Jury Returns $17.6 Million Verdict After Eight Week Trial

Jury Returns $17.6 Million Verdict After Eight Week Trial

On April 24, 1992, Lynn Johnson and Tom Hayes received the largest products liability verdict in a Kansas state court. After an 8-week trial in Miami County, Kansas, a jury returned an unanimous verdict in three related cases totaling $17.6 million against Conoco, Inc.

Our firm represented David Hurlbut, who was severely burned in the asphalt dip vat explosion that occurred in Paola, Kansas in January 1988, as well as the heirs of John Windisch and Charles Hoffman who died as a result of the explosion.

The jury found that the plaintiffs' injuries and deaths were caused when Conoco Heat Transfer Oil within the heat transfer chamber of the vat auto-ignited resulting in an enormous explosion. Lynn and Tom presented over 60 witnesses and 400 exhibits involving the recommendation of purchase, use and ultimate fatal explosion of Conoco Heat Transfer Oil. The jury deliberated for almost three days and unanimously found Conoco liable for breach of express and implied warranty, strict liability pursuant to 402A and 402B, as well as negligence.

This trial was a large undertaking, but thanks to the use of a number of litigation tools the trial team was able to overcome the difficulties that are associated with such a case. One of the tools was a mock trial conducted by Advocacy Research Associates. Trial presentations were made on behalf of both the plaintiffs and the defendants, the group of jurors was broken down into four juries and the deliberations were videotaped for review. Analysis of the jury deliberations helped us pinpoint key issues that otherwise might have been overlooked. The value of the mock trial as a litigation tool contributed directly to the arguments that led to the verdict.

Perhaps the most challenging issue in the case was how to explain the design, operation and maintenance of the asphalt dip vat and its heat transfer system. To address this problem, we hired a consultant to build a scale model of the 30-foot vat in cooperation with the engineers whom we had retained to testify as expert witnesses. Unfortunately, the vat building was destroyed and the vat itself was substantially deformed by the explosion. We spent a significant amount of time and energy establishing the exact measurements of the vat and its operating characteristics. Because of these efforts, the scale model of the vat and building were received into evidence without objection. After the verdict was returned, several jurors told Lynn and Tom that the scale model was the most effective exhibit in the trial.

Another valuable litigation tool was computer- generated drawings of the asphalt dip vat that were produced by our firm. Through the use of our Macintosh computer system and the expertise of Mark Johnson, numerous technical drawings were generated before and during the trial as new issues arose. Over thirty computer drawings were developed by our firm and all were either used as demonstrative aids or admitted into evidence by the Court.

The turnaround time on the exhibits was extremely important. During the trial, defendants' experts produced new calculations and opinions that required the production of additional computer drawings in order to cross-examine and impeach their testimony. Without these drawings it would have been extremely difficult to explain many of the complicated, technical issues.

Another very important litigation tool used during the trial was a daily trial transcript. With this transcript, it was possible to have the trial testimony shown to the jury on a projector for use in impeaching witnesses and for display during closing argument. The daily transcript not only allowed the trial team to refer to testimony during trial, but also should significantly expedite the appeal process. Because the 8-week trial transcript is already complete, we estimate that six months to one year has been saved on appeal.

The use of all of these litigation tools provided the trial team with many advantages during the development and presentation of the facts to the jury. We invite anyone interested in the litigation techniques used in Hurlbut v. Conoco, Inc. to call us or come by to discuss the role they played in obtaining the largest products liability verdict in Kansas state court history.

Double Death Malpractice Case Settled

Dave Morris recently concluded settlements totaling $2 million in two wrongful death cases arising out of a caesarean delivery during which complications occurred, resulting in the deaths of a 26 year old mother and her child. One lawsuit was filed for the death of the mother, and another for that of the child. The defendants included a nurse anesthetist, a surgeon, an assisting physician, a pulmonologist and Wright Memorial Hospital in Trenton, Missouri, where the decedent mother was admitted for the caesarean.

