Crashworthiness Trial Won in Wichita

Crashworthiness Trial Won in Wichita

 After three weeks of trial, a federal court jury in Wichita, Kansas found that the design of the roof of the 1982 Subaru station wagon, in which Steve Compton was a rear seat passenger, was defective and unreasonably dangerous. The jury awarded damages of $ 11.7 million and assigned Subaru of America, Inc. and Fuji Heavy Industries, Ltd. 56% of the fault. Our client Steve Compton was rendered a quadriplegic during a low-speed rollover when the roof surrounding the rear seat passenger compartment crushed excessively.

This was the first case in which Lynn Johnson and his trial team of Pat Hamilton and Diane Huey used a computer animation to assist their occupant kinematics experts in explaining the roof crush and injury mechanism. The animation was prepared by Brad Mathison of Fearless Eye, a computer consulting firm in Kansas City, Missouri. Mr. Mathison worked with the plaintiff's accident reconstruction and occupant kinematics experts to obtain precise measurements of both the accident and exemplar vehicles. These measurements were the bases for an animation showing the roof crush of the Subaru during the rollover and how it caused the spinal cord injury to Steve Compton. The use of the animation was challenged vigorously by the defense counsel. However, after trial briefs, oral arguments and the testimony of Mr. Mathison, the animation was admitted into evidence. Lynn believes the animation was one of the most important pieces of evidence in the case because it enabled the jury to visualize in three dimensions the manner in which the roof crushed into Steve Compton's occupant protection space during the rollover.

A key to the evidentiary foundation for the animation was the accident vehicle. During the early days of his investigation of the case, Lynn decided to purchase both the accident vehicle and an identical Subaru. Throughout the discovery both the accident and the exemplar vehicles were measured, photographed, videotaped and poked and prodded numerous times. Without both, the animation would have been impossible to complete. For trial both vehicles were transported to Wichita and housed in an exhibition room at a local hotel. The room was arranged like a courtroom and pursuant to agreement between counsel it was used throughout the trial when testimony or other evidence was presented on the roof design and accident sequence.

The presentation of the case was complicated by the fact that Steve Compton and his friends had been drinking the day of the accident. Rather than avoid this issue, Lynn raised it first in voir dire. He asked questions about the jurors' own experiences with drinking and driving, whether they had teen age children, and their concerns about teen age drinking. During trial, Lynn asked Steve Compton questions that allowed him to talk directly to the jury about the drinking that occurred. Steve Compton openly accepted responsibility for his conduct and the conduct of his friends, and Lynn told the jury that fault should be apportioned to Steve, the driver, and the front seat passenger.

Steve Compton is the first quadriplegic ever to graduate from Kansas State University in four years' time. He is a young man of great courage and determination and we are proud that he is our client.

Wichita Wrongful Death Case Concluded

The surviving wife and four children of Mr. Wayne Phillips successfully concluded their wrongful death/medical malpractice action against three physicians and Newton Health Care Corporation, d/b/a Newton Medical Center. Vic Bergman and John Parisi handled the case for the plaintiffs. The action arose from an emergency room visit made by Mr. Phillips to Newton Medical Center in the early-morning hours of April 9, 1991. Mr. Phillips, 47 years old, presented with symptoms "atypical" of a myocardial infarction but suggestive of such an event. An EKG was ordered by the defendant emergency room physician, as he was about to go off duty. He arranged for another physician to evaluate the EKG results later that morning. In the meantime, Mr. Phillips was discharged from the defendant hospital by the nurse, who misunderstood the emergency room physician's intentions with regard to keeping Mr. Phillips at the hospital until the other physician evaluated him. When the nurse realized the mistake, no effort was made to contact Mr. Phillips to come back to the hospital. When the second defendant physician arrived at the hospital and looked at the electrocardiogram, he relayed word to Mr. Phillips, through his wife, that he should make arrangements to see his family physician; but there was a dispute about whether he reassured Mrs. Phillips everything was all right, as she said, or advised that Mr. Phillips follow up on an emergency basis, as he said. Three days later, feeling better but still fatigued, Mr. Phillips went to see his regular internist, who was also a defendant, who decided to obtain copies of the emergency room records and tests before doing any further evaluation of his own, and who did not think the situation was particularly life-threatening. Arrangements were made for Mr. Phillips to come back the following week for further evaluation. The next day, while visiting his son at K-State University, Mr. Phillips died of a heart attack.

 The total settlement from all defendants was $1.2 million. This case is an excellent illustration of the principle we have previously discussed in this Newsletter that the intangible aspects of the "pecuniary loss" provisions of the Kansas Wrongful Death Statute, K.S.A. . 60-1901, et seq., have great value, both before a jury and for settlement purposes. Also, because of the $100,000 "cap trap" (discussed in previous editions of this newsletter) the decision was made in the case to waive the nonpecuniary damages, had the case gone to trial.

Old and New Faces

The passage of time inevitably brings change, and our law firm is no exception. Beginning January 1, 1994, John Shamberg chose to take Of Counsel status with our firm. This is a change in form only as John has not altered his approach to the practice of law. He is still here full time, continues to accept cases, and remains very active in the firm's practice. John Shamberg still sets the firm's standards for professionalism and dedication to the client's cause, and we all look forward to many more years of practicing law with him.

On January 1,1994, John Parisi joined Lynn Johnson, Vic Bergman and Dave Morris as one of the principals of the firm. John joined the firm in 1988 after graduating from the University of Missouri-Kansas City Law School. His practice has included cases in the areas of products liability, medical malpractice, and insurance coverage. However, John's first love is environmental law and he has litigated major cases in both the Kansas and Missouri federal courts, including Martin v. University of Kansas, in which he and Dave Morris forced the cleanup of a toxic dump near DeSoto, Kansas. We are proud to have John Parisi become one of the principals of our firm.

