Florida deputies to be tried for shooting disabled man

law news, legal news, verdict, settlementThe U.S. Court of Appeals for the Eleventh Circuit ruled that two Brevard County Deputy Sheriffs must stand trial for their shooting of an unarmed man inside his home, when family members asked law enforcement officers to Baker Act the disabled man. The appellate panel, consisting of Circuit Judges Adalberto Jordan, Britt Grant, and Frank Hull, reversed an order granting summary judgment in favor of the officers, finding that significant factual issues must be decided by the jury. The deputies fired thirteen bullets at the victim, eleven of which went through a closed door with the victim standing inside his home where he lived alone snice his elderly parents died two months earlier. Eight bullets struck Christopher Greer through the closed door, resulting in his fatal injuries at the scene. The case will now return to the District Court for the Middle District of Florida for a jury trial on the Civil Rights and excessive force counts.

The Eleventh Circuit held that “the task of weighing the credibility of police testimony against other evidence is the stuff of which jury trials are made.”

Plaintiff’s counsel and National Trial Lawyers members Douglas R. Beam and Riley H. Beam of Douglas R. Beam, P.A.  Benedict P. Kuehne and Michael T. Davis, of Kuehne Davis Law, P.A., and Marjorie Gadarian Graham issued a statement that “police shootings of innocent citizens are on the rise, and we applaud the Eleventh Circuit’s directive that juries are well-suited to the task of deciding whether the police are in fact responsible when using excessive force.” As the Eleventh Circuit explained, the “clearly established law” is that shooting a person through a closed door who has done nothing threatening and never posed an immediate danger violates the Fourth Amendment to be free from the use of excessive force.”

Plaintiff’s counsel are anxious to “bring this outrageous police shooting to a jury to hold the Brevard Sheriff’s Office responsible for this senseless disregard of a decent man’s life.”

NTL member Ryan Zehl obtains $23.5M settlement in head-on fatal wreck

Accident with two carsNational Trial Lawyers Top 100 and Top 40 Under 40 member Ryan Zehl secured a $23.5 million settlement in March for the family of a woman killed in a head-on accident in Brazoria County, Texas. Mr. Zehl was assisted by Matt Martin and Eric Allen of his firm, Zehl and Associates of Houston, Texas.

On July 20, 2017, Christina Burley, 24, a homemaker, was driving a compact car south on County Road 2611, a two-lane road in Brazoria County. Her husband, James Ray Burley, 47, a trucker, was a passenger. Larry Wayne Sassin was traveling north in a large pickup truck. Traffic ahead of Sassin slowed, and Sassin swerved left. He and the Burleys collided head-on at about 65 mph. Mr. Burley sustained severe injuries to his head, colon, leg and other areas of his body. Ms. Burley’s injuries were fatal. 

Mr. and Mrs. Burley were taken by Life-Flight to the hospital. Mrs. Burley was pronounced dead on arrival, about an hour after the accident. She was survived by her husband and her mother, plaintiff Alberta Roberts. Mr. Burley was in a coma for about seven days and was in the hospital from July 20 to Aug. 30. He sustained about 23 broken bones and a colon injury, which required a colostomy. He also claimed a moderate traumatic brain injury. His head injuries included a subarachnoid hemorrhage, left cervical ICA (internal carotid artery) injury, left orbital floor fracture, Le Fort I fracture, Le Fort II fracture, mandibular fracture, maxillary sinus fracture and chin lacerations.

Injuries to the rest of his body included a right clavicle fracture, right scapula fracture, sternum fracture, fractures of ribs 2 through 8, left pneumothorax, pulmonary contusions, spinal fractures, multiple small-bowel avulsions, traumatic hernia, multiple mesenteric hematomas, aortic dissection, severed sigmoid colon, complex comminuted and displaced open left femur fracture, comminuted fractures of the left third and fourth metatarsals and left cuboid fracture.

