 0
  • Special Damages Claimed – Future Lost Earnings: 0

Demands and Offers

  • Defendant Final Offer before Trial: $5,000,000

Resource: juryverdictalert.com

football cup

NFL Concussion Settlement Pays Out Over $502M In Claims

The special master overseeing the National Football League’s concussion settlement on Monday said that more than half a billion dollars in claims have been awarded in the past year and a half, exceeding what the NFL originally estimated it would pay out over 10 years.

According to a report posted online by the special master, as of Monday 521 claims worth a total of $502 million have been awarded to retired NFL players or their families since the settlement went into effect in January 2017. In a news release, Monday, class co-lead counsel Seeger Weiss LLP said the NFL had estimated $404 million in payouts over the first 10 years of the settlement in a report submitted during the settlement approval process.

In a video released online Monday, class co-counsel Christopher Seeger called the fact such a large amount has been paid “highly significant.”

“On the one hand, it’s the sad testament to the fact that there are a lot of sick players who need this relief badly,” he said. “On the positive side, they’re finally getting it.”

He predicted the NFL will ultimately pay more than $1.5 billion over the 60-year term of the settlement.

Counsel for the NFL did not immediately respond to requests for comment Tuesday.

In April 2015, the court approved an uncapped settlement ending multidistrict litigation between the National Football League and about 5,000 former players seeking damages for concussions and degenerative neurological conditions resulting from their playing days.

More than 1,900 claims have been submitted, according to the report. The report said 531 claims have been denied and that additional documentation has been requested for 375 more.

Earlier this month, U.S. District Judge Anita Brody declined a request by the NFL to appoint a special investigator to examine the claims. The league had argued an “extraordinary number of potentially fraudulent claims” have been submitted, but Judge Brody said the current screening process is working properly, although she said would appoint an investigator if the claims administrator or special master asked.

According to the report, of the claims awarded, 67 totaling more than $84.5 million were for deceased former players found to have chronic traumatic encephalopathy, a degenerative brain condition that can only be diagnosed post-mortem. The settlement paid 157 claims totaling more than $78.1 million for Alzheimer’s disease claims and 186 claims exceeding $193 million for players claiming various degrees of cognitive impairment.

The Seeger Weiss news release also said as part of the settlement more than 6,000 baseline neurological exams have been performed on ex-players to evaluate them for brain injury.

Seeger Weiss and Anapol Weiss LLP are co-lead class counsel in the litigation.

The NFL is represented by Brad Karp, Theodore Wells Jr., Bruce Birenboim, Richard Tarlowe and Sarah Istel of Paul Weiss Rifkind Wharton & Garrison LLP, and Sean Fahey of Pepper Hamilton LLP.

The case is In re National Football League Players’ Concussion Injury Litigation, case number 2:12-and-02323, in the U.S. District Court for the Eastern District of Pennsylvania.

Resource: law360.com

newyork university

NYU Becomes Latest School To Beat ERISA Class Action

New York University defeated an Employee Retirement Income Security Act class action on Tuesday when a federal judge rejected workers’ claims that the school’s two employee retirement plans were mismanaged to the tune of $358 million in losses.

U.S. District Judge Katherine B. Forrest’s opinion and order tossed allegations that an NYU committee wasted workers’ retirement savings by retaining two recordkeepers for the plans instead of one and keeping a pair of supposedly lagging investment funds on the plans’ lineups.

Those claims, which accused NYU of breaching its ERISA-imposed duty to make prudent decisions for over 20,000 plan participants, weren’t supported by the facts, Judge Forrest said Tuesday, two months after hearing both sides’ arguments during an eight-day bench trial.

“While there were deficiencies in the committee’s processes — including that several members displayed a concerning lack of knowledge relevant to the committee’s mandate — plaintiffs have not proven that the committee acted imprudently or that the plans suffered losses as a result,” Judge Forrest wrote.

During the trial’s closing arguments, Judge Forrest had repeatedly interrupted NYU’s counsel to question whether the school’s retirement committee members knew what they were doing.

After reviewing all the evidence in the case, however, Judge Forrest said she found the committee had a prudent process in place for evaluating the plans’ investments and monitoring the recordkeepers.

The class had assumed that dropping one of the plan’s two recordkeepers would reduce the plan’s fees, but the evidence didn’t support that assumption, or the assumption that a single recordkeeper would have been better than two, Judge Forrest said.

