------------------------------------------------- -,

SEARCYDENNEYSCAROLABARNHART

~SHIPLE'(..

2139PALM BEACH LAKES BLVD.

WEST PALM BEACHFLORIDA 33409

QUARTERLY REPORT TO CLIENTS AND ATTORNEYS - VOL. 95, NO.2

The Deberry's Legal Odyssey ConcludesWith A $7.75 Million Settlement

800-780-8607(407) 686*6300

FAX: (407)478-0754

P.O. DRAWER 3626WEST PALM BEACH

FLORIDA 33402

ATTORNEYS AT LA W,

F. GREGORY BARNHARTLAWRENCE I. BLOCK, JR.

EARL L. DENNEY, JR.DAVID ICKELlEY, JR.

T. MICHAEL KENNEDYKATHERINE A. MARTINEZ

JAMES N. NANCEWILLIAM A. NORTON

DAVID J. SALESJACI< SCAROLA

CHRISTIAN D. SEARCYJOHN A. SHIPLEY

CHRISTOPHER K, SPEEDrOOD $. STEWARTKAREN Eo TERRY

C. CALVIN WARRINER III

PARALEGALS,

LAURIE J. BRIGGSDEANE LCADYJAMES E. COOKFRANK COTTON

EMILIO DIAMANTISDAVID W. GILMOREJOHN C. HOPKINS

TED E. KULESA/. PETER LOVE

EDWARD L LUTHERMARJORIE A. MORGAN

JOEL C. PADGETTWILLIAM H. SEABOLD

KATHLEEN SIMONSTEVE M SMITH

JUDSON WHITEHORN

NOTE, The accounts of recentrrials, verdklS and ~ltlements

contained in Ihis newsleuer areintended 10 illustrate the

experience of the firm in avariety of litigation areas. Each

case: is unique, and the results inone case do not necessarilyindicate the quality or value:

of any other case,

~

~,~~

Chris Searcy. David DeBerry and Greg Barnhart

Tom and Gwenda DeBerry of Vero Beachhave fought two battles for over a decade,raising a severely brain damaged child andpursuing a medical malpractice case againstthe doctors who negligently treated theirnewborn son, David. The DeBerry's legal

ContaminatedHealth foodPoisoned ConsumersContaminated L-tryptophan, a nutritionalsupplement sold by grocery stores, healthfood stores, drug stores and many otherretail establishments, sickened over t ,500Americans and killed 27 in the United States.This outbreak of an autoimmune blood disor­der was linked to tainted batches of thehealth food produced by a major Japanesepetro-chemical manufacturer called ShowaDenko. As a result, the Food and DrugAdministration has ordered all L-tryptophanproducts off the market as of the endof 1989.

battle ended in May when they accepted a$7.75 million settlement from Doctors' Clinicof Vero Beach and obstetrician Robert ((Iomp.

Chris Searcy and Greg Barnhart pursued themedical malpractice case on behalf of theDeBerrys. The suit accused the doctors ofcausing David's mental retardation by failingto treat him properly within the first 12 hoursafter his birth at Indian River Memorial Hos­pital in 198 t. Born five weeks premature,David developed a systemic infection shortlyafter birth. Proper medical treatment for theinfection and respiratory problems wouldhave prevented David's oxygen deprivationand severe brain damage. David, now 14, re­quires 24-hour supervision and extensivetherapy. His daily living skills are assessed atan 18 month to 2 year-old level.

The DeBerry's legal odyssey has spannedtwelve years, including five trials, (three mis­trials), and six appeals. The litigation hasbeen handled by ten judges through theContinued on Page Five

Some of the brand names that contain L-Tryptophan.

L-tryptophan, an amino acid, occurs natu­rally in foods such as milk and white turkeymeat. Manufactured L-tryptophan was soldthrough retail outlets as a non-prescriptionremedy for conditions including insomnia,pain relief, obesity, and premenstrual syn­drome. As an essential amino acid, normallyContinued on Page NIne

rAGE ONE

Declslons...Decislons...Decislons..

REPORTED "DECISIONS"OMITTING CLIENTS' AND/OR

DEFENDANTS' NAMES ARE AS ARESULT OF REQUESTS FOR

ANONYMITY.

JANE ROE vs.ABC AMBULANCE,

XYZ HOSPITAL, ET ALJane Roe was a college professor,the holder of two Masters de­grees and an exceptionally brightwoman in her early 40's. Shespoke two foreign ianguages flu­ently and was only a few creditsaway from obtaining her Ph.D.One evening, she began to feelfaint and called a neighbor forhelp. Her neighbor arrived andpromptly called 9 I I, fearful thatRoe was having a heart attack.ABC Ambulance arrived to renderaid. The paramedic employees ofABC completed a preliminary as­sessment, established IV lines andattached an EKG monitor. Shortlythereafter, Roe stopped talkingand went into cardiac arrest.

ABC employees intubated Roeand transport was begun to XYZHospital. XYZ Hospital was un­prepared for her arrival. Roe wasunloaded by the paramedics fromABC Ambulance. She presentedwith a distended abdomen andwas cyanotic, indicating clearlythat a proper airway had not beenestablished. Aithough the emer­gency room doctor noticed theseconditions and realized that Roewas oxygen starved, a properairway was not established untilapproximately 12 minutes afterher arrival.

