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Pennsylvania's Legal Journal

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    A Philadelphia Common Pleas Court judge has stayed civil litigation

    Philadelphia Common Pleas Court Judge Mark Bernstein

    Philadelphia Common Pleas Court Judge Mark Bernstein

    arising from June’s deadly building collapse in downtown Philadelphia, a decision likely to result in delayed payments of damages to survivors of the incident and families of those who perished in the collapse.

    According to court dockets, media reports, and lawyers involved with the litigation, Judge Mark Bernstein ordered a stay of nine months pending disposition of parallel criminal investigation into the disaster.

    Philadelphia District Attorney Seth Williams had earlier this summer convened a grand jury to investigate the June 5 building collapse at 22nd and Market Streets.

    Demolition contractors taking down a vacant structure sent an unsupported wall toppling over an adjacent Salvation Army thrift shop.

    The collapse resulted in six deaths and 13 injuries.

    The first person to file suit in the wake of the incident was Nadine White, a Philadelphia resident who was discovered buried beneath the rubble created during the collapse.

    White’s negligence suit was filed on the same day as the collapse by famed Philadelphia personal injury lawyer Robert Mongeluzzi, of the high-profile plaintiffs’ firm of Saltz, Mongeluzzi, Barrett and Bendesky.

    Like other suits that have since been filed by survivors of the collapse, as well as litigation initiated by relatives of those who died in the incident, the White case accuses a handful of defendants of negligence and other allegations.

    They include Richard Basciano, the owner of the 2136 Market Street building that collapsed onto the thrift store; Griffin T. Campbell, the demolition contractor hired to take down Basciano’s building; and STB Investments Corp., Basciano’s enterprise.  Some suits also include Sean Benschop as a defendant.

    Benschop, who was operating the excavator at the time of the collapse, is the only person who has thus far been criminally charged in connection with the incident.

    As for the judge’s stay, Bernstein docketed his order in the White case on Aug. 16, court records show.

    Mongeluzzi, the plaintiffs’ attorney, said the stay affects all of the other civil suits arising from the building collapse.

    The order doesn’t prohibit new civil actions from being initiated, and it would presumably stay those future actions when they are filed, Mongeluzzi told the Pennsylvania Record.

    In an email, Mongeluzzi said that while he has respected Bernstein as one of Philadelphia Common Pleas Court’s “fairest and brightest judges for 25 years,” he nonetheless would be filing a motion for reconsideration of the stay.

    The motion, he wrote, would illustrate “how we can protect the constitutional rights of Griffin Campbell, and anyone else who is under investigation, with targeted discovery of other witnesses and companies that will not encroach on anyone’s constitutional rights.”

    That is how discovery was handled in the civil case arising out of the deaths of two European young people who perished after the amphibious tourist vehicle they were riding on in the Delaware River in Philadelphia was struck by a sludge barge being pushed by a tugboat whose driver was on his cellphone at the time.

    The first mate, Matt Devlin, was under investigation and subsequently indicted at the same time the civil cases were filed in the aftermath of the duck boat incident, noted Mongeluzzi, who also handled that litigation.

    As for the building collapse case, Mongeluzzi said that balancing the constitutional rights of those under criminal investigation against the rights of civil litigants is always difficult, so he understands the tough predicament Bernstein faced in addressing the petition for a stay of the litigation.

    In a statement released prior to Bernstein’s order, Mongeluzzi said he and his firm were “vigorously opposing” the request by Campbell, the demolition contractor, to stay the civil proceedings for at least nine months due to the ongoing grand jury investigation.

    In his prior statement, Mongeluzzi said that the civil cases should be allowed to move forward at this time because they won’t necessarily conflict with the criminal investigation by the District Attorney’s Office and the grand jurors.

    “Justice delayed is justice denied and we will fight to prevent additional suffering due to this delaying tactic filed by Campbell’s insurance carrier,” Mongeluzzi had stated.

    In the same statement, the attorney said that there is now “conclusive evidence,” including emails between STB Investments, the City of Philadelphia, and the adjacent building owner, that the Salvation Army was warned of an impending disaster and problems at the demolition site, but that it failed to take the proper steps to ensure the safety of shoppers and workers at the thrift shop.

    Mongeluzzi recently told the Philadelphia Inquirer that a stay would greatly hamper discovery, and in turn push back trials for close to three years or so.

    Attorney James Golkow, who represents another injured plaintiff, Shirley Ball, told the newspaper that he thinks Bernstein’s decision was “outrageous.”

    “As the saying goes, ‘Justice delayed is justice denied,’” Golkow was quoted as saying in the paper. “My client has not been back to work, she has mounting medical bills with no health insurance … We’ve now turned a two-year wait into three or four years.”


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    A Pennsylvania man is suing his employer, CSX Transportation, for

    Mitchell A. Kaye

    Mitchell A. Kaye

    $150,000, over injuries the plaintiff allegedly sustained while on the job.

    William M. Conrad, who resides in Altoona, Pa., filed suit in U.S. District Court in Philadelphia on Aug. 22 against the railroad company over an Aug. 26, 2011, incident at the CSX yard in Cumberland, MD, during which the plaintiff claims he sustained a host of physical injuries while traversing the worksite.

    Conrad claims he was walking from a designated walkway to the parking lot when he fell into a depression in the parking lot that was apparently obstructed from view.

    The plaintiff says he was unaware of the depression because of a rail that existed at the end of the walkway that blocked him from being able to see the sunken part of the ground.

    After walking over the rail and stepping into the depression, Conrad attempted to break his fall by extending his right hand and arm, but ended up landing hard, sustaining a variety of bodily injuries in the process.

    The plaintiff claims he sustained injuries to his shoulder, hand, arm, neck, back and hip.

    He also says he suffered post-traumatic cervical spine strain and sprain, muscle spasms, headaches, and that he continues to experience bodily pain and anguish.

    The defendant is accuses of negligence for failing to inspect the area where the plaintiff was required to walk, failing to discover and ultimately fix unsafe conditions in the area, failing to discover the depression in the parking lot, and failing to warn the plaintiff of the unsafe and dangerous conditions.

    CSX Transportation is accused of violating the Federal Employers’ Liability Act.

    The plaintiff is being represented by attorney Mitchell A. Kaye, of the Bala Cynwyd, Pa. law firm Coffey Kaye Myers & Olley.

     

    The federal case number is 2:13-cv-04907-CDJ. 


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    Defense attorneys have petitioned the federal court in Philadelphia to

    Kenneth A. Murphy

    Kenneth A. Murphy

    handle a products liability lawsuit initiated early last month by an Illinois plaintiff over allegations that she became injured by pelvic mesh.

    A team of lawyers from Drinker Biddle & Reath filed a notice of removal with the Eastern District of Pennsylvania seeking to have the federal bench take jurisdiction over a lawsuit filed on July 2 at the Philadelphia Court of Common Pleas by counsel for Carla Hibler, an Illinois resident who claims she was injured soon after having a pelvic repair mesh product implanted in her body in early January 2010.

    The lawsuit claims that the defendants’ mesh products and/or mesh components can erode and cause infection, inflammation, organ perforation, pelvic floor damage, blood loss, recurrent urinary incontinence and other problems in patients who have the product surgically implanted in their bodies.

    Hibler claims she sustained severe and permanent pain, suffering, disability, impairment, loss of life’s enjoyment, and other problems as a result of having had the pelvic mesh product placed inside her body.

    Records show that the pelvic mesh product that had been placed inside the plaintiff was the Gynecare TVT System manufactured by Ethicon Inc., which is named as a defendant in the litigation along with Ethicon Women’s Health & Urology, Gynecare, Johnson & Johnson, Prodesco Inc. and Secant Medical Inc.

    The notice of removal, which was filed on Aug. 23 at U.S. District Court by lawyers Kenneth A. Murphy, Melissa A. Graff and Andrew P. Reeve, says that the matter should be litigated inside a federal courtroom because the amount of damages sought by the plaintiff appears to exceed $75,000, the threshold for removal to U.S. District Court.

    The defense lawyers wrote that the Hibler case is factually similar to thousands of cases currently pending in six separate multidistrict litigation proceedings playing out against the defendants over pelvic mesh injury allegations.

    The attorneys representing the defendants also wrote that complete diversity of citizenship exists between the parties, another requirement that must be shown before an action is transferred out of state court and into a federal venue.

    The removal petition also notes that Gynecare Inc. no longer exists, having since been acquired by Ethicon Inc.

    Johnson & Johnson, the notice states, is a citizen of New Jersey that has its primary place of business in the Garden State.

    The removal petition further maintains that Secant’s presence in the litigation doesn’t defeat diversity jurisdiction because the company was fraudulently joined to the case.

    Secant, the defense attorneys wrote, has played an extremely limited role in the development of the Gynecare TVT System, and therefore should not be named in the lawsuit.

