Archive for May, 2008
1Minnesota Wronful Death Lawsuit brought against county
31 May 2008
Billy Gensmer blames Winona County for his parents’ deaths and is suing for more than $100,000.
Victor and Joyce Gensmer died Aug. 19, 2007, when their Jeep plunged into a 30-foot, flood-ravaged washout on County Road 17, and their son said the county and other agencies responding to the flood should have warned them of the hazardous road less than a mile away from their home.
Each of the defendants — Winona County, the Winona County Sheriff’s Department, the Winona County Highway Department and Highway Maintenance Superintendent Kevin Lindquist — denied negligence or legal responsibility in the Gensmers deaths, citing the flood’s record rainfall and “hundreds of 911 calls that night.”
The Gensmers tumbled into a “lethal and cavernous hole” created by raging floodwaters Aug. 19, 2007, on County Road 17 near their home in Witoka, Minn., the lawsuit claims. They were in a Jeep Cherokee, driving Joyce to work in Winona when they fell into the hole. They died at the scene.
According to witnesses, the highway washed out about 3 a.m. and a driver called 911 to report the gap. Another driver drove into the hole but survived the fall about two hours later. He, too, called 911. By 6:20 a.m., the road remained open and the Gensmers “unsuspectingly” drove in and died, the suit states.
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2Family of officer seeks $8.5 million
31 May 2008
The family of a Douglas County sheriff’s deputy who was killed in a crash a year ago this month is seeking $8.5 million in damages from the state, saying officials failed to make sure the roadway was safe.
The claim, filed Friday with the State Claims Board on behalf of Shad Nicks’ estate, says the crash occurred in a poorly safeguarded construction zone.
Nicks, 36, was riding a motorcycle on U.S. Highway 6 near Giles Road when he was hit by a car driven by Heather Henning, 28. Henning’s car had crossed the center line, authorities say.
The claim accuses Nebraska roads officials of not ensuring the construction zone was safe for motorists in terms of design, speed of traffic, signage, traffic flow and maintenance.
Dale Butler, district operations maintenance manager for the Nebraska Department of Roads, said state officials had no comment.
Nicks’ family includes his wife, Becky Nicks, and three children: Brandon, 7; Ryan, 4; and Allyson, 1. They are seeking compensation for medical and funeral expenses, loss of future earnings and the loss of companionship he would have provided, said Clete Blakeman, an attorney representing the Nicks family.
Blakeman said a national roads expert from Kansas viewed the site and determined it was unsafe.
“It’s not something that I think is wrong, or that his spouse thinks is wrong,” Blakeman said. “It’s something that a national expert thinks is wrong.”
The State Claims Board conducts investigations and hearings on any liability or contract cases filed against state agencies and decides whether the state was at fault. It can then make recommendations to the Legislature for payment of damages.
If the board makes no decision within six months of the filing of a claim, the claimant can take the issue to district court, which Blakeman said he would do.
Henning was sentenced earlier this year to 3½ to five years in prison after pleading no contest to felony motor vehicle homicide and misdemeanor reckless driving. She has appealed the sentence as excessive and is asking that she instead be placed on probation.
In February, Henning posted $30,000 cash to be released from the Nebraska Correctional Center for Women in York while waiting on the appeal.
Blakeman said the family has filed a wrongful death lawsuit against Henning that is in the process of being settled. Her insurance policy offers a maximum $25,000 payout, meaning that is the most Becky Nicks and her children will receive from the settlement, Blakeman said.
“The family is feeling like it’s one thing after another against them,” Blakeman said. “It’s tough.”
3Williston doctor cleared in lawsuit
29 May 2008
Williston, N.D. (AP) A Williston doctor has been cleared in a civil defamation lawsuit filed by another doctor who assisted him in a kidney removal operation four years ago.
A jury cleared Salem Shahin of the allegations by Inder Khokha.
The patient involved in the 2004 operation later died. Her son filed a North Dakota wrongful death lawsuit against the two doctors. Shahin settled out of court, but the lawsuit continued against Khokha.
Khokha alleged in his civil defamation lawsuit that Shahin gave family members of the patient who died inaccurate information about his work during the operation. The jury disagreed.
