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Pennsylvania's Legal Journal

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    The daughters of a woman who died allegedly as a result of Pradaxa use

    Michael M. Weinkowitz

    Michael M. Weinkowitz

    have filed a products liability complaint against the makers of the pharmaceutical.

    Janine V. McHugh and Jennifer D. Merlino filed suit last week at the U.S. District Court in Philadelphia over the death of their mother, Dolores Reed, who is said to have developed a gastrointestinal hemorrhage in the spring of 2012, four months after her doctor prescribed Pradaxa for the treatment of non-valvular atrial fibrillation.

    After suffering the hemorrhage, Reed, of Haverford, Pa., was taken to the Hospital of the University of Pennsylvania where she subsequently passed away.

    “Plaintiff experienced excessive and/or uncontrollable bleeding, resulting in death, which was caused and/or worsened by Plaintiff’s use of Pradaxa,” reads the lawsuit, which was filed by attorney Michael M. Weinkowitz, of the Philadelphia law firm of Levin, Fishbein, Sedran & Berman.

    The defendants named in the complaint, which are Boehringer Ingelheim Pharmaceuticals and various subsidiaries, are accused of over-promoting Pradaxa, which is a direct thrombin inhibitor that is designed to reduce the risk of stroke and embolism in patients with non-valvular atrial fibrillation, a type of heart rhythm disorder.

    People with this type of ailment are known to have an increased risk of stroke, the suit states.

    The complaint says that prior to Reed’s use of Pradaxa, the defendant drug companies knew or should have known that the original labeling of the drug did not adequately warn the plaintiff of the risks associated with using the medication.

    The lawsuit argues that the defendants knew or should have known that patients, including Reed, were at an increased risk for developing life-threatening “bleeds” as a result of taking the medication.

    Reed would never have taken the drug if she had been provided with adequate warnings that there is no agent to reverse the anticoagulation effects of Pradaxa, the complaint states.

    Pradaxa was the first anticoagulation medication approved for use in the United States in more than 50 years for patients with non-valvular atrial fibrillation when the Food and Drug Administration approved the medication back in the fall of 2010, according to the complaint.

    Prior to the FDA’s approval of Pradaxa, warfarin was the only such medication available in the country for reducing stroke and systemic embolism in patients with atrial fibrillation.

    The defendants’ marketing campaign for Pradaxa included promoting it as being more effective than warfarin in preventing stroke and systemic embolism, providing an alternative to warfarin therapy because it does not require blood monitoring or dose adjustments, and requires no dietary restrictions, the suit says.

    The lawsuit says that the drug companies spent significant money in promoting Pradaxa, including the $67 million spent in 2010; the drug, however, hadn’t been given FDA approval until Oct. 19 of that year.

    “In the course of these direct to consumer advertisements, Defendants overstated the efficacy of Pradaxa with respect to preventing stroke and systemic embolism, failed to adequately disclose to patients that there is no drug, agent or means to reverse the anticoagulation effects of Pradaxa, and that such irreversibility could have permanently disabling, life-threatening and fatal consequences,” the complaint states.

    As a direct result of using Pradaxa, Reed suffered physical pain, mental anguish, the need for lifelong medical treatment and eventual death.

    The lawsuit contains counts of strict products liability, negligence, negligent misrepresentation and/or fraud, breach of implied and express warranties, negligence per se, and fraudulent concealment.

    Reed’s daughters seek $75,000 in compensatory damages, unspecified punitive damages, interest, non-economic damages, attorney’s fees and costs.

     

    The federal case number is 2:13-cv-06488-GP. 


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    Home improvement retailer Lowes has been named in a personal injury

    Brandon Swartz

    Brandon Swartz

    complaint initiated by a man who says he sustained foot injuries after being struck by a steel beam at the defendant’s South Philadelphia location.

    Daniel Williams, who resides in Philadelphia, filed a civil action against Lowes Companies Inc. Nov. 8 at the U.S. District Court for the Eastern District of Pennsylvania.

    The lawsuit, which was filed by attorney Brandon A. Swartz, of the firm Swartz Culleton, says that Williams was in the receiving department of the Lowes location at 2106 S. Christopher Columbus Boulevard earlier last month to pick up a window for an installation job when, suddenly and without warning, a steel beam feel onto his foot.

    The incident caused Williams to sustain a fractured toe and ruptured extensor tendons on his right foot, the suit claims.

    The plaintiff says he experienced severe pain and suffering as a result of the incident, and that he has been, and will continue to be, unable to engage in his usual activities to his great loss and detriment.

    Williams claims he was caused to undergo medical treatment and incurred a number of expenses in an effort to cure him of his injuries.

    The plaintiff also alleges that he has suffered earnings losses and earning capacity because his injuries prevented him from being able to work.

    Williams has also suffered a loss of the enjoyment of life’s pleasures and activities, the lawsuit states.

    Lowes is accused of negligence and carelessness for allowing the steel beam to drop on the plaintiff’s foot.

    Williams seeks damages in excess of $50,000, plus interest, attorney’s fees and other legal relief.

     

    The federal case number is 2:13-cv-06523-MMB. 


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    A delivery driver for a New Jersey company has filed a federal complaint

    Adam S. Getson

    Adam S. Getson

    against a suburban Philadelphia family over the injuries he allegedly sustained as a result of being attacked by the defendants’ dogs.

    Saso Najdevski, who lives in Clifton, N.J., filed suit on Nov. 8 at the U.S. District Court in Philadelphia against Dante J. Bradley, Patricia Bradley, Alexandra Bradley and Kelly Bradley, of Wayne, Pa., as well as Bryn Mawr, Pa. resident Jacob W. Pearlstein, over allegations that he was seriously injured on April 13, 2012, after being attacked by three dogs at a property belonging to the Bradleys on the 500 block of General Scott Road.

    Najdevski, who was working for Kotangi LLC, a New Jersey company, had been making a delivery to the home at about 9 a.m. on that spring day last year when he was attacked by the animals, who were not on leashes at the time, the complaint states.

    The dog attack was not provoked, the lawsuit claims, nor was it triggered by any act perpetuated by the plaintiff.

    As a result of the attack, Najdevski sustained a fractured calf bone, multiple ligament tears, lacerations, bruising, dog bite marks and other injuries, the complaint alleges.

    The plaintiff says he had to spend large sums of money on medical care to cure him of his injuries.

    He also claims to have suffered from mental anguish as a result of the attack.

    Najdevski, who says he was unable to work and earn money as a result of the incident, argues that the defendants knew or should have known of the “vicious, mischievous and dangerous propensities of the dogs,” and that the family members had a duty to prevent their pets from inflicting bodily injuries upon the plaintiff.

    The defendants are accused of negligence for failing to properly restrain and secure the dogs, failing to properly control the animals, failing to properly train the canines, failing to warn with appropriate signage, and failing to have the dogs on a leash at the time of the attack.

    The complaint also contains a count of statutory strict liability.

    Najdevski seeks more than $75,000 in damages as well as interest and costs.

    The plaintiff is being represented by attorney Adam S. Getson, of the Philadelphia firm Wapner, Newman, Wigrizer, Brecher & Miller.

     

    The federal case number is 2:13-cv-06521-MAM. 


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    Defense attorneys representing American Medical Systems in a products

    Barbara R. Binis

    Barbara R. Binis

    liability case initiated by a West Coast woman who claims she sustained injuries due to allegedly defective pelvic mesh have moved to transfer the civil action out of a Pennsylvania state court.

