Ted Compton, Steve Compton, and Karen Compton (seated left to right) celebrate with Lynn Johnson, Pat Hamilton, Diane Huey and Steve Six (standing, left to right), the winning trial and appellate team in Compton v. Subaru.
Supreme Court Declines Review
of Tenth Circuit DaubertRuling
On February 18, 1997, the United States Supreme Court rejected bids by Subaru of America, Inc. and Fuji Heavy Industries, Ltd. to overturn a 1994 jury verdict which found their design of a 1982 Subaru station wagon's roof unreasonably dangerous and defective. Steve Compton, the rear left seat occupant of the 1982 Subaru, was rendered quadriplegic, due to a roof design defect, during a low speed rollover accident. Compton brought sit against Subaru and Fuji alleging defects in design and manufacture of the station wagon.
After a three week trial in April of 1994, handled by Lynn Johnson and Pat Hamilton, a federal court jury in Wichita awarded $11.7 million in damages, assigning 56% of the fault to the defendants. Judgment was entered for $6.5 million. (Newsletter Vol. 3, No. 1, Spring 1994).
The issue on appeal was whether Compton's automotive design expert was qualified to express expert opinions about the design of the Subaru's roof, in light of the recent Supreme Court decision in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993), which overruled the Frye test and set the standard for admitting scientific expert testimony in federal trials.
Subaru and Fuji argued at trial and on appeal that Compton's design expert was not qualified to offer opinions because he failed to meet all of the factors for evaluating expert testimony set forth in Daubert.
Compton argued that the Daubert decision was not applicable to expert witnesses whose opinions were based on experience and education rather than novel scientific principles.
The trial judge, the Honorable Monti L. Belot, ruled that Daubert was inapplicable to Compton's design expert's testimony and allowed the expert to testify under Rule 702 F.R.E.
Lynn Johnson argued the appeal with help on the brief from Steve Six and Pat Hamilton. On April 30, 1996, the United States Court of Appeals for the Tenth Circuit affirmed the trial court's ruling noting, "[t]he language in Daubert makes clear the factors outlined by the [Supreme] Court and applicable only when a proffered expert relies on some principle or methodology. In other words, application of the Daubert factors is unwarranted in cases where expert testimony is based solely upon experience or training." Compton v. Subaru of America, Inc., 82 F.3d 1513, 1518 (1996). (Newsletter Vol. 4, No. 2, Summer 1996).
The Tenth Circuit noted that Daubert did not change the "traditional" analysis of expert testimony under Rule 702 "except in cases involving unique, untested, or controversial methodologies or techniques."
In sum, we do not believe Daubert completely changes our traditional analysis under Rule 702. Instead, Daubert sets out additional factors the trial court should consider under Rule 702 if an expert witness offers testimony based upon a particular methodology or technique. Id. at 1519.
The court declined to reach the question of whether Daubert mandated a further inquiry into Compton's expert's"scientific, technical, or other specialized knowledge" because it found the expert's testimony was not based upon any novel or unique methodology or technique:
Rather, [Compton's expert] reached his expert conclusions by drawing upon general engineering principles and his twenty-two years of experience as an automotive engineer. Absent some particular methodology or technique, Daubert simply has little bearing on [Compton's expert's] testimony. Id
After the Tenth Circuit denied Subaru and Fuji's petition for rehearing en banc, the automakers appealed to the United States Supreme Court. On December 16, 1996, the Supreme Court denied their petition for certiorari.
Subaru and Fuji's petition for rehearing was denied on February 18, 1997, finally ending the case.
Firm Web Site Debuts on World Wide Web
Shamberg Johnson & Bergman has found a home on the World Wide Web.
The Uniform Resource Locator (URL) or web address for the law firm is: www.sjblaw.com. There you will find the Shamberg, Johnson & Bergman homepage. Debuting on June 1, 1997, the firm's homepage will feature the firm's full electronic brochure with the biographical information for all the firm's attorneys.
In addition, the firm history and mission statement are incorporated into the web site designed for the firm by Unicom Communications, the Overland Park, Kansas internet service provider.
