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Haimes and Vandervender1
Haimes and Vandervender
Your Name
Your college
Or whatever your instructor wants on title page
Haimes and Vandervender2
Introduction
Personal injury cases are often in the news—car accidents, a fall in a
grocery store, someone gets hurt at a theme park. Sometimes the reasons
people sue others sounds rather silly when printed in the newspapers or on
the internet. One of the most famous is probably the elderly lady who sued
McDonalds because hot coffee spilled in her lap and burned her. These
cases are legally called “torts” or civil wrongs. They are not criminal
matters, but one person claims another person or business harmed them
through some type of negligence or other wrongful actions. Should people
sue when they are harmed by someone else? Everyone has an opinion.
Some of these lawsuits are understandable; some not so much.
A $600,000 jury verdict for losing psychic powers might not sound
understandable and to most people, it might sound like a “frivolous” matter
that should not waste the courts’ time. What about a woman who gets more
than a $1 million for hurting herself when she opened a jar of pickles? Who
would agree with that? Probably not many people. At first glance, perhaps
these two legal cases might sound ridiculous but, maybe it would be best to
read the true story of both of the these “frivolous” cases before a judgment
is made.
Haimes and Vandervender3
Haimes v Temple University
Plaintiff Judith Richardson Haimes and her husband, Allen N. Haimes,
began this medical-malpractice lawsuit to win damages for injuries which
were suffered by Mrs. Haimes. She claimed to have sustained these injuries
as a result of undergoing a computerized axiotomography (CT scan), a type
of diagnostic x-ray. The main damages claimed by plaintiff (Ms. Haimes)
consisted of constant and disabling headaches which totally prevented her
from practicing her livelihood which was a practicing psychic.
There was no “out of court settlement” made, so after a period of time,
the case was ready for trial. A jury trial was held and it took four days to
complete. They came in with a verdict in the amount of $600,000 in favor of
the plaintiff and against Judith Hart, M.D., the physician who was in charge of
the CT scan, and also against Temple University Hospital.
During the trial when she testified, Judith Richardson Haimes told the
jury that she had psychic powers since she was born. According to her,
having psychic powers means he or she has the ability to call on an extra
“sense,” in addition to the four that most people are born with. She
explained that there are different kinds of psychic powers. Ms. Haimes’
particular special gift was to read auras. An aura is a certain glow or sort of
light that surrounds people and inanimate objects. She could interpret the
shapes, sizes, colors, and flecks of the aura and by doing so, tell things about
the person she was “reading” including the past and the future.
Haimes and Vandervender4
The plaintiff, Ms. Haimes, had opened her professional office in 1969 in
New Castle, Delaware and this is where she practiced psychic counseling.
Also, she assisted law enforcement agencies one day per week, and
occasionally lectured, appeared on radio and even on television.
One of the plaintiff’s clients, a medical doctor, suggested she go to an
ear, nose and throat specialist due to some suspected tumors. In
September, 1976, she did consult an otolaryngolist, Dr. Max Ronis. Plaintiff
had previously undergone approximately 14 surgeries for tumors on various
parts of her body. Dr. Ronis conducted various tests and referred plaintiff for
a CT scan. Judith Hart, M.D., who had completed a residency in radiology
and was then a fellow in neuroradiology, prepared to give the test. Prior
giving the CT scan, a type of dye had to be introduced into plaintiff's
bloodstream. As Dr. Hart was about to inject plaintiff with the dye, plaintiff
told Dr. Hart that she had found through previous medical procedures that
she was allergic to those particular dyes. After using the dye prior to her
other surgeries she had suffered hives, vomiting, and difficulty breathing.
Dr. Hart and the plaintiff also talked about whether or not to go ahead with
the test at all, due to plaintiff’s being nervous about it.
Dr. Hart set up an IV (intravenous) line in order to administer drugs
quickly if a problem came about. She also tried a test dose of the dye that
was going to be used in the CT scan. At first, two drops of dye were put into
the IV, and a few minutes later, eight more drops were released. Almost
instantaneously, plaintiff developed breathing problems, tightness in her
Haimes and Vandervender5
throat, pain, hives and welts. Dr. Hart stopped the dye and gave plaintiff
epinephrine and benadryl to counteract the reaction from the dye.