Miraculously, she survived. How­ever, she is now permanentlybrain damaged, losing forever apromising career in the academicfield. She will be forced to residein a supervised living care facilityfor the remainder of her life. Herdevastating injury was a directresult of failure on the part of theparamedics to establish andmaintain a properly opened air­way and a failure on the part of

PAGE TWO

the hospital's emergency roomdoctor and the hospital's E/Rpersonnel to recognize and actimmediately to correct thislife-threatening condition.

T. Michael Kennedy and ChrisSearcy negotiated a $3,625,000settlement against alldefendants. I

BENJAMIN PERRY vs.PENINGTON WIMBUSH, M.D.

Benjamin Perry, 74, had a total hipreplacement necessitated by de­generative arthritis. The surgerywas a success but Mr. Perry hadsome lingering minor pain. Hissurgeon attributed the pain to be­nign bone growth around theprosthesis. Mr. Perry was referredto a radiation oncologist, Pening­ton Wimbush, MD, for a series oflow dose radiation treatments todiscourage the bone growth.

The treatment regimen called forten doses of 200 rads each to beadministered over an extendedperiod of time for a total of 2000rads. Dr. Wimbush testified thatin his long career he had neveradministered more than 700 radsat a single time. Nevertheless, heordered a one-time dose of 2000rads to be given to Ben Perry's hipand thigh area. At the time of thetreatment, Mr. Perry felt a mildburning sensation that continuedfor months.

The radiated tissue deteriorateddespite intensive treatment andtherapy. The massive dose of ra­diation burned the muscles andskin around Mr. Perry's hip area,causing severe nerve damageand leaving his leg virtually para­lyzed. A very active man beforehis visit to Dr. Wimbush, Mr. Perrycan now barely walle

Taking advantage of the FloridaMalpractice Statutes cappingdamages, Dr. Wimbush admittedliability limiting Mr. Perry's painand suffering damages to$250,000. Despite this, WiliiamNorton was able to achieve asettlement of $750,000. I

JANE DOE vs. DR XJane Doe, 31, gave birth to a babygirl with a swollen skull (hydro­cephalus) and a hole in her lowerback (meningomyelocele). Thebaby had minimal brain tissue andwas paraiyzed from the waistdown. Her parents requested thatthe hospital withhold Iife­sustaining measures, but HRSofficials threatened to take thecase to court if the baby was notfed. The baby was transferred toHospice where she suffered fromseizures, vomiting and infection.She died nearly three monthslater.

Mrs. Doe sued her obstetrician, Dr.X, for failing to properly notify herof the potentially worrisome re­sults of a prenatal screening foralpha-fetoprotein. The screeningshowed an increased risk for birthdefects. She did not learn aboutthese results until she returned fora regular check up a month later.

II

QUARTERLY REPORT TO CLIENTS AND ATTORNEYS - VOL 95, NO.2,

Continued from previous page

She was not referred for appropri­ate follow-up tests in time. Theultrasound that was ultimatelyperformed showed severe abnor­malities in the fetus. By that time,Doe was more than 24 weekspregnant. It was too late to havean abortion in Florida. Mrs. Doewas sent to an abortion mill inGeorgia, but could not go throughwith the procedure since thepregnancy was now over26 weeks.

Dr. X claimed that Doe was reluc­tant to have the prenatal screen­ing and never wanted to end thepregnancy. He did, however, ac­knowledge his failure to recordwhat he told his patient. Just be­fore trial was scheduled to begin,John Shipley negotiated a$350,000 settlement..

PLAINTIff vs.DEfENDANT and

ALLSTATEINSURANCE COMPANY

John Plaintiff, 56, was rear-endedby a vehicle driven by GeorgeDefendant. Since Mr. Defendantwas uninsured, the Plaintiff turnedto his uninsured motorist policyfor reimbursement. A liabilityissue existed since the Plaintiffwas attempting to restart hisstalled vehicle when the impactoccurred. The Plaintiff had beendisabled since 1979 for a work­related neck/back injury. He hadpreviously undergone two backsurgeries. This accident causedan aggravation of those neck andback complaints. He underwenta third lumbar spine surgery forremoval of hardware which hadpreviously been implanted. All­state argued that the removalof the hardware was a naturalprogression of the prior injury,whereas the Plaintiff asserted thatthe surgery would not have beennecessary but for the aggravationcaused by the accident. ThePlaintiff also claimed the accidentcaused a herniated cervical disc.Allstate's expert disputed thesignificance of that diagnosticfinding. James Nance negotiateda $100,000 settlement forthe Piaintiff.•

ESTATE OfJOHN DOE

vs.CLINIC X

ANDDRS. A, BAND C

John Doe, 49, went to Clinic Xcomplaining of chest pain. Hewas seen by Dr. A, who suspectedhis problems were cardiac in na­ture and performed an EKG. TheEKG computer results suggestedthat, indeed, he suffered from anevolving cardiac problem. Dr. Aignored the analysis and sent himhome after ordering some bloodwork. The blood work was re­turned the next day, and clearlyshowed that cardiac enzymeswere elevated, indicating anevolving heart problem. Theseresults were read by Dr. B, misdi­agnosed, and Mr. Doe was not in­formed of the problem.

Approximately two weeks later,Mr. Doe returned to the sameclinic to be seen by Dr. A and nowcomplaining of numbness in thejaw, a classic symptom of cardiacproblems. Again, Dr. A misdiag­nosed him and sent him home.