    Lawyers Barbara R. Binis, Louis W. Schack and Alex G. Gross, of the Philadelphia firm Reed Smith, filed a removal notice at the U.S. District Court for the Eastern District of Pennsylvania seeking to transfer a lawsuit brought early last month by Oregon resident Gertrude Moore and her husband, Jack, to the federal venue.

    The plaintiffs filed suit on Oct. 10 at Philadelphia’s Common Pleas Court against Minnesota-based American Medical Systems Inc. over injuries Gertrude Moore claims to have sustained as a result of having had the In-Fast Ultra pelvic mesh device surgically implanted in her body to treat stress urinary incontinence.

    As a result of the defective pelvic mesh, Gertrude Moore claims she has been injured “catastrophically,” and that she has experienced severe and permanent pain, suffering, disability, impairment, loss of life’s enjoyment, loss of care and comfort, as well as economic damages.

    The lawsuit, which was filed by Philadelphia lawyers Lee B. Balefsky and Michelle L. Tiger, of the plaintiffs’ firm Kline & Specter, says that Moore will have to have future corrective surgeries to cure her alleged injuries.

    The plaintiff and her husband claim that American Medical Systems marketed its pelvic mesh products to the medical community and to patients and consumers as safe, effective, and reliable, when, in fact, the products have high failure, injury and complication rates, often fail to perform as intended, require frequent and sometimes “debilitating re-operations,” and have caused “severe and irreversible injuries, conditions, and damage to a significant number of women, including Plaintiff Gertrude Moore.”

    “Defendant AMS in particular has consistently underreported and withheld information about the propensity of their Pelvic Mesh to fail and to cause injury and complications, and have misrepresented the efficacy and safety of their Pelvic Mesh Products through various means and media, actively and intentionally misleading the medical community, patients, and the public at large,” the lawsuit reads.

    The complaint also accuses the device manufacturer of failing to perform or rely on proper and adequate testing and research in order to determine and evaluate the risks and benefits of its surgical pelvic mesh products.

    “Knowing the significant risk that the Pelvic Mesh Products would fail and/or imperil the health and welfare of the women in which they were implanted, Defendant failed to design the Pelvic Mesh Products for, and to establish a safe, effective procedure for, the removal of the Pelvic Mesh Products, rendering it impossible to safely or easily remove the Pelvic Mesh Products,” the complaint states.

    Gertrude Moore claims as a result of her ordeal, she sustained mesh erosion, mesh exposure, mesh contraction, infection, inflammation, scar tissue, organ perforation, dyspareunia, blood loss, pelvic floor damage, pelvic pain, and recurrent urinary incontinence.

    The lawsuit contains counts of strict liability, negligence, common law fraud, negligent misrepresentation, negligent infliction of emotional distress, breach of warranty, gross negligence, violation of consumer protection laws, and loss of consortium.

    The defense attorneys representing American Medical Systems say the matter belongs in federal court, not the Philadelphia Court of Common Pleas, because there is diversity of citizenship among the parties, and the amount of damages sought is likely to exceed the jurisdictional limit in a Pennsylvania court.


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    An en banc Commonwealth Court panel recently reversed a Philadelphia

    Commonwealth Court President Judge Dan Pellegrini

    Commonwealth Court President Judge Dan Pellegrini

    judge’s decision that found against the Philadelphia Parking Authority in a personal injury case brought by a woman injured in a city parking garage.

    The seven-judge appellate panel, in an opinion filed Nov. 8, reversed a previous decision by a Philadelphia Common Pleas Court judge who ruled against the PPA in the amount of $15,000 in a case initiated by Geraldine Oliver, a woman who fractured her right foot on March 20, 2009, after exiting a shuttle van transporting her to her vehicle on the third-level of a parking garage operated by the PPA in downtown Philadelphia.

    Oliver subsequently sued the PPA, along with Tropiano Transportation Inc., Tropiano Transportation Service, Tropiano Bus Company and Tropiano Tours over her injuries.

    The PPA had contracted with Tropiano to provide shuttle service for its garage customers to and from the upper levels of its garage, the record shows.

    The woman claimed the combined negligence of the various defendants led to her broken foot.

    Lawyers for the PPA soon filed an answer to the complaint in which they claimed the agency was subject to sovereign immunity, arguing that Tropiano was solely responsible for Oliver’s injuries.

    In its subsequent motion for summary judgment, the PPA argued that it is a local agency immune from suit under the Tort Claims Act, that Oliver failed to prove that the vehicle liability or real property exception to governmental immunity applied, and that Oliver cannot recover damages for pain and suffering because she did not sustain “permanent loss of bodily function, permanent disfigurement or permanent dismemberment” as required by state statute.

    A Philadelphia judge ultimately denied the PPA’s motion for summary judgment, leading the case to go to a non-jury trial.

    The judge ended up finding in favor of Tropiano but against the PPA in the amount of $15,000, determining that Tropiano had no presence on the property, the shuttle van was owned and operated by the PPA, and the driver’s action of letting Oliver off at a point of incline in the garage was in violation of the PPA’s directives, according to the Commonwealth Court ruling.

    Relying on the case of Blount v. Philadelphia Parking Authority, the trial court had held that the PPA is a commonwealth agency, meaning the case is governed by the real estate exception to sovereign immunity.

    The trial judge had determined that while the ramp in the parking garage was not defective, it still constituted a dangerous condition of the property because it played a significant role in causing Oliver’s injuries.

    Finding that the woman lost about three months worth of work but didn’t suffer permanent loss of bodily function as a result of her injuries, the trial judge awarded Oliver $30,000, reduced by half due to her contributory negligence of misjudging the distance to the ground when exiting the shuttle van.

    On appeal to the Commonwealth Court, the PPA argued that for purposes of tort immunity, it is a local, not commonwealth, agency, and since Oliver didn’t sustain permanent bodily damage, she was barred from recovering damages for pain and suffering.

    The PPA also asserted that the woman couldn’t recover damages pursuant to the real property exception to governmental immunity because the property was not defective.

    The agency also contended that even if the trial court was correct in holding that the PPA is a commonwealth agency, Oliver still couldn’t collect damages under the real estate exception to sovereign immunity because there was no dangerous condition of the property established.

    Based on case law, the Commonwealth Court judges wrote in their ruling, the PPA is “clearly a local agency in the context of this case.”

    As stated in Blount and another case titled James J. Gory Mechanical Contracting Inc. v. Philadelphia Housing Authority, the relevant inquiry in determining the PPA’s status for purposes of tort immunity is whether the agency was created by the state to perform a state function, the appeals ruling notes.

    In this case, the PPA’s regulation of parking is a purely local function, the panel wrote.

    “Therefore, the trial court erred in holding that the Authority is a Commonwealth agency with respect to the instant matter,” the ruling states.

    And because the PPA is a local agency, the Commonwealth Court wrote, it is subject to the limitations on damages set forth in the Tort Claims Act.

    Oliver, the panel wrote, could only recover damages for pain and suffering if she had “permanent loss of a bodily function, permanent disfigurement or permanent dismemberment,” and because the woman admitted at trial that she had fully recovered from her injuries, she is barred from recovering damages for pain and suffering.

    The panel also noted that Oliver has not made out a claim under the real property exception to governmental immunity.

    To maintain such a negligence claim, the court wrote, Oliver must prove her injury resulted from a dangerous condition arising from the local agency’s care, custody or control of the real property.

    “In this case, it was not the ramp itself, which the trial court found was not defective, but the purported negligence of the van operator in leaving Oliver off on the ramp that caused Oliver’s injuries, making the real property exception to governmental immunity applicable,” the ruling states.

    The opinion was written by Commonwealth Court President Judge Dan Pellegrini.


