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/raid1/www/Hosts/bankrupt/CAR_Public/010205.MBX C L A S S A C T I O N R E P O R T E R Monday, February 5, 2001, Vol. 3, No. 25 Headlines ADAPTEC INC: Contests Securities Suit in CA Re April 1997 to Jan. 1998 ALLEGHENY COUNTY: Judge Rejects Murphy's Bif for Land Value Reassessment ENVIROCARE: Settles Antitrust Dispute in TX, Seeks Utah Permit Amendment ESSO: Fed Ct Postpones Suit Seeking More Than $1 Bil over Longford Blast FIDELITY NATIONAL: Appeals Court Decides Formula for Class Action Fees GENERAL MOTORS: Judge Hears Arguments in UAW Workers' Suit v. Union & Co HAYT, HAYT: Law Firms Issue Notice of Debt Collection Case & Settlement HEALTHCARE RECOVERIES: Agrees to Settle Lawsuit Re Subrogation Recovery HEWLETT-PACKARD: Challenges Cert. of Lawsuit over Replacement Cartridges HIP IMPLANT: Ruling on Cert. in Sulzer Recall Case Expected in 2 Mths. HOLOCAUST VICTIMS: Ct Raises Concerns Over Pact and Attorney's Fees KANSAS GAS: Sued over Damages for Gas Leaks & Explosions in Hutchison MICHIGAN: Appeals against Ct of Claims Ruling over Single Business Tax MICHIGAN: Lawsuit over Funding of Court Operations Pending Certification OREGON: 9th Cir Overrules Dismissal of Inmates’ Case Re Experiments OREGON: Dept of Corrections Sued over Spills from Dry-Cleaning Plant OREGON: Expects to Settle Inmates’ Lawsuit for Medical Care OREGON: Sp Ct Rules in Favor of Managerial Employees Suit for OT Pay PASMINCO LTD: Smelter Awarded Legal Cost in Victoris Supreme Court POSTAL SERVICE: Homeless Seattle Residents Seek Better Mail Service SCHULER HOLDINGS: Settles Building Defects Suit; Remediation Nears End STRIP SEARCH: 82-Yr-Old Cop's Mom Who Played Radio Loudly Is Plaintiff TAINTED WATER: Walkerton E. Coli Victims Urged to Accept Deal VIRTUA HEALTH: NJ Suit Alleges Medical Equipment Not Sterilized ********* ADAPTEC INC: Contests Securities Suit in CA Re April 1997 to Jan. 1998 ---------------------------------------------------------------------- A class action lawsuit is pending in the United States District Court for the Northern District of California against the Company and certain of its officers and directors. The class action lawsuit alleges that the Company made false and misleading statements at various times during the period between April 1997 and January 1998 in violation of federal securities laws. The Company's motion to dismiss the complaint was granted in April 2000. The plaintiffs filed an amended complaint in July 2000. In October 2000, the Company filed a motion to dismiss the amended complaint. The Company believes the class action lawsuit is without merit and intends to defend itself vigorously. ALLEGHENY COUNTY: Judge Rejects Murphy's Bif for Land Value Reassessment ------------------------------------------------------------------------ A Common Pleas judge has rejected Mayor Tom Murphy's 11th-hour bid to readjust all residential land values in the city, saying the solution for reassessment-related woes rested with politicians, not the courts. In a 16-page opinion and court order, Judge R. Stanton Wettick Jr. also rebuffed Murphy's request to force Allegheny County to essentially reassess all land in the city this year to correct mistakes the mayor says were made by revaluation contractor Sabre Systems and Service. Wettick's rulings probably won't end Murphy's attempts to overturn the countywide reassessment, which he believes is fundamentally flawed. On January 31, the mayor told City Council that he would lead a class-action lawsuit challenging property values if Wettick ruled against him. Asked about the lawsuit last night, Murphy spokesman Craig Kwiecinski said, "We are considering all of our options." Kwiecinski said Wettick left the door open to "future action." At a press conference 90 minutes after Wettick released his decision, county Chief Executive Jim Roddey urged Murphy to abandon any more litigation and focus instead on correcting the city's "archaic" two-tier tax system, which taxes land at six times the rate of buildings. He said that "is really the cause of the problem." "I would hope that the city now would get on with the business of fixing their own problem," he said. A lawsuit, Roddey said, would be a "continued waste of the taxpayers' money." "To continue to pursue this with the same arguments over and over ... without any different information is really irresponsible," he said. "I think it's beginning to look more and more like a political exercise than an exercise in trying to solve a problem." Kwiecinski countered that the two-tier system was still the "fairest method for taxpayers when the county assessment system is done fairly and accurately. "I think it's clear that the mayor's objective throughout this process ... is to ensure that we have a fair county assessment system and that the outcry in the community that we've heard does not indicate that residents share Mr. Roddey's view." Murphy has been leading the charge against Sabre since early January, when property owners in some city neighborhoods began complaining about big increases in their land values. Murphy and City Council attacked the assessments, claiming that they were excessive or wildly divergent from property to property. Murphy has since proposed modified two-tier rates to ease the impact of land value increases, while his challenger in the mayor's race, council President Bob O'Connor, has offered a single tax rate on the overall property value. In his petition for emergency relief, Murphy had asked Wettick to assess all residential land in the city at a flat 15 percent of the total market value as a temporary measure in 2001 to give the county time to correct reassessment mistakes. In his opinion, Wettick said there was another way to provide such relief -- by changing the city's tax rates, just as council is considering. He said that under law, courts are not allowed to make findings on the basis of "anecdotal evidence," such as property owner testimony. However, such evidence, he said, frequently is used as the basis for legislative action. "Consequently, while I cannot consider this anecdotal evidence, the mayor of the City of Pittsburgh and the Pittsburgh City Council can consider such evidence in deciding whether adjustments should be made to the current tax ratios under which land will be taxed at 31.37 mills and buildings will be taxed at 5.44 mills," he wrote. "In other words, if the taxing body, on the basis of this anecdotal evidence, does not have confidence in Sabre Systems' breakdown of total value between land and buildings, it has the option of abolishing or modifying the present system of taxation." He also said there was "no legal justification" for the relief proposed by the city, particularly since tax bills must go out within two weeks, long before the city could produce the kind of study required for court action. Furthermore, Wettick said that the relief Murphy proposed -- assessing the land of all residential properties at a flat 15 percent -- was, in essence, "a request for a single tax rate for residential property" while keeping commercial properties at the current two-tiered rates. That probably is illegal, said Bert Goodman, an assessment attorney. A system that taxes residential properties in a different manner than commercial properties would be unconstitutional in Pennsylvania, he said. Wettick did not make a judgment one way or the other, but he noted that if the law permits such a system, the city does not need his approval to implement it. "If, on the other hand, the law requires the city to use the same method of taxation for commercial and residential property, I have no authority to set aside this uniformity requirement" and assess all land at 15 percent of the overall market value, he said. In rejecting Murphy's plea