Evidence also failed to support the class’ assertion that NYU’s committee slacked when negotiating with the Teachers Insurance and Annuity Association, formerly TIAA-CREF, for lower plan fees, Judge Forrest said.

“While plaintiffs assert that the committee did not negotiate fee reductions zealously enough, the record reflects a number of serious — and successful — efforts by the committee to reduce recordkeeping fees,” Judge Forrest wrote. “As of 2018, both plans’ fees for the TIAA assets decreased substantially.”

The class also fell short when attempting to prove the committee acted imprudently by keeping the TIAA Real Estate Account and the CREF Stock Account on the plans’ investment lineups, the court said.

Analyses of the funds’ performance show that both “performed as well as would have been expected” during the class period, Judge Forrest wrote. Furthermore, evidence showed the class actively engaged with both funds over the years, considering the appropriateness of benchmarks used to measure fund performance and, in the case of the real estate account, asking the Teachers Insurance and Annuity Association to explain the strategy of the fund.

One of the class’s experts, Gerald Buetow, had argued that both funds underperformed, but the judge said he used improper benchmarks and, in the TIAA fund’s case, failed to account for the fund’s cash holdings.

In the case of the CREF Stock Account, Judge Forrest wrote, “Buetow incorrectly used [a] benchmark … that was not in place until mid-2011 to cover a period prior to mid-2011.”

“In fact, the benchmark Buetow used was his own creation,” Judge Forrest said.

NYU spokesman John H. Beckman said Tuesday that the school “maintained from the time the plaintiffs first publicized this case that it was baseless, and the judge’s finding supports that.”

“The simple fact is that NYU is and always has been a careful, conscientious steward of the retirement plans for its employees and retirees, and the plaintiffs failed to meet their burden of proof to suggest otherwise,” Beckman said in a statement.

Judge Forrest’s opinion and order capped off the first trial against an elite university since a series of ERISA class actions were filed against them beginning in 2016.

Many of those suits, which all alleged colleges’ retirement plans flouted ERISA by charging high fees and offering underperforming investment options, came from the Midwestern law firm Schlichter Bogard & Denton LLP, which became known among benefits lawyers after partner Jerry Schlichter prevailed in a series of lawsuits against corporations over their 401(k) plan fees in the 2000s.

Two of the firm’s university targets, the University of Pennsylvania and Northwestern University, beat the lawsuits at the motion-to-dismiss stage, while a school sued by Schneider Wallace Cottrell Konecky Wotkyns LLP, the University of Chicago, opted to settle for $6.5 million.

That leaves 15 universities — the Massachusetts Institute of Technology, Yale, Duke, Vanderbilt, Johns Hopkins, Emory, Cornell, the University of Southern California, Columbia, Princeton, Washington University in St. Louis, Brown, Georgetown, the George Washington University and the University of Rochester — left facing suits at the district court level.

Schlichter Bogard has appealed the suit against Penn to the Third Circuit and asked an Illinois federal judge to reconsider his verdict in the suit against Northwestern.

On Tuesday, Schlichter said he plans to appeal the NYU decision.

“We respectfully continue to believe that retirement plan participants at universities that operate as nonprofits have the same rights and protections under the law to build their retirement savings as workers at for-profit companies,” Schlichter said in a statement to Law360. “We also continue to believe, from the unanimous ruling by the U.S. Supreme Courtin Tibble v. Edison, that placing high priced retail funds in the NYU multibillion-dollar plans is a fiduciary breach and the fees charged were excessive. We will continue to pursue this case in order to make the NYU employees and retirees financially whole.”

Counsel for NYU did not immediately respond to requests for comment Tuesday.

The class is represented by Jerome J. Schlichter, Heather Lea, Joel Rohlf and Ethan Hatch of Schlichter Bogard & Denton LLP.

NYU is represented by Mark Muedeking, Ian C. Taylor, Jennifer K. Squillario, Harry Rudo and Evan D. Parness of DLA Piper.

The case is Sacerdote et al. v. New York University, case number 1:16-cv-06284, in U.S. District Court for the Southern District of New York.

Resource: law360.com

road

Ex-University of Arizona student files lawsuit in connection with fraternity hazing incident

A former University of Arizona student is suing the Arizona Board of Regents and Alpha Sigma Phi fraternity in connection with a hazing incident last year that left the young man seriously injured.

