Paoli, Latino & Kutzman, P.C.

Union Designated Legal Counsel

257 West Front Street, Suite A • P.O. Box 8131 • Missoula MT 59802
ph. (406) 542-3330 • fax (406) 542-3332 • contact@paoli-law.com

Recent Trials

James and Clarice Lamb v. United States of America (CV 06-151-M-DWM)

JUDGMENT:  $622,730 (total damages proven in the amount of $1,192,730 were reduced to $622,730 to comply with Utah’s damage cap on non-economic damages).

Missoula:  On April 4, 2008, Jim Lamb, a Navy Veteran, and his wife prevailed in their medical malpractice lawsuit against the Veteran's Hospital in Salt Lake City, where Jim underwent a series of failed operations that left him permanently disabled.  Jim went to the VA hospital in Salt Lake City for a routine laporoscopic hernia surgery, expecting to be discharged home after a couple of days.  During the surgery, doctors severed his hepatic artery and injured his spleen.  Jim nearly died because of complications from the hernia surgery and the subsequent five surgeries he underwent.  He was eventually transferred to the Montana VA Hospital at his request and was not discharged home until almost four months after his initial surgery.  Jim has permanent injuries, including disfigurement; risk of recurrent small bowel obstruction; an inoperable hernia; and severe abdominal pain.  He is no longer able to do many of the things that he once enjoyed, including hunting, fishing, gardening and being actively involved in his children and grandchildren's lives.  Judge Molloy awarded Jim and his wife Clarice damages in the total amount of $1,192,730.  Because Utah law limits non-economic damages to $430,000, Jim and Clarice were only able to recover that amount plus their economic losses in the amount of $192,730.

City of Missoula v. Dr. Walter Peschel (CR  07-2903)

VERDICT:  Not Guilty

Missoula:  Dr. Peschel was arrested after he did not follow police orders to leave the side of a suicidal woman who told the doctor that she would shoot herself if he left her side.  He was charged with obstruction of justice.  After a trial in city court, the jury acquitted Dr. Peschel of the charges.

On August 18, 2007, Dr. Peschel was summoned from mowing his lawn by a neighbors requesting that he assist a suicidal woman.  Dr. Peschel responded and learned that the woman had overdosed on prescription drugs.  He directed a witness to call 9-1-1.  The witness told 9-1-1 dispatchers that Dr. Peschel was with the woman and was a doctor, and requested that the police respond discreetly – no lights or sirens.  Before the police arrived Dr. Peschel had persuaded the woman to put the gun down. At this time the woman was drifting in and out of consciousness.  He directed a bystander to locate the prescription drugs that the woman had taken so that she could be promptly treated and also made arrangements to block the woman's car so that she could not leave the area and put others in danger.  The police responded to the scene with their lights on, guns drawn, and ordering Dr. Peschel to get away from the woman.  Dr. Peschel tried to get police to come close enough so that he could explain why he would not leave her side – because 1) she said she would shoot herself, and 2) if he could keep her calm she would go into a drug induced coma, the gun could be removed and she could be taken to the hospital.  When the woman eventually went into the drug induced coma, Dr. Peschel left her side.  When he did so, he was tackled from behind by an officer, shot with a taser gun, and arrested.  Following the incident, Dr. Peschel was hospitalized for three days.

Prior to trial, the Police Department’s video of the incident was erased.

Dr. Peschel is currently suing the Missoula City Police Department in Federal Court claiming violation of his constitutional rights, among other claims.

Robert Wells v. BNSF (CV-05-0779)

JUDGMENT: $761,426: Federal Employers’ Liability Act (FELA) ($111,426 past wage losses; $650,000 pain and suffering).

On July 22, 2002, Bob Wells suffered a severe and traumatic injury when a welding unit fell from its compartment and crushed his lower right leg. Both the welding unit and the sliding tool tray on which it sat fell out of the compartment in Wells’ service truck as a result of BNSF personnel removing the metal stop which prevented the unit and tray from such an outcome. Following Wells’ extensive surgeries and rehabilitation, he obtained a conductor position with BNSF where he currently works today.

Billings: He was awarded over $700,000 on August, 30, 2007 in a 9-3 decision against BNSF. The case, brought pursuant to FELA, was heard over four days with attorney David Paoli calling four expert witnesses to testify on behalf of Mr. Wells. Although BNSF contested damages and claimed contributory negligence, the railroad company admitted liability one week before the trial. Beside this late admission, the jury also took into consideration the $225,000 BNSF had paid in past medical bills. Fortunately, all twelve jurors disagreed with BNSF’s claim that Mr. Wells was somehow negligent. And, although three jurors dissented in the final decision, only one juror wanted to award less for pain and suffering damages while the other two jurors wanted to award more.

Dan Dean v. UPS (CV-05-50-M-DWM)

ARBITRATION AWARD: $400,000

Missoula: This wrongful discharge case was in arbitration from Tuesday, November 14, 2006, through Thursday, November 16, 2006. Post arbitration briefs were submitted on February 5, 2007 and Tuesday, February 13, 2007. Arbitrator John Crist ruled in Plaintiff Dan Dean’s favor. Dan Dean was awarded over $400,000, the fourth largest award in a discharge case since the Wrongful Discharge in Employment Act (WDEA) was enacted in Montana.

