Nolan News Fall 2008 - Nolan Law Group

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Fall

NOLAN NEW S

N O L A N L AW G RO U P Newsletter

“ INSIDE

3 product safety alert 4 aviation updates 8 brain injury updates 9 nurse’s corner

10 settlement survey

12 employee profiles

13 know your rights 14 in the news 16 legislative update 17 firm talk

Leasing companies should be aware of the tremendous liability entailed in exporting old junk airliners to overseas carriers. —aviation updates, page 4

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nolan’s notes Dear Friends:

NOLAN LAW GROUP 20 N. Clark St., 30th Floor Chicago, IL 60602 Phone: (312) 630-4000 Fax: (312) 630-4011 www.nolan-law.com

First, I wish to thank each of you for all of the support and goodwill you have provided, and continue to provide, the attorneys and staff at Nolan Law Group, including me. Without you, we could not have achieved the success which has made Nolan Law Group a premiere advocate for victims’ civil rights. This latest edition of the Nolan Law Group newsletter allows us to report on some of these recent successes as well as to discuss important new issues affecting our personal safety and the legal rights of all Americans. We also have an opportunity to share important news within the firm. As you may know, Nolan Law Group recently added two extremely talented and highly - respected trial lawyers to its team. Paul Borth and Tom Routh joined the firm as partners and have already proven themselves to be outspoken and effective advocates on behalf of the firm’s clients. You can learn more about Paul and Tom in the Employee Profile on page 12. With recent changes in the global economy, pressure continues to increase on airlines to control expenses of operations and maintenance, resulting in increased stress on existing airport infrastructures, regulatory oversight, and the aging worldwide fleet. These factors present an environment which can drastically compromise passenger safety. Many of these factors were at issue in the Air Philippines Flight 541 case in which American companies leased an aging and unsafe aircraft to a third world airline incapable of safe operations and maintenance, with tragic consequences. Our work on behalf of the victims’ families resulted in an unprecedented $165-million-dollar settlement which will certainly change how aircraft leasing companies conduct their business in the future. The details of this remarkable case are presented in the Aviation Update beginning on page 4. Inasmuch as thousands of consumers sustain serious injuries from defective products each year, we are featuring a new section in our newsletter this quarter designed to keep you abreast of important product safety information. The Product Safety Alert will address issues concerning the manufacture and distribution of defective or unsafe consumer products, as well as provide valuable tips on how to keep safe. In the inaugural feature, Nolan Law Group’s nurse consultant Valerie Romo addresses the recent recall of the vital blood thinner Heparin on page 3. I would also like to direct you to an article written by Michael Sullivan, an ABAapproved paralegal who many of you know as an integral part of Nolan Law Group’s workers’ compensation and construction injury practice. Mike provides important details as to why someone injured on the job should never wait to call Nolan Law Group for advice in the Know Your Rights section on page 13. While no one needs reminding, we are fast approaching Election Day in another heated race for the Oval Office. As one administration exits and another enters, we may soon be confronted with proposed changes to the legal system which could dramatically influence or limit the rights of civil litigants and the authority of our courts. Our Legislative Update section has an in-depth discussion about how the upcoming election may impact Tort Reform on page 16. Finally, on the last couple of pages of this newsletter, you will see why some people say, “Nolan Law Group is a great place to work.” I have always felt that it is important to maintain a healthy balance between work, community and family. Of course, we did all work very hard this summer, but we still had some time for a little fun with family and friends while giving back to the community. Check out Firm Talk for more on page 17. Again, thank you for allowing us to be advocates for the civil rights of deserving people. We remain dedicated to our mission of being the best advocates for our clients, and we are here for you, your family and friends should the need ever arise. Please keep in touch. Sincerely, Donald J. Nolan

safety aler product safety alert

Heparin Contamination By Valerie A. Romo

continued on page 7

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aviation

aviation updates

A Novel Idea: Aircraft Leasing Companies L

easing companies should be aware of the tremendous liability entailed in exporting old junk airliners to overseas carriers that do not have the procedures or financial means to operate them safely. This object lesson comes from a 22year-old Boeing 737-200, operated by Southwest Airlines until it was provided by an Illinois-based leasing company to Air Philippines on January, 18 1999. The airplane, operating as Flight 541, crashed on approach to Davao in the Philippines on April 19, 2000, killing all 131 passengers and crew aboard in the worst air crash to occur on the island nation. Between the date of the crash and the recent settlement of $165 million dollars in damages, there was a mountain of obfuscation and resistance that had to be surmounted. The case’s end result should discourage the leasing of airplanes to unqualified carriers simply because of the greater financial return associated with such problematic ventures. The degree of risk is made clear by the attitude of George Lehnertz, CEO of Fleet Business Credit Corporation, who provided the B737-200 to Air Philippines. When asked by Donald Nolan in a deposition if the safety of people flying on an aircraft leased by his company was a “business concern,” he basically replied that it was assumed the airplane was airworthy. He was asked specifically, “During the entire time period as CEO, you never once thought about the safety of the people that flew on the airplanes that were owned and leased by Fleet?” “To the best of my knowledge, no,” he 4

N O L A N L A W G R O U P N E W S L E T T E R fall 2008

replied. Air Philippines was started in 1996, expanding from one airplane to a dozen at the time of the crash. The airline was hemorrhaging financially, had a below par maintenance program, and no safety

A photo that aided the case: At the site of the crash is an aircraft insurer representative with bags of concrete nearby to bury and encase the wreckage.