The UA removed its chapter of Alpha Sigma Phi in April 2017 after an investigation by the school found that its members engaged in hazing, assault and provided alcohol to minors, according to a letter from the Dean of Students Office.

During a fraternity event on the night of March 22 and the morning of March 23, 2017, Alpha Sigma Phi members were blindfolded, physically assaulted and forced to drink excessive amounts of alcohol, the letter says.

At least one student was arrested at the time, and in January 2018, two former members of the fraternity were indicted on felony assault charges in connection with hazing, court records show.

Cody William Ward is facing a charge of aggravated assault with serious injury in connection with the March 22 incident, and Brandon Sellers is facing a charge of aggravated assault causing temporary or substantial disfigurement, stemming from incidents that took place from Jan. 15 through Feb. 7, 2017. The case is ongoing, with status conferences scheduled in August, according to Pima County Superior Court records.

The lawsuit, filed by former Alpha Sigma Phi pledge Brett Barr, says the UA, the Arizona Board of Regents and Alpha Sigma Phi acted negligently. The lawsuit also accuses the fraternity of negligent supervision, battery and intentional infliction of emotional distress. Ward and Sellens are also named as defendants in the lawsuit.

Barr was a UA freshman and Alpha Sigma Phi pledge at the time of the incident and did not return to school afterward because he feared for his safety, according to the lawsuit.

After the incident, Barr required emergency medical attention and was found to have head trauma, a lacerated spleen, sepsis, cigarette burns on his arms, abdominal pain, nausea and vomiting, the lawsuit says.

Barr also suffered from severe emotional distress, mental anguish, anxiety, depression and a fear of retaliation by other fraternity members, the lawsuit says.

Gordy Heminger, president, and CEO of Alpha Sigma Phi told the Star that Ward was permanently expelled. Heminger also said the fraternity is pursuing damages against Ward for his actions that led to the closure of the chapter.

“We hope the court system, criminal and civil, will hold this individual fully responsible for his actions, and Alpha Sigma Phi pledges its full support to that effort,” Heminger said.

Alpha Sigma Phi’s national organization has made it clear that members who haze will be removed from the fraternity and the organization will do whatever it can to ensure they are held accountable through the university conduct process and the court system, Heminger said.

The UA has been removed as a defendant in the case since the Arizona Board of Regents is the governing body that represents the school.

“The university took immediate and decisive action upon notification of the injury,” UA’s Dean of Students Kendal Washington White told the Star in an email. “That action included suspending all chapter activities pending the outcome of our investigation.”

Once the UA confirmed that Alpha Sigma Phi had endangered members, including assaulting a pledge, the school withdrew the group’s campus recognition — the most serious sanction the UA can issue against a student organization, White said.

The Board of Regents has denied the allegations, saying Barr’s injuries were “caused by his own contributory negligence and/or assumption of the risk.”

Barr’s attorney, Phoenix lawyer William Fischbach, told the Star he was unable to comment on the pending case, but said the original claim filed with the state asked for $1.2 million in damages.

To sue a public body, a person must first file a claim, allowing the organization 60 days to settle before it can be filed in court.

Resource: tucson.com
family

University Hospitals fertility clinic failure affects more patients than thought

More than three weeks after a “catastrophic failure” at its fertility clinic in Ohio, the University Hospitals Fertility Center is now saying 4,000 frozen eggs and embryos were lost — twice the number the hospital initially reported. Nearly 1,000 patients of the University Hospitals Fertility Center in Cleveland were sent letters Tuesday apologizing once more and acknowledging some of the reasons for the failure to preserve frozen eggs and embryos held in a storage tank. The hospital is now blaming human error for the devastating loss.

In the letter from University Hospitals Fertility Center, patients received the crushing news that it’s unlikely that any of the frozen eggs and embryos are viable. The letter also confirms that the remote alarm system on the tank — which should have alerted an employee to temperature swings — was shut off during the weekend of March 3. It was during that time the temperature in the tank began to rise, destroying the thousands of frozen eggs and embryos.

“We don’t know who turned off the remote alarm nor do we know how long it was off, but it appears to have been off for a period of time,” the letter states. “We are still seeking those answers.”