Ms. Haimes remained under observation for about 20 minutes in the
radiology department. Dr. Hart examined her and told her that she could go
home. Plaintiff was then driven home by a friend. During the next 48 hours,
plaintiff went through a very bad period of vomiting, nausea and headaches.
She had some welts on her body for three days and hives for several weeks.
Additionally, plaintiff testified that she still suffered from headaches and
nausea at the time of the trial.
Much of plaintiff's testimony concerned her psychic abilities and her
inability to practice following the CT scan incident. To read an aura,
according to plaintiff, it is necessary to go into an “altered state”--a state of
deep concentration. However, after the reaction to the dye, whenever
plaintiff entered this altered state she developed debilitating headaches. As
a result, she had to stop reading auras. Obviously, she closed her office in
Delaware and stopped assisting law enforcement officers. She also blamed
herself for not being able to see her son’s aura, and he was killed in an
automobile accident.
Plaintiff's husband, Allen N. Haimes, D.D.S., testified about the
headaches his wife was going through, the changes he observed in her and
the effect these changes have had on the lifestyle of the entire family. At
Haimes and Vandervender6
the close of both sides of the case, the court instructed the jury about the
law.
Included in the court's instructions were the following things:
"First, I must explain to you, since this was done out of your presence
yesterday that, as a result of a legal ruling I made, certain issues are no
longer present in this case and they are not for your consideration.
Specifically, you need not decide whether or not plaintiff, Judith Richardson
Haimes, suffered from or presently suffers from headaches. You also need
not decide whether or not plaintiff ever possessed psychic powers or
whether, if she did, she lost her psychic powers as a result of a reaction to
the dye administered to her during the CAT scan. That is not for your
consideration and you are not to concern yourself as to the reasons for my
ruling because they all pertain to matters of law."
The court also told the jury that they could not aware the plaintiff damages
for her suffering due to headaches or the loss of her psychic abilities,
resulting in the loss of her profession. ***
2. What are the issues?
The defendants (Dr. Hart and the Hospital) appealed the case because want
the jury verdict to be reversed due to what they say is a decision contrary to
applicable legal standards and not supported by evidence. The jurors have
the responsibility to listen to the evidence and evaluate sometimes complex
Haimes and Vandervender7
and conflicting statements, and then come up with a fair and accurate
verdict. But, they said in their brief, the trial court must grant a new trial
when the verdict is practically opposite to what the evidence showed. They
went on to say, if the trial court did not do this, it would be a serious
injustice. It is the trial court’s duty to do this. But, a new trial should not be
granted just because there are a few minor errors or conflicts in the
testimony.
Although the granting of a new trial is within the sound discretion of the
trial judge who is present at the offering of the testimony, that discretion is
not absolute. A new trial should not be granted because of a mere conflict in
testimony or because the trial judge on the same facts would have arrived at
a different conclusion. Rather, a new trial should be awarded only when the
jury's verdict is so contrary to the evidence as to shock one's sense of justice
and a new trial is necessary to rectify the situation. Defendants offer two
possible explanations for the $600,000 verdict. First, this award might
represent compensation for plaintiff's legally proven injuries. If this
explanation is accurate, the verdict is excessive. Second, the jury
disregarded the court's instructions and took into account the damages that
were precluded by virtue of the judge’s order. If this explanation is accurate,
a new trial should be awarded because the jury disregarded the law.
Regardless of which explanation of the jury's verdict is correct, for the
reasons explored below, a new trial is warranted. Since we are certain that
Haimes and Vandervender8
one of the above two scenarios occurred, we need not ascertain which
rationale actually supported the jury verdict.
EXCESSIVENESS OF VERDICT
3. What laws apply?
There needed to be expert medical testimony regarding the causal
relationship between defendants' alleged negligent acts and plaintiff's
continuing headaches. It is the plaintiff's job , in this case Ms. Haimes’, to
establish a direct connection between defendants' conduct and her injury.