office. A risk-benefit study by the leasing company determined that a contract with Air Philippines entailed risk but that the returns were good—in other words, passengers were put at risk in exchange for easy money. Stated bluntly, the airplane was dumped on an overseas market to a carrier unable to operate the airplane safely, and the leasing fees were jacked up to compensate for the risk. The manner in which Air Philippines operated was unsafe and would not be tolerated in the U.S., where hundreds of airplanes were grounded recently for electrical wiring inspections which were not conducted on time to the Federal Aviation Administration’s (FAA)

satisfaction. First, consider the pilots. The aircraft was being flown as a route check for Captain Don Sardalla, administered by Captain Viluzmino Catipay. They were flying from Manila to Davao and were told by air traffic control that they would be behind a Philippine Airlines A319 for approach and landing on the single runway. As the B737 broke out of clouds, the A319 was observed on runway 05. Captain Sardalla informed ATC of his intention to perform a 360˚ maneuver, but Captain Catipay advised ATC of the opposite, stating that the aircraft would turn right instead of following the missed approach procedure shown on the approach chart. The airplane re-entered clouds and attempted to fly visually at a lower altitude in instrument conditions when in fact it should have climbed to 4,000 feet. The intention in all of this creative flying was to land in the opposite direction on runway 23. An approach briefing was not conducted nor was a missed approach briefing conducted, despite the fact that this flight was a check ride for Captain Sardalla. As the airline’s representative on the airplane, Captain Catipay was derelict in making sure procedures were followed and the published missed approach profile was flown. At the time of the accident, there was no requirement for cockpit resource management (CRM) training in the Philippines, which would have encouraged a crewmember to speak up in the face of a demonstrably unsafe condition. Sardalla sat silent as his intention was

updates Should Ensure Safety The insurance company claimed to have no knowledge of this burial—until we produced a photograph of one of their agents at the burial site, with bags of concrete laying about the scene of frenetic activity. overridden. In his training records, Captain Catipay was cited as being in need of CRM training. However, such training was not made a matter of Philippine regulatory requirement until approximately a year after the accident. As the aircraft was circling back to land on the opposite runway, it collided with terrain. The airplane was equipped with an outdated ground proximity warning system (GPWS), which provided only 4 seconds warning of impending terrain (an aural warning, “Terrain, terrain, whoop whoop, pull up”) before first impact with trees. Prior to the accident, about 7,000 other airliners had already been equipped with Enhanced GPWS, or EGPWS, which would have provided about a 45-second warning. EGPWS was developed after the American Airlines crash into a ridgeline on approach to Cali, Colombia in 1995, but had not been installed in the accident airplane at the time of its retirement from Southwest Airlines or before being leased to Air Philippines.

Don Bateman, a senior engineer with Honeywell, indicated in a deposition that it would have cost about $50,000 to upgrade from the GPWS to the EGPWS technology. In other words, equipping the accident airplane with this life-saving technology would have cost mere pennies per ticket over the thousands of flights it would have made under lease to Air Philippines. As was assessed during this case, a conscious decision was made by the leasing company to not upgrade the airplane from GPWS to EGPWS technology. Prior to the lease with Air Philippines, the airplane was repainted and minimal maintenance was performed. Air Philippines was provided with the Southwest Airlines maintenance manual, but it was on microfiche. The airline did not have a microfiche reader so an old B737-200 maintenance manual from United Airlines was used instead. Air Philippines was flying B737-200s formerly operated by Southwest, United and Malaysian Airlines, all three of which employ markedly different maintenance protocols. The airline should have had a so-called bridging program to establish uniform maintenance procedures for all of its B737-200 aircraft, but no such unifying standards were established. In short, the airline did not have properly documented maintenance procedures. There were numerous other problems with the airline. Flight crews were routinely rushed completing load sheet computations before takeoff and mechanics were not encouraged to wear ear protection while working on the flight line. These are just two of many indications of an unsafe operation.

The crash should not be surprising. What was astonishing was the length to which attempts were made to cover up the sordid facts. An association of families, representing many of those killed in the crash, approached Nolan Law Group to represent them. It did not take long for us to uncover the generally unsafe conduct and practices that led to this crash, and we took on the prosecution of the case. Our firm engaged in extensive legwork to establish the proposition that the leasing firm engaged in what is known in legal terminology as “negligent entrustment of a dangerous instrumentality.” Specifically, if the aircraft had not been leased to Air Philippines, Flight 541 would not have operated and the accident would not have happened. Making this simple point was complicated, given the overt resistance of the leasing company and its insurer. For example, the insurance firm paid a company to bury the wreckage between October 21 and 22, 2000—approximately six months after the crash but immediately after Nolan Law Group filed the first lawsuit from the crash. The shattered remnants were sealed in concrete, making it impossible for us to review the final trajectory of the aircraft through examination of impact marks. It was also impossible to verify the proper functioning of the Cockpit Distance Measuring Equipment (DME) and the Vertical Speed Indicator, both of which were the subject of maintenance log entries for unreliable readings— with the most recent entry being recorded just three days before the crash. continued on page 6 w w w. n o l a n - l a w. c o m

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aviation updates

Above: Island residents walk among the smoldering wreckage near the tail section of the ill-fated airplane. Left: The accident airplane, registration RP-C3010, pictured shortly before the crash.

a novel idea, continued from page 5

The insurance company claimed to have no knowledge of this burial—until we discovered photographs of one of their agents at the burial site with bags of concrete laying about the scene of frenetic activity. The fact that the airplane was in sub-standard condition was, in our opinion, ample motivation for the alleged cover-up by the insurer. The Cockpit Voice and Flight Data Recorder (CVR/FDR) were fortunately pulled from the tail of the aircraft shortly after the crash and flown to the U.S. National Transportation Safety Board (NTSB) for read-out and transcription. Unfortunately, the FDR was hopelessly damaged and did not yield usable data. The NTSB produced a transcript of the CVR, recording the pilots’ conversations, but only the last 15 minutes of the 30-minute tape. Fortunately, by corroborating with the tape of air traffic control radio traffic, Nolan Law Group’s team was able to reconstruct the aircrew’s noncompliance with go-around procedures and

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the decision to fly an entirely new route and land in the opposite direction on Davao’s single runway. Endless depositions and document searches exposed the failure of the leasing company to provide the aging B737 with the latest safety equipment (EGPWS), formalized cockpit resource management training, adequate maintenance programs, and appropriate inspections before the lease was enacted. The depositions revealed that required maintenance was not conducted and a blind eye was turned to the obvious dangers. As mentioned, our case was based primarily on negligent entrustment, which places the duty on the lesser to perform due diligence and assure that Air Philippines was capable of operating the airplane safely. In sum, this was a manifestly unsafe operation, and our lawsuit for wrongful death, brought against the leasing company, was settled for $165 million dollars. This case stands as an example for all

companies engaged in the selling or leasing of airplanes that they have a responsibility to ensure that the operator meets the highest standards. This is a critical, ethical, and legal obligation in this era of globalization, in which a plane can be leased to an airline in countries where the safety standards are well below those in North America and Europe. In the last five years, there have been more than ten fatal commercial airline crashes involving aircraft leased to developing countries. In the United States, the Federal Aviation Administration (FAA) professes a “one level of safety” ethic—that the passenger has a right to the same level of safety whether flying on a large or small airline. As a result of this case, a blow has been struck for applying this philosophy worldwide. Don Nolan was the lead attorney for plaintiffs in the Air Philippines lawsuit against Fleet Business Credit Corp.