During the induction of anesthesia, the decedent mother vomited and the stomach contents entered her lungs, causing pulmonary distress, hypoxia, and a myocardial infarction. The medical issues centered upon the manner in which anesthesia was induced, the decision not to deliver the child, and the treatment received in the intensive care unit immediately before cardiac arrest and death. Our anesthesiology expert was prepared to testify at trial that the mother either was not paralyzed at the time of intubation, or cricoid pressure was not applied to prevent aspiration of the stomach contents.

The lawsuits were filed in the Jackson County Circuit Court on May 1, 1991, and set for trial on May 18, 1992. All the defendant physicians were deposed, as well as every nurse, technician or hospital staff member who made any entry in the medical records. These depositions revealed that at the time of intubation, one nurse had observed the decedent mother shake or move in a manner that suggested paralysis was not complete. They also established that shortly before her death, the mother was given curare to paralyze her for transport by ambulance from Trenton to St. Luke's Hospital in Kansas City. We were prepared to present testimony at trial that the curare, which is an histamine, compromised pulmonary function and contributed to the death.

Prior to commencing settlement negotiations, a comprehensive economic analysis was obtained of the pecuniary loss attributable to the death of both the mother and child. We also interviewed more than twenty family members, friends, and teachers and were prepared to present the testimony of those witnesses best able to explain the consequences of the deaths.

In early April, when agreement was reached on the basic terms of the settlement, we had completed all the trial preparations except for deposition of defendants' experts. The settlement provides financial security for the surviving spouse and his 8 year old son, as well as the mother's parents.

SJBM Pitches in to Help Easter Seals

The annual Easter Seals telethon continues to be one of the most respected charitable events in the country and this year Shamberg, Johnson, Bergman & Morris joined the effort in a big way. Along with making a firm contribution, we sponsored the telethon "tote board" and had attorneys and staff members appear on camera each hour with Channel 4's anchor man Phil Witt.

Throughout the day viewers saw many of our secretaries, paralegals and attorneys announce the contribution totals accompanied by a fanfare of trumpets and cheers from the people in the studio. The firm's support of Easter Seals was inspired by clients Luanne and Devin Jones. Devin was a poster child for Easter Seals last year and his mother, Luanne, has devoted countless hours to the Easter Seals programs. We had a great time helping with the telethon and encourage anyone who has a chance to join in the fun next year.

In This Issue

• Apple Computer Selects SJBM for National Promotion
  
• Complex Residential Asbestos Case Successfully Concluded by Settlement
  
• Double Death Malpractice Case Settled
  
• Favorable Verdict in Obstetrical Malpractice Case
  
• SJBM Pitches in to Help Easter Seals
  
• Trial by Fyre: Adventures of Jack Fyre - Litigator
  

Apple Computer Selects SJBM for National Promotion

Apple Computer has made a major commitment to improve their share of the legal market and chose our firm to spearhead their national campaign. After conducting research across the nation, Apple selected our firm to be featured in a 45 minute film that will be released nationwide to dealers and law firms in July of this year. Although two other firms (one in Sacramento and one in Boston) also appear in the film, we are the only trial firm featured in the production.

Apple Computer is publicizing the success the firm has achieved after equipping the entire office with Apple Macintosh computers. The firm converted over to the Macintosh system in November of 1990, believing it to be important to use cutting-edge technology for litigation support, as well as typical office functions. As a result, we are able to develop sophisticated trial exhibits, including computer animation, that eliminate the necessity of expensive outside services, while also maintaining control and flexibility up until the last minute before trial. Our expertise in the use of Macintosh computers has led to lawyers, such as Mark Johnson, being asked by software developers to help them create tools for the legal market.

In the Apple film, partners Dave Morris and Mark Johnson were interviewed, as well as asked to demonstrate the practical application of some of the firm's hardware. Perhaps the highlight of the week's filming was an extravaganza that would have made Cecil B. deMille proud when Apple assembled a full production set at a local blues club in order to film Mark Johnson singing and playing keyboards onstage, while backed by some of the city's best blues musicians. By showing attorneys who have other interests besides Macintosh computers, Apple hopes to attract a larger viewing audience for its videos. The Kansas City Business Journal appropriately summed up an article on the event by questioning whether the finished film will air on MTV. Unfortunately, Mark Johnson will have to continue practicing law because MTV hasn't called and offered to make him a star.

