Virginia Personal Injury Blog

Worst Insurance Companies for Consumers Revealed

Michael Phelan — Fri, 18 Jul 2008 08:54:19 GMT

According to a report compiled after six months of researching court documents, SEC and FBI records, state insurance department investigations and complaints, nationwide news accounts, and testimony of former insurance agents and adjusters, Allstate is the nation's worst insurance company for consumers.

"The rankings show a distinct pattern of insurance industry greed amongst 10 companies that refuse to pay just claims, employ hardball tactics against policyholders, reward executives with extravagant salaries, and raise premiums while hoarding excessive profits," the American Association for Justice (AAJ) concludes.

The AAJ says the U.S. insurance industry collects more than $1 trillion in premiums annually, and has $3.8 trillion in assets, surpassing the Gross Domestic Products of all countries but the United States and Japan.

The top 5 offenders on the list:

1. ALLSTATE - CEO, Thomas Wilson; 2007 compensation, $10.7 million; 2007 profits, $4.6 billion; assets: $156.4 billion. "According to investigations and documents Allstate was forced to make public, the company systematically placed profits over its own policyholders... The amount Allstate paid in claims dropped from 79 percent of its premium income in 1996 to just 58 percent 10 years later. In auto claims, payouts dropped from 63 percent to just 47 percent.

2. UNUM - CEO, Thomas Watjen; 2007 compensation, $7.3 million; 2007 profits, $679 million; assets, $52.4 billion. "Unum, one of the nation's leading disability insurers, has long had a reputation for unfairly denying and delaying claims.."

3. AIG - CEO, Robert Willumstad; 2007 compensation for former CEO, 14.3 million; 2007 profits: $6.2 billion; assets, $1.06 trillion; "AIG executives have also come under fire for opportunistically seeking price increases during catastrophes. Now the company has been labeled 'the new Enron' because of charges of multibillion-dollar corporate fraud."

4. STATE FARM - CEO: Edward B. Rust Jr.; 2007 compensation, $11.7 million; 2007 profits: $5.5 billion; assets, $181.4 billion. "In many cases, the company has gone to extreme lengths to avoid paying claims, including forging signatures on earthquake waivers after the deadly Northridge earthquake, and altering engineering reports regarding damage after Hurricane Katrina."

5. CONSECO - CEO, C. James Prieur; 2007 compensation: $2.6 million; 2007 profits: $179.9 million; assets: $33.5 billion. "Conseco sells long-term-care policies, typically to the elderly. Unfortunately, Conseco uses the deteriorating health of its policyholders to its advantage because the company knows if it waits long enough to pay out claims, its customers will die."

Why is this information important to consumers? In the case of automobile insurance, a consumer involved in an auto accident may have the misfortune of being struck by a negligent driver who is either uninsured (UM) or underinsured (UIM). In either case, the consumer would have to look to his or her own auto insurer for full and fair compensation. So, you've purchased auto insurance with UM and UIM coverage (for which you are paying premiums), you've made timely premium payments for decades, and you've never caused an accident. You might think that when you've been injured by another driver and need to rely on your UM or UIM coverage your insurance company would be on your side. Think again. In such cases, your own insurance company often fights you like you're the enemy. In my experience, there are some companies who treat their insureds better than others. USAA comes to mind as being among the best. GEICO likewise is quicker than others to offer its UM or UIM coverage limits to its insureds. Not so with Allstate and others. In my opinion, you are not in good hands with Allstate.

Originally posted at InjuryBoard by Michael Phelan

Consumer Alert (again) Lawyer Directory AttorneysDelivered.com

Ben Glass — Thu, 17 Jul 2008 21:49:21 GMT

I previously talked about DUI1.com a "Find Your DUI lawyer" website that boasted about its qualified lawyers at the same time it was soliciting lawyers to "join the network" by telling them that they were qualified to handle DUI cases if they knew how to plead their clients guilty.

Today I got an unsolicited email from an outfit www.attorneysdelivered.com.

To the consumer, they make the following claims at their website:

1. The attorneys on their site are "professionally screened."

2. If you find an attorney here, you've found a winner.

3.Our attorney directory specializes in providing you with lawyers and attorneys that are winners. Inclusion is based on winnings. We understand that finding the best isn't easy.

