Head Injury
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allegations of fault against the new defendants.
This raised important issues of pleading and burden of proof.
Mail Contractors argued that plaintiff’s allegations against
the new defendants were inadequate since plaintiff made no independent
allegations of fault against the new defendants. Plaintiff argued
in response that she should not be perceived by a jury as the
source of substantive allegations against the new defendants,
and that the burden of proof for the claims against Holland Hitch
and Unitran should remain with Mail Contractors. Plaintiff requested
a ruling that the court would not entertain a Motion for Judgment
as a Matter of Law under Federal Rule Civil Procedure 50 at the
conclusion of plaintiff’s evidence at trial, but rather
that any such ruling be deferred until the conclusion of all the
evidece. Plaintiff also pled that all the defendants were liable
under the theory of res ipsa loquitur, which was the subject of
a separate Motion for Summary Judgment. The Honorable G. Thomas
VanBebber, Jr. decided all these issues in plaintiff’s favor,
ruling that a plaintiff may adopt the allegations of a defendant
under comparative fault without stating independent allegations
of negligence of her own, and that the burden of proof stays with
the defendant who initiated the allegations. The court separately
decided that the “exclusive control” requirement of
res ipsa loquitur was satisfied under Kansas law notwithstanding
the fact that there were three separate defendants, including
a product manufacturer,
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which exercised
control at different times.
The damages issues were challenging as well. Although Karen’s
injuries and damages were initially catastrophic, she made a heroic
and remarkable recovery, though she has been left with significant
permanent problems. She went on, happily, to marry her physician-fiancée
before trial. Her ordeal included several surgeries, a two-week
hospitalization at the University of Kansas Medical Center, and
a five-week stay at the Kansas Rehabilitation Hospital in Topeka.
She has been left with some left-sided pain, weakness, and coolness
as well as a significant brain atrophy which
interferes with her ability to perform executive functions.
The damages included the statutory maximum $250,000 of non-economic
loss, and $198,000 of medical expenses. The critical damages dispute
was over future lost earnings – was Karen Disidore, who
had been vice president and general manager of a small manufacturing
company, going to eventually be promoted to president of the company
and take a significant leap in earnings had she not been injured?
Plaintiff’s evidence was that Karen was likely to have become
president of her company in five years, take a major leap in earnings,
and those earnings would continue to grow until retirement. The
economic loss projection to age 62 was $5,800,000 and to age 65
it was $6,700,000. The defendants had an economist who projected
plaintiff’s wage loss in the range of $550,000 –
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$1,750,000. Therefore the value
of the case ultimately boiled down to whether the jury was going
to believe that the plaintiff would have probably become president
of her company.
Ultimately, the case settled for $5,000,000
after the jury was selected but before opening statements. All
of the defendants contributed to the settlement, with $4,000,000
coming from Mail Contractors of America, Inc., $500,000 from Unitran,
Inc. and
LARGE
TRUCK TRAFFIC SAFETY FACTS
One of eight traffic fatalities in
2000 resulted from a collision
involving a large truck.
In Missouri in 2000, 10.4% of
all fatal crashes involved large
trucks.
In Kansas in 2000, 12.3% of allfatal crashes involved large
trucks.
In 1997, 41,967 people were
killed on the nation’s roadways. Of these fatalities,
12.7% or, 5,355 involved accidents with large trucks.
The majority of fatal accidents
involving large trucks occur on roads other than interstate
highways.
Source: NTSB |
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