Trieweiler Law Firm

$3

Product Liability

While being treated for lymphoma, Peggy Stevens was administered Zometa, a bisphosphonate manufactured by Novartis, and administered intravenously to prevent bone fractures. Following a tooth extraction while being treated with Zometa, Ms. Stevens developed osteonecrosis of the jaw, a potential complication about which she had not been warned. This action against Novartis for failure to adequately warn resulted. Following a verdict for Ms. Stevens in the amount of $3.2 million, the first in the country against Novartis, although hundreds of previous cases had been filed, the defendant appealed, the Montana Supreme Court affirmed, and in the process followed the modern trend regarding a pharmaceutical manufacturer’s duty to warn was not limited to the prescribing physician but was owed equally to the patient.

$2

Workplace Injury

Pat Cheff, a conductor for BNSF, slipped and fell while at work in the rail yard and injured his back. Following settlement of his claim for $300,000, he learned that due to a pre-existing spinal condition, he was not a candidate for corrective surgery. This action was to set aside the previous settlement and recover the full measure of his damages. The settlement was set aside. The jury awarded $1.6 million, reduced by 15 percent for contributory fault, and the judgment was affirmed on appeal.

$477,000

Federal Employers' Liability Act (FELA)

Railroad employee brought action pursuant to Federal Employers' Liability Act seeking damages for personal injuries sustained during course of his employment with railroad. The Eighth Judicial District Court, Cascade County, H. William Coder, J., returned jury verdict in favor of employee in amount of $477,000, and denied railroad's motion for new trial. Railroad appealed. The Supreme Court, Morrison, J., held that: (1) evidence supported finding that railroad had violated Federal Boiler Inspection Act; (2) testimony by medical experts was sufficient to provide basis for consideration of permanent impairment to employee's earning capacity; (3) physician's testimony was sufficient to support finding that it was probable that employee's condition would not improve during his lifetime; (4) trial court's refusal to instruct jury on nontaxability of any award made by jury if error, was harmless; and (5) evidence supported award of lost earnings and future earnings capacity. Affirmed.

$450,000

Discrimination

Following trial before the Department of Labor, the Hearing Examiner found that BNSF had discriminated against Cringle when it denied him employment based solely on his height and weight ratio and awarded $400,000 in damages. $50,000 was added to the award by the District Court for costs and fees. On appeal to the Supreme Court, the judgment was affirmed for failure to meet the statutory deadline for appealing the Department’s decision to the Human Rights Commission.

$320,000

Discrimination

Following trial before the Montana Department of Labor & Industry, the Hearing Examiner found that BNSF had discriminated against Charles Bilbruck by denying him employment based on its perception that he was disabled due to extreme obesity. It awarded him $250,000, which was increased to $320,000 by the District Court after inclusion of attorney fees and costs. Following BNSF’s appeal of the damage calculations, the Montana Supreme Court affirmed judgment in favor of Mr. Bilbruck.

$75,000

Medical Malpractice

Survivor brought medical malpractice wrongful death and survivor claims against surgeon and others. Jury returned verdict of $75,000 on wrongful death claim and nothing on survivor claim and survivor's motion for new trial was granted by the District Court of the First Judicial District, County of Lewis & Clark, Gordon Bennett, J., and surgeon appealed. The Supreme Court, Joel G. Roth, District Judge, held that: (1) survivor had right to new trial on ground that jury verdict awarding $75,000 for wrongful death and nothing for survival was inconsistent, and (2) surgeon was negligent per se and liable for patient's injury and death caused by surgical sponge that was left in patient's body prior to closing incision, where surgical nurse's failure to inform surgeon of unaccounted-for sponge and radiologist's failure to detect sponge in postsurgical x-rays were substantial factors in bringing about patient's injury and death. Affirmed and remanded.