Hon. Judge Kenneth Cory declared a mistrial in Yago v. Toyota, a case considering whether the Golden Nugget hotel and casino in Las Vegas had taken adequate steps to ensure the safety of the guard rails in its elevated self-parking structure. It turned out that the judge’s son was represented by the plaintiff’s firm in an unrelated lawsuit.
Archive for August, 2010
August 31st, 2010 | Published in Marcinkowski v. Golden Nugget
August 27th, 2010 | Published in Insurance
In Bosetti v. US Life Insurance, an assistant principal asserted that the Palos Verdes Peninsula Unified School District’s long-term disability insurer should have covered her disability claim based on degenerative back disease and depression.
Plaintiff attorney Tyron Sheppard told the jury that Linda Bosetti’s disability began in January or February of 2003, when Ms. Bosetti was 57 years old, and that she should have received two-thirds of her salary, plus cost-of-living increases, from the onset of her total disability until age 65.
“The evidence will show,” said Mr. Sheppard, “the claims adjusters decided that despite the evidence…of physical disability, these claims adjusters — and the evidence will show that those adjusters were not medical doctors, had no medical training, merely administrators of a claim — they decided…that Ms. Bosetti’s disability was purely mental,” that she had no physical pains or conditions that contributed to her disability, and therefore she was entitled to only 24 months of disability benefits under the policy.
For the defense, Wilson Elser’s Michael Brisbin told the jury that the Ms. Bosetti had only mental, not physical, complaints on January 2, 2003, and on January 13, 2003 she was advised that she was being laid off, effective March 3, 2003. Further Ms. Bosetti’s medical diagnosis on January 22, 2003, included no physical components. On January 23, Ms. Bosetti turned in her keys and began administrative leave. According to Mr. Brisbin, no fibromyalgia or other physical impairment was diagnosed prior to the termination of her employment.
The jury found that physical problems contributed to Ms. Bosetti’s disability before March 3, 2003, and that she continued to be totally disabled after March 26, 2005. The jury awarded Ms. Bosetti approximately $150,499.43.
Watch CVN’s webcast of Bosetti v. US Life Insurance.
Jones Day’s Kevin Boyce convinced a Fort Launderdale jury that although Leonard Budnick died of lung cancer caused by smoking, an addiction to smoking was not the legal cause of Mr. Budnick’s death; instead, Mr. Budnick smoked because he wanted to.
In closing the liability phase of Budnick v. R.J. Reynolds, plaintiff attorney Stephen Hammer reminded the jury that the defense agreed that Lenny Budnick died from lung cancer caused by cigarettes. The only question in the case, said Mr. Hammer, was whether Mr. Budnick was addicted to cigarettes.
“Any smoker can quit smoking cigarettes. That much we know. Any smoker can quit…We all know in our own lives people who have been addicted to any such substance…whether it’s drugs, or alcohol, or cigarettes…R.J. Reyolds’ position is that Lenny Budnick was not addicted because with the right motivation he could have quit…but any smoker can quit…Now I want you to think about this logically. Since any smoker can quit, and it’s RJR’s position that being able to quit means you’re not addicted, well that means their position is that no smoker is ever addicted, if you follow that logic. But we know that’s not the case.”
For the defense, Jones Day’s Kevin Boyce told the jurors in closing, “Despite how many times Mr. Hammer said it, there’s not just one issue in this trial. There’s two. And I don’t know why he skips over the second one all the time. I think it’s his eagerness to get to phase 2…But what you’re really going to be asked…is was Mr. Budnick addicted to cigarettes containing nicotine, and then the second part is the one Mr. Hammer didn’t talk about: It’s if so, was such addiction a legal cause of his death. It’s two questions…Did Mr. Budnick smoke because he wanted to, or did he smoke because he had to?..It is our position that Mr. Budnick smoked because he wanted to.”
Marcinkowski v. Golden Nugget involves a multi-story parking garage at the Golden Nugget casino in Las Vegas. Two vehicles broke through the guard rails and plunged to the ground, two- and four-stories below, killing or fatally injuring the vehicle occupants.