4.The best part is, you won't find the average joe lawyer here ... only the ones you wan't defending you ... that will get you the settlement you deserve and....

5. We save you the trouble of researching for a great attorney. Inclusion is not based on payment but on an algorithm of success, winnings, and reputation.

So, I decided to "apply" for a listing. I went through their sales process. Know what qualifications they asked for?

Name:
Address:
Credit Card!!

Now, maybe there's a criteria hidden somewhere... if so I didn't see it. I emailed the site owners about what the criteria was and they replied, vaguely, about having an "internal criteria" and "if you got our email you are qualified!"

Good answer, except that any attorney could apparently get listed by providing a credit card.

In most states, this site would violate the attorney advertising ethics rules. These ethics committees get real uncomfortable with anyone advertising (or allowing someone to advertise for them) that they are the best. If the state ethics committees investigated the 'criteria' that is apparently being used here, they would have a fit.

Look, ethical rules aside, attorneysdelivered.com may be doing some high end, quality screening. Maybe.

It wasn't obvious and they certainly didn't satisfy my curiousity with their response to my email.

Consumer need to take responsibility for choosing the right lawyer for their case. There's a ton of things you can do to protect yourself. I've actually written a book on the subject and its available at Amazon.com.

Originally posted at InjuryBoard by Ben Glass

Big Changes In The Economics Of Civil Litigation?

Greg Webb — Tue, 15 Jul 2008 21:28:10 GMT

The U.S. Chamber of Commerce has much to be happy about after the Supreme Court decided to cut the punitive damages in the Exxon Valdez oil spill case to only a week's worth of Exxon profits after years of Exxon continuously appealing jury's damage awards. This strategy was intended to bleed the plaintiffs and their attorneys dry so they would eventually have to let the case go. The chamber, through two of its affiliates, the National Chamber Litigation Center and the Institute for Legal Reform, has waged a decade long campaign to make it harder for companies to be sued for their errors or their fraudulent behavior and also limiting the damage awards that happen to get to a jury. This well-funded legal, legislative and public relations movement has had many successful wins, including the prosecution of three plaintiff's attorneys who were brought up on charges of having abused the legal system, which has severely tarnished the image of the trial lawyer.

The biggest win of all, however, has been last week's Supreme Court ruling that as a matter of federal common law, punitive damages should seldom exceed the so-called compensatory or economic damages awarded by a jury or judge. Although the court did see punitive damages as a way for society to exact a revenge for reckless behavior in order to deter others, Justice Souter, writing for him and four colleagues, asserts fairness demands the penalty to be "reasonably predictable in its severity". This would allow the wrongdoers to look ahead and see the outcome in choosing one option over another. Though the court's decision only pertains to federal cases decided on the basis of common law, many feel the Court will extend the cap on punitive damages to all state and federal cases based on the constitutional "due process" guarantee. Corporate America certainly hopes that plaintiff's lawyers are going to be less likely to take on contingent-fee personal injury and class-action lawsuits because there will no longer be the prospect of winning punitive damage awards. Because of the resulting fewer lawsuits and lower damage awards, theoretically, businesses may feel more comfortable taking risks, good and bad; they may also effectively have immunity to negligently injure Americans with little concern about being held accountable. http://www.washingtonpost.com/wp-dyn/content/article/2008/07/03/AR2008070303239_2.html

While Souter did write for the Court's majority, giving the chamber a legal victory, buried in his opinion is a rebuke to the fundamental rationale behind the organization's campaign, specifically that excessive punitive damage awards have crippled U.S. business. The justice further writes that excessive awards have not been prevalent in American society, showing that in the country's most populous counties, the median punitive damage award in civil jury trials decreased from 1992 to 2001.

What Souter and the Supreme Court may have shown United States businesses is that if they have enough money, eventually they may get a lower settlement by bleeding the little guy dry of funds. The Court apparently felt the need to reduce punitive damage awards. If that is the case, then there also needs to be a mechanism for limiting the abusive tactics of unscrupulous corporate defendants and/or their counsel; the latter, arguably, was not accomplished. The Court's decision may make it much more difficult for the average person with legitimate claims against a large, well-heeled, and negligent company to receive just compensation.