for what amounts to a second reassessment of land, Wettick said the city first would have to present a "prima facie" case, based on a comprehensive study, that the system is flawed. He said the city has the right to return to court at any time if its own study supports that contention. The city has said such a study could take months. While not ruling out mistakes, the county and Sabre have defended the overall accuracy of reassessed values in the city. The county and Roddey in his statements last night, have cited as evidence to support the work an independent audit that gave Sabre high marks for accuracy. Roddey said that people who believe their property values are unfair should file appeals. He said he believes the majority of properties in the county have been assessed correctly. (Pittsburgh Post-Gazette, February 2, 2001) ENVIROCARE: Settles Antitrust Dispute in TX, Seeks Utah Permit Amendment ------------------------------------------------------------------------ Envirocare has applied to amend its state permit for storing class A low-level radioactive waste. If approved, Envirocare would be able to begin accepting class A waste that is prepackaged in containers. The stuff is more concentrated in radioactive materials than the loose waste it disposes at the site 80 miles west of Salt Lake City. Envirocare would use a portion of the landfill that is already taking class A waste. In another development, Envirocare announced it is quitting its existing operations and expansion plans in West Texas. The move is part of a settlement by Envirocare and Waste Control Specialists, a Texas waste company that filed a billion-dollar antitrust lawsuit against Envirocare in 1997. Neither side would discuss terms of the settlement, but Envirocare president Charles Judd told the Odessa Texas American that his company would sell its two West Texas facilities. One was proposed as a long-term nuclear waste storage facility, and the other as a disposal site that included radioactive and hazardous wastes. The Permit Amendment Envirocare Is Seeking in Utah The amendment differs from Envirocare's controversial class B and C waste proposal. To accept even hotter waste, Envirocare must get a new license to open a new landfill at its current Tooele County site so it can dispose of containers of waste in classes A, B and C. By using the amendment to piggyback on its existing license for class A waste, the company can begin part of the expansion it is seeking with its new license application. Of the 400,000 cubic feet that Envirocare hopes to dispose under its new license application, 380,000 cubic feet is the class A waste Envirocare can begin putting into its existing landfill if the amendment is approved. A legislative budget committee has approved the state Department of Environmental Quality's plans to have four people oversee the expanded Class-A facility and to levy fees on those who send waste to the Utah facility, such as medical-waste disposal companies. Since the proposed amendment is considered an extension of Envirocare's current business, it only will require a limited regulatory review, rather than the approval by regulators, the Legislature and the governor. A hearing was conducted on February 1 on the Class B-C proposal. "The proposal is for a dump site, a truly hazardous one," said Anne Sward Hansen of Citizens Against Radioactive Waste, adding that four out of five Utah residents surveyed oppose the new license. Jay Elkins, a Tooele County resident, represented supporters. "I want this board to know I'm all for this license," he said, declaring the landfill safe and well-run. Bill Sinclair, director of the radiation division, already has given tentative approval to Envirocare's plans to take on the hotter waste at the facility. The class B and C waste would be hundreds - and sometimes thousands of times more contaminated than material currently disposed at Envirocare. Opponents say the expansion puts Utah and Envirocare workers at greater risk. Supporters say Envirocare's plans offer a way to safely dispose of the contaminated wastes that include old smoke detectors, medical treatment waste and medical research waste as well as nuclear plant refuse. "These wastes are a fact of today's life," Envirocare radiation officer Art Palmer told the hearing. "We have them on our hands. Our real challenge is ensuring that they are cared for safely." (The Associated Press, February 2, 2001) ESSO: Fed Ct Postpones Suit Seeking More Than $1 Bil over Longford Blast ------------------------------------------------------------------------ The Federal Court agreed on February 2 to postpone a class action expected to claim more than $1 billion damages against Esso, after a fire and explosion at its Longford gas plant more than two years ago. Esso spokesman Nick Thomas said that the court had agreed to vacate the start date of the civil action until a criminal case was completed. The prosecution under the Occupational Health and Safety Act had already begun in the Victorian Supreme Court with preliminary matters being dealt with. The class action was due to be heard in about a month. Mr Thomas said the court acknowledged that it was impractical, and potentially prejudicial, for both cases to possibly be heard concurrently. The explosion at the Longford gas plant, in south-west Victoria, on September 25, 1998, claimed two lives and deprived Victorian households and businesses of gas for two weeks. Insurance companies along with businesses, consumers and stood down workers are seeking compensation for the disruption. A royal commission into the disaster found Esso was largely to blame. (AAP Newsfeed, February 2, 2001) FIDELITY NATIONAL: Appeals Court Decides Formula for Class Action Fees ---------------------------------------------------------------------- A Court of Appeals ruling answers a question of first impression in Georgia on how lawyers' fees must be calculated once class action lawsuits have settled. The panel reviewed three methods of awarding fees in class actions and concluded that judges should use the "percentage of the fund" approach. That method requires a judge to base the fee award on part of the total settlement, with an explanation of why a specific percentage was selected. In finding that the percentage of the fund method was "most equitable, sensible, and fair," the court reviewed two other methods that are sometimes used. Friedrich v. Fidelity National Bank, No. A00A1970 (Ct. App. Ga. Jan. 29, 2001). Under the "lodestar" approach, the number of hours worked is multiplied by a reasonable hourly rate. "Lodestar plus" adds a multiplier to the lodestar amount to compensate lawyers for the risk involved in bringing a contingent fee case. While the ruling is good news for some plaintiffs lawyers, it may be bad news for their class clients, says Alston & Bird partner Peter Q. Bassett. "The ruling is a big plus for plaintiffs lawyers who have good cases, and by good cases I mean cases of easily established or admitted liability. They will always prefer a percentage of the fund in those cases," Bassett says. "The ruling may be bad for class members, because the way these cases settle is that there is a fixed amount of money in the common fund," Bassett says. Every dollar that goes to the lawyers comes out of that fund, he says. Bassett, who has no stake in this particular case, handles securities class actions, shareholder derivative suits and class action defense. The fee award at issue in Friedrich arises out of a class action suit brought in Fulton County Superior Court concerning a failed securities offering. The Automobile Insurance Premiums Trust was formed to provide loans to finance companies, which then provided financing to entities wishing to finance the cost of their insurance premiums. The complaint