Utah Injury Law Blog

According to the Brain Injury Association of America, a TBI “is defined as a blow or jolt to the head or a penetrating head injury that disrupts the function of the brain.” The severity of a TBI can vary greatly, ranging from a brief change in cognitive functioning to, in the worst case scenario, death.

The Brain Injury Association of America estimates there are 1.4 million TBI each year in the United States, which translates to .5% of the entire population. This means roughly one in every 200 Americans will undergo some type of TBI each year in the United States.

But there is good news: tbirecoverycenter.org summarizes recent advances in medical technology for the treatment of TBI. These advances span diverse areas of medical science, including bone marrow cell transplant, oxygen therapy, hormone therapy, and drug therapy. Researchers hope these and other treatment options one day increase the rate of recovery for TBI survivors.

Dr. Sam Goldstein (samgoldstein.com), a neuropsychologist in Salt Lake City, Utah, remains optimistic that medical and technological advances can limit the negative effects of TBI.“There are exciting advances on all fronts in prevention, treatment and rehabilitation for people with TBI. Rehabilitation specialists have made significant headway in the combination of medications and therapies, both cognitive and behavioral, to help TBI patients return to a near-normal life. Further, preventive measures such as the design of helmets for sports and airbags in cars has dramatically reduced the number of TBI.”

The human brain is so complex and delicate that it is likely impossible to eliminate all short and long term effects of these injuries. Dr. Goldstein urges individuals to be as safe as possible at all times, for the only way we will ever be completely able to treat TBI is when we are able prevent them from happening in the first place.

All of us, and particularly our parents, have asbestos in our bodies. At certain levels, this causes lung problems, cancers, and eventually death. The issue for plaintiffs’ lawyers is proving the source of asbestos exposure and the medical cause of the disease.

…Asbestos does not impact any two people in the same manner. In addition, asbestos has a latency period of at least five to ten years and can remain dormant for up to 40 years. It therefore can be difficult to prove when the exposure occurred that caused the asbestos injury.

…To prove that asbestos caused an injury, the first task is to determine each potential source of exposure. This can mean a review of over 40 years of a worker’s life. This can be accomplished by interviews, but often also involves a review of Social Security, union, tax, and other records.

Read the entire article here.

This article was written by Robert G. Gilchrist
, for more information please click here

In Sorensen v. Barbuto, (1) the Utah Court of Appeals recently cautioned all physicians to remember that they have a continuing duty of confidentiality to their current and former patients. For many of us, this seems obvious and should not necessitate much discussion, but for one local physician, he had to learn the hard way--being chastised in a published opinion from the Utah Court of Appeals.

It is important to discuss what occurred in this case so as to avoid such conduct. In simple terms, this case is about a physician that violated his former patient's confidences. Although I believe the physician's actions in this case represent extreme conduct, I take this opportunity to summarize the court's admonishment to physicians and direct it also to the attorneys that hire them as experts in litigation.

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1. Sorensen v. Barbuto, 2006 UT App 340, 558 Utah Adv. Rep. 18.
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Read the entire article here.

This article was written by Christopher J. Rogers, Esq., for more information please click here

Salt Lake City, UT -- Eisenberg Gilchrist & Morton (EGM) is pleased to announce the debut of the EGM Edge Series – a revealing tutorial into the success of our approach to maximizing recovery on catastrophic injury cases.

The first installment of the EGM Edge Series, “Myth, Math and Money: A Modern Approach to Economic Damages in Catastrophic Injury Cases” will be presented May 15 from Noon to 1 p.m. in conjunction with the Park City Bar at the Silver Summit Court in the Jury Assembly Room, 6300 N. Silver Creek Rd., Park City.

The concepts behind “Myth, Math and Money” were created and honed by Jeffrey D. Eisenberg, managing partner and co-founder of EGM and EGM shareholder David A Cutt.