Approximately three monthslater, Mr. Doe again visited theclinic complaining of chest tight­ness. He was seen by Dr. C. whoread the chest X-ray he orderedas normal. The next day whenthe chest X-ray was read by aradiologist, the radiologist foundthat the X-ray showed an en­larged heart, another classicsymptom of cardiac problems.Mr. Doe was never informed byDr. C that the radiologist hadfound that he had an enlargedheart. He was told that he hadflu-like symptoms and sent home.

As a result of the misdiagnosis ofDrs. A, Band C and the clinicpersonnel, Mr. Doe never knewthat he had an evolVing heartproblem and sought no furthermedical attention. Seven monthslater he suffered an irregularheartbeat and a subsequent heartattack and died.

Mr. Doe is survived by his wifeand two children. During an earlymediation, Bill Norton negotiateda $1.7 million settlement for thesurviving wife and children.•

TREZISE vs.TRENT

and USAACarolyn Trezise, a 65 year oldwidowed real estate agent, wasinvolved in an intersectionautomobile accident in West PalmBeach. A van running a red lightcollided with her automobileresulting in substantial damage toboth vehicles. Despite the factthat she was secured in her three­point restraint, her knees wentinto the dashboard causing severeswelling and bruising. She alsohad severe bruising on hershoulder and across her chest andabdomen from the three-pointrestraint. She suffered a bruisedheart with no permanent damageother than a change in her EKG.Arthroscopic surgery wasrequired on one of her knees.Nine months after the crash shediscovered a lump in her breast.A biopsy revealed the lump to benecrotic fat tissue from thetrauma in the automobileaccident. Three months later,another lump appeared in thesame breast, with the same result.She underwent two surgeries onher breast. Greg Barnhart settledher case for $ I 10,000.•

PAGE THREE

I The Meeting Corners

David K.Kelley

David K. Kelley, Jr., a partner atSearcy Denney Scarola Barnhart&. Shipley, P.A., has been with thefirm for fifteen years. He joinedthe firm after having gained sub­stantial experience as an Assis­tant U.s. Attorney for the SouthernDistrict of Florida, handling whitecollar crime and tax evasion prose­cutions. He also served as aFederal Public Defender for theSouthern District of Florida, defend­ing racketeering and major federalcriminal cases.

A native Floridian, Mr. Kelley grad­uated with honors from FloridaState University in 1972. He grad­uated cum laude from Ohio StateUniversity College of Law in 1975,specializing in tax matters.

Since joining the firm, Mr. Kelleyhas practiced exclusively in civiland criminal trial matters. Hedevotes a large portion of his prac­tice to professional malpracticeand product liability cases. Overhis career, he has received numer­ous multi-milliondollar awards.

Mr. Kelley is actively involved inboth professional and civic activi­ties. He has recently concluded atwo-year chairmanship of theFlorida Bar Ethics Committee forPalm Beach County which regu­lates conduct and investigates at­torneys for ethical and professionalmisconduct. Mr. Kelleyis also a member of the Committeefor the Needs of Children.•

PAGE FOUR

James E.Cook

Jim Cook is a Paralegal/Investigator at Searcy DenneyScarola Barnhart &. Shipley, P.A.Brought up in Fort Pierce, hegraduated from Indian RiverCommunity College.

Mr. Cook began his claims careerwith the Hartford Insurance Groupin West Palm Beach in 1967. Hejoined Allstate Insurance Companyin 1969 working with the WestPalm Beach and Fort Lauderdaleclaim offices. He wasinvolved in all aspects of supervi­sion and management.

Since joining the law firm in1989, Mr. Cook has worked pri­marily with David K. Kelley, Jr. inmanagement of personal injury,medical malpractice and productsliability cases. His duties includeinvestigation, case resolution andtrial preparation.

He is very active as a band parentfor the John I. Leonard HighSchooi marching band primarilydealing with fund raising and com­munity support. He is also in hisfifth year as an all night volunteerwith John I. Leonard's Project Grad­uation.•

Give me the libertyto know, to utter, and

to argue freelyaccording to conscience,

above alll/berties.- -John Milton, {644

RE-VISITING APAST SIGNIFICANT CASE:

Record-BreakingVerdict Leads ToSafer HighwaysOne family's tragedy has resultedin enhanced safety for all Floridi­ans. State highways have beenmade safer in response to a$9,250,000 verdict against theFlorida Department of Transporta­tion in the case of a 3-year old girlkilled in a bizarre accident.

In January 1986, Brenda Smith ofFort Pierce, was driving on Inter­state 95 in Palm Beach Gardenswith her daughter, Leslie. A 1 17square foot, 250 pound road sign,negligently designed, constructedand maintained dismounted fromits support structure and crashedthrough the car's windshield. Thesign sliced Leslie's head in half,killing her before her mother'seyes.

Chris Searcy and Lance Block ofSearcy Denney Scarola Barnhart &.Shipley, P.A. sued Florida's Depart­ment of Transportation on behalfof Leslie's parents, Brenda andSteve Smith, claiming state high­way officials could have preventedthe accident by properly attachingthe sign. The signstructure did not meet the Depart­ment of Transportation (DOT)gUidelines. It was constructedbased on "guesswork: had neverbeen inspected, had fallen on atleast one previous occasion andwas refastened with improperbrackets. The state refused to ad­mit liability and made no effortsto prevent similarly attachedsigns from endangering motoristson Florida's highways.

