Articles

LEGAL TRENDS, December 1999  

Legal Trends Features Prominent Product Liability Cases.

In this issue of Legal Trends, two high profile product liability cases are featured. The first, just beginning, are three consolidated lawsuits pending in Chicago, which seek damages against the gun manufacturers for injuries caused by their products. The second, starting to wind down, involves the settlement of the Dow Corning bankruptcy proceeding, originally caused by numerous claims filed for silicone breast implants. This issue also analyzes two United States Supreme Court cases concerning employment law, and an interesting New Jersey case for age discrimination.

Gunned Down

Gun manufacturers lose initial round in Cook County lawsuit.

In the latest skirmish between injured parties and firearms manufacturers, the latter party recently suffered a setback in Cook County Circuit Court as to whether they could be held liable for injuries allegedly caused by their products. In the Chicago case, three families contend that major gun manufacturers, including Smith & Wesson Corporation and Bryco Arms, through their distribution practices, created a public nuisance by creating a "climate of violence among Chicago citizens."

The combined lawsuits seek class action status. In one of the three cases, Michael Ceriale was a Chicago police officer who was shot while he was engaged in narcotics surveillance. A lawsuit was filed by Ceriale's father earlier this year, claiming that the sixteen year old who shot his son used a .357 Magnum revolver in the murder. Similarly, Stephen Young filed a lawsuit after his son Andrew was shot and killed by another teenager who mistakenly fired at Andrew believing he was a rival gang member. In the third case, the mother of Salada Smith brought her claim after her pregnant daughter, a bystander, was shot during a gang shootout.

The manufacturers sought dismissal of the cases by arguing that the plaintiffs did not state a claim for public nuisance. The court disagreed by stating in its written opinion that "the rising gun-related crime rate has created a reasonable apprehension of fear and danger among the citizens of Chicago and that defendants' actions contribute to this fear and danger."

These privately filed lawsuits have joined the ranks of such high-stakes lawsuits filed against the gun manufacturers by the City of Chicago and Cook County, as well as others across the country, which seek reimbursement for health care costs for treating gunshot victims. If viable, those claims could threaten the continued operation of those companies.

While these plaintiffs have won the first round in the battle, the war is not over. Numerous depositions have yet to be taken, and lawyers for the companies vow to file additional motions in the case in an effort to derail a recovery for the plaintiffs. This case will be closely watched by many in the upcoming months.

Dow Corning Bankruptcy Plan Approved.

Breast implant recipients slated to receive $3.2 billion in payouts.

At the end of November, a federal bankruptcy judge approved a $4.5 billion plan so that Dow Corning could emerge from federal bankruptcy protection. Dow Corning filed bankruptcy in 1995 after 170,000 women filed for claims against the company contending that their silicone breast implants caused a number of ailments including lupus and scleroderma. Several years before, Bristol Meyers Squibb similarly settled a record class action for claims pending against it.

A future order by the court may ban any future lawsuits against Dow Corning's corporate parents, Dow Chemical Co. and Corning Corp., and prohibit any claimant who opts out of the settlement from pursuing punitive damages against Dow Corning. These provisions may have a significant deterrent effect on those who would consider opting out and pursuing litigation on their own.

While some women had objected to the terms of the settlement, and have promised to appeal, a spokesman for the company has stated that the settlement was approved by 94% of the women currently involved in the case. Under the current settlement, women could get between $12,000 to $300,000 depending on the nature and extent of their illnesses. Women whose implants ruptured will receive a certain amount, and those who received Dow Corning implants but never sustained an injury, could be eligible to receive $2,000 with no questions asked.

Employment Law

Disability law clarified.

In an update to our feature article in the May, 1999 edition of Legal Trends, the nation's high court issued an opinion earlier this year narrowing the scope of those who could claim federal protection under the Americans With Disabilities Act, known as the ADA. At issue was the troublesome question as to what constituted a disability under the law. In its ruling, the Supreme Court held that Congress did not intend to cover those individuals whose impairments were correctable, for example, by wearing eyeglasses or using hearing aides. Under the ADA, one who claimed that he was disabled had to prove that he was "substantially limited" from a major life activity such as working. The court reasoned that people who could fully correct their impairment were not substantially limited in their major life activities. The Supreme Court's decision will undoubtedly restrict the ability of those wishing to pursue disability claims through the federal courts.

Young man pursues age claim in New Jersey court.

In an interesting twist to the phrase that you are never too old to learn new tricks, a thirty one-year-old man in New Jersey has been allowed by that state's high court to pursue an age discrimination claim against his former employer who terminated his employment in 1993. Michael Sisler was a college dropout who was offered employment at Bergen Commercial Bank as a vice-president of credit card operations. Soon after, the chairman of the bank asked him how old he was. Thereafter, his employment took a downward spiral.

Days later, the chairman called and stated that Sisler was not working out in the position. Months later, after being transferred to a lackluster assignment, he claims he was fired without cause. Though it took five years, the New Jersey Supreme Court ruled in his favor, finding that state law prohibited discrimination on the basis of any age. Most states, however, as well as the federal law relative to age discrimination, only allow those forty or older to bring such claims.

Power struggle between the state and federal governments.

In a case which has pitted the State of Florida against the federal government, several faculty members of Florida Universities have relied upon the federal law prohibiting age discrimination, as they claim that younger workers received more pay than they did. In a case which could affect thousands of employees across the country, the United States Supreme Court is considering whether these individuals can use the federal law against a state employer. A lower appeals court ruled against the employees, finding that the states were immune from such claims.

Too Good to be True

A New York man who attempted to redeem seven million points (the equivalent of $700,00), for a Harrier jet featured in a Pepsi commercial in connection with the company's "PepsiStuff" promotion, was rebuffed by a federal judge earlier this year. While the man thought it was a great prize, the judge noted that each jet, which sells for $23 million, was "a deal too good to be true."

Office News

Betsey M. Madden, a 1992 graduate of Brown University, and a 1998 graduate of Hamline University School of Law, has joined the firm as an associate. Betsey was a primary editor of the school's law review. Prior to attending law school, Betsey had been employed by the Chicago and Washington D.C. offices of the EEOC as an investigator. Betsey intends to develop an employment law practice with the firm.

The Law Offices of Eugene K. Hollander
LEGAL TRENDS, December, 1999

About the author:

Eugene Hollander is a trial attorney with over ten years experience. Mr. Hollander has tried numerous cases in the state and federal courts, and currently heads his own law office in Chicago. The Law Offices of Eugene K. Hollander is a full service law firm, concentrating its practice in the prosecution and defense of employment discrimination claims, personal injury and medical malpractice suits, and also engages in various types of commercial litigation. For more information, contact us directly at:

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Copyright © 2003 The Law Offices of Eugene K. Hollander. This publication may be considered advertising material under the Illinois Code of Professional Responsibility and is not intended to create any attorney-client relationship. The reader should not rely upon any statement or opinion as legal advice, but rather, should consider it as generally informative.