Mr. Burley had numerous surgeries within days of the accident. On the date of the accident, his surgeries included exploratory laparotomy and resection of devascularized segments of the small intestine and colon. Surgeries the next day included irrigation and debridement of the clavicle and femur fractures, left knee arthrotomy, exploratory laparotomy, creation of colostomy and creation of small bowel anastomoses. His surgery on July 24 included open reduction and internal fixation of the clavicle fracture, and his surgery on July 27 included open reduction and internal fixation of the femur fracture. On July 28, a feeding tube and thoracostomy tube were placed by doctors. He also underwent open reduction and internal fixation of the left first, second and third tarsometatarsal joints and percutaneous pin fixation of the left fourth and fifth tarsometatarsal joints. The colostomy was reversed on March 5, 2018.

At the time of settlement, Mr. Burley claimed ongoing pain in his back, neck, and both knees and an inability to walk without a cane or walker. He also required assistance getting in and out of the bath and shower. He also claimed impairment of short-term memory, executive functioning and inability to work as a truck driver or most anything else, and speech impairment.

Mr. Burley also claimed depression and regular emotional outbreaks over the loss of his wife and the profound changes in his physical abilities and overall quality of life.
He moved in with his brother, who was still caring for him when the case resolved. Mr. Burley claimed that he would be hiring a home health aide soon to supervise and care for him 24 hours a day.

His paid or incurred medical bills were $1,123,000, and he claimed a life care plan of $6.1 million. His lost earnings and lost earning capacity were still undetermined when the case was resolved.

Mr. Burley and Ms. Burley’s estate sued Sassin and Sassin’s employer, Johnson Supply and Equipment Corp. The lawsuit alleged that Sassin was negligent in the operation of his vehicle, that Johnson Supply was vicariously liable for his actions on a theory of respondeat superior, and that Johnson was negligent and grossly negligent in its hiring, training, retention and supervision of Sassin. 

The plaintiffs alleged that (1) Sassin was not paying attention and, as a result, did not notice that traffic ahead had slowed until it was too late, (2) that Sassin should have swerved into a grassy field to the right of the roadway, rather than left into oncoming traffic, (3) that Sassin, who was a counter salesman, had never received any training and had no experience driving company vehicles and, therefore, should not have been permitted to drive Johnson Supply’s delivery trucks.

The defendants generally denied the allegations. The case settled for $23.5 million before any expert depositions and before any experts had been designated by the defense.



Roundup and cancer

RoundupA federal jury last week ordered Monsanto to pay $80 million to a California cancer victim who had used the weedkiller Roundup for 30 years. Bayer, which purchased Monsanto, reportedly plans to appeal the verdict. What do you need to know about Roundup, its ingredient glyphosate, and its potential to cause cancer? Kaiser Health News has a look. For example, did you know Roundup isn’t the only weedkiller that contains glyphosate?

Also, The Washington Post has more on why politicians from both parties haven’t done more to regulate pesticides.

NTL members James Power and Sean Houlihan recover $8.1M & $400K after fatal demolition accident

In late March, a pair of National Trial Lawyers members dispersed two separate settlements arising from a single workplace incident to clients of Power Rogers & Smith, L.L.P. The settlements stem from a workplace incident at a demolition site in 2013 in which two workers were injured by falling concrete, and totaled $8.1 million, and $400,000, respectively.

The underlying incident for the lawsuits, which court records indicate were consolidated before a single Judge in Cook County Circuit Court (O’Reilly v. Deerfield Construction Co., et al.), occurred on December 26, 2013, when two men had been removing a portion of exterior wall for a new restaurant at what was then the Westfield Hawthorn Mall in Vernon Hills.

While performing their job, pieces of concrete from the roof fell onto the workers. One of the men was struck and fatally injured by the falling debris. The other worker suffered several injuries, including a head injury, bursitis of the right elbow, and tricep tendon tear.

In the lawsuit, Power Rogers & Smith attorneys claimed several parties involved in the project were negligent, including the general contractor (Deerfield), Westfield and Westfield Property Management, the project owner (Brinker Restaurant Corp.), and the demolition subcontractor. The attorneys worked closely with a real estate and shopping center expert to determine the scope of industry standards and practice relating to the defendants’ project and responsibilities during development and construction.

Attorney James A. Power Jr. said the incident could have been prevented had the defendants completed an OSHA and project manual-mandated engineering survey before work was performed on the building.

In their defense, defendants argued a pre-demolition inspection was performed prior to the work, and that it was sufficient.