We are pleased to have an outstanding group of associate attorneys assisting the firm's principals. Steve Brown, who completed both his undergraduate and law school education at the University of Kansas, joined our firm in the Summer of 1992. Steve has worked on a variety of cases, including medical malpractice, automobile accidents, products liability, breach of fiduciary duty, insurance litigation, and ERISA. Steve already has been a second chair in two trials, one in Wyandotte County District Court and the other in the United States District Court for the Western District of Missouri.

John Rogers is a refugee from Texas and a graduate of Washburn Law School, who joined our firm in the Summer of 1993. In addition to assisting on a wide ranging case load, John enjoys learning new software and exploring the limits of the firm's Macintosh computer system. John was the first attorney in the firm to master our new color scanner and printer to produce a settlement brochure using color photographs and illustrations.

Pat Hamilton, another University of Kansas Law School graduate, recently joined our firm. Pat's first assignment was to spend three weeks in April in Wichita to second chair Lynn Johnson in the Compton v. Subaru trial. With that experience behind him, Pat is on his way to becoming an expert in crashworthiness litigation. Presently, he is working on cases against GM and Chrysler.

Tony DeWitt is our newest lawyer. He comes to us after completing a clerkship with Judge Edward D. Robertson of the Missouri Supreme Court. Tony is a graduate of St. Louis University Law School, and practiced as a respiratory therapist before choosing law as a career. Tony is looking forward to working on the many complex medical-legal cases in the office, as well as products liability and other litigation.

As always, our door is open, so John, Steve, Pat and Tony invite all their friends to stop by and say hello.

In This Issue

• Policy Limits Settled in Wichita Malpractice Case
  
• Wichita Wrongful Death Case Concluded
  
• Use Presentation Software for Trial and CLE Programs
  
• Old and New Faces
  
• Trial by Fyre: Adventures of Jack Fyre - Litigator
  

Policy Limits Settlement in Wichita Malpractice Case

An anticipated 3-to-4-week trial of a medical malpractice action against a Wichita pediatric cardiologist, a pediatric anesthesiologist, and a family practitioner, scheduled to begin April 5,1994, was averted by policy-limits settlements with each of the defendants..

The action was on behalf of a 4-year-old girl, born in June of 1990, with an unusual chromosomal abnormality called Turner's syndrome, which carries with it a high risk for certain heart abnormalities, most often coarctation (narrowing) of the aorta, and aortic valve stenosis (narrowing). Neither Turner's syndrome nor these abnormalities are life-threatening if they are diagnosed and managed, but, in this case, the diagnosis of the baby's heart problems was missed initially by the pediatric cardiologist and then, in turn, by the family practitioner and pediatric anesthesiologist.

As a result, in November 1990, at the age of 4 1/2 months, the plaintiff was taken to surgery for a hernia, put under a general anesthetic, and had a cardiac arrest with profound heart failure, resulting in brain injury and permanent motor impairment. Our firm's investigation revealed that when the plaintiff was 6 weeks old, she had a precautionary EKG taken because of murmurs which had been heard on routine examinations. This test, done three months before the hernia surgery, suggested that her underlying cardiac abnormalities had produced observable EKG changes indicating that the heart muscle had begun to "hypertrophy" or thicken as a result of over work from the flow obstruction. The significance of this test was not appreciated by the cardiologist, and not made known to the other defendants.

The family practitioner, however, did have information about plaintiff's evolving symptoms, like a significant persistent unexplained murmur, a failure to thrive and gain weight, and symptoms consistent with heart failure, all prior to the surgery, which were not followed up.

He then failed to act properly on this information. The plaintiff's position was that, where there was unevaluated coarctation of the aorta and the hernia surgery was elective, the underlying heart problems should have been attended to first. The failure to do that subjected the plaintiff to a general anesthetic using a powerful cardiac depressant drug, and put her into dramatic heart failure, from which she was resuscitated btit not entirely spared.

As a result of this insult to plaintiff's cardiovascular system and the traumatic interruption of her normal blood flow, the plaintiff sustained significant neurological injury to her brain and has permanent and significant motor impairment and associated developmental delay.

Each of the defendants had $1,000,000.00 in insurance coverage, for a total of $3,000,000.00, all of which will be paid in settlement of this complicated case. Vic Bergman handled the case for the firm, and utilized experts in the fields of pediatric cardiology, pediatric anesthesiology, pediatrics/neonatology, pediatric neurology, life-care planning, and medical economics.

Use Presentation Software for Trial and CLE Programs

Have you ever attended a business presentation and found yourself admiring the speaker's effective use of color overheads and slides? Today, professional looking overheads can be produced easily by any attorney using a personal computer.

For several years Dave Morris has been using the firm's Macintosh computer system and presentation software to prepare color overheads for use at both trial and CLE programs. Using presentation software, the trial attorney may display text, illustrations, and graphs to the jury or audience.

Presentation software, such as Aldus Persuasion and Microsoft PowerPoint, use an outliner to organize the presentation. Text is typed into an outline, then each major heading is automatically converted to an overhead. Because the software comes with a large number of templates, you do not have to be a graphic artist to create professional looking overheads. Just pick a template and watch the software place your text in the proper position on the overhead. Once you have prepared your overheads, they may be printed on a printer in your office or sent to a service bureau.

If you want to add a graph or chart to an overhead, you don't need a separate software package because today's programs have this capability. Adding an illustration, such as an anatomical drawing, can be done easily by pasting or importing the graphic.

The next time you are outlining your closing argument, consider using presentation software, printing overheads, and using them to narrate your argument to the jury.