The Smiths pursued their claim inlarge measure to ensure that nosimilar tragedy would ever befallanyone else. Leslie's death hadnot been a sufficient Impetus tospur the DOT into taking measuresto prevent future accidents.

Continued on next page

Revisiting A Past Case ­Verdict leads ToSafer Highways...

Continued from previous page.

In February 1990, after four yearsof delay, costly litigation and noteven an expression of sympathyfrom the DOT, a Florida jury ren­dered a verdict of $9,250,000.The verdict is believed to be the

- largest in American history forthe wrongful death of a child.The jury ruled that the state'sTransportation Department wasnegligent because it installed thesign with faulty clamps and with­out testing the sign's ability towithstand wind and roadvibrations.

After the verdict, Brenda Smithsaid, "For the first time sinceLeslie's death, they have acceptedresponsibility for what happened.I just hope and pray that DOTdoes something about their signsstate-wide." The publicity gener­ated by the record-breakingverdict led to the realization ofBrenda Smith's hopes and prayers.

Within months after the verdict,the DOT changed the way itinstalls similar signs and orderedtests and random inspectionsof clamps on highway signsthroughout the state. The depart­ment inspected existing signsmounted by use of the question­able clamps, replaced or repairedall damaged, cracked and struc­turally defective brackets andinstituted a plan to phase out alluse of the extruded aluminumbracket. A uniform mandatoryprogram was established to in­spect all single and multi-postground signs on the State High­way System. That procedureprescribed inspection practicesas well as reporting and docu­mentation of all sign inspections.

Everyone traveling Florida'shighways today owes a debt ofgratitude to Brenda and SteveSmith for pursuing their coura­geous struggle. Their efforts havehelped to eliminate one of themany dangers on our highways.•

legal Odyssey Concludes With$7.75 Million Settlement...Continued From Page One

years. The case was tried inIndian River County three timesbetween 1985 and 1988, eachtime ending in a mistrial.

In 1985, the DeBerrys accepted a$1.5 million settlement fromIndian River Memorial Hospital.These funds were used to re­design the DeBerry home to makeit wheelchair accessible and userfriendly for David so he couldcontinue to live at home. How­ever, these funds could only beginto adequately take care of David'sextensive needs...the fight hadto continue.

Before the fourth trial in 1990,the case was moved to MartinCounty because of pretrial public­ity. Later that year, the DeBerrysentered into a $500,000 condi­tional settlement with Dr. DanielThornton, David's pediatrician.

In a 1990 Martin County trial, ajury awarded the DeBerrys $1 2.5million from Klomp and Doctors'Clinic, a Martin County recordverdict at the time. The 4th Dis­trict Court of Appeal overturnedthat verdict in 1993, ruling thatjurors had improperly been giveninformation on a doctor's priorsettlement. A new trial wasordered.

Before the fifth trial began, theDeBerrys rejected settlement of­fers of $2 million, $3.5 million and$5 million. The fifth trial ended in

May after 6 weeks of testimonywhen the $7.75 million settle­ment was reached. Defense at­torneys had threatened to appealthe case if the jury awarded alarge amount to the DeBerrys.The St. Lucie County jurors polledafter the announcement of thesettlement stated they wouldhave awarded the DeBerrys morethan the settlement amount.

The settlement means a securefuture for David. The money goesto a guardianship, administeredby a judge, for David's benefit. Ifinvested wisely, the money willbe sufficient to care for David athome for the rest of his life.

Searcy Denney Scarola Barnhart&.Shipley, P.A. made a commitmentto the DeBerrys to proceed withthis case against all obstacles.That commitment was sustainedthrough twelve years of litigation.Hundreds of thousands of dollarsin costs and thousands uponthousands of hours were ex­pended on trial preparation aswell as on the numerous trialsand appeals. The DeBerrys madea commitment to fight for justicefor thei r son regardless of theti me and the toll it has taken onthem personally. After reachingthe settlement, Gwenda DeBerrysaid, "When Tom and I felt likequitting, all we had to do waslook at our little boy. He's not aquitter. He's a fighter. He hasmore courage, strength, characterand determination thananyone I know." I

PAGE FIVE

-,

ContIngent feesl Keys To The Courthouse

Businesses and individuals whowant to avoid accountability fortheir negligent and reckless actsare pushing for special protectionsin the state legislatures andCongress. Whether the wrong­doer seeks to limit liability or tointerfere with fee agreements. itsgoal remains the same: to denyaccess to justice to the tens ofthousands of Americans who areinjured each year due to another'swrongful acts.

Continued on next page

such a fee agreement. Instead,the contingent fee critics typicallyare the defendants called on byinjured consumers to account fornegligence or recklessness.

The attacks on the contingent feesystem come from the tortfeasorswho have to compensate theirvictims. not from victims whohave to pay their lawyers. Thetortfeasors never seek limits ontheir own ability to pay lawyers oraccess a defense. They seek onlyto limit victims. Their mission is tomake the already uneven playingfield even more uneven.