Ultimately, Attorneys James A. Power Jr., National Trial Lawyers member Sean M. Houlihan, and National Trial Lawyers member James I. Power were able to secure two significant settlements on behalf of their clients:

  • An $8.1 million wrongful death settlement for the estate and family of the 25-year-old man tragically killed in the incident; and
  • $400,000 settlement on behalf of the second worker who suffered multiple injuries.

The claims, settled in February and finalized in March, are a reminder of the dangers workers face on demolition and construction sites, as well as the need for employers, property owners, and those working on such projects to take the necessary steps to protect them from preventable harm. Commenting on the resolution, Attorney Power said:

“We are satisfied to have negotiated these settlements for our clients, and to send a message that worker safety should always be a priority. You never think about the dangers your children are exposed to when they do this type of work.”

The case, 14 L 9677 consolidated with 14 L 9692, was filed in the Circuit Court of Cook County, Illinois County Department.

NTL member Timothy McMahon settles child death case for $9.5M

legal news for consumersNational Trial Lawyers member Timothy McMahon, along with Mark Sigala and Ben Stoddard of Corsiglia McMahon & Allard, LLP in San Jose, settled a child death case in California for $9.5 million in January 2019. In June of 2016, Plaintiffs Suhas Kulkarni and Chaitali Prabhune moved with their seven-year-old daughter and 18-month-old son Krish to the Water’s Edge Apartment Complex in Foster City, CA. They traveled from the east coast while in the United States on a work visa from India.  They relocated to California because Mr. Kulkarni accepted a position as a senior engineer for Oracle in May 2016.  Their unit was on the third-floor at the end of a common enclosed hallway.  At each end of the hallway were floor-to-ceiling windows with no sill that opened from the bottom. The Kulkarnis had never seen the windows opened. The hallway window was only a few feet from the front door of the Kulkarni’s apartment.During the first few weeks of living at Water’s Edge, their toddler Krish watched a garbage truck picking up trash at the property every week.  He was fascinated by the large trucks and liked to look out the Kulkarni’s apartment patio windows to watch the men work.

On August 11, 2016, just two months after moving into the complex, Krish pointed at the apartment door indicating that he wanted to go outside to look out of the hallway window because he thought a garbage truck was driving by. As noted above, the hallway windows were low-sill, making it easy for young Krish to see outside.  His mother, Chaitali, opened the door to show Krish that there were no garbage trucks that day.  As soon as she opened the door, Krish ran towards the hallway window with his hands outstretched. Unbeknownst to Krish’s mother,  the window was wide open, with only a bug screen separating the interior hallway from the outside.  His mother had no time to react.  As soon as he reached the window, he put his hands against the screen.  It popped out, and Krish fell three stories to the concrete walkway below.  His mother saw the entire tragedy unfold before her eyes. Video footage from emergency first responders who arrived minutes after the fall depicts the inconsolable mother holding onto her baby, crying and pleading for his life.  He was pronounced dead later that evening at a local children’s hospital. The family returned to India a few weeks following his death.

Through extensive written discovery and depositions, plaintiffs’ counsel discovered that the building was originally constructed as an adult-only complex in the 1970s. The apartment complex was not designed for families with children. Sobrato had purchased the complex decades later and commissioned RSS Architecture to design a complete façade remodel of the apartment buildings in 2014-2015.  The design that RSS came up with called for removal of old aluminum low-sill windows in the hallways and replacement with a new set of low-sill windows that also open from the bottom upwards. RSS Architecture and Sobrato hired BKB Construction to complete the remodel.  To remedy the fact that the large low sill windows open from the bottom up, the defendants installed “window safety locks” that functionally limited how far the windows could be opened.  When operated properly, the windows could only be opened three inches.  However, the window lock devices were easily overridden by simply pushing down a tab and lifting the windows up further.  In fact, this feature was designed into the lock mechanics so that if desired, the windows could be opened fully.  On the day of Krish’s death, another tenant had apparently overridden the window safety locks and left the window wide open.  Before that day, the Kulkarni family had never seen the windows opened and had no reason to suspect the windows were dangerous.