Dangerous Trends Continue in Commercial Helicopter Safety

heparin contamination, continued from page 3

In 2007, there were 49 deaths from helicopter accidents in the United States. According to statistics provided by the National Transportation Safety Board (NTSB), these 49 deaths came from only 24 separate accidents. This figure represents slightly more than 12% of the 191 helicopter accidents and incidents investigated by the NTSB that same year.

Operation

Fatal Accidents

Part 91 16 Part 135 6 Part 133 1 Public Use 1 Part 137 0 TOTALS 24

Total Fatalities

Accidents / Incidents

31 16 1 1 0

143 27 7 6 8

49

191

The number of 2007 helicopter accidents and incidents represents an unacceptable 12.35% increase from the 170 accidents that were investigated by the NTSB in 2006. More shocking is the fact that the number of fatal accidents for Part 135 operations doubled from the previous year and the number of fatalities associated with these accidents more than tripled. Despite the alarming trend, Joe Gigantelli, a vice-president of Sikorsky Helicopters, was quoted in the June 20, 2008 publication of Engineering News stating, “We’re seeing a very robust aviation sector right now,” and “[t]here is real market demand for commercial helicopters.” As might be expected, the increased demand for helicopters has been accompanied by an increase in preventable deaths. In the first half of 2008, there were 18 fatalities associated with Part 135 helicopter accidents, already surpassing the total figure for 2007. Sadly, as much as the demand for commercial helicopters increases, there will be a commensurate number of families searching for answers as to why their loved ones died and who bears responsibility. Nolan Law Group is currently working on behalf of the victims’ families in several helicopter accidents in the United States and overseas, including the September 11, 2004 accident over the Aegean Sea which claimed the life of His Beatitude, Petros VII, Pope and Patriarch of Alexandria and All Africa of the Eastern Orthodox Church. w w w. n o l a n - l a w. c o m

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brain inju brain injury updates

Life After Brain Injury

Sharing the Journey Through S By Ginny Lazzara, RN, BSN, CRRN,

port group for the past 22 years and

Each support group is different and has its own character and identity. Some are facilitated by professionals in hospitals or post-acute settings; others are facilitated by persons who have had a brain injury or a family member. Some are for those who have a brain injury; others are for spouses and siblings. Some focus on social outings, while others focus on educational programs. Some groups are quite small, while others attract a larger crowd. Whatever the character or nature of the group, it is meeting needs—the need to be heard, have friends, share resources and live life to the fullest.

I have seen the difference it has made

Are You Ready?

CBIST, Rehabilitation Nurse Consultant

I

t is often said, and rightly so, that rehabilitation from a brain injury is

a lifelong journey. As such, the journey may be made a bit easier when shared with others. Support groups can often take on that role. I have been lucky enough to facilitate a brain injury sup-

in the lives of my patients and other support group members. However, most of the impact on group members did not come from me—it came from the collective caring and support provided by each member to the other. I have also been lucky enough to have visited many of the brain injury support groups in Illinois in my role with the Brain Injury Association of Illinois. There are many support groups (though definitely not enough) and they play a vital role in enriching the lives of those who participate.

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In my early years as a hospital-based rehab nurse working on a brain injury unit, I automatically assumed that the natural progression for my patients was from the rehab unit to home, to an out-patient program, and a support group. Wrong. I learned that many of my patients who were discharged to home and an outpatient program were not convinced that they needed a support group. Once they arrived home, everything would be fine. For some, that was certainly the case. However, for quite a few, home and community were just the beginning of a new set of challenges. Once discharged from a program, patients can get “lost” and many end up sitting at home without work, friends, or any other social outlets. I have also found that most take a year or more to check out the support group information given to them at discharge.

You’ve Got A Friend

There is nothing like having your story fall on compassionate and understanding ears. Sharing experiences and learning from each other make people feel accepted and validated. I have found that group members are often the ones who can successfully confront other members to move past an issue or accept a new challenge. It has been gratifying to see members get together outside of the group, talk on the telephone, or keep in touch via e-mail. Great friendships have been forged at many a group. As one of my support group members recently said, “I have friends here that I trust … the group lets me be heard.” It’s as simple as that. Information, Please

There is no question that persons dealing with a brain injury often have difficulty obtaining enough information. The acute and post-acute programs in Illinois do an excellent job of answering questions and providing patients and families with written materials. However, I have found that frequently patients and families are overwhelmed just trying to get through their rehab programs. Information may be forgotten or not fully absorbed. Most support groups provide an excellent opportunity to share information, resources, and answer questions. They are also a great way for the facilitators to keep track of members’ progress and health issues. Support groups provide a refreshingly casual way for facilitators to help members connect with healthcare providers, therapies or community programs when ready.

ury nurse’s nurse’s corner

Is it a Brain Injury?

h Support Groups The latest in brain injury information, provided by the Brain Injury Association of Illinois, is readily available at its office and through many of the affiliated support groups. We all need companions for our journey, but especially if we’re dealing with such life-altering issues that persons with brain injury deal with on a daily basis. Check out one of the Brain Injury Association of Illinois affiliated support groups today at www.biail.org or share the journey with a call to the Brain Injury Association of Illinois office at 800-6996443. I also welcome your calls here at Nolan Law Group. Ginny Lazzara was recently elected to the Board of Directors of the Brain Injury Association of America, and elected Chair of the State Affiliate Assembly representing all U.S. affiliates of the Brain Injury Association of America. She is the Board Chair for the Brain Injury Association of Illinois and Chair of the Illinois Governor’s Advisory Council on Brain and Spinal Cord Injury. Ginny recently received the national State Leadership Award from the Brain Injury Association of America at their annual meeting in San Antonio and a certification as a Brain Injury Specialist Trainer (CBIST) from The American Academy for the Certification of Brain Injury Specialists (AACBIS). AACBIS is a Standing Committee of the Board of Directors of the Brain Injury Association of America.