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    A suburban Philadelphia attorney has secured a $300,000 settlement forgavel the family of a young girl whose nose was partially bitten off by a neighbor’s dog two-and-a-half years ago.

    Thomas J. Newell, a lawyer from Perkasie, Bucks County, recently announced the settlement in a case initiated by Andrew and Melissa Boyd, of Fairfield, Pa., who sued on behalf of their daughter, who is now 9 years old.

    According to the lawsuit, which was filed this past April at the Adams County Court of Common Pleas, the young girl had gone to the home of Richard and Joyce Sprouse on April 13, 2011, with the intention of playing with the couple’s daughter.

    At first, the girl knocked on the screen door, at which time Richard Sprouse told her to come into the house, the complaint states.

    As the girl began to open the door, Chaos, one of the defendants’ three pit pulls, charged at the young girl, biting off a portion of her nose and causing a severe laceration on her right cheek.

    The local police chief was able to save the nose, and the girl was transported to a hospital in Maryland for surgery, according to Thomas J. Newell, the Bucks County lawyer who represented the plaintiffs.

    Newell, who said his practice niche is dog bites – he has represented attack victims from 19 different counties in Pennsylvania – said he filed suit after the defendants’ homeowners insurance company failed to respond to his demand for compensation.

    Following the filing of the complaint, the insurer agreed to pay out the policy limit of $300,000 sought by the plaintiffs.

    Punitive damages, Newell noted, are rarely paid by insurance companies.

    “A significant portion of [the girl’s] nostril was amputated, bitten off in the attack,” Newell said in a phone interview.

    The portion of the nose was eventually attached, although the girl had to undergo 23 separate, two-hour sessions in a hyperbaric chamber designed to regrow the damaged tissue, Newell said.

    Newell said the nose isn’t fully formed at that young age, so the reconstruction process can’t be completed until the girl becomes older.

    A third surgery is scheduled to take place a few years down the road, the attorney said.

    “Obviously, every time she looks in the mirror she sees it,” Newell said of the injury. “She’s been asked more than once or twice, ‘what’s the story with your nose.’”

    Newell said the plaintiffs and defendants were once close, but “the relationship between the families became quite strained after the attack.”

    Fairfield is located in Adams County, near Gettysburg.

    Newell said the plaintiffs would receive a total of $287,650 after attorney’s fees, medical expenses and subrogation costs are taken care of.

    He said a structured settlement annuity would be set up whereby the young girl would receive that money in payments given out over a four-year period beginning when she turns 18.

    The money will hopefully be used to pay the girl’s college education, he said.

    The settlement was approved on Nov. 5 by Adams County Common Pleas Court Judge Thomas R. Campbell.


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    A central Pennsylvania woman is suing the makers of the NuvaRing birth

    Charles E. Schmidt Jr.

    Charles E. Schmidt Jr.

    control system over allegations that she developed a blood clot in her lung as a result of her use of the product.

    Sharon L. Young, who lives in York County, filed suit at the federal District Court in Harrisburg last week over claims that she developed a pulmonary embolism in the spring of 2012 as a result of using the NuvaRing.

    The plaintiff, who began using the device around March of that year, says she began to experience chest discomfort with shortness of breath about a month later.

    A subsequent CT scan ordered by a cardiologist revealed emboli in her right lung, the complaint states.

    The woman was immediately admitted to Harrisburg Hospital and began a regimen of anticoagulation therapy.

    Young, who was 41 years old at the time of her injuries, claims her health issues were a direct result of using NuvaRing.

    The plaintiff continues to undergo follow-up medical care, including examinations, appointments and continued use of medications, the lawsuit states.

    The defendants in the lawsuit – they are Organon USA Inc., N.V. Organon, Schering Corp., Merck & Co. Inc., and Merck Sharp & Dohme – are accused of failing to disclose the known safety hazards associated with NuvaRing.

    The package insert accompanying the product, which says that the vaginal ring is expected to be associated with similar risks to that of birth control pills and that the safety information they provide to consumers is derived primarily from studies of birth control pills, is misleading, the complaint alleges.

    The safety information, the suit states, was not derived primarily from studies of NuvaRing.

    The defendants failed to warn of the extent of the risk of venous thromboembolism, including deep vein thrombosis and pulmonary embolism, and even death associated with the use of the product, according to the complaint.

    The defendants knew, but failed to disclose that the NuvaRing had a higher risk of thromboembolic complications than birth control pills, the lawsuit says, due to the “markedly potentiated androgenic effects caused by the synthetic, third-generation progestin used in the NuvaRing.

    “Defendants negligently and/or recklessly marketed the NuvaRing as a novel vaginal delivery system, and placed the product into the stream of commerce without conducting adequate tests to regulate the exposure and/or release rates of estrogen and Progestin to a user, including Plaintiff, of such product,” the complaint reads.

    Instead, the suit claims, the defendants marketed the product as having a low risk of side effects and they continue to minimize the product’s side effects by focusing on the “incidence of minor side effects,” such as headaches, nausea and breast tenderness.

    Young, the plaintiff, claims that she would have never used the NuvaRing had she known the true risks and dangers associated with the birth control system.

    The lawsuit contains counts of strict products liability, breach of implied and express warranties, negligence, intentional and/or negligent misrepresentation, successor liability and violation of consumer protection laws.

    The plaintiff seeks damages in excess of $75,000, plus attorneys’ fees and costs.

    She is being represented by Charles E. Schmidt, Jr. of the Harrisburg law firm Schmidt Kramer Injury Lawyers.

    The plaintiff’s counsel noted in the complaint that the matter should be transferred to the Eastern District of Missouri for inclusion in the NuvaRing Products Liability multidistrict litigation, but on Nov. 14, a day after the suit was filed, U.S. District Judge Sylvia H. Rambo, of the Middle District of Pennsylvania, issued an order that says the action cannot be transferred until the plaintiff complies with certain procedural rules for removal of so-called tag-along actions.

     

    The federal case number is 1:13-cv-02777-SHR.


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    A central Pennsylvania woman is suing the makers of an artificial hip over

    Jaime D. Jackson

    Jaime D. Jackson

    allegations that the device failed nearly six years after it was implanted into her body.

    Martha L. Strunck, who resides in York, Pa., filed suit in U.S. District Court in Philadelphia Nov. 18 against DePuy Orthopedics and Johnson & Johnson over the injuries she claims to have sustained a result of having had the ASR Acetabular system hip replacement device surgically placed in her body back in the summer of 2007.

    On June 13 of this year, just about six years after her initial operation, the plaintiff had to undergo a revision surgery to replace the defective device, her lawsuit states.

    The woman claims she suffered from metal poisoning and metalosis due to metal debris from the defective product entering her body.

    At some point following the initial surgery, Strunck says she received a recall letter that spoke of a small number of DePuy hips being recalled and that she should follow up with her physician.

    A subsequent MRI test revealed no problems, however, and the plaintiff was told that because she was having no apparent problems, the recall likely did not affect her, the complaint reads.

    This February, however, Strunck began experiencing pain and difficulties with her right leg and follow-up lab work revealed some concerns with respect to elevated chromium and cobalt levels, the lawsuit states.

    Three months later, the woman’s blood levels of chromium and cobalt tested much higher, the complaint states, and she was having increasing difficulties with her hip so a revision surgery was scheduled.

    “Plaintiff Martha L. Strunck did not become aware that the DePuy hip may be a problem until February 2013 when she began experiencing pain,” the suit states.

    The defendant medical device manufacturers had, during the application approval process, asserted that the ASR and ASR XL Acetabular System did not raise any issues with regard to safety or effectiveness, according to the complaint.