For the lay person accessing the firm's web site, a collection of frequently asked questions on legal issues is included. Browsers on the site can find answers to questions on medical negligence, products liability, crashworthiness and False Claims Act cases.
Frequently we receive requests from attorneys and firms for reprints of earlier newsletter articles.
On the firm's homepage, all prior editions of the firm newsletter are available and the text and graphics incorporated in the site can be downloaded and printed on remote computers.
As a result, almost any prior article printed in this newsletter can be accessed at any time of the day.
Links are also provided to other trial attorney organizations and to the homepages of other Kansas legal organizations including Washburn University Law School. Attorneys wishing to communicate a referral, be added to the mailing list, correct a mailing address, or send email can do so from forms on the homepage.
The web site can be accessed by any version of Netscape, Microsoft Explorer, NCSA Mosaic, or similar programs or web browsers. For additional information, contact the firm at 913-642-0600 or send email to mail@sjblaw.com.
Shamberg, Johnson & Bergman: http://www.sjblaw.com/
Email:
Lynn Johnson ljohnson@sjblaw.com
Vic Bergman vbergman@sjblaw.com
John Parisi jparisi@sjblaw.com
Steve Brown sbrown@sjblaw.com
Steve Six ssix@sjblaw.com
Pat Hamilton phamilton@sjblaw.com
Diane Huey dianeh@unicom.net
Kristi Razack kristir@unicom.net
Deana Wagoner dwagoner@unicom.net
Kansas PIP Benefits: Do Not Forget Substitution Benefits
Substitution Benefits are a valuable, but frequently overlooked benefit in PIP coverage in automobile accident cases in Kansas. These benefits are defined in K.S.A. § 40-3103(w) to generally include expenses incurred replacing services such as cooking, cleaning, transporting children or performing other household duties, which the injured person would have performed but is unable to do because of the injury.
Benefits are permitted up to $25 per day for 365 days. In a serious injury case this can provide an additional $9,125 to your client. Ask your client to keep track of the services which others are providing and present this documentation to support the claim. Thirty days after the claim is submitted interest will begin to accrue at 18%. K.S.A. § 40-3110.
Insurers will frequently attempt to deny payment of these benefits for two reasons:
(1) The injured person does not have any actual receipts documenting expenses incurred; or
(2) the services were provided by family members.
Under Kansas law no actual expense receipts are required and the fact that a family member performed the services does not bar the payment of these benefits. See Hephner v. Traders Insurance Co., 254 Kan. 226 (1993).
If the claim is still denied, contact the Kansas Insurance Department for assistance.
In This Issue
- Supreme Court Declines Review of Tenth
Circuit Daubert Ruling - Gender-Based Violence Leads to Powerful Remedy
- False Claims Act Cases Make Everyone A Winner
- Firm Web Site Debuts on World Wide Web
- Kansas PIP Substitution Benefits
- NHTSA Web Site Provides Excellent Resources
- Roof Crush-Quadriplegia Case Settled With
Chrysler Corporation
Gender-Based Violence Leads to Powerful Federal Remedy
Victims of violence motivated by gender have a powerful remedy under the federal Violence Against Women's Act, which went into effect on September 13, 1994. 42 U.S.C. § 13981. Women abused and battered by their husbands, boyfriends and unwanted suitors, or attacked or raped by assailants, have a right to collect unlimited compensatory and punitive damages, plus injunctive and declaratory relief. In addition, the attorney fees allowable under 42 U.S.C. § 1988 include expert witness fees and are also recoverable. The statute of limitations is four years. The plaintiff must prove by a preponderance of the evidence that an act or series of acts that would constitute a felony against a person or property and which posed a serious risk of physical injury was motivated by gender. There is no requirement that the defendant be charged with the crime, just that it be chargeable.
The Act creates a classification of protected persons described as "victims of gender-motivated violence." The threshold issue, not yet well resolved, and currently working through the federal courts, is whether the Act is constitutional. The constitutionality of the Act was rejected in Brzonkala v. Virginia Polytechnic et al., 935 F. Supp.779 (W.D. VA. 1996) and upheld in Jane Doe v. John Doe, 929 F. Supp. 608 (D. Conn. 1996); and United States v. Guzman, 953 F.Supp. 84 (S.D.N.Y. 1997).