Complex Residential Asbestos Case Successfully Concluded by Settlement

On July 5, 1990, the Johnson family of Olathe, Kansas was dispossessed of their home and all their personal possessions. Harry, Debbie, and their girls were left with only the clothes on their backs and their vehicles. Contractors hired by the Johnsons' homeowner's insurance company had scraped the water damaged ceilings in their home, spreading a thick fog of dust and debris throughout the residence. A wallpaper contractor suggested to the Johnsons that the dust from textured ceilings installed up through the end of the 1970's might contain asbestos, so the Johnsons had it tested. To their surprise the dust contained asbestos, and it was on and in everything. The Johnsons were properly advised by the EPA and the Kansas Department of Health and Environment to leave the premises until the home could be decontaminated and the personal property disposed of in the appropriate manner - a prohibitively expensive venture.

At that point the Johnsons' homeowner's insurance company refused to pay for any additional work or to pay for the family to live off premises. The contractors, who had scraped the ceilings, denied responsibility, and their insurance company denied coverage based on the so-called "pollution exclusion" clause in the contractor's commercial general liability insurance policy.

The Johnsons first tried to resolve their situation through the offices of the Kansas Commissioner of Insurance and Attorney General without success, and finally tried unsuccessfully to interest private attorneys in the case. With some early reluctance, due to the technical nature of the issues and the unsettled law on the subject, Vic Bergman of the firm agreed to take the case, with apt assistance from John Parisi. An action was filed In Johnson County District Court, with a second lawsuit against the contractor's insurance company fought in federal court. The case became increasingly complex, with many issues such as interpretation of the homeowner's and contractor's insurance policies, vicarious liability, breach of implied warranty, negligence per se, strict liability, private nuisance, and negligent infliction of emotional distress.

Because the Johnsons' situation was critical, the court cooperated to move the case on an extremely fast track for its complexity. A $700,000 settlement was reached only days before the jury trial was scheduled. The Johnsons still have to deal with all of the problems caused by their traumatic dispossession from their home, but at least have the financial means to deal with the contamination. The Johnsons will make sure that their next home is not one of the 60% of homes built in Johnson County in the 1960's and 1970's which have asbestos in the sprayed-on ceilings.

Jackson County Jury Returns Favorable Verdict in Obstetrical Malpractice Case

On November 5, 1991, Victor Bergman and Mark Johnson obtained a jury verdict in Jackson County Circuit Court in the amount of $12.9 million in a medical malpractice case against an obstetrician and Humana Prime Health. The tragic events of the case occurred on October 18, 1987, when plaintiff Luanne Jones became increasingly concerned about the lack of movement of her thirty-six week old baby. Ms. Jones testified at trial that when she called her HMO, Humana Prime Health, she was referred to the on call physician for that Sunday who told her to come in to the hospital for testing. The evidence showed that fetal monitoring done at the hospital revealed an unusual sinusoidal pattern that should have alerted the physician to the possibility of a fetal/maternal hemorrhage. Plaintiffs' experts testified an emergency caesarean section and an exchange transfusion at the time of delivery were required to prevent damage to the baby. Vic Bergman argued to the jury that the doctor failed to respond to the obvious warning signals. The caesarean section was delayed for eleven hours, and there was no transfusion at the time of birth. We contended these mistakes resulted in severe fetal blood loss, oxygen deprivation, and profound neurological damage to plaintiff Devin Jones. Devin is a handsome young boy of four who has motor impairment from cerebral palsy and mental retardation. He will need custodial supervision and assistance for the remainder of his life. During the two week trial, expert witnesses in the fields of obstetrics, perinatology, neonatology, pediatric neurology, and rehabilitation economics were called as witnesses.