    “The Defendants advertised the ASR as being superior than the competition in that the ASR was the device of choice for those wanting to be physically active, for those wanting a high performance hip replacement, and that the system had a strong clinical history and was less prone to wear,” the suit states. “Contrary to the Defendants’ representations, the ASR was/is prone to premature failure, unacceptably high failure rates when compared with other metal-on-metal prostheses, and causes severe injuries to patients due to metal debris that is released in the patient.”

    The lawsuit claims that the defendants’ device produces a large amount of metallic debris as the metal components wear, with the debris causing damage to muscles, tendons and other soft tissue.

    The defects also are said to interfere with intended bone growth and results in high levels of metal in a patient’s bloodstream.

    The defendants are accused of failing to adequately test the ASR design before marketing the product to consumers and the medical community.

    “The Defendants knew or should have known that the ASR device was defective, unsafe and not suitable for its intended purpose,” the complaint reads.

    The complaint goes on to note that reports of problems associated with the hip replacement device rose sharply between the years of 2006 and 2009, and that there was information coming out of Europe and Australia, where the companies had been selling the ASR, that the failure rates were “unacceptably high.”

    In the spring of 2010, the defendants issued a warning to surgeons in the U.S. that the device had a higher than expected failure rate.

    The letter came three months after the device manufacturers voluntarily withdrew the ASR device from the Australian market, the lawsuit states.

    “ … the Defendants had knowledge that the ASR devices had a higher than acceptable failure rate, were not safe and that the ASR was in fact enhancing and causing injuries,” the lawsuit states. “Even so, the Defendants refused to concede the product was defective and delayed recalling the ASR device such that ASR devices continued to be used in hip replacement surgeries.”

    The plaintiff seeks damages for lost wages and future lost earning capacity, medical expenses, pain and suffering, scarring, disfigurement, embarrassment, humiliation and loss of life’s enjoyment.

    The complaint contains counts of strict liability, negligence, and breach of implied and express warranties.

    Strunck is being represented by attorney Jaime D. Jackson of the Lancaster, Pa. law firm Atlee Hall.

     

    The federal case number is 2:13-cv-06716-ER.


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    A three-judge state appellate court panel has ruled that a Philadelphia Common

    Commonwealth Court Judge Patricia A. McCullough

    Commonwealth Court Judge Patricia A. McCullough

    Pleas Court judge was wrong to grant summary judgment to the City of Philadelphia in a premises liability action filed by a woman who injured herself after falling on damaged concrete.

    Commonwealth Court Judge Patricia A. McCullough, who penned the Nov. 20 opinion in Dolores Shaw v. Thomas Jefferson University and City of Philadelphia, wrote that the trial court should not have granted summary judgment to the city based on what is known as the “coordinate jurisdiction rule.”

    The record shows that Philadelphia Common Pleas Court Judge Susan I. Schulman granted summary judgment in favor of the city on Oct. 11, 2012.

    Attorney William T. Lawson, III filed suit in Common Pleas Court in early February 2010 on behalf of Shaw, a New Jersey woman who says she injured herself after falling on depressed sidewalk on the 1000 block of Walnut Street in downtown Philadelphia.

    The negligence suit alleged that the defective sidewalk and otherwise unsafe condition caused the plaintiff’s fall.

    In answer to the suit, city lawyers maintained that it had governmental immunity, and that the university was primarily liable for the damages.

    The city subsequently sought contribution and indemnity from the university, according to the record.

    The court docket in the case shows that Philadelphia Common Pleas Court Judge Allan Tereshko granted summary judgment to the university in late January 2011.

    In its motion seeking judgment, the university claimed it was not negligent because the sidewalk defect was trivial, and that it didn’t have actual or constructive notice of the defect.

    Shaw initially appealed to the Superior Court, but that body quashed the appeal as interlocutory because the city remained a defendant.

    In its motion for summary judgment, the city argued that judgment should be granted for the same reasons it was granted to the university, and also because the “coordinate rule” says that the city would only be held secondarily liable in the case.

    The city also asserted that Shaw failed to allege the city had actual or constructive notice of the sidewalk defect.

    The trial court ended up granting summary judgment to the city because an “equal tribunal had granted summary judgment to the primarily responsible party and, under the coordinate jurisdiction rule, the claims against the City must be dismissed,” the Commonwealth Court ruling states.

    In her appeal to Commonwealth Court, Shaw argued that the trial judge erred in granting summary judgment by determining that the defect in the sidewalk was trivial and not a question for the jury.

    Shaw also argued that if the grant of summary judgment to the university was in error then the grant of summary judgment to the city was also in error, and that the city’s motion for summary judgment should have been independently reviewed regardless of the coordinate jurisdiction rule.

    The Commonwealth Court judges agreed with Shaw’s assertion that summary judgment should not have been granted because there is no “bright-line rule for a court to use in determining whether a sidewalk defect is obviously trivial.

    “In this case, we agree,” the appellate judges wrote. “Our Supreme Court has consistently held as a matter of law that defendants are not liable for negligence when a sidewalk defect is obviously trivial.”

    The high court has stated that “questions of whether a sidewalk defect is trivial and whether a defendant has been negligent in allowing the defect to remain should be submitted to the jury when there are genuine issues of material fact based on the circumstances, the panel noted.

    The Commonwealth Court judges determined that the sidewalk defect in this case was “not so obviously trivial” that summary judgment should have been granted to the defendants.

    The panel went on to write that the trial court judge was wrong to grant summary judgment to the city because the same was afforded to the university.

    The judges wrote that the granting of summary judgment to the university was in error because the sidewalk defect was not obviously trivial as a matter of law.

    “Because the City was granted summary judgment based only on the coordinate jurisdiction rule, and because the University, as the primarily liable party, had been dismissed from the case, there is no longer any basis for the grant of summary judgment to the City,” the ruling states. “Thus, the questions of the City’s negligence and liability are also for the jury to decide.”

    The appellate panel remanded the case to Philadelphia.

    McCullough was joined in the decision by Judges K. Kevin Brobson and Rochelle S. Friedman.


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    Late last month, the widow of a municipal employee who allegedly died as a

    Francis Colleran

    Francis Colleran

    result of injuries he sustained after falling from a ladder while on the job filed suit against the City of Philadelphia and the company that made the ladder.

    Now, the product’s manufacturer is hoping a federal judge will take over the case, with its attorney arguing that the action was wrongly filed in state court.

    The case involves Cecelia M. Sweeney, a Philadelphia woman who is suing the City of Philadelphia and Kentucky-based Louisville Ladder Inc. over the Aug. 15, 2012 death of her husband, William B. Sweeney.

    The man died four days after being admitted to the hospital for severe head injuries sustained when he fell off of a rolling steel warehouse ladder/mobile ladder stand manufactured and distributed by Louisville Ladder.

    At about 1 p.m. on Aug. 11, 2012, William Sweeney was using the ladder during the scope of his employment for the city on the 100 block of E. Hunting Park Avenue when the device suddenly gave way, causing the worker to crash to the ground and strike his head on the concrete floor, according to the plaintiff’s complaint.

    The ladder was later discovered to be missing nuts and bolts.

    Following the incident, William Sweeney was taken to the emergency room at Temple University Hospital, where surgeons did their best to alleviate the swelling in Sweeney’s brain, the complaint shows.

    After the initial operation, Sweeney was placed on life support in the intensive care unit, yet doctors once again had to operate after discovering the extension of a left frontal contusion and right frontal hemorrhage, the suit states.

    Sweeney was again put on life support, but he was unable to hang on, and the man ultimately ended up succumbing to his injuries.