alleged, among other things, that Fidelity National Bank, as a trustee, breached the trust agreement. Ultimately the defendant agreed to pay $500,000 to the class. After Superior Court Judge Bensonetta Tipton Lane approved the settlement, class counsel sought $ 125,169 in fees, representing 25 percent of the settlement amount plus interest. But Lane awarded just $81,982 in attorneys fees. In her order, Lane stated that counsel had submitted records showing the number of hours spent on the case and the rates charged totaled $92,198. Lane said she deducted $7,278 in "billings that seemed tangentially connected to this case or excessive in other ways." Bassett says lawyers rarely appeal a judge's fee award, but he isn't surprised that the lawyers did here, since the final amount works out to less than what the lawyers claimed was the lodestar amount-fees times reasonable hours worked. "The plaintiffs lawyers got the worst possible result-lodestar minus," Bassett says. "I've never heard of lodestar minus." But, Bassett says, the judge was probably trying to maximize recovery for the class and was likely motivated by the principals that underlie class actions. Charles C. Murphy Jr. and Patricia A. Chandler of Atlanta's Vaughan & Murphy represented the appellant. James T. White of Stites & Harbison in Atlanta represented the appellee. Malaria Victim Wins A Georgia man who contracted malaria while working in Central America is covered under the Workers' Compensation Act, the Court of Appeals ruled. The decision reverses a Ware County Superior Court decision that the man failed to prove his illness was unusual, a requirement for receiving benefits. The Georgia Code provides that to receive workers' comp, a person must show that an illness "is not an ordinary disease of life to which the general public is exposed." The facts offered by the Court of Appeals' are that Randall S. McCarty, an employee of Delta Pride, drove a van belonging to the company from Georgia to Belize, then remained there for six weeks to install irrigation pipes and equipment on a banana plantation. While in Belize, McCarty began to experience fever, chills, diarrhea and a lower backache-all telltale signs of the sometimes fatal malaria. After returning to Georgia, McCarty was hospitalized. When McCarty, represented by Thomas M. Hackel of Hackel & Hackel in Waycross, sought benefits, Delta Pride refused. Ultimately, the State Board of Workers' Compensation ruled that the requirement that covered diseases must not be "ordinary disease(s) of life to which the general public is exposed" logically means ordinary diseases that might be contracted in Georgia. Delta Pride appealed the ruling to the Superior Court. In ruling that McCarty wasn't covered, Ware County Superior Court Judge Francis Houston relied on the acknowledgement of McCarty's physician that everyone in Belize is exposed equally to malaria, whether they're at work or not. Houston also noted that McCarty had agreed that just about everyone in Belize gets the disease. But the Court of Appeals ruled the Superior Court exceeded its authority by substituting its judgment for that of the Workers' Compensation Board, represented by Douglas L. Gibson of Gibson & Spivey in Waycross. McCarty v. Delta Pride, No. A00A2157 (Ct. App. Ga. Jan. 30, 2001). Roadblock Constitutional The Court of Appeals has reversed a DeKalb County Superior Court ruling that found a police roadblock unreasonable. In December 1997, DeKalb County police established a roadblock on Peachtree Road. Police set up the stop to make license and insurance checks, and to snag drunk drivers. An officer stopped Stuart Sherrill as part of the block. Sherrill immediately showed his license and proof of insurance, and there was no evidence that he'd been driving dangerously. Nevertheless, the officer noticed what he believed to be the odor of alcohol on Sherrill's breath and asked him where he was coming from. When Sherrill replied that he'd been at a bar, the officer asked if he would consent to a field sobriety test. Sherrill was arrested following the test. DeKalb County Superior Court Judge Denise Majette suppressed all evidence stemming from Sherrill's stop, finding that the implied consent notice required under Georgia law was unconstitutional. O.C.G.A. '40-5-67 requires, in part, that when chemical tests are requested, the arresting officer must read a statement to the person being detained that provides certain information about the consequences of submitting to the test. Majette also found that the stop was unreasonable under the circumstances. In reversing Majette's ruling the panel stated that the Georgia Supreme Court had previously reviewed Georgia's implied consent law and found it to be constitutional. It also explained that in examining the appropriateness of a roadblock, the issue is not whether probable cause existed to stop a particular vehicle but rather whether the roadblock itself was appropriate. State v. Sherrill, No. A00A2063 (Ct. App. Ga. Jan. 29, 2001). (Fulton County Daily Report, February 2, 2001) GENERAL MOTORS: Judge Hears Arguments in UAW Workers' Suit v. Union & Co ------------------------------------------------------------------------ A federal judge is to hear arguments on February 2 in Flint on whether a high-profile lawsuit filed by 142 UAW workers against their union and General Motors Corp. should proceed. A decision to let the class action proceed would clear the way for the workers' attorneys to depose top GM and UAW officials and demand access to internal company and union documents. The $ 550-million lawsuit, which piggybacks on a federal criminal investigation, charges that top UAW and GM officials prolonged by two months a 1997 strike at GM's Pontiac Truck and Bus plant while bargaining bogus overtime payments and jobs for union officials' relatives. The strike lasted 87 days and cost the average worker $ 10,000 to $ 20,000, says the suit filed in August. The U.S. Department of Labor and the FBI have investigated allegations of improper payouts of more than $ 200,000 and of nepotism at UAW Local 594 in Pontiac. Their findings have led to an investigation by a grand jury in Detroit. Grand jury testimony typically signals that investigators might seek indictments or criminal charges. Despite the criminal investigation into charges mirroring those in the civil lawsuit, GM says it is confident the suit will be dismissed. The automaker maintains that such labor disputes are outside government regulation or limited to review by the National Labor Relations Board. "Our position is that the courtroom is not the forum to discuss differences with how labor negotiations went. Employers and unions are free to modify their collective-bargaining agreements," said Andrew Kramer, attorney with Jones, Day, Reavis & Pogue, the Washington D.C. law firm representing GM in the suit. "They've also got several conflicting arguments in their lawsuit. They say GM at first wouldn't hire these union officials' kids, which delayed the strike settlement. Does that mean if GM agreed to hire them right away, then they'd have no lawsuit? Then they'd have GM hiring people that their lawsuit says are unqualified," Kramer said. The UAW and Local 594 maintain that the suit is time-barred, noting it was filed more than three years after the strike was settled. They say federal labor law forces such breach-of-representation claims to be filed within six months of learning of the alleged breach. The UAW is represented by Samuel McKnight of the Southfield law firm of Klimist, McKnight, Sale, McClow and Canzano. The UAW filed documents with the court that the union says shows workers knew of the alleged breach as far back as 1997. The workers' attorney, Harold Dunne of Livonia, says the six-month statute of limitations is