QUARTERLY RE.PORTTO CLlE.NTS AND ATTORNEYS - VOL. 95. NO.2

American Medical Association(AMA). The contingent fee is aprime target of groups seeking tolimit the rights of injured victims.There is no more effective way toundermine our jury system. [limi­nating the contingent fee wouldeffectively keep the averagecitizen from the courthouse.

Those who object most strenu­ously to contingent fee practice.and now call for regulation orlimits. seldom have had occasionto represent the injured who need

Over the years. the contingent feehas been attacked by insurancecompanies. corporate Americaand special interests such as the

arrangement for plaintiffs seekingrepresentation in personal injurylitigation. Instead of billing theplaintiff on an hourly basis. theattorney is entitled to a percent­age of the settlement or trialaward. usually in the amount ofone-third. If the plaintiff does notreceive any compensation fordamages. the attorneyreceives nothing.

The contingent fee is the mostcommon form of payment

The contingent fee puts themiddle class on equal footing withthe wealthy. [liminating the con­tingent fee would price the middleclass out of the market for justiceand would especially disadvantagewomen and the elderly. Withoutthe contingent fee system. nonebut the wealthy and powerfulwould be able to bear the costs as­sociated with pursuing a claim andreceiving just compensation. Oftenonly those whose negligent con­duct causes injury would be able toafford quality legal representation.

The contingent fee is one of thedistinct differences between theUnited States and countries else­

where in the world. It is a hallmark '-""S=-E=-:'A-:R=-C=Y-'-­of our democratic system. Thecontingent fee is the "key to the DENNEYcourthouse" for millions of victims SCAROLAof wrongful and careless conduct BARNHARTor defective products. ~SHIPLEY."

The contingent fee is perhaps theone device in law that gives in­jured people, no matter what theirfinancial means, an even breakin the courtroom against giantcorporations and insurance com­panies. Were it not for the contin­gent fee. people of the middleclass or of low economic meanswould not be able to have theirday in court, a constitutional rightwhich corporations and insurancecompanies fight hard to eliminate.

Contingent fee practice has beenan essential ingredient in ourjustice system for more than 100years. It permits every American,regardless of wealth or socialstanding. the opportunity to pursuea valid claim against even themost powerful corporation or indi­vidual. In large measure. it hasmade our justice system the envyof the world. It breathes life intothe democratic ideals that no oneis above the law and everyonemust be accountable for hisor her behavior.

PAGE. SIX

Contingent Fees•••continued.

(Adapted from an Association of Trial Lawyers of America Publication)

Critics of the contingent fee con­tend that it encourages attorneysto take on nonmeritorioU5 cases.Simple common sense refutesthat claim. Economic disincentivealone precludes attorneys fromtaking a case where the plaintiffis not entitled to be compensatedfor injuries. When a plaintiff is notcompensated, the attorney is notcompensated. The fact that thefee depends on winning providesan incentive to screen out caseswith little legal merit. That incen­tive is lacking with an hourly fee.

A number of studies have alsorefuted the claim that contingentfees promote frivolous lawsuits.For example, a U.s. Department

of Health, Educa­tion and Welfare

Commission onMedical Mal­

practiceconcludedthat the

contingentfee does not

open the court­house doors toundeserving

plaintiffs: "Thecontingent fee

arrangement does notencourage lawyers to

accept nonmeritorious cases witha low probability of winning justbecause the possible recovery islarge." While the AMA has been aproponent of limiting the contin­gent fee, its own Special TaskForce on Professional Liability andInsurance concluded: 'Regulating(contingent fees) may not reducethe number or severity of suits."

Proponents of tort reform incor­rectly argue that the contingentfee increases litigation. In fact,there is no litigation explosiongenerally. The litigation thataccounts for caseload increaseswhen increases have occurred isnot litigation brought by plaintiffsusing contingent fees.

Personal injury lawsuits do not"clog" the courts. The real in-

crease in litigation has been frombusinesses suing businesses, notconsumers seeking compensationthrough personal injury litigation.Not only do businesses suingbusinesses comprise the majorityof cases filed in court, but thiscategory also experiences thegreatest increase in the numberof suits filed year after year.

According to statistics, there cer­tainly is not an explosion of per­sonal injury cases in state courts.The National Center for StateCourts reported that in 1992 only9 percent of the new cases filedin state courts were tort casesof any kind.

If contingent fees were elimi­nated, the fees charged toplaintiffs would not necessarilybe lowered under an hourlyagreement. Empirical evidenceconfirms that, averaging overcases won and lost, the effectivehourly earnings of attorneys paida contingent fee are similar to thehourly earnings of defense attor­neys paid by the hour. In addition,a contingent fee provides an in­ducement for an attorney to beefficient and expeditious. Thereis a powerful incentive to performwell whereas an hourly feearrangement can encouragedelay, inefficiency and unneces­sary action.

The contingent fee helps protectthe integrity of the civil justicesystem. It enables injured victimswith strong cases but little eco­nomic resources to proceedagainst far more powerful defen­dants. As 'keys to the court­house," the contingent fee systemprovides access to justice forall Americans.•

The right to be heard would be,;n many cases, of little avail

If It did not comprehendthe right to be heard

by counsel.- -George Sutherland.American Jurist, 1932

Taking...

Time to(areSearcy Denney Scarola Barnhart &.Shipley, P.A. works with a largenumber of community groups.One that we are especially proudto be associated with is theGuardian Ad Litem Program.