In the absence of any obvious symptoms, one of the most challenging aspects of litigating a traumatic brain injury case is proving that a brain injury actually occurred. Brain injury has often been referred to as the silent epidemic for just that reason. Many people frequently go undiagnosed for years before they ever realize that they have been permanently injured. At Nolan Law Group, our staff knows what to look for, what questions to ask and what technology and expertise to use to answer the question, “Is it a brain injury?” For those who may have sustained a blow to the head as a result of a fall, sports injury, car accident, etc., the question is not so easily answered. Frequently, the question is not asked at all. It is often the case with mild traumatic brain injuries or concussions, diagnoses are missed because it is assumed that a brain injury must be accompanied by loss of consciousness and positive radiological findings. Not so. Concern for other physical injuries requiring more immediate medical attention often takes precedence, taking the possibility of a brain injury off the radar screen. Questions to Be Considered Have you had a blow to the head recently? Many times one shrugs off a bump on the head or considers a diagnosis of concussion rather minor. Concussion does not have the same impact as the words “brain injury.”

Do you at times feel that your memory is not quite what it should be? Are you forgetting little things that you easily remembered before? Do you have difficulty sleeping? Do you experience headaches, visual problems, dizziness or fatigue? Is your ability to pay attention diminished, or do you find it difficult to complete tasks that you easily handled previously? Do you find yourself getting angry over little things and unable to tolerate even minor frustrations? Is it hard for you to be in crowded places and follow conversations? These are just a few of the questions that may point to a hidden brain injury. Experiencing any of these symptoms can have a profound impact on one’s life. Mild traumatic brain injury affects relationships, family life and work. Recognizing the symptoms and acknowledging that they could be the result of a brain injury is half the battle. Seeking help from professionals specializing in brain injury is an important step towards reclaiming your life. Please contact Nolan Law Group with any questions regarding brain injury or if you would like to discuss confidentially any symptoms you may be experiencing. You may also visit our website at www.nolan-law. com or the Brain Injury Association of Illinois website at www.biail.org.

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settlement

settlement survey

Nolan Law Group Forces $165 Million Dollar Settlement for Families of Air Philippines Flight 541 Crash CASE FACTS

On April 19, 2000, at 5:21 a.m., Air Philippines Flight 541 left Manila with a planned destination to Davao City on Samal Island. At approximately 07:03 a.m., the Boeing 737 slammed into a coconut plantation on Mt. Kalangan, Sitio Camanlangan in Barangay San Isidro, caught fire and disintegrated. One hundred and thirty-one passengers and crew died in the accident, making it the largest loss of life from an airline crash in Philippine history. At the time of the accident, the aircraft was operated by Air Philippines under a lease agreement with AAR Aircraft & Engine Group (“AAR”) and Fleet Business Credit Corporation (“Fleet”). The plane, a Boeing 737- 200, was a 22-year-old refurbished aircraft which had previously been “put out to pasture” by Southwest Airlines. In August of 2000, Nolan Law Group filed suit against two Chicago area companies—AAR Aircraft & Engine Group, Inc., and Fleet Business Credit Corporation. Ultimately, wrongful-death lawsuits individually filed for families of 110 victims would end up in the Circuit Court of Cook County, Ill., with Donald J. Nolan acting as Lead Counsel for all plaintiffs. Nolan Law Group initially took the position that AAR and Fleet should never have leased the airplane to Air Philippines, a then under-funded and unsafe start-up airline. Nolan Law Group claimed that the defendants had negligently entrusted the airplane to a company that was not capable of operating the aircraft in a safe manner. It was later discovered that no one from AAR or Fleet had ever inspected 10


or audited the airline’s operations and maintenance or training procedures before leasing the aircraft. Nolan Law Group also exposed AAR’s and Fleet’s failure to equip the aircraft with up-to-date safety equipment. During discovery, it was revealed that the 737-200 had not been upgraded with an enhanced ground proximity warning system (EGPWS). Instead, an outdated GPWS had been installed which was completely unsuitable for the topography of the Philippine terrain. The newer system would have given pilots almost a half-minute warning compared to the four-second warning provided by the outdated GPWS. Nolan Law Group would go on to argue that this particular aircraft would have been considered “unworthy” by FAA standards. In the Air Philippine case, the fact that the plane was sub-standard appeared to be sufficient motivation for an alleged cover-up by the insurer. Four months after the insurance claim was paid, workers from the insurance firms were alleged to have destroyed evidence. Counts of spoliation of evidence were subsequently added to the lawsuit. AAR and Fleet would try several times to have the cases transferred to the Philippines so that they would not have to answer to U.S. law. AAR claimed that Illinois was an inconvenient forum for the litigation and sought to have the cases transferred to the Philippines under the legal doctrine of Forum Non Conveniens. Nolan Law Group won a major victory on the appeal of the Forum Non Conveniens motion that resulted in the trial court decision denying the defendants’ request. RESULTS

On November 26, 2007, Nolan Law Group reached a settlement with AAR and Fleet worth $165 million dollars on behalf of the surviving family members.

The amount is estimated to bring each family approximately $1.5 million dollars. One of the many lessons learned from this case is that a company leasing an aircraft has a duty to provide oversight to ensure that each airplane is adequately equipped, safely maintained, and operated by properly trained pilots. In the future, lessors and owners will need to learn that “oversight” does not mean “overlook.”

Nolan Law Group Reaches a $6.5 Million Dollar Settlement in Construction Site Injury Suit CASE FACTS

On July 30, 2002, a worker, acting within the scope of his employment as a union laborer for Clayco Construction, Co., was struck in the head by a 12,340-pound trench box. The 24-foot trench box was being lifted with chains to reposition it during a sewer installation project. The trench box was rigged with two cross chains while it was being lifted. During discovery it was revealed that the standard instruction by the manufacturer for use of the trench box explicitly stated, “Always use a 4-legged sling to install and remove a shield.” The required safe method was not used at the time of the accident causing the trench box to abruptly drop and strike the worker near his shoulder and head, fracturing his neck, partially paralyzing his right arm and hand and leaving him permanently and totally disabled from construction work. Clayco’s vice president of Risk Management admitted that the rigging used at the time of the occurrence was an unsafe work practice. The suit alleged that Clayco Contruction failed to ensure that safe, suitable, and proper rigging was used during the

sur vey movement of the trench box and failed to enforce other safety measures required on this project. Nolan Law Group also set out to prove that the defendant retained and exercised control over safety and maintained supervisory responsibility for all activities on the jobsite where the Cecchin Plumbing employee was injured. RESULTS

In February of 2008, Nolan Law Group entered into mediation with the defendants. A settlement of $6,500,000 was ultimately reached for the benefit of the victim and his family.

