California Judge Orders Paint Producers to Create $1.1 Billion Lead Paint Fund

A California judge has ruled that three paint companies created a public nuisance by concealing the dangers of lead in their products and ordered the defendants to create $1.1 billion abatement fund.  In his order, Santa Clara Superior Court Judge James Kleinberg further said the defendants, ConAgra Grocery Products Co., LLC, NL Industries, Inc., and The Sherwin-Williams Company also campaigned against the regulation of lead in paint and actively promoted the use of lead in homes, despite knowing that lead paint was highly toxic.

In his January 7, 2014 Statement of Decision, Judge Kleinberg ordered the defendants to pay the State of California $1,150,000,000 to an abatement fund to be administered by the state’s Childhood Lead Poisoning Prevention Branch.  Ten cities and counties in California brought the lawsuit against the paint companies.  They were assisted by Cotchett, Pitre & McCarthy, LLP, the Law Office of Peter Earle, Mary Alexander and Associates and Motley Rice, LLC.  National Trial Lawyers Top 100 member Joe Rice, co-founder of Motley Rice, said “The final decision by Judge Kleinberg reinforces what we believe and stand behind every day – that companies that knowingly promote hazardous products and therefore create a public nuisance should be held accountable for their actions.”

"This decision will help to ensure that children in California will not be poisoned from lead paint in their homes and can grow up to be the very best and brightest they can be," said Dr. David Jacobs, who developed the abatement plan presented at the trial, and identified the state-of-the-art proven and practical methods that will be used to ensure the work is done safely and effectively. Dr. Jacobs is the Research Director at the National Center for Healthy Housing and an Adjunct Associate Professor at the School of Public Health at the University of Illinois at Chicago. He previously directed the nationwide Lead Hazard Control Program at HUD from 1995-2004.

The federal government outlawed the use of lead in paint for residential purposes more than 35 years ago.  According to the Centers for Disease Control (CDC) and California’s Childhood Lead Poisoning Prevention Branch, lead paint is the primary cause of lead exposure for children who live in older homes.  The California Legislature has declared that “childhood lead exposure represents the most significant childhood environmental problem in the state today.” (Health & Saf. Code, § 124125).  According to the CDC, lead causes permanent neurological damage to children, decreasing IQ and causing other serious health consequences.

Construction Worker Injured at Boston’s Logan Airport Wins $3 Million

A 37-year-old construction worker who fell 35 feet through an unprotected opening on the arrival/departure ramp at Logan International Airport in Boston has won a $3 million settlement.

The victim landed on a roadway below the ramp and suffered multiple traumas.  Doctors diagnosed the unidentified worker with a traumatic brain injury two years after the accident, which happened on October 20, 2008.

The victim’s attorney, National Trial Lawyers Top 100 member Kenneth Kolpan of Boston, filed a lawsuit against the general contractor.  The contractor then filed a third-party claim against the worker’s employer.  The parties agreed to go to mediation in the case, which included four loss-of-consortium claims for the worker’s wife and three children.

Kolpan used an expert behavioral neurologist who performed Diffuse Tensor Imaging to demonstrate the plaintiff’s diffuse brain injury.  Kolpan also hired an award-winning cinematographer to produce a video featuring interviews with expert witnesses.  The mediator, John Fitzgerald, also heard testimony from the treating orthopedic surgeon, a neuropsychologist, an expert life-care planner, as well as physical and speech therapists.  The case settled on June 4, 2013.  A court approved the settlement, which granted 58% to the worker, 42% to his wife and children, and a workers’ compensation lien reduction of $378,000. Since the settlement, Kolpan says his clients’ workers’ compensation case has been settled for an additional $1.5 million by attorney Joseph Burke of Wellesley, MA.


Florida Cyclist Wins $3.5 million in Lawsuit

A Florida cyclist and his wife have won more than $3.5 million in a lawsuit seeking damages in a 2012 collision in Jupiter.  A Palm Beach County jury granted John and Jo-Ann Gelland $3,577,378 for damages sustained in the wreck.  The defendant, Christina Bill, denied fault for the accident.