The case of the operation led to a divided state Supreme Court ruling last year that Khokha could not use North Dakota’s “good Samaritan” law to ward off the wrongful death lawsuit. Trial is set for August.
4Suit filed in car crash death…
29 May 2008
Waukesha - A wrongful death and personal injury lawsuit was filed Wednesday against Mark Benson, the former physician charged with homicide by intoxicated use of a vehicle in the death of popular teacher and Associate Principal Jennifer Bukosky, her unborn child and her 10-year-old daughter.
In filing the lawsuit on behalf of the victims’ families a week and a half after the fatal crash, lawyers said they acted quickly because they feared Benson would hide or transfer his assets.
In the lawsuit, they are asking a Waukesha County circuit judge to freeze Benson’s assets, contending the action is necessary because a police officer overheard Benson tell his wife he would shift assets out of his name.
That phone conversation occurred, according to court records, on April 25 after Benson was taken into custody following the crash.
Judge Kathryn W. Foster is scheduled to consider at 1:30 p.m. Friday the request for a restraining order and temporary injunction that would prevent Benson from transferring his assets.
“We’ve got a defendant who’s talking about divesting himself of his assets. We thought we should move fast,” said attorney Robert Habush, whose law firm, Habush Habush & Rottier, filed the lawsuit for the families of the victims. ” . . . He’s worried about a judgment in excess of his insurance coverage,” said Habush.
The criminal complaint filed against Benson, 55, of Summit, says that Benson told his wife he would “sign over all his property to them” and “get a public defender.”
The Wisconsin Wrongful Death lawsuit does not contain information regarding the value of Benson’s assets.
But Waukesha County property tax records show Benson’s home on Lower Nashotah Lake is assessed at $866,100, about 68% of its actual value.
The lawsuit seeks an unspecified amount of money for the deaths of Jennifer Bukosky, her unborn daughter, Sophia, and for the injury of Deborah Gibbs, 10. It was filed by Michael J. Bukosky, Jennifer’s husband, and Deborah Gibbs and her parents, Michelle A. Gibbs and Daniel B. Gibbs.
The suit says Benson was negligent because he was operating under the influence of intoxicants and traveling at a high speed when his SUV slammed into the back of Bukosky’s car.
According to police and court records, Bukosky’s vehicle was stopped about 3:30 p.m. April 25 at a traffic signal in the northbound lane of Highway 67 at Pabst Road in Oconomowoc when it was struck by Benson’s sport utility vehicle.
Bukosky, 39, of the Town of Oconomowoc, was pronounced dead at the scene. Her 10-year-old daughter, Courtney Bella, died April 26 from her injuries. Bukosky’s son, Zachary Bella, 12, was released from a hospital after being treated for his injuries.
Deborah Gibbs, of Summit, was seriously injured in the crash and recently was released from Children’s Hospital of Wisconsin.
Insurers named, too
In addition to Benson, named as defendants in the suit are Progressive Classic Insurance Co. and Navigators Insurance Co., which according to the lawsuit, insured Benson’s vehicles.
Benson’s attorney in the criminal case, Dean A. Strang, said it is likely that one or both of the insurers will assign attorneys to handle the civil suit and a civil lawyer from Strang’s office also will be involved.
Benson is scheduled for a preliminary hearing on the criminal charges on May 16. He is being held on $1 million bail.
According to the criminal complaint, Benson was under the influence of oxycodone, a painkiller; Ambien, a sleep aid; and Xanax, used to treat anxiety. He had consumed one oxycodone tablet and four or five tablets each of Ambien and Xanax on Friday morning, the complaint states.
Just two days before the accident, Benson had pleaded guilty to a 2007 drunken driving offense, his third, in Brookfield. He was ordered April 23 not to drive and was sentenced to 75 days in the county’s work release jail, but was given until May 9 to report.
5Should Janklow pay settlement?
28 May 2008
South Dakota’s four-term governor and former congressman, Bill Janklow was back in the spotlight last week, attracting the ire of angry taxpayers with the news of a $1 million settlement in the wrongful death of Randy Scott.