The State of Florida Guardian AdLitem Program recruits citizenswho are interested in working asadvocates for children caught inthe maze of Florida's social ser­vice and court systems. Teachers,retirees, housewives, businessmen and women, lawyers, bluecollar workers and others volun­teer their time and efforts to helpchildren in need.

Guardian Ad Litem Programshave been organized in each ofFlorida's twenty judicial circuits.Every circuit program has a direc­tor who overseas the volunteeractivities. Each program has atleast one attorney to providelegal advice. Several hundredFlorida attorneys volunteer count­less hours of free legal assistanceto th is program.

Thousands of Florida's confusedand distraught children who havesuffered painful and frighteningexperiences have been guidedalong a path to a safer andhealthier future by their GuardiansAd Litem and Pro Bono attorneys.

There are never enough volun­teers to make certain that everychild is represented. AdditionalGuardians Ad Litem and Pro Bonoattorneys are needed as more andmore children enter the system.

Won't you consider becoming oneof them? For statewide Infor­mation, call 904-922-5094,To volunteer in ralm BeachCounty, please call Lois Messerat 407-355-2773.•

PAGE SEVEN

JCAHO Releases Performance Reportsfor Accredited facilities

CONSUMERS SHOULDBE INTERESTEDBUT SKEPTICAL

(Excerpts reprinted FromPublic Citizen's Health ResearchGroup Health Letter)

joint Commission on Accredita­tion of Healthcare Organizations(jCAHO) released performancereports on hospitals and otherhealth facilities that participate inits voluntary accreditation pro­gram, The reports include ratings(between 0 and 100, 100 beinga perfect score) showing the facil­ity's overall compliance withjCAHO's accreditation standards.Also included are separate scoresin 28 performance areas relatedto patient care, medical staff,physical environment and safety,leadership and management, andspecific services like emergencycare, laboratories, andradiation oncology.

Since jCAHO surveys individualfacilities only once every threeyears, it wi II be the end of 1996before reports are available for all1 1,000 member organizations,which include hospitals, homecare agencies, mental healthcenters, nursing homes. andambulatory care clinics.

A Step Toward PublicAccountabilityGiven jCAHO's record of secrecyabout survey results, the new per­formance reports represent a steptoward greater public account­ability. But, jCAHO points out-­and we strongly agree--that thisinformation alone is not sufficientand offers no guarantees aboutthe quality of any provider's care.At best, the reports are a startingpoint for seeking further informa­tion about a facility's services.

Consumers Should GreetICAHO's Reports withHealthy SkepticismWhile the new disclosure policydoes add to a very limited poolof publicly available data, itshould be seen for what it largelyis, a public relations ploy. In fact,

PAGE EIGHT

access to and usefulness of theinformation are seriously com­promised by the followinganti-consumer policies:

• The performance reportscost $30 a piece.

• Facilities will be told theidentity of each personwho requests theirperformance reports.

Information on Facility Ratingsis Only as Good as theRatings ThemselvesA private organization primarilyfunded and controlled by theindustry it monitors, jCAHO issubject to a fundamental conflictof interest not shared by publicoversight agencies. As a matterof fact, jCAHO very rarely deniesor seriously restricts accreditationof any member facility, includingsome later found to have seriousdeficiencies. This tendency isrevealed in the new performancereports, which show that 94 per­cent of all hospitals receivedoverall scores between 80 and100, and none were ratedbelow 70.

Ratings for the 28 performanceareas are more useful than theoverall scores, showing greatervariation between facilities. How­ever, even here some scores

seem inflated compared to whatis known from previous years.Forexample, according to jCAHO'sstatistical summary of hospitalsurveys between 1987and 1989,

• 50 percent of all hospitalsfailed to adequately reviewwhether appropriate surgerywas prOVided or performedsafely and effectively.

• 43 percent of all hospitalsfailed to adequatelyevaluate the usageof drugs.

In contrast, the new performancereports for hospitals show that94 percent received scores be­tween 80 and 100 for 'operativeprocedures," and 92 percentreceived scores between 80 and100 for "medication use." Evenaccounting for changes in stan­dards since 1989, such largediscrepancies raise legitimatequestions as to the meaning ofwhat is being reported to thepublic today.

Public Disclosure by ICA.HOis Purely DiscretionaryWhile jCAHO may be moving to­ward greater openness, the factremains that its disclosure of in­formation to the public occurspurely at its whim. As a privateentity, jCAHO is not bound by-­and still does not observe--thestandards of accountabilityrequired of public agencies.The problem is that ICAHO playsa quasi-regulatory role, since thefederal government and moststates automatically acceptjCAHO accredited hospitals aseligible for Medicare and Medi­caid eligibility and state licensure.Yet, if ICAHO's new disclosurepolicy fails to meet the public'sneeds, the public will haveno remedy.

To order reports, call ICAHO'sCustomer Service Departmentat (708) 916-5800.•

After litigation extending over aperiod of five years, nearly ail ofthe firm's cases have been 5UC­

cessfuily concluded. The actualamounts of the settlements areconfidential..