immaterial. "The membership filed grievances with their union right away, within a few weeks of the settlement. They filed this lawsuit after they realized their union grievance process wasn't going to work," said Dunne, a former UAW international representative who has tangled with his ex-employer several times in court. He said, "The criminal investigation strengthens our case and should at least push us into discovery, where we can start viewing the grievances as well as checks issued by GM to settle the strike. We need that for our case." Also named in the lawsuit are Gordon Campbell and Todd Fante, two workers hired by GM after the strike. The suit alleges Campbell, son of a top UAW official, and Fante, son-in-law of a GM official, were not qualified for their jobs and got them due to nepotism. (Detroit Free Press, February 2, 2001) HAYT, HAYT: Law Firms Issue Notice of Debt Collection Case & Settlement ----------------------------------------------------------------------- The following was released on February 2, 2001 by Francis & Mailman, P.C. and Donovan Miller, LLC: UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ROBERT F. FRY, JR., on behalf of himself and all others similarly situated, Plaintiff, v. HAYT, HAYT & LANDAU, Defendant CIVIL ACTION NO. 00-CV-114 NOTICE OF CLASS ACTION AND OF PROPOSED SETTLEMENT IMPORTANT NOTICE TO ALL PERSONS WHO, DURING THE SIX YEAR PERIOD PRIOR TO JANUARY 7, 2000, RECEIVED A DEBT COLLECTION LETTER FROM FEINBERG AND LASHIN, INC. T/A HAYT, HAYT & LANDAU AT 400 MARKET STREET, PHILADELPHIA, PENNSYLVANIA, THAT FAILED TO INCLUDE LANGUAGE EFFECTIVELY ADVISING OF THE RECIPIENT'S RIGHT TO REQUIRE VERIFICATION OF THE DEBT Pursuant to an order of the United States District Court for the Eastern District of Pennsylvania (the "Court") dated December 22, 2000, a hearing will be held on April 2, 2001, at 9:30 a.m. in Courtroom 7A at the United States Courthouse, 601 Market Street, Philadelphia, Pennsylvania 19106, to determine whether the proposed settlement of the debt collection claims asserted in the class action captioned Fry v. Hayt, Hayt & Landau, Civil Action No. 00-CV-114, is fair, reasonable and adequate, and to consider plaintiff's application for attorneys' fees and expenses. If you received a Debt Collection Letter from Feinberg and Lashin, Inc. t/a Hayt, Hayt & Landau at 400 Market Street, Philadelphia, Pennsylvania in connection with or regard to a debt incurred for personal, family or household purposes during the six year period prior to January 7, 2000, you are a class member and your rights (including your right to recover money from the settlement fund which has been established) will be affected by the proposed settlement and release of claims. If you did not receive a copy of the Notice of Class Action and of Proposed Settlement, you may request a copy by writing to: Fry v. Hayt, Hayt & Landau, Settlement Administrator, P.O. Box 3026, Blue Bell, PA 19422, 800/222-2760. The last day to opt-out of the proposed settlement is March 2, 2001. Objections to the settlement by class members will be considered by the Court if received by class counsel on or before March 2, 2001. The requirements set by the Court for opting-out of or objecting to the proposed settlement are set forth in the full Notice of Class Action and of Proposed Settlement as set forth above. PLEASE DO NOT CONTACT THE COURT OR CLERK'S OFFICE FOR INFORMATION. Contact: Donovan Miller, LLC David A. Searles, Esq., 215/732-6020 HEALTHCARE RECOVERIES: Agrees to Settle Lawsuit Re Subrogation Recovery ----------------------------------------------------------------------- Healthcare Recoveries, Inc. (Nasdaq: HCRI) announced on February 2 that it has reached an agreement in principle to settle the DeGarmo class action litigation, currently pending against the Company in federal court in West Virginia, for approximately $3 million. The agreement in principle is subject to negotiation and finalization of definitive settlement documentation, a fairness hearing and court approval. The Company currently believes that the settlement documentation should be finalized during the first quarter and the fairness hearing and court review would take place in the next 3 months. The Company expects to report a $3.0 million charge arising from the settlement during the fourth quarter of 2000. The Company will fund this settlement with cash flow from operations and/or borrowings under its existing credit facility. The DeGarmo litigation, which was filed in March 1994 and certified as a class action in March 1999, involves allegations that the Company's subrogation recovery efforts violated a number of state and federal laws, either because they involved collection of amounts that improperly exceeded the actual costs of the medical treatments provided by the Company's client or because the Company's client lacked enforceable rights of subrogation under the applicable healthcare policies or agreements. The Company has not admitted liability for any alleged wrongdoing as part of the agreement in principle, nor will any such admission be included in the definitive settlement documentation currently being negotiated. The Company anticipates that, in addition to a cash payment, the settlement agreement will include certain non-monetary terms affecting its subrogation recovery activities, primarily affecting one of its clients in West Virginia. The Company believes that the agreement will not have an adverse effect on the Company's subrogation recovery activities. The Company noted that its primary reason for settling the DeGarmo litigation was its unusual facts, which are, to the Company's best knowledge, peculiar to this case. The Company stated that it does not believe that this proposed settlement will have an effect on its defense of any other lawsuits, and stressed that it does not intend to alter its determination to defend vigorously those lawsuits. HCRI is a leading provider of health insurance subrogation related recovery services for private healthcare payors. HEWLETT-PACKARD: Challenges Cert. of Lawsuit over Replacement Cartridges ------------------------------------------------------------------------ Charging four points of error, Hewlett-Packard Co. has asked the California Supreme Court to review the trial court's certification of a nationwide class of indirect and direct purchasers of HP brand replacement cartridges for the company's inkjet printers. Jones et al. v. Hewlett-Packard Co., No. S091695, petition for review filed (Cal., Sept. 18, 2000). Hewlett-Packard describes its inkjet cartridges as "engineering marvels that revolutionized computerized printing." Named plaintiffs Ronald L. Jones, Stephen R. Palmer and Willie Miller evidently were not similarly impressed by HP's creation, and filed a lawsuit in San Francisco County Superior Court seeking to certify a nationwide class of indirect and direct purchasers of the cartridges. They alleged causes of action under California's Business and Professions Code, charging that HP's design of the cartridges constituted an illegal tying arrangement; that HP conspired with other manufacturers not to produce cartridges for each other's printers; and that HP engaged in unfair competition by monopolizing the market for replacement ink. On March 7, 2000, the trial court certified the class. HP challenges the class certification on several fronts. First, it charges a misuse of the class-action device and the futility of the underlying action, in view of previous litigation against HP in which a jury found in favor of HP on claims that the company monopolized or attempted to monopolize a market for replacement inkjet supplies by redesigning its cartridges and making false and misleading statements about competitor's products. It then described the distribution process