Haimes and Vandervender1

Haimes and Vandervender

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.