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KANSAS CITY, KS (August 31, 2010) Four Kansas voters filed suit in federal court on Thursday to block the state's system of appointing justices of the Kansas Supreme Court.
The suit, filed in U.S. District Court for the District of Kansas, claims that the nomination process violates the rights of Kansas voters by giving attorneys "enormous influence" over the selection of judges relative to other citizens.
Under the system, the nine-member Kansas Supreme Court Nominating Commission selects three nominees for the Supreme Court and state appeals courts. The governor then appoints one of the nominees to the open judicial seat. Five of the nine members of the nominating commission are selected through a vote by the state's attorneys. The governor appoints the remaining four.
"The current system thus guarantees lawyers a far greater say that ordinary citizens in Kansas in selecting judges who have great power and control over the lives of regular citizens," the James Madison Center For Free Speech said in a press release. The nonprofit organization is based in Washington.
The center's James Bopp Jr., who represents the plaintiffs, said that the nominating commission process is not unusual among the states. However, Kansas is the only state in which attorneys select the majority of nominating commissioners.
"Democracy is at stake," Bopp said. "The Constitution guarantees that all voters get to vote for public officials. In Kansas, we have only attorneys deciding who the judges will be."
The suit follows the resignation on Aug. 3 of Chief Supreme Court Justice Robert Davis, who died the following day. The nominating commission has until Oct. 3 to submit nominations for Davis' seat.
The suit asks the court to find the nomination process unconstitutional. It names as defendants Kansas Supreme Court Clerk Carol Gilliam Green, nomination commission chairwoman Anne Burke and the five attorney-elected members of the commission. |
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MINNEAPOLIS - (August 24, 2010) An engineering firm that consulted on the Minneapolis bridge that collapsed in 2007 has agreed to pay $52.4 million to settle the last major piece of litigation brought by victims, attorneys said Monday.
San Francisco-based URS Corp. had been sued by more than 100 people who accused the company of missing warning signs in the Interstate 35W bridge before its rush-hour collapse into the Mississippi River. Thirteen people died and 145 were injured.
The settlement averts a trial that had been set for next spring that could have opened URS to punitive damages.
URS had argued that its engineers didn't know about a design flaw in the bridge that made it vulnerable. In a statement, the company said the settlement was necessary to avoid protracted litigation and said it admitted no fault.
At a news conference, several survivors said they were relieved by the settlement and looking forward to getting on with their lives.
"In this nation, justice is spelled out in dollars," said Garrett Ebling, who spent two months in the hospital with multiple injuries. But he said victims would "trade every dollar we receive from this settlement for a bridge that was designed, built and maintained properly."
"There's not a complete way to get justice in this situation," said Erica Gwillim, who plunged 85 feet into the Mississippi and suffered back and neck injuries. "Justice would have been for this to never have happened and for our bodies to be whole and our relationships to be whole."
The two sides had argued in court last month over the victims' request to seek punitive damages. Hennepin County District Judge Deborah Hedlund, who had yet to rule on that request, worked with the two sides on the final terms of the settlement, including a 13-hour session Aug. 14, the victims' attorneys said.
The terms called for $48.6 million of the settlement to go to victims, and $1.5 million to be set aside for a memorial to those who died in the collapse.
Chris Messerly, one of the attorneys for victims, said individual payments would be determined by following a process the state of Minnesota used in compensating victims from a special fund set up after the collapse. He said the amounts would not be made public.
URS was the last of the major players to fight lawsuits by victims seeking compensation. The state paid out $37 million from a special fund in exchange for an agreement that it wouldn't be sued. A paving company that had been resurfacing the bridge, Progressive Contractors Inc., reached an undisclosed settlement last fall with about 130 victims and survivors. PCI also agreed to pay $1 million to settle the state's claims. And URS agreed to pay the state $5 million.
The settlement doesn't end 35W-related litigation entirely. URS and the state have pending claims against Jacobs Engineering Group Inc. of Pasadena, Calif., which acquired the now-defunct firm that designed the original 35W bridge.