    The company has never designed, marketed, promoted, sold, packaged or distributed the product, and it has never conducted pre-clinical testing or clinical trials on TVT, it never submitted applications to regulatory agencies to permit the marketing of TVT, and it never developed or published the package inserts, labels or other materials associated with the pelvic mesh system, the lawyers wrote.

    “Accordingly, Secant cannot be held liable under the Biomaterials Access Assurance Act of 1998 and, in the alternative, on the substantive merits of the claims brought by Plaintiffs,” the petition reads.

    The plaintiff is being represented by Thomas R. Kline, Lee B. Balefsky and Michelle L. Tiger, of the Philadelphia firm Kline & Specter.

    Hibler is asserting claims of strict liability, negligence, common law fraud, negligent misrepresentation, negligent infliction of emotional distress, breach of warranty, gross negligence, and violation of consumer protection laws.

    The federal case number is 2:13-cv-04932-TON. 


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    A Philadelphia woman is suing the makers of the cholesterol drug Lipitor

    Carrie Capouellez

    Carrie Capouellez

    over allegations that she developed diabetes as a result of ingesting the pharmaceutical.

    Doris Brown says she developed Type 2 diabetes soon after starting a treatment regimen of Lipitor, which her doctors put her on beginning around 2009 as a way to reduce the plaintiff’s chances of developing heart disease.

    The woman says she was diagnosed with Type 2 diabetes in 2011.

    Brown claims she was in good health prior to taking Lipitor. She was physically active, adhered to a healthy diet, and had a total body mass index of about 20.1.

    The plaintiff also says she suffered from no chronic injuries or illnesses.

    As a result of her diagnosis, the lawsuit states, Brown will have to undergo regular testing of her blood glucose levels, adhere to a restrictive diabetic diet, and take medication to control her diabetes for the rest of her life.

    Also because of her diabetes, the suit says, Brown is now at a “markedly” increased risk of developing heart disease, blindness, neuropathy and kidney disease.

    The complaint claims that had drugmaker Pfizer properly disclosed the risks associated with Lipitor use, Brown would have avoided the risk of developing diabetes either by not using the medication or by closely monitoring her blood glucose levels to see if the drug was adversely affecting her metabolism.

    Brown, the suit claims, has endured pain and suffering, and she has experienced economic loss including the need to spend substantial sums of money on medical attention to treat her physical condition.

    The complaint maintains that up until February 2012, the makers of Lipitor had never warned patients of any potential relationship between changes in blood sugar levels and Lipitor usage.

    The medication, an HMG-CoA reductase inhibitor, and a member of the drug class known as statins, was developed back in the mid 1990s by Parke-Davis Pharmaceutical Research, a division of Warner-Lambert Company, according to the complaint.

    Warner-Lambert entered into a co-marketing agreement with Pfizer to sell Lipitor soon after the former obtained FDA approval to market the medication, the suit shows.

    Pfizer ultimately acquired Warner-Lambert and all rights to Lipitor in the summer of 2000.

    “Despite its knowledge of data indicating that Lipitor is causally related to the development of type 2 diabetes and/or blood glucose levels diagnostic for type 2 diabetes, Pfizer promoted and marketed Lipitor as safe and effective for persons such as Plaintiff Doris Brown in the United States as well as in this judicial district,” the complaint reads.

    In August 2011, the suit states, Pfizer began making labeling changes to the Lipitor packaging based upon a review by the FDA’s Division of Metabolism and Endocrinology Products.

    Then, in early 2012, the defendant added language to Lipitor’s labels that warn that increases in glucose levels have been reported with the class of drugs that includes Lipitor, according to the lawsuit.

    Despite the label change, however, Lipitor’s label continues to fail to warn consumers of the serious risk of developing Type 2 diabetes when using the drug, the complaint alleges.

    Pfizer strongly backs its product, with company officials vowing to defend against cases such as these in civil court.

    “Lipitor is a prescription medication used by millions of patients for lowering cholesterol and triglycerides in a patient’s bloodstream,” Pfizer spokesman Steve Danehy said in an emailed message. “Backed by more than 19 years of research, Lipitor has been proven to lower the risk of heart attack and stroke in patients with diabetes and other risk factors such as diabetic eye or kidney problems, smoking, or high blood pressure.”

    The lawsuit contains counts of product liability, negligence, breach of warranty, fraud, constructive fraud, and unjust enrichment.

    Brown seeks unspecified compensatory and punitive damages, as well as interest, attorneys’ fees and other legal relief.

    The plaintiff is being represented by Philadelphia attorney Carrie R. Capouellez.

    The suit was filed on Aug. 23 at the U.S. District Court for the Eastern District of Pennsylvania.

     

    The federal case number is 2:13-cv-04951-TJS.


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    One of Philadelphia’s busier hotels is facing a premises liability complaint

    Paul Leary, Jr.

    Paul Leary, Jr.

    by a city resident who alleges she was injured as a result of tripping on broken sidewalk, a defect she blames on the long-standing practice of using the pedestrian walkway as a makeshift loading dock.

    Cynthia Davis filed suit earlier this month at Philadelphia’s Common Pleas Court against The Ritz-Carlton Philadelphia over claims that she sustained a host of hip, knee, ankle and back injuries as a result of her July 11, 2011 fall outside of the Center City hotel.

    The place of lodging, which is located at Ten Avenue of the Arts, and abuts a public sidewalk on three sides, is faulted for regularly “willfully and maliciously” blocking and obstructing the highly traveled pedestrian walkway with delivery trucks, hotel supplies and other materials.

    The defendant does not have a permit or license from the City of Philadelphia to use the sidewalk as a makeshift loading dock, the suit says, and the activities undertaken by the hotel in this area of the city has caused the concrete sidewalk and granite curbing outside of the hotel to break and crack.

    It was the defective walkway that caused the plaintiff’s injuries, the complaint alleges.

    The lawsuit states that there are more than 20 different areas where the sidewalk and curbing is broken and cracked within a 50-foot section of the walkway on the northwest side of the Ritz-Carlton.

    Nearly every day, the complaint states, agents, employees and contractors working with the hotel use the “very highly traveled public pedestrian right-of-way to enter and leave the hotel and knew and/or should have known of the damage to the sidewalk and curbs.”

    Additional defendants named in the litigation are The Ritz-Carlton Hotel Company LLC and Marriott International.

    Davis, the plaintiff, had to seek treatment at Thomas Jefferson University Hospital’s emergency room shortly after her fall outside of the hotel, the suit says, and from mid-July 2011 to the present the woman has been evaluated, diagnosed and treated by various area doctors and professionals, all of whom have informed Davis that her injuries were likely caused by her fall outside of the downtown Philadelphia hotel.

    As a result of her injuries, the plaintiff has experienced pain, discomfort, frustration, embarrassment, loss of enjoyment of life’s pleasures and an inability to attend to her regular activities, the suit states.

    Davis claims she has also sustained a loss of earnings and earning potential.

    The lawsuit goes on to allege that prior to filing her civil action, Davis approached the hotel about the incident, but that a Marriott claims services representative informed the woman that the insurance benefits she sought in connection with her injuries would be denied.

    To this day, the allegedly defective conditions outside of the hotel have not been corrected, the complaint states.

    The lawsuit accuses the City of Philadelphia of showing favoritism toward the defendants relating to the allowance of the makeshift loading dock in an area where such activities shouldn’t legally be taking place.

    Davis seeks $50,000 in compensatory and punitive damages for each count listed in the complaint.

    She is being represented by Philadelphia attorney Geoffrey V. Seay.

    Lawyers representing the defendants recently filed a petition in federal court seeking to transfer the matter out of Common Pleas Court and into the U.S. District Court due to diversity jurisdiction and because of a contention that the damages sought by the plaintiff would exceed the jurisdictional limit in a Pennsylvania state court.

    The defendants are being represented by attorney Paul Leary, Jr., of the Philadelphia law firm Cozen O’Connor.

     

    The state court case ID number is 130701517 and the federal case number is 2:13-cv-05072-TON.


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    A Pennsylvania woman is suing the makers of the Yaz birth control drugjustice pendulum logo over allegations that she sustained deep vein thrombosis as a result of her taking the oral contraceptive.

    Dana Dougherty filed suit on Sept. 3 in federal court in Philadelphia against Bayer Pharmaceuticals, Berlex Laboratories and various subsidiaries of the two drug companies over claims that she became injured due to her ingestion of Yaz and/or Beyaz.

    The plaintiff was diagnosed as having deep vein thrombosis on Sept. 7, 2011, the lawsuit states.

    Yaz, which obtained FDA approval in 2006, has the active ingredient drospirenone, a diuretic, which creates unique risks compared to other oral contraceptives and is known to cause problems including deep vein thrombosis, the complaint states.