In other words, "defendant's conduct must be shown to have been the
proximate cause of plaintiff's injury." In personal injury cases, it is usually
out of the realm of the average person to be able to tell, without medical
testimony, “what causes what.” In other words without testimony from a
medical expert, saying that the problems of the plaintiff was actually caused
by the defendants, the defendants claim the jury could not legally find as
they did. To sum up, the plaintiff must present expert medical testimony
establishing the causal relationship between defendants' conduct and
plaintiff's injury. She presented one medical expert only and nothing
pertaining to the loss of her psychic powers. Therefore, the defendants
basically said the appellate court must reverse the verdict because the jury
was wrong.
Haimes and Vandervender9
4. What did the judge and jury decide?
The trial jury awarded Ms. Haimes $600,000, but the appellate court
turned that verdict over and she ended up getting nothing at all.
5. Did the judge and jury make the appropriate decision based on the
applicable laws controlling the case? Why or why not?
According to the appeals court, the trial court awarded an excessive
amount based on the fact that Ms. Haimes did not present an appropriate
amount of medical evidence, in the form of expert medical testimony, as to
her actual injuries. Her basic contention was that the loss of her psychic
powers were a big part of what she sustained as an injury and did not
concentrate on the headaches so much. However, the jury was instructed
not to consider that in their decision. Nevertheless, the appellate court
overturned the verdict and award of the money. Part of the Appellate court
decision follows:
“Assuming that the jury verdict represented compensation for plaintiff's
legally proven damages, we must determine whether the award is excessive.
In reviewing defendants' claim that the damages awarded by the jury are
excessive, we recognize that the duty of assessing damages is within the
province of the jury and should not be interfered with except where it clearly
appears that the amount awarded resulted from a misconception of law or
Haimes and Vandervender10
evidence, caprice, prejudice, partiality, corruption or some other improper
influence. Tonik v. Apex Garages, Inc., 442 Pa. 373, 275 A.2d 296 (1971);
Jenkins Towel Service, Inc. v. Fidelity Philadelphia Trust Co., 400 Pa. 98, 161
A.2d 334 (1960). A court should not find a verdict excessive unless it is so
grossly excessive as to shock the court's sense of justice. Thompson v.
Anthony Crane Rental, Inc., 325 Pa. Super. 386, 473 A.2d 120 (1984). In
determining whether this standard is met, one court has remarked that
"[w]hen the jury's verdict, at the time of its rendition, causes the trial judge
to lose his breath, temporarily, and causes him to almost fall from the bench,
then it is truly shocking to judicial conscience." Swartz v. Smolowitz, 400 Pa.
109, 116, 161 A.2d 330, 333 (1960). Although this court did not manifest any
of the aforementioned gyrations, we nonetheless find the verdict to be so
grossly excessive as to shock the court's sense of justice.”
6. What are the ethical issues in the cases? Do the ethical issues differ
from the legal issues? If so, how? There are really few, if any ethical issues
in this case. The doctor, Dr. Hart, did try using only a few drops of the dye
that was going to be used in the CT to test Ms. Haimes’ sensitivity to it.
When she seemed to have a reaction, they did not use the substance.
However, shortly thereafter, the doctor did send her home where she
proceeded to be sick for several days to, apparently to the testing of the dye.
Whether the doctor should have sent her home, or not, might have been an
Haimes and Vandervender11
ethical “call” but it did not seem to be emphasized in the case.
Cheryl Vandevender v Sheetz, Inc.
1. What are the facts?
Ms. Vandevender (Appellee) was hired to be a clerk by Sheetz, Inc. to
work in one of its convenience stores on June 8, 1989. Within six months, she
received a promotion to second assistant manager. When she was working
on January 4, 1991, Appellee hurt her back when she tried to open a very
large jar. She saw a doctor in about this back injury on January 21, 1991.
Even with her injury, she continued to work for several months. Ms.
Vandevender began receiving temporary total disability workers
compensation ("TTD") benefits on July 30, 1991, because she was still in pain
with the back injury. She did have back surgery on October 7, 1991.
In either August or October of 1992, Appellee met with the store
manager, Karen Foltz, and told her that she could come back to work but
had the permanent limitation of performing no heavy lifting. Ms. Foltz told
Ms. Vandevender that she could not return to work, because of company
policy, unless she had no restrictions. Because the company would not allow
her to go back to work with restrictions, Appellee's physician continued to
Haimes and Vandervender12
consider her as totally temporarily disabled and therefore eligible for
benefits.