Jane Doe alleged that her husband deprived her of the constitutional right to be free from gender motivated violence through abusive and violent treatment of her for a period of twenty years. John Doe challenged the constitutionality of the VAWA. The federal court upheld the constitutionality of the Act, finding it a proper exercise of congressional power under the Commerce Clause.
Obviously, not every woman injured by gender-based violence will have the practical opportunity to benefit from the Act. A defendant's inability to pay a judgment will preclude many women from having any remedy at all. Nevertheless, in cases where the perpetrator has significant assets or income, there is the potential for sizeable judgments. This potential will make it possible for many claims to be settled. The rights created under VAWA also have implications in the context of settlements in divorce proceedings where the wife was the victim of felonious physical abuse.
One thing the O.J. Simpson debacle has brought to light is the issue of widespread violence against women arising from the need some men have to exercise unwanted control. The extent of the problem is shocking, and is documented in the startling congressional hearings on VAWA detailing a massive problem of male to female violence in marriages, in relationships, and, to a very significant degree, on college campuses. The malady exists across socioeconomic status, and is often found in the professions, in the business world, and in the high profile sports and entertainment world. With the breadth and teeth that VAWA has been given, we expect to see some meaningful litigation under that Act.
False Claims Act Cases--Unique Law Makes Everyone a Winner
Win for Justice: dishonest profiteers who fleece the public welfare system are exposed and held accountable. Win for the Public: the badly strapped and sagging federal budget is significantly replenished. Win for the whistleblower: they are rewarded for their trouble and efforts. Ten percent of Medicare's budget, or roughly $17 billion, goes to pay false or inflated claims from health care providers. Attorneys have an opportunity to rectify some of the abuse through the False Claims Act.
Passed at the request of Abraham Lincoln in 1863, the False Claims Act, 31 U.S.C. § 3729 et seq., provides financial incentives for "whistleblowers." Under the Act a person who discloses the existence of fraud to the government by filing a False Claims Act case is rewarded by receipt of between 15% and 30% of the total amount recovered.
The amount the relator, or "qui tam plaintiff" will receive depends on who prosecutes the action. By law, the Department of Justice has the first option to prosecute the claim. Such prosecutions have been targeted as a high Justice Department priority nationwide. If the government agrees to prosecute the lawsuit, then the relator receives no more than 25% of the recovery. However, if the government elects not to intervene, then the relator gets between 25% and 30% of the amount recovered.
Since 1986, False Claims Act cases have generated more than one billion dollars in recoveries to the federal treasury, which is a very small part of the total loss. The totals recovered keep accelerating every year as larger fraud schemes are uncovered. These cases represent a growing area of our firm's practice.
Relators under the False Claims Act are entitled not only to a portion of the proceeds recovered, but also to reasonable attorneys fees, costs, and expenses. This makes the False Claims Act cases particularly attractive federal civil actions because the recovery is not diminished by litigation costs and expenses.
Recoveries can be large even where the actual amount at issue is not particularly significant on a per claim basis. This is because the court first trebles the damages, and then tacks on a civil penalty for each fraudulent claim submitted in an amount no less than $5,000 and no more than $10,000. Just 100 small false claims can easily add up to between $500,000 and $1,000,000 in civil penalty liability alone. For example, an $8.00 overcharge billed to 100 patients becomes a potential liability of $1,002,400.00 because of the civil penalty provisions.
False claims cases can be found in the process of doing medical records reviews (e.g. hospital or home care companies charging for services not provided), verifying Medicare or Medicaid liens, in the context of employment law matters, or even in the process of helping friends or relatives deal with medical bills or providers.
Workers in health care settings discharged for various reasons may have specific knowledge of false or fraudulent claims made by their present or former employers. Of the cases filed by this firm in 1996 and 1997, nine of the relators were former hospital or business employees with direct knowledge of fraudulent and inflated claims. Most had documents or testimony that directly supported their claims.