    “Despite the wealth of scientific information available, Defendant ignored the correlation between the use of Yaz and Beyaz and the significantly increased risk of deep vein thrombosis and still promoted, sold, advertised, and marketed the use of Yaz and Beyaz without sufficient warnings,” the lawsuit reads.

    The complaint goes on to state that the Food and Drug Administration issued a warning letter to Bayer in the fall of 2008 admonishing the company for misleading advertisement, reiterating that the marketing for the drug was misleading because it promoted Yaz for medical conditions “beyond the limits of FDA approval,” and adding that because Yaz contains drospirenone, the medication has additional risks such as the possibility that it could cause hyperkalemia in some patients, possibly resulting in potentially serious heart and other health problems.

    The FDA also warned in the letter that Yaz does not result in completely clear skin – the drugmaker had advertised that the medication had the added benefit of preventing or reducing acne – and the government chastised Bayer for its television advertisements that “misleadingly overstate the efficacy of the drug,” according to the complaint.

    “Bayer ultimately agreed to spend at least $20 million on corrective TV advertisements and to submit all Yaz advertisements to the FDA for advanced screening for the next six years,” the suit reads.

    Overall, the plaintiff accuses the defendants of failing to provide adequate warnings to doctors, the health care community and the public about the risk of serious adverse events such as those described in the complaint.

    Dougherty, the plaintiff, says she suffered a deep vein thrombosis in her right leg in early September 2011 while taking Yaz and/or Beyaz.

    The injury required inpatient hospitalization and continuing medical treatment.

    “Despite the fact that Defendants knew or should have known of the serious health risks associated with the use of Yaz/Beyaz, Defendants failed to warn Plaintiff and/or her health care providers of said serious risks before she used the product,” the lawsuit states.

    Had Dougherty been aware of the true risks and dangers associated with the birth control medication, she would have never used the drug, the suit says.

    Dougherty claims her injury could complicate potential future pregnancies.

    The lawsuit contains counts of fraudulent concealment, strict liability, breach of warranty, negligent failure to warn, negligent misrepresentation, negligence, fraud, and violations of the Deceptive Trade Practices Act.

    The plaintiff seeks compensatory and punitive damages in excess of $350,000, plus costs, attorney’s fees and other relief.

    Dougherty is being represented by Glenside, Pa. attorney Brian P. McVan, of the firm McVan & Weidenburner.

     

    The federal case number is 2:13-cv-05135-NIQA. 


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    A military veteran who uses a motorized wheelchair because he lost a leg in

    Sayde Joy Ladov

    Sayde Joy Ladov

    Vietnam is suing the makers of a wheelchair lift for injuries he allegedly sustained after falling from the device.

    Ronald Smiley, who resides in Philadelphia, filed suit on Sept. 4 at the U.S. District Court for the Eastern District of Pennsylvania over back and shoulder injuries he claims to have sustained on Sept. 23, 2011 outside of his home.

    The defendants named in the civil action are Franklinville, N.J.-based Artisan Builders and The Wheelchair Man Company of Clementon, N.J.

    Smiley was leaving his home on that fall day two years ago, riding his scooter onto the wheelchair lift that had previously been installed by Artisan, when the locking mechanism on the device failed, causing the plaintiff to plunge 12 feet below to the street, according to the lawsuit.

    The plaintiff had purchased the wheelchair lift from defendant Wheelchair Man while workers employed by Artisan installed the device at the home, the suit shows.

    The complaint states that the wheelchair lift in question had to be modified by Artisan to accommodate the size of Smiley’s scooter.

    As a result of the modification, the metal ramp where the locking latch engages was filed down, which led to the safety alarm mechanism being altered.

    The complaint accuses the defendants of negligence and carelessness for failing to properly install the lift, modifying the lift against the instructions of the manufacturer, failing to advise the plaintiff that the lift should not be modified, and failing to properly install, inspect, maintain and repair the lift in question.

    As a result of his fall, the plaintiff sustained injuries to various discs in his back, as well as shoulder pain and damage to his nerves and nervous system.

    Smiley has been, and likely will be in the future, required to undergo medical attention and care.

    The plaintiff has been prevented from undertaking his daily activities and chores due to his injuries and he has suffered financial losses due to his paying for medical care, the suit states.

    Smiley seeks judgment in excess of $150,000.

    The plaintiff’s wife, Marilyn Smiley, seeks equivalent damages for loss of consortium.

    The couple are being represented by attorney Sayde J. Ladov, of the firm Dolchin, Slotkin & Todd.

     

    The federal case number is 2:13-cv-05152-CDJ.


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    An $8 million settlement has reportedly been reached in a case in which a Philadelphia

    Alan M. Feldman

    Alan M. Feldman

    woman sued over the infant shoulder-sling related death of her young child.

    News reports and court records show that Anthoinette Medley and the manufacturer of the baby sling, Infantino LLC, have agreed to settle the woman’s wrongful death case out of court.

    Medley filed suit at Philadelphia’s Common Pleas Court in June 2010 over the February 2009 death of her 7-and-a-half-week-old child, Nelsir, who suffocated while being carried in a SlingRider made by the defendant.

    Nelsir was carried in one shoulder sling while his twin brother, Tamir, was carried in another on his mother’s other arm.

    The woman was reportedly out running errands at the time and had her children with her.

    Medley claimed in her civil suit that she eventually noticed drops of blood on Nelsir’s bib. When she checked on the baby, he appeared unresponsive, records show.

    Nelsir was pronounced dead after being transported to a local hospital.

    A city medical examiner soon surmised that the death could have been attributed to suffocation from the SlingRider, a device designed to carry a child on one’s shoulder, although the official cause of death was apparently never directly attributed to the product.

    A year after young Nelsir’s death, Infantino, which is based in California, voluntarily recalled the product from the market, citing a warning issued by the U.S. Consumer Product Safety Commission that told of the potential dangers relating to these types of baby slings, according to past news reports.

    Complaints that led to the product’s recall told of breathing hazards associated with the design of the bag-like sling.

    It was said that the material used to make the sling could block air from getting into an infant’s airway, and that the design of the sling itself could lead to a child’s airflow being restricted, the news reports stated.

    In court papers, Medley, the mother, complained about the fact that Infantino didn’t issue its recall until a fourth child’s death was reported relating to the product.

    The court record shows that other defendants were initially named in the lawsuit alongside Infantino, including K-Mart and Wal-Mart, retail outlets that sold the SlingRider, but that those defendants were ultimately dismissed from the litigation.

    In a recent story appearing in the Legal Intelligencer law journal, attorney Walter Swayze, III, of the firm Segal McCambridge Singer & Mahoney, which represented Infantino, said that his client denied liability from the beginning of the Medley case, “and while it was prepared to take the case to trial, nonetheless agreed to settle the case given its unique facts, the court in which it was pending, and the fact that payment on its behalf was covered by Infantino’s insurance.”

    Records show that Medley, the plaintiff, was represented by attorney Alan Feldman, of the Philadelphia firm Feldman Shepherd Wohlgelernter Tanner Weinstock & Dodig.


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    A suburban Philadelphia woman is suing the Transportation SecurityTSA logo Administration over allegations that she sustained a variety of injuries after a TSA agent knocked her to the ground while the plaintiff was preparing to board a San Francisco-bound flight at Philadelphia International Airport last year.

    Freya B. Koss, who resides in Wynnewood, Pa., filed suit last week against the TSA, the John Doe agent and the U.S. Government over injuries she claims to have sustained on March 31, 2012 at the airport.

    Koss had just gone through the security scanning process at the TSA checkpoint at Gate C2 when, while she was retrieving her personal belongings, she was knocked over by the male TSA agent, who is not identified by name in the lawsuit.

    The man was apparently not paying attention to his surroundings when he backed up into the plaintiff, the suit claims.

    The plaintiff ended up smacking her left hip on the ground and suffered injuries to her legs, back and other areas of her body, the complaint states.

    The injuries included fractures, torn ligaments, bruises and contusions, muscle tears, disc herniations, as well as psychological injuries, humiliation, embarrassment, anxiety, and a loss of life’s pleasures, the suit says.

    Koss, who claims she incurred medical costs due to her need for doctors’ treatment, faults the TSA agent for failing to watch where he was going at the time he allegedly backed up into her.

    The defendants are accused of general negligence.

    Koss, who is being represented by Bucks County attorney W. Austin Allen, II, seeks $150,000 in monetary damages, as well as interest, costs and other court relief.

    The complaint was filed on Sept. 6 at the U.S. District Court in Philadelphia.

     

    The federal case number is 2:13-cv-05208-TON. 


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    The recent $765 million settlement reached between the NFL and the

    U.S. District Judge Anita Brody

    U.S. District Judge Anita Brody

    former players who sued over concussion related injuries may have been, as the mediator termed it, “historic,” but the move still requires approval by the federal judge who was assigned to oversee the multidistrict litigation.

