Landmark Auto Product Liability Case Settles

In a landmark Illinois case, Bruce Pfaff and Michael Gill successfully settled the claims of an south suburban man who died because the seat on his 1996 Escort failed during a rear impact. Because of the seat failure, our client was thrown into the rear seat/rear window area of his car and he suffered a fatal head injury. The firm tried the case to a record $27,000,000 jury verdict in 2005 against the rear ending motorist, Ford Motor Company and Mazda Motor Company.After two trips to the appellate court and the Illinois Supreme Court, the judgment against the manufacturers was reversed because the high court changed the law concerning defective products and required a new trial. During the third day of trial proceedings in Cook County, the case settled.

The case highlighted the dangers that exist in front seats of cars and light trucks that are weak. The seat is the main safety device to protect a person in a rear impact and if it fails to stay upright, the seat occupant will be accelerated toward the back of the car where he can hit rear seat occupants or structures in the vehicle, causing severe injuries or death. This is the second seat defect case the office has tried against Ford Motor Company with success. The firm has also successfully represented plaintiffs in seat defect cases against other manufacturers.

A scene photograph taken by the Chicago Police Department shows that it was a significant impact (the Escort was hit by a Cadillac doing 55-60 mph) and that the driver's seat failed to stay upright in the crash.

Post-Operative Negligence Causes Brain Injury and Leads to $9.9 Million Settlement

Advocate Christ Hospital and Medical Center in Oak Lawn, Illinois, will pay $9,900,000 in voluntary settlement of a case brought on behalf of a boy, then 18 months old, who suffered brain injuries due to negligence post-operative care at that institution in April 2003. The child developed post-operative bleeding that went undetected and untreated by the physician overseeing the child’s care in the pediatric intensive care unit which led to his arrest and brain damage, according to Bruce Pfaff, Pfaff & Gill, Ltd., Chicago, one of his lawyers.

Investigation in the case revealed that the physician assigned to supervise the child’s post-operative care was not sufficiently qualified for the assignment under hospital protocols. The doctor had spent years in different residency programs without having completed them. He was not a specialist in cardiac care, and did not know how to treat the child when his lab values began to deteriorate. He did not treat the child’s deterioration or call for help in a timely fashion.

The hospital was put in an awkward litigation position when all of the other physicians involved in the care identified the resident as the one who was in charge of the child’s care overnight on April 24. In his videotaped deposition, the resident denied that he was in charge of the care, effectively leaving a fact finder to understand that no one was taking responsibility or providing care for the boy during the most important moments of his life.

The case was principally prosecuted by Gary Cohen and Stuart Grossman of Grossman Roth, PA, Miami, Florida. The firm has a well-deserved national reputation for excellence in medical malpractice cases, and they brought Bruce Pfaff in to assist in this case which would have been tried within the next year in Cook County. The hospital was represented by Brian Fetzer of Johnson & Bell. The settlement terms were approved July 30, 2009. S.D. v. Advocate Christ Hospital and Medical Center. For further information, please contact Bruce Pfaff, (312) 828-9666.

Bruce Pfaff named one of the Best Lawyers in America

Bruce Pfaff was notified of his inclusion in the 2010 edition of The Best Lawyers in America. He was elected in the specialties of Medical Malpractice Law, Personal Injury Litigation and Product Liability Litigation. For over a quarter of a century, Best Lawyers® has been regarded – by both the profession and the public – as the definitive guide to legal excellence in the United States.

For information on how our firm can help you, please contact us at info@pfaffgill.com or 312 828 9666.

Design Defect in Garage Door Opener Leads to Brain Injuries and $9M Settlement

A judge in Rockford, Illinois, last month approved a $9,000,000 settlement to compensate for brain injuries sustained by a boy, then 4 years-old, who was trapped under a garage door. The young man likely activated the wall switch of the garage door operator and tried to exit the garage. Before he was able to leave the garage, the door contacted him and pinned him to the ground. The “contact” safety reverse system that was supplied with the garage door operator failed to reverse the door, and he was asphyxiated for 5 or more minutes before his mother found him. Paramedics worked to resuscitate the child for 45 minutes before a heart rate could be restored. As a result of the asphyxial event, the child suffered massive brain injuries. He requires custodial care for the rest of his life.