Despite 11 miscarriages, Wendy and Rick Penniman had two healthy children with the help of University Hospitals Fertility Center. But now, there’s no hope of using their frozen embryos to have a third child.

“It’s devastating, I think, for us, but it’s more devastating because it’s taking something away from our kids,” said Wendy Penniman, 41.

Christina and Marc Ellis wanted to use their two remaining embryos at the center to give their daughter, now 2, a sibling.

“I don’t know if I can go through the whole process again. And what’s the outcome gonna be?” Christina Ellis told NBC News.

Both couples are now suing. So are at least 16 other sets of plaintiffs, all claiming negligence and breach of contract. An investigation has found the manufacturer of this particular storage tank, Custom Biogenic Systems, has a history of problems dating back almost 15 years. In 2003, Rachel Southwood’s husband Andrew had sperm frozen in the UK after he was diagnosed with cancer. The Taunton, England, the couple had one child and hoped they would be able to have another.

“He gave the sample and as far as we were aware, we would potentially be able to have more children,” Southwood said.

But less than a year later, the freezer storing his sperm malfunctioned, rendering the sperm no longer viable. Andrew Southwood eventually died from cancer.

“They simply said that there had been a technical malfunction with the unit that was storing the sperm of my husband,” said Southwood, who was 30 at the time.

In 2003, British regulators warned that freezers made by CBS, a Michigan company, had problems with their automatic filling mechanisms.

“The manufacturer is aware of 21 incidents” in the UK, regulators said.

“The alert was withdrawn,” according to a statement from the UK’s Medicines and Healthcare Products Regulatory Agency to NBC News. “The UK supplier informed MHRA that 95% of the devices in the UK had been returned and upgraded. The other 5% were to be complete by 2006. Therefore, this issue should no longer be affecting the UK. No further reports have been received by MHRA since September 2005.” But two years later, after the warning was first issued, a similar incident occurred in Gainesville, Florida. Up to 60 male patients, many with cancer, lost stored sperm when a tank made by the same manufacturer failed.

Experts estimate that there are 500 clinics that specialize in assisted reproduction around the country, based on a 2015 report about the state of assisted reproduction by the Centers for Disease Control and Prevention. That report included a list of 451 clinics that have provided them with data and 35 others that had not. The lack of reliable data on procedures and clinics in the United States — and possible problems with their frozen eggs and embryos — has contributed to a “regulatory vacuum,” says Dov Fox, director of the Center for Health Law Policy and Bioethics at the University of San Diego.

“There is almost no regulation or oversight of any kind that relates directly to the prevention of mistakes like these,” said Fox, who is working with one of the plaintiffs in the Cleveland case.

“And it’s not just fertility clinics, it’s sperm banks, egg vendors, surrogacy agencies, in all these areas, we don’t know how common the mistakes are, because there is no reporting, no tracking agencies.”

NBC News contacted federal regulatory agencies and organizations that provide accreditation for fertility labs. When NBC News’ Investigative Unit asked who’s ultimately responsible, most said it wasn’t them.

The only government agency that told NBC News it technically could regulate storage tanks is the Food and Drug Administration or FDA. But because freezers in fertility clinics have not been specifically marketed as medical devices, it doesn’t. Members of the assisted reproduction industry say tank failures like the one in Ohio wouldn’t have been prevented with more regulations.

“Autofill tanks still require regular periodic checks by laboratory staff to ensure that they are functioning properly,” said Dr. Alan Penzias, a fertility specialist at Boston IVF, an associate professor of obstetrics, gynecology and reproductive biology at Harvard Medical School, and chairman of the practices committee at the American Society for Reproductive Medicine.

“I spoke with members of my laboratory staff who informed me that this is common knowledge.”

Fear of lawyers may have played a role in stopping wider reporting of previous failures in the US, says Dr. Mark Jutras, lab and medical director at Advanced Reproductive Concepts in Charlotte, North Carolina.

“It is usually institutions who have failures and their lawyers will not allow outside people to analyze the situation to find the root cause of the problem and how it could have been avoided,” said Jutras.

That’s little comfort for the patients who lost their frozen eggs and embryos at University Hospitals Fertility Center.

“Who else has the tanks,” asked Wendy Penniman. “And how many babies are at risk right now while we sit, while we talk?”