    And the announcement that the National Football League and the injured former professional players reached an apparent amicable resolution to their case doesn’t mean that the litigation is over.

    The MDL also named as defendants helmet manufacturer Riddell, and as of late August, talks between that defendant and the former players appeared to be continuing.

    In an order filed on Aug. 29, U.S. District Judge Anita Brody, the federal jurist chosen to oversee the National Football League Players’ Concussion Injury Litigation at the Eastern District of Pennsylvania, noted that the proposed settlement between the NFL and the former athletes doesn’t include the Riddell defendants.

    Brody ordered the talks between Riddell and the plaintiffs to remain confidential, with the judge writing that “they and their counsel must refrain from publicly discussing the mediation process or disclosing any discussions they may have as part of that process.”

    As for the proposed $765 million settlement between the NFL and the former players, which covers concussion related compensation, future medical exams and medical research for retired players and their families, Brody commended the parties for coming to an agreement, but noted that she still would reserve judgment on the “fairness, reasonableness, and adequacy of the settlement until the motions for preliminary and final approval of the settlement are filed.”

    “Right now, however, I commend the parties and their counsel on their extensive and good faith negotiations and thank Judge Phillips for his diligence in assisting the parties in reaching an agreement,” Brody wrote.

    Brody was referring to former federal judge Layne Phillips, whom she had assigned to handle mediation between the parties.

    The judge ordered the plaintiffs and defendants into mediation in early July, a move that surprised some who had followed the litigation.

    Three months prior, the parties had convened in Brody’s courtroom at the federal courthouse in downtown Philadelphia to address the NFL’s motion to dismiss the case.

    That hearing drew local, national and international media attention given the size and scope of the litigation.

    The MDL contained more than 4,500 former football players who alleged the league mislead athletes and their families on the long-term health risks associated with on-the-field head injuries, namely concussions.

    In her Aug. 29 order, Brody wrote that from the outset of the litigation, “I have expressed my belief that the interests of all parties would be best served by a negotiated resolution of this case. The settlement holds the prospect of avoiding lengthy, expensive and uncertain litigation, and of enhancing the game of football.”

    Reaction following the announced settlement was varied.

    Paul Anderson, an attorney who closely followed the case with his website, NFLConcussionLitigation.com, wrote in a Sept. 6 post that his initial reaction to the deal was that it was a fair ending to the matter.

    “Most importantly, it is beneficial to the players and families currently suffering with severe neurological disorders,” Anderson wrote. “Yes, the dollar figure pales in comparison to the annual revenue of the NFL and teams. The fact that the NFL’s alleged misconduct may never be discovered – unless certain players opt out – is a detriment to the public.”

    But, Anderson continued, “when balanced against the lives of many players and families that are on the verge of bankruptcy and death, the urgency is clear. Guaranteed money now is much better than no money after years of litigation.”

    Anderson, who lives and works in Missouri, wrote that he has always maintained that regardless of the outcome of this particular case, the most import thing has already happened: “a new era of concussion awareness was born.”

    As for the remaining case against Riddell, the helmet manufacturer, there’s no telling how the mediation is faring as this point.

    Recent history shows, however, that the Riddell defendants may be on the hook for some amount of damages.

    This past spring, a jury in Colorado determined that Riddell failed to adequately warn a former football player about the dangers of concussions, with the state case ending in a $3.1 million plaintiff’s verdict.

    In that case, jurors weighed in favor of Rhett Ridolfi, a 22-year-old man who sustained a head injury five years ago while participating in a high school football drill.

    Anderson, the attorney who operates NFLConcussionLitigation.com, wrote in a past blog post that while that verdict appeared to be an “anomaly, it could indicate that juries are placing more responsibility on manufacturers to explicitly warn about the limitations of helmets.”

    During the hearing at U.S. District Court in Philadelphia this past April, attorneys for Riddell argued that the case against their clients should be heard separately from the case against the NFL and NFL Properties.

    A motion to sever was never approved by Brody, with the judge ordering the Riddell defendants into mediation as well.

    As for the case against the NFL defendants, while mediation produced a proposed dollar figure to settle the ex-players’ claims, one thing that remains to be seen is just how much money will be going to plaintiffs’ lawyers, since the process to determine attorneys’ fees is still ongoing.

    Brody has not yet said when she would approve or deny a motion seeking fees for the lawyers who represented the plaintiffs.


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    A Garden State man claims he sustained serious facial injuries at aLeonard G. Villari suburban Philadelphia home where he was hired to do improvements.

    Anthony C. Orbanus, who resides in Mount Holly, N.J., alleges that he suffered facial fractures in the spring of 2012 when he was retained by the property owner to renovate and repair the defendants’ outdoor deck.

    In a civil suit filed on Sept. 6 at the federal courthouse in Philadelphia, Orbanus claims he sustained a fractured right cheek bone, facial numbness and swelling, contusions and lacerations of the lips, mouth and jaw, right eye swelling, pain and vision problems, permanent scarring, nerve damage and other problems after an April 28, 2012, incident at the home of Matthew B. Cataldi and Kelly Ann Geria.

    On that day, the plaintiff was helping Cataldi in framing the outdoor deck when, after the defendant attempted to square the framing with a hand-winch pulley system, Orbanus was struck in the face by the device, the suit alleges.

    Cataldi had obtained a cloth strap, a metal hook, and a three-and-a-half-inch nail, and used the various items to secure the hand winch to a two-inch-by-six-inch framing post, the suit shows.

    Cataldi, however failed to properly secure the cloth strap to the metal hook, and also failed to adequately secure the strap to the framing post, although he still asked the plaintiff, who stood about 14 feet from the deck framing, to crank the hand winch.

    At this point, the cloth strap broke loose from the framing post and “violently” snapped backward, striking Orbanus on the right side of his face, according to the civil action.

    Cataldi is accused of negligence for failing to exercise reasonable care, instructing the plaintiff to operate a hand winch that the defendant failed to safely assemble, and using an improper cloth strap to secure the deck’s framing post to an improperly assembled hand winch.

    Geria, the female defendant, is also accused of negligence, with the plaintiff faulting the woman for failing to provide the appropriate tools and instruments necessary to safely renovate her outdoor deck, permitting Cataldi to use inappropriate tools to repair the structure, failing to secure the necessary building permits for the improvement work, and failing to supervise Cataldi while he renovated her deck.

    The complaint doesn’t seem to specify the nature of the relationship between Cataldi and Geria. It only says that Geria is the owner of the Hatboro, Montgomery County property and both she and Cataldi live at, and are possessors of, the home.

    The plaintiff says that his injuries left him unable to perform his daily duties and activities, and caused him great physical pain, mental anguish and humiliation.

    Orbanus also maintains that his injuries have cost him monetarily, with him being caused to spend large sums of money for medicine and hospitalization.

    The plaintiff seeks more than $150,000 in compensatory damages, plus interest, attorneys’ fees and other court relief.

    The complaint was filed by Philadelphia attorney Leonard G. Villari, of the firm Villari, Lentz & Lynam.

     

    The federal case number is 2:13-cv-05207-CDJ. 


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    A surviving, but horribly disfigured, victim of June’s deadly building

    Andrew Stern

    Andrew Stern

    collapse in Philadelphia will be allowed to give a deposition as soon as she is physically able, even though a trial judge has put on hold civil litigation arising from the tragedy while a grand jury continues its criminal probe.

    Philadelphia Common Pleas Court Judge Mark Bernstein this week granted a request by an attorney representing Mariya Plekan to have his client sit for a deposition despite the judge having previously issued a stay of civil suits stemming from the June building collapse, which killed six people and injured more than a dozen others.

    Plekan, who immigrated to the United States from Ukraine, was crushed in the rubble of the collapse, making her the most seriously injured surviving victim to come out of the workplace incident.

    The collapse occurred when an unsupported wall from a construction site toppled over an adjacent Salvation Army thrift shop on Market Street in bustling downtown Philadelphia on June 5.

    Kline & Specter attorney Andrew Stern said his client endured significant trauma to the lower portion of her body, with doctors having to amputate everything below the woman’s waist, hip joints included.

    Plekan was just recently taken off of a ventilator that assisted with her breathing, but she’s in renal failure, is being fed intravenously, and is susceptible to infection.

    Stern, who spoke by phone Tuesday afternoon with the Pennsylvania Record, said he had filed Plekan’s lawsuit after Bernstein’s earlier order issuing a stay of all litigation that had been filed on behalf of victims and those who perished in the building collapse.

    On the same day he filed the complaint, Stern also filed a motion that would allow him to depose Plekan at the first possible opportunity given the middle-aged woman’s deteriorating state.

    Stern had already taken the deposition of trauma surgeon Jose Pascual, during which the physician said imminent death was a very real possibility.

