Hutton & Hutton Wins $437,293 Jury Verdict Plus Punitive Damages
A Sedgwick County jury awarded $437,293 in compensatory damages plus punitive damages to a Wichita man who was admitted to Wesley Rehabilitation Hospital, a HealthSouth affiliate, on September 12, 2006 following a total left hip replacement. To promote recovery, plaintiff's physician ordered that his surgical wound was to be cleaned daily with new dressings applied. On September 15, 2006, while changing the dressing, a Wesley Rehabilitation Hospital nurse dropped the dressing on the floor, picked it up and re-applied it to the surgical wound. Plaintiff developed a severe E. coli infection of the wound, as well as a pseudomonas infection, and underwent multiple surgeries.
The trial started on September 22, 2009, and the jury began deliberations on October 1, 2009. On October 2, 2009, the jury reached a verdict in favor of plaintiff and awarded $437,293 for compensatory damages plus punitive damages to be decided at a later hearing in Sedgwick County District Court. During trial, the defense alleged that plaintiff must have received the E. coli infection at the time of the hip replacement surgery. Prior to trial, Judge Timothy Henderson granted partial summary judgment on the hospital's affirmative defense that plaintiff and other non-party health care providers were at fault. Plaintiff's motion for punitive damages was originally denied, but renewed at trial. Judge Henderson allowed punitive damages to go to the jury and the jury agreed that Wesley Rehabilitation Hospital's pattern of neglect rose to the level of wanton conduct, which caused or contributed to plaintiff's injuries.
The case was tried by Hutton & Hutton attorneys Mark Hutton and Darin Hayes. With her vast nursing experience, attorney Anne Hull assisted Mark and Darin behind the scenes.
Atrazine Litigation
What is Atrazine?
Atrazine is a widely-used agricultural herbicide for control of broadleaf and grassy weeds, used predominantly for weed control in corn and soybean crops. Atrazine is one of the most commonly used herbicides in the United States , with approximately 75 million pounds applied per year.
Its widespread agricultural use allows atrazine to invade the environment repeatedly. When it is applied, some atrazine is absorbed by plants, but some runs off into surface water such as lakes, streams, and rivers. A small amount even migrates into groundwater where it may stay for a long time, because atrazine breaks down very slowly. Once it reaches water, it can contaminate wells that supply water used for drinking and bathing.
Why is Atrazine a Problem?
Across the United States , 1,200 public drinking water systems are currently contaminated with atrazine, and that number is expected to grow as the product's use continues unchecked.
Only a tiny amount of atrazine in a water supply can cause a problem, and it's expensive and difficult to clean up.
Removal of atrazine from water requires expensive filtration, usually through granular activated charcoal (GAC) systems. Many public water providers are not equipped with GAC filtration, and many cannot afford to install these systems on affected drinking water wells.
Atrazine is not only expensive to remove from water supplies; it may be associated with human health risks. Some studies have linked it with reproductive system defects in animals. And atrazine exposure may endanger human health as well.
The History of Atrazine Litigation
Scott Summy of Baron & Budd, P.C. is co-lead counsel in the first case of its kind in the United States , brought by a public water supplier in Illinois who filed suit in state court against the six major chemical manufacturers that produce atrazine. The manufacturers first tried to remove the case from state court to federal court. The manufacturers then asked the court to dismiss the case altogether, arguing that the District did not have a valid claim against them.
In an opinion released in July 2008, the court refused the chemical companies' request and will allow the water provider's case to proceed. The judge stated that the water provider alleged sufficient facts to show that
the manufacturers' actions knew that atrazine would intrude into the water provider's property;
the manufacturers' “intentional and/or negligent actions caused a continuous, substantial and unreasonable invasion of the use and enjoyment of [the water provider's] property”;
the water provider's injury “was caused by the reasonably probable and foreseeable consequence of” the manufacturers' breach of their duty not to contaminate the environment; and
“the atrazine products were used in the manner in which they were intended and foreseeably certain to be used, but that the products were unreasonably dangerous when they were used as intended by Defendants.”
Why Are Atrazine Manufacturers Responsible?
The companies that make and sell atrazine knew that it would contaminate groundwater, surface water such as lakes, rivers, and streams, and, more important, the nation's drinking water. They chose to sell the product anyway, without consideration for the environment or human health. These companies created the mess, and they should pay to clean it up.
What About the Stores that Sell Atrazine Products?
