Legal Trends May 2014

In this issue of Legal Trends, we review a recent workplace injury settlement and discuss two pending employment cases – one involving the FMLA and the other, the ADA.

Tort Law

Hollander Law Offices Settles Premises Liability Claim for $2,200,000.

In late November, 2013, attorneys Eugene Hollander and Paul Ryan settled a personal injury case for $2,200,000 for a man who suffered a spinal injury.

May 2, 2007 started out like any other work day for David Turkyilmaz, a delivery driver for Tax Airfreight. David, 41 at the time, made a delivery to Littelfuse, Inc. in Des Plaines. Upon exiting the warehouse, the company’s overhead roll-up door triggered prematurely and struck David on the head, knocking him to the ground.

David had no visible injuries at the time, but later experienced pain in his neck. The injury caused a disk herniation in his cervical spine. David initially underwent conservative treatment, but when that failed, he underwent an anterior cervical discectomy and spinal fusion on February 17, 2009.

In his lawsuit, David alleged that Littelfuse and two companies who maintained the door at different times, Reliable Door and Paul Reilly, were negligent in failing to maintain the fail- safe mechanisms. The door had photoelectric safety sensors in the door frame which were supposed to stop the door if a pedestrian broke the light beam. The door also employed a reversing edge, which should have caused the door to bounce back up if it made contact with someone. A separate microwave sensor was supposed to trigger the door to automatically open if someone was in the field.

During the course of the litigation, Littelfuse’s own expert, a mechanical engineer, opined that David’s accident was the result of the “perfect storm” of the failure of the door’s three safety systems. The evidence in the case, however, was that David was not alone in suffering a serious injury.

In December, 2005, a UPS driver named Bruce Keller was making a delivery at Littelfuse and was struck by the same overhead door. Another delivery driver named David Montano was similarly struck in September, 2006, and also filed a lawsuit against the company. Irwin Avant, the former Group Leader for the Receiving Department, testified in a deposition that the door struck 10 to 15 Littelfuse associates.

Steven Rustmeyer was Littelfuse’s Building Electrician for many years. Rustmeyer called Reliable Door and they recommended replacing the door.

In 2005 or 2006, Littelfuse purchased a new overhead door. The company, however, never installed it. Rather, Littelfuse kept the door in the Receiving Department for eighteen months. In September, 2006, following the Montano incident, the company’s Maintenance Manager sent an e-mail to his supervisor suggesting that various other safety measures be employed to avoid another accident. The company never implemented any of these solutions, which could have avoided David’s accident. Based upon these facts, the Court permitted David to seek a claim for punitive damages against Littelfuse at trial.

David made several attempts to go back to work, but found that it was too painful. In January, 2011, his treating orthopedic surgeon, Dr. Michael Zindrick, concluded that David was permanently and totally disabled from working. The defense contended that an approximate nine month gap in medical treatment showed that the accident did not cause all of his injuries. Littelfuse also argued that David tried to “beat the door” when leaving the premises. Littelfuse’s expert, however, also testified that there was a culture in the workplace of fabrication.

The parties agreed to participate in a mediation settlement conference in July, 2013. At the conclusion of the proceeding, the Defendants made a combined offer of $1.75 million to settle. David’s employer also agreed to waive $50,000 of its worker’s compensation lien. David rejected the offer. The parties continued to engage in discovery, and on the eve of trial, the parties settled for a total of $2.2 million.

Employment Law

Federal Appeals Court Rules In Case of First Impression.

Beverly Ballard was formerly employed by the Chicago Park District.  In April, 2006, her mother was diagnosed with end-stage congestive heart failure and began receiving hospice support.  Beverly lived with her mother, Sarah, and cooked for her, administered insulin and other medication, bathed and dressed her, and got her ready for bed.  In 2007, Sarah said that she always wanted to take a family trip to Las Vegas.  A social worker was able to secure funding through the Fairy Godmother Foundation, a nonprofit organization which facilitated opportunities like these for terminally-ill adults.

Beverly requested unpaid FMLA leave through her employer, the Chicago Park District. The Park District ultimately denied the request.  Beverly took her mother on the trip – they engaged in typical tourist activities, but Beverly also provided care to her mother during the trip.  Several months later, the Park District terminated Beverly’s employment for the absences accumulated during her trip.

Beverly filed suit, claiming that the termination violated the Family and Medical Leave Act, (“FMLA”).  Her employer sought dismissal of the case, and a federal district court denied the motion, reasoning that Beverly provided care to her mother during the trip.

In a case of first impression in our Seventh Circuit, the federal appellate court held that it did not matter where Beverly cared for her mother, and thus was protected under the FMLA.  The Court upheld the lower court’s decision.  Paul Ryan, who handled the matter at the trial court and appellate levels, said, “This is a great victory for employees.  They should not be afraid to care for a loved one, if it involves travel away from home.”  The Park District has indicated that it intends to ask the United States Supreme Court to review the case. We will keep you posted as the case progresses.

Cancer Patient Files Disability Discrimination Lawsuit After She Was Fired.

Elisa Madonia loved her job as a Customer Service Representative at a local real estate management company, S 37 Management, Inc. Elisa’s employment was uneventful until the fall of last year, when she was diagnosed with Stage III esophageal cancer. In mid-October, Elisa’s treating oncologist advised S 37 that she would require intermittent leave, and ultimately need surgery in February.

The same day, Elisa asked management if she could work four days per week while she underwent chemotherapy and radiation. S 37 refused her request, and 6 days later, terminated her employment.

Several days later, the company provided her with a separation agreement, stating that it would provide her minimal compensation in exchange for releasing all of her claims. Madonia filed suit, alleging that she was being discriminated against because of her cancer. Local CBS-2 featured the story on the evening news, and the story was carried around the world, including, the United Kingdom, Italy, and Zimbabwe.

About the author

Eugene Hollander is a trial attorney who currently heads his own law office in Chicago. Mr. Hollander has tried numerous cases in the state and federal courts. The Law Offices of Eugene K. Hollander is a full service law firm, concentrating its practice in employment discrimination claims, personal injury and medical malpractice suits, and various types of commercial litigation. For more information, visit our web site at www.ekhlaw.com, or contact us directly at:

 

The Law Offices of Eugene K. Hollander

230 W. Monroe

Suite 1900

Chicago, IL 60606

(312)-425-9100

E-mail: EHollander@ekhlaw.com

 

Copyright © 2014 The Law Offices of Eugene K. Hollander. This publication may be considered advertising material under the Illinois Code of Professional Responsibility and is not intended to create any attorney-client relationship. The reader should not rely upon any statement or opinion as legal advice, but rather, should consider it as generally informative.