The event occurred in May 2005. The family retained Jeremy Bergstrom, a Rockford, Illinois lawyer who did the initial investigation of the case and served as co-counsel after he retained Bruce Pfaff of Pfaff & Gill, Chicago, Illinois, to take the lead in the case. Pfaff and his firm concentrate in representing people in product liability and other serious injury occurrences (www.pfaffgill.com). They filed the case in 2006 against the company responsible for the design of the garage door operator, claiming it was unsafe in its design, causing these injuries. The case settled in April 2009, and the settlement was approved the following month by the judge overseeing the case. The defendant and its insurers paid $9,000,000 to settle all claims made.

Plaintiffs’ lawyers uncovered many unpleasant truths about the garage door operator industry during the investigation. While consumers in America take for granted the electric eye safety systems (classified as “non-contact” safety reverse systems), those have only been required in garage door operators sold since January 1, 1993. “The ‘non-contact’ safety systems are clearly preferable to the ‘contact’ safety reverse systems that were sold on almost every garage door operator in America before 1993,” according to Pfaff. In order to function, the “contact” safety reverse equipped door had to strike an obstruction, such as a child, sense that it struck an obstruction, and then, it should reverse. “There were three recognized failure modes for the ‘contact’ reverse systems uncovered in our discovery,” Pfaff said. One of them was operable in this case: if the garage floor settles, the door operator may complete its cycle before the obstruction is sensed by the door operator, and the door will crush the obstruction and not reverse. That is what happened in this case, leading the door to exert approximately 280 lbs. of downward force on the child as he lay under it. The downward force of the door not only entrapped the boy, but it prevented his lungs from expanding, asphyxiating him.

The garage door operator industry in the 1980s was well aware of these risks. The two leading companies in the industry during the 1980s were Chamberlain and Genie. Starting in 1981, Chamberlain began to offer a “non-contact” reverse system, an electric eye similar to those in current use, as an option for its garage door openers. Few consumers bought them because the company charged $30-50 extra for this feature. Genie followed suit in 1986, offering its version of an electric eye safety system as an option. Genie’s experience was similar to that of Chamberlain: few consumers bought them because of the added $50 charge and inadequate marketing and disclosure of the risks of entrapment. Pfaff believes that had those risks adequately been conveyed to consumers, reasonable consumers would have clamored for the electric eye safety devices.

The way to enhance safety of products is not to offer safety devices as an expensive option. Genie and Chamberlain were both aware that less than 5% of their consumers purchased the non-contact safety reverse device during the 1980s. They should have known that their garage door openers would predictably kill and maim children without those safety devices. Nevertheless, safety was offered only as a high cost option.

What changed this?

Extensive, bad publicity for the industry arrived in June of 1989. That month, Katie Fritz was killed in St. Paul, MN when the Genie garage door opener in her family’s home entrapped her. It had a “non-contact” safety reverse system that failed to protect her due to the disconnection of a wire essential to the functioning of the “non-contact” safety device. The door operator was not equipped with an optional electric eye safety system. This was one of more than 200 similar incidents that Pfaff and his office uncovered in their investigation. What made this one different were the actions of Katie’s mother and her lawyer, Shawn Barch of St. Paul, MN. “Ms. Barch did more for garage door operator safety in America than any other lawyer,” Pfaff said. Aside from bringing to public attention through many interviews in the public media the horrifying events of the Fritz occurrence and what could have been done to prevent it, Ms. Fritz worked with the Minnesota legislature to pass a garage door operator safety statute. It was the first such statute in the country. While it did not mandate electric eye safety systems, it enlightened many legislators and consumer safety advocates around the country to garage door operator safety deficiencies. Other states began to discuss statutes, and naturally, the proposals across the country were not uniform. This lack of uniformity in proposed regulations is what energized the garage door operator industry to arrive at a conclusion they should have reached years earlier: the industry leaders, Genie and Chamberlain, in 1990 fully embraced the idea of a mandatory national standard for garage door operator safety that would include a requirement that garage door operators would have non-contact safety reverse systems.