Nolan Law Group Obtains $6.25 Million Dollars for Client in Medical Malpractice Suit CASE FACTS

In January of 2002, our client was pregnant with twins and receiving regular pre-natal care from her obstetrician. Approximately 30 weeks into the pregnancy, our client and her doctor agreed that the twins would be delivered via a scheduled C-Section. All consent forms were signed and a written order for a Cesarean Section was prepared by her doctor. The procedure was scheduled with Christ Hospital for January 16, 2002. On January 15, 2002, our client went into labor, and was admitted to the Obstetric Department of Christ Hospital expecting to proceed with the plan of a C-Section. Contrary to the existing order and the repeated request of our client, the attending physician ordered a vaginal delivery. Additionally, her obstetrician was never contacted and she was assigned to two inexperienced nurses. Complications with the delivery began to arise almost immediately. During labor there were almost two continuous hours

without adequate fetal monitor tracings, despite an order for continuous electronic fetal monitoring. Unrecorded tracings for the twins ranged from poor quality to non-existent. At 12:32 a.m., an AROM (Artificial Rupture of Membranes) procedure was performed. Several failed attempts to insert a fetal scalp electrode resulted in blood and moderate to severe variable decelerations. The attending OB-Gyn was finally called at 1:03 a.m. He arrived at 1:24 a.m. and observed severe bradycardia and other evidence of anoxia. One of the twins was born severely anemic and acidotic. Her diagnosis was Hypoxic Ischemic Encephalopathy. She also developed a seizure disorder in addition to other complications. The medical malpractice case arose from the negligent training and supervision of the defendant physicians and nurses, as well as from the improper care provided during the labor. The defendants deviated from the standard of care expected from reasonably well-qualified obstetricians and obstetrical nurses when they failed to perform a Cesarean Section at the time it was indicated and when it was medically necessary. Today, our client’s daughter is profoundly disabled. The disabilities she acquired as a result of her negligent care include seizures, blindness, deafness and an inability to walk, stand, sit, or speak. She requires constant care including developmental therapy, physical therapy, occupational therapy and speech therapy. She must have in-home nursing care, hourly assessments, daily bathing, and regular doctor visits to multiple specialists. RESULTS

In October of 2007, after only three weeks of trial, Cook County Judge

Thomas Hogan approved a settlement of $6,250,000 for the benefit of our client.

Multi-Million-Dollar Confidential Settlement Earned for Victim of American Airlines Commuter Plane Crash CASE FACTS

Nolan Law Group recently obtained a confidential multi-million-dollar settlement for the family of a Michigan doctor killed in the October 19, 2004, crash of AmericanConnection Flight 5966. The wrongful death case was the last to settle of four cases handled by Nolan Law Group arising from this crash. The previously settled cases included claims on behalf of the families of an Ohio doctor and her assistant killed in the crash, and an injury claim for a Utah doctor who survived the crash. AmericanConnection Flight 5966 was a twin-engine turboprop operated by Corporate Airlines under a licensing agreement with American Airlines. The flight, which originated in St. Louis with a twoman crew, was carrying thirteen passengers comprised primarily of doctors en route to a medical conference at Kirksville College of Osteopathic Medicine. The flight struck trees on final approach and crashed in the woods near continued on page 12


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employee profiles employee profiles

settlement survey, continued from page 11

Kirksville Regional Airport, fatally injuring 11 of the 13 passengers. At the time of the crash, the crew was attempting a non-precision approach into the Kirksville Regional Airport. According to the NTSB accident report, the plane crashed without any indication of a problem. The wrongful death lawsuit, filed in United States District Court for the Eastern District of Missouri, sought compensatory and punitive damages and named both American Airlines and its regional partner, Corporate Airlines, Inc., as defendants. The suit focused on issues of pilot fatigue, improper training, and the lack of an updated terrain avoidance warning system (TAWS) on the aircraft. RESULTS

A confidential multi-million-dollar settlement was reached shortly before a jury trial was scheduled to begin in St. Louis before U.S. District Court Judge Jean C. Hamilton. For more information about the four cases in “Settlement Survey,” contact Thomas J. Ellis at (312) 630-4000 or [email protected].

Borth and Routh Join Nolan Law Group as Partners These two top trial lawyers are a welcome addition to Nolan Law Group. Their presence marks a milestone in the firm’s history and further enhances our highly-respected trial team. Since joining the firm, they have been instrumental in settling several cases with a collective value in excess of $14 million dollars. They have already proven themselves to be of great value to the firm and to the clients they serve. We are delighted that Paul and Tom have chosen to practice law with us. Paul R. Borth Paul Borth has been affiliated with Nolan Law Group in various capacities since 1989. Paul brings a tremendous amount of skill, along with tactical and strategic litigation experience. Paul has practiced exclusively in the areas of medical malpractice, product liability, aircraft disaster, wrongful death and personal catastrophic injury. During his career, Paul has tried numerous cases which resulted in multi-million-dollar verdicts and has negotiated countless settlements over one million dollars. Paul has a competitive nature and thrives on complex and difficult litigation. He also believes in a healthy balance between professional and personal life. When not practicing law, he can be found coaching youth hockey and baseball and playing hockey in local adult hockey leagues.

Thomas P. Routh Tom Routh began his relationship with Nolan Law Group in 1991 while working his way through law school. Throughout his career, Tom has practiced in the areas of personal injury and wrongful death litigation. Tom specializes in litigating cases involving aviation disasters and matters involving catastrophic injuries resulting from product liability, construction, transportation and medical negligence. Tom is actively involved with the Brain Injury Association of Illinois and the Brain Injury Association of America. He has successfully represented numerous brain injury survivors and obtained multi-million-dollar verdicts and settlements in cases involving mild, moderate and severe closed-head injuries.

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know your rights

INJURED? CALL YOUR ATTORNEY ASAP By Mike Sullivan

A mistake which injured workers often make is not retaining attorney representation immediately following an accident. Injured workers frequently allow the employer and/or the workers’ compensation insurance adjuster to dictate medical treatment and whether or not he or she should continue working.