Showa Denko's defense tacticsused early on in the litigation in­cluded a motion to dismiss thecases on grounds that the UnitedStates court system had no juris­diction over a Japanese companynot doing business in America.They argued since they were inJapan they were immune fromprosecution in the United States.Our courts found otherwise anddenied their motion to dismiss.The company also tried to claima statistical relationship betweenthe amount of product sold andthe number of those peoplestricken with the disease. Theirargument was that hundreds ofthousands consumed the productwhile only a few thousand con­tracted EMS. That argument wasalso unsuccessful in the courts.

ously injured victims of this crip­pli ng disorder. Cases were filedin Federal and State Courts. Hehandled cases as far away asCalifornia and Tennessee as wellas various jurisdictions through­out the State of Florida. PalmBeach Medical Consultants, Inc.was retained to provide informa­tion about EMS.

In the 1980's Showa Denko setout upon an aggressive plan tocorner the world market of 1.­tryptophan. By 1989, ShowaDenko held 60% of the world­wide market of this nutritionalsupplement. In 1989, ShowaDenko reported sales of all itsproducts at $3.5 billion andprofits of $223 miillon.

Searcy Denney Scarola Barnhart &Shipley formed its own litigationgroup, headed by partner, DavidKeiley, specificaily to handleI.-tryptophan cases. David Kelleyrepresented 26 of the more seri-

manufactured the I.-tryptophanat an accelerated rate. The sub­stance was no longer derivednaturaily from organic products,but instead synthesized throughbiochemical reactions.

In addition, Federal health investi­gators isolated a chemical com­pound which they believedtainted batches of the dietarysupplement either through thegenetic process by which it wasmanufactured or through poorfiltration. Changes in the manu­facturing process included chang­ing the filtration process to givethe product a whiter, cleanerappearance. Either the geneticengineered bacteria or the lackof filtration resulted in thecontamination.

Doctors and researchers initiailytraced the probiem of contami­nated I.-tryptophan to thatproduced by Showa Denko K.K.,Japan's third-largest petro­chemicai manufacturer. Thecompany had created a processof genetic engineering which

L-Tryptophan...Continued from Page One

supplied by protein in the diet,I.-tryptophan was not considereda drug. It had great appeal forhealth-conscious consumers whowished to avoid taking drugs fortheir ailments and was marketedas a miracle health food.

Millions of people had takenI.-tryptophan with positive results,but by the mid to late eighties,adverse symptoms began to ap­pear. At the time of the contami­nation, worldwide sales were esti­mated to exceed $ 100 million,with one-third of the market inthe United States.

The debilitating illness, caused bycontaminated I.-tryptophan, had awide range of ailments includingmany that are catastrophic.Patients reported extreme fatigue,great pain in muscles and joints,high fever, shortness of breath,hair loss, severe skin lesions andparalysis. Many suffered symp­toms so severe that they werehospitalized or could not work.

Doctors discovered unusual con­centrations of white blood cells inthe patients' muscle tissue. Over1,500 patients who consumedI.-tryptophan were diagnosedas having this potentiaily fatalautoimmune disorder Eosino­philia-Myaigia Syndrome (EMS).EMS causes respiratory andcardiac failure, muscle atrophy,neurological damage and skinthat turns so leathery that bloodvessels no longer are capable ofcarrying blood.

No cure has been found for EMS.The treatment consists mainly ofthe steroid prednisone which re­duces sweiling and some of thepain. The condition of a numberof the victims is deteriorating and27 of them have died. r---:-=--".-~--

SEARCYDENNEYSCAROLABARNHART

~SHIPLEY..

PAGE NINE

Announcing...

The Jewish Family &. Children's Service ofPalm Beach County, Inc. honored Searcy DenneyScarola Barnhart &. Shipley, P.A. as its 1995"Advocate of the Year." The award was presentedby Dale A. Konigburg, president of jF&.CS, toChris Searcy who accepted the award onbehalf of the law firm. I

Presenting Award: Honorable Harry Lee Anstead,justice of Supreme Court, Florida. Co-Receivers ofAward: joel Seidman and Jack Scaroia.

Jack Scarola was selected by the Legal Aid Societyof Palm Beach County, Inc. to be the recipient of the1994 Pro Bono Community Law Award. The awardwas presented at an annual event which was co­hosted by the Legal Aid Society PBC and the PalmBeach County Bar Association. I

Chris Searcy, president andpartner of Searcy DenneyScarola Barnhart &.Shipley, P.A., has beenselected to receive the 1995Stetson Lawyers AssociationMeritorious Service Award.The award is presented foroutstanding service anddedication to the legalprofession and to theStetson College of Law. I

Greg Barnhart spokeat the Academy of FloridaTrial Lawyers SpringAdvanced Trial SkillsSeminar in May. His topic:"Arguing Non-EconomicDamages (The Art ofPersuasion inExplaining Pain)". I

Para atender mejor a nuestrosclientes que hablan Espanol

hemos instalado unnumero de telefono 800

que sera contestado en Espanolpor nuestro personal.

1-800-220-7006

PAGE TEN

IN ORDER TOBETTER SERVE

OUR SPANISH-SPEAKINGCLIENTS, WE HAVE

INSTALLEDA TOLL-FREE NUMBER

THAT WILL BE ANSWEREDBY OUR

SPANISH-SPEAKINGPERSONNEL.