Time is of the essence in filing a False Claims Act case. While the statute of limitations stretches back six years, the statute provides recovery only to the first individual to file and disclose the existence of the fraud. The Act is somewhat technical and exacting. There is a mandatory sealing period during which the existence of the suit cannot be disclosed. Violating the seal can be grounds for dismissal. More importantly, the sealing period cuts off the relator from the normal pre-trial discovery processes since the Complaint cannot be served on the opposing side until the Department of Justice makes a decision whether to intervene.
The seal provision also makes it difficult for the relator's attorney to conduct an independent investigation into the merits of the claim. Since tipping off the target of the investigation might arguably violate the seal provisions, the relator's attorney is somewhat limited in terms of an active investigation of the claim.
Our firm has developed knowledge and experience in these
complex and worthwhile matters.
NHTSA Web Site Provides Excellent Resources
The National Highway Traffic Safety Administration (NHTSA) has recently made its database available for searching at a site on the world wide web. The NHTSA site contains a terrific amount of information that attorneys dealing with defective automobile cases may tap and use at no charge.
Located at "www.nhtsa.dot.gov," the web site contains summaries of all recalls, all technical service advisories and all owner complaints on vehicles manufactured since 1980. By searching through this online database, you can obtain the file number and request the entire file from NHTSA directly.
It wasn't my fault! That stop sign appeared where no stop sign had ever been before!
Vehicle recalls can be searched easily by providing the year, make, and model of the vehicle and searching through the database. Searches take about 30 minutes at peak time.
Roof Crush-Quadriplegia Case Settled With Chrysler Corporation
An anticipated five-week trial of a products liability action was averted after Chrysler Corporation agreed to pay $5.5 million to settle the case.
This tragic case arose on August 14, 1993, when Leslie Terry was rendered quadriplegic in a 28 mph rollover accident on Interstate 70 near Abilene, Kansas. The roof of the 1989 Dodge Dakota pickup truck in which she was a passenger collapsed, contributing to the quadriplegia.
Exhibit showing the degree of roof crush in the Dakota pickup truck that injured Leslie Terry in a low-speed roll-over.
Lynn Johnson and Pat Hamilton of our firm brought suit against Chrysler alleging design and manufacturing defects in the pickup truck's roof and roof support structure. The Kansas Department of Transportation (KDOT) was also sued on the ground that negligent road maintenance contributed to the rollover accident. Discovery uncovered the taped 911 call placed after the accident, which indicated that KDOT knew the asphalt which caused the driver of Terry's pickup to lose control was in disrepair. KDOT settled with Terry for $300,000.
Although Chrysler denied any liability for Terry's injuries, internal Chrysler documents obtained through discovery established Chrysler's knowledge that the roof structure of the 1989 Dodge Dakota would not adequately protect an occupant during a forseeable rollover accident.
For example, in early 1987, Chrysler conducted roof strength tests which showed that the Dodge Dakota's roof would not pass Chrysler's own internal roof strength standard or Federal Motor Vehicle Safety Standard 216, which was to become applicable to pickup trucks in September of 1994. Accordingly, Chrysler developed a "roof rail inner" to strengthen the Dodge Dakota pickup truck roof design. Although development of the "roof rail inner" was completed in 1987, the new part was not incorporated into Dodge Dakotas until model year 1990. Discovery also revealed that the person responsible for roof design had only recently graduated from college and had very limited experience.
Additionally, one of Chrysler's expert witnesses admitted that one of the functions of a roof and roof support structure is to provide protection to occupants in the event of a rollover accident. The expert testified that to assess the ability of a roof to protect an occupant in a rollover accident, an automobile manufacturer should subject the vehicle to tests and examine the performance of similar vehicles which had been involved in rollover accidents. Chrysler, however, did not conduct roof crush tests to determine if the roof would protect an occupant in a rollover accident nor did it conduct any field studies to determine how previous model year Dodge Dakota pickups were protecting occupants in rollover accidents.
Our firm is handling several crashworthiness actions, including other rollover cases.