The University Hospitals letter told patients the facility had obtained another working storage tank and had planned to move frozen eggs and embryos into that extra tank, but hadn’t started that process when the failure occurred.

The fertility center has offered to pay for treatments for any patients who want them.

The Ellises are considering that. The Penniman declined the offer. CBS provided the following statement:

“Custom Biogenic Systems (CBS) is aware of the incident at University Hospitals Ahuja Center in Beachwood, Ohio and is currently in the process of gathering information.

Our objective is to work diligently to support the investigation into what occurred and be helpful in the search for answers in this difficult situation. We continue to have confidence in our products and our people that serve our customers.”

CBS sent a second statement to NBC News on Tuesday evening. In it, CBS denied that issues with the auto-filling mechanism constituted a “malfunction” or an underlying “technical problem.”

Dr. James Liu, chairman of the department of obstetrics and gynecology at University Hospitals, told NBC News on Tuesday that the fertility center did contact CBS when problems with the tank were discovered several weeks ago.

“They did tell us that this is how we would do preventative maintenance on that particular problem, and that we recognize the problem, and that they were aware of that,” said Liu.

In its letter to patients, the University Hospitals said preventative maintenance was needed because the auto-fill system had “difficulty” and was “not working.”

In its second statement, CBS questioned the hospital’s method for filling the tank with liquid nitrogen during this period.

“The CBS tank is not designed to be filled by liquid nitrogen being poured into the top of the tank.”

In addition, CBS noted something which the hospital conceded in its letter — that the remote alarm system was off. Further, the company points out, “CBS did not design, manufacture, install or monitor any remote alarm system on the unit.”

In a third emailed statement to NBC News, CBS stated its position that the alert issued in 2003 and later withdrawn by regulators in the United Kingdom “involved a prior design of the unit which was discontinued in 2003.”

In that same statement, CBS also alleged that the incident in Florida in 2005 “was caused by human error” — contrary to media reporting at the time, which was affirmed by a University of Florida Health spokesperson in an email to NBC News last week.

CBS’ third statement to NBC News also included additional information about a “local” alarm relating to the temperature in the tank at the time of the incident.

“When the temperature began to rise on Saturday night,” the statement said, “the CBS unit functioned properly by indicating a high-temperature condition and activating a local alarm. CBS is not responsible for the alert not being sent to the UH employee or for staffing of the UH lab, both as referenced in the UH letter.”

In a user’s manual , the manufacturer devotes a whole page to “Recommended Best Practices in the industry for safe sample storage.”

In a section titled, “Why do I need a Secondary or Back-Up Alarm?” the manufacturer also warns, “Your freezer could malfunction. By having a secondary or backup alarm you can minimize the possibility of a loss due to a malfunction.”

Resource: Nbcnews

footpath

L.A. to pay up to $3 million to settle suit from woman injured in fall on sidewalk

The city of Los Angeles may be headed for another costly payout over the condition of its sidewalks, with the City Council’s Budget and Finance Committee on Monday considering a $3 million payment to a woman over a slip-and-fall incident, according to Councilman Mitchell Englander.

Holli S. Breakfield hit her head on a sidewalk in Hollywood at 1254 N. Cherokee Ave. on New Year’s Eve in 2014 after she was being carried on the back of another individual but the man “tripped on a pattern of defects,” according to her lawsuit.

During a joint meeting of the City Council’s Budget and Finance Committee and the Transportation Committee, Englander, during a discussion about financing for the city’s Vision Zero traffic safety program, mentioned that the Budget and Finance Committee would later during closed session be considering a $3 million payout of a slip-and-fall incident.

Breakfield’s lawsuit appeared to be the only item on the agenda that would fit Englander’s description. Potential settlement amounts are typically not publicly released until the full City Council votes on and approves the payout, and the full council or Budget and Finance Committee could still move to reject the settlement.

The lawsuit and potential payout for the city come after the City Council and Mayor Eric Garcetti in 2016 approved a plan to spend $1.4 billion over 30 years to fix the city’s broken sidewalks. The amount of money was agreed to as part of a legal settlement with disability advocates.

The potential Hollywood sidewalk settlement also comes as the city is facing rising costs from legal settlements overall, including a spike related to the state of its sidewalks, bike paths and streets.

The city in 2017 paid out more than $19 million in lawsuits to settle cases involving cyclists injured or killed on city streets — four times higher than any other year over the last decade, according to the Los Angeles Times.