Nolan Law Group has been representing

having problems obtaining benefits.

injured employees and their families

Another important reason to retain

Clients who retain our services immedi-

for more than 30 years. The firm has

counsel as soon as possible after an

ately after an injury increase the likeli-

worked with numerous doctors and

injury is that the cause of the injury

hood of solidifying liability against a

medical professionals who have treated

may have been due to the negligence

third-party as well as receiving the full

a wide variety of work-related injuries.

of a third-party other than the employ-

measure of benefits from the employer.

Our primary concern is that injured

er. The injured worker may be entitled

workers receive the best medical treat-

to receive payment for his/her injuries

Nolan Law Group has experienced at-

ment available.

from this third party.

torneys and dedicated support staff available to meet the needs of indi-

If an individual is unable to work due

Retaining counsel shortly after an injury

viduals injured on the job. Consulta-

to an injury, we work directly with the

also allows an attorney to have inves-

tions are free-of-charge and we want

employer’s workers’ compensation

tigators speak with witnesses, obtain

to hear your story. We will ensure that

insurance company to ensure that the

photographs of the scene, and make

each case is guided through the legal

individual receives his/her weekly TTD

initial court filings which ensure the

process as smoothly as possible and

benefits and all other benefits to which

preservation of evidence.

that all options and benefits are fully

the individual is entitled under the

explored.

Illinois Workers’ Compensation Act. We

We have seen cases suffer when an

make sure that the employer and its

injured worker waited for months to re-

insurance carrier fulfill their obligations

tain an attorney or until he or she was

under the law.


13

news

in the news

Nolan Law Group Secures Emergency Protective Order: Evidence Preserved in Boeing 747 Cargo Crash Suit On September 3, 2008, Nolan Law Group filed a lawsuit against The Boeing Company on behalf of a client who suffered severe injuries as a result of a cargo plane crash near Bogota, Columbia. The Boeing 747, which was bound for Miami, experienced multiple engine failures and crashed into a house injuring all eight crew members and killing two of the home’s residents. Nolan Law Group currently represents two of the eight injured crew members. The complaint, which was filed in the Circuit Court of Cook County, asserts

that The Boeing Company breached its duty of care to the plaintiff, citing multiple instances of negligence in the complaint. Also in the complaint is a petition for discovery, directed to Kalitta Air, the crew’s employer who is in possession or control of evidence crucial to the ongoing litigation. Kalitta Air’s involvement in another engine failure incident on August 28th involving a Boeing 747 led Nolan Law Group to believe that Kalitta Air may also have information essential to the determination of who should be named as

additional defendants in the action. Since the initial complaint, Nolan Law Group has also filed a motion to preserve evidence related to both the July 7th crash and the August 28th incident. On September 8, 2008, Judge Thomas Quinn granted the petition and signed a protective order compelling Kalitta Air to preserve all evidence pertaining to both mishaps, including documents, wreckage and engines.

Nolan Law Group Succeeds: Motion to Dismiss Denied on TANS Peru Commuter Plane Crash Cases Nolan Law Group achieved a significant victory on Friday, September 5, 2008, when Judge William D. Maddux denied defendants’, The Boeing Company and United Technologies Corporation, motion to dismiss on the basis of Forum NonConveniens. Nolan Law Group currently represents several clients who have filed wrongful death and survival actions against Boeing and United Technologies Corporation stemming from an August 23, 2005 crash in which a Boeing 737-200 operated by Transportes Aereos Nacional de Selva (TANS) crashed in the jungle about 5.5 km south of Pucallpa Airport. The aircraft was carrying 98 passengers - 40 were killed and many were seriously injured. The lawsuits were filed in the Circuit Court of Cook County, Illinois, each citing numerous counts of negligence and products liability against Boeing and United Technologies, who does business as 14


Pratt & Whitney Aircraft Engines. Defendants’ main arguments for dismissing the cases were that the crash occurred in Peru and the majority of the passengers were Peruvian citizens and, therefore the cases should be heard in Peruvian courts. They also argued that Illinois courts could not compel the production of Peruvian witnesses, documents, or records. Nolan Law Group reminded the court that in product liability cases, the accident site is less important when determining a particular forum and that all documents relating to design and manufacture of the aircraft and engines would undoubtedly be in the U.S. since Boeing and United Technologies Corporation are both United States corporations. After carefully considering written and oral arguments by both plaintiffs and defendants, Judge Maddux ultimately determined that the balance of private and public interests did not favor

Nolan Law Group reminded the court that in product liability cases, the accident site is less important when determining a particular forum and that all documents relating to design and manufacture of the aircraft and engines would undoubtedly be in the U.S. dismissal and the cases would stay in Cook County, Illinois.

Nolan Law Group Files Suit Against Chicago Pharmaceutical Giant The blood thinner Heparin continues to make headlines as more people are found to have suffered serious injuries and/or death after using the contaminated drug. Groups affected include residents of Kentucky, Iowa and Virginia. The most recent lawsuit names Scientific Protein Laboratories L.L.C., the company which manufactures the active pharmaceutical ingredient API in Heparin, as well as certain corporate officers of Baxter International and its wholly-owned subsidiary, Baxter Healthcare Corporation, citing four causes of action against Baxter and Scientific Protein Labs including Products Liability, Negligence, Breach of Warranties and Willful and Wanton Misconduct. Baxter’s Heparin has been implicated in more than 400 life-threatening incidents and may be responsible for as many as 81 deaths. On April 1, 2008, Nolan Law Group filed a lawsuit on behalf of a Davenport, Iowa resident, Mark Scott, who suffered the tragic loss of his wife, Melissa Scott. The complaint alleges that the untimely death was caused by exposure to Heparin Sodium Injection Therapy. The complaint cites two counts of product liability and negligence on the part of Baxter International. The husband has been appointed special administrator of his wife’s estate and, as such, is seeking personal and pecuniary damages from Baxter International Inc. for the loss of his wife in a sum in excess of the minimal jurisdictional limits of the Cook County Circuit Court. Nolan Law Group has also filed lawsuits against the pharmaceutical giant on behalf of a Louisville, Kentucky resident, Artemus Banks, and in a separate suit on behalf of a Coeburn,Virginia resident, Angela Lawson-Greear. The lawsuit asserts that Baxter International and its whollyowned subsidiary, Baxter Healthcare Corporation, manufactured the drug with a contaminated API and that Baxter failed to recall the defective drug in a timely fashion. The suit cites four causes of action against Baxter and Scientific Protein Labs including Products Liability, Negligence, Breach of Warranties and Willful and Wanton Misconduct. Thomas Lawson was receiving home dialysis for a medical condition and was prescribed Baxter Heparin as part of his Heparin Sodium Injection Therapy. Mr. Lawson used the product as prescribed and ultimately died as a result of his contaminated Heparin use. The Lawson-Greear complaint alleges that