for the cartridges, through which approximately 99 percent of the cartridges are sold to thousands of distributors, resellers and retailers. Therefore, HP asserts that the price that consumers pay for the cartridges varies as a consequence of independent pricing decisions not attributable to HP's actions. HP also claims that certification of the class raised a constitutional due process issue because the differences between California law and that of other states could effectively bar the citizens of those states from bringing certain claims in their home states, resulting in the deprivation of property rights. In addition, HP charges that the trial court erred by presuming common issues of injury. Except in limited circumstances, injury from monopolization cannot be presumed. Under California law, indirect purchasers can demonstrate injury only by establishing that independent distributors increased prices to compensate for defendants' overcharges. HP claims that the uncontradicted record in this case establishes that there were numerous instances of retailers raising prices for HP cartridges for reasons unrelated to any HP conduct. HP also makes the claim that the class action is a sham and that at least two of the class representatives had strong financial ties to class counsel. It cites testimony on the record by Jones that at the time he agreed to be a named plaintiff, he still owed class counsel money for representation in prior litigation against HP that resulted in a jury verdict in favor of the company. Another named plaintiff, Palmer, worked for class counsel, deriving 80 percent of his income from that employment. He also worked full-time for class counsel during the prior litigation against HP. The company cites these facts, and other deficiencies in the class representatives' claims, as reasons for reviewing the class certification. HP is represented by Robert W. Sutis, and by Robert E. Cooper, Peter Sullivan, Joel S. Sanders and Tanya S. McVeigh of Gibson, Dunn & Crutcher in San Francisco. (Computer & Online Industry Litigation Reporter, November 21, 2000) HIP IMPLANT: Ruling on Cert. in Sulzer Recall Case Expected in 2 Mths. ---------------------------------------------------------------------- U.S. District Judge John W. Darrah will decide whether to grant class-action status in a lawsuit on behalf of people who have received a hip replacement product that has been recalled by Sulzer Medica, the Swiss parent corporation of one orthopedics manufacturer in Texas and one in Switzerland. According to a complaint filed Jan. 19 in the Northern District of Illinois by plaintiff attorney Edward W. McNabola, an associate at Cogan & McNabola, the defendants knew that these hip replacement products were unsafe in their design, ... were insufficiently processed, and had the potential and propensity to leave a trace amount of manufacturing lubricant residue ... that would cause pain, discomfort, disability and loosening of the hip replacement necessitating a second surgery for removal of said defective product." A Sulzer Medica press release issued Jan. 18 confirmed the presence of lubricant residue and said approximately 17,500 patients have received the recalled Inter-Op shells; close to 90 percent were implanted in the U.S." McNabola said on January 31 that he and his client, Jean Casey, expect a ruling within 60 days of filing. Jean Casey, and all others similarly situated v. Sulzer Medica, Sulzer Orthopedics Inc., and Sulzer Orthopedics Ltd., No. 01 C 0403. (Chicago Daily Law Bulletin, February 1, 2001) HOLOCAUST VICTIMS: Ct Raises Concerns Over Pact and Attorney's Fees ------------------------------------------------------------------- Southern District Judge Shirley Wohl Kram in January expressed reservations about some aspects of the proposed settlement of property claims made by Holocaust survivors against German banks. In a hearing held to discuss objections to the settlement, Judge Kram said she was concerned that a massive victim compensation fund assembled by the German government would also be the object of claims by victims who had accounts in Austrian banks that were looted by German banks in collaboration with the Nazis. "We don't know to what extent the funds available to the [compensation fund] will be diluted [by these claims]," Judge Kram told several lawyers who urged her to grant their voluntary motion to dismiss. The motion is a prelude to a settlement of more than 50 consolidated class actions on property claims, and the ultimate distribution of monies from a massive fund to be established by the German government and German industry. The fund is to be 10 billion Deutschmarks, the equivalent of more than $ 4 billion. The creation of the fund was announced last summer, after months of negotiations between the plaintiffs, defendant banks, German industry and the governments of Germany, the United States, and other nations with significant populations of Holocaust survivors, including Israel. It is intended to compensate victims with slave labor claims against German industry and against German insurance companies, as well as claims that are the subject of the class actions before Judge Kram: those for property and other assets seized from victims and their bank accounts during the infamous Nazi "Aryanization" campaign. Should Judge Kram approve the plaintiffs' motion to dismiss the case, money from the settlement fund could be distributed as early as March through a German created foundation called "Remembrance, Responsibility and Future." Judge Kram, who also heard from Holocaust survivors as she weighed whether to grant plaintiffs' motion, said she would rule shortly. The genesis of the assigned claims issue that troubled Judge Kram was a 1998 suit filed by a class of Holocaust victims against two Austrian banks, Bank Austria AG and Creditanstalt AG, for stealing money from their accounts. The case settled in 1999 for the sum of $ 40 million, with the two banks agreeing to give victims any rights to claims that the banks themselves could make against banks in Germany for the seizure of assets. But on January 22, that same class filed a new lawsuit in the Southern District, alleging that three German banks conspired with the Nazis to confiscate hundreds of millions of dollars from the bank accounts of victims kept in Austrian accounts. Jack S. Dweck, the attorney who filed the suit, told Judge Kram that "The assigned claims have been totally ignored." "I do believe the court is disposed to sign [the motion to dismiss]," Mr. Dweck said. "It must contain an exception on these claims. The $ 40 million settlement is nominal at best, there is no consideration - no one was has really taken seriously the assigned claims." But Stephen A. Whinston, of Berger & Montague, said that he and other plaintiffs lawyers "tried hard" in settlement negotiations to get the assigned claims included in the fund, but were unable to convince Germany to do so. "The assigned claims remain viable," he said. "The Austrian banks are not considered a claimant under the German foundation." "I can't agree with you," Judge Kram said, and when Mr. Winston said he thought the issue was clear, she shot back "We'll see how clear it is." Plaintiffs' lawyer Lawrence Kill, of Anderson Kill & Olick, agreed that the issue of the assignment of claims was one that was negotiated without success. "The German side did not think the assignment was a valid claim," Mr. Kill said. When Judge Kram asked Mr. Kill if the assignment issue raised a conflict for the plaintiffs attorneys, he responded "You want to call it a conflict, well maybe it is, but it is the type of conflict that lawyers face" in class actions where plaintiffs are seeking recovery from a capped fund. Charles Stillman, who was appointed in October as a special