Articles Posted in Verdicts & Settlements

The Fifth Circuit Court of Appeals held late last month that Mississippi’s $1 million limit on noneconomic damages in personal injury and product liability cases is constitutional.

The case, Learmonth v. Sears, Roebuck & Co., revolved around an incident where a Mississippi woman was seriously injured after being hit by a Sears delivery truck. The jury in that case sided with Learmonth, awarding her $4 million in damages. Unfortunately, the jury never broke down the award, failing to itemize how much of the total was for economic versus noneconomic damages. When the case made its way to a U.S. district court, the judge interpreted the award as having awarded $2.2 million for noneconomic damages. Given the state’s cap on such awards, Learmonth had her $2.2 million reduced down to $1 million.
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Post #1 image. 2013-01-03.jpgMississippi’s Governor Phil Bryant has been trumpeting the state’s tort reform laws as a major economic development according to papers filed in federal court. The governor made the claims in a filing before the court that will decide the constitutionality of the state’s $1 million cap on non-economic damages.

The case, which began in 2006, will decide whether the state’s cap on damages is unjust. The cap was put into place years ago after legislators complained that verdicts in the state had gotten too large, too fast and led to unfairly large awards for plaintiffs. The updated brief on the part of Governor Bryant filed in support of the measure was meant to inject life into the case after the 5th Circuit told attorneys for both sides that briefs needed to be updated.

The case is not expected to be resolved until sometime later this year. Attorneys have said the complexity of the case and possible further oral arguments may drag the matter out well into the New Year. It’s also possible that the 5th Circuit will ask for additional briefs on certain specific legal issues.

The case was started in 2006 after a Mississippi woman was injured in an accident with a Sears truck near Philadelphia, MS. A jury in 2008 found that Sears was liable and awarded the woman $4 million in damages, though the verdict never identified which damages were noneconomic. It was later decided that $2.2 million of the overall verdict was noneconomic; a number that was later reduced by a federal judge to $1 million to align with Mississippi’s law.
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Post #1 image. 2012-08-24.jpgThough the decision was highly anticipated, the Mississippi Supreme Court decided earlier this week to avoid the hotly contested issue of tort reform. Many hoped the Court would take a stand regarding the constitutionality of the state’s current $1 million cap on noneconomic damages in civil injury cases.

The state Supreme Court heard arguments last year dealing in response to a request from a three-judge panel of the 5th U.S. Circuit Court of Appeals regarding the constitutionality of the cap on damage awards in a federal case. The Fifth Circuit panel said at the time that the issue was an important one regarding state law about which there is no current controlling precedent.

Rather than settle the matter, the Supreme Court refused to answer the question, saying that there was no case before the Court on the subject. Justice Michael Randolph wrote that the Court was not willing to “answer a certified constitutional question outside the clear context of its application.” Justice Randolph continued, saying that “…The constitutionality of a statute is not to be addressed abstractly, speculatively, or in the manner of an academic discussion, but rather in the context of its clear application.”
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Post #1 image. 2012-08-14.jpgBayer AG, the maker of Yasmin birth-control pills, said that settlements related to U.S. lawsuits over its product have increased to more than $402 million. Bayer said it has resolved almost 1,900 cases in which it has been claimed that Yasmin and Yaz contraceptives caused blood clots that can lead to heart attacks and strokes. The company said that the payments have broken down to an average of about $212,000 per case.

Bayer also announced that it had more than doubled its financial reserve for future payments related to Yaz cases, setting aside an additional $610 million this quarter alone. The $610 million is to pay the company’s costs beyond what insurance will cover for legal fees, including cases that haven’t been settled yet. Even this huge figure may not be enough as drug-industry analysts have said that Bayer may end up paying out over $2 billion to resolve all the cases related to the birth-control problems.

Lawyers suing the company have brought forward FDA reports of at least 50 deaths tied to the pills from 2004 to 2008. The lawyers have argued that Bayer marketed the contraceptives for unapproved uses and misled women about their risks.

The suits follow a decision in April of this year by the U.S. FDA to order Bayer along with other drug makers to include stronger blood-clot warnings on their contraceptive products. Pills like Yasmin, which contain a synthetic hormone known as drospirenone, will now come with warnings that say researchers have found the drugs can triple a woman’s risk of blood clots.

Given the number of women taking Yasmin, which was the fourth most prescribed oral contraceptive in 2011, with 4.6% of the overall market, the suits have affected potentially millions of women. Bayer faced more than 12,000 lawsuits over the Yasmin line of contraceptives, including claims that they caused blood clots in some women and damaged gallbladders in others. Thus far, Bayer has agreed to settle 1,877 cases.
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Post #3 image. 2012-07-31.jpgJust this week a jury in California handed down a multimillion-dollar verdict against C.R. Bard Inc. and a doctor over a vaginal-mesh implant that left a woman permanently injured. The case, initiated by Christine Scott, was the first vaginal-mesh case to go to trial and indicated good news for other patients who have suffered injuries due to the devices.