Gallo v. BNSF (BDV-03-1054)

Great Falls: On Tuesday, October 31, 2006, Whitefish engineer Paul Gallo settled his FELA case on the second day of trial. The trial was punctuated by the testimony of Dick Fox, formerly BNSF Terminal Manager in Spokane, Washington. Mr. Fox testified on the first day of trial about his invention of an electric locomotive handbrake. Mr. Fox explained he invented the electric handbrake after watching a friend of his manually set a locomotive hand brake in the Spokane yard. He testified he invented the handbrake precisely to eliminate the very injury Paul sustained to his shoulder.

Paul Gallo grew up and was raised in a railroad family in Whitefish, Montana. His father was a locomotive engineer on the railroad and his grandfather worked on the tracks. Paul wanted to be an engineer; he was hired by the railroad and gave everything he had to BNSF Railroad Company. Unfortunately, Paul’s career with the railroad came to a sharp halt when he sustained two serious injuries – an injury to his left shoulder and another to his left knee. Paul eventually lost everything: his job, his health, and his hopes. With the conclusion of this trial came the conclusion of Paul’s unfortunate circumstances. BNSF was held accountable for the damage that Paul suffered, and now Paul has regained control of his life.

Ballich v. Metropolitan Property & Casualty Ins. (MetLife) (CV-01-85-BLG)

VERDICT: $280,000: insurance bad faith ($250,000 punitive damages; $30,000 compensatory damages).

Billings: A federal court jury unanimously awarded Mike Ballich $30,000 in compensatory damages and $250,000 in punitive damages after finding that Metropolitan Property & Casualty Insurance violated the Unfair Trade Practices Act and violated the ethical standard of good faith and fair dealing.

On July 16, 1998, Mike Ballich was injured in a motor vehicle accident in which the driver of the colliding vehicle, Charlie Layboult, pled guilty to DUI. Mike suffered from chest and ankle injuries, nerve damage, a fractured rib, and aggravation of asthma and allergies. Throughout the entire claims process Metropolitan questioned Mike’s injuries as a result of the accident. Consequently, Mike suffered not only physical anguish but emotional anguish as well. His recovery process was more drawn out and painful than it should have been. Metropolitan was accused of refusing to properly evaluate and pay Mike’s claim without a reasonable investigation. Fortunately, the company was held accountable.

Three Cases, One Defendant

The firm is also very proud to have represented three southwest Montana families over the course of many years against Dr. James S. Bischoff. Unfortunately, each of these cases was extremely tragic as a result of Dr. Bischoff’s medical negligence.

Each case was settled for the firm’s clients. Dr. Bischoff’s first victim was a 44 year old mother of three boys. Dr. Bishoff failed to diagnose the very clear mass in her left lung from an X-ray that he ordered to be taken. Sadly, our client passed away as a result of Dr. Bischoff’s failure to diagnose her early-stage lung cancer. The firm challenged Montana’s non-economic damages cap ($250,000; §25-9-411) and received a ruling from Judge Davis expressing his intent to declare the cap unconstitutional if a verdict was obtained exceeding it.

The second case involved the tragic death of another patient treated by Dr. Bischoff. This young man was racked with intense pain as a result of an industrial accident in which he was involved. The case was settled against Dr. Bischoff after our young client died while in the Madison Valley Hospital pursuant to an administration of pain drugs Dr. Bischoff ordered for him. We alleged that Dr. Bischoff excessively over-prescribed pain medications in varying dosages and types of pain medication. Again, we secured a settlement for the surviving family of this young man.

The third case against Dr. Bischoff may have been the most heart-wrenching because it involved an 8 year old girl. Dr. Bischoff failed to diagnose her cardiological problem and mistakenly diagnosed a seizure disorder. Sadly, this young child died as a result of Dr. Bischoff’s medical negligence as he failed to diagnose and then treat the girl’s condition. Up until this case, the Dr. Bischoff’s attorney would not allow him to be deposed. However, Mr. Paoli and the girl’s father agreed that the case would never be settled, if at all, until after Dr. Bischoff had taken an oath to tell the truth and sat for his deposition.

Dr. Bischoff was arrested during the pending litigation on the charge that he hastened the death of an elderly patient he was caring for at the Madison Valley Hospital. While on probation for these charges, Dr. Bischoff traveled from his home in Ennis, Montana to Rexburg, Idaho and robbed a bank. Dr. Bischoff was eventually arrested and charged for the crime. It was in Rexburg, in the Madison County Idaho Courthouse, that David Paoli was finally able to take Dr. Bischoff’s deposition and start the steps toward settling the case.

The case settled shortly after Plaintiff’s motion to declare the non-economic damages cap unconstitutional was heard by Judge Simonton.

Dr. Bischoff is currently incarcerated in Idaho.

© 2007 Paoli, Latino & Kutzman, P.C.
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