Through deposition testimony offered by Woodmont Real Estate’s head of building maintenance, plaintiffs’ counsel established that the property management company knew for months leading up to the death of Krish Kulkarni that tenants of Water’s Edge apartments were regularly overriding the safety locks and leaving the windows wide open in common area hallways due to poor ventilation, trash chutes that were full and backed up, and high temperatures during the summer months.  The open windows exposed young children and pets to the risk of falling from the windows, and Woodmont admitted that it was aware of the danger.  From time to time, they would close the windows if they happened to see them opened beyond the window safety lock’s limit, but did not instruct tenants to stop overriding the window locks. In fact, a Woodmont employee was walking the property the morning of the fall and was looking for open hallway windows to close. Unfortunately, that employee was just minutes late.

Following Krish Kulkarni’s death, the building owners removed the ineffective window locks and replaced them with permanent window locks that could not be opened beyond three inches under any circumstances. Plaintiffs contended that these new permanent window locks were the only safe and reasonable window locks to be used on these windows to prevent death and injury to children.Plaintiffs alleged that RSS Architecture was negligent in selecting replacement windows to have a low-sill that opened from the bottom up, and did not include permanent window limiters. Plaintiffs also alleged that fixed bottom high sill windows could have been used so that window locks would not be necessary.  Plaintiffs alleged that BKB Construction was negligent in installing the windows with that configuration, knowing that safe window design calls for higher sills or increased protection from falls. Throughout litigation these defendants asserted the affirmative defense of “completed and accepted doctrine,” disclaiming any and all liability because the building owner had inspected and accepted their work after completion and was aware of the danger posed to children.  Ultimately the architect and contractor agreed to mediation and settlement before the completed and accepted doctrine defense was tested before the court.Plaintiffs alleged that Woodmont, as the property manager, and Sobrato as the owner were liable for Krish’s death because they were aware of the danger of open windows and were aware that tenants were overriding the window safety locks, but admitted that they did nothing to address the problem beyond closing the windows because they didn’t consider it a “hot button” safety issue. 

Attorneys for the plaintiffs reached a $9,475,000 mediated settlement with Arnold Levinson at ADR Services. The Sobrato Organization, LLC and SI XVII, LLC, the property owner defendants, agreed to pay a total of $4,000,000. Woodmont Real Estate Services, the property manager, agreed to pay a total of $4,000,000.BKB Construction LP and BKB Construction Management LLC, the contractor defendants, agreed to pay a total of $1,000,000. (Underlying policy limits)RSS Architecture Inc agreed to pay a total of $475,000, on a $1,000,000 professional liability policy with declining limits.  In a highly unusual concession at mediation, the Sobrato and Woodmont defendants also agreed to six specific non-monetary terms at the request of the Kulkarni family that relate to tenant safety, window disclosures, warnings,  and prevention of future window fall tragedies.

NTL member Kathleen Zellner talks about trying to get Steven Avery a new trial

National Trial Lawyers member Kathleen Zellner has been working to get Steven Avery, the man featured in Netflix’s Making a Murderer, a new trial, but the state of Wisconsin apparently doesn’t want to see it happen. The state sent Zellner a 19-page response to her arguments and new evidence she presented in a brief on March 12 that points to Avery’s possible innocence. Zellner talked to Newsweek about the state’s response.

“The State is thumbing its nose at the appellate court once again,” Zellner told Newsweek on Tuesday. “That court specifically ordered that the merits of the alleged bone destruction be addressed. Rather than follow the court’s directive, the State has constructed a convoluted procedural argument that defies logic or precedent.”

Avery won a right to appeal in February from the Wisconsin Court of Appeals. Read more about Zellner’s response to the state’s actions at Newsweek. 

NTL member Mike Andrews investigating 737 Max 8 crashes

737 Max 8 jetAt the request of one of the victim’s family, Beasley Allen is investigating the circumstances surrounding the fatal Ethiopian Airlines Boeing 737 MAX 8 airplane crash that took place earlier this month. We are also looking at an earlier Lion Air crash involving the same aircraft. There may be potential claims against Boeing Company, the plane’s manufacturer, as well as the airline. National Trial Lawyers member Mike Andrews of the Beasley Allen firm, who focuses his practice on aviation litigation, is leading the firm’s efforts to investigate the crashes, which are likely linked to a faulty flight-control system.