Originally posted at InjuryBoard by Greg Webb

New Cases Before Supreme Court Could Limit Liability Lawsuits

Greg Webb — Tue, 15 Jul 2008 20:59:14 GMT

Diana Levine, a Vermont musician, won a settlement against pharmaceutical manufacturer Wyeth when she had to have part of her arm amputated due to an anti-nausea drug being improperly injected. Wyeth claims its product was sufficiently labeled, which included warnings about the potential risk of gangrene if the drug was improperly injected. The company has since appealed the case to the Supreme Court, creating a potential landmark ruling that would make it easier for drugmakers to protect themselves from product liability lawsuits. That's because the majority of lawsuits against drugmakers involve the same issue, whether or not the company had proper warnings on its label. The Food and Drug Administration (FDA) approve these labels.

The case, along with a similar lawsuit regarding tobacco, centers on whether the federal government's regulation on products can override state laws, including those that determine when a person or company can be held liable for another's injury. Industries argue juries should not be allowed to overrule what experts in federal agencies conclude regarding the safety of products. Experts say that it is likely the Court will rule in favor of Wyeth, and if it does, other industries will likely follow suit; anything that any federal agency has anything to do with will be pre-empted. A ruling in favor of Wyeth could also lead to lower courts blocking suits filed against the drug companies since the FDA approved their labeling.

The justices, none of whom have reportedly tried a jury trial as an attorney, have already sided with businesses on two pre-emption cases. In one case, involving Medtronic Inc., the Court ruled 8-1 that the FDA's approval of advanced medical devices prevents consumer lawsuits claiming improper labeling or design defects. However, bills are being sent through both houses of Congress that would potentially reverse the Court's decision. http://biz.yahoo.com/ap/080626/scotus_preemption.html?.v=1

Originally posted at InjuryBoard by Greg Webb

Same-sex harassment now on the menu at The Cheesecake Factory

Joshua Laws — Mon, 14 Jul 2008 16:37:17 GMT

The Cheesecake Factory is known for its sumptuous desserts and generous portions. However, one Cheesecake Factory is now allegedly offering a new item: hot, buttered same-sex sexual harassment.

The EEOC has filed a class-action suit in an Arizona federal court alleging that three male workers at a Chandler, Arizona Cheesecake Factory suffered months of same-sex sexual harassment. According to the Los Angeles Times groups of male employees would corner other male employees and pantomime sex acts on the unwilling men. These roving same-sex stalkers "allegedly grabbed and forced [the men] to endure simulated sex acts with their clothes on."

Cheesecake managers allegedly were aware of these activities but chose to look the other way. In fact the higher ups "seemed to kind of find the whole thing amusing" and did not take any steps to stop the marauding male malefactors.

One victim described being surrounded by 5-10 co-workers who lifted his legs "into the air and grind[ed] up against him in the restaurant's kitchen area."

A spokesperson for the Cheesecake Factory stated that the company believes all staff members "should be treated with dignity and respect." Hopefully their definition of dignity and respect rules out enduring simulated gang rape.

Same sex harassment may be considered a joke by some, but the EEOC reports that 16% of harassment complaints involve male victims. This number has been steadily increasing over the years. The U.S. Supreme Court, in Oncale v. Sundowner Offshore Services, Inc., ruled over a decade ago that federal anti-harassment laws ban same-sex harassment as well as opposite gender harassment. That unanimous opinion, written by noted conservative Justice Antonin Scalia, protects employees from same-sex harassment regardless of the victim's and/or the perpetrator(s) sexual orientation.

Originally posted at InjuryBoard by Joshua Laws

Florida Jury Awards $35 Million in Birth Injury Case

Ben Glass — Sun, 13 Jul 2008 15:21:00 GMT

On June 13, a jury in Broward County, Florida warded a family from Lauderhill, Florida $35 million in a medical malpractice suit that accused Broward General Medical Center of causing their child irreversible brain damage through a botched delivery, according to the family's attorneys.