Under the law of products liability, when a product is defective, everyone in the “chain of distribution” from the manufacturer to the final retailer can be held responsible for that product. That means we could sue every store that sells atrazine or atrazine-containing products.
But it is our position that the owners and operators of these stores did not have the same knowledge about atrazine that the manufacturers did. They didn't control what the chemical companies put into weed killers and herbicides. They just sold the products that filled their shelves.
We believe it is the manufacturers who are responsible and must be held liable for the damage they have caused. These chemical companies decided to use atrazine in their products even though they knew the risks to the environment. These companies marketed and sold atrazine without so much as a warning about the probability that drinking water would be contaminated. These companies continue to claim that it is “safe” although its use has been banned in many European countries. Worse still, they are still selling atrazine, even after it has appeared in the drinking water of dozens of communities across the United States.
Hutton & Hutton welcome hearing from you if you would like to discuss Atrazine pollution affecting your water district. We would be glad to meet with you personally and present the facts to those who make decisions on these types of matters. Email us or call and ask for any of us: Mark, Andy, or Debs.
$12.25 Million Settlement
Shoddy installation of natural gas lines at pork plant alleged
A massive natural gas explosion that ripped through a pork-processing plant in St. Joseph , Mo. , killing one person and injuring 14, has led to settlements totaling $12.25 million.
On Oct. 12, 2005, construction on the plant, being built for Triumph Foods and designed to process 1,000 live hogs per hour, was nearing completion. The project’s general contractor was Chicago-based A. Epstein and Sons International Inc. IHP Industrial Inc. of St. Joseph installed the plumbing for the natural gas service to the plant. Southern Union Co., doing business as Missouri Gas Energy, delivered the natural gas to the plant.
A natural gas pipe, natural gas valve and three natural gas drop lines branching off the main pipe had already been installed in the cafeteria and kitchen. That morning marked the first time natural gas was pumped through the system.
At about 2:42 p.m., a plumber installing pipes in the kitchen hallway lit a welding torch and triggered a natural gas explosion. The blast caused the east wall of the cafeteria to collapse on top of James “Bradley” Smith.
Hutton & Hutton represented Brad Smith and his wife, Catherine, and filed a personal injury claim on Jan. 13, 2006, in Buchanan County Circuit Court against Triumph Foods, MGE, A. Epstein and Sons International and IHP Industrial.
Smith claimed that several negligent acts, including violations of the Natural Gas Fuel Code, led to the explosion and his injuries.
It was alleged that IHP Industrial failed to cap the kitchen gas valve, failed to pressure-test the piping with air or inert gas before introducing the natural gas, failed to conduct an inspection for uncapped or nippled valves, failed to conduct a leak test after the gas was turned on, and failed to alert anyone about a lack of odorant in the natural gas despite knowing of this problem.
It was alleged that MGE was negligent because its representatives knew or could reasonably foresee that odor fade would occur after the introduction of odorized natural gas into new piping and failed to monitor the odor or take additional steps to odorize the gas or warn others of the problem. MGE failed to inspect the gas-piping outlets, failed to conduct a leak test of the piping system and failed to conduct odor testing.
Triumph Foods and A. Epstein and Sons, as the owner and general contractor, were ultimately responsible for site safety, the suits alleged. Despite their duty to ensure site safety, quality and safety procedures were not adequately addressed. Periodic safety audits and weekly site-safety walks during the project were nonexistent, Smith claimed.
Brad and Catherine Smith settled their personal injury claims against the defendants for $3 million.
Hutton & Hutton Seek Reimbursements For Kansans From Makers Of Vytorin ®
On January 14, 2008, the pharmaceutical giants of Merck & Co. and Schering-Plough Corp., which together manufacture, market and sell Vytorin ® , finally released the results of a study regarding how well Vytorin ® works to lower total cholesterol and reduce clogged arteries. The ENHANCE study, completed in April 2006, established that the very-expensive name-brand Vytorin ® worked no better at lowering total cholesterol than high-doses of its lower-priced generic ingredient, simvastatin, and actually accelerated placque build-up in the arteries, a major risk factor for heart disease and stroke.
