Date: Mon, 23 Oct 2000 06:02:22 -0400
Reply-To: puzerewski <puzerewski@EMAIL.MSN.COM>
Sender: Vanagon Mailing List <vanagon@gerry.vanagon.com>
From: puzerewski <puzerewski@EMAIL.MSN.COM>
Organization: Microsoft Corporation
Subject: Re: Hydroflame suit- Totally erroneous information
Here is an idea......install a $10 carbon monoxide detector and feel
safe.................................
Adam Puzerewski
81 westy
74 beetle
86 cabrio
Vanagon Partsmobiles
----- Original Message -----
From: "Samuel L. Walters" <slwalters@EARTHLINK.NET>
To: <vanagon@GERRY.VANAGON.COM>
Sent: Monday, October 23, 2000 4:12 AM
Subject: Re: [VANAGON] Hydroflame suit- Totally erroneous information
> While it was a nice effort for Mr. Arnott to try to do some
> research on the Hydroflame lawsuit, the information that he
> posted on the list is almost totally erroneous and is certainly
> misleading.
>
> I am going to assume that Mr. Arnott is not a lawyer and that this
> is the reason that he failed to understand what he read and failed
> to read the earlier appellate opinion in this case, which is cited
> in the opinion that he hyperlinked for us.
>
> First, the fact that the Durden's sued to recover damages for "injuries"
> does not have any significance in making an evaluation of whether or not
> the lawsuit was frivilous. Injuries could cover anything from Mr.
> Arnott's
> conjectured "headache" to the Durden's child April being left in a coma
> by
> the carbon monoxide. We probably can assume that neither Ms. Durden or
> April, who are
> the two family members alleged to have suffered injuries, did not die
> from
> carbon monoxide, or there would have been a claim for wrongful death.
>
> It is too bad that too many commercials sponsored by big business, big
> insurance companies,
> and some right wing politicians who want their money, have been believed
> by so many
> average people who would (or are) get screwed if tort reform legislation
> is adopted on
> a widespread basis. To read what was in these two opinions and jump to
> a conclusion
> that this was friviouls litigation is totally unfounded. Upon
> examination, many of the
> stories about "frivilous cases" that are told in these tort reform
> campaigns turn out to
> be extreme exaggerations. This is not to say that there are not some
> friviouls cases filed
> by lawyers. I have had people come to me looking for a lawyer to file
> specious cases
> and have turned them down.
>
> On the other hand there are plenty of times that the defendant company
> who has been sued
> in a products liability case hides information from the plaintiff(and
> the public) and makes
> incredibly frivilous statements and claims in the defense of a valid
> lawsuit against them.
> Remember all of the incriminating information that the tobacco and
> asbestos industries kept
> hidden from the public for years, and fought for years in court to keep
> hidden, all the while
> claiming that they knew nothing about any dangers posed by their
> products. And what about
> Ford and Firestone/Bridgestone? Read on, it appears to be part of this
> case also.
>
> Back to the Durden's and the lawsuit against Hydro-flame and Chief
> Industries.
>
> 1) Hydro-flame settled with the Durden's before trial so there never
> was a verdict for or
> against Hydro-flame. A settlement does not necessarily mean an
> admission
> of liability, but from the way this case was litigated, with all of the
> motions and appeals filed by
> the various parties, it does not appear that the Durden's lawyers would
> have settled for chump change
> or nuisance value money. There likely was something to concern
> Hydro-flame that prompted the settlement
> for more than nuisance dollars, but we can't be sure. Hydro-flame
> almost certainly did not settle
> if this was a frivilous lawsuit. Doing that would only invite more
> lawsuits.
>
> 2) Chief Industries admitted liability on the Durden's claims against
> them. In other words, the did not
> have any defense which they could make that would disprove the Durden's
> claims that "the trailer was designed and manufactured in a defective
> and unreasonably dangerous condition because it incorporated a defective
> heating system, failed to have carbon monoxide detection devices, and
> failed to include adequate and complete warnings," and "that Chief
> Industries failed to 'properly inspect and test' the furnace."
>
> 3) Chief Industries limited its defense to trying to prove that these
> admitted failures were not the source of the
> injuries alleged to have been suffered by the Ms. Durden and her
> daughter April. At the first trial they were able
> to convince the jury that there was no connection, and the jury awarded
> no damages to the Durden's despite the admission
> of liability by Chief.
>
> 4) The Trial Court judge overturned the jury's verdict, instead
> granting one for the Durden's by finding that "as a
> matter of law" there was not enough evidence to support a ruling in
> favor of Chief. The trial court also granted the Durden's motion for
> sanctions against Chief's attorney for misconduct at trial and order
> Chief to pay the Durden's attorney's fees, costs, and expenses for the
> first trial and the motions to obtain a new trial. This type of ruling
> is rare and is less likely to be granted against a business entity.
> Clearly, it was not the Durdens or their lawyer who were engaging in
> inappropriate or frivilous conduct.
>
> 5) Chief appealed - but only the trial court's directed verdict against
> them. Chief did not appeal, and therefore waived any right to challenge
> the award of fees against them for the misconduct of their counsel. The
> first appellate court did reverse the directed verdict granted to the
> Durden's by the trial court, but this only means that the appellate
> court thought that there was at least some evidence, when taken in the
> light most favorable to Chief, that warranted letting a different jury
> hear all of the evidence at a new trial, which hopefully would not be
> tainted by the misconduct of Chief's attorney, and make a decision on
> the issue of whether the admittedly negligent actions by Cheif "caused"
> the injuries suffered by Ms. Durden and April, and if so, what were the
> amount of the damages.
>
> In short, the manufacturer did not want to go to trial and settled. The
> rulings in this case tell us nothing definitive about the safety of this
> product, but if the company settled, and Chief was willing to bet all of
> its marbles on a claim that it could prove that all of the damages that
> the Durden's suffered came from Hydor-flames defective product and not
> its admitted negligence, I would think carefully about the use of the
> product.
>
> Remember, carbon monoxide kills - usually no warning, just sleep and
> death. Especially if you are in a camper at night
> sleeping anyway, what is going to wake you up?
>
>
> Sam Walters
> 84 Vanagon 161k
> Original owner
>
> Attorney
> 20+ years, owned the van most of those
> Admitted to practice in:
> three jurisdictions, MS, DC, and MD
> Over ten US Federal District courts around the U.S.
> Four U.S. Circuit Courts of Appeals
> U.S. Supreme Court
>
> Most of legal career spent representing indigent persons, civil rights
> claimants, etc.
> That is why my daily ride is in a aging '84 Vanagon, which the list
> should help me
> to keep running for several more years.
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