In 1987, the Golden Nugget completed construction of a six-story self-parking garage. Seventeen years later, on January 22, 2004, George and Maureen Yago’s Toyota Camry broke through the 4th story guardrail and plunged to the ground, killing both occupants. According to plaintiff attorney Robert Halparyan, of The Gomez Law Firm, witnesses would testify that the Yagos’ vehicle was driving slowly, below the posted 10 mph speed limit in the garage.
After investigating the incident, the Golden Nugget determined that the railings were adequate and complied with the 1985 building code, and an outside engineering firm, Lachsa Engineering, concurred after conducting a preliminary investigation.
Mr. Halparyan told the jury that The Golden Nugget was legally obligated by the City of Las Vegas to ensure a complete, independent engineering investigation, with a final report, which was was not done. Nor were any load or force calculations done, nor was any flex testing done.
Nine months later, on October 25, 2004, Ed Marcinkowski drove a rented Chevy Malibu through the guard rail on the second floor of the same parking garage, and plunged into the same alley, where he was severely and fatally injured. Again, said Mr. Halparyan, witnesses would testify that Mr. Halparyan was driving slowly.
“A property owner has a duty to make sure their property is safe…” Mr. Halparyan told the jury. “How could it happen twice?…Even after this second, similar incident, the Golden Nugget said that the guardrails were adequate.”
Mr. Hamparyan told the jury that highly qualified NASA expert engineers would testify that the guard rails were dangerous, that the decedents’ vehicles were traveling less than the posted speed limit when they struck the barriers, that the guard rails could not withstand even a one mile per hour collision, and that no structural engineering inspections had been done during 17 years of continuous use.
For the defense, Edward Lanigar reminded the jury that the first accident occurred 16 years and eight months after the city’s certificate of occupancy had been issued. “There was no accident, no issue related to that parking structure, as far as that guard rail, in 16 years and eight months, of thousands and thousands and thousands of cars using that parking structure to park in.”
“Immediately after the accident, Golden Nugget personnel inspected the garage itself. What they did was they went floor to floor. They looked at all the guard rail areas, or anything else where there might be something loose, might be something broken, and they came up with a negative. There was nothing that was broken or loose…”
“It uses the term ‘preliminary’ investigation,” said Mr. Lanigar, but “there were no further requests for the Golden Nugget to have the engineering firm do anything further related to the investigation.”
Further, Mr. Marcinkowski was familiar with the garage, and, said Mr. Lanigar, a witness driving immediately behind Mr. Marcinkowski saw him suddenly accelerate over a concrete wheel stop, into and through the garage wall. ” Mr. Lanigar concluded his opening statement by suggesting that what the Golden Nugget did between the Yago accident and the Marcinkowski accident was reasonable.
Watch CVN’s live webcast of Yago and Marcinkowski v. Toyota and Golden Nugget.
August 25th, 2010 | Published in Employment Law
In Crouch v. Playboy, Julie Crouch, a master control operator at Playboy TV who monitored the Playboy Channel for quality control, prevailed on her sexual harassment claim against co-worker Charles Dorn and Playboy.
Plaintiff attorney Mark Valencia replayed during closing argument the deposition testimony of Mr. Dorn conceding that he had kissed Ms. Crouch, whispered in her ear, used the word ‘fuck’ in her presence, and sat in her lap. A co-worker testified that Mr. Dorn had yelled at Ms. Crouch and referred to women as ‘whores.’
“Julie Crouch took the stand,” Mr. Valencia told the jury, “and testified that Mr. Dorn would approach her and whisper in her ears and proposition her. Mr. Dorn is saying that he would whisper into her ear, ‘Hey, how’s it going.’…Who’s really going to believe that?…Mr. Dorn is not credible.”
Mr. Valencia pointed out that four employees had approached human resources with complaints, and told the jury that Mr. Dorn had demonstrated a ‘superiority complex’ over women, and that the testimony showed numerous instances of inappropriate touching.
Mr. Valencia argued that Ms. Crouch had also suffered disability discrimination, because Ms. Crouch was severely ill while she worked at Playboy. According to Mr. Valencia, Ms. Crouch was teased about her condition, and that she had complained to her supervisors, but one of her supervisors teased her as well.
Playboy itself, said Mr. Valencia, failed to enforce its human resources policies of reporting and investigating harassment allegations. “We have supervisor after supervisor after supervisor seeing the conduct, and trying to do something, but they all have to go through Chere Johnson, so the managers failed and the supervisors failed,” as did the Human Resources executives, Mr. Valencia told the jury, even after “a litany of exit interviews.”