Anne Engebretsen, whose mother Sherry died in the collapse, stifled tears at the news conference as she spoke of getting married a month ago without her mother to see it.
"The past three years have been extremely difficult but we are still here," she said. "The pain of our loss may never subside." |
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(August 18, 2010) A plaintiffs lawyer who won $6.5 million that will be paid mostly in Lowe's gift cards for his class action clients and more than $2 million in fees and costs in a settlement of a suit over allegedly stinky drywall calls it the first opportunity for consumers to "get a dime" out of such a case.
"We're the first people that have gotten anything for the consumer," said Don Barrett, the Lexington, Miss., attorney who leads the plaintiffs' team. "It's a good settlement."
The class action suit, filed just six weeks ago in Muscogee County Superior Court in Columbus, Ga., centers on defective drywall that may emit a sulfurous, rotten-egg smell, though it's not clear how severe the smell was in the drywall purchased by plaintiffs in the Columbus case. Nonetheless, Lowe's Home Centers Inc. has hammered out a settlement agreement that includes $2.16 million for fees and costs of the four plaintiffs attorneys and $6.5 million -- payable mostly in store gift cards -- for anyone who purchased drywall from Lowe's stores from -- in the words of the settlement -- "the beginning of time" through July 27. The deal also requires that Lowe's place $1 million in escrow to pay for the cost of publicizing and administering the payoff.
The Columbus case is similar to others filed in federal courts against retailers and manufacturers for damage to homes where allegedly defective and toxic Chinese-made drywall was installed. Some of the plaintiffs and attorneys in the Georgia case, including Barrett, also are involved in the federal cases. But he notes important differences: In the Columbus case, none of Lowe's suppliers were proven to have provided Chinese-made drywall, and the plaintiffs' problems were much less severe than those in the known Chinese drywall cases.
In the Lowe's case, the 39 original plaintiffs, including one who lives in Muscogee County, merely "thought they had a smell" but did not have to replace walls and appliances because the odor decreased over time, Barrett said.
"It's not chump change -- especially since Lowe's didn't sell any Chinese drywall," said Barrett. "If they had been a seller of Chinese drywall, in the first place, we would have taken it to federal court. In the second place, the figure $9.6 million wouldn't have been appropriate. It would have to be more."
Barrett said he filed the case in the Muscogee Superior Court because he wanted a quick resolution. "The federal cases in other states have dragged on for years," he said.
Muscogee County Superior Court Judge Bobby Peters said he has given preliminary approval of the settlement and set a fairness hearing for 2 p.m. Nov. 19, which would also be the deadline for those who have purchased the drywall from Lowe's to opt out of the class.
If the settlement goes forward, consumers who don't opt out would be bound by the deal, which amounts to a Lowe's gift card for either $50 or a maximum of $2,000, depending on whether they kept receipts for purchase of the drywall. If they have receipts and documentation for damages -- either medical bills or related home repair costs -- they could get up to $2,500 cash, according to the preliminary settlement agreement filed in Muscogee County.
The agreement received a bad review from ProPublica, the nonprofit public interest investigative journalism organization.
"The figures involved are small compared with what the federal courts have established as the general cost of repairing a home contaminated by defective drywall," said an article on the organization's website, www.propublica.org. "The U.S. Consumer Product Safety Commission says the only way to repair such homes is to remove the drywall and electrical wiring, a job that can cost $100,000 or more.
The articles quote consumer advocates saying the gift cards wouldn't go far for those whose homes have been built with drywall affected with the problems alleged in the suit: high amounts of sulfur that can emit noxious fumes that corrode electrical wiring, air conditioning units and refrigerators and cause respiratory problems for residents.
But Barrett contends the criticism is misguided because the federal suits involve much more serious problems. "They are letting the perfect be the enemy of the good," he said of the critics. "In other words, in a settlement, you negotiate and you come up with a figure that hopefully both sides are just barely happy with."