“Myth, Math and Money” will change the way you look at catastrophic injury cases. You will learn:
• What really strikes fear into the heart of defense lawyers
• How to debunk the myths of general damages
• How to argue for “worst case” numbers without overreaching
• How math affects the money
• What it will cost you to try a damages case
• How to look past general damages to economic loss

In 2006, EGM obtained more than $20 million in verdicts and settlements for our clients – including Utah’s largest personal injury verdict: $16.4 million to a boy whose parents were killed in the same automobile crash that rendered the boy permanently brain injured.

“Myth, Math and Money” has been published in the Utah Trial Journal and presented at the 2007 Brain Injury Conference in Salt Lake City.

“Myth, Math and Money” is available for presentation to any organization interested in maximizing recoveries on large contingency fee cases, or any firm seeking co-counsel on such a case.

Watch for upcoming segments of the EGM Edge Series on related subjects in June and August.

For more information, contact Havalah Gholdston at EGM at 801.366.9100, or by e-mail, hgholdston@braytonlaw.com.

Salt Lake City, Utah – S. Brook Millard, shareholder at Eisenberg Gilchrist & Morton (EGM), will speak May 23, 2007 at the National Business Institute’s “Art of the Settlement” seminar.

Mr. Millard’s presentation, “Using Mediation When Settlements Don’t Work”, addresses the topics of when to consider mediation, effective mediation preparation, stages in the mediation process, and how to bring mediation to a successful conclusion.

“In my opinion, mediation is the tool to use in settling cases,” said Mr. Millard. “Failure to mediate is a mistake economically for both you and your client.”

Based on his own successful experiences with mediation, Mr. Millard’s presentation illustrates how mediation allows an independent third party to tell you, your client and the opposing side the good and bad points of the case and allows all parties involved to be more realistic about the actual value of the case.

Mr. Millard is a shareholder at EGM and an associate attorney with the law firm of Brayton Purcell. His practice focuses on the areas of catastrophic personal injury, wrongful death, professional liability, products liability and asbestos litigation. He has previously lectured for National Business Institute and elsewhere on the subjects of

National Business Institute is the largest provider of legal and professional education in the nation. “The Art of the Settlement” will take place in Salt Lake City at the Radisson Hotel on May 23, 2007 from 9 a.m. to 4:30 p.m. For advance registration information, visit www.nbi-sems.com.

Tournament proceeds to benefit the Brain Injury Association of Utah

SALT LAKE CITY, UT – Eisenberg Gilchrist & Morton (EGM) invites all women in the local legal community to join us on the links Friday August 24, 2007 for a day of golfing and camaraderie in the name of a good cause.

Many of EGM’s most important cases involve clients with permanent brain injuries, which is why it is vital for us to give back to an organization that helps so many, but is always in need of more support.

“Our firm is committed to helping clients who have been seriously injured and many of our clients suffer from brain injuries,” said Jackie Carmichael, EGM shareholder and tournament organizer. “BIAU provides valuable services and support to these clients as well as their family members and we, in turn, are excited for the opportunity to return some of that support to BIAU through this charity golf event.

“The occasion will also be a great advantage for the female members of the Bar to get to know each other on a social level and to be able to network and establish important professional contacts as well,” said Ms. Carmichael.

The tournament will be 18 holes (each one available for sponsorship) in the cool wooded shades of Mountain Dell Canyon Golf Course in Parley’s Canyon. Great prizes and gifts are planned for all participants, so bring a friend and come play. And remember – you don’t have to be a golf pro to have a good time with us!

Contact EGM’s Jackie Carmichael for registration and sponsorship inquiries. 801.366.9100 or e-mail her at jcarmichael@braytonlaw.com.

When recently asked to pen a column on tips for the trial practitioner, I thought about an old experience. When I was starting out as a lawyer, I once asked an older lawyer whom I admired, “Steve, you’ve been around and have seen the best. What’s your secret to how to become a successful plaintiff’s attorney?” The old lawyer replied: “Jeff, go out there and find yourself some really good cases. Any lawyer can get a nice six-figure settlement for a million dollar case.”

