Subject: [NEXTEL-1] Cell phone suits targeting firms

From: Marcel <[email-masked]>
Date: Thu, 02 Jan 2003 14:57:20 -0500

Cell phone suits targeting firms

By Laura Parker, USA TODAY

McLEAN, Va. — As a 29-year-old technology lawyer on the rise, Jane
Wagner drove a silver Mercedes and billed clients for the time she talked to
them from her car. She routinely made as many as 40 cell phone calls a day.

On March 8, 2000, during a call she made at 10:36 p.m., she hit and killed a
15-year-old girl, Naeun Yoon, on a busy highway in Fairfax County, Va., just
outside Washington.

Now Yoon's parents have filed a civil suit against Wagner, who served a
one-year jail term on work release after pleading guilty to leaving the scene of
an accident. But in seeking $30 million in damages, Yoon's father, Young Ki
Yoon, also is suing Wagner's former employer, the law firm Cooley Godward,
based in San Francisco.

At the heart of the claim against the law firm are the cell phone calls that
Wagner made when she was working. The suit alleges that the firm is partly
liable for the accident because Wagner's job involved doing business — in
lawyers' parlance, amassing "billable hours" — by cell phone. Such calls, the suit says,
were done "with
the expectation and acquiescence of Cooley Godward and served as a direct benefit to ...
the law firm."

The case, scheduled for trial in September, is part of a growing number of lawsuits
against businesses
whose employees are involved in car accidents while talking on cell phones. The Wagner and
Cooley
Godward trial could have costly implications for businesses across the nation whose
productivity is tied to
the hours their employees spend on mobile phones, which have expanded the boundaries of
the modern
office.

"We are going to see more of these suits and see some significant verdicts in the next few
years," says
Paul Martinek, a lawyer and publisher of Lawyers Weekly USA, a legal journal that tracks
litigation
trends. "When you have somebody using the phone for work purposes, the deeper pocket is
always the
one (for victims) to go after. If you can prove they are using their phone for work
purposes, the employer
is vulnerable."

Martinek adds that such lawsuits can be especially potent because jurors are familiar with
the risks
presented by inattentive cell phone users on the road.

Such lawsuits against businesses began popping up in U.S. courts only recently, but
several companies
already have taken hits:

Smith Barney, an investment-banking firm, paid $500,000 to settle a suit brought by the
family of a
motorcyclist killed in an accident involving one of the firm's brokers who had been
talking on a cell
phone at the time.
The state of Hawaii agreed to pay $1.5 million to the family of a New Jersey man who was
walking
across a highway when he was struck by a car driven by a public school teacher who was
talking
on a cell phone.
An Arkansas lumber wholesaler, Dyke Industries, agreed to pay $16.2 million to a
78-year-old
woman who was severely disabled in a car accident involving one of its salesmen who was
talking
on his cell phone.

More than 128 million people use cell phones in the USA. A federal survey of motorists
last year found
that 54% have a cell phone with them when they drive. Of those, 73% said they talk while
driving.

Michael Haggard, a lawyer in Miami who represented the accident victim who successfully
sued Dyke
Industries, seemed to symbolize the popularity of cell phones among drivers when he was
interviewed by
cell phone for this story — while driving in his car. Haggard said that he was wearing an
earpiece
attachment to his phone, which he said left both of his hands free to hold the steering
wheel.

The cell phone has become an easy target for personal injury lawyers because phone records

documenting cell phone airtime can provide proof that a driver was on the phone at the
time of an
accident. Once that is established, the lawyers can set out to prove that the driver might
have been
distracted and therefore at fault.

In the Dyke Industries case, Lazaro Leiva, a salesman for the lumber company, was talking
on his cell
phone while driving his Ford Explorer to a sales appointment. At an intersection in
Hialeah, Fla., he
collided with a Buick that was completing a left turn. Alicia Bustos, 78, was injured so
severely that she
later required a ventilator to breathe. She has since died.

The jury in that case awarded $21 million to Bustos. The case was settled for $16.2
million — the
combined limit of Dyke Industries' and Lazaro's insurance policies.

Still, the issue of businesses' liability on employees' use of cell phones is not
clear-cut. In a Minnesota
case, for example, a jury found that a hospital was not liable in an automobile accident
caused by a nurse
who reached for a cell phone to take a call from her daughter.

Likewise, in the suit against Wagner and her law firm, it might not be easy for the Yoon
family's attorneys
to show that Wagner's firm should share responsibility for the fatal accident. Already,
the issue of whether
Cooley Godward had a policy about cell phone use has been dropped from the case in a
pretrial ruling.

But whether Wagner was working when she was on the phone and hit Yoon remains a key issue.
Cooley
Godward contends that she was not. The accident occurred after business hours, the law
firm says. The
person with whom Wagner was speaking on the cell phone, a former lawyer at the firm, said
in a
deposition that the two were not discussing business for the firm.

"She was off duty," says John McGavin, a lawyer defending Cooley Godward in the suit.

Attorneys for the victim argue that Wagner was on a business call when Yoon was struck.

Wagner did not stop after the accident, even though her Mercedes had struck Yoon with
enough force to
break a headlight and shatter the corner of its windshield. Wagner claimed at the time
that she thought she
had hit a deer.

After pleading guilty to leaving the scene of an accident, Wagner served 12 months of a
five-year
sentence in a work-release program at the Fairfax County jail. She lost her
$165,000-a-year job and her
law license. She then moved to Illinois, where she grew up.

In her deposition in the civil suit, Wagner used her right to remain silent under the
Fifth Amendment when
asked about the events of that night. Her attorney, August Steinhilber, said it would be
inappropriate to
comment.

The night Yoon was killed, she was riding home with her mother and brother in the family's
van. The
siblings began arguing. When their mother pulled over to try to make peace, both teenagers
jumped out of
the van and began walking in opposite directions on the side of the highway. A few moments
later, Yoon
was struck by Wagner's car and propelled over a guardrail.

At her sentencing, Wagner provided the court with a series of documents to try to explain
how she could
have hit a pedestrian without knowing it. They included documents that became ammunition
for the Yoon
family's attorneys in the civil lawsuit.

To try to explain why she was distracted as she drove, Wagner provided her cell phone
records as well
as the 1997 New England Journal of Medicine study about cell phone use in cars.

The study, still one of the most comprehensive examinations of cell phone use, found that
the risk of
accidents is four times higher when a motorist is using a cell phone.

http://www.usatoday.com/tech/news/techpolicy/2002-12-26-phone-suits_x.htm

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