Federal legislation to accomplish this was proposed in the spring of 1990 and it was passed. Unfortunately for consumers, the law required garage door operators to sell products with the preferred safety systems beginning on or after January 1, 1993. While that lead time may have been convenient for the manufacturers, it continued to expose consumers to unsafe garage door openers in the intervening years.

In the Rockford case, the garage door operator was manufactured in December 1990 and installed the next year. The homeowner at the time was deceased by the time of the May 2005 event, so it is not known whether that person was ever offered the optional safety device. We do know that he did not purchase it. The suit alleged that the manufacturer of the garage door opener was fully aware of the benefits of “non-contact” safety reverse systems in December of 1990, yet negligently choose to supply their garage door operators without those devices. “It was clear from the depositions of past employees of this manufacturer that they choose not to equip all of their garage door operators with ‘non-contact’ safety devices because they were afraid of losing sales,” Pfaff indicated.

This photograph shows how the garage door in question crushed a container of antifreeze when testing by a government investigator after the occurrence:



If the contact reverse system had functioned as intended, the door would have reversed and not stayed down as it did in this picture and on the day of the occurrence. If there had been a “non-contact” reversing system, once the obstruction broke the beam of the electric eye, the door would have reversed and not caused injury.

Because of a quirk in Illinois law, due to the age of the product, plaintiffs could not pursue a strict liability claim against the manufacturer of the garage door operator – they were limited to negligent design theory. Plaintiffs were prepared to prove that the industry as a whole was negligent in 1990, following the precedent of In Re Hooper, 60 F.2d 737 (1932). Illinois adopted In Re Hooper in the landmark decision of Darling v. Charleston Memorial Hospital, 33 Ill.2d 326 (1965), and it remains a very potent theory in negligent product design cases.

The Rockford case was fully prepared for trial and settled as a result of a day-long mediation with Howard Priess of Naperville, Illinois. Mr. Priess had a long career as a prominent lawyer defending and prosecuting injury cases in Illinois before his recent retirement and assumption of mediator duties, Pfaff said. Mr. Priess had credibility on both sides as he had litigated cases with all of the participants in the mediation. Without Mr. Priess’s involvement, the case would likely have been tried.

For further information concerning garage door operator safety issues, contact Bruce Pfaff at (312) 828-9666 or through our website at www.pfaffgill.com

Burr Oak Cemetery Lawsuits

The recently uncovered scheme by several Burr Oak Cemetery employees has shocked thousands of Chicago families. Pfaff & Gill, Ltd. has been contacted by a number of victims to investigate and prosecute claims against the conspirators, as well as the corporate entities that have profited off the cemetery while turning a blind eye to the goings on in Burr Oak.

Families of persons buried in the cemetery have filed lawsuits against the owners and employees of Burr Oak Cemetery. The cemetery manager and three Burr Oak Cemetery employees are suspected of digging up hundreds of bodies and leaving them in the open air on a vacant lot on the cemetery grounds.

Burr Oak Cemetery is owned and operated by Perpetua, LLC, an Arizona corporation. The four employees, Carolyn Towns, Keith Nicks, Terrence Nicks, and Maurice Dailey, have been arrested and charged with body dismemberment.

If you have family members buried in the Burr Oak Cemetery and wish to pursue legal action, call Pfaff & Gill, Ltd. at 312-828-9666. You may also contact us through our website at www.pfaffgill.com.