    The plaintiff claims her husband’s death can be blamed on the negligent manner in which Louisville Ladder put together the defective ladder.

    “Decedent’s injuries, pain and suffering and death, were the direct proximate result of Defendant’s negligent, careless and reckless acts and omissions in the design, manufacturing and distribution and selling of the subject ladder,” the lawsuit states.

    The complaint contains counts of strict liability, negligence breach of warranties, and wrongful death.

    Cecelia Sweeney is being represented by Philadelphia attorneys Francis T. Colleran and Denine Marie Moscariello of The Colleran Firm.

    On Nov. 22, nearly one month after Sweeney filed her complaint in Philadelphia’s Common Pleas Court, attorney J. Michael Kunsch, of the Philadelphia firm Sweeney & Sheehan, filed a removal notice at the federal District Court in Philadelphia seeking to remove the action to that venue.

    Kunsch argued that the lawsuit should play out in federal court because it involves a dispute between citizens of different states.

    The defense lawyer further notes that the plaintiff filed a praecipe on Nov. 1 to dismiss the city as a co-defendant in the litigation, leaving just Sweeney and Louisville Ladder as parties in the case.

    Kunsch pointed out that the city, the deceased man’s employer, appears to be immune from suit in this instance.

    “Accordingly, the City of Philadelphia was fraudulently joined as an original defendant and its citizenship is disregarded for removal purposes even if it had not been voluntarily dismissed,” Kunsch wrote.

    He also stated that the damages are likely to exceed $75,000, which would trigger federal court jurisdiction, despite the fact that the plaintiff wrote in her complaint she would be seeking damages in excess of $50,000, the jurisdictional limit in a Pennsylvania Court.

     

    The state case ID number is 130704737 and the federal case number is 2:13-cv-06806-MMB.


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    A Philadelphia attorney who is representing a Florida manufacturer

    Derek R. Layser

    Derek R. Layser

    embroiled in litigation with a south-central Pennsylvania woman over injuries she allegedly sustained from a faulty heating pad has filed a transfer notice seeking to move the case over to federal court.

    Lawyer James H. Heller filed a removal petition on behalf of clients Jarden Consumer Solutions and Jarden Corp. Nov. 27 at the U.S. District Court for the Eastern District of Pennsylvania.

    The underlying litigation was initiated in late September at the Philadelphia Court of Common Pleas by Philadelphia attorney Derek R. Layser, of the firm Layser & Freiwald, on behalf of Cassandra Bowman, who lives in Chambersburg, Franklin County.

    The plaintiff claims that the defendants negligently manufactured and sold a defective heating pad that caught fire and caused the woman to sustain severe personal injuries.

    In her lawsuit, Bowman says that in the early morning hours of March 13, 2011, she awoke to flames under her back.

    The woman had placed the Sunbeam heating pad on her as she was going to sleep, the suit states.

    The complaint alleges that the heating pad had become hot and caused the bed covers to catch fire.

    The device also caused a fire to burn through the mattress and three comforters that were on the plaintiff’s bed at the time.

    Bowman ended up sustaining second-degree burns on her hands and first-degree burns on her back, the suit says.

    The plaintiff says she developed permanent scarring as a result of the incident.

    The lawsuit alleges that the automatic shutoff feature on the product failed to operate during the March 2011 incident.

    “Cassandra’s injuries continue to this day and the effects of [her] injuries are permanent,” the complaint reads.

    The lawsuit contains counts of strict liability, negligence, and breach of warranty.

    The defendants are accused of designing, manufacturing and selling a defective heating pad with an inadequate automatic shutoff function, and failing to recall the product after its dangerous nature became known.

    In her suit, Bowman says she is seeking more than $50,000 in damages, exclusive of interest and costs.

    Heller, the defense attorney, contends that the matter is removable to federal court as per the rules of civil procedure because of diversity in citizenship.

     

    The federal case number is 2:13-cv-06904-WY and the state case ID number is 13030110. 


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    An attorney representing Philadelphia-based ACME Markets and

    Elizabeth Chalik

    Elizabeth Chalik

    Minnesota-based SuperValu Inc. are seeking removal of a premises liability action from state to federal court.

    Elizabeth A. Chalik, a lawyer practicing with Philadelphia-based Marks, O’Neill, O’Brien, Doherty & Kelly, filed a removal petition with the U.S. District Court for the Eastern District of Pennsylvania on Nov. 27 seeking to transfer a civil case initiated by Jill and Christopher Whitman against the grocers.

    Chalik maintains that the matter should be litigated in federal court because the amount of damages sought by the plaintiff is likely to exceed the jurisdictional limited at the Philadelphia Court of Common Pleas, which is where the suit was initially filed in late October.

    The Whitmans, who reside in Collegeville, Montgomery County, are suing the defendants over a slip-and-fall incident that occurred on July 15 of this year.

    According to the plaintiffs’ complaint, Jill Whitman had gone with her teenage daughters to the ACME store on the 1100 block of Welsh Road in Lansdale, Pa. when the woman fell on her way to the checkout aisle.

    Whitman slipped on a puddle of sticky liquid substance that had been pooled on the floor of the market at the time, the lawsuit states.

    Her fall occurred in the aisle stocked with shampoo, soaps and other seasonal items.

    Whitman claims that while she was able to hold onto her shopping cart at the time, she nevertheless still experienced immediate pain and swelling in her right leg and ankle.

    A store employee ultimately helped Whitman, the complaint states, although the plaintiff was unable to drive because of her injury, and had to summon her husband to come and pick her and her daughters up from the store.

    Whitman refused an ambulance at the scene, although she eventually sought out hospital treatment and has been under medical care and a physician’s supervision ever since, the lawsuit states.

    The plaintiff has since been diagnosed with Complex Regional Pain Syndrome, “which has worsened over time and which has negatively impacted every aspect of Mrs. Whitman’s life,” the complaint reads.

    The lawsuit contains counts of negligence, premises liability and loss of consortium.

    The Whitmans say they are seeking damages in excess of $50,000, but in the removal notice the defense contends that damages are likely to exceed $75,000, which would trigger federal court jurisdiction.

    Chalik, the defense attorney, also noted in her removal petition that contrary to the plaintiffs’ complaint, SuperValu is a Delaware corporation, not a company whose principal place of business is in Minnesota.

    ACME, too, is a Delaware-based corporation, Chalik wrote, meaning diversity of citizenship exists between the parties, another requirement for removal to federal court.

    The plaintiffs are being represented by attorney Keith M. McWhirk of the Skippack, Pa. firm of Mandracchia & McWhirk.

     

    The federal case number is 2:13-cv-06937-PBT and the state case ID number is 131002717.


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    A Philadelphia jury recently returned a hefty plaintiff’s verdict of nearly $11

    Philadelphia Common Pleas Court Judge George Overton

    Philadelphia Common Pleas Court Judge George Overton

    million in a Topamax mass tort case brought by the mother of a 5-year-old boy born with a cleft palate and lip, a condition the woman blamed on her use of the anticonvulsant.

    The jury awarded $10,955,000 to Haley Powell, a South Carolina woman who filed suit against Janssen Pharmaceuticals in November 2011 at the Philadelphia Court of Common Pleas, court records show.

    In her short-form complaint, filed in the master Topamax Litigation housed in Philadelphia’s mass tort program, Powell claimed that her use of the anti-epileptic medication during pregnancy caused her child, Brayden Gurley, to be born in the summer of 2008 with the facial deformation.

    The lawsuit said that Powell ingested Topamax from about March 2006 to about May 2011 in doses of between 25 mg and 50 mg each day.

    Her physician had prescribed the anticonvulsant to control the woman’s epilepsy, the record shows.