Is Law Reform Good for Consumers? (Excerpts reprinted fromConsumer Reports, May, 1995)

The fDA defense. Under pro­posed legislation, manufacturersof defective or unreasonably dan­gerous drugs and medical deviceswould be shielded from punitivedamages if their products hadbeen approved by the U.S.Food and Drug Administration.Though the FDA has been vigilantin protecting the American con­sumer's interests in recent years,the data it reviews before a drugor device is marketed doesn'talways show every problem.Some approved drugs anddevices ultimately have proveddangerous, such as the DalkonShield intrauterine device andVersed, a sedative.

The irony, of course, is that thevery political forces that wantdrug and medical-device makersoff the hook once their productsreceive FDA approval have alsobeen seeking to make it moredifficult for the agency to policethe marketplace. The likely resultif this legislation becomes lawwould be a double blow forAmerican consumers: weakeroversight by the FDA and littlelegal recourse if a drug ormedical device harms them.

Though the tort-reform debateappears to be about frivolouslawsuits, what it's really about iscorporate responsibility. In theend, the most important questionwill be who--if anyone-- can beheld accountable when Americanconsumers are killed, injured, ordefrauded through no fault oftheir own.•

Obviously, many injured con­sumers would not be willing toaccept the financial risk of goingto trial under such a rule. Onlythe very poor, who would havenothing to lose, and the very rich,who could afford to lose, wouldbe likely to press their cases.The huge majority of Americanswould, in effect. be gambling their

.m~lf"''14J;; life savings if they chose to pur­sue a case after being offered alow-ball settlement.

turers subsequently took safetymeasures to prevent additionallawsuits.

The cap on punitive damageswould, in effect, allow manufac­turers simply to budget for futurefines as a cost of doing business,significantly reducing the law'sprevious incentives for them tomake products safer.

Pain-and-sufferlng caps. Arelated provision in the bill thatpassed the House would cappain-and-suffering awards in law­suits involving doctors, hospitals,medical devices, and drugs at$250,000 --an amount thatwould vastly undercompensateconsumers injured by medicalnegligence or unreasonablydangerous drugs.

"Loser pays" provisions. In thename of discouraging frivolouslawsuits, Republican lawmakersinitially proposed a "loser pays"system that would have requiredthe losing party to pay the win­ner's legal fees. That provisionwas later modified to what couldbe called an "even if you win, youlose" provision. The modifiedversion that passed the House ofRepresentatives stipulates, forexample, that if an injured con­sumer chooses to go to trial ratherthan accept a settlement offer, heor she could be forced to pay thedefendant's attorney fees andcosts if the jury ultimately awardsa sum less than the settlementoffer.

As part of the Contract WithAmerica, Republican lawmakershave advanced a series of billsthat would cap punitive damages,discourage "frivolous· lawsuits,and protect drug companies fromsuits involving approved drugs.At first glance these seem likelaudable goals. But. the issue ismore complicated.

Congress is considering severallegislative proposals to changethe American civil justice system.In the area of product liability,many of the proposed changesunder consideration would tipthe scales of justice against con­sumers. Here are some ofthose proposals:

Punitive damage caps. A keyprovision of a tort-reform bill thatpassed the House of Representa­tives in March would cap punitivedamages at $250,000, or threetimes the amount awarded theplaintiff for economic injury,whichever is greater. (Economicinjury includes lost wages andmedical expenses.)

For all the fuss, such awards arevery rare. Nationwide. punitivedamages were awarded inproduct-liability cases only 355times during the 25-year periodfrom 1965 to I 990--or an aver­age of 14 a year. That's eventhough consumer products, notincluding automobiles, areresponsible for an estimated29,000 deaths and 30 millioninjuries each year. Nor areproduct-liability cases "cloggingthe courts: as some allege. Tortfilings represent only 9 percent ofthe courts' civil cases, and only 4percent of that number areproduct-liability cases.

Punitive damages are intended topunish egregious corporatewrongdoing and to deter furtherconsumer injuries. Indeed, thereis evidence that punitive dam­ages do make products safer: Innearly 80 percent of product­liability cases that resulted inpunitive damages, the manufac-

PAGE. E.LEVEN

9Z9£-lot'££ VGI}101.:1

H:JV]'i) W1\Id lSJM

9l9£ }l]MVl:lO ·O"d

Z 'ON '56 'lOA - SA3N~OilV ONV SIN311:> OII~Od3~ A1~31~vnb

9LO£·ON lIW};l]d

VaI};lOld'H:>V]Q W1Vd lS3M

OIVd"J9VISOd 'snUVlIlllnll

~Y.I.Our firm is currently handling cases againstnational stock brokerage houses involving:

• Stock broker fraud• "Churning" and other account abuses• CMO's, derivatives and other

mortgage backed securities

If you have a securities litigation matter youwould like us to review, we will prOVide aninitial consultation at no charge. Our goal isto help you understand your options.

SEARCY DENNEY SCAROLABARNHART AND SHIPLEY"

____~4ttorneys----­afLaw

407-686-6300

1-800-780-8607PAGE TWELVE

SEARCYDENNEYSCAROLABARNHART

~SHIPLEY:.~~-

PERSONAL INJURYAUTOMOBILE ACCIDENTS

PRODUCTS LIABILITYMEDICAL MALPRACTICE

WRONGfUL DEATHAIRLINE &. RAILROAD DISASTERS

COMMERCIAL LITIGATION

NIGHT &.. WEEKENDAVAILABILITY

t -800-780-8607EN ESPANOL: 1-800-220-7006