Civil Lawsuit Filed in Sexual Assault Case

Pfaff & Gill, Ltd. recently filed a lawsuit on behalf of a young woman who was injured at a Michigan campground when a man entered the showers at the camp and sexually assaulted her. Following the events at the campground, the man was arrested, charged, and later sentenced to a year of prison. The defendants in the lawsuit include the local group that organized and supervised the outing for negligent supervision and for their role in allowing the man to attend the camp. The owner of the campground was also named a defendant for failing to provide proper security and locking devices on the women's showers.

The case is pending in the Circuit Court of Cook County and seeks compensatory damages for the young woman. For more information, please contact Matt Ports at Pfaff & Gill, Ltd.

Wrongful Death Lawsuit Filed in Stem Cell Cardiac Injection Case

Pfaff & Gill, Ltd. recently amended their lawsuit arising out of the wrongful death of a 74-year-old gentleman who died at Rush University Medical Center. The amended complaint claims that investigational protocol 24779 was negligently developed by Baxter Healthcare Corporation, with the collaboration of Johnson & Johnson subsidiaries. The subsidiaries supplied products used in the protocol.

During the course of the June 6, 2007 procedure, the patient's left coronary vein was lacerated, apparently by the MyoStar injection catheter developed by the J & J subsidiaries. The patient died after the laceration caused cardiac tamponade and arrest.

The case is pending in the Circuit Court of Cook County and seeks compensatory damages for the patient's surviving wife and their children.

For further information on the case, please contact Bruce Pfaff at Pfaff & Gill, Ltd.

Giving Back

Photo: Christy Belue, second from left, on Friday June 5th, at the plaza at NBC-5 Chicago,

with other volunteers promoting Chicago Cares' upcoming Serve-A-Thon.

Around the Pfaff & Gill office, we call her the goddess of scheduling. But when legal assistant, Christy Belue, isn’t busy working her magic on behalf of the firm, or busy raising her three sons, or giving blood, or donating a kidney, she takes pride and pleasure in giving back to the Chicago community. Through Chicago Cares, the city’s premier volunteer organization, Christy found SOS Children’s Villages Illinois. At the urban village, located on Chicago’s Southside, SOS provides a viable alternative to traditional foster care. Children that are orphaned, abandoned, neglected, or abused, live together with their siblings in private homes.

“At SOS, they attempt to keep large families of foster children together,” says Christy. “I volunteer twice a month (at the Village). I spend an evening reading to 3-6 year old children. During the first half hour of this program volunteers read with children and the second half hour the volunteers work on a related craft with the children. I believe I get more out of it than the children. It’s so they can have some one-on-one attention for an hour; for one hour they are the center of one adult’s attention.”

Chicago Cares is the city's premier volunteer organization. The organization provides opportunities for individuals and businesses to improve the Chicago community through participation in creative, structured group volunteer programs that address Chicago's most pressing needs. This coming Saturday, June 13, 2009, is Chicago Cares’ 16th Annual Serve-A-Thon. To learn more about how you can take part in this citywide day of service, click here.

“My son, Jamal and I are going to be roadies Saturday morning, since we can’t commit to the entire day. We are going to welcome and check-in volunteers, hand out lunches, usher, distribute goody bags, help with buses and direct traffic. I’m sure it’s going to be fun! And this way I get to spend some time with my middle boy.”

Visit us at http://www.pfaffgill.com/ to find out more about some of the other charities and community service organizations we support.

Bruce Pfaff co-author of article in CBA Record

In May 2009, the CBA Record, the monthly journal of the Chicago Bar Association, published a scholarly article by Bruce Pfaff, co-authored by defense trial lawyer John Stalmack and Kent Law Professor Nancy Marder. The article is entitled "The Right to Submit Questions to Jurors," and makes a strong case for trial judges in Illinois to permit jurors to submit written questions for witnesses to answer. In current Illinois practice, it is rare for jurors to get the chance to submit questions. The authors feel that this should change. After a witness is questioned by the lawyers, jurors should be given the chance to submit written questions which are then reviewed by the court. If the questions are appropriate, the judge reads them to the witness and the jury is given the information they need to decide the case.