    The complaint accused the drugmaker of strict product liability, negligence, constructive fraud, misrepresentation, breach of warranty, gross negligence and malice, loss of consortium, and other claims.

    The court docket shows that on Aug. 27 of this year, Philadelphia Common Pleas Court Judge Arnold New granted in part, and denied in part a motion for summary judgment that had been filed by defense attorneys.

    The jurist granted summary judgment on Janssen’s strict liability-design defect, negligent design, gross negligence, and breach of express warranty claims, as well as the claim for punitive damages.

    New denied the defense summary judgment on all other claims.

    The plaintiff voluntarily declined to proceed with her loss of consortium and constructive fraud claims, the record shows.

    The trial judge overseeing the case was Philadelphia Common Pleas Court Judge George Overton.

    Powell and co-plaintiff Michael Gurley were represented by Philadelphia attorney Rosemary Pinto of Feldman & Pinto.

    The verdict was recorded on Nov. 18.

    On Nov. 29, defense attorneys representing Janssen Pharmaceuticals, who included Kenneth A. Murphy, Melissa A. Graff and Molly E. Flynn, of the Philadelphia firm Drinker Biddle & Reath, filed a lengthy motion for post-trial relief that sought, among other things, judgment notwithstanding the verdict, or, in the alternative, a new trial.

    The defendant specifically sought a new trial on the plaintiff’s negligent failure-to-warn claim.

    In her complaint, Powell, the plaintiff, alleged that Janssen failed to adequately warn of the risk of birth defects associated with Topamax during pregnancy.

    The record shows that in late October, the plaintiffs withdrew all claims except the negligent failure-to-warn count.

    This was the only claim that actually made it to trial, which commenced on Oct. 29.

    At the conclusion of the case, jurors determined that Janssen was negligent for failing to warn Powell’s doctor of the extent of the risk of birth defects associated with the use of Topamax during pregnancy and that this negligence was the proximate cause in bringing about the child’s harm.

    One defense argument was that Janssen was entitled to judgment notwithstanding the verdict because the plaintiff failed to present testimony from the prescribing physician and failed to present any medical expert testimony on the adequacy of the warnings provided to healthcare prescribers.

    At trial, Powell testified that she consumed medication that had been prescribed to her mother, Sandra Powell, according to the defendant’s post-trial motion.

    At the same time, the plaintiffs failed to provide any evidence from Rick Keizer, the doctor who prescribed the medication.

    “Thus, Janssen is entitled to judgment notwithstanding the verdict because there is no evidence that, had Janssen provided different information to Dr. Keizer regarding the risk of oral clefts, Dr. Keizer would have altered his prescribing habits and Brayden Gurley’s injuries would have been avoided,” the defense attorneys wrote.

    The lawyers, citing case law, wrote that if a plaintiff is unable to generate evidence that the prescribing doctor would have changed the prescribing decision, then a failure-to-warn claim fails.

    The attorneys also argued that the claims were barred by Pennsylvania’s two-year statute of limitations.

    Janssen also asserted that it was entitled to a new trial because the court “improperly” excluded evidence that would have shown Powell knew, or should have known, that she had a potential claim back in 2008.

    During trial, however, the judge sustained Powell’s objections to the defense’s use of medical records that would have refuted Powell’s assertion that she was unaware of the cause of the child’s cleft lip until early 2011, the record shows.

    Lastly, Janssen had agued that the court should grant a remittitur of the damages award, arguing that the damages were “excessive and exorbitant.”

    Janssen argued that the jury’s award of $10,620,000 for non-economic damages was actually punitive in nature.

    “Most shocking is the fact that the amount awarded for non-economic losses is over 30 times more than the jury’s award for future medical costs,” the post-trial motion stated.

    The jury awarded the plaintiff $335,000 for future healthcare costs.

    The defense also argued that Brayden Gurley is not employed, and that his injury does not prevent him from attending school and developing normal relationships with his peers.

    The defendant’s post-trial arguments didn’t seem to sway Overton, the judge, any; the docket sheet shows that he denied Janssen’s motion for post-trial relief on Dec. 3.

    The decision came in a one-page order without an accompanying opinion.


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    A trial court judge recently upheld a $2.3 million plaintiff’s verdict in an

    Philadelphia Common Pleas Court Judge Mark Bernstein

    Philadelphia Common Pleas Court Judge Mark Bernstein

    asbestos mass tort case out of Philadelphia, disputing defense assertions that the defendants were entitled to a new trial because the plaintiff’s case for causation failed as a matter of law.

    Common Pleas Court Judge Mark I. Bernstein refused to throw out the multi-million dollar verdict against Crane Co., DAP Inc., Duro Dyne Corp., The Goodyear Tire & Rubber Co. and Goodyear Canada Inc., which had been reached following a jury trial in late February.

    The plaintiff in the case, Charlotte Vinciguerra, filed suit in late June 2012 on behalf of her late husband, Frank Vinciguerra, who died on Nov. 3, 2010, as a result of malignant mesothelioma.

    Numerous companies were initially listed as defendants in the litigation, but many were dismissed before trial, the court record shows.

    A joinder complaint had been filed in early 2011 against Industrial Petolic Corp., but Bernstein ultimately dismissed the action, determining that Frank Vinciguerra had not been exposed to any of Industrial Petolic’s asbestos-containing products.

    In her complaint, Charlotte Vinciguerra claimed that her late husband contracted mesothelioma as a result of his exposure to asbestos while on the job.

    The record shows that the man had worked as a sheet metal helper and sheet metal mechanic for E.I. DuPont De Nemours & Co. from 1951 to 1985.

    Frank Vinciguerra learned he had malignant mesothelioma in the summer of 2010, the record shows.

    The plaintiff, who resides in New Jersey, alleged that E.I. DuPont failed to exercise reasonable care to protect her husband and others from the hazardous, dangerous and harmful conditions that existed at the property.

    In their post-trial motion, the defendants maintained that they were entitled to a new trial because the trial judge allowed the plaintiff’s expert witness to testify that “each and every breath” and “every exposure” to asbestos-containing fiber was causative of Frank Vinciguerra’s injuries, in violation of precedence set by the Pennsylvania Supreme Court in the case of Betz v. Pneumo Abex LLC.

    In his Nov. 8 opinion, however, Bernstein, the trial judge, wrote that none of the plaintiff’s expert witnesses ever offered this opinion during the course of the litigation.

    Bernstein singled out the testimony of Dr. Steven Markowitz, an occupational and environmental medicine expert, who testified that it was his opinion that Frank Vinciguerra’s exposure to asbestos likely caused the man’s disease.

    During his testimony, the record shows, Markowitz explained the dose-response relationship and concepts of cumulative exposure to asbestos.

    The doctor’s testimony was based upon his individual analysis of the specific factors in Vinciguerra’s condition, was offered to a reasonable degree of medical certainty, and was “fully subject to cross-examination,” Bernstein noted.

    The latter was particularly important to the judge, who noted in his opinion that “the defense may not appeal on the basis of truthful expert opinion that they solicited.”

    In one of Markowitz’s responses during cross-examination, the judge noted, the doctor “did not opine that every breath causes mesothelioma.

    “Rather,” Bernstein wrote, “the witness clearly explained that it is the cumulative effect which causes the disease.”

    Bernstein also ruled that Crane Co., one of the defendants, is not entitled to judgment notwithstanding the verdict on the grounds that the plaintiffs have made a complete recovery of their damages.

    Crane had argued in post-trial motions that the plaintiff cannot recover more than the full amount awarded and surmised that Charlotte Vinciguerra may attempt to do just that in the future.