The city also had to briefly dip into its reserve fund during the 2016-17 fiscal year due to the city’s high level of liability payouts, which came to more than $126 million even though only $68 million was budgeted for.

According to Breakfield’s lawsuit, the sidewalk where she was injured suffered from a lack of lighting, a lack of warning about ridges, jagged edges, and erosion, and was “strewn with leaves.”

The lawsuit also said she suffered a serious injury from the fall, but did not describe the injury in detail, only that it required many visits to doctors, prevented her from engaging in her usual occupation and resulted in a loss of income.

Breakfield’s lawyer, Agvavani Kasparian, did not respond to a request to comment.

The original claim filed by Breakfield against the city asked for $10.015 million in damages.

Resource: nbclosangeles.com

roads

Washington City Responsible For Man’s Death While Crossing Street, Says Family’s Lawsuit

Thousands of cars and countless joggers and bicyclists pass the spot daily where a Richland restaurateur was hit and killed by a car two years ago.

His family says that piece of the Urban Green Belt Trail is dangerous and the city is to blame for his death.

Wai Mon “Raymond” Chin’s family is seeking undisclosed damages from the city, claiming there is a lack of signs and a crosswalk at the spot where the popular path crosses Van Giesen Street, just off Highway 240.

Richland is not responsible for the death of an elderly restaurant and nightclub owner who was struck and killed crossing Van Giesen Street in 2016.

A Benton County jury rejected a wrongful death claim by the estate of Wai Mon “Raymond” Chin in a verdict returned Tuesday.

City officials were pleased the jury agreed the city was not negligent.

“We found the jury that heard closing arguments to be exceedingly attentive,” said Amanda Bley, an attorney for Freimund Jackson & Tardif. The Olympia- and Seattle-based law firm teamed with Richland City Attorney Heather Kintzley to defend Richland.

Chin, 83, was walking along the shelter belt trail that parallels the bypass highway when he was hit by a Honda Accord while crossing Van Giesen.

He was hit somewhere between the unmarked trail crossing and Birch Street.

Conditions were dark and rainy, and police reports stated that the wet road reflected headlights back into the eyes of the driver, Brenda Nelson.

She was not cited and later settled with the Chin family.

Chin was taken to Kadlec Regional Medical Center with severe head and pelvic injuries. He died in the intensive care unit on Feb. 14, 2016.

Chin, originally from Hong Kong, arrived in the Tri-Cities in 1956 by way of Seattle to work as a cook. He established Ray’s Golden Lion at Uptown Shopping Center in 1963, operating it as a restaurant by day and as a night spot on weekends.

In its heyday, Ray’s Golden Lion attracted big names to Richland — Frank Sinatra Jr., Ike and Tina Turner, Meatloaf and Tiny Tim. The business was evicted in 2015.

The Chin estate, represented by his son, Stanley Chin, sought $5 million from the city, claiming the unmarked, unlit stretch of Van Giesen was unreasonably dangerous.

The city rejected the claim. The estate sued for unspecified damages in September 2016. The two-week trial was held in May in Benton County Superior Court with Judge Sam Swanberg presiding.

The Chin family was represented by Telquist Ziobro McMillen Clark, a Richland law firm. Representatives were not available Tuesday to comment on whether they plan to appeal.

Resource: tri-cityherald.com

jhonson

Johnson & Johnson ordered to pay $4.69 bn damages in talc cancer case

WASHINGTON: US pharmaceutical giant Johnson & Johnson was Thursday ordered to pay out $4.69 billion in damages in a lawsuit representing 22 women and their families who alleged a talc sold by the company contained asbestos and caused them to suffer cancer.

It is the latest twist in a matter that has seen several thousand lawsuits filed against J&J.

According to the victims’ lawyer, Mark Lanier, a jury composed of six men and six women in St Louis, Missouri, ruled in favor of the women after a six-week trial and eight hours of deliberation. The damages include $550 million in compensation and over $4.1 billion in punitive damages.

The plaintiffs said using the talc for personal hygiene had caused ovarian cancer.

“For over 40 years, Johnson & Johnson has covered up the evidence of asbestos in their products,” Lanier said in a statement.

“We hope this verdict will get the attention of the J&J board and that it will lead them to better inform the medical community and the public about the connection between asbestos, talc, and ovarian cancer,” he said, calling for talc to be pulled from the market.