The jury returned the verdict for the plaintiffs on February 12, following an eight day trial and what attorneys for the plaintiffs described as “lengthy pre-trial litigation” that Whalen describes as “vigorously defended.”

The crash happened on SR A1A in Jupiter on January 12, 2012. Plaintiff attorney Jeanmarie Whalen says John Gelland, who was 60 and retired at the time, was riding his bicycle north on A1A when the defendant opened the driver’s side door on her parked Ford Mustang.  Gelland crashed into the door and was thrown 20 feet into the air, landing in the northbound lane.  Whalen says Gelland was wearing proper cycling safety equipment, including a helmet.  Gelland suffered serious traumatic injuries in the incident, including fractures of his right upper shoulder and humerus as well as severe damage to his arm and right hand.  Whalen says Gelland has been left with permanent restriction of motion as well as complex regional pain syndrome.  He will require pain medications and therapies, along with physical therapy, for the foreseeable future.

Whalen, an executive committee member of The National Trial Lawyers’ Motor Vehicle Trial Lawyers Association, tried the case along with NTL Top 100 attorney Fred Cunningham of Slawson Cunningham Whalen & Gaspari in Palm Beach Gardens.  Whalen said, “We are pleased with the jury’s verdict, which will allow Mr. Gelland to receive the necessary future care he requires for the extensive injuries he suffered in this unfortunate collision.”

McCartney’s Ex Wins Appeal of $168,000 PR Bill

A federal appeals court in California has confirmed that Heather Mills, former model and ex-wife of former Beatle Sir Paul McCartney, will not have to pay her ex-publicist $168,000 in disputed fees.  A three-judge panel  for the Ninth Circuit Court of Appeals in the Central District of California handed down the decision on February 14.  The judges ruled that the plaintiff, Parapluie, Inc., had failed to provide “sufficient evidence” that Mills had misrepresented her ability to pay for the services at the time while she was awaiting “big money” in her divorce.

Michele Blanchard’s public relations firm Parapluie, Inc. filed the lawsuit against Mills in 2011.  Mills used Blanchard as her PR rep from March 2005 to July 2008, but wasn’t paid for the first two years.  According to court documents, Mills told Blanchard that she couldn’t afford Blanchard’s fee of $5,000 per month.  However in March 2007, Mills agreed to pay a reduced fee of $3,000 per month after receiving an interim payment in her divorce.

Mills had told Blanchard “I’ll take care of you when I get the big money,” a reference to her anticipated final divorce settlement with McCartney.  The judges ruled that “Mills’s statement is too vague to support a concrete promise to pay Blanchard $5,000 per month for future work and for work done two years prior.”  The court’s memorandum adds that the “invoices Blanchard sent Mills beginning in April 2007 stated the ‘total amount due’ each month was $3,000, plus expenses.”  The judges ruled that the invoices negated any claims that Mills retroactively pay for the first two years of unpaid work and the subsequent $2,000 per month discount.

Mills sought $250 million in her divorce from McCartney, but received $48.6 million.

The case is D.C. No. 2:11-cv-02548-MMM-SS.

Retrial Results in Nearly Double Award for Victim Injured in Elevator Free-Fall

A New Jersey jury awarded a carpenter and his wife $8 million on Tuesday in a retrial over injuries the man sustained when an elevator he was in plummeted 2 ½ stories.  The latest jury award is nearly twice what the couple was awarded in the first trial in 2012.  Schindler Corp., which maintained the elevator in a hotel complex in Morristown, NJ, had appealed for a retrial.

Richard Tufaro, 55, of Montague, NJ, was injured on August 19, 2005.  Tufaro was working on a remodeling project in the main lobby of Headquarters Plaza in Morristown.   According to court documents, Tufaro got on the elevator to return to his truck at the end of his work day.  The elevator went into a free fall and activated an emergency braking system that abruptly stopped it between floors.  Tufaro testified that he “felt like (he) was going to go through the floor of the elevator.”  Tufaro was thrown into a metal panel, resulting in spinal injuries that included herniated discs in his neck and back, as well injuring his shoulder so severely it required surgery.  The injuries have left Tufaro unable to return to work fully.