master charged with reviewing the fairness of the settlement, gave a favorable report. Mr. Stillman said that no claims appear to have been compromised by the settlement. He also said that named plaintiffs and their attorneys have not benefited to the detriment of absent class members, and that there is no evidence of collusion between the parties. Attorney's Fees Judge Kram said she was also concerned about attorneys' fees in the case. "I had heard that one plaintiffs' attorney has submitted a bill for 10,000 hours," she said. Two lawyers, Kenneth R. Feinberg and former Attorney General Nicholas D. Katzenbach, were selected by the governments of the United States and Germany, as well as the plaintiffs' attorneys, to arbitrate fee claims from the hundreds of attorneys involved in the case. Under the terms of the settlement, plaintiffs' lawyers will receive one and a quarter percent of the foundation monies, Mr. Kill said. Mr. Stillman, of Stillman & Friedman, called the attorney fee arrangement for the settlement "fair and reasonable." "I am very confident that Messrs. Katzenbach and Feinberg will make those awards fairly..., " Mr. Stillman said. "These men are tough and they are going to make a very thorough inquiry." (New York Law Journal, January 25, 2001) KANSAS GAS: Sued over Damages for Gas Leaks & Explosions in Hutchison --------------------------------------------------------------------- Kansas Gas Service has been named in a lawsuit that lists all property owners in Reno County as plaintiffs and seeks unspecified damages for the recent gas leaks and explosions in Hutchinson. Tino Moldano, a former Hutchinson attorney, and a Missouri law firm that specializes in high-profile class-action cases, represent the 10 plaintiffs listed in the class-action suit. The lawsuit seeks compensatory and punitive damages from KGS as well as an injunction that requires the defendants to do what is "reasonably necessary" to prevent any future gas release. The lawsuit names the 10 plaintiffs and anyone who owns real property in Reno County and has "suffered losses" because of the natural gas leak. "The bottom line is that we're asking the Kansas Gas Service and its affiliates to ensure the safety of these plaintiffs and the rest of the people of Reno County," said Moldano, who now practices law in Johnson County. "We included all landowners in the suit because the danger of natural gas has certainly caused a lot of uncertainty in terms of property values. Having said that, the most important thing is safety," Moldano said. The plaintiffs listed in the lawsuit are Management Resources, Morgan-Wilson Living Trust, Urban Group, Key Gas Holding, Dennis and Diane Terwey, Walter Kilgariff, T&L Properties and Plumbing, Bill and Jewell Rowland, Barry and Joyce Rempel, and Beth Wolf. Many of them are clients from his time as a lawyer in Hutchinson, Moldano said. Those plaintiffs are also being represented by attorney John F. Edgar of Humphrey, Farrington and McCain, a Springfield, Mo., firm with a history of claiming multimillion-dollar judgments for its clients in class-action cases. A Kansas City firm earlier filed a lawsuit on behalf of property owners near the evacuation site. Rep. Mike O'Neal, R-Hutchinson, an attorney, said he was not happy with "this grab to try to profit from this disaster" by "sharks in the water." Moldano said he takes issue with that perspective. "I don't know where he lives, but I doubt that Mike has a venting well outside his house," Moldano said. "That's ridiculous. Kansas Gas Service is a huge company that will have plenty of legal representation. I'm proud of my role in helping represent everyday people in the system." (The Associated Press, February 2, 2001) MICHIGAN: Appeals against Ct of Claims Ruling over Single Business Tax ---------------------------------------------------------------------- Legal proceedings specifically identified by the State in municipal bond offering materials as having potentially material financial consequences include a November 24, 1999 ruling by the Michigan Court of Claims in Jefferson Smurfitt v State of Michigan, Docket No. 98-17140-CM, that the site-based capital acquisition deduction in Michigan's single business tax is unconstitutional. The case is on appeal to the Michigan Court of Appeals, and the financial impact of the decision is uncertain. MICHIGAN: Lawsuit over Funding of Court Operations Pending Certification ------------------------------------------------------------------------ There is pending a class action captioned as 10th Judicial Circuit, et al. v State of Michigan, et al. (Saginaw Circuit Court No. 94-2936-AA/Court of Claims No. 94-15534-CM), for declaratory and injunctive relief, and for damages, due to the alleged failure of the State Court Administrative Office to properly calculate and fund court operations. Plaintiffs have asserted that the amount in controversy exceeds $5 million. The case is currently pending final class certification. OREGON: 9th Cir Overrules Dismissal of Inmates’ Case Re Experiments ------------------------------------------------------------------- Bibeau v. Pacific NW Research is a federal court class action suit that has been brought on behalf of inmates and their families for injuries the inmates sustained in radiation experiments to which the inmates were subjected in the 1960s and 1970s. The former head of the medical services for the Oregon State Police is named as one of the defendants in the suit. The plaintiffs seek $250 million in damages. Although it is unlikely that they will recover the full amount sought, it is too early to provide an accurate measure of the damages which plaintiffs may reasonably recover at this stage of the case. The State has tendered its defense to the insurance company that provided coverage to the State in the relevant time frame. Defenses based on statutes of limitation and ultimate repose were asserted on behalf of the State. The court granted the State's motion for summary judgment and dismissed the case based on the statute of limitations. The plaintiffs have appealed the trial court's decision to the Ninth Circuit Court of Appeals. On August 19, 1999, the Ninth Circuit Court of Appeals ruled that the trial court erred in granting summary judgment based on the statute of limitations. It also ruled that the plaintiffs' federal law claims against the State could not stand because the State was shielded by the doctrine of qualified immunity. Consequently, the trial court must hear on remand the plaintiffs' federal and state law claims against the private defendants as well as the plaintiffs' state law claims against the State. However, the State expects the trial court to dismiss the plaintiffs' state law claims against the State. OREGON: Dept of Corrections Sued over Spills from Dry-Cleaning Plant -------------------------------------------------------------------- Goudy, et al. V. State of Oregon, et al. Over 735 plaintiffs have filed suit in federal district court seeking damages against the State and the Oregon Department of Corrections, based on the Department of Corrections' operation of a dry-cleaning plant on the grounds of the Oregon State Penitentiary during certain periods between 1950 and 1996. During the operation of the plant, the state is alleged to have spilled or disposed of dry-cleaning chemicals, including tetrachlorethylene, trichloroethylene, vinyl chloride and other toxic substances, on the grounds of the state prison, thus contaminating the water in wells serving the State Penitentiary and the air and ground water within a one-mile radius of the prison. OREGON: Expects to Settle Inmates’ Lawsuit for Medical Care ----------------------------------------------------------- The same plaintiffs as in Bibeau v. Pacific NW Research have filed a second