In addition to Barrett, of the Don Barret Law Firm in Lexington, Miss., the other plaintiffs attorneys are: C. Austin Gower Jr. of the Charles A. Gower firm in Columbus, the local counsel in the case; Patrick W. Pendley of Pendley, Baudin & Coffin, Plaquemine, La.; and Dewitt Lovelace of the Lovelace Law Firm, Miramar Beach, Fla.
Defense attorneys are: Jannea S. Rogers of Adams and Reese in Mobile, Ala., and William B. Gaudet and Francis V. Liantonio Jr. of Adams and Reese in New Orleans. Calls to the defense attorneys were not returned.
Lowe's announced the agreement and sent out electronic copies of the 65-page settlement. In the settlement agreement, Lowe's "vigorously denies" any wrongdoing or liability. The retailer even denies having ever sold defective drywall. And, at the same time, the agreement allows the company to limit claims from those who say they have purchased defective drywall from Lowe's stores.
"Lowe's proactively agreed to provide compensation to certain Lowe's customers and others who claim to be affected by this allegedly defective drywall," said a statement from Karen S. Cobb, a public relations representative for the Mooresville, N.C.-based corporation. "Lowe's entered into this agreement as part of our commitment to serving our customers, not because such a step is or has been required by law, or because drywall purchased from Lowe's has been proven deficient in any way."
The settlement agreement says the products to be covered "include any and all drywall -- made domestically or in China -- sold by the company and allegedly harmful and or defective for any reason whatsoever, including but not limited to the emission of sulfide gasses with noxious rotten egg-like smells causing corrosion of metals, including copper and silver, and including any other alleged damage to real or personal property, or causing irritant effects or potential health hazards."
Lowe's drew praise from the plaintiffs' side for its handling of the matter. "I'm a plaintiffs lawyer. I deal with corporate malfeasance all the time," Barrett said. "I have to take my hat off to Lowe's. They stepped up and tried to do the right thing."
The case is Glen Vereen, on behalf of himself and all others similarly situated, v. Lowe's Home Centers Inc., Muscogee County Superior Court case No. SU10-CV-2267B. |
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(August 10, 2010) -- General Motors Corp. has failed to convince a federal appeals court to reverse a $3.5 million jury verdict in a case over the death of a teenager in the rollover of an allegedly defective Chevrolet Blazer.
The lower court did not abuse its discretion when it denied several GM requests to intervene in its favor and to exclude evidence in the trial over the death of Matthew John Reynolds, the U.S. Court of Appeals for the Eleventh Circuit said in an order issued Thursday.
Reynolds, a Hall County, Ga., teenager, died in June 2003 when he was ejected from his family's 1995 Chevrolet Blazer following a collision with another car.
His parents, Bonnie and Garland, sued on behalf of themselves and his estate, claiming the Blazer rolled because it was defectively designed. Matthew was ejected and killed after the rollover — not after the collision itself, they said.
The SUV’s center of mass was too high, which made it tip more easily than it should have, the Reynolds claimed. The SUV's roof was also too prone to crush, and its seatbelts were defectively designed and released too easily, they claimed.
In June 2008, the jury awarded the Reynolds and Matthew's estate a total of $3.5 million. GM asked for a new trial, but the court ruled that the experts the Reynolds provided gave ample evidence to support the finding of liability.
GM had argued certain questions — like whether its warnings in the car were adequate or whether Matthew was injured in the initial crash or his subsequent ejection — should have been decided as a matter of law. The district court, though, found its own judgment proper.
The Eleventh Circuit agreed. Though GM offered six grounds on which the verdict should be overturned, the Eleventh Circuit found that the district had acted properly.
“Although we review jury instructions de novo to determine whether they misstate the law or mislead the jury to the prejudice of the objecting party, the district court is afforded wide discretion with respect to the instructions’ style and wording as long as the instructions accurately reflect the law,” the panel said in its per curiam decision.
“With respect to the claimed evidentiary errors, we are not persuaded that any of the challenged decisions amounted to an abuse of discretion,” the panel said.
