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A bar that kept serving a drunk patron should be liable for the death of a ten-year-old girl caused when the inebriated patron left the bar and took the wheel of his car and crashed into the dead girl’s family car, CCL lawyer John Vail told Maryland’s highest court yesterday.  In so arguing, Vail asked the court to adopt dram shop liability, something that Maryland law does not currently provide.

The Dogfish Head Ale House served at least twenty drinks to Michael Eaton, cutting him off once but then re-opening his tab, before he left the bar and, three miles away, slammed into a car carrying Jazimen Warr and her family.  Jazimen was killed and the other family members were injured.  Eaton was traveling at least 88 miles per hour in a 55 mph zone and was later imprisoned for vehicular homicide.

Vail acknowledged that twice before, the last time in 1981, the court had refused to impose dram shop liability.  He told the court that developments in decisions in 1992, and again in 2009, had effectively had overruled the prior decisions. 

An active bench peppered Vail with questions regarding how broadly or narrowly liability might be imposed and about its effects on Maryland’s small businesses.  Vail noted that social science reliably could predict that imposing such liability would save 15 to 25 lives per year in Maryland.

The case is Warr v. JMGM, LLC.  A decision is expected by July.

Coverage by the Maryland Daily Record can be found here.

The Mississippi Supreme Court held an extended, one-hour-and-thirty-minute oral argument in two consolidated appeals, Texaco, Inc. & Chevron Corp. v. Rosalyn Simon, No. 2010-CA-01921. CCL’s Andre M. Mura and Robert S. Peck both argued on behalf of the Plaintiffs/Appellees.

 In this appeal, Texaco and Chevron are challenging a jury verdict in favor of young adults and a child injured when, during the terms of their pregnancies, they were exposed to leaded gas that leaked from underground storage tanks. The jury found that Texaco was the owner of the tanks and gas and was negligent for failing to inspect or maintain the tanks. It awarded compensatory damages to be paid by Texaco and Chevron, which merged with Texaco in the 1990s. The evidence at trial demonstrated that Texaco had purchased the tanks from Sinclair Oil in the late 1960s; this sale of personal property did not implicate the statute of frauds (which only applies to the sale of land) and thus was proven through tax receipts, custom and practice evidence, and oral testimony. Evidence at trial also demonstrated that 78 percent of such tanks fail after 10 or 20 years of service. The tanks at issue in this case had been in service for decades when Texaco purchased them; yet Texaco never inspected or maintained them. Lastly, plaintiffs established at trial that exposure to leaded gas was the cause of their injuries. On appeal, Texaco has denied ownership of the tanks, and has challenged the probity of Plaintiffs’ causation evidence. Chevron has argued that the judgment should apply only to Texaco, because it has no presence in Mississippi and thus is outside the jurisdiction of its courts, and because, as a matter of corporate law, it should not be held liable for Texaco’s negligence.

Maryland could save 15 to 25 lives a year by making bars responsible for serving drinks to visibly intoxicated persons, CCL told the Maryland Court of Appeals in a brief filed today, representing the plaintiffs.  Maryland now is one of just a few states that do not impose what is known as dram shop liability.   

The Dogfish Head Ale House in Gaithersburg, Maryland, served at least 21 drinks to an obviously intoxicated Michael Eaton.  Within 45 minutes of driving away from the bar, Eaton reached a speed of at least 88 miles per hour when he plowed into the rear of the Warr family’s car, killing ten-year old Jazimen and seriously injured three other members of her family.  Eaton pleaded guilty to vehicular manslaughter and is now in prison.

“This case is an effort to hold the bar that caused this tragedy responsible for its actions, “ said CCL lawyer John Vail, counsel for the plaintiffs.  Vail further explained that the Maryland Court of Appeals already has endorsed the principles that lead to dram shop liability, reversing two older cases without naming them.  “It simply needs to apply those principles to this case,” Vail noted.

Mothers Against Drunk Driving and the Maryland Association for Justice filed amicus briefs supporting the plaintiffs.  The plaintiffs also are represented by Andy Bederman and Jason Fernandez of Greenberg and Bederman in Silver Spring, MD.

The case, Warr v. JMGM Group, LLC, will be argued by Vail on March 12, 2013.

CCL prepared an Amicus Curiae brief for the American Association for Justice in the high-profile case, U.S. Airways, Inc. v. McCutchen, No. 11-2885, pending in the U.S. Supreme Court. The case focuses on the rights of an ERISA plan to reimbursement of benefits out of a personal injury award obtained by the beneficiary. The AAJ amicus brief argues that the ERISA plan should be required to pay its share of the attorney fees incurred by the beneficiary to achieve the award. CCL Attorney Jeffrey White authored brief, filed Oct. 25, 2012.