    The defendant claimed that the plaintiff had submitted various asbestos claims in the past and will in the future likely submit additional claims to asbestos bankruptcy trusts.

    The judge, however, wrote that “the speculation that Plaintiff will unethically and improperly seek compensation beyond that awarded by the jury is unsupported by any evidence.”

    Bernstein added, “Crane is wrong when they claim that amounts received from settling Defendants, whose liability was not presented to the jury because insufficient evidence was presented at trial for any liability to be found, must be included in the total compensation calculation.”

    Bernstein also noted that Crane had the ability throughout the course of the case to join other parties into the action or pursue cross-claims against other parties initially named as defendants in the suit who subsequently settled with the plaintiff.

    In his opinion, Bernstein also said he had properly refused to offer jurors instructions that are not the law in Pennsylvania.

    Crane’s attorneys argued that Bernstein erred during jury instructions, saying that because federal courts have predicted that the Pennsylvania Supreme Court will adopt Section Two of the Restatement (Third) of Torts, that Bernstein should have used that prediction as his jury instruction.

    “Crane claims that a new trial must be granted because this Court failed to charge the jury in accordance with the law as it is predicted to be changed,” Bernstein wrote. “It needs no citation of authority for this Court to state as a black letter proposition of law that cases are to be tried, and all rulings made, in accordance with the law at the time trial occurred.”

    Bernstein also disputed a defense assertion that the Vinciguerra case was improperly consolidated with another asbestos mass tort case, writing that Pennsylvania appellate courts have for decades ruled the practice proper.

    “The Philadelphia Court recently administratively reviewed and revised these procedures and imposed significant restrictions on the number and types of cases that may be consolidated into trial groupings,” Bernstein wrote. “There was no error in following standard practice and procedure in the Philadelphia Courts as modified to reduce the number of plaintiffs presented in one trial.”

    Bernstein asked the Pennsylvania Superior Court to affirm his ruling on appeal.

    In April, Bernstein approved of delay damages in excess of $56,000, the docket sheet in the case shows.

    Then, in late July, he molded the verdict to reflect the reduction of bankruptcy trust settlement in the amount of $68,449.39.

    Adding the delay damages, the total verdict for the plaintiff came in at $2,286,376.44.

    The plaintiff was represented by Philadelphia attorney Benjamin Shein.


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    A construction worker who says he was seriously injured on the job more

    Philadelphia Common Pleas Court Judge Paul P. Panepinto

    Philadelphia Common Pleas Court Judge Paul P. Panepinto

    than three years ago has been awarded $2 million following a weeklong jury trial at the Philadelphia Court of Common Pleas.

    Hildo F. De Franca and his wife, Maria, had filed a personal injury claim in May 2012 against Albino Concrete Construction Co. Inc., JVL Concrete Co., Trans-Fleet Concrete Inc. and Silva Concrete Inc. over a March 22, 2010, incident in which Hildo sustained a host of serious bodily injuries, including brain trauma, after he was struck by a piece of construction equipment.

    In their lawsuit, the couple alleged that Hildo was laying cement on a jobsite in Perkasie, Bucks County, when he was struck in the head by a pump hose from a cement truck, an act that sent him tumbling about nine feet below into an unfinished basement.

    As a result of his fall, Hildo sustained serious orthopedic injuries, a traumatic brain injury, a compression fracture, a cerebral concussion, headaches, memory loss, stress, fear and anxiety, the plaintiffs’ complaint stated.

    The defendants were accused of a host of negligent actions, including failing to properly operate, maintain, inspect, clean, prime and prepare the pump truck that was involved in the incident.

    The plaintiffs maintained that the defendants’ negligence led to the pump truck’s hose being plugged, which caused the device to “unexpectedly and violently swing and kick out of control” and strike Hildo, knocking the man to the ground below.

    The defendants were also accused of failing to provide adequate fall protection to workers on the jobsite, and failing to offer appropriate training and supervision.

    The verdict sheet in the case, which was recorded on Nov. 26, shows that the plaintiffs were awarded a total of $2.25 million following the seven-day trial, which began on Nov. 15.

    The breakdown was $2 million for Hildo and $250,000 for his wife, who had a loss of consortium claim in the litigation.

    The verdict sheet further shows that defendant Trans-Fleet Concrete was found 50 percent negligent and 50 percent vicariously liable for its agent, 5 Star Concrete.

    According to the complaint, Albino Concrete, Trans-Fleet and Silva operated as the general contractors and/or concrete contractors at the Upper Bucks County construction site.

    Girafa Construction Inc., for which Hildo worked, was a sub-contractor enlisted to perform cement masonry services on the project, the record shows.

    The plaintiffs were represented by Andrew J. DuPont and Priscilla Jimenez of the Locks Law Firm.

    Philadelphia Common Pleas Court Judge Paul P. Panepinto oversaw the trial.

    The verdict sheet shows jurors found all of the defendants except for Albino Construction negligent.

    The record further shows that Albino settled with the plaintiffs prior to closing arguments in the case.


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    A Bucks County man who sustained serious personal injuries, including

    Philadelphia Common Pleas Court Judge Shelley Robins New

    Philadelphia Common Pleas Court Judge Shelley Robins New

    partial paralysis, following a motor vehicle accident in the fall of 2011 has won an $18 million personal injury verdict at Philadelphia’s Common Pleas Court.

    Timothy J. Horrell, Jr., of Oakford, Pa., secured the $18,312,696.65 verdict following an eight-day trial that began on Nov. 12, court records show.

    The plaintiff, who was represented at trial by attorney Gerald A. McHugh, Jr., of the Philadelphia firm Raynes McCarty, filed suit in early May 2012 against James D. Morrisey, Inc., over a Sept. 17, 2011, accident in Northampton Township that left him severely injured.

    According to his lawsuit, Horrell was driving along Bridgetown Pike near Stevens Lane when his vehicle struck a raised expansion joint, careered out of control, left the roadway, and struck an adjacent stone wall and utility pole.

    Morrisey had been conducting a milling operation in the roadway at the time that left loose gravel and other debris within the traveling lane, the plaintiff’s complaint stated.

    After milling the road, the lawsuit stated, workers for Morrisey placed a partial asphalt patch, but left a metal expansion joint spanning the travel lane that rose about two inches above the ground.

    The accident occurred while it was dark outside, at a time when the roadway was dry.

    There was no signage posted, however, warning drivers that the roadway was being worked on at the time, the record shows.

    “For the safety of oncoming traffic, signage warning of rough road, uneven surface or roadway resurfacing ahead is necessary to alert drivers to decrease their speed to maneuver through the warned condition,” the lawsuit read. “Without appropriate signage, plaintiff Timothy Horrell had no time to adjust before driving onto the uneven, rough roadway surface.”

    As a result of the accident, Horrell said he sustained a host of injuries, including incomplete paraplegia and other spinal column damage.

    The injuries, the complaint alleged, led to secondary complications, such as a neurogenic bowel and bladder, autonomic orthostatic hypotension, anemia, acid reflux and constipation.

    Horrell maintained he had to undergo extensive medical attention in hospitals and rehabilitation facilities in and around Philadelphia.

    The trial verdict sheet, which was recorded on Nov. 21, shows that Morrisey was found 60 percent liable while codefendant TRC Engineers Inc. was found to be 25 percent liable for the accident.

    Common Pleas Court Judge Shelley Robins New molded the verdict to $15,565,790 to account for Horrell’s 15 percent comparative negligence, the record shows.

    Defense attorneys in the case included Caroline S. Vahey and John T. Donovan, of the Philadelphia firm Rawle & Henderson, and John J. Hatzell, Jr., of Strachan & Hatzell, also located in Philadelphia.