This was not the vote of confidence I was looking for at the time. Hopefully, I can offer something a little more useful... or at least something easier to implement.

I’ll start by stating the obvious. The best plaintiff attorneys are able to make cases work that seem unappealing to most people’s first impression. They are somehow able to “spin straw into gold” by looking closely and creatively at a case. But how do you learn these skills? To some extent, they are intuitive, but they can also be learned through the process of carefully round-tabling cases with other experienced lawyers, and through focus groups with non-lawyers.

The jury appeal of some cases can be dramatically increased by carefully developing the proper case themes. To cite one example, there is the case of a 21-year-old woman who suffered a moderately severe frontal lobe brain injury at age 14. The injury did not severely impair Amber’s IQ or her “test taking” skills but it did severely affect the centers of the brain that regulate judgment and inhibition control. Fortunately the brain injury could be seen on an MRI scan. Formerly a strong B+ student in high school without serious behavior issues, after the accident, Amber’s life quickly unraveled. She eventually developed a severe methamphetamine addiction, dropped out of school and, despite her parents’ determined efforts to help her, wound up in prison on a drug conviction. She now has severe mental health problems in addition to her brain injury. Her doctors doubt she will ever be able to support herself with a steady job.

Several lawyers turned down Amber’s case. They told Amber’s parents they could not risk an expensive jury trial for a “drug addict’s” claim in conservative Utah County. However, my office took the case. We know a Utah County jury’s first instinct may be to punish Amber for failing to “control” her drug habit. To overcome this, we will put on expert scientific testimony to explain why the brain damage makes Amber so vulnerable to following the wrong impulses and taking bad risks. Our job will be to help the jury understand why there is such a strong correlation between brain injury and drug and alcohol use.

Continue reading "Tips For Trial Lawyers" »

In this modern and very competitive age of medicine, many hospitals are launching aggressive marketing and advertising campaigns in a quest to obtain market recognition and garner public trust and patronage. Many of these advertising campaigns feature physician endorsement of the hospital or, conversely, hospital endorsement of certain physicians and include all forms of media, ranging from bill-boards and television ads to print ads in small local newspapers. Either way, the message in these advertising campaigns is unmistakably clear: “Choose our Hospital – We provide excellent care;” the obvious implication being that the “We” refers not only to hospital staff and providers of nursing care, but to the physicians that practice at the hospital as well.

In many instances, the physicians appearing in these ads and practicing medicine at these hospitals have actually been recruited by the hospital to move to the city where the hospital is located, open a private practice within the city and, of course, bring business and patients to the hospital facility for medical treatment and procedures. In turn, the hospital grants the physician privileges to practice medicine in the subject hospital and agrees to pay the physician an annual salary as well as, in some instances, a “recruiting” or “signing” bonus for becoming part of that hospital’s “team.” While the vast majority of these “recruited” physicians and/or “ hospital team-members” are paid by the hospital as independent contractors rather than as employees, that subtle but significant legal distinction is generally not disclosed to the unsuspecting patient who believes, when she goes to the hospital for treatment, that the physicians provided to treat her are employed by the hospital.

So what, then, is a patient to do when she goes to the hospital for treatment, is provided by the hospital with one or more of its recruited–but non-employee–physicians, and is seriously injured through the negligent acts and/or omissions of those physicians? Since these physicians are not “employees” of the hospital, the hospital’s vicarious liability for their negligence is not assumed. However, in certain circumstances, a hospital may be held liable for the negligence of its non-employee physicians under a theory of apparent authority. Although still an issue of first impression in Utah, the theory of apparent authority has gained wide-spread acceptance throughout the country, as a significant number of jurisdictions have whole-heartedly accepted the apparent authority doctrine as a means of allowing a patient to hold the hospital responsible for the negligence of its non-employee physicians.