Sheetz, Inc. sent Appellee a letter on March 15, 1993, telling her that
according to their company, a twelve-month absence from work is treated as
a resignation. The letter indicated that if Appellee was able to come back to
work, she should contact the company's human resource department within
one week and that she would be eligible for rehire upon appropriate medical
release. That was, of course, subject to her qualifications and abilities
regarding her job duties and responsibilities. Appellee did not contact either
Sheetz' human resource department or her store manager. Just as the letter
said they would do, Sheetz fired Appellee in March 1993.
Appellee went to see a workers' compensation doctor on June 19,
1994, and decided that she had reached her maximum degree of medical
improvement. As a result of this medical determination, Appellee's benefits
were ended on October 11, 1994 since they were supposed to be temporary
only.
On October 12, 1994, Trudy Rohrbaugh, a West Virginia Rehabilitation
Counselor, called the manager at Sheetz, Inc. to inquire about Appellee
returning to work. The manager told Ms. Rohrbaugh that it was her
understanding that it would do no good for Appellee to apply for her job
back, she did tell the rehabilitation counselor to call Sheetz' corporate office.
Haimes and Vandervender13
It is not disputed that neither Appellee nor Ms. Rohrbaugh called Sheetz'
corporate office to inquire about rehiring Ms. Vandevender. ***
On December 1, 1994, Appellee filed a civil lawsuit against Sheetz for
refusing to rehire an employee discharged following a work-related injury.
This was allegedly a violation of the anti-discrimination laws of the West
Virginia Workers' Compensation Act ("Workers' Compensation Act") and in
violation of the West Virginia Human Rights Act ("Human Rights Act"). During
discovery in the lawsuit, Ms. Foltz testified that Appellee could have been put
on a lighter duty since the job functions listed by Sheetz requiring employees
to lift up to fifty pounds and to stand for eight hours a day were not
particularly necessary. In response to these statements, Appellee demanded
to be returned to her job under the restrictions that the doctor had set down
previously.
Sheetz, Inc. offered to hire Appellee as a sales clerk on February 3,
1995, and she took them up on the job. The regional manager, Ms. Imler,
was present on the date of Appellee's first day back and asked that Appellee
provide her with a list of work restrictions. Ms. Imler demanded to see
written restrictions even though the company had required Appellee to
undergo an independent medical examination one month prior to her return
to work and despite the fact that Ms. Imler and the district manager, Ms.
Anslinger, had seen and discussed the report of Appellee's medical
examination. Ms. Imler said that until she received an updated doctor's
excuse, there were no restrictions. Ms. Imler ordered her to obtain a current
Haimes and Vandervender14
medical examination by Friday of the same week, although Appellee was
scheduled to work every day that week. Pursuant to Ms. Imler's orders,
Appellee began to stock the cooler, but had to stop after only twenty
minutes of work because of back spasms. Appellee continued to work for
several more hours, but did not inform anyone at the store regarding her
back problems while stocking. She called her job the next morning and said
she would not be returning after speaking to her attorney.
In June 1995, Ms. Vandevender amended her complaint to say that
Sheetz, Inc. failed to realize and assist her with her restrictions during the
period between 1991 and 1995 in violation of the Human Rights Act and that
Ms. Imler's request that she stock the cooler on her return to work,
constituted an unlawful retaliation in violation of the Human Rights Act. See
W. Va. Code § 5-11-9(7)(C). A three-day jury trial took place in September
1995 and came out well for the Appellee. She was awarded $130,066 in
compensatory damages, $170,000 for noneconomic damages, and
$2,699,000 in punitive damages. Sheetz, Inc. filed a motion for a judgment
notwithstanding the verdict (overturning the verdict and go the other way) or
in the alternative, a new trial. This appeal came after the court denied
Sheetz’s motion.
2. What are the issues?
The main issue is that the Defendants/Appellants claim that the
Plaintiff/Appellee should not receive over $2m in punitive damages. Punitive
damages are a sort of a punishment the court awards due to the behavior of
Haimes and Vandervender15
the defendant.
