Defense Verdicts of Note

My Arbitrary and Unscientific Selections
by John Kirkton

The 2006-2007 issue of the annual Illinois Jury Verdicts supplement included an article that I authored, highlighting the five largest reported Illinois personal injury verdicts. For the 2007-2008 Illinois Jury Verdicts issue, I prepared an article that focused on the unique “Traveling Lawyers and Out-of –State Verdicts of Interest” feature, which appears in the monthly Illinois Jury Verdict Reporter newsletter. In this issue, I turn my attention to defense verdicts. As many of our loyal readers know, the Jury Verdict Reporter’s founder, Max Sonderby, began publishing the weekly Cook County Jury Verdict Reporter in 1959 with fifty insurance company customers. So, in tribute to the Jury Verdict Reporter’s defense roots, I present what I believe are five of the most interesting defense verdicts that have been published in the Cook County Jury Verdict Reporter during the last 15 years or so.

Fatal In-Flight Heart Attack— No Defibrillator Aboard (Cook Co.)

In April 2001, Attorneys Lawrence R. Smith and Gerald V. Cleary, III of O’Hagan, Smith & Amundsen (now SmithAmundsen LLC) secured a defense verdict for American Airlines in the LoCicero case. On January 2, 1995 47-year-old computer systems analyst Donald LoCicero suffered a sudden cardiac event and died while on an American Airlines flight from Chicago to San Juan, Puerto Rico. LoCicero had been sleeping so the event was unwitnessed. By the time he was discovered and resuscitation was attempted by the crew and two physician- passengers, LoCicero was cool to the touch, bluish in color, and his pupils were fixed/dilated. His estate alleged that the airline was at fault for failing to equip its planes with automatic external defibrillators (AEDs), which it claimed would have revived LoCicero. $6 million in damages were sought. American Airlines argued it was under no obligation to carry AEDs since there was no FAA regulation requiring them, and contended that, in 1995, AEDs had technical limitations which interfered with their reliability when used during transport. However, in 1997, American had placed AEDs on board its aircraft when no other U.S. domestic carrier had done so. The defense also insisted that even if an AED had been available, it would not have changed the outcome. Supposedly, LoCicero had been snoring loudly during the flight—but the snoring stopped more than 10 minutes before he was discovered. Additionally, American asserted that the plaintiff’s damages were limited to only economic loss by the Death on the High Seas Act, and that the Illinois Wrongful Death Act was preempted, precluding recovery for loss of society. The defense also maintained that the event that resulted in LoCicero’s death took place more than three nautical miles from the U.S. coastline, so the Death on the High Seas Act applied—and the jury agreed in answer to a special interrogatory. Defense attorney Gerald Cleary reported that plaintiff’s expert had criticized American for not carrying AEDs in 1995. However, his testimony was undercut by a document submitted by the expert to the FAA in which he had commended the airline for its use of AEDs since 1997 and had described American as “innovative,” “heroes,” and “highest tier.” Both plaintiff and defense attorneys reported that this was the first trial in the U.S. against an airline for failing to provide AEDs on its planes.

Stop Sign Against Defendant Teen— One Plaintiff Alleges Brain Damage (Cook Co.)