J&J said it was “deeply disappointed in the verdict.”

In a statement, it described the trial as “a fundamentally unfair process that allowed plaintiffs to present a group of 22 women, most of whom had no connection to Missouri, in a single case all alleging that they developed ovarian cancer.”

“The result of the verdict, which awarded the exact same amounts to all plaintiffs irrespective of their individual facts, and differences in applicable law, reflects that the evidence in the case was simply overwhelmed by the prejudice of this type of proceeding.”

The company said its talc does not contain asbestos or cause ovarian cancer, and vowed it would “pursue all available appellate remedies.”

Several similar trials have already taken place, with a Los Angeles appeals court last October dismissing a $417 million verdict against J&J, saying the complainant’s arguments were insufficient and vague.

Reference: Economictimes

lady

Wrongful death suit filed against Tex McIver, key witness in shooting

As a local attorney begins a life sentence in prison for murdering his wife, he’s now also facing a wrongful death lawsuit.

But the suit doesn’t just name Tex McIver. It also names the key witness in the car when it happened – Dani Jo Carter.McIver was sentenced to life in prison with the possibility of parole on Wednesday for murdering his wife, Diane, as they rode in their SUV in 2016. Carter was driving the SUV at the time.

In the suit filed by Mary Margaret Oliver, who is the administrator of Diane McIver’s estate, the plaintiffs seem to be seeking an admission from McIver that the shooting was accidental. A lawyer speculates that might make it easier to recover insurance money. Channel 2’s Mark Winne sat down with Carter’s lawyer, who said the lawsuit surprised his client.

“I think seeing her name as a defendant next to Tex’s name in this really hit her hard,” attorney Lee Davis said.

Davis says Carter and Diane McIver were best friends most of their adult life, and at the time of Diane McIver’s death. He says Carter did nothing wrong to contribute to the wrongful death of Diane McIver.Lawyer Robin Frazer Clark told Winne she brought the wrongful death suit on behalf of Diane McIver’s estate.

Clark says Carter was driving the McIver’s SUV with their permission and is consequently covered by their insurance, which could be a factor in what money is available to the estate if the suit is successful. Clark also said Carter needed to be included in case the jury found Carter had some portion of the fault in the death. Clark says the full ramifications of Carter’s involvement may not be clear until after she is deposed in the lawsuit “She didn’t understand how anybody could possibly think she had anything to do with (Diane McIver’s) death,” Davis said.

The suit says Tex McIver “was negligent in discharging a firearm while a vehicle was in motion,” and suggests Carter breached “a duty to drive with due care and in a safe manner at all times.”The suit says, “Instead of stopping and calling 911, defendant Carter drove to the emergency room at Emory University Hospital as instructed by defendant McIver.”

Davis says Carter thought they could get Diane McIver to the hospital faster if they didn’t stop and wait on an ambulance. He said she drove quickly but safely. Tex McIver’s attorney, Bruce Harvey, said the suit isn’t surprising to them. He said Tex McIver has maintained all along that the shooting was an accident and that there’s a mistaken verdict waiting for a correction.

Resource: wsbtv.com

dumbel

Gym customer trips; defense falls apart over waiver. $636K. Los Angeles County

Summary

Woman using the gym trips over an electrical box on the floor. Parties dispute liability release.

The Case

  • Case Name: Ziegler v. The Bay Clubs Company, LLC, et al.
  • Court and Case Number: Los Angeles Superior Court / BC638802
  • Date of Verdict or Judgment: Wednesday, May 16, 2018
  • Date Action was Filed: Tuesday, November 01, 2016
  • Type of Action: Negligence, Trip, and Fall, Highlighted Verdicts
  • Judge or Arbitrator(s): Hon. Chester Horn
  • Plaintiffs:
    Patricia Ziegler, 71, retired/freelance HR director.
  • Defendants:
    The Bay Clubs Company, LLC
  • Type of Result: Jury Verdict

The Result

  • Gross Verdict or Award: $636,098.18
  • Net Verdict or Award: $477,073.64
  • Contributory/Comparative Negligence: 25% on plaintiff.
  • Economic Damages:Past economic damages: $93,510.68Future economic damages: $109,725
  • Non-Economic Damages:Past noneconomic damages: $161,850Future noneconomic damages: $271,012.50
  • Trial or Arbitration Time: 7 days.
  • Jury Deliberation Time: 3 days.
  • Post Trial Motions & Post-Verdict Settlements: Motion for New Trial Denied on 6/28/2018.