Thomas Lawson’s untimely death was caused by his exposure to contaminated Heparin. The complaint cites multiple counts of Products Liability, Negligence, Breach of Warranties and Willful and Wanton Misconduct on the part of Baxter International and Baxter Healthcare Corporation. Like Lawson, Artemus Banks used the product as prescribed but began experiencing numerous physical symptoms, such as wheezing, shortness of breath, coughing, dizziness, increased perspiration and sudden weakness. Today, Banks continues to suffer as a result of his Heparin use and is seeking judgment against all defendants for compensatory and punitive damages arising from the personal injuries that he suffered. These lawsuits fall on the heels of recent findings by the Food and Drug Administration (FDA) identifying an unknown contaminant found in the Baxter Heparin. In early April of 2008, researchers confirmed the FDA’s suspicion that the contaminant found in the Heparin is Oversulfated Chondroitin Sulfate (OSCS), a derivative of a popular supplement used to relieve arthritis, and a chemical which does not occur naturally during Heparin production. Raw Heparin is derived from pig intestines and is often processed by small, unregistered “mom-and-pop” workshops in China. The key to establishing causation in these cases, despite all of the issues with unsanitary conditions, etc., will be Baxter’s failure to perform a chemical test on the Heparin which would have been sensitive enough to identify the difference between Heparin and OSCS. The House Oversight and Investigations Subcommittee held a hearing on April 15th of this year regarding the distribution of contaminated Heparin. China’s Ministry of Commerce is now requiring local Heparin makers to increase testing of raw materials, improve post-sale tracking and ensure that their raw material comes from registered suppliers. This requirement follows U.S. Congressional inquiries into the FDA’s overseas inspection process. These cases were remanded back to State Court. Nolan Law Group has filed 23 wrongful death claims and eight personal injury claims against Baxter to date, with more expected to be filed soon.


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legislative update

in the news

How Results of Upcoming Presidential Election Will Impact Tort Reform

Nolan Law Group Obtains Agreement for Illinois State Court Jurisdiction in Death and Injury Lawsuits Stemming from Contaminated Heparin

Tort reform is a movement to limit the damages awarded in tort litigation and to limit the magnitude of tort litigation as a whole. Major areas of contention include proposed limits on punitive damages, economic damages such as lost wages and medical expenses, and non-economic damages such as pain and suffering, loss of companionship and consortium, and eliminating pre-judgment interest awards. A prominent area of debate in the upcoming presidential election is the award of high compensation in medical malpractice cases. Advocates of reform argue that large damages result in a flood of litigation, the costs of which are passed through to health care consumers by way of increased insurance premiums and unnecessary testing performed to limit the chances of liability. Opponents argue that sizeable damage awards encourage safer medical practices and malpractice litigation uncovers information that can be used to support the creation of new laws or regulations. Most importantly, opponents assert that what some consider excessive damages are viewed by the recipient as only a small reparation for his/her actual loss. Republican candidate John McCain is straightforward in his tort reform plans. On his official website, he says that there are “endless, frivolous lawsuits” involving medical malpractice, and advocates to “pass medical liability reform that eliminates lawsuits directed at doctors who follow clinical guidelines and adhere to safety protocols.” Democratic candidate Barack Obama’s campaign focuses on universal healthcare more so than tort reform, but his stance on reform as a senator may be indicative of his behavior as president. As a senator, he co-sponsored the National Medical Error Disclosure and Compensation Act of 2005, under which a patient injured by medical error must negotiate compensation with the medical provider within six months. Swift compensation may tempt patients to accept far less than they need or are entitled to and the confidential nature of the negotiations may jeopardize the interests of future patients harmed by the same medical professional. However, one year later in 2006, Obama co-authored an article in the New England Journal of Medicine, entitled “Making Patient Safety the Centerpiece of Medical Liability Reform” wherein he stressed that patient safety takes precedence over caps on damages or other hotly contested issues. He stated: “Capping malpractice payments may ameliorate rising premium rates, but it would do nothing to prevent unsafe practices or ensure the provision of fair compensation to patients.” Over the next week, as Election Day draws near, tort reform and its relationship to health care reform will undoubtedly be an important issue to watch.

16


The Circuit Court of Cook County in Chicago, Illinois will now be hearing the wrongful death and personal injury claims arising from exposure to the contaminated drug, Heparin, pursuant to a stipulation and order obtained by Nolan Law Group on behalf of its many clients. In March of 2008, Nolan Law Group filed the first wrongful death lawsuit in the Circuit Court of Cook County against Deerfield, Illinois-based pharmaceutical manufacturer, Baxter International Inc., on behalf of Mark Scott of Davenport, Iowa. Another suit was filed in May 2008 for a similar complaint arising from the death of Virginia resident, Thomas Lawson. Both lawsuits were removed by Baxter to the U.S. District Court on its claim that the lawsuits raised questions of federal law. For a time it seemed that the Greear and Scott cases would be heard in federal court. However, Nolan Law Group, through its attorneys Donald J. Nolan and Paul R. Borth, were able to obtain an agreement from Baxter to send the cases back to state court before a ruling on the motions by the federal judge who is handling the Heparin Multi-district Litigation in Toledo, Ohio. In February 2008, Baxter International Inc. initiated a voluntary recall of its Heparin Sodium Injection products after receiving several reports of adverse reactions in patients. Initial investigations by the

firm talk FDA revealed several issues with Baxter’s testing procedures and supply chain. The FDA’s preliminary report concluded that Baxter’s Heparin had been contaminated with Oversulfated Chondroitin Sulfate (OSCS). Since the recall, about 35 lawsuits have been filed by attorneys around the country in various state and federal courts. It is estimated that hundreds more Heparin lawsuits will make their way into the judicial system by the end of this year. In an attempt to bring all of the Baxter Heparin lawsuits together into a single jurisdiction, the federal Judicial Panel on Multi-district Litigation ordered all product liability lawsuits nationwide dealing with a contaminated blood thinner to be consolidated and transferred to U.S. Northern District Court in Toledo, Ohio. Nolan Law Group attorney Paul R. Borth, working closely with Baxter International’s defense team, negotiated the conditions and details of a stipulation allowing Nolan Law Group to bring the lawsuits back to Cook County for pre-trial discovery and trial. Baxter International Inc. also agreed not to seek removal to federal court of any future Heparin product liability actions filed by Nolan Law Group in Cook County Circuit Court. The move allows Nolan Law Group to proceed with its cases in the court of their choice while providing for efficient co-ordination of proceedings with the Federal Multi-district Litigation.