Read entire article here.

This article was written by Jacquelynn D. Carmichael & Jordan P. Kendell.

The stakes are extremely high for attorneys litigating on behalf of catastrophically injured plaintiffs. Victims of catastrophic injury face lifelong medical and custodial care expenses, and the results of their personal injury cases can make the difference between being able to afford life sustaining care and becoming a ward of the state.

Catastrophically injured plaintiffs rely heavily on their lawyers to evaluate whether a proposed settlement will provide for their future needs, to decide whether to settle a case or take it to trial, and ultimately, to maximize recovery to meet the plaintiff’s future economic needs. Catastrophic injury cases are vigorously defended, and the plaintiff’s attorney must be especially creative and careful in order to obtain an outcome which will provide life long care for the client.

Many lawyers in Utah were surprised at the $16.4 million verdict we obtained in 2001 in Gallegos v. Dick Simon Trucking. The defense reasoned that Utah was a conservative state and Utah juries do not generally award big sums for general damages. Believing that a jury in Utah would never award an eight-figure sum in a personal injury case, the defense offered slightly more than $8.0 million at the courthouse steps. This offer, though substantial, was not sufficient to fund a quality care plan for our client, so we chose to try the case. We were not surprised by the verdict because the economic evidence presented at trial predicted the award, nearly all of which was ultimately paid by the defendant’s insurer. (1) Now that the case is finally over after nearly eight years of litigation, we will share some thoughts concerning how to present economic damages effectively on behalf of a catastrophically injured plaintiff.

Continue reading "Myth, Math & Money: A Modern Approach to Economic Damages in Catastrophic Injury Cases" »

Picture this scenario: you receive a call concerning an automobile accident in which the tread pealed off a steel belted radial tire on the client’s vehicle. The ensuing rollover resulted in serious injuries. It sounds like a straightforward product liability case, because the tire is a simple piece of rubber, which must have been defective if the entire tread detached. You file the case and request the usual product liability discovery such as test data, warranty claims, and information concerning other injuries and accidents. Unfortunately, the defendant tire manufacturer produces little useful information and asserts that there has never been a problem with another tire of the identical model and size as your client’s tire which was also manufactured at the same plant during the same time period as your client’s tire. You notice up a Rule 30(b)(6) deposition of the tire manufacturer in hopes of gaining ammunition to support a motion to compel. However, the witness is emphatic that tires of different sizes, tread patterns, and load ranges are all distinct and unique products even if they share common components and experience the same mode of failure. The witness testifies that only tires of the same model and size manufactured at the same facility during the same time period are comparable products. Now what?

The reality is that steel belted radial tires are complex products manufactured from numerous components through a multi-phase process. The tire industry is rather unique in its manufacturing, testing, and warranty procedures, and these complexities give the manufacturers plenty of obstacles to hide behind in discovery. Before you can hope to get anywhere in a tire defect case, it is essential to understand the various components of a steel belted radial tire, as well as how the tires are tested, analyzed, and warranted. This article is intended to provide an introduction to the basics of discovery in a tire tread separation case.

Read the entire article here.

This article was written by David A. Cutt, for more information please click here.

Many lawyers prosecuting claims involving trucking accidents assume that once the carrier admits that its driver was acting in the course and scope of employment, the liability case can and should focus solely on the facts surrounding the collision. In many cases, this is a mistake, as the lawyer who digs deeper will sometimes find evidence that the employer’s hiring, training, safety compliance, and supervision policies played an important contributing role in the accident.

The purpose of this article is to introduce trial lawyers to the economic factors which have, in many cases, compromised safety in the trucking industry, and to provide some ideas concerning areas for discovery against the motor carriers.

