Chicago Injury Lawyer Blog

This past week, the owners of the Costa Concordia offered stunningly low compensation to survivors of the wrecked cruise ship in the form of a 30 percent discount on future cruises. A spokesman for Costa Cruise said, "The company is not only going to refund everybody but they will offer a 30 [percent] discount on future cruises if they want to stay loyal to the company."

As a Chicago personal injury lawyer, I find the company's response to be troubling on multiple levels. First, the survivors of the cruise ship disaster have experienced an extremely traumatic event, thus, boarding a cruise ship in the future will likely be stressful and unpleasant for many of them. Second, a full refund and a 30 percent discount are insufficient to compensate these individuals for the emotional distress they experienced as a result of the cruise ship company's negligence.

In fact, the cruise ship's offer is so inadequate that it has insulted many of the survivors, as evidenced by one survivor's reaction, "It is a ridiculous and insulting offer. I am very disappointed in them. They are not accepting their responsibilities at all. Our only back-up is separate legal action." I trust that legal action will hold the cruise ship company accountable for its negligence and secure just compensation for the survivors.

Many are talking about Saturday’s tragedy at the Indiana State Fair. Minutes before the country sensation, Sugarland, began their set, a forceful 70 mph gust of wind blustered through, knocking the giant stage down and trapping fans underneath.

Rain had been in the forecast, along with thunderstorms, and Fair officials warned the possibility of an evacuation. However, the same officials expressed hopes of the show’s continuation. But it was all too late, when two minutes later the dark storm clouds and winds came through, knocking down the stand.

At this time, the death toll is 5, and roughly 40 others have reportedly been injured.

While Governor of Indiana, Mitch Daniels, calls the event a “fluke,” many are questioning whether or not the wind could have been predicted and whether or not necessary precautions could have taken place to ensure the safety of the State Fair-goers.

Hoosiers are no strangers to precarious weather - an ABC news article reports that this section of Indiana is sometimes known as “tornado alley.” Similar speed and strength winds struck the area in April 2006 at an outdoor John Mellencamp concert. Winds also struck in May of 2004, when a tornado touched down south of the Indianapolis Speedway, interrupting the Indianapolis 500 racing.

As a Chicago injury lawyer, I am suspicious of the high winds being a “fluke” event. In a “tornado alley,” I believe that there should be better evacuation plans and precautions implemented to ensure the safety of its residents. Considering a tumultuous past weather history, it is not out of question to expect and demand this type of precaution. It is up to concert organizers, weather officials and law enforcement to ensure this.

Many of us in the legal world have been talking about the recent trend in recalled medical devices. Product liability and personal injury lawyers are especially concerned with the continually failing devices, and are concerned about the government process—one that is too rash and too lax on testing—that gets these devices on to the market.

MSNBC.com features an article on a recent device failure and its current investigation. In “Risky pelvic mesh highlights worries about FDA process,” Rita Rubin investigates a device called surgical mesh, intended to counter receding organs. Rubin specifically writes about Janet Holt, a woman who was affected by the uncomfortable organ slippage. When her bladder slipped out of place, her doctor recommended a surgical mesh device to prop up her insides. Unfortunately, this device only escaladed Ms. Holt’s problems, increasing her pain, and leading to multiple surgeries in order to remove the device, which had slowly eroded into her vagina.

Although there is no evidence that pelvic mesh provides benefit, surgical mesh is not getting pulled off the market, despite the rising adverse events the products are causing: “From 2006 to 2007, the FDA received more than 1000 reports of adverse events related to the mesh in women treated for pelvic organ prolapsed or stress urinary incontinence. From 2008, when the FDA first revealed its safety concerns, to 2010, the agency received nearly 3000 more.”
These failing devices are a part of a series of unfortunate events; multiple medical devices are failing and continuing to fail without FDA action. But, all of these defective products and adverse events could be avoided. Rubin cites a study of 113 recalls from 2005 to 2009 found in the journal Archives of internal Medicine reports, “Of those [113 recalls], only 21 of the devices had been required to be tested on patients before receiving FDA approval.”

