Articles

LEGAL TRENDS, October 2001

Legal Trends Highlights Recent Cases In Employment Law.

Legal Trends Spotlights Cases Relevant to September 11.

In this issue of Legal Trends, we analyze two groups of cases which have connections with the national tragedy of September 11. This issue also discusses a landmark whistleblowing case and an interesting development in the world of sexual harassment law.

Personal Injury and Product Liability Law

Cases Still Pending Over 1993 World Trade Center Explosion.

While the tragedy of September 11 has already become part of the national fabric, and people are starting to resume their normal routines, no litigation has yet been commenced over this catastrophic event. Pending before Judge Stanley Sklar in Manhattan state court, however, are hundreds of claims over the blast that occurred at the World Trade Center in February, 1993. At that time, terrorists activated a bomb in a van which was parked in the parking garage at the skyscraper. Six people were killed and hundreds were injured.

At the time of that disaster, the Port Authority of New York was the owner of the property. Shortly before September 11, the Port Authority leased the buildings to a developer. The plaintiffs' lawyers claim that the Port Authority knew before the 1993 blast that the World Trade Center was a target for terrorists, and that a truck bomb could have been anticipated.

The lawsuits, which involve claims for personal injuries, property damage, and business interruption, were consolidated before Judge Sklar in 1994. Since then, the parties have squabbled about the production of Port Authority documents relative to terrorism prevention. The Port Authority, which denies any liability for the occurrence, argued that the documents were privileged, and that it needed to keep security measures confidential.

Plaintiffs' lawyers believe that they have sufficient documentation to try the case early next year. The first phase of the trial will involve liability, and should the plaintiffs succeed, a second stage of the trial will determine damages. One of the cases pending before Judge Sklar is a business interruption claim of Cantor Fitzgerald, the bond trading firm which lost 700 of its employees in the September 11 blast.

The September 11 incident may have an impact on pre-trial settlement discussions, and may delay the start of the trial. The Port Authority's legal department was located on the 66th floor of the north tower. Among the missing from the disaster are 74 Port Authority employees, including the executive director and two lawyers.

The General Counsel of the Port Authority vehemently denied that the structure was unsafe in 1993, contending that the Port Authority had conducted a number of security reviews prior to February, 1993, and that most of the recommendations had been put into service.

Anthrax Vaccine Manufacturer Hit With Product Liability Suit.

Bioport Corp. of Lansing, Michigan is the only producer in the United States of the anthrax vaccine. Just recently, the company was hit with a lawsuit seeking millions of dollars in damages for its alleged negligence in manufacturing the vaccine.

The suit, filed in federal district court in Washington D.C., was brought by the estate of one deceased soldier, and another injured soldier, who claim that the vaccine caused their chronic ill health. According to the suit, the vaccine was administered to approximately 150,000 military personnel beginning in the 1990's. At that time, the government vaccinated service personnel fearing the worst from the Iraqi government during the Gulf War.

The complaint alleges that the manufacturer did not sufficiently test the vaccines or monitor the soldiers' adverse reactions. The lawsuit further alleges that the deceased soldier, Sandra Larson, received six injections of the vaccine in 1998, and immediately began to suffer from fatigue, skin rashes, and numbness. The symptoms did not go away, and Larson was admitted to a military hospital. She later lapsed into a coma and died. The other soldier, Ronda Wilson, similarly claimed that she suffered adverse reactions almost immediately. The plaintiffs claim that their vaccines were either improperly stored at room temperature, or that the lot contained micro-organisms.

Employment Law

Whistleblower Nets Record Payout.

Douglas Durand was an executive with TAP Pharmaceutical Products, Inc. Durand came forward and blew the whistle on his former employer for overbilling government insurers on the company's prostate cancer drug, Lupron. He and a physician not employed by TAP, Dr. Joseph Gerstein, filed suits under the federal False Claims Act. As a result of their whistleblowing activities, the government rewarded the plaintiffs by giving them a portion of the $558 million in civil penalties which were levied against TAP. Durand will receive $77 million, which represents the largest such reward in U.S. history.

Pursuant to the False Claims Act, an individual who files suit which reveals unlawful activity, can share in 15 to 25 percent of the civil penalties recovered. Last year, the federal government settled a fraud case against hospital chain HCA-The Healthcare Co. for $840 million. Approximately 30 whistleblowers filed lawsuits, and the biggest payout to a litigant was $30 million.

In the case of TAP, Durand found some of his employer's marketing and business practices "ethically troubling." He retained an attorney, and left TAP's employment. Durand subsequently went to work for another drugmaker in Philadelphia. Durand filed suit in 1996. Durand and Dr. Gerstein's cooperation with federal authorities formed the basis of the government's indictment against the company and six current or former TAP sales managers.

In Dr. Gerstein's case, a pair of TAP sales representatives approached him and attempted to persuade him that he should prescribe Lupron instead of the drug that his employer-HMO was carrying. As an inducement, the sales representatives offered a no strings attached "educational grant" to Dr. Gerstein. He refused, but the salesmen persisted, eventually offering Dr. Gerstein $75,000.

Dr. Gerstein then went to the federal authorities, and allowed the government to bug his office and record conversations with the TAP representatives. Ironically, Dr. Gerstein's HMO used to prescribe Lupron, but found that it was too costly and that cheaper drugs were just as effective. The criminal cases against the individual representatives are still pending.

Staring May Constitute Sexual Harassment.

In a case just handed down from a state appellate court in California, the reviewing court held that persistent and threatening staring may be actionable as sexual harassment under state law.

Michelle Birschtein, a factory worker, filed suit after her employer did nothing to stop a co-worker, George Bonilla, from harassing her. Initially, Bonilla made sexually suggestive remarks to Birschtein, and asked her out on dates repeatedly. She rejected his advances, and Bonilla's supervisor ordered him to stay away from her. Though Bonilla was seated at a distance from Birschtein, he continued to stare at her for as long as five to ten minutes at a time.

The Law Offices of Eugene K. Hollander
LEGAL TRENDS, October, 2001

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:

The Law Offices of Eugene K. Hollander
33 N. Dearborn, Suite 2300
Chicago, IL 60602
(312)-425-9100
E-mail: EHollander@ekhlaw.com

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.