The Eleventh Circuit added that several questions over Georgia vehicle defect law were properly decided in the Reynolds' favor.
The case is Reynolds et al. v. General Motors Corp., Case Number 08-16182, in the U.S. Court of Appeals for the Eleventh Circuit. |
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New York (August 02, 2010) -- A group of consumers has slapped AT&T Operations Inc. with a putative, nationwide breach of contract and fraud class action claiming the telecommunications giant's high-speed data delivery service is systematically defective and causes Internet, phone and television connectivity problems.
More than 2 million homes use AT&T's Very High Bit-rate DSL technology, according to the complaint, which the company markets and sells under the brand name U-Verse. The product is intended to provide very high Internet speeds, clear Voice Over Internet Protocol telephony, and the capacity to watch and record multiple channels at once on different TV sets, according to the complaint.
The lead plaintiffs, who first subscribed to U-Verse between 2008 and 2010, say the service provides none of the advertised features and that they've instead experienced painfully slow Internet connections, phone call interference and frame-freezing and pixelization of movies and television channels.
“U-verse — hyped and overpromoted as a technological advance — fails of its essential purpose, in that its defective design and inferior infrastructure, built on old copper wiring, rendered it obsolete before it ever began,” the class says in its complaint.
If certified, Friday's suit would not be the only consumer class action AT&T has on its plate. In July, a federal judge certified a class in the U.S. District Court for the Northern District of California accusing AT&T Mobility LLC and Apple Inc. of monopolizing the aftermarket for iPhone voice and data services.
In the U-Verse suit, the putative class is represented by Denney & Barrett PC.
The case is Hancock et al. v. American Telephone and Telegraph Co. Inc. et al., case number 5:10-cv-00822, in the U.S. District Court for the Western District of Oklahoma. |
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New York (August 02, 2010) -- Plaintiffs suing Toyota Motor Corp. over problems with sudden unintended acceleration have revised their lawsuit to include supposedly new evidence of internal e-mails showing the automaker knew years ago that some models required brake override systems to stop sudden speed-ups.
The first amended consolidated complaint, filed Monday in the U.S. District Court for the Central District of California, represents more than 40 million consumers and companies who purchased or leased Toyota vehicles made in the U.S. with throttle control systems, according to plaintiffs' co-lead counsel Hagens Berman Sobol Shapiro LLP.
Plaintiffs say in the new complaint that a federal investigator e-mailed a Toyota employee in 2004, telling the company that there was a more than 400 percent increase in “vehicle speed” complaints involving Toyota Camrys with electronically controlled throttles over those with manually controlled throttles.
Other e-mails among Toyota employees purportedly show that they knew years ago of complaints on the Internet of sudden acceleration in additional models, including Tacomas and Siennas, the complaint said.
“Plaintiffs have not cited a specific cause that would support their claim of a defect in Toyota’s Electronic Throttle Control System, and no credible scientific theory or proof has been advanced to support this allegation,” the company said in response to Monday's consolidated complaint.
“Toyota firmly believes that the system is completely safe and that reliable scientific evidence will demonstrate the safety of our vehicles in the investigations currently under way and, ultimately, to the court,” it said.
The company also rejected claims that the plaintiffs have suffered economic damages because of recent recalls, and it said it looked forward to defending itself against the new complaint.
What's more, Toyota said it had already identified and addressed two specific mechanical causes of possible unintended acceleration.
In April the U.S. Judicial Panel on Multidistrict Litigation centralized the litigation in California.
Toyota continues to face suits across the nation after announcing recalls involving more than 8 million vehicles worldwide, including 6 million in the U.S., mainly related to gas pedals that may become stuck under floor mats. Some suits blame the sudden acceleration problems on a defective electronic throttle control system, while other cases allege owners lost value on their cars because of the company recalls.
The company has also had to recall vehicles for other reasons, including a recall in late July of more than 400,000 Avalon sedans and Lexus 470 SUVs sold in the U.S. due to steering problems.