Vytorin ® is a combination of Zocor ® (simvastatin) and Zetia ® (ezetimibe). Merck got FDA approval for Zocor ® in 1991. Schering-Plough got FDA approval for Zetia ® in 2002. In 2002 Merck and Schering-Plough, together, initiated the ENHANCE study to determine how Vytorin ® reduced cholesterol and plaque. In 2004, however, Merck/Schering-Plough got FDA approval for Vytorin ® , two years before the ENHANCE study ended in April 2006 with the negative results on Vytorin ® ’s effectiveness. Two months later, in June 2006, Merck’s patent on Zocor ® was set to expire, opening the door for sales of the generic simvastatin and threatening to undermine significantly Merck’s Zocor ® sales that reached $4.4 Billion in 2005.
Financially motivated, Merck/Schering-Plough withheld the ENHANCE study’s negative results. From April 2006 until today, Merck/Schering-Plough flooded TV, magazines and newspapers with ads for Vytorin ® to fight the two sources of cholesterol, “food and family.” As a result, Vytorin ® sales, at roughly $3/pill, exceed $5 Billion. The generic version of Zocor ® , simvastatin, sells for roughly $1/pill and is safer and just as effective. In December 2007 and January 2008, Congress pressured the pharmaceutical giants to release the results from the ENHANCE study and explain their behavior.
On January 23, 2008, Hutton & Hutton filed a consumer protection case for all Kansas residents who purchase or have purchased Vytorin for their personal use. The case seeks to recover the damages resulting from Merck/Schering-Plough’s efforts to preserve their unconscionable profits at the expense of Kansans who suffer high cholesterol and clogged arteries, major factors for heart disease and/or stroke.
Hutton & Hutton Wins $982,143 Jury Verdict
A Sedgwick County jury awarded $982,143 to the family of James “Jeff” Duncan, a 38 year old Wichita man who on February 28, 2004, went to the West Wichita Family Physicians, P.A.’s minor emergency office (“WWMEO”) complaining of significant shortness of breath on exertion. No offer of settlement was ever made by the defendant physician, who was a family practice resident.
Jeff reported to the physician that recently he was unable to walk across the room without being out of breath. Jeff had an x-ray, and the defendant physician diagnosed pneumonia and sent Jeff home with a prescription of antibiotics. The next morning Jeff collapsed at home and could not be resuscitated. The autopsy confirmed that Jeff died from a blood clot in the lung called a pulmonary embolus.
The Duncan family contended that Jeff Duncan should have been referred or transferred to a full service emergency room from the minor emergency office so that he could have been fully worked up. Plaintiffs contended that Jeff’s presentation of symptoms required consideration of a possible diagnosis of pulmonary embolus and that a reasonable and prudent physician was obligated to be suspicious enough of Jeff’s shortness of breath complaints to transfer him to a full service emergency department.
Defendant, on the other hand, contended that the patient had pneumonia and any consideration of the diagnosis of pulmonary embolism was not warranted.
The trial started on November 13, 2007, and the jury began deliberations on November 29, 2007, and reached a verdict in favor of the Duncan family on December 4, 2007. The jury awarded $982, 143.00 for past and future loss of income.
The case was tried by Mark Hutton and Darin Hayes of Hutton and Hutton, L.L.C. representing the Duncan family.
Mark and Andy Hutton Selected as 2007 Super Lawyers
For the third year in a row, Mark Hutton has been selected as one of the Top 100 Super Lawyers for Kansas and Missouri. His brother and partner, Andy Hutton, has also been selected as one of Kansas' and Missouri's 2007 Super Lawyers. Super Lawyers are selected by their peers and each year lawyers are asked to nominate the best attorneys they have personally observed in action. Just five percent of the lawyers in Kansas and Missouri are named Super Lawyers. The staff at Hutton & Hutton continues to be proud of their Super Lawyers -- Mark and Andy Hutton. Mark and Andy Hutton have also been named as Best Lawyers in America for the year 2007.
Mark and Andy Hutton Selected as 2007 Best Lawyers
For the 10th year in a row, Mark Hutton has been selected as a 2007 Best Lawyer of America. Andy Hutton has also been selected as a 2007 Best Lawyer of America. Best Lawyers compiles lists of outstanding attorneys by conducting exhaustive peer-review surveys in which thousands of leading lawyers confidentially evaluate their professional peers. The current edition of The Best Lawyers in America (2007), is based on more than two million detailed evaluations of lawyers by other lawyers. The lawyers and staff of Hutton & Hutton are proud of its Best Lawyers.