3. What laws apply?
The plaintiff must prove the defendant’s actions were the direct cause
of her injuries and must verify how much those injuries actually were. Also,
the plaintiff (Vandervender) had to show the actions which would give rise to
any punitive damages.
4. What did the judge and jury decide?
The trial jury awarded Vandevender $130,066 in compensatory
(compensation) damages, $170,000 for noneconomic damages (pain, mental
anguish) and $2,699,000 in punitive (punishment) damages. They found the
employer was at fault for her losing wages, being hurt a second time, and for
the actions they took which were obviously mean spirited and retaliatory.
The appeals court stated that there are certain “guideposts” to decide
punitive damages and that the Due Process Clause concerns of fair notice of
the type of conduct that will subject a defendant to punishment and fair
notice of the severity of the penalty that may be imposed for such conduct.
These "guideposts", according to the appeals court are: (1) the degree of
reprehensibility of the defendant's conduct; (2) the ratio of punitive damages
to the actual harm inflicted on the plaintiff; and (3) a comparison of the
punitive damages award with the civil or criminal penalties that could be
imposed for comparable misconduct. The Appellate court lowered the
punitive damages to $2 million, and left the other amounts the same.
Haimes and Vandervender16
5. Did the judge and jury make the appropriate decision based on the
applicable laws controlling the case? Why or why not?
The trial court made the appropriate decision, even though the
appellate court lowered the punitive damages somewhat. The employer and
the supervisor at the store were at fault personally really. At first, they
would not take her back to work, they would not pay her medical bills, and
then they insisted on trying to intimidate her when they finally did give her
the job back. One of the things mentioned by the appellate court was that
when she finally did get her job back, they made her do heavy work right
away, almost in a mean spirited way. In fact one of the higher supervisors
was there on the job to order her to do the heavy work.
6. What are the ethical issues in the cases? Do the ethical issues differ
from the legal issues? If so, how?
In Vandervender, the company clearly did everything they could to
force Ms. Vandevender out of her job and not pay Workers’ Compensation.
Even when she brought in the correct medical reports they made her stock
shelves on her first day back to work. Their company policy allegedly would
not let her come back to work and then gave her difficulty when she finally
got her job back. This went beyond being illegal and was clearly a breach of
any business ethics.
Haimes case was different. When notified that Ms. Haimes had
previously had a reaction to a similar substance that was to be used in her
Haimes and Vandervender17
CT, the doctor carefully did tests of minute amounts to see if there was a
reaction. No attempt was made to deceive or to do anything unethical.
7. I do not believe that either of these cases were frivolous or a waste
of time. In the Vandervender case, the Appellee hurt her back while trying to
open a very large jar of pickles which was just part of her job. Using the
word “pickles” might tend to make the whole case seem silly, but the facts
are not silly at all. A large number of medical professionals were involved in
Ms. Vandervelder, including one who actually did surgery, verifying that the
injury was real. If she had been in a car accident, or been burned by a steam
pipe, her injuries would have not seemed to be frivolous at all.
The Haimes case was slightly different. It involved psychic abilities and
many people testified on her behalf, including law enforcement officers,
affirming that they believed she did indeed have these abilities. Ms. Haimes
had practiced her profession for over seven years and actually did make her
living reading auras. The loss of her ability to do this meant she could not
continue to practice her profession. Whenever someone loses something of
value such as this, they have a right to seek damages from the person
responsible.
In the Haimes situation, the hospital may not have been able to do
things any differently if the injection of this dye was the only way to identify
the suspected tumors. But, when Dr. Hart saw the reaction to the dye, she
could have insisted Ms. Haimes stay, perhaps even overnight, to watch her
Haimes and Vandervender18
symptoms and provide medical attention. There is not enough information in
the case to know if more or different medical care would have changed the
outcome of the plaintiff’s medical condition.
However, the Sheetz company would have plenty of things they could
have done differently to prevent the same outcome. When someone is hurt
on the job the workers’ compensation law must be followed. Medical bills are
to be paid according to the law. And the employer must follow the laws and
rules about offering a position to the employees who can come back and do
the job, even if some accomodations are necessary. There was little this
company did correctly.