The Attorneys

  • An attorney for the Plaintiff:

    Strickland Law Firm by William E. Strickland, Manhattan Beach.

    An attorney for the Defendant:

    Mavredakis Cranert & Crawford by Terrence Cranert, Pasadena.

The Experts

  • Plaintiff’s Medical Expert(s):

    Brian Magovern, M.D., orthopedic surgery, Torrance. (Treating physician.)

    Eric Yu, DC, Redondo Beach. (Treating physician.)

  • Defendant’s Medical Expert(s):

    Jeffrey Korchek, M.D., orthopedic surgery, North Hollywood.

  • Plaintiff’s Technical Expert(s):

    Philip Rosescu, forensic engineering.

    Kurt Kuhn, handwriting, Fullerton.

  • Defendant’s Technical Expert(s):

    Bart Baggett, handwriting, Sherman Oaks.

    Dennis Fitzgerald, electrical engineering.

Facts and Background

  • Facts and Background: While plaintiff was walking through defendant’s gymnasium in El Segundo on January 31, 2016, her foot clipped the top of a metal wireway on the floor (approximately 6”x 6” x 6″)  that contained electrical wires running to defendants’ workout treadmill machines. The metal wireway was placed between the treadmills and was frequently traversed by gym members. The lid of the metal wireway was not secured and detached from the metal wireway. After the unsecured lid detached, plaintiff’s foot came down inside the metal wireway, causing her to lose balance and fall.
  • Plaintiff’s Contentions:That the gyms’ liability release agreement was void and defendants were responsible for negligence per se.Specifically, defendants violated the California Building Code in the placement of the electrical wireway across an aisle that was more than 30 inches wide. Defendants relied solely on an allegedly signed one-page document titled “Amendment to Membership Agreement” to claim that Ms. Ziegler had waived all claims against them. Defendants did not produce a Club Membership Agreement signed by Ms. Ziegler; defendants only produced a Club Membership Agreement signed by her husband, which did not release any of Ms. Ziegler’s claims for injuries. Also, the defendants were unable to authenticate the signature on the Amendment to Membership Agreement. Defendants stated they did not know how the signature was collected and there was no custodian for the record. Ms. Ziegler did not recall signing any such document, and Ms. Ziegler was not provided with a copy of the document.  On the eve of trial, defendants claimed that the subject signature was captured by “electronic signature.” Defendants failed to comply with the requirements for electronic signatures.
  • Defendant’s Contentions: That plaintiff’s claim was barred by a release agreement.

Injuries and Other Damages

  • Physical Injuries claimed by Plaintiff: Fracture and dislocation of the right elbow.

Demands and Offers

  • Plaintiff §998 Demand: $200,000, then $495,000.
  • Defendant §998 Offer: $35,000

Additional Notes

Per defense counsel:

Plaintiff had signed a waiver, releasing the defendants from any injuries while using the Club. She denied signing the waiver and after hearing the evidence the jury determined she had signed the waiver. However, the waiver was not effective if there was a violation of law that supported negligence per se or if there was gross negligence. The jury found there was no gross negligence. Plaintiff’s expert Rosescu testified as to an Electrical Code violation, but after all the evidence was in, the Court refused to instruct on negligence per se based upon the Electrical Code. The judge did instruct on negligence per se as to an alleged Building Code violation as plaintiff argued that the 12- to 18-inch spaces between the treadmills constituted aisles and that the electrical wire-way in front of the treadmills interfered with ingress and egress to the treadmills.  Plaintiff had to turn sideways in order to get through the treadmills to take a shortcut instead of using the wide aisles that were provided by defendants. The defense argued that the areas on either side of the treadmills were never intended to be aisles and were not aisles; that plaintiff failed to exit the treadmill properly; and that there was no Building Code violation.

The net verdict was less than the final demand from plaintiff and therefore plaintiff was denied pre-judgment interest as well as costs for expert witness fees.

Accordingly, defendant’s post-trial motion taxing costs were granted. Defendant’s motion for new trial and remittitur was denied.

Resource: juryverdictalert.com