An ERISA plan seeking reimbursement out of a tort settlement continues its quest to enforce its lien against the beneficiary’s lawyers. The plan lost in the district court and before a unanimous panel of the Eighth Circuit. Treasurer, Trustees of Drury Industries, Inc. Health Care Plan and Trust v. Goding, 692 F.3d 888 (8th Cir. 2012). The plan has now petitioned for rehearing en banc. CCL’s Jeffrey White, representing the law firm, filed his response to the rehearing Petition Oct. 22.

With unusual speed, the U.S. Court of Appeals unanimously upheld a $48 million verdict in favor of an injured airport baggage handler October 16, in a case argued by CCL’s Robert S. Peck just two weeks earlier. Vito Saladino suffered severe injuries, sufficient to render him a quadriplegic, when the hood of the baggage tractor he was riding as a passenger at the end of his shift, was blown open by jetwash from a test start at a gate at JFK airport, breached the passenger compartment, and hit him on the head. The Second Circuit’s summary order in Saladino v. Stewart & Stevenson Services, Inc. affirmed the judgment in all respects, finding the evidence sufficient to support liability, rejecting the defendants’ argument that no liability should attach because the optional cab of the tractor had been removed, that expert testimony was necessary to establish the placement and wording of the missing warnings, that Saladino did not need a warning as an allegedly knowledgeable user, and that the District Court abused its discretion under New York law in upholding a $15 million award for past and future pain and suffering.

On October 1, CCL’s Robert Peck argued that the U.S. Court of Appeals for the Second Circuit should uphold the liability and damages awarded to Vito Saladino in a products liability action. Saladino, who worked for American Airlines in loading and unloading baggage at JFK airport in New York, was catastrophically injured and rendered a quadriplegic when the hood of the baggage tractor in which he was a passenger flipped up and hit him in the head. He sued the tractor’s manufacturer, which then sued American Airlines. A jury assigned 30 percent responsibility to the manufacturer and 70 percent responsibility to the airlines and awarded damages of $40 million. In the appeal, Saladino v. Stewart and Stevenson Services, Inc., the defendants raise questions about whether the jury inappropriately required a warning about the likelihood that the hood on this manufacturer’s vehicle, unlike that of 96 other tractors from other manufacturers used by American Airlines, had hinges that permitted the hood to breach the passenger compartment, whether substantial alterations to the vehicle absolved the manufacturer of responsibility, whether Mr. Saladino was a knowledgeable user who did not need to be warned about the hood, and whether the damages awarded were excessive. The case is under advisement.

ERISA does not allow a plan to impose an equitable lien on settlement funds that are not in a law firm's possession, the federal Eighth Circuit ruled today. The unanimous decision marks another win in ERISA litigation for CCL, which represented a plaintiff’s firm in litigation against an ERISA plan. The ERISA plan argued that the law firm was itself responsible for reimbursing the plan for medical expenses incurred by an ERISA beneficiary, which was a client of the law firm. But the court of appeals, like the district court before it, rejected that argument. The court of appeals also affirmed an award of attorneys’ fees in favor of the plaintiffs’ firm.

CCL’s Jeffrey White was lead appellate counsel for the law firm in this appeal, Trustees of Drury Indus., Inc v. Goding, No. 11-2885 (8th Cir. Sep. 7, 2012).

The U.S. Supreme Court turned aside a major push by tobacco companies to review the constitutionality of several million-dollar jury verdicts that will compensate the families of dead smokers. Bloomberg, Reuters, UPI, and Sunshine State News have coverage. These are the first of the so-called Engle cases tried and reviewed by the Florida courts. Bloomberg reports that “[a]bout 8,000 post-Engle cases claiming death and injury from smoking are pending against Reynolds, Altria Group Inc. (MO) and other U.S. cigarette makers in Florida state and federal courts.”

The cases are R.J. Reynolds Co. v. Gray, No. 11-272, R.J. Reynolds Co. v. Martin, No. 11-274; R.J. Reynolds Tobacco Co. v. Hall, No. 11-755; and R.J. Reynolds Tobacco Co. v. Campbell, No. 11-756.

Mr. Gregory G. Katsas of Jones Day represented the petitioners. CCL’s Robert S. Peck was counsel of record for the respondents in the Gray and Martin appeals. With him on the briefs was Valerie M. Nannery.

SCOTUSblog has selected a petition filed by CCL’s Andre M. Mura as its “petition of the day.” The case, Malaterre v. Amerind Risk Management Corp., No. 11-441, asks the U.S. Supreme Court to consider “whether a tribal business corporation formed pursuant to 25 U.S.C. § 477 with the aim of insuring Indian Housing Authorities may properly invoke tribal sovereign immunity as a ground for avoiding its contractual obligation to provide insurance coverage for liability claims arising from injuries sustained by tribal-member tenants in Indian housing units.”