Here is how bad it has gotten for some interstate trucking companies: I handled a case against a major Utah trucking company which hired a driver with a record of many violent felonies and no commercial driving experience. The driver was asked to falsify his application for employment since the company’s hiring policies prohibited hiring repeat felons. The new driver was sent out for training with a company instructor who subsequently advised the carrier that the driver was mentally unstable, lacked suitable driving skills, and should be fired.

The carrier ignored the trainer’s advice and hired the driver.

In his first thirty days on the job, the driver had three property damage accidents, and a motorist called the company to report that the driver had changed lanes without signaling and had run him off the freeway. The carrier still left the driver on the road and a few weeks later, the driver was observed driving erratically and at a very high speed in Price Canyon when he overturned his truck, killing two motorists and leaving an eight-year-old boy with catastrophic brain damage.

Why would a large and well-known trucking company leave this driver on the road?

Read the entire article here.

This article was written by Jeff Eisenberg, for more information please click here.

Many personal injury lawyers are afraid to try the mild traumatic brain injury case when their client has not recovered and now has a psychiatric diagnosis of a condition such as depression, post traumatic stress disorder, anxiety, or chronic pain syndrome along with the diagnosis of persistent post concussive syndrome.

In my opinion, some lawyers take an approach too defensive to these cases. It has been my experience that a good trial lawyer can win many of these cases with the right case theme and sensible approach to the client’s problems.

I’d like to share some thoughts with you concerning how to put these cases together.

To begin with, let’s talk about the mild TBI case with psychological overtones that I am most comfortable trying. In a good mild TBI case, I usually have four things going for me:

1. A determined plaintiff
2. Witnesses who support that the client has tried to recover since his/her injury
3. Tests showing my client is not a malinger
4. A sympathetic client

Developing the case theme:
In the mild TBI case, it is critical to define the case on your terms and to frame the issue your way – not the defendant’s way. The defendant is going to try to engage you on his or her turf. He or she will do this by challenging you to prove that all of the plaintiff’s problems are the result of permanent structural brain damage.

Read the entire article here.

This article was written by Jeff Eisenberg, for more information please click here.

If the law of simple negligence is reduced to its most basic non-legal terminology, a reasonable description could be “if you aren’t paying attention to what you are doing and you cause an accident, then you are liable for the consequences.” At least, I thought that was true until I received the Court’s decision in the case of Gary Ricci v. Charles Schoultz, M.D. (Case No. 971189-CA, July 23, 1998), a ski accident/collision case I tried several years ago. The Court of Appeals decision in this case not only challenged the “Golden Rule” of negligence, but several other basic principles of negligence that we have all taken for granted. Therefore, I would like to explore with you the case and the Court’s opinion.

The facts of this case are fairly simple. On a beautiful day in April 1996, Gary Ricci, a shell fisherman from Rhode Island, was skiing across a flat runout area on one of the easiest trails at the Snowbird Ski Resort. The snow was catted smooth, the weather was perfect, there was little traffic on the trail and no reason to expect trouble. Gary was skiing on the left side of the trail and 10 to 15-feet to his right was another skier who seemed to be in control of his skis and skiing well. Suddenly, Gary noticed a problem out of the corner of his eye. The other skier’s skis seemed to separate at the tips, and then the skier (a Texas doctor named Schoultz) leaned sharply to the left and began skiing right at him. Gary tried to get out of the way but didn’t have time, and Schoultz literally knocked him off the trail. Both Ricci and Schoultz wound up in trees well off to the left of the catted ski run.

Schoultz skied away. Ricci was not so lucky. He broke several ribs, fractured his lumbar spine, sustained serious internal injuries and had to be lifeflighted to the hospital. Some of his injuries have been permanently disabling.

At trial, Schoultz admitted that he was an advanced skier and was more than capable of safely negotiating such an easy slope under the perfect weather conditions that existed on the day of the accident. Instead, defendant claimed that my client had simply “run him down from behind” while he was skiing straight ahead and “minding his own business.”

Read the entire article here.

This article was written by Jeff Eisenberg, for more information please click here.