Hutton & Hutton Helps Victims of BTK Strangler
Hutton & Hutton is providing legal services to victims of the BTK Strangler by ensuring that convicted killer Dennis Rader does not profit from the sale of personal items he took from his victims. On Friday, August 26, 2005, District Judge Timothy Lahey ordered the Sedgwick County Sheriff’s Department to inventory the property seized from Rader at his arrest and then hold it for release to the victims’ families. To read more, click here.
Hutton & Hutton Lawyer Sings and Speaks Out
H&H lawyer, Debs McIlhenny, continues her speaking and singing schedule, including choral work in Verdi’s Requiem and in Andrew Lloyd Weber’s Requiem with the Wichita Symphony Orchestra Chorus, patriotic pieces at the March 2006 Naturalization Ceremonies, the National Anthem, both at several Veterans’ Day events and with other Wichita Bar members at the Bar Association’s Law Day celebration.
As an increasingly in-demand public speaker, in 2006 Debs has opined on the history and societal value of The National Anthem to the Wichita Retired Businessman’s and Professional’s Group, Clearwater (KS) Lyon’s Club, High Twelve International (Wichita, KS, Chapter), Alexander Garrett VFW Post 7253 (Derby, KS), Wit and Wisdom (Wichita, KS, Junior Service League sustainers), Clearwater (KS) High School, American Legion Post 95 (Peabody, KS), Pearl Harbor Survivors Association (Wichita, KS), and Pachyderm Club (Wichita, KS). She explained the “Stuff of Citizenship” to over 140 new citizens during the July 2006 Naturalization Ceremony in Wichita. Debs instructed the Retired Executives of Fiatt and Hesston Corporations (Newton, KS) and the Retired Military Officers Association (Valdosta, GA) on the nature and relevance of the National Guard in today’s Total Force military structure. For Law Day, she taught fifth-graders at Mueller Elementary (Wichita, KS) about the government, generally, and the Constitution, specifically. And on Memorial Day she delivered the keynote address on the meaning, manifestation, and price of "honor" in Derby, Kansas.
Hutton & Hutton Success in Representing Brain-Damaged Child
Gabriel Peters was just 2 years old when he and his father, Tim Peters, attended a "Monster Truck Rally" at the Kansas State Fairgrounds in Hutchinson, Kansas. Thousands of others attended this event which featured large trucks racing, crushing, and destroying other vehicles. The producers, Checkered Flag Productions and the Kansas State Fair, provided beer to the spectators who got "stirred up" watching the event. After the event, the producers sent the spectators on their way without any traffic control or security. Thousands of pedestrians and vehicles flooded the streets of Hutchinson around the fairgrounds. An unknown driver, who likely attended the event, peeled out of Parking Lot C onto Plum Street directly in front of another vehicle. The driver of the second vehicle, distracted by the near collision with the squealing truck, then struck Tim Peters who was carrying sleeping Gabriel in his arms. Gabriel was thrown from his father's arms and struck his head on the concrete curb. Gabriel, now 7 years old, has severe brain damage and is completely dependent on others for every aspect of his care.
H&H filed a lawsuit against the producers and the City of Hutchinson, Kansas for their failure to take any action to protect the "Monster Truck Rally" spectators after the event. (A copy of the lawsuit is available by clicking here.) The defendants moved to dismiss the case claiming that they owed no duty to their customers and that the Kansas Tort Claims Act provided immunity to them. Hutton & Hutton
opposed the motion showing the Reno County Court that the defendants did have a duty to provide reasonable care by providing minimal traffic control and security and that they were not immune from responsibility for these terrible injuries. (A copy of the response brief is available by clicking here.) The court adopted H&H's position and denied the motions for summary judgment. (The court's order is available by clicking here.)
The Court held: "As the possessors of land upon which a public activity was conducted by invitation, the Fair and the City owed a duty of care to the Plaintiffs. Due to the contract between the Fair and Checkered Flag There existed a joint venture. They each had a common purpose and an equal right of control. ... All of the defendants owed the Plaintiffs a duty of reasonable care under the circumstances." Court's Op. at 13-14.
Hutton & Hutton represents individuals and their children who have suffered terrible injuries due to other's wrongful acts. If you have any questions about this case or similar cases and situations, please do not hesitate to contact us.
$3.997 Million Dollar Verdict
A jury in Sedgwick County state court awarded $3.997 million dollars to the family of Mike McCulley, who died as a result of a 9 month delay in diagnosing his pancreatic cancer. The defendant, a local radiologist, never made an offer to settle the case. The jury’s verdict was unanimous.
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