Tufaro and his wife, Sharon, filed a lawsuit against several defendants, and eventually went to trial against Schindler Corp.  On March 14, 2013, The Tufaros won a $5.79 million award, but Schindler successfully appealed the decision because of errors made by the trial court.  In March, 2013, the state appeals court threw out the award, saying that the incomplete verdict form only listed compensation amounts.  Schindler’s attorneys argued that a proximate cause question was not included in the verdict summary form, effectively precluding that issue.

The New Jersey Supreme Court sent the case back to Superior Court in Morristown after refusing to review an Appellate Division decision in June, 2013.  The jury found Schindler had improperly maintained the elevator, resulting in the malfunction that left Tufaro permanently injured.  The jury awarded $5.5 million to Tufaro, $2.25 million to his wife and $250,000 to cover medical expenses.

The Tufaro’s attorney, Andrew Fraser of Laddey, Clark & Ryan, said he was “incredibly pleased for the Tufaros,” and hoped the award would help make up for what had happened to the couple.  James DeNorscia of Sonageri & Fallon, who represented Schindler, was unavailable for comment.

$3.4 Million Settlement in Lawsuit over Trader Joe’s “All Natural” Claims

A federal judge has preliminarily approved a $3.4 million settlement of a class action lawsuit accusing grocery store chain Trader Joe’s of falsely advertising certain products such as cookies and apple juice as “all natural.” In an order handed down on February 6, U.S. District Judge William H. Orrick called the settlement “sufficient, fair reasonable and adequate.”

The settlement requires Trader Joe’s to stop using the phrases “all natural” or “100% natural” on products named in the lawsuit.  Those products contained artificial substances such as ascorbic acid, sodium acid pyrophosphate, vegetable mono- and diglycerides, cocoa processed with alkali, sodium citrate and xanthan gum.

“In light of the food labels’ ‘All Natural’ representations, a reasonably prudent consumer would certainly not normally expect the food products to include synthetic or artificial ingredients,” the class action lawsuit said. “Indeed, as a result of this false and misleading labeling, Defendant was able to sell these purportedly “All Natural” products to thousands of unsuspecting consumers in California and throughout the United States and to profit handsomely from these transactions.”

The settlement requires Trader Joe’s to establish a settlement fund of $3.375 million to cover administrative expenses and class awards.  Members of the class who have proof of purchasing these items will be able to file claims for the average retail price for each product they bought.  Those who don’t have receipts may be reimbursed for up to 10 products ranging in price from $2.70 to $3.99 each, up to a total of $39.99.

A hearing is scheduled for July 9, 2014 for final approval of the proposed settlement.  The lawsuit was filed in 2011 in the U.S. District Court for the Northern District of California.  The case is Tamar Davis Larsen, et. al. v. Trader Joe’s Co. (3:11-cv-05188).  It affects products sold since October, 2007, including Joe-Joe’s chocolate vanilla crème cookies and sandwich crème cookies; Trader Joe’s jumbo cinnamon rolls, buttermilk biscuits, crescent rolls, fresh jellies and pressed apple juice; and Trader Giotto’s fat-free ricotta cheese.

The plaintiffs are represented by Janet Lindner Spielberg of the Law Offices of Janet Lindner Spielberg, Michael D. Braun of Braun Law Group PC and by Joseph Kravec Jr., Wyatt A. Lison and McKean J. Evans of Feinstein Doyle Payne & Kravec LLC.

Trader Joe's is represented by Kate Ides, Carla Christofferson and Daniel J. Faria of O'Melveny & Myers LLP.

Trader Joe’s is also facing criticism for selling meat from animals raised on antibiotics.  Consumers Union took out full-page ads in two Colorado newspapers on Monday imploring Trader Joe’s to “be an industry leader: Get your meat off antibiotics.”  According to the Denver Post, Trader Joe’s plans to open its first stores in Colorado on Friday, February 14.  Consumers Union says it is targeting Trader Joe’s because “it has more control over its suppliers.”