For as long as any of us have been practicing law, one of the “givens” in our business has been that the job of determining whether an expert’s opinions are credible and should be believed is for the jury, not the judge. In Daubert v. Merrill Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993), the U.S. Supreme Court began chipping away at this notion, holding that in cases involving cutting-edge science, the judge should screen expert testimony and disallow opinions based upon unproven, untested and speculative science.

However, until last month, Daubert was confined in the Tenth Circuit to a narrow strategy of cases. This changed when the Supreme Court decided Kumho Tire Co., v. Carmichael, No. 97-1709 (Mar. 23, 1999). Kumho Tire now gives federal trial judges vast power to regulate and even exclude all expert testimony. There is a good chance that Kumho Tire will eventually become accepted practice in Utah’s courtrooms as well. Therefore, every trial lawyer should closely read this case and understand its import.

…In my view, this case is about power – that is, transferring power from juries to judges. The drafters of our country’s Constitution possessed a deep distrust for authority, especially the authority of judges. The result was the Seventh Amendment to the Constitution, which guarantees the right of the people to a trial by jury, “in any suit, at common law, where the value in controversy shall exceed twenty dollars…” As things developed, we evolved a judicial system in which juries decided which expert’s opinions were right and which were not. In turn, juries have depended upon the abilities of trial lawyers to skillfully cross-examine expert witnesses, thereby separating myth from reality.

Read the entire article here.

This article was written by Jeff Eisenberg, for more information please click here.

During the past ten years, a significant body of case law in Utah has established the rights of plaintiffs’ attorneys to explore during jury voir dire jurors’ attitudes on the subjects of tort reform and the perceived “law suit crisis”. This article, adapted from a presentation to at the Utah Trial Lawyers Conference on Jury Voir Dire, summarizes these cases.

Read the entire article here.

This article was written by Jeff Eisenberg, for more information please click here.

Workplace accidents are a leading cause of serious injuries in the United States. Given the general inadequacy of the benefits provided by workers compensation, it is not surprising that plaintiff’s attorneys are regularly called upon to investigate and pursue tort claims on behalf of individuals injured in construction and other workplace accidents. However, it is often difficult to tell at the beginning of a case which potential defendants – subcontractors, the general contractor or the property owner (or all three) – can be sued and which can claim immunity under the exclusive remedy provision of the Workers Compensation Act. This article addresses Utah law on when workers compensation immunity attaches to such claims.

Under the Utah Workers Compensation Act, an injured worker is precluded from suing his direct employer and co-employees: “The right to recover compensation [under the Workers’ Compensation Act] for injuries sustained by an employee . . . shall be the exclusive remedy against any officer, agent, or employee of the employer . . . .” UTAH CODE ANN. § 34A-2-105(1). However, the injured worker is entitled to assert an action in tort against other entities, including general contractors, subcontractors and property owners, whose negligence caused the injury:
(1) When any injury or death for which compensation is payable under this chapter . . . is caused by the wrongful act or neglect of a person other than an employer, officer, agent, or employee of the employer:

(a) the injured employee, or in case of death, the employee’s dependents, may claim compensation; and

(b) the injured employee or the employee’s heirs or personal representative may have an action for damages against the third person. . . .

(4) For the purposes of this section and notwithstanding Section 34A-2-103, the injured employee or the employee’s heirs or personal representative may also maintain an action for damages against any of the following persons who do not occupy an employee-employer relationship with the injured or deceased employee at the time of the employee’s injury or death:

(a) a subcontractor;
(b) a general contractor;
(c) an independent contractor;
(d) a property owner; or
(e) a lessee or assignee of a property owner.

Id. § 34A-2-106

Section 34A-2-106 appears to create a simple framework whereby an injured worker may recover in tort against any party, with the exception of the direct employer, whose negligence caused the injury. Unfortunately, the reality is quite different.

Read the entire article here.

This article was written by Jeff Eisenberg and David A. Cutt.