Mr. Valencia concluded with a clip from Mr. Dorn’s deposition, in which he testified that no one from Playboy had ever told him that his manner of speech was inappropriate and that he had never been warned or disciplined for his behavior at Playboy.
For the defense, Morgan Lewis’s Jason Mills told the jury, “Maybe the most interesting character trait of Ms. Crouch that you’ve been able to observe is her complete unwillingness to accept any kind of role in what we’ve been watching here. She blames everybody around her…But the fact of the matter is that Ms. Crouch was in full control all along because as she knew perfectly well, the only thing she needed to do was…actually just say to somebody, ‘I’m not comfortable with what’s happening here, I want it to be addressed,’ and she knew perfectly well that it would be addressed immediately.”
“The reason Ms. Crouch never raised that,” Mr. Mills continued, “…is because nothing was happening…what Ms. Crouch is trying to do here is revise history…she tried to change that because ten months after she found out her position was eliminated, maybe she decided she needed some money…”
The jury found in favor of Ms. Crouch on her sexual harassment claim against Mr. Dorn and Playboy, and awarded compensatory damages of $182.5K, as well as punitive damages against Mr. Dorn of $10K.
The jury in Piendle v. R.J. Reynolds returned a punitive damages verdict of $180K against R.J. Reynolds, and $90K against Philip Morris. The compensatory damages award in Phase 1 was $4M. The total punitive damages award, $270K, was approximately two orders of magnitude lower than the amount the plaintiff had suggested, and lower, even, than the $900K that the defense had suggested, if the jury believed that punitive damages were warranted.
August 19th, 2010 | Published in CVN Docket
“Today we’re here to decide how much — how much — these defendants should be punished,” Searcy Denney’s Greg Barnhart told the jury in closing the punitive damages phase of Piendle v. R.J. Reynolds.
“Was it a well-executed strategy? You know under the evidence that it was. And how do we know that? Because they said it was. It was their strategy, and that was a strategy that was designed for years. Not just for a day. Not for a week, not for a month. For years. And did they do it well? Oh, did they do it well. They doggone did it well. They did it well for years and years and years and they congratulated themselves, on how beautifully it was designed and executed. So — the degree of misconduct: was it willful? You bet it was. There’s no doubt about that…”
“You cannot, as a business strategy, try to hurt people. You cannot care less whether what you sell addicts people and kills them. You cannot do that.”
Mr. Barnhart suggested a number of different measures of damages. For example, suggested Mr. Barnhart, if Reynolds’ net worth was at least $6B, as its CFO had testified, then 1% would be $60M. Mr. Barnhart also considered net annual after-tax profit, noting that Reynolds had accumulated $64M of net after-tax profit during the 26 days of the trial, and the value of a year of life, noting that Mr. Piendle’s life had been shortened by 23 years. “What kind of award — what kind of punishment — will make them stop — will punish them and deter them from making bad acts again?”