For article reprints, please contact tdaley at pfaffgill dot com

Not All Work in May

Bruce Pfaff was part of the winning Texas Scramble team at the Royal Dornoch Golf Club in Dornoch, Scotland on May 24. Bruce had the pleasure of teaming with the club's Captain, Jim Campbell, far left, the incomparable Sue, and Jamie Pfaff, his college golf teammate, far right. The team's gross score was 63 and they had a net 58.4, defeating a foursome from London by half a shot.

Proving Medical Negligence in an Anesthesia Death Case

We are privileged to represent the estate of a woman who died in the OR at Advocate South Suburban Hospital because the anesthesiologist gave her drugs to paralyze her breathing and he then was unable to place a tube in her airway to ventilate her. She went into arrest and suffered brain death. It is a terrible loss for her family that was entirely preventable.

The medical records from the hospital don't show what people were thinking at the time. The surgeon ultimately did an emergency tracheostomy to try to save her life but it came too late. He did not even write an operative report about what happened. The anesthesiologist did his best to defend his poor care in his deposition, but as luck would have it, a nurse in the operating room was willing to give what we believe to be truthful and damning evidence against him.

In response to the question "what did the anesthesiologist say in the OR?" she testified he said "F***, maybe I should have used the fiberoptic scope to intubate her."

Sad, but true. That is only one of the things the doctor did wrong in this case. You would think a case like this is so obvious that it would never come to court, but that is not how hospitals and doctors defend these cases. We expect a trial at the end of this year.

Garage Door Safety-Dijion Sanders

The tragic loss of Dijion Sanders on May 9, 2009, in Chicago should remind us all of the great dangers that garage doors pose. News reports indicate that he died when an overhead garage door fell on his back in the 9200 block of South Saginaw in Chicago. His family has suffered a great loss that should have been prevented.

Garage doors can fall from the open position because of manufacturing defects with springs and other parts of the door assembly or due to careless maintenance or installation. Equally dangerous, however, are garage door openers that are unsafely designed. For more than 20 years, the garage door operator industry and the Consumer Product Safety Commission have known that young children often push the button and try to race out of the garage before the door closes. Poorly designed garage door openers have no electric eye beam system that will stop the door from closing when a person passes through the door opening. Older garage door operators were only supplied with "contact safety devices" that were designed to stop and reverse if they contacted a person or obstruction. However, there are known failure modes for those designs and they don't prevent injury or death as well as the electric eye beam systems.

Bruce Pfaff and Matthew Ports of Pfaff & Gill, Ltd., along with co-counsel Jeremy Bergstrom, recently settled a lawsuit for an 8 year old boy who suffered cardio-respiratory arrest and brain damage when a garage door closed on him at the family's home. The child, four years old when injured, apparently pushed the button and tried to run out of the garage. We don't know whether he tripped or if the closing door knocked him down, but the pressure of the door (more than 280 lbs. of force) on his lower back caused the cardio-respiratory arrest and brain injury. The door had an automatic opener that was not equipped with an electric eye beam safety system. The "contact reverse system" failed and the door pinned the child. We learned of hundreds of "entrapment" injuries and deaths from garage doors in our investigation which would have been prevented by safe practices by manufacturers, installers or maintainers of doors and door operators.

After an intense three year legal battle, the case was settled in federal court for $9,000,000.00. The money will be administered by a trust bank under supervision of the probate court to provide for the child's future needs.

For further information about garage door safety issues, please contact Bruce Pfaff at 312 828 9666 or bpfaff at pfaffgill dot com.

Welcome

Welcome to the redesigned blog for Pfaff & Gill, Ltd. - Chicago Trial Lawyers! Our attorneys, Bruce R. Pfaff, Michael T. Gill, and Matthew D. Ports, will use this vehicle to share information and news with our colleagues, clients, and friends about the legal system and our current activities. As we work to get the blog up and running again, please visit our website at www.pfaffgill.com to learn more about our firm, and be sure to check back here soon for updates.