    “Basically, he said yes, she’s at significant risk for sudden death,” Stern said.

    While much of Plekan’s body is in poor condition, her brain and heart appear to be in good working order, and Stern said he wanted to take advantage of that by getting his client to testify as soon as humanly possible.

    Stern said he had previously spoken with counsel for Griffin Campbell, the contractor who was hired to do the demolition job, and there didn’t appear to be any opposition to having Plekan given a deposition at this juncture, despite Bernstein’s stay.

    Up until Monday, however, Stern had only worked out arrangements with Campbell’s legal team, not the lawyers representing other defendants in the civil suits, who include Richard Basciano, the owner of the Market Street building that was being demolished, his company, STB Investments, and the Salvation Army.

    During a hearing at Common Pleas Court, however, other defense attorneys acquiesced to Stern’s request to have Plekan’s testimony taken as soon as she is feeling up to it, Stern said.

    As to when the deposition may take place, it will all depend upon Plekan’s progress in the coming days, Stern said.

    “She’s very weak,” he said.

    If Plekan does become fit enough to offer her recollection of the events of June 6, Stern expects some interesting testimony that would surely help his case.

    “Her brain is normal and she has excellent recall,” Stern said. “Her brain was spared.”

    Stern hopes his client may be able to give her deposition sometime next week, but only time will tell.

    In addition to Bernstein allowing Plekan’s deposition, the judge also partially lifted his stay to allow plaintiffs’ attorneys to obtain certain documentation relating to the building collapse.

    If any of the defendants are, or may be, criminally charged in connection with the building collapse, however, they can assert Fifth Amendment opposition to the request for such evidence.

    Stern and other lawyers appear generally pleased with the course of events thus far.

    “What happened yesterday was very helpful,” Stern said of Monday’s hearing.

    Bernstein also ordered that all pending civil suits relating to the building collapse would be consolidated.

    The judge is expected to meet monthly with lawyers involved in the civil cases to get briefed on the status of the parties’ cases.

    After the hearing, plaintiffs’ attorney Robert Mongeluzzi told local media that he was pleased with Bernstein’s decision allowing lawyers to get their hands on certain documents that would help their respective cases.

    “What we can do is get the documents which in many respects form the backbone of our case, and defer asking questions to witnesses who may be under criminal investigation to a later time,” Mongeluzzi told NBC 10 in Philadelphia.

    Another plaintiff’s attorney, Steven Wigrizer, also seemed pleased with the court’s ruling.

    “Documents sometimes tend to disappear,” he told the television news station. “We want production of those documents now before we run into what we run into in so many cases – ‘we’re not sure, we don’t know where they are.’”

    Bernstein also said he wouldn’t force those to testify if they face criminal charges.

    “They do have Fifth Amendment rights and he [Bernstein] struck a very careful balance,” Stern told NBC 10.

    Defense lawyers also weighed in.

    “I thought [Bernstein’s] ruling was fair and appropriate under the circumstances so long as everybody’s rights are protected,” Salvation Army attorney Eric Weiss told the station.

    In previous filings, plaintiffs’ lawyers had contended that documents such as email communications between various parties involved in the building collapse showed that more likely could have been done to avert the tragedy.

    It is unclear precisely what documents attorneys will be seeking as the discovery phase moves forward.

    Stern said that at this juncture, discovery could move forward only with regard to damages, not liability.


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    A U.S. District Court judge has granted remand in a Paxil products liability

    U.S. District Judge John R. Padova

    U.S. District Judge John R. Padova

    case against GlaxoSmithKline, agreeing to the plaintiff’s request to transfer the matter back to the Philadelphia Court of Common Pleas, where the suit was originally filed two years ago as part of the Paxil Pregnancy Mass Tort Program.

    Judge John R. Padova, sitting in the Eastern District of Pennsylvania, granted a motion to remand a case brought by Amy Lynn Hallock on behalf of her child, Joseph Cammarota, to state court.

    The plaintiff is suing GlaxoSmithKline over her son’s critical heart defect, an ailment that required surgery, and one the woman blames on her taking the antidepressant Paxil during pregnancy.

    Hallock filed her complaint on Sept. 30, 2011, at Common Pleas Court as part of the Paxil mass tort docket, and the drug company filed a motion to transfer the action to federal court a month later, the record shows.

    As Padova, the federal judge, put it, however, the Hallock case has an “unusually complicated procedural history,” with the record showing that GSK subsequently filed removal notices with regard to various Paxil cases that had been filed at Philadelphia’s Common Pleas Court as part of the mass tort program, arguing that the federal court has subject matter jurisdiction over the products liability claims.

    In late 2011, the record shows, the Hallock complaint was consolidated with other Paxil pregnancy cases before U.S. District Judge Timothy Savage for the purpose of deciding their identical motions to remand.

    Savage ultimately granted the various motions to remand to state court, determining that GSK is a Pennsylvania citizen for jurisdictional purposes and cannot remove a case from state court on the basis of federal diversity jurisdiction, Padova’s recent judicial memorandum notes.

    The Hallock case was therefore sent back to state court along with the others.

    The parties in the Hallock case went on to litigate the case as part of the mass tort program at Common Pleas Court, the record shows, and the case was scheduled for trial this coming November in state court.

    In late June, however, GSK once again filed a motion to transfer the matter to the federal venue after a U.S. Third Circuit Court of Appeals ruling determining that GlaxoSmithKline Holdings’ principal place of business is in Delaware.

    The federal appeals judges held that because neither GSK nor GSK Holdings is a Pennsylvania citizen, the pharmaceutical manufacturer could properly remove Paxil cases from state court to the U.S. District Court in Philadelphia pursuant to diversity of jurisdiction.

    The defendant filed its removal notice on June 26; Hallock responded with another motion to remand two days later.

    Attorneys for GSK argued that the Hallock case should not be remanded because the one-year limitation on removal doesn’t apply to the June 26 removal of this case, the record shows.

    Padova concluded that the case was not removable at the time it was commenced in state court, therefore triggering the potential application of the one-year limitation period.

    The judge still had to grapple with whether or not the case could be removed to U.S. District Court for a second time since court rules don’t specifically provide a procedure for the second removal of a case that had been previously remanded.

    The defendant cited the case of Doe v. American Red Cross, in which the Third Circuit considered the consolidated interlocutory appeals of plaintiffs who had unsuccessfully moved to remand negligence actions brought against the Red Cross after the cases had been removed from state court by the Red Cross for the second time.

    In that case, the Third Circuit ruled that the Red Cross’s second removal was not an appeal of, or request for review of, the district court’s previous remand order because the Red Cross removed for the second time on a basis different from the first removal.

    The Third Circuit ended up affirming the District Court’s decision in that case, concluding that while the Supreme Court found the Red Cross’s charter conferred federal jurisdiction in a different case, the Doe case had been justifiably removed.

    In the present case, Padova wrote that he agreed with GSK that Doe provides authority for the second removal of the Hallock action.

    “In this case, as in Doe, the district court found that the case stated by the initial pleading was not removable,” Padova wrote.

    Like in Doe, Padova wrote, GSK’s June 26 removal of the Hallock case is not a request for review of the district court’s previous remand order because GSK removed for the second time on a different basis than that of the first removal.

    Still, Padova was tasked with determining whether or not there was, as GSK argued, an “equitable exception” to the one-year limitation on removals of certain actions, such as the Hallock suit.

    In determining whether such an exception applies, courts have generally considered how vigorously a plaintiff prosecuted their action in state court, whether the defendants were complicit in any delay in removal of the case, and whether or not the plaintiffs’ joining of any non-diverse defendants amounted to “flagrant forum manipulation,” according to Padova’s memorandum.

    Of the three factors, Padova wrote, GSK could only arguably assert the second, which would be that the defendant was not complicit in any delay in the case’s removal.

    “While we recognize that GSK was not complicit in the removal delay in this case, we conclude that this fact is merely neutral, and neither favors nor disfavors an equitable exception,” Padova wrote.

    The other two factors weigh against granting an equitable exception, the judge stated.

    Padova went on to write that for the past year-and-a-half the plaintiffs have “vigorously prosecuted this case as part of the Paxil Pregnancy Mass Tort Program. For the past six years, the judges in the Mass Tort Program have uniformly ruled on discovery issues in hundreds of cases like this one.

    “Moreover,” Padova wrote, “many of the scientific issues that have arisen in this case have already been litigated in the Mass Tort Program and may have to be relitigated if this case is not remanded. Plaintiffs have expressed particular concern that, if this case is not remanded, GSK will revisit issues that have been resolved in the Mass Tort Program, but for which no written order was entered in the docket of this case.”

    Padova also noted that the plaintiffs have already prepared their case using expert witness testimony and opinions in accordance with state standard governing the admissibility of scientific testimony, and that if removal to federal court was permitted, expert testimony would be subject to a different standard.