On August 21, 1995 defense attorneys Donald E. Stellato and John W. Gilligan, III of Stellato & Schwartz obtained defense verdicts in a PIMV action where their teenage client allegedly ran a stop sign or failed to yield, causing a crash at Peterson and Drake (Chicago). 28- year-old Shahin Shahsavar claimed that the June 1991 collision caused a closed head injury with left-side brain damage (cognitive deficits with diminished reading skills; memory loss; psychomotor slowing which affected his speech; explosive asocial behavior causing outbursts of anger) plus post-concussion syndrome with reactive depression, TMJ dysfunction which required surgery, and neck/back strains that resulted in chronic pain syndrome. Plaintiff’s vocational rehabilitation expert opined that Shahsavar—a former engineering major who was enrolled in a pre-dentistry curriculum—had been rendered completely unemployable in a professional capacity. At the time of trial, he was working as a used car salesman. Shahsavar sought to recover more than $3.6 million in damages. His 24-year-old passenger suffered only a cut lip and neck/back strains. The defense contended, supported by the testimony of an eastbound motorcyclist (partially impeached) and the extensive vehicular damage, that Shahsavar was speeding and was the sole proximate cause of the accident. It was noted that Shahsavar’s car left no skid marks, which implied contributory negligence. The defense also contested the nature and extent of Shahsavar’s injuries, arguing that his primary problem was depression—which it asserted was due to difficulties the Iranian had assimilating into American society, not the accident. Surveillance video prepared three months before trial supposedly showed Shahsavar leading a fairly normal life. In contrast, Shahsavar limped, held his head, and fidgeted while in court. Defense attorney Donald Stellato reported that once Shahsavar “opened the door” by claiming an accidentrelated explosive temper, the trial judge allowed evidence of an incident two years earlier which had resulted in Shahsavar being arrested because he took a baseball bat to the window of another car after he was involved in a fender-bender at LaSalle and Wacker (Chicago). The jury returned the defense verdicts as to both plaintiffs in roughly 40 minutes.

Plush Camel’s Name at Core of Plaintiff’s Infringement Claim (USDC No. Dist. IL)

In September 2005, Beanie Babies maker Ty Inc., represented by attorneys Edward B. Ruff, III and Michael P. Turiello of Pretzel & Stouffer (Chicago), prevailed in a trademark infringement action that had been brought by Peaceable Planet, another manufacturer of animalshaped plush toys. In February 1999, Georgia-based Peaceable Planet had introduced a toy camel which it named Niles. One year later, Ty Inc. unveiled 20 new “unnamed” Beanie Babies, including a camel. On March 1, 2000 Ty Inc. introduced the camel, via its website, as Niles. Later that month, Peaceable sent Ty Inc. a letter demanding that Ty stop selling its Niles the Camel. However, Ty Inc. continued to market its Niles and, in September 2001, Peaceable brought suit, alleging trademark infringement via “reverse passing off” and false advertising (among other things). H. Ty Warner, the sole owner of Ty Inc., was named as a defendant on the theory that he had been personally involved in the decision to name the Ty camel Niles. At the time of suit, Peaceable had sold roughly 3200 of its Niles plush toy, while Ty Inc. had sold 1.8 million of its Niles the Camel. Peaceable claimed that Ty Inc. knowingly appropriated the Niles name in violation of its trademark rights, and that Ty’s use of the name in its catalogs constituted false advertising and violated the Illinois Consumer Fraud Act. Peaceable sought $2.6 million for disgorgement of profits, plus $450,000 for reasonable royalty and $18 million in punitive damages. Ty Inc. countered that it had come up with the Niles name independently, and that Peaceable’s sales of its Niles were so small that it had failed to establish trademark rights to the name as of the time Ty’s Niles was introduced in March 2000. Ty also maintained that it was common in the plush toy industry for different manufacturers to use the same names—as Peaceable had done for at least 12 of its toys. Ty Inc. also asserted that there was no likelihood of reverse confusion among the consuming public, and no evidence was presented that any consumer was actually confused and believed that Peaceable’s camel was a Beanie Baby based upon the name. Finally the defense argued that Peaceable Planet had brought the action against deep-pocket Ty Inc. to cover business losses, noting that Peaceable had never made a profit. H. Ty Warner, represented by attorneys James P. White, J. Aron Carnahan, and Louise T. Walsh of Welsh & Katz (now Husch Blackwell Sanders Welsh & Katz) was directed out by the judge, who found that Peaceable had presented no evidence of his involvement in naming Niles the Camel. After deliberating for 4 hours, the jury returned a verdict in favor of Ty Inc. on all counts.

Coefficient of Friction Figures in DQ Franchisee’s Defense (Cook Co.)