According to attorney David Prather, the victory means that Denise and David Brown, whose 8-year-old son, Darian, is profoundly mentally impaired, will finally have the money available to purchase a van with a wheelchair lift as well as pay for help for his round-the-clock care.

Prather said that in order to care for their son, David Brown had been working nights at American Express while Denise Brown worked during the day as a manager at a J.C. Penney store. The couple has three other young children.

According to Prather, Darian is incapable of feeding himself, walking, and decision-making and is so profoundly impaired that a lifetime of care will be necessary.

Originally posted at InjuryBoard by Ben Glass

Insurance Company Tricks: "Deal with us directly"

Ben Glass — Sun, 13 Jul 2008 05:48:52 GMT

Had a new client in late last week. He had been hit by a State Farm insured in a car accident. He has a mild brain injury and suffered orthopedic injuries.

Know why he called a lawyer?

He tells me that's it is because, just after his accident, he was contacted by a State Farm adjuster who told him that 'its lots better just to deal with me [the adjuster] directly, that way we can just cut out the lawyer's fee altogether.

Client was smart enough to smell a rat. He had not even thought that he might need a lawyer till the claims rep told him to avoid seeing one!

You may be able to settle you case without a lawyer. Its usually not very smart (I was going to write "it's usually pretty dumb") to settle you case without at least speaking to a lawyer and becoming as educated as you can about the claims process.

Is the insurance company outright lying to you (such as "if you don't send us your form we are closing your file and you won't be able to claim anything") or are they "forgetting" to tell you things you may be entitled to [an insurance company will never tell you that Virginia law says that you may be entitle to punitive damages if the person who hit you was drunk.]

Do yourself a favor. If you've been hurt in Virginia while in a car accident, at the very least read The Ultimate Guide to Virginia Car Accident Cases.

Originally posted at InjuryBoard by Ben Glass

Hand Up the Cell Phone While Driving

Ben Glass — Fri, 11 Jul 2008 15:18:00 GMT

Currently, the legal trend of banning the use of hand-held phones while driving is spreading. Currently, Connecticut , New Jersey , New York , Washington D.C., and the Virgin Islands have passed laws banning the devices. California and Washington State have as well, with laws going into effect on July 1. The devices have also been banned in a number of individual cities and Utah and New Hampshire have included them under their distracted driving laws.

The use of hand-held cell phones by novice drivers has been limited in 17 states and D.C. and school bus drivers specifically are banned from using them in 15 states and D.C., except in the case of emergency.

Alaska , Minnesota , New Jersey , and Washington State have also found it necessary to ban text-messaging while driving and about a dozen others are considering the same ban.

According to studies, there is a significant increase in the risk of an accident if the driver is on the phone.

The increase has been found to range from a factor of 1.3 times higher (found in Virginia Tech's "100-car study" in which researchers video taped the actions of 100 drivers) to four times higher (found in Canada and Australia through research of the incidents leading to traffic personal injuries) to as much as five times high in simulator studies performed at the University of Utah, where researchers say the effect is equal to that of driving drunk.

Text-messaging seems to be an even greater distraction. In the 100-car study, the risk factor increased to 2.8 and in the Utah study, it increased to 8.3.

Originally posted at InjuryBoard by Ben Glass

Doctor Suspended after Removing the Wrong Lung

Ben Glass — Wed, 09 Jul 2008 15:17:00 GMT

The medical license of a surgeon in New Jersey has been suspended after it was discovered by state regulators that he had removed the wrong lung from a patient and then attempted to conceal his error.

According to the state Attorney General's Office, Dr. Santusht Perera was found by the State Board of Medical Examiners to have removed a portion of the right lung of the patient, when he was supposed to be removing a tumor from the left lung.

According to the board, Perera then informed the patient that there had been a life-threatening tumor within the right lung, despite no such growth existing. He also altered the records of the patient in order to show that he had intended to operate on the right lung.

Perera's actions were determined by the board to constitute gross negligence.

The board said that if Perera had taken "the most basic and minimal of actions that should be taken by a surgeon in advance of surgery," then the "tragic error" could have been avoided.

In addition to the suspension of his license, Perera, a practitioner at the Hoboken University Medical Center , was assessed fines and reimbursement costs of $81,000.