Jurors awarded Scott $5 million and her husband an additional $500,000 for being left incontinent and suffering from chronic pain. Scott received the implant in 2008 and then went on to have nine surgical procedures to help fix with problems the device caused. In her case the damage was caused by Bard’s Avaulta Plus vaginal implant which is used to treat pelvic organs that bulge.

The company was found to be negligent given its handling of the devices, with jurors saying the company either knew or should have known that surgeons performing pelvic-floor repair would not realize the potential risks posed by the implant. The jury ultimately placed 60% of the fault on Bard and the remaining 40% on the doctor who implanted the device.

Problems first came to light in August 2011 when a U.S. Food and Drug Administration report stated that vaginal-mesh products should be classified as posing high risk to patients based on a review of side-effect reports from January 2008 to December 2010. In January 2012, the FDA ordered all manufacturers of the devices to begin studying rates of organ damage associated with use of the vaginal-mesh implants. The companies are under orders to conduct three years of safety studies to determine if the devices erode and shrink over time, potentially causing pain and injury to patients.
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Post #3 image. 2012-06-04.jpgThe family of a man in Georgia who died after engaging in a threesome with a woman and a male friend has been awarded $3 million from his cardiologist because the doc failed to warn the amorous man to avoid physical exertion.

In 2009, 31-year-old William Martinez, a police officer from outside Atlanta, went to cardiologist Dr. Sreenivasulu Gangasani complaining of chest pain that radiated into his arm. Dr. Gangasani correctly determined that Martinez was at “high risk” of having clogged heart arteries and ordered a stress test to be done eight days later. Sadly for Martinez’ family he died the day before his scheduled test while having a threesome with a friend and a woman who was not his wife.

The young cop and a male friend met late on the evening of March 12, 2009 to have a threesome with a woman at a motel on Virginia Avenue near the Atlanta airport. Around 3 a.m. he fell off the bed and became unresponsive. When EMT’s were not able to revive him, they took him to nearby South Fulton Medical Center where he was pronounced dead less than an hour later.

The lawyers for the family represented Martinez’ estate and argued that Dr. Gangasani failed to take a proper medical history and failed to inform the patient to stop all physical activity until the test was completed. Apparently the case was convincing as Georgia jury agreed and awarded Martinez’ family $3 million in damages. The estate original sued for $5 million but the number was reduced after it was determined that Martinez was 40% liable for his own death.

The plaintiff’s attorneys had a strong case based on the medicine but admitted that they had a lot of overcome given the juicy details of the case. They had to work hard to direct the jury’s attention back at the medical facts and away from the more sensational aspects of events. “In this case, you had adultery, you had infidelity, you had a Ménage a Trois and you had the fact that he was a police officer,” admits one plaintiff’s attorney Tricia Hoffle.

The defense attorney, Gary Lovell, who represented Dr. Gangasani and the medical group where the consult occurred, CardioVascular Group, said Martinez was in fact “instructed to avoid exertional activity until after the nuclear stress test was completed” and said he plans to appeal the verdict.
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Post #2 image. 2012-05-18.jpgA recent ruling by a state court could make big waves regarding personal injury damage caps in Mississippi. The mother of a young boy who died from smoke inhalation after a fire in an apartment building that did not have proper fire protection might soon be able to collect $6 million in damages from the building’s owners. The court decision contradicts current law in the state which puts damage caps in place to prevent such high judgments. As a result the opinion is guaranteed to receive significant scrutiny from higher courts.

Coahoma County Circuit Judge Charles Webster said that Mississippi’s cap on noneconomic damages violates that state’s constitution. Since 2004, the state has limited the amount a person could collect for pain, suffering and the loss of a loved one to $1 million.

Judge Webster declared such a limit to amount to legislative overreach. Judge Webster believes that any change to Mississippi trial law must be made to the state’s constitution and cannot simply be the result of legislative action. Judge Webster wrote that, “The issue is not whether the limits imposed under the statute are reasonable. Rather, the issue is whether the legislature has the authority to impose any limits, reasonable or not.”

Whether the grieving mother in this case will ever see such a large sum of money depends in large part on what happens with another case currently before the Mississippi Supreme Court. At this very moment the state high court is reviewing a case concerning a $2.2 million noneconomic damage award. If the Mississippi Supreme Court upholds the award with the damage amount intact then this case will likely be upheld and lead to major changes in personal injury cases across the state. If, however, the state Supreme Court overturns the damage amount in the other case then that decision will serve to overrule Judge Webster’s decision in this case.

The mother’s attorney recognized the novelty of the ruling, but said he doesn’t think it is the last time such a challenge will be made against the state’s damage cap law. The mother’s attorney went on to say that he expects his case to make its way up to the state Supreme Court and that he’s ready for the fight that will surely follow.
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KobsPhilley reprint111111.jpgKobs & Philley, PLLC is pleased to announce that the firm has been recognized by Newsweek magazine as a prominent leader in the representation of medical malpractice victims in the United States. With years of legal experience in Mississippi, Kobs & Philley, PLLC represents victims who have been injured by the negligent acts of doctors / physicians and/or those employees, agents and staff of hospitals and clinics in Mississippi.