For the defense, Jones Day’s Peter Biersteker told the jury that a punitive damage award to deter the tobacco companies from making an unsafe product was not appropriate, because there could be no safe cigarette. “They can’t be made safe,” said Mr. Biersteker, “but that doesn’t mean they are unreasonably dangerous and defective. All conventional cigarettes, as you know, are capable of causing lung cancer and have the potential to addict. Again, that doesn’t mean they are defective. Cigarettes are not defective and unreasonably dangerous just because they have inherent risks that you can’t do anything about. Rather, a defect is something that Reynolds is capable of fixing, and didn’t, while still having a product that is acceptable to consumers…”
“Mr. Barnhart was up here,” Mr. Biersteker reminded the jury, “and he said that R.J. Reynolds tobacco company, and I assume by extension Philip Morris, could have cared less about unreasonably dangerous and defective products. Well let’s talk about that…Reynolds was the first to publish the identities of between one-half and one-third of the known constituents of cigarette smoke. They rapidly reduced tar and nicotine yields as urged by the public health community throughout the entire time that Mr. Piendle smoked — in fact, throughout the entire time he was alive…”
“And Mr. Barnhart said, when he was up here, ‘Golly, would the world have been different if the tobacco companies had only cooperated with the government with respect to the nature and the design of their products?’ He seems to have forgotten that for ten years they did precisely that with the National Cancer Institute’s ‘Less Hazardous Cigarette Program.’ Did that result in a safe cigarette? No, because it can’t be done…[T]hey collectively financed basic medical and scientific research on the diseases associated with smoking through the American Medical Association and other institutions…and you heard the testimony that the recipients of that funding included Nobel prize winners, resulted in thousands of publications in peer-reviewed literature…”
“Reynolds believes that its potential is all about health and safety,” said Mr. Biersteker, and he described a number of current safer or smoke-free tobacco alternatives. “So as you have seen, the present R.J. Reynolds, for a long time now, is committed to producing cigarettes under its harm-reduction strategy, recognizing that they cannot succeed in making any cigarette safe…Mr. Barnhart, I think, said in his closing a few minutes ago, that this is your opportunity to put an end to misconduct. And I would suggest to you that the evidence…is not something that needs deterrence…”
Mr. Biersteker suggested that if the jury were considering a punitive damage award, the numbers suggested by Mr. Barnhart were unreasonable. “I think they are unreasonable given that cigarettes are legal, even though they are dangerous; given that cigarettes are dangerous by nature, not by design, and the efforts that these companies, and Reynolds in particular, has made to try to reduce the risks; given my client’s current conduct…given that any award of punitive damages in this case would be above and beyond the compensatory damages that you have already awarded and that you have decided will make Mrs. Piendle whole; given that this is but one of many cases pending against Reynolds, or cases that could be brought by other members of the Engle class concerning actions taken decades ago by people who are no longer with R.J. Reynolds; given that each and every one of the Engle class members has the same opportunity to seek compensatory and punitive damages in cases just like this one…I suggest that the evidence in this case does not warrant the imposition of punitive damages. But I realize you might disagree with me. It’s happened before. And if you do, let me suggest an amount…$900,000…”
In a fiercely contested closing rebuttal, Searcy Denney’s Jack Scarola challenged the jury to consider whether the health disclaimers on the R.J. Reynolds website constituted an attempt to educate the public or were only for show. “Is this a changed company? Or is it the same company, with the same priorities. Profit over safety. Deception over truth. Marketing means more than people’s lives.”
The Schlesinger Law Firm’s Steven Hammer told the jury that Leonard Budnick was a diabetic who smoked a pack a day of Camels for 30 years. Even after Lenny Budnick was diagnosed with lung cancer and emphysema, and required oxygen to breathe, he still smoked. Mr. Hammer recited a long list of techniques Mr. Budnick had tried to quit smoking, but none were successful. Mr. Budnick died in 1996 at age 52.
If the case was about choice, said Mr. Hammer, Mr. Budnick did not choose to die as a young man when he was barely 50 years old. “More likely than not he was addicted, and more likely than not that addiction led to his death from lung cancer.”
Mr. Hammer predicted that the defense expert on addiction, Dr. Spodak, would testify that Mr. Budnick was not addicted. According to Mr. Hammer, Dr. Spodak had testified in hundreds of cases, and had not once concluded that a person was addicted. Even if Dr. Spodak was told that a person had smoked six packs per day for 30 years, or continued smoking through a hole in their throat due to a tracheotomy, Mr. Hammer said, Dr. Spodak would still not conclude that the person was addicted.
For the defense, Jones Day’s Kevin Boyce told the jury, “Cigarettes don’t jump out of a pack and light themselves. Every cigarette from every pack is a choice…every puff is a choice…There is a person in between smoking and disease. A you. A me. A person with free will…that’s the cause of his smoking, the cause of his disease.”
Mr. Boyce told the jury that Mr. Budnick was a musician, the lead singer in a band. “It should be no surprise that Mr. Budnick smoked. Many musicians do…This is not someone who was tormented by his addiction. He liked smoking. He liked everything about it…One quit attempt in eleven thousand days — that’s not an addiction.”
The question, said Mr. Boyce, was whether the jury would excuse Mr. Budnick, and reward Mr. Budnick’s son Jason with money, for the choices that Mr. Budnick made for more than 30 years. In this country, said Mr. Boyce, you are allowed to smoke. “Not everybody smokes because they are unable to stop, and Mr. Budnick is a prime example of this.”