Trader Joe’s responded by saying that some of its meat is already antibiotic-free, and it’s working to find new sources of antibiotic-free products.

Record-Setting $16 Million Verdict in Grain Elevator Deaths of 2 Teens

The families of two teenagers who were killed after being trapped in a grain elevator in northwestern Illinois in 2010 will share a record $16 million verdict.  Wyatt Whitebread, 14, and Alejandro Pacas, 19, were killed while “walking down” on the grain in the bin, a process that an attorney for the families says violates OSHA regulations.  A Carroll County, Illinois jury deliberated eight hours before awarding $8 million each to the two plaintiffs’ families.  The verdict is the highest ever in Carroll County, according to the Jury Verdict Reporter.

Kevin P. Durkin and Sean P. Driscoll, attorneys at Clifford Law Offices in Chicago, obtained the verdict on the families’ behalf.  The two teens were working at a Consolidated Grain and Barge Company grain elevator owned by Haasbach LLC.  According to Durkin, the 14-year-old Whitebread “should never have been in the bin,” and was pulled down into the grain like quicksand.  Pacas and a third worker, Will Piper, jumped in to save Whitebread after he began calling for help.  Pacas jumped into a sinkhole while trying to pull out Whitebread, and both were suffocated.  Piper was immersed in grain up to his neck for six hours before he could be rescued.  He was awarded $875,000 and was represented by Loren Golden of Golden Law Office in Elgin, IL

“These boys should not have been working in the bin in the first place,” Durkin said.  He describes the teens as “outstanding young men trying to make some extra money during the summer.”  Durkin says the award was “a just verdict based on the evidence.”  He adds that the jury agreed with the arguments that the victims should never have been allowed to “walk down” the grain, which he describes as a process to break up chunks of grain that won’t go through the sump in the grain elevator.

Durkin says about 1,600 grain entrapments are reported each year in the U.S., and several deaths happen as a result.  “Suffocation is a leading cause of death in grain storage bins,” according to OSHA’s website.  “In 2010, 51 workers were engulfed by grain stored in bins, and 26 died--the highest number on record, according to a report issued by Purdue University .”  Durkin says if a person has sunken into grain up to his knees, he will “never get out” without help.  According to OSHA, “Moving grain acts like ‘quicksand’ and can bury a worker in seconds.”  While Durkin says the younger teen shouldn’t have been allowed by the company to walk down the grain, the older Pacas should have been properly trained and harnessed.

According to the Chicago Tribune, a 2011 OSHA investigation cited the facility's owner, Haasbach, for 25 violations. Among the violations, the owner didn't train the young workers, provide safety harnesses, make sure machinery was turned off or develop an emergency action plan. A separate investigation found that Haasbach violated child labor laws by hiring workers under 18-years-old to perform hazardous jobs.

$18 Million Settlement Reached in Flushmate Exploding Toilet Class Action

A settlement worth $18 million has been reached in a class action lawsuit alleging that Sloan Valve Company sold defective pressurized flushing mechanisms that could cause toilets to explode.  People who owned or previously owned toilets equipped with the Flushmate system will receive a cash payment as a result of the settlement.  If approved, the settlement will resolve five federal class action lawsuits.  The Flushmate is also the subject of a Consumer Product Safety Commission (CPSC) recall that provided free repair kits to owners who asked for them.

According to the original complaint filed in 2012, the Series 503 Flushmate III Pressure-Assist Flushing System by Sloan used a pressurized tank made of two plastic halves that could separate under pressure, causing leaks, and in some situations, explosions.  The pressurized tank can explode with enough force that it shatters the porcelain tank, according to the settlement document.  The CPSC says 304 of the Flushmate units made between 1997 and 2008 have exploded during use, injuring 14 people.  2,330,600 Flushmate systems, including those installed in American Standard, Kohler and other brands of toilets, are subject to the CPSC’s recall.  The company became aware of the Flushmate System defect as early as June 2000, but continued to sell the toilet without disclosing the defect or risk, the class action lawsuit says.