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I recently watched the new HBO documentary, Hot Coffee – a documentary that illuminates how big corporations spin media and promote “tort reform” for their own business interests and in doing so, undermine the court system. Specifically, personal injury law and personal injury lawyers become targets; our work thought to be petty, greedy, or—a popular term—“frivolous.” Of course, as a personal injury lawyer, I feel the incredible importance of this type of law; I’m reminded how of the three branches of government, the courts are the one equalizing branch. No matter how rich or poor you are, how powerful or not, anybody can seek justice through the courts. Whereas the executive and legislative branches are dominated by powerful interests, in the judicial realm, citizens can hold those powerful interests accountable for wrongdoing. Seeking justice and using the court system is a constitutional guarantee. Hot Coffee reveals how propaganda—both throughout the media, and big business and “tort reform” proponents—can really hurt that constitutional guarantee to a fair and free trial and instead works to promote big companies’ financial interests, and undermine the courts’ equalizing capacity.

The documentary is divided into four vignettes, each vignette exposing an example of how big business interests and “tort reform” advocates undermine the constitutional right to the courts. Beginning with the infamous story of the hot McDonalds coffee lawsuit, the film documents Stella Liebeck’s plight to hold a huge corporation responsible for their dangerously and unreasonably hot coffee. Media propaganda made her case look petty and “frivolous,” while in reality, the near-deathly spill of scalding coffee led the once spry and active 79 year old onto a downward spiral of health and to her subsequent death. Third degree burns required painful, expensive and dangerous skin graph surgery. Ms. Liebeck sought the courts for financial help and to raise awareness, but her case was twisted into a media-frenzy that made Ms. Liebeck a household name for all the wrong reasons. The facts of her case were exaggerated by the media, and this distortion fostered much negative sentiment surrounding personal injury law. Her case not only shows how media can affect law, but is also symbolic for the intricacies of the legal system in general; even with all the loop holes and injustices, the media distortions and the interests who seek to undermine, there is still great power that an ordinary citizen can harness through the legal system, and Ms. Liebeck used that power to change law and ensure the safety of others.

The next section focuses on how “tort reform” advocates are really hurting families who desperately need financial compensation after medical malpractice. Many states are enacting caps to actively limit the amount of money that someone can receive in a medical malpractice or personal injury case. This cap really hurt the Gurley family of Omaha, Nebraska. Colin Gurley was born with brain damage and cerebral palsy because of medical malpractice at birth. While the family was originally awarded $5.6 million, which would have been substantial for quality care for his life, because of a state-mandated cap, he could only receive $1.25 million, which will not pay for the high volume of care he will need throughout his life. This cap renders Colin forever reliant on his family, on tax payer money, and unable to sustain a happy life. Also, an unfortunate victim of “tort reform” backers, the next portion tells the story of Oliver Diaz, of the Alabama Supreme Court, who was targeted by Carl Rove and the U.S. Chamber of Commerce because he was perceived to stand in the way of “tort reform.” He was indicted and ostracized with false charges, and his judicial career was ruined. Although the court found him not guilty, he didn’t have the funds or the media power to compete with the U.S. Chamber of Commerce and their media power. Again, the financial interests of big business power undermine the equalizing power of the courts.

The film’s final vignette focuses on a woman named Jamie Leigh Jones, who was an unfortunate victim of one of the successes of tort reform. While she was working overseas for KBR/Halliburton, she was violently gang raped by the men in her barracks. Because of a mandatory arbitration clause she had signed in her contract to work for Halliburton, she accidentally waived her rights to a fair and unbiased trial. This portion documents Jamie’s extreme heroism and bravery in holding a big corporation accountable and demanding a trial to confront her attackers. She worked closely with Senator Al Franken, who was able to pass the first bill to ban mandatory tort reform in sexual assault and rape cases in the government branches.

Our court system is a privilege and necessity, and “tort reform” supporters disregard the equalizing power of the courts, and the incredible power the courts give citizens to hold their oppressors accountable for their actions. As a personal injury lawyer in Chicago, I worry about future caps on medical malpractice and personal injury cases in Illinois, and I worry what it will mean for my clients. Watching Hot Coffee only reminds me of why I do what I do, of the incredible power in the courts equalizing potential, in the undeniable right to seek justice in our country. And that ought not to be undermined.

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