Originally posted at InjuryBoard by Ben Glass

Electrical Shock Injury In Hotel Shower Ends Commercial Pilot's Career--Settlement Just Before Trial

Rick Shapiro — Tue, 08 Jul 2008 21:31:23 GMT

By: Richard N. Shapiro, Shapiro, Cooper, Lewis & Appleton, P.C., Va. Beach, VA

Our Plaintiff client was a 47 year old pilot/captain for a commercial airline who piloted a 737 to a Virginia international airport on June 30, 2005 . Before piloting a similar jet on the next morning of July 1, 2005 outbound, pilot and the crew stayed at the Virginia hotel routinely used by the airline crews. The pilot was in excellent health and had recently passed a thorough FAA physical examination, less than six weeks earlier. The next morning, our client the pilot was taking a shower in his hotel room and while washing his hair with his hands directly above his head, when he received a serious electrical shock which essentially froze him in the shower. With his hands still frozen above his head, he lost consciousness and fell out of the shower, suffering some contusions. He testified that his heart was racing and was measured at 180 beats per minute following the shock. Upon regaining consciousness, he immediately called the hotel operator to report that he had been "electrocuted" in the shower. The hotel dispatched a maintenance engineer to the room, who, after observing the light fixture above the shower told the pilot that the fixture "doesn't belong in that environment," and promptly called the front desk and shut down the room due to "electrical problems." Pilot described the light fixture as an uncovered bulb in a ceramic based fixture that was flush mounted to the ceiling above the shower, protruding downwards. The hotel engineer disagreed, testifying it was a recessed "can" light fixture, only admitting that the flat plastic lens covers was missing, exposing the bulb to shower spray. He also admitted that the hotel had been having problems for the prior 2-3 months with the plastic covers of these light fixtures falling off and not having spare recessed light plastic covers available. The pilot notified management that he could not safely pilot the jet that morning, and rode in the jet's jump seat. During the flight, he began experiencing difficulty with his left eye. He initially thought his sunglasses were smudged and indicated it was like looking through wax paper. He subsequently developed a left occipital headache. Numerous physicians subsequently confirmed that pilot suffered from left optic neuropathy, and although his vision was 20/20 in both eyes when tested for his FAA examination on May 17, 2005, his vision deteriorated immediately after the shock injury to 20/60 to 20/80 range in his left eye. When the jet landed on July 1, 2005 , pilot went to the local emergency and his documented complaints at that time included dizziness, numbness and tingling in his extremities, headaches and decreased left vision. He subsequently developed issues with fatigue and with balance and coordination. His immediate lack of visual acuity caused him to fail a mandatory FAA physical and he is no longer qualified to pilot any commercial aircraft. His physician's testified that his injuries were permanent.

Plaintiff's suit contended that the hotel negligently, knowingly left an open light fixture directly over the area where hotel guests would be showering and spraying water in violation of the National Electric Code (NEC), which has been adopted by the state of Virginia . Also, pilot filed an extensive memorandum of law prior to the final pretrial hearing asserting that the electrical shock evidence presented a classic res ipsa loquitor case allowing an inference of negligence against the hotel, and additionally arguing that the hotel wrongly failed to document or retain the electrical fixture, as no pictures or written inspection report were ever produced until over a month later-and pilot contended the fixture had been altered in the meantime. In the suit, we named over 10 experts, including neuro-opthamologists, neurologists, electrical experts, vocational and economic experts, the latter experts calculating earning capacity of around $250,000 annual salary, leaving over three million dollars in lost earning capacity. The hotel denied any negligence, denied that the pilot suffered any electrical shock, and claimed the pilot's symptoms were magnified or caused by pre-existing conditions, and also listed a wide array of medical and liability defense experts.