case, this time in Multnomah County Circuit Court. These former inmates seek to enforce a 1987 statute that they assert entitles them to medical care at State expense. A preliminary estimate put the potential State liability at between $1 million and $5 million. The State filed a motion to dismiss the case but it was denied in part. Plaintiffs filed an amended complaint seeking $100,000 per claim per plaintiff. The plaintiffs were initially denied class status for their damage claim. The plaintiffs' counsel has filed an unopposed motion for approval of a class action settlement and for authorization to publish notice to the class, along with a related settlement agreement and other related attachments. This motion is pending. If granted, this motion should settle this litigation. Plaintiffs' counsel asserts that there are presently approximately 20 claimants who will seek damages. If the plaintiffs are granted injunctive relief, the State will be required to provide additional medical care through the Department of Corrections medical budget. OREGON: Sp Ct Rules in Favor of Managerial Employees Suit for OT Pay -------------------------------------------------------------------- Young v. State of Oregon. An inverse condemnation case has been filed against the State on behalf of State managerial employees for unpaid overtime or compensation time. Plaintiffs' claims are based on a legislative change that occurred in the 1995 Oregon legislative session. The Legislative Assembly amended the statutes relating to the payment of overtime or allowing compensation time to require that all persons who work over 40 hours per week receive overtime or compensation time. There were a number of exceptions to this requirement drafted for professionals. However, the State managerial employees were not included in the express statutory exceptions. The Legislative Assembly enacted an exception that would cover State employees in its 1997 session. Therefore, liability may only be imposed for the period between 1995 and 1997. The Circuit Court for Marion County ruled in favor of the State on its motion for summary judgment based on legal rather than factual issues. The plaintiffs appealed the ruling to the Oregon Court of Appeals. The Court of Appeals reversed the decision by the Marion County Circuit Court, and remanded the case for entry of judgment for plaintiffs. The State appealed the decision to the Oregon Supreme Court. The Supreme Court denied review of the Court of Appeals decision. The State filed a request for reconsideration with the Supreme Court, but the State's motion was denied. The size of the class and amount of damages will be determined in the trial court. The State preliminarily estimates its liability to be between $35 million and $200 million. The State continues to assess its potential liability in this case. Presently, there is no firm estimate of liability or of the size of the class. The number of eligible employees has been estimated to be between 8,000 and 14,000. For most employees eligible to participate in the class there are no records as to the amount of hours they may have worked in excess of 40 hours in a week. The final amount of liability will depend on various factors, including the number of eligible employees who file claims, the amount of those claims, and the remedy fashioned by a court or through negotiated settlement. The remedy provided to employees may also include an option to be given compensation time rather than a monetary award, which would reduce the amount of monetary damages paid by the State. Because of the complexity of these issues, the State anticipates that, if the case is not negotiated and settled by the parties, it will take at least a year for the remaining issues to be decided by the trial court. PASMINCO LTD: Smelter Awarded Legal Cost in Victoris Supreme Court ------------------------------------------------------------------Pasminco Ltd said the Victoria Supreme Court ordered the applicants to pay Pasminco's costs in defending the lawsuit filed against the company. The court's decision followed the Dec 15 dismissal of a class action mounted against Pasminco in the Victoria Supreme Court relating to the operations of Pasminco smelters at Cockle Creek in New South Wales and Port Pirie in South Australia. At 12:59 pm, Pasminco was up 0.01 aud at 0.67. The S&P/ASX 200 was down 7.2 points at 3,357.1. (AFX - Asia, February 2, 2001) POSTAL SERVICE: Homeless Seattle Residents Seek Better Mail Service ------------------------------------------------------------------- Three homeless people sued the U.S. Postal Service on February 1, saying the agency has refused to provide a way for them to receive mail. The only post office in the city where homeless people can receive general delivery mail is at Third Avenue and Union Street, said their lawyer, Casey Trupin, of Columbia Legal Services. Getting to that location is difficult for many, especially those who are disabled, Trupin said. And that branch sometimes limits its general delivery service to 30 days per person, he said. "Mail, for homeless individuals, is unbelievably important," Trupin said. "It's their bridge to stability, to housing, jobs and health." The lawsuit asks the service to provide free post office boxes or general delivery service at all branches. The three hope to have the case, filed in U.S. District Court, certified as a class action. "It's very difficult to do what I need to do to find a home and get disability benefits without mail," one plaintiff, Willard Johnson, said in a written statement. (The Associated Press State & Local Wire, February 2, 2001) SCHULER HOLDINGS: Settles Building Defects Suit; Remediation Nears End ---------------------------------------------------------------------- In April 1996, Schuler Homes was served with a purported class action complaint by owners of units and the owners' association of Fairway Village at Waikele alleging, among other things, material construction defects and deficiencies, misrepresentations regarding the cost of insurance and breach of a covenant of good faith and fair dealing. Following the court's denial of a class certification request, a second action involving other homeowners at Fairway Village advancing the same claims was initiated. Schuler Homes decried merit of the claims but nevertheless entered into a settlement agreement in April 1999 with the third party defendants, insurance carriers and all of the plaintiffs in both lawsuits, except for the owners of three units. The owners of two of the three units subsequently settled in late 1999, bringing an end to the initial suit. The one remaining plaintiff in the second action settled in April 2000. The remediation of the units at Fairway Village required by the settlement agreement has been substantially completed. Schuler Homes tells investors that the costs of remediation are not material to the company. STRIP SEARCH: 82-Yr-Old Cop's Mom Who Played Radio Loudly Is Plaintiff ---------------------------------------------------------------------- The 82-year-old mother of an NYPD sergeant charged on February 1 that she was strip-searched by a city cop after she was arrested for playing the radio too loudly in her Brooklyn home. Mary Novak said the unidentified female officer at Brooklyn Criminal Court's Central Booking ordered her to lift up her sweater and skirt. "The [officer] put me in a bathroom and she said, aePick up your dress,'" said the frail widow, her voice choked with emotion. "I had a skirt on and an old sweater, and I picked it up. And she says, aehigher, higher,' until I had it pulled over my head," said Novak, a retired interior designer. "Then she said aeput your [skirt] down' . . . I felt violated, humiliated and embarrassed. I was ashamed. I was like dead." Police denied