“It is our belief that many plaintiffs’ attorneys frequently overlook crashworthiness theories in their analysis of potential avenues for recovery for seriously injured clients.”

For nearly 30 years, American courts have recognized that vehicle manufacturers must provide a reasonably crashworthy vehicle design to minimize accident injuries to vehicle occupants.

In the seminal case of Larsen v. General Motors Corp, 391 F 2d 495 (8th Cir. 1968), the Eighth Circuit Court of Appeals, in recognizing the crashworthiness doctrine, noted: “We perceive of no sound reason, either in logic or experience, nor any commanding precedent, why the manufacturer should not be held to a reasonable duty of care in the design of its vehicle, consonant with the state of art to minimize the effect of accidents. The manufacturers are not insurers, but should be held to a standard of reasonable care in design to provide a reasonably safe vehicle…At least, the unreasonable risk should be eliminated and reasonable steps in design taken to minimize the injury-producing effects of impact.”

There is not much reported case law in Utah on crashworthiness. However, the doctrine has been recognized, sub judice. See, Whitehead v. American Motors Sales Corp. 801 P. 2d 920 (Utah 990). There are also a number of Tenth Circuit cases recognizing the crashworthiness principle. See e.g., Harvey v. General Motors Corp. 873 F 2d 1343 (10th Cir 1989), Cleveland v. Piper Aircraft Corp. 890 F 2d 1540 (10th Cir. 1989), and Fox v. Ford Motor Co. 575 F 2d 774 (10th Cir. 1978).

Continue reading "Crashworthiness in Utah" »

It used to be that in Utah federal courts a plaintiff suing a product manufacturer for injuries caused by a faulty product design did not have to prove that a safer design was available at the time the defendant’s product was sold. This is no longer true. Over the last five years, several Tenth Circuit cases purporting to “interpret” Utah law now require a plaintiff to establish the availability of a safer design as part of the plaintiff’s prima facie case. There is, however, no Utah state appellate law supporting this position, and the Tenth Circuit’s position is arguably at odds with Utah Product Liability Act. My purpose here is to review these changes, put them in their historical perspective and explain why the Utah Supreme Court should reject the Tenth Circuit’s position.

At the root of the debate is the question: how “strict” should strict liability be when it comes to proving the manufacturer’s liability for an allegedly faulty product design?

Way back in ancient history, before the Contract with America and before Jazz playoff tickets cost more than a college education, strict liability was a popular legal doctrine. In the early 1980s, the Restatement 2d of Torts adopted Section 402A. That section provides that a manufacturer of a defectively designed product that causes injury is liable to the injured user, even if “the seller has exercised all possible care in the preparation and sale of the product.” This was a revolutionary change in the law. The drafters of the Reinstatement 2d reasoned that the manufacturer who profits from the sale of the product is normally in a better position than the injured victim to pay for the cost of injuries resulting from the product’s hazard, at least when the product is used in a normal and proper way. The drafters of the Restatement 2d also predicted that imposing strict liability on product manufacturers would motivate manufacturers to work harder to design better and safer products.

Continue reading "Allen V. Minnstar: Strict Liability’s Quiet Assassin?" »

In July of 1996, a federal court jury returned a $7 million gross verdict and $1,050,000 net verdict against General Motors in a crashworthiness case. The remaining portion of the verdict was assessed to the driver who had previously settled for policy limits of $1.2 million (Jeffrey D. Eisenberg and Colin P. King of Wilcox, Dewsnup & King tried the case for the plaintiffs).

In 1991, Lynn Misener was a passenger in a 14-year-old Chevrolet Blazer when the driver lost control on a remote stretch of Interstate 40. The vehicle went off the road and rolled three times, ejecting both the driver and the passenger. Lynn sustained a terrible closed-head injury, which requires her to be institutionalized for life.

Continue reading "Misener v. General Motors - Capturing the Holy Grail" »