New Arrivals We’re tickled pink and glad to say congratulations to Agata Kawula and her husband Marcin who welcomed a beautiful baby girl, Maya Claudia Kawula on March 21, 2008 at 6:22 p.m., weighing 7 lbs 3 oz. A wiggly, giggly bundle of fun, Jeanne Warp has a new grandson! Nolan Law Group travel coordinator, Jeanne Warp welcomed grandson Bjorn Christian Warp born on July 15, 2008 at 10:13 a.m. weighing 8 lbs 0 oz. He joins proud sister Emily. Nolan Law Group welcomed summer interns Jim Murphy, Katelyn Nolan, Danny Nolan, and Jack Villeau (not pictured). Thank you all for your help this summer. Fashion Show Nolan Law Group was a proud sponsor of the Brain Injury Association of Illinois 2008 Fashion Show, “The Times of Your Life” hosted by NBC-5 meteorologist, Ginger Zee. Pictured on the runway are NLG nurse consultant, Valerie Romo, with her daughter, Isabella.


17

firm talk Boxing Champ Nolan Law Group client Patricio Pinol and his brother, Philippines Governor Pinol, attended a rally for Filipino WBC Lightweight Boxing Champion, Manny Pacquiao. The rally, held at Federal Plaza in Chicago, was scheduled before Pacquiao’s fight against David Diaz on June 28, 2008, at Mandalay Bay Resort and Casino in Las Vegas. Pacquiao is the first Filipino and Asian boxer to win four world titles in different weight divisions. He is the former world champion in the IBF Super Bantamweight and WBC Flyweight division, and currently holds the WBC Lightweight and Super Featherweight titles. From left to right - Corrine Brayman, Valerie Romo, Manny Pacquiao, Governor Pinol and his family, Welson Chu and Patricio Pinol.

Jennifer Parker, Valerie Romo, Cesar Romo and Stan Res.

Don Nolan and his group prepare to tee-off at the Brain Injury Association of Illinois annual golf outing. 18


Barnett Speaks at Annual EAA AirVenture Convention and Fly-In This Summer, Nolan Law Group associate and Commercial Airline pilot, Charles R. Barnett, spoke at the annual EAA AirVenture Convention and Fly-In, hosted at Wittman Regional Airport in Oshkosh, Wisconsin. The convention serves as a social gathering for aviation enthusiasts from all over the United States and features a daily aerobatics show, flea markets, vintage/homebuilt/ experimental aircraft displays, with more than 800 commercial exhibitors showing off the newest aviation technology. Chuck had the opportunity to address members of the EAA and gave

an informative presentation outlining elements and strategies for successful private aviation accident litigation. The air-show ran from July 27 through August 2, 2008, with approximately 200,000 attendees, making it the largest civilian air-show in the United States. Platinum Sponsor Nolan Law Group participated as the platinum sponsor of the Asian American Bar Association of the Greater Chicago Area’s 21st Annual Reception Installation at the Trump International Hotel and Tower on July 24, 2008.

Race Judicata Sprint for Justice Team Nolan Law Group participated in the 15th annual Race Judicata Sprint for Justice on August 14, 2008. The 5K Run/Walk benefits Chicago Volunteer Legal Services Foundation in its mission to ensure that the law works for everyone.

Brain Injury Association of Illinois’ Annual Golf Outing & Awards Dinner Nolan Law Group participated as the platinum sponsor of the Brain Injury Association of Illinois’ 14th Annual Golf Outing and Awards Dinner at Highland Park Country Club on June 19, 2008. Proceeds from this event support the programs and services provided by BIAIL, including the summer camp and prevention programs. Congratulations to Nolan Law Group attorney Jennifer Parker who won the “nearest to the pin” trophy.

Brain Injury Association of Illinois Summer Camp Pictured above are Nolan Law Group’s Ginny Lazzara and Philicia Deckard, Executive Director of the Brain Injury Association of Illinois, with Steve Love, one of the campers from BIAIL’s summer camp program. Each year BIAIL hosts “Wilderness Endeavor” for adults and “Camp FunZone” for children. Ginny has co-ordinated the camp program for BIAIL for the past 18 years. These camp programs are the only camps in Illinois specifically for persons with a brain injury. For more information on resources for brain injury and the camp programs, please contact Ginny at [email protected].

Nolan Law Group Hosts Brain Injury Association of America Meeting Nolan Law Group recently hosted the Brain Injury Association of America Board of Directors and Strategic Planning meeting at their office in Chicago. In addition to the Board of Directors, this meeting brought in leaders in the brain injury community from across the United States. Ginny Lazzara, NLG nurse consultant and national board member, serves as State Assembly Chair for the Brain Injury Association of America. Pictured with Don Nolan from the left are Joe Richert, BIAA Board Chair, and Susan Conners, President/CEO of BIAA.


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www.nolan-law.com ADVERTISING MATERIAL Nolan Law Group has prepared this newsletter for its many clients, friends and colleagues around the world. The material we have included is not intended to be legal advice or a solicitation nor should it be considered an offer to represent in any legal matter. Readers should always seek legal advice from competent attorneys. In accordance with professional, ethical rules, the contents of this newsletter must be considered advertising or promotional materials. Please note that settlement and verdict amounts will vary depending on the facts of the case and so Nolan Law Group makes no representation or promise that it can obtain the same results as reported in this newsletter. Nolan Law Group is licensed to practice law in Illinois and we do not intend to represent anyone in a state where this newsletter may be found not to comply with the professional ethical rules of that state. In preparing this newsletter, we have made a good faith effort to comply with all laws and ethical rules of every sate to which it may be sent. In the event that this material has been sent to you in error or you do not wish to receive this newsletter in the future, please contact us.