her accusations. Novak, who has filed a $1 million suit against the city, said the incident began at 2 p.m. on Jan. 12. Her next-door neighbor, Joshua Shapiro, called cops to complain that her radio was too loud - allegedly a violation of an order of protection Shapiro filed against Novak last year. Novak said she was arrested and taken, in handcuffs, to the 78th Precinct station house on Sixth Avenue before being transferred to Central Booking, where she said she was "thrown in a cell." Novak's lawyer, Ron Kuby, said the incident shows that a strip-search victim "could be your mother, it could be your grandmother or your great-grandmother." Lt. Terri Tobin, a police spokeswoman, said Novak was not subjected to a strip-search. "She was treated respectfully," said Tobin. "She was never handcuffed, never put in jail, and never strip-searched." The alleged incident came three weeks after the city agreed to settle a class-action suit and shell out up to $50 million to tens of thousands of suspects who had been illegally strip-searched. The city was slapped with the suit in 1997, charging that as many as 65,000 criminal suspects, including many first-time offenders in Manhattan and Queens, suffered the indignity. (The New York Post, February 2, 2001) TAINTED WATER: Walkerton E. Coli Victims Urged to Accept Deal ------------------------------------------------------------- The victim who spearheaded a class-action lawsuit after Canada's worst E. coli outbreak choked back tears as he urged residents of Walkerton, Ont., to accept a proposed settlement so they can get on with their lives. History teacher Jamie Smith called the tentative agreement a "great" plan. "Walkerton has been through a lot ... and there is a large amount of cynicism in the community," Smith, who was terribly ill during May's outbreak, said minutes after the compensation agreement was announced. "(But) this is a good deal." Under the tentative settlement which is guaranteed by the Ontario government and will be supervised by the courts, every resident of the town, as well as visitors who were affected by the contaminated water, would receive at least $ 2,000 simply by applying. Those who believe they should receive more for pain and suffering or economic losses will have their claims assessed individually - without any cap. Court-supervised mediation and arbitration would be available in cases of dispute. Using previous court awards as a template, claims resulting from the death or permanent disability of a family breadwinner, for example, would be worth the most, perhaps reaching into the millions. While no one would say what the total cost of the settlement might be, one source close to the legal battle told The Canadian Press that the lawyers had an initial estimate of $ 50 million. The plaintiffs had been seeking $ 250 million in general and punitive damages. "Nothing can adequately compensate families who have lost loved ones," said Harvey Strosberg, the lead lawyer for the victims. "Money cannot heal serious illness but, inadequate as it may seem, the legal process can only deliver money." Superior Court Justice Warren Winkler said he would hold a fairness hearing in the midwestern Ontario community March 19 before giving his final blessing to the settlement, which affects about 5,000 people. He will then set a date by which anybody who disagrees with the proposed settlement can opt out. Residents of the town, where tainted water killed seven people and sickened more than 2,000 others last May, can have a first-hand look at the plan at a public meeting planned for tonight. Some reacted angrily to reports of the settlement earlier, saying the $ 2,000 minimum didn't seem to be enough. But Smith called on his fellow townspeople not to reject it out of hand, saying it provides everything they could have wanted. (The Edmonton Sun, February 2, 2001) VIRTUA HEALTH: NJ Suit Alleges Medical Equipment Not Sterilized --------------------------------------------------------------- A suit against a South Jersey medical facility in Camden Superior Court proposes class-action status on behalf of numerous patients who may have been exposed to infection by a contaminated endoscope. The case of Cohen v. Virtua Health Summit Surgical Center in Marlton and Customs Ultrasonics Inc. alleges that for a period of approximately two weeks last fall, patients who underwent endoscopy at the center were exposed to numerous types of infection due to a malfunction in the processor which sterilized the equipment. On Sept. 27 of last year, lead plaintiff Charles H. Cohen underwent an endoscopy at Virtua's same-day surgical center. Technicians at the center discovered the malfunction in the disinfecting equipment on Oct. 2 and immediately took the processor out of service. The surgical center indicated that the last preventive maintenance on the processor had occurred on Sept. 16. All patients who had the procedure during that period were contacted and made aware of possible exposure to infection. Although the center was aware of the situation in early October, the suit alleges, Virtua failed to notify plaintiffs until the middle of November. In its letter informing patients who underwent endoscopy of the "extremely minimal" risk of acquired infection, representatives of the hospital offered to conduct free blood tests as well as consultation with an infection control practitioner. Plaintiffs counsel includes the Cherry Hill firm of Williams Cuker & Berezofsky as well as the Philadelphia firm of Sheller Ludwig & Badey." They have shown by their delay in contacting plaintiffs that they are not putting the patient first," said plaintiffs' attorney Jamie Sheller of Sheller Ludwig. "What assurance do we have that they will put the patient first now?" Papers filed on behalf of the plaintiffs stated, "As a result of defendants' failure to maintain, design and service the processor in question, and further due to their delay in notifying plaintiffs, plaintiffs were exposed to, including but not limited to, infectious diseases, hepatitis, HIV and other dangerous and deadly illnesses." Sheller noted that in addition to patients who underwent an endoscopy, spouses and other partners could be in danger of secondary exposure through unprotected sexual contact. The medical center allegedly has not offered testing or consultation regarding those potentially exposed through sexual transmission. The complaint also asks "injunctive and monetary relief and the creation of a trust fund, paid for by defendants, under court supervision, to finance independent medical monitoring services, including but not limited to testing, preventive screening care and treatment of conditions resulting or potentially resulting from the exposure to contaminated endoscopes." According to Sheller, there is little consensus in the medical community regarding the period after which HIV infection occurred and its detection on blood tests. The range is anywhere between six months and two years. The lead plaintiff and his wife are undergoing routine blood testing at three-month intervals. Though New Jersey courts do not provide relief for "fear of" pain and suffering, the plaintiffs' attorneys are also seeking remuneration for psychological counseling for those who, like Cohen, have had to seek help dealing with the guilt at having spread the infection to a spouse through secondary contact as well as fears of contamination. "After a stressful experience like this one, every little symptom takes on a new life," Sheller said. (The Legal Intelligencer, January 31, 2001) ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Princeton, NJ, and Beard Group, Inc., Washington, DC. Theresa Cheuk, Managing Editor. Copyright 1999. All rights reserved. ISSN 1525-2272. 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