In early July the automaker recalled nearly 139,000 Lexus vehicles in the U.S. because of possibly faulty valve springs, which can cause abnormal engine noise or idling and, in rare instances, stalling.
The revised consolidated complaint was filed by Steve W. Berman of Hagens Berman and Mark M. Seltzer of Susman Godfrey LLP, co-lead counsel for consumers, as well as multiple other attorneys from additional firms. |
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New York (July 28, 2010) -- For the second time this week a state appeals court has affirmed the dismissal of a suit over Wyeth Inc.'s fen-phen, this time finding that the plaintiff could not prove causation because she did not actually suffer from one of the drug's nondisclosed risks.
In a ruling Tuesday, the Superior Court of Pennsylvania held that Pennsylvania law does not allow a plaintiff to prove proximate causation where a drug manufacturer’s warning disclosed a risk of injury and the plaintiff sustained that very injury, but the manufacturer failed to disclose another risk of injury that the plaintiff did not sustain.
The decision came in the failure-to-warn case of plaintiff Nancy Cochran, who sued Wyeth after being diagnosed with primary pulmonary hypertension in April 2004.
Cochran ingested the prescription drug — sold under the brand name Redux — from November 1996 to August 1997.
The doctor who prescribed her the medication, Dr. Stephen Anthay, informed Cochran that Redux may cause PPH, but was unaware at the time of the risk that the drug could cause valvular heart disease.
Cochran had argued that Redux’s warnings were faulty because they failed to warn of the danger of VHD, even though she did not develop that disease. She contended that as early as 1994, Wyeth had reason to suspect that Redux could cause VHD, and that Anthay wouldn't have prescribed the drug to her had he been adequately warned that Redux could cause the disease.
Wyeth pulled Redux from the market in September 2007 after the U.S. Food and Drug Administration requested the company issue a “black box” warning detailing the risks of VHD.
A trial court sided with Wyeth in September 2009, ruling that Wyeth’s warnings with regard to PPH were adequate because the company informed Anthay that Redux may cause PPH.
Because Cochran suffered from PPH and not VHD, the trial court said, she could not establish that Wyeth’s failure to warn of the risk of VHD was the proximate cause of her particular injury.
In its ruling Tuesday, the appeals court agreed with Wyeth's contention that in order to establish proximate causation, Cochran must prove that the company's warnings failed to disclose the risk of her particular injury, PPH.
Although Anthay testified that he would not have prescribed Redux to Cochran had known of the risk of VHD, that did not alter the fact that Wyeth failed to disclose the risk of VHD and she suffered from PPH.
“In these circumstances, the relationship between the legal wrong (the failure to disclose the risk of VHD) and the injury (PPH) is not directly correlative and is too remote for proximate causation,” the appeals court said. “Therefore, as a matter of law, there is no proximate, causal connection between Wyeth’s failure to disclose the risk of VHD and appellant’s specific injury.”
The decision marks the pharmaceutical giant's second victory in a trio of related cases that were argued together before the Superior Court.
On Monday, the appeals court ruled that Pennsylvania law does not recognize causes of action for negligently failing to test a drug or failing to withdraw it from the market.
The appeals court also found that the appellant's alleged claims of “negligent marketing” and “negligent failure to withdraw Pondimin from the market” failed, since they were not recognized as causes of action under Pennsylvania law.
Thousands of cases over Wyeth's Pondimin were settled as part of a global resolution in 1999, with the drugmaker eventually agreeing to damages of around $13 billion.
The U.S. Court of Appeals for the Third Circuit affirmed an award of $567 million in attorneys' fees in the multidistrict litigation in 2009.
Cochran was represented in the current matter by Eisenberg Rothweiler Winkler Eisenberg & Jeck PC, Williams Love O'Leary & Powers PC and the Law Offices of Howard J. Bashman.
The appellee was represented by Reed Smith LLP and DLA Piper.
The case is Cochran v. Wyeth Inc., case number 2838 EDA 2008, in the Superior Court of Pennsylvania.
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