    This would cause “significant expense and delay,” Padova wrote.

    In this case, the vigorous prosecution factor weighs heavily in favor of strict enforcement of the one-year limitation period, the judge stated.

    In the end, Padova concluded that GSK has not satisfied its burden of establishing that an equitable exception to the one-year limitation on removal is warranted in this case.


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    A three-judge Pennsylvania Superior Court panel has thrown out a $14.5

    Pennsylvania Superior Court Judge Jacqueline O. Shogan

    Pennsylvania Superior Court Judge Jacqueline O. Shogan

    million plaintiff’s verdict in an asbestos case out of Philadelphia, determining that the trial court should have granted a mistrial because the plaintiff’s attorney made prejudicial remarks during closing arguments, and also due to the fact that the judge erred in allowing certain expert witness testimony.

    Crane Co., Hobart Brothers and The Lincoln Electric Company, who were the defendants who made it to trial in the case, appealed the Feb. 23, 2011, multi-million-dollar judgment in favor of plaintiff Darlene Nelson, who sued on behalf of her late husband, James Nelson, over contentions that the trial court erred in allowing the admission of Nelson’s expert witness testimony that every asbestos exposure must be considered a cause of mesothelioma, according to the appellate court ruling, which was handed down on Sept. 5.

    The appeals judges vacated the hefty plaintiff’s award and remanded the case to the Philadelphia Court of Common Pleas for a new trial on damages.

    Darlene Nelson sued a host of companies that dealt in asbestos products over the mesothelioma related death of her husband, who contended he developed the disease as a result of occupational exposures during his career at the Lukens Steel Plant in Coatesville, Chester County.

    James Nelson, who worked as a pitman, laborer, welder and mechanic at the plant during his decades-long career from 1973 to 2006, was diagnosed with mesothelioma in the winter of 2008, the record shows.

    He died a result of his cancer on Oct. 30, 2009.

    In her subsequent complaint, the widow alleged that her husband had been exposed to asbestos while working with pipe coverings, gaskets, packing, furnace cement and something called “hot tops,” which is an asbestos-containing board.

    In February 2010, attorneys for Hobart Brothers and The Lincoln Electric Company filed a motion seeking to preclude the testimony of plaintiff’s expert Daniel DuPont on the doctor’s “each and every breath causation” theory.

    Crane Co. and others filed similar motions.

    The court, which ordered the trial bifurcated, deferred the motions until the liability phase of the trial was under way.

    In early March 2010, following the completion of the first phase in the trial, the jury found damages in excess of $14.1 million for the plaintiff, the record shows.

    The deposition of DuPont, the plaintiff’s expert witness, was taken 10 days later.

    Attorneys for Crane Co. and the plaintiff agreed that defense lawyers would object to the “each and every breath testimony,” the record shows.

    Meanwhile, at the conclusion of phase two in the trial, jurors returned a verdict in favor of the plaintiff as to liability.

    The defense subsequently filed post-trial motions, which were ultimately denied by the trial court judge in late February 2011.

    Defense lawyers then filed their appeal with the state’s Superior Court.

    One argument on appeal was whether expert testimony that “every asbestos exposure must be considered a cause of disease” was legally sufficient to establish causation under the facts presented in this case in light of state court precedent.

    In another defense argument on appeal it was alleged that the trial court erred in denying a mistrial and in failing to grant a new trial in response to post-trial motions where the structure and size of the verdict demonstrated conclusively that the jury was improperly prejudiced after a lawyer for the plaintiff “repeatedly wrongfully appealed to emotion and interjected [their] conduct into his closing argument” at the conclusion of both phases of the trial.

    Examples given of the conduct included the plaintiff’s attorney improperly urging a specific minimum amount of damages by stating in his phase one argument that each of the 12 separate elements of non-economic damages was worth “at least $1 million,” and by improperly injecting alleged settlement discussions into his phase one closing argument by saying that Hobart and Lincoln “did not place an adequate ‘value’ on Decedent’s life, and ‘has it dawned on any of you yet that the reason we’re here and the only reason we’re here is because I can’t agree with these people with the value of my client’s life’ and ‘I can’t agree with any of these people on how much money should be awarded … for what has been done in this case …’”

    The appeals judges first turned their attention to the issue of whether or not the trial court improperly allowed the each and every exposure witness testimony by the plaintiff’s expert.

    DuPont, the expert witness, had testified that mesothelioma has a long latency period and that each and every exposure to asbestos is a substantial controlling factor in eventually developing disease.

    The Superior Court judges held that DuPont’s testimony was analogous to testimony in another asbestos mass tort case that was found to be inadmissible, and that the trial court’s admission of it in the Nelson case was inconsistent with Supreme Court precedent.

    “The admission of this prejudicial evidence was reversible error,” the appeals panel wrote. “Therefore, we vacate the judgment and remand for a new trial as to liability. Because of the resolution of this issue, we need not address the other issues raised relating to the liability phase of the trial.”

    The panel next turned to the issues raised as to the damages phase of the trial, including the defendants’ contention that the plaintiff’s lawyer made improper remarks during closing arguments.

    Hobart and Lincoln asserted that Nelson’s lawyer improperly asked the jury to award $12 million in pain and suffering damages, while Nelson countered that her attorney didn’t suggest a specific amount and that if there was prejudice, it was cured by the trial court’s jury instructions regarding damages.

    Hobart and Lincoln averred that the trial judge’s instructions on damages had no curative effect, and Crane averred that the plaintiff’s counsel improperly suggested a value of at least $1 million on each of 12 separate items of damages, the record shows.

    The appeals judges agreed with defense attorneys that Nelson’s lawyer suggested a value of at least $1 million for each of the 12 types of damages, and they disagreed with the trial court that its jury instructions cured the “taint of [Nelson’s] counsel’s improper suggestion of a specific sum for non-economic damages to the jury.”

    Superior Court Judges Jacqueline Shogan, David Wecht and James Fitzgerald participated in the decision.

    Wecht filed a separate dissent in which he disagreed with the majority’s conclusion that DuPont’s testimony was subject to exclusion as a matter of law, and the determination that a mistrial should have been declared due to Nelson’s attorney’s closing comments.

    “I believe, respectfully, that the learned majority has substituted its judgment for that of the trial court in determinations properly entrusted to that court’s discretion, which are reversible only for an abuse thereof,” Wecht wrote. “I detect no abuse of discretion in the trial court’s rulings on these issues.”

    As for the issue involving the expert witness testimony, Wecht wrote that the Nelson case is distinguishable from the case cited by the majority panel, Betz v. Pneumo Abex LLC.

    “While Betz is the most recent in a serious of opinions circumscribing the range of expert testimony that may be admitted to establish substantial causation in asbestos litigation, I do not believe that it is dispositive of the case at bar,” the jurist wrote.

    The Betz case, Wecht wrote, was one in which substantial causation rose or fell solely upon the every-exposure theory that is now disfavored under state law.

    In cases such as Betz, the jurist continued, the plaintiff had no choice but to rely upon the every-exposure theory because the exposure at issue was de minimus as to the defendants’ products.

    “Thus, the plaintiffs could establish substantial causation only if expert testimony based upon the every exposure theory was admitted,” he wrote. “The case before us, however, is distinguishable. James Nelson undisputedly was exposed to a great deal of asbestos-containing products over many years of employment, some of them undisputedly manufactured by one or more of [the defendants].”

    Unlike the plaintiff’s expert in Betz, Wecht wrote, DuPont, Nelson’s expert, was “intimately familiar with [Nelson’s] exposure history.

    Wecht also disagreed with the majority that the plaintiff’s attorney’s closing comments prejudiced the jury.


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    A judge has dismissed a complaint against GlaxoSmithKline’s chief

    U.S. District Judge Cynthia M. Rufe

    U.S. District Judge Cynthia M. Rufe

    executive officer by a woman who sued over her husband’s death, which she alleged was related to the diabetes drug Avandia, ruling that the plaintiff’s claim was barred by a previous settlement agreement she signed with the drugmaker.

    U.S. District Judge Cynthia Rufe, of the Eastern District of Pennsylvania, granted summary judgment to defendant Jean-Pierre Garnier in a pro se complaint he was facing by Madelyn Kirbyson, whose husband’s Sept. 27, 2005 death by myocardial infarction came after he took Avandia daily from late February the year prior up until he died.

    Rufe refused to allow the civil suit against GlaxoSmithKline’s chief executive to proceed, she wrote, because the plaintiff settled nearly identical claims with the pharmaceutical company in the fall of 2011.

    At the time, Kirbyson had signed a settlement agreement and confidential release in which the woman would forfeit her right to file any future claims against GSK and its officers in relation to her husband’s death.

    The release, the record shows, defined GSK as the drug company as well as all past, present and future officers, directors, employees and members.

