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  •   Unusual Settlement Removes Third Case

    Supreme Court

    By Joan Biskupic
    Washington Post Staff Writer
    Tuesday, May 26, 1998; Page A02

    Kathryn Lewis had just finished her first year at college and was spending the day at a lake in Georgia when she was thrown from a motorboat and battered by its whirling propeller blades. She died almost instantly.

    Soon after the 1993 accident, Vicki and Gary Lewis sued the boat manufacturer, Brunswick Corp., because they believed their daughter might have lived had there been a safety guard on the boat's propeller. The couple spent nearly five years struggling through the legal system, losing at every turn. Eventually, after a long-shot appeal to the Supreme Court, the justices agreed to take the case and heard oral arguments in March. Only 1 percent of the cases appealed to the high court are accepted, which makes what happened last week all the more remarkable: Rather than waiting for the justices to rule, the Lewises decided to settle.

    Furthermore, their decision made Lewis v. Brunswick Corp. the third dispute this year to be settled after the justices had already agreed to take the case. It was the second to dissolve after oral arguments were held and the justices were writing a decision.

    That situation is so rare that records show no other instance of a settlement after oral arguments in the past five years, and longtime court observers say they cannot remember such an instance in earlier terms.

    Last November, when civil rights groups financed a surprise out-of-court settlement with a white schoolteacher who was laid off to save a black teacher's job in Piscataway, N.J., it was front-page news across the nation. But even in that unusual case, the intervention came before the justices had begun deliberations.

    The rarity of such settlements is hardly surprising given the odds of reaching the high court. Of the 7,500 appeals the justices get each term, they take only about 85. And each case represents years of tumult in lower courts and hundreds of thousands of dollars in legal costs. If the two parties had wanted to settle, they would have had plenty of opportunity to do that before they got to the Supreme Court.

    Still, a settlement such as the Lewises' illustrates that no matter how far they are into the process, one side may believe there is a greater cost to an adverse ruling from the Supreme Court that would establish a national precedent.

    In the Lewis case, fear that the justices could create a new legal standard played a crucial role in Brunswick's approach. Beyond the motorboat industry, the case had drawn interest from a range of national manufacturers such as General Motors Corp. because the underlying legal issue could affect other regulation – of automobiles, for example, and disputes over manufacturers' failure to install air bags.

    Vicki Lewis said the decision to sue Brunswick was one that she, her husband and their other four children made shortly after her daughter's death. "We thought Kathee would have wanted us to do this," she said from her home in Healdton, Okla.

    The suit was filed under personal-injury law in Georgia, where Lewis had been vacationing with her boyfriend's family. The family argued that state law enabled them to sue the company for causing their daughter's death by failing to install a guard over motorboat propeller blades. But Brunswick argued that because the Coast Guard does not require boat makers to install propeller guards, manufacturers could not be held financially responsible for the injuries.

    The courts ultimately sided with Brunswick.

    "The loss of a child is always a tragic thing," Joe Pomeroy, general counsel for Brunswick's marine division, acknowledged last week. But he added that, even if there had been a propeller guard on the boat, it's unlikely it would have saved Kathee Lewis's life.

    Brunswick had won similar lawsuits on the same legal grounds that applied in the Lewis case. What remained an open question in many courts was whether the Coast Guard's decision not to require propeller guards rose to the level of a federal rule that would trump the state's personal injury law.

    Against the odds, the Lewises appealed to the Supreme Court, and to the surprise of many – not the least, Brunswick – the justices said they would hear the case.

    Another boost for the Lewises came soon after: The Justice Department entered the case on their side, telling the court that, without any definitive federal regulation on propeller guards, nothing should stop survivors from filing a "wrongful death" lawsuit in state court.

    "Kathee would have been pleased," Vicki Lewis said of the optimism she felt at that point. "Here was just a little girl from Healdton, Oklahoma, who had made it all the way the Supreme Court."

    The case was argued before the justices in March, and it went well for the Lewises. A few weeks later, Vicki Lewis received a call from her attorney, David Hudson, saying Brunswick wanted to settle.

    "It took most of a weekend to decide what to do," said Vicki Lewis, who had become involved in national efforts to prevent propeller injuries. "We just really prayed. We had been at this for five years, and even if we won it would mean two or three more years for a trial. I felt like Kathee would want us to stop, to put some closure to it."

    For Brunswick, the settlement offer was a way to try to head off a ruling against the company that could influence other cases, which had been going their way. Until the time of oral arguments, the company had made no serious efforts to settle.

    Kenneth S. Geller, a leading appellate lawyer hired by Brunswick to make its case at the high court, said the manufacturer's position was "strong." But he acknowledged the risk of an adverse national policy.

    "Brunswick didn't take this case to the Supreme Court," he said, referring to the fact that the court had granted the Lewises' appeal. "It had won almost all of these [propeller guard] cases in lower courts. So Brunswick was delighted to maintain the status quo."

    Other propeller injury cases are in lower courts, but it is likely to be a few years before another reaches the justices.

    Neither Geller, Hudson nor the immediate parties involved would disclose the settlement amount. But two other people who were close to the negotiations estimated Brunswick paid out about $700,000, which for Vicki and Gary Lewis (a homemaker and truck driver) was significant money.

    There is disagreement over whether the public interest is served when settlements intercept national policy on whether accident victims can sue manufacturers or how broad affirmative action can be.

    "Corporations always have the money to buy out and control the development of the law," says Arthur Bryant, executive director of Trial Lawyers for Public Justice. "Very rarely do people on the public interest side or the individual plaintiffs' side have the resources to purchase out the other side's interest."

    But Malcolm E. Wheeler, a Denver lawyer who specializes in business cases, said all lawyers devoted to a particular area of the law weigh the stakes of an individual case with their quest for a broad, national principle. "Some of the most effective maneuvering in the courts has been in race relations and gender discrimination litigation," he observed.

    The third case settled this term, Caterpillar v. United Automobile Workers, was resolved as part of a larger pact negotiated between Caterpillar and the union. Arguments had been held in January in the case testing whether an employer or union should pay for employees who are on leave handling union grievances. The huge Caterpillar-UAW pact was ratified in March, immediately removing the dilemma from the high court.

    How the court would have ruled in that case or the handful of others through the years will never be known. Said Geller, "It's like reading a novel and having the last page torn out."

    © Copyright 1998 The Washington Post Company

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