Hotel/Innkeeper Liablity

In the year after we filed suit for our client, the Virginia Supreme court clarified that hotels are held to high standard of care applicable to common carriers, in the case of Taboada v. Daily Seven, Inc., 626 S.E.2d 428 (Va. 2006). In Toboada, the court stated:

We have held that neither the innkeeper nor the common carrier is an absolute insurer of the guest's or the passenger's personal safety.. Nonetheless, we have held that the duty of care imposed on common carriers is an elevated duty that requires them " `so far as human care and foresight can provide . . . to use the utmost care and diligence of very cautious persons; and they will be held liable for the slightest negligence which human care, skill and foresight could have foreseen and guarded against. Given the nature of the special relationship between an innkeeper and a guest, we hold that it imposes on the innkeeper the same potential elevated duty of "utmost care and diligence" [as applies to common carriers].

Taboada v. Daly Seven, Inc., 626 S.E.2d 428, 434 Va.2006) (emphasis supplied). Pilot asserted that the statements of the hotel's maintenance engineer alone were proof that the hotel did not exercise its elevated duty of care to provide for a safe shower light fixture.

Res Ipsa Loquitor Evidence

While pilot's electrical experts offered the theory that his shock occurred when his hand slightly grazed an exposed shower light bulb, pilot also argued for a res ipsa loquitor jury instruction which would supply an inference of hotel negligence from the circumstances alone. Res Ipsa is applicable to a narrow set of circumstances, and as outlined by the Virginia Supreme Court:

In order for the doctrine to apply in a given case, the instrument causing the injury must have been in the exclusive possession of the defendant, and the occurrence must have been of such a nature that it can be said with reasonable certainty that the accident would not have occurred in the absence of negligence on the part of the defendant. It must be further shown that the evidence of the cause of the accident is accessible to the defendant and inaccessible to the injured party.

Stein v. Powell, 124 S.E.2d 889, 203 Va. 423, 426 ( Va. , 1962) (denying application where child injured by shattered mirror accessible to other invitees).

Pilot contended at the final pretrial court hearing that his electrical shock injury was a classic res ipsa circumstance, and cited a number of analogous decisions: cases involving injuries inflicted . by steam, electricity, fire, gas, complicated industrial machinery, and other dangerous instrumentalities furnish the clearest instances of the use of the doctrine of res ipsa loquitur. Robison v. Cascade, 72 P. 3d 244 (Wash. App. 2003)(emphasis supplied) (applying res ipsa in electrical shock case involving a truck trailer loader); Kieffer v. Weston Land, Inc., 90 F. 3d 1496 (10th Cir. 1996) ( applying res ipsa in electrical shock case involving vending machine). Pilot noted that thousands upon thousands of hotel guests take showers in hotels daily, and it cannot be disputed that serious personal injury or death caused by electrical shock should never occur while a hotel guest is routinely shampooing their hair in a hotel shower. The pilot checked into his hotel room, discovered no apparent problem with the electrical system or the electrical power. Prior to turning over the hotel room to the pilot, the hotel's cleaning personnel were the last persons to have access to the room and to have inspected it. There was never any suggestion by the hotel of a third-party tampering with the electrical source, or a third-party or the pilot tampering with the fixture over the shower, and supplying the overall electrical power supply is exclusively within the hotel's control. The court made no ruling or finding on res ipsa loquitor at the final pretrial hearing, given that offering such an instruction would be dependent on the evidence admitted later at trial.

Missing Evidence Inferences

The hotel attacked the pilot's electrical expert's theories, and moved to exclude the expert opinions as unreliable and suspect, given that the pilot's two experts did not conduct tests on what the pilot contended was the same light fixture, or under reliable similar circumstances. Pilot, in response, argued that the hotel completely failed to preserve or maintain the main, known material evidence (the light fixture, whether in the ceiling area or preserved with the entire fixture and its wiring apparatus). This is so despite its awareness from the very first hour after the incident that the pilot was shocked in their shower. The hotel admitted that the room remained out of use for well over a month, but it produced no pictures, inspection reports, or confirmation of what if anything was done to alter the fixture in the first days or weeks. The hotel contended no changes were made, but when pilot's expert was permitted an inspection months later, pilot contended the fixture was entirely different.