    By the terms of the release, the judicial memorandum states, Kirbyson agreed to not seek anything further from GSK or “any other person or entity, including any other payment, in regard to such claims.”

    In weighing in on the parties’ cross-motions for summary judgment, Rufe determined that Garnier was correct to seek dismissal of the suit due to the plaintiff’s previous signing of the settlement agreement and confidential release.

    “It is undisputed that, prior to the filing of the present case against Mr. Garnier, Plaintiff asserted similar claims against GSK itself,” Rufe wrote. “Pursant to [the settlement and release], GSK made payment to Plaintiff of a confidential sum as consideration for the ‘release of all past, existing and future claims relating to Avandia, whether known or unknown.’”

    Kirbyson signed the release on Oct. 12, 2011, in the presence of a witness, “with an acknowledgement that she understood the release and had the opportunity to obtain the advice of counsel regarding the release,” Rufe noted in her memorandum.

    The woman’s lawyer signed the release about two weeks later.

    After pouring over the release and the present complaint, Rufe determined that the document “explicitly covered all Avandia-related injuries to Plaintiff’s husband and her own derivative claims, and the claims set forth in the present complaint arise out of the same alleged conduct by GSK and the same alleged injuries to Plaintiff as the settled case,” the memorandum states.

    Garnier, who was CEO of the drug company at the time of the plaintiff’s husband’s injuries, “clearly falls within the category of Related Entities and Persons,” Rufe wrote. “Accordingly, the Court finds that Plaintiff’s claims against Mr. Garnier are barred by the Release.”

    Rufe also noted that under the laws of the State of Delaware, where the release was signed, an “unambiguous signed release is binding on the parties unless executed and procured by fraud, duress, accident or mutual mistake.”

    The judge, however, refused to grant Garnier the attorney’s fees and costs he sought in connection with the litigation.

    This decision came despite the fact that the release agreement permits the awarding of such fees.

    Rufe dismissed the request for costs and attorney’s fees without prejudice to give Garnier a chance to renew his request for such reimbursement should the plaintiff file an unsuccessful appeal or otherwise continue to litigate claims barred by the terms of the release.


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    A Bucks County lawyer representing Best Buy in a personal injury case filedjustice pendulum logo last month by a Philadelphia couple has filed a petition to transfer the civil action from state court to federal court.

    Attorney Francis W. Worthington, of the Jamison, Pa. firm Worthington & Worthington, filed a notice of removal on Sept. 12 at the U.S. District Court in Philadelphia seeking to move a lawsuit initiated by husband and wife Kevin and Donna Jackson from the Philadelphia Court of Common Pleas to the Eastern District of Pennsylvania.

    The couple, who reside in Philadelphia’s Roxborough neighborhood, are suing the electronics retailer over an Aug. 20, 2011, incident at the Best Buy store at 9940 Roosevelt Boulevard in Northeast Philadelphia in which Kevin Jackson alleges he sustained numerous injuries after falling over a flatbed cart that had been negligently left in the aisle way.

    Jackson maintains that employees working for the defendant were negligent when they caused the obstruction in an area frequented by shoppers.

    The plaintiff claims that as a result of his fall he sustained numerous physical injuries, including disc herniations and an aggravation of pre-existing degenerative disc disease, spinal cord compression, both thoracic and lumbar sprain and strain, knee and elbow contusions, carpal tunnel syndrome, and trapezius sprain and strain.

    The plaintiffs claim that they had to spend large sums of money to treat Kevin Jackson’s injuries.

    The husband also alleges that his injuries have prevented him from attending to his daily activities and duties.

    The lawsuit seeks more than $50,000 in damages, plus attorney’s fees, litigation costs and other relief.

    In his removal petition, Worthington, Best Buy’s counsel, wrote that the case should be litigated in federal court because there is diversity of citizenship among the parties, and due to the fact that the amount in controversy is likely to exceed $75,000, not the $50,000 the plaintiffs say they are after.

    An action is removable to U.S. District Court, Worthington wrote, if the damages sought are likely to be in the range of $75,000 or more.

    The lawsuit contains claims of negligence and loss of consortium.

    The Jackson’s are being represented by attorney Salvatore Larussa, Jr., of the Law Offices of Stephen W. Bruccoleri, who filed the suit on Aug. 8 in Common Pleas Court.

     

    The federal case number is 2:13-cv-05315-TON.


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    A self-employed produce supplier alleges in a civil complaint that he

    Edward J. Zanine

    Edward J. Zanine

    fractured his elbow and sustained head injuries after coming into contact with a piece of equipment at a Philadelphia food distributor.

    Paraskevas Papadopoulos claims he was severely injured on Aug. 18, 2011, when visiting the Philadelphia Wholesale Produce Market run by the Procacci Bros. Co. at 6700 Essington Avenue in South Philadelphia.

    While at the premises with the goal of purchasing produce for resale, the plaintiff claims that while en route to pick up his order, he was struck by a piece of equipment, believed to be a powerjack, that was being operated by another patron.

    After he came into contact with the device, Papadopoulos fell to the ground, sustaining a fractured right elbow with chipped bone, a concussion and other head injuries, lower back injuries, and other physical problems including headaches and dizziness.

    The plaintiff also claims he sustained mental anguish, emotional suffering, and economic and other losses as a result of the marketplace incident.

    The suit accuses the defendants of negligence for improper operation of the mechanical equipment, operating mechanical equipment with excessive speed under the circumstances, failure to keep a proper lookout, failure to warn the plaintiff of the operation of the equipment, improper training and supervision of the employee who was operating the device, and being otherwise careless and negligent in fact and at law.

    The various defendants named in the lawsuit are as follows: Procacci Bros. Co., Procacci Bros. Sales Corp., J. Ambrogi Food Distribution Inc., Tom Reilly, Regional Produce Cooperative Corp., and Garden State Farms.

    Reilly, identified as an employee of J. Ambrogi Food Distribution, was the man who allegedly struck the plaintiff with the piece of equipment.

    Reilly, the suit says, was also purchasing produce from the marketplace at the time of the incident.

    The plaintiff and his wife, Susan Papadopoulos, say they are seeking more than $50,000 in damages, plus interest and litigation costs.

    They are being represented by attorney Edward J. Zanine, of the Bucks County firm Flager & Associates.

    While the suit was filed last month at the Philadelphia Court of Common Pleas, the record shows that lawyers representing the defendants are seeking to transfer the matter to the U.S. District Court in Philadelphia.

    In a recently filed removal petition, attorneys David F. White and Adam M. Sorce, of Marshall, Dennehey, Warner, Coleman & Goggin, who represent Procacci Bros. and Garden State Farms, wrote that the case should be litigated in federal court because the defendants are citizens of different states, and federal civil procedural rules give the defense the ability to remove an action based on diversity jurisdiction.

    “For the purposes of these proceedings, there exists a complete diversity of citizenship between the Plaintiffs and the Defendants and the United States Court for the Eastern District of Pennsylvania has original jurisdiction,” over this case, the lawyers wrote.

    The defense attorneys also wrote that a reasonable reading of the complaint shows the plaintiffs are likely seeking damages that would exceed state court jurisdiction.

    A damages claim of $75,000 or more would trigger federal court oversight.

    The matter was assigned to U.S. District Judge Mary A. McLaughlin.

     

    The state case ID number is 130801407 and the federal case number is 2:13-cv-05330-MAM.


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    A lawyer representing a New Jersey casino resort in a personal injury case

    Lawrence M. Kelly

    Lawrence M. Kelly

    that was initiated earlier this summer at Philadelphia’s Common Pleas Court by a city woman has moved to transfer the civil action to a federal venue.

    Attorney Lawrence M. Kelly, who practices with the Philadelphia law firm of Mintzer, Sarowitz, Zeris, Ledva & Meyers, filed paperwork in U.S. District Court in Philadelphia this week seeking to have a federal judge take jurisdiction over a slip-and-fall case that was originally filed in July by Angela Costello, who lives in Northeast Philadelphia.

    The record shows that Philadelphia attorney James M. Turner, Jr., of the firm Furia and Turner, filed suit on July 11 at the Philadelphia County courthouse on Costello’s behalf.

    Turner’s client claims she sustained a sprained left ankle as a result of tripping over an “inclined plane that was constructed of cobblestone” while the woman was visiting Caesars Atlantic City on Aug. 13, 2011.

    The plaintiff had been walking through the gaming hall at the time of the incident, the record shows.

    Costello accuses the defendant of negligence for failing to place a barricade in front of the area alleged to be unsafe, failing to properly maintain the casino floor, negligently causing the dangerous condition to exist, failing to warn casino patrons of the defect on the premises, and other acts of negligence.

    Costello alleges she has undergone great mental anguish and has sustained physical pain as a result of the incident, all of which have caused her to spend money on medical attention.