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One of the victims, who was 26 when his toilet exploded in 2011, said his Flushmate system “exploded and severely cut my back,” according to the CPSC website.   He went on to say “Had it been my grandmother our one of my nieces and nephews who happened to use the toilet that day, the consequences could have been severe. I required dozens of stitches for an extremely deep wound because of the exploding porcelain.”

“The Flushmate System uses a vessel that traps air, and as the vessel fills with water, it uses the water supply line pressure to compress the trapped air inside. The compressed air forces the water into the toilet bowl, and instead of the ‘pulling’ or siphon action of a gravity unit, the pressure-assist unit ‘pushes’ waste out,” the class action lawsuit explains.

According to the settlement agreement, “The cash payments available under the settlement will fairly and substantially reimburse Settlement Class Members for expenses related to the repair or replacement of their Flushmate toilets.”  Members of the class include anyone who owned a Flushmate system or a Flushmate toilet in the U.S. between October 14, 1997 and June 30, 2009.  To be eligible for a cash payment, owner must also have installed a repair kit as part of the CPSC recall, have installed a replacement toilet, and/or sustained property damage caused by the Flushmate system.  Owners should receive $50 for one Flushmate toilet, and an additional $25 for other Flushmate toilets installed in their home.  Owners whose toilet fixtures were shattered or suffered other property damage from a Flushmate system will be eligible to be reimbursed for expenses, provided they can provide receipts and have not already been reimbursed by another source.  Directions on how to file a claim for reimbursement are not yet available.

40-year-old English Professor Wins $27.5 Million in Rare Secondhand Asbestos Case

A Cleveland, Ohio, instructor has won $27.5 million in a lawsuit claiming that he contracted mesothelioma after coming into contact with asbestos on his father’s work clothes.  Doctors diagnosed John Panza, Jr., 40, with mesothelioma, a rare form of lung cancer, in 2012.  His father died in 1994 from lung cancer after working at Eaton Airflex brake company for 31 years.

The $27.5 million verdict is believed to be the largest of its kind in Ohio.  The jury awarded Panza $515,000 in economic damages and $12 million in non-economic damages. His wife, Jane Panza, was awarded $15 million for loss of consortium for a total award of $27,515,000.The only defendant at trial, Kelsey-Hayes Company, successor to National Friction Products Corp., was found 60% liable. The verdict was handed down on December 18, 2013.

[sws_yellow_box box_size="550" box_align="right"]Get legal news for consumers delivered into your email inbox by subscribing with the form on the right side of the screen. [/sws_yellow_box]Gary Paul, partner at Waters, Kraus & Paul in San Francisco and lead trial attorney for the Panzas, said “I am so proud to represent John and his wife Jane. True justice happened today.”   Paul was assisted by Demetrious Zacharapolous, also an attorney at Waters, Kraus & Paul.

Attorney John Mismas, who served as local counsel, says “I’m just happy for the family.  Which for me, it’s not about me winning this award.  It’s not about the money for me.”

John Panza, Jr., an English instructor at Cuyahoga Community College, has undergone four separate surgeries, including the removal of his right lung.  The plant where his father worked from 1963 to 1993, owned by the former National Friction Products Corp., manufactured brake pads which contained asbestos. Panza’s father regularly came home covered in the cancer-causing material after working in the receiving and shipping department. He delivered materials all over the plant and was a frequent bystander to other employees who drilled and abraded National Friction products, which released asbestos.

The jury assigned 60 percent of the liability to Kelsey-Hayes, after finding that the brake pads made at the factory were defective and were the primary cause of Panza’s cancer.  40 percent of the liability was assigned to Eaton Airflex, which was protected from liability under Ohio law.  Kelsey-Hayes will be held responsible for the damages, and is expected to appeal the verdict.  There will be a second trial at a later date set by the court with a different jury to determine whether punitive damages should be awarded and in what amount.