That’s because U.S. taxpayers, not Bill Janklow, were on the hook for the civil damages awarded to the family of the late motorcyclist.
Scott was killed Aug. 16, 2003, when Janklow drove through a stop sign on a rural highway in eastern South Dakota and collided with Scott’s Harley-Davidson motorcycle. That collision led to Janklow’s conviction for second-degree manslaughter and cost him his seat in Congress. He served 100 days in jail, paid a $5,000 fine and lost his law license temporarily.
But he avoided a civil lawsuit when the U.S. attorney in Minnesota concluded Janklow was on official business at the time of the crash, which made the federal government responsible for financial damages because he was performing his duties as a government worker. The Scott family had wanted to sue Jank-low personally, which would have allowed them to pursue punitive damages, something that is not allowed under the Federal Tort Claims Act.
6RRMC Faces 3rd Wrongful Death Suit
28 May 2008
Rutland, Vermont - May 28, 2008
For the third time this year, a wrongful death lawsuit has been filed against Rutland Regional Medical Center.
The family of 68-year-old Robert Forrest is suing the medical center for $4 million. The lawsuit alleges the hospital prescribed him five times the appropriate dosage of insulin. A death certificate confirmed the man from Brandon injected the wrong amount of insulin.
The other lawsuits include a patient who fell out of bed and died, and a man who was allegedly given too much medicine after a car accident.
7Wrongful-Death lawsuit filed…
27 May 2008
EVANSVILLE, Ind. (AP) — The family of a man who plunged more than 500 feet in a coal mine’s air shaft filed a wrongful-death lawsuit Thursday against a company he helped found that was building the shaft.
The lawsuit alleges Frontier-Kemper Constructors Inc. was negligent in providing safety measures to Daniel McFadden, 66, and two other men who fell from a construction bucket during an August tour of the mining shaft.
The complaint says Frontier-Kemper failed to provide safety belts or harnesses as fall protection, and that a 20-foot nylon sling and shackle attached to the bottom of the bucket should have been removed when the three men entered the bucket to be lowered. An employee who was supposed to watch the bucket also left to do other work when the bucket was lowered, the lawsuit states.
Attorneys for McFadden’s wife, Sandra Lee McFadden, filed the lawsuit in U.S. District Court. It seeks $9.5 million in damages, as well as compensation for funeral expenses and lost income.
George Zugel, corporate safety director for Evansville-based Frontier-Kemper, said he was unaware of the lawsuit and declined comment.
McFadden, of Greybull, Wyo., was visiting the mining site near Princeton, about 30 miles north of Evansville, as part of a 30th anniversary celebration of the merger that formed the company. McFadden founded Frontier Constructors in 1965, and the company merged with Kemper Constructors in 1977.
Jarred Ashmore, 23, of Henderson, Ky., and Christopher Todd Richardson, 38, of Cedar Bluff, Va., also died in the fall.
8Alamogordo doctor will appeal…
26 May 2008
The Associated Press
Article Launched: 05/25/2008 02:56:24 PM MDT
ALAMOGORDO, N.M.—An attorney for an Alamogordo doctor says he’ll appeal a wrongful death verdict and $6 million in punitive damages to be paid to the family of the patient who died.A Los Lunas jury convicted Dr. Donald Ham of the wrongful death of a patient.
The jury awarded more than $6 million in punitive damages to the family of 72-year-old Martha Cardon, who died in 2004 after Ham performed cataract surgery on her.
Ham is responsible for half of the damages, while his practice, the Alamogordo Eye Clinic, must pay the other half.
Lynn Sharp, Ham’s attorney, said the jury was confused when it awarded punitive damages.
“The award for punitive damages was the result of jury confusion about punitive damages, and was inconsistent with the small award for compensatory damages,” Sharp said. “The award for punitive damages will likely be stricken and eliminated in its entirety by the court.”
Ham has practiced in Alamogordo for 31 years and has performed over 14,000 of these cataract surgeries, Sharp said.
Sharp said there will be an appeal of the verdict, and he indicated his plans include filing motions in the case for a new trial or asking to strike or reduce the punitive award.