    The woman also says she has suffered earnings losses and will likely be hindered from performing her daily activities and recreational pursuits, all due to her bodily injuries.

    In his Sept. 16 notice of removal, Kelly, the defense attorney, wrote that the case should be moved to the federal courthouse in Philadelphia because diversity of citizenship exists among the parties; Costello lives in Pennsylvania while the defendant is a citizen of the State of New Jersey.

    The diversity of citizenship gives U.S. District Court jurisdiction over the matter, the lawyer noted.

    Kelly noted that the original complaint in state court incorrectly listed Caesars Entertainment Corp., doing business as Caesars Atlantic City Casino, as the named defendant.

    In reality, the corporate defendant is Boardwalk Regency Corp., doing business as Caesars Atlantic City, the attorney noted.

    Kelly, who says the removal to federal court is timely under civil procedural rules, also wrote that the amount in controversy is likely to exceed $75,000, another factor triggering removal out of Pennsylvania state court.

    The federal court docket shows that the matter has been assigned to U.S. District Judge Harvey Bartle, III.

     

    The state case ID number is 130601530 and the federal case number is 2:13-cv-05416-HB.


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    A products liability complaint filed by a former Philadelphia firefighter and

    U.S. District Judge Ronald L. Buckwalter

    U.S. District Judge Ronald L. Buckwalter

    his wife over allegations that the emergency worker’s safety protection mask malfunctioned while on the job must play out in state court, a federal judge has ruled.

    U.S. District Judge Ronald Buckwalter, sitting in the Eastern District of Pennsylvania, granted the plaintiffs’ motion to remand their civil action to the Philadelphia Court of Common Pleas, where the suit was originally filed back on June 18.

    A little more than a week after the suit’s filing, attorneys representing defendant Safeware Inc. filed a petition to transfer the civil matter to federal court, arguing that jurisdiction is proper in U.S. District Court because despite the plaintiffs’ assertion that Safeware Inc. is based in Pennsylvania, the business was actually incorporated in Maryland.

    The lawsuit, which was filed by attorneys with the Philadelphia law firm of Saltz, Mongeluzzi, Barrett and Bendesky, alleges that Michael McGuire was using his Scott AV-2000 respiratory protection mask while battling a Philadelphia fire in the spring of 2011 when he became sick after the device failed due to an improper seal.

    The incident caused McGuire to lose oxygen and inhale carbon monoxide and other noxious gasses and chemicals, the complaint alleges.

    Aside from Safeware, the other codefendants named in the litigation are North Carolina-based Scott Technologies Inc. and Princeton, N.J.-based Tyco International Inc.

    The record shows that on July 26, about three weeks after Safeware’s attorneys filed their removal notice, lawyers representing the plaintiffs, McGuire and his wife, Angelique, filed a motion to remand the case back to Philadelphia’s Common Pleas Court.

    In their motion, the plaintiffs didn’t contest the federal court’s subject matter jurisdiction over the case, but rather they sought to transfer the lawsuit back to state court based on what Buckwalter, the federal judge, called  “purely procedural defect.”

    The couple had argued that Safeware failed to comply with what is known as the “unanimity rule,” since the other two defendants in the case, Scott and Tyco, neither joined in the removal notice nor consented to removal, the record shows.

    Safeware, rather, unilaterally removed the case to federal court on July 2, Buckwalter’s memorandum notes, and while the removal was timely under federal procedural rules, it did not include explicit consent forms signed by the codefendants.

    “Safeware does not contend that the non-removing Defendants were nominal parties or were fraudulently joined,” Buckwalter wrote. “Nor is there any question that the non-removing Defendants were served with the Complaint prior to the filing of the removal petition. Simple application of the rule of unanimity thus renders the removal procedurally defective, thereby requiring remand to state court.”

    Safeware’s lawyers had argued that Scott’s consent, on behalf of itself and Tyco, was implicit from its litigation in federal court.

    Specifically, the record shows, a lawyer for Scott sought to obtain Safeware’s consent to its intended removal of the case to the federal venue, with an attorney representing Safeware then advising his colleague that Safeware had already removed the case three days earlier.

    Safeware expressed its belief that this action showed Scott consented to the removal.

    Buckwalter, however, found that argument “meritless,” writing that the courts have determined that “it is not enough for defendants who have not signed the removal petition to merely advise the removing defendant that they consent thereto, or for a removing defendant to represent such consent to the court on behalf of the other defendants.

    “Rather, most courts require all defendants to voice their consent directly to the court.”

    To that end, Buckwalter wrote, “oral consent and email exchanges among counsel do not constitute satisfactory consent.

    “Indeed, having been served with a complaint and cross-claim, the non-removing Defendants were under certain time constraints to file their own responsive pleadings,” the judicial memorandum states. “Simple compliance with legal obligations required to avoid either violation of the Federal Rules or a default judgment does not manifest itself as implied consent to litigation in federal court.”

    Buckwalter ordered the case immediately returned to the Philadelphia Court of Common Pleas.

    As for the meat of the complaint, McGuire, the former firefighter, claims that due to the faulty protection mask, he suffered carbon monoxide poisoning, a severe lung smoke inhalation injury, hypoxemic respiratory failure, acute respiratory distress syndrome, delirium, cardiomyopathy, post-intensive care syndrome, rhabdomyolosis, persistent muscle weakness, memory impairment, pneumonia, recurrent lung infections, residual lung disease, decreased respiratory function, anxiety, depression, post-traumatic stress syndrome and other ills and injuries.

    McGuire and his wife seek compensatory damages in excess of $50,000.


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    A Colorado jury recently determined that helmet manufacturer Riddell failed to

    Martin Buchanan

    Martin Buchanan

    adequately warn a former football player about the dangers of concussions, with the verdict coming mere days after company lawyers sought to have Riddell severed from a nationwide class action suit against the NFL playing out in Philadelphia.

    The New York Times this week reported that the Colorado jury returned a hefty verdict against Riddell Helmets, with the country’s largest helmet manufacturer ordered to pay $3.1 million in damages to Rhett Ridolfi, a 22-year-old man who sustained a head injury back in 2008 while conducting a drill with his high school football team.

    It is not yet clear what type of effect the Colorado case, which occurred in Las Animas County District Court in Trinidad, Colo., would have on the federal class action injury case against the National Football League, but some legal observers view this as important.

    “Although this verdict appears to be an anomaly, it could indicate that juries are placing more responsibility on manufacturers to explicitly warn about the limitations of helmets,” Missouri-based attorney Paul Anderson wrote on his website, NFLConcussionLitigation.com. “In addition, judges may be more willing to allow a jury to decide whether a warning would be heeded, as opposed to deciding the case summarily on the papers.”

    Just last week, both sides in the NFL case met in court for the first time during oral arguments over the league’s motion to dismiss the litigation, which is being initiated by a large number of former players who argue the league fraudulently concealed the long-term health risks related to on-the-field head injuries.

    The players’ injury case is being handled as an MDL, or multidistrict litigation, docket being overseen by U.S. District Judge Anita Brody of the Eastern District of Pennsylvania.

    There are currently more than 4,000 plaintiffs in 200-plus individual lawsuits that have been consolidated into the MDL in Philadelphia.

    In addition to hearing arguments over the NFL’s motion to dismiss, Brody last week also listened to attorneys representing Riddell who argued that the case brought against their clients should be heard separately from the case against the NFL.

    One Riddell attorney said in court that not one plaintiff in the NFL case identified a particular helmet with a specific defect.

    The judge said that argument goes to a motion to dismiss, not a motion to sever, although the lawyer still maintained that the Riddell claims shouldn’t be lumped in with the NFL’s case brought by the former players.

    California attorney Martin Buchanan, however, said during the proceeding that joinder in a case like this is appropriate.
    “Here we have a common thread that’s running through all of these cases and that is the NFL,” he told Brody. “The duty to warn is really the verifying theme here.”

    It was not yet clear when Brody would rule on the NFL’s motion to dismiss and Riddell’s motion to sever.

    Meanwhile, in the Colorado case, a Riddell spokesman was quoted in the New York Times as saying that the company is “confident that the jury would have reached a different conclusion had the Court not erroneously excluded the testimony of our warnings expert.”

    “We intend to appeal this verdict, and we remain steadfast in our belief that Riddell designs and manufactures the most protective football headgear for the athlete,” the spokesman said, according to the Times.

    The jury in Colorado determined that Riddell’s negligence was to blame for Ridolfi’s head injuries, which led to paralysis on the left side of his body following the football drill five years ago.

    But while the jury concluded that Riddell failed to warn the plaintiff of the dangers of concussions, if also rejected claims that there were design defects in the defendant’s product.

    Riddell’s statement following the verdict said that the company was pleased that the jury found the helmet itself was not defective in any way.


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