Each firm contacted for Newsweek’s “Leaders in Medical Malpractice” is in good standing with well-known law associations and/or has been recognized for excellence by respective local media outlets, have up to date verdicts and settlements of important cases.

“Our group of attorneys and staff work hard to achieve the best possible results for our clients, and I am proud of the firm’s work. I am also honored and grateful to Newsweek for recognizing this firm and its accomplishments,” said Benjamin N. Philley, co-founding partner of Kobs & Philley, PLLC. “It has been a privilege to represent families across Mississippi who have regrettably suffered debilitation injuries, and in some cases, the wrongful death of a loved one, whether that be from a car crash, 18-wheeler wreck or med mal” said Jared A. Kobs, co-founding partner of Kobs & Philley, PLLC.

Post #1 image. 3-12-2012.jpgAccording to a recent report by the Sun Herald, a Jones County, Mississippi boy has been awarded nearly $6.9 million because of an accident he had in a Toyota 4Runner. The accident caused the boy, Will Graves, to be paralyzed from the chest down. A federal jury returned a verdict on Friday, February 24, 2012, saying that the Toyota 4Runnner’s design was defective. At the time of the accident, Graves was 16, so his parents sued Toyota on his behalf.

Graves was on his way to work out with friends on New Year’s Eve the day of the accident. Graves has no memory of the accident, but according to experts, Graves weaved onto the shoulder of the road and then tried to over-correct which caused the SUV to tip over. The 4-Runner flipped more than three times.

At trial, Graves’ attorney, Joe Sam Owen, was able to prove that the design of the 4Runner made it heavy on top, making it dangerously likely to flip over. He also demonstrated at trial that 4Runners made between 1990 and 1995 contained the design problem, which has led to several lawsuits. The jury award is intended to cover Graves’ present and future medical expenses, in addition to the pain and suffering that he has suffered. Now, Graves needs continuous care. He is confined to a wheelchair, and he is not able to use his hands.
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The law firm of Kobs & Philley is happy to announce another successful resolution for the Plaintiffs in a case filed in Harrison County Circuit Court. In this case, Plaintiff, who was a passenger in the vehicle that was struck, was traveling Westbound on U.S. Highway 90 in Gulfport, Mississippi. Defendant, who was driving an 18-wheeler loaded with logs, was traveling behind the vehicle in which Plaintiff was a passenger and in the same direction. Abruptly, and without warning, as Plaintiff was sitting in the passenger seat of the vehicle and was stopped at the traffic signal at the intersection of U.S. Highway 90 and U.S. Highway 49, Defendant negligently slammed into the rear of the utility trailer pulled by the vehicle in which Plaintiff was a passenger. At the time of the collision, Defendant was in the course and scope of his employment with a logging company and in furtherance of its business. The force of the impact generated by the log truck striking the vehicle from the rear slammed Plaintiff’s head into the dashboard rendering him unconscious and forced a briefcase into his abdomen. When Plaintiff regained consciousness, he was in pain and vomited at the scene of the collision. Defendant stated to the investigating officer that he could not stop in time. The investigating officer noted as a contributing cause of the accident, that Defendant was “Following Too Closely.”

Because Defendant basically admitted liability for the car wreck, the issue in the case was the extent of Plaintiff’s damages. This was a “Low Speed Impact v. High Damages” type of case. Plaintiff did not dispute that the impact was not high speed. However, in anticipation of Defendant’s position that there is no way that he could have such extensive damages from such a low impact, counsel at Kobs & Philley, PLLC retained an epidemiologist, who opined:

There is no valid scientific basis from which to conclude that the types of injuries assessed in Plaintiff cannot or will not result from an up to 10 mph delta V rear impact collision. . . . There is no valid scientific basis from which to conclude that the types of injuries assessed in Plaintiff cannot or will not result from an up to 10 mph delta V rear impact collision. . . . As a result of the foregoing analysis, I find it more likely than not, from an epidemiologic and injury causation perspective, that Plaintiff’s post-collision injuries and subsequent need for treatment were causally related to the subject collision.
Because Plaintiff’s experts, along with his treating physicians, were able to demonstrate to a reasonable degree of medical certainty that Plaintiff’s injuries were the result of the low speed car wreck, Kobs and Philley was able to successfully negotiate an attractive settlement for Plaintiff.

Again, if you have been in a car wreck regardless of speed, you need to immediately seek treatment. Although you may feel fine physically after the impact, you could have suffered internal damages that manifest themselves at a later time. Waiting to seek treatment could be devastating to your recovery. Please see the Auto Accident Q&A section of our webpage for further information on car wrecks.
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