“Boeing’s conduct was unconscionable and led to the deaths of 346 people,” said Andrews. “While Boeing prioritized protecting its profits the company knew that its latest iteration of its 737 aircraft was flawed. It ignored and even tried to cover up the aircraft’s deadly problems. Not only is this the basis of possibly hundreds of wrongful death lawsuits, it also prompted an ongoing criminal investigation of Boeing by the U.S. Department of Transportation’s Office of Inspector General and the Department of Justice.”

On March 10, Ethiopian Airlines Flight ET302 departed from Bole International Airport in Addis Ababa, Ethiopia, at 8:38 a.m. local time. The plane was headed to Nairobi, Kenya, when it lost contact with air controllers six minutes later. The crash killed all 189 people on board and bore strong similarities to the crash of Indonesia’s Lion Air Flight 610, which crashed Oct. 29, also killing all 189 people on board. The two aircraft were new Boeing 737 MAX 8 and both aircraft experienced the same type of erratic behavior just before they crashed.

Preliminary investigations tie the crashes to an automatic flight-control system called the Maneuvering Characteristics Augmentation System (MCAS). The MCAS was installed after a retrofit to modernize the old Boeing 737 design resulted in a tendency for the plane’s nose to pitch up while in flight. The MCAS was supposed to detect that improper pitch and automatically correct to push the nose of the aircraft back down.

However, the flawed system engages when it should not. When pilots react to the sudden downward motion of the aircraft and pull up on the flight controls, the MCAS again falsely senses a nose-up problem and pushes the nose down again. This results in a tug-of-war between the pilot and the flawed MCAS creating an undulating flight path and causing the plane to lose altitude and airspeed until it crashes.

“Boeing owes the public answers for its reckless disregard for people’s safety. It must be held accountable for purposely misleading regulators and others about the safety of its aircraft,” Andrews said.

FDA investigating possible breast implant-related cancer

The Food and Drug Administration is holding a second round of meetings on whether breast implants may be to blame for 457 cases of cancer that have been diagnosed in women who have undergone the procedure, CBS News reports. Some women who have textured implants are reporting they’ve been diagnosed with anaplastic large cell lymphoma. NBC News reports some of the victims testified in the FDA hearings held Monday, along with plastic surgeons, and breast implant manufacturers. CNN reports the FDA has sent warning letters to two breast implant makers which haven’t complied with requirements to conduct studies of the long term effects of the implants. Inside Edition has this video report on women who marched in Washington to get textured implants banned by the FDA.

Podcast: How to handle your client going viral

mobile social mediaToday’s attorneys are well-versed in how a client’s social media posts can and will be used against them in a court of law. But what do you do when a client goes viral for all the wrong reasons? In this episode of the ABA Journal’s Asked and Answered from the Legal Talk Network, Stephanie Francis Ward talks to attorney Pete Wentz, an expert in crisis management and communication strategy. Wentz talks about what’s worked for him in addressing social media furors, when you should know that it’s time to take action in an online controversy, and what common legal advice can actually be least helpful in putting out social media fires. 

Michael Avenatti charged with trying to extort $20M from Nike

Michael AvenattiFederal agents arrested attorney Michael Avenatti Monday on charges from separate cases in New York and California, including allegedly attempting to extort $20 million from Nike. Federal prosecutors in Los Angeles charged Avenatti with two felony counts of wire fraud and mail fraud related to embezzling a client’s money to pay his own expenses and using fake tax returns to defraud a bank. According to The Daily Beast, Avenatti allegedly used $1.6 million of a client’s settlement for himself. CNBC reports Avenatti allegedly defrauded a Mississippi bank by submitting falsified tax returns to secure loans totalling $4.1 million. Above the Law says this charge may be more problematic for Avenatti than the Nike case. Another report on CNBC says prosecutors have Avenatti on tape. Meanwhile, HuffPost reports that Nike attorneys contacted the US Attorney’s office on March 19 that Avenatti was threatening to extort the company for up to $25 million. HuffPost has a copy of the indictment from the Southern District of New York. Avenatti formerly represented adult film star Stormy Daniels over a hush money payment paid to her after an alleged affair with President Trump. Daniels says she’s “saddened but not shocked” at news of Avenatti’s arrest. Avenatti is free on $300,000 bail, says CNN.