Pilot argued that the limitations or less than ideal expert electrical evidence foundation was due to hotel's failure to preserve relevant evidence, and pilot should not be penalized. Pilot cited to a similar circumstance which arose in an electrical shock case involving a bakery company employee who claimed electrical shock from a vending machine. Kieffer v. Weston Land, Inc & Coca-Cola, 90 F. 3d 1496 (10th Cir. 1996). Employees of the defendant claimed they checked the vending machine the same day and that neither relevant machine had any electric current flowing that could cause a shock. Id. at 1498. The defendant in Kieffer initially discarded the subject vending machine, then relocated it, but it did not have the electrical cord any longer and therefore was in a different condition. Id. at 1499. In the similar Kieffer case, defendants asserted the claim that the plaintiff's electrical expert opinions were lacking and unreliable, but the court in Kieffer stated:

[o]bviously, had the plug not been removed from the machine, Dr. Oliver's [electrical expert] conclusions regarding the likelihood of shock in relation to a defective plug would have been either far more certain or possibly even unnecessary. The fact remains, however, that the missing evidence which created the need for the testimony which [defendant] now finds objectionable was caused by [defendant] itself. Defendant argues that the loss of evidence by a party does not allow a negative inference against that party unless it is shown that it acted in bad faith, citing Mason v. E.L. Murphy Trucking Co., Inc., 769 F.Supp. 341, 345 (D.Kan.1991) and Lewy v. Remington Arms Co., Inc., 836 F.2d 1104 (8th Cir.1988).. Plaintiff was entitled to produce the relevant evidence that defendant removed the machine a few days after the incident and that when defendant produced it over a year later the plug was gone. Defendant offered an explanation for the missing plug, suggesting it was caught in the truck bed when the machine was taken to the dump, but the jury had the right to reject that explanation.

The evidence provided a factual basis for Oliver's [electrical expert] testimony about how an electric shock might have occurred. The district court correctly ruled that the jury was free to accept or reject the expert's opinion in deciding, based on the proof provided by plaintiff, whether defendant's Seven-Up machine was the source of his injury...

The pilot also pointed to the Fourth Circuit decision in Silvestri v. Gen. Motors Corp., 271 F. 3d 583 (4th Cir. 2001) where the plaintiff failed to preserve the vehicle that was the basis of a product liability claim against GM. The Fourth Circuit there stated:

In the case before us, the conduct of the spoliator may have been either deliberate or negligent. We know that Silvestri's attorney knew that the vehicle was the central piece of evidence in his case against General Motors and that he had been reminded that this piece of evidence should be preserved or that General Motors should be notified. As it turned out, the vehicle was not preserved, and neither Silvestri nor his attorneys notified General Motors of Silvestri's claim until almost three years after the accident; by then, the evidence had been destroyed by the repair of the vehicle..

Id. at 593-594. In Silvestri, the 4th Circuit affirmed the harsh sanction of dismissal of the claim, and discussed lesser sanctions. Id. Pilot asserted that courts have a wide range of inherent powers to assure that the courtroom is not a forum to restrict the search for truth--well short of dismissing a claim or defense, and allowing pilot's electrical experts to offer their electrical theories, supported by pilot's testimony, was proper, and defendant's motions to exclude should be denied. After hearing all the arguments, the District Court denied the hotel's motions to exclude pilot's electrical experts, and refused to dismiss the NEC negligence per se count of the complaint, but made no pretrial ruling on the impact of any missing evidence.

Judicial Settlement Conferences

The court ordered two settlement conferences: the parties were unable to settle the case prior to the final pretrial hearing, but at the second settlement conference, after the pretrial hearing decisions and about a week before trial, the parties settled the case for 1.5 million dollars, in exchange for full and complete settlement of all claims.

What we learned from this case, as the pilot's lawyers, was that the Judge at the final pretrial hearings apparently agreed with our arguments that no hotel guest should suffer an electrical shock in a hotel shower--whether a pilot or any other hotel guest. At the hearing, one of the hotel's lawyers explained to the Judge that one of the hotel's defenses was that the pilot may have never suffered any shock. The judge poked fun at him, and sarcastically asked him whether he thought it might have been a bolt of lightning instead! The Judge later refused to exclude any of our electrical expert opinions, and subsequently the case was settled with assistance of a Magistrate Judge at the second settlement conference.

Originally posted at InjuryBoard by Rick Shapiro