Attorney Jon Yambert of Stevenson, Rusin & Friedman (now Chilton, Yambert & Porter in Chicago) defended Dairy Queen franchisee Bardelli Corporation against a patron’s claims that she fell and struck her head on asphalt pavement while getting up from a picnic table outside the shop on west Irving Park (Chicago). Allegedly, the plaintiff, a 32-year-old homemaker, suffered a closed head injury which resulted in depression and epileptic seizures that necessitated medication. Plaintiff blamed the incident on spilled ice cream and a poorly designed picnic table, which caused her to lose her balance. Her human factors expert opined that the table design prevented a person from obtaining erect posture while between the bench and the table, leading to a loss of balance. However, the defense responded with its own human factors expert who testified that the table was reasonably safe. The defense insisted that there was nothing unusual about the picnic table, which requires diners to either slide to the end or swing their feet over the bench to leave. The defense also denied that spilled ice cream caused or contributed to the mishap, noting that none was seen by post-occurrence witnesses. Further, the defense retained a professional engineer who concluded that the asphalt was a reasonably safe walking surface—whether or not ice cream was present—and that the presence of ice cream would actually increase the coefficient of friction by making the asphalt stickier. The jury returned this defense verdict in January 1997.

And finally, my all-time favorite defense verdict:

Doctors Hastened Patient’s Demise, Lawyer Tells CBA (Cook Co.)

Attorneys George F. Galland Jr. of Davis, Miner, Barnhill & Galland, and Thomas E. Johnson of Johnson, Jones & Snelling, successfully defended Attorney Max Brown in a defamation action brought against him by two physicians, who sought to recover a combined $2.5 million in damages. In April 1990, Brown, the general counsel for the hospital now known as Rush University Medical Center, gave a presentation at a Chicago Bar Association Health Law Committee seminar on the legal and medical issues associated with the withdrawal of life support from terminally-ill patients. During his talk, Brown recounted a conversation he said he had with the plaintiff physicians when all three worked at Michael Reese Hospital where Brown was a staff attorney and the plaintiffs were in charge of the Intensive Care Unit. Brown said that the physicians told him of speeding the death of a terminally-ill patient with an injection of potassium because the patient was lingering and they needed the bed. Subsequently, both doctors denied that they ever hastened a patient’s demise—they insisted that such conduct could not occur given the variety of alarms and monitors in the ICU—and maintained that the conversation with Brown had never taken place. In this action for slander, the plaintiffs charged that Brown made the defamatory statements in retaliation for criticism that one of them had leveled in a letter to the editor of the Chicago Tribune following Brown’s handling of the Linares matter. In 1988, Rudy Linares held a gun on police and Rush personnel while he disconnected the respirator from his infant son, who was brain damaged and vegetative after choking on a balloon. Brown had taken the position that a court order to remove life support was required to avoid the risk of criminal penalties. The physician’s letter, which supposedly advocated reliance on the physician to act compassionately, alluded to but did not name either Brown or Rush. Subsequently, in 1991, Illinois enacted the Health Care Surrogate Act, “right-to-die” legislation providing guidelines for the withdrawal of life-sustaining treatment without court intervention. The defense contended that Brown’s conversation with the plaintiffs had, in fact, taken place and was accurately described at the CBA seminar. The defense called a Hewlett-Packard service representative to verify that ICU monitors/alarms can be turned off. Further, a forensic pathologist testified that a lethal potassium injection would be untraceable since many of the body’s cells burst on death, releasing potassium—so an elevated potassium level is a normal post-mortem finding. While attorney Brown admitted that the letter to the editor had a role in his decision to speak out on the right-to-die issue, he denied that retaliation was a motive. Update: Note that Attorney Max Brown continues to serve as vice president and general counsel of Rush University Medical Center, where he was instrumental in instituting the hospital’s successful Co-Mediation Program for resolution of medical malpractice cases.

John Kirkton has been the editor of the Jury Verdict Reporter, a division of Law Bulletin Publishing Co., since 1991. The Jury Verdict Reporter maintains a database of more than 75,000 published summaries of civil jury verdicts and negotiated settlements for Illinois and Wisconsin venues. Copyright © Law Bulletin Publishing Co. 2010.