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    A lawyer representing retailer Home Depot in a personal injury case filed this spring by a

    Kenneth Dubrow

    Kenneth Dubrow

    Northeast Philadelphia woman has filed a petition at U.S. District Court to transfer the matter from a Pennsylvania court to the federal venue.

    Attorney Kenneth M. Dubrow, who practices with the Philadelphia-based Chartwell Law Offices, filed a removal notice last week seeking to move a civil action initiated against Home Depot USA Inc. by Philadelphia resident Oksana Kredens from the Philadelphia Common Pleas Court to the Eastern District of Pennsylvania.

    The defense attorney cites the amount of damages sought by the plaintiff and her husband – $100,000 – as the justification for the transfer.

    The jurisdictional limit for civil cases in state court is $50,000.

    Philadelphia lawyer Henry Yampolsky, of the firm Galfand Berger, filed suit on behalf of Oksana and Valeriy Kredens back in April over allegations that the wife sustained severe head and neck injuries after being struck by a falling advertising display that was located outside of the Home Depot store at 11725 Bustleton Avenue in Northeast Philadelphia.

    Oksana Kredens claims she was walking near the outside display on April 5, 2011, when she was struck by the object.

    As a result of the incident, the plaintiff claims she sustained a concussion and traumatic brain injury, extensive nerve damage, cardiac problems, neck and back injuries, anxiety, depression, humiliation and ample pain and suffering.

    Oksana also maintains she and her husband incurred a large amount of medical bills relating to the woman’s treatment of her injuries.

    Home Depot is accused of negligence for failing to properly anchor and secure the advertising display, failing to warn business invitees of the dangerous condition that existed on the premises, and creating a public nuisance, along with other alleged acts of negligence.

    The complaint also contains a count of loss of consortium on the part of Valeriy Kredens, who claims the incident has led to him being deprived of his wife’s comfort, companionship, services, assistance and earnings.

    The state case ID number is 130400529.

    The federal case number is 2:13-cv-03501-GP. 


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    A real estate management group being sued in state court over the death of

    Martin G. Goch

    Martin G. Goch

    a man who suffered cardiac arrest after falling at the defendants’ property has filed a notice of removal seeking to transfer the litigation to U.S. District Court.

    Philadelphia attorney Thomas J. Bradley, of McBreen & Kopko, filed the request Dec. 5 at the federal courthouse in Philadelphia on behalf of clients Henry on the Park Associates and Berkshire Property Advisors.

    On Nov. 6, Philadelphia lawyer Martin G. Goch filed a slip-and-fall and wrongful death complaint at Philadelphia’s Common Pleas Court on behalf of Sicklerville, N.J. resident Mohammad A. Wahab, who is suing in his capacity as administrator of the estate of the late Ghulam Wahab, a tenant of the Henry on the Park apartment complex in Northwest Philadelphia who died after falling on a slippery substance at the property in early 2012.

    At about 5:30 in the afternoon on Jan. 22 of that year, Wahab was entering the foyer area of the apartment complex when he fell on the slippery floor, the complaint alleges.

    The man ended up sustaining multiple injuries, including a left hip fracture that required surgery.

    The incident also caused Wahab to suffer an aggravation of his pre-existing heart condition, which caused him to undergo cardiac arrest, and ultimately led to his death, the lawsuit states.

    The defendants are accused of having knowledge of the slippery floor, but doing nothing to immediately correct the hazardous and dangerous condition.

    The complaint shows that the plaintiff, Mohammad A. Wahab, is one of Ghulam Wahab’s five surviving children.

    The plaintiff is suing on behalf of a number of Ghulam Wahab’s surviving family members, including the deceased man’s wife, Shafiqa Wahab, also of Sicklerville, N.J.

    Another son and three daughters named in the complaint still reside in Kabul, Afghanistan, the plaintiffs’ native homeland.

    The plaintiff asserts in the lawsuit that the family has suffered pecuniary losses including expenses for medical and hospital bills, funeral and burial expenses, replacement services, loss of income and benefits, as well as other expenses, all due to the loss of the patriarch.

    The family says they are seeking more than $50,000 in damages.

    In the Dec. 5 removal notice, the defense maintains that the matter belongs in federal court because the claims could “easily result in an award of damages in excess of $75,000,” which triggers the threshold for federal court oversight.

     

    The federal case number is 2:13-cv-07099-CMR and the state case ID number is 131100433.


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    A Philadelphia sports figure is being sued over a fender-bender that

    John I. Gordon

    John I. Gordon

    occurred in South Philly two years ago.

    Claude Giroux, a professional hockey player who plays for the Philadelphia Flyers, was named as a defendant in a civil action filed late last month at the Philadelphia Court of Common Pleas.

    Lafayette Hill, Pa. attorney John I. Gordon filed suit on Nov. 26 on behalf of Lincroft, N.J.-based Palisades Safety and Insurance Association, which says Giroux needs to cough up more than $3,000 for damages he caused to a vehicle owned by the plaintiff’s insured, Nicole Ransom.

    According to the insurance company’s complaint, Ransom was stopped in her 2011 Honda Accord northbound on 11th Street at the intersection with Pattison Avenue in South Philadelphia on Dec. 10, 2011, when she was suddenly rear-ended by a 2012 Chevrolet Camaro driven by Giroux.

    The soon-to-be-26-year-old Giroux, who has played for the Flyers since 2008, currently serves as the team’s captain.

    A Philadelphia sports blog says that the car accident occurred on the same day that Giroux reportedly suffered a concussion after being kicked in the back of the head while on the ice.

    The complaint blames Giroux for failing to obey traffic signs, failing to bring his vehicle to a complete stop and carelessly and negligently operating a motor vehicle.

    Ransom allegedly incurred damages in the amount of $3,109.79, the lawsuit says.

    Her insurer maintains that it has since reimbursed Ransom for the damages and is subrogated to the rights of Ransom against Giroux.

    Records at the Philadelphia Court of Common Pleas show that a previous complaint was filed over the matter in May of this year.

    In addition to Giroux, the other defendants named in that case were Philadelphia-based Frederick’s Chevrolet and Gordon’s Chevrolet, as well as Frederick’s Chevrolet of Lebanon, Pa.

    Records further show that in February, Giroux filed a cross-claim against Frederick Chevrolet and NFP Property & Casualty Services Inc.

    In Giroux’s suit, the player says that at the time of the fender-bender, he was driving one of Frederick Chevy’s Camaros as part of a sponsorship deal.

    Giroux said in his suit that he believed he had been covered by the dealership’s vehicle insurance police at the time of the accident.

    The player’s lawyers, Lance Rogers and Kent T. Conway, wrote in their cross-claim that Giroux was surprised to find out he was covered by Frederick’s insurance at the time.

    “While Defendant Frederick was willing to say anything to get Plaintiff Giroux into one of its cars in order to capitalize on his celebrity status, it is now unwilling to honor its representations,” the lawyers had written in the Feb. 11 complaint.

    The record shows that attorneys for Palisades, Ransom’s insurer, filed a motion to intervene in Giroux’s cross-claim, but it was subsequently denied by a Common Pleas Court judge.

    Last week’s suit by Palisades Safety and Insurance Assoc. was scheduled for arbitration in August 2014, according to the docket sheet in the case.

    Ransom’s May lawsuit stated that the woman had been “violently thrown about within her vehicle” during the collision with Giroux.

    She claims to have suffered from injuries to her back and other parts of her body due to the fender-bender.

    In May, the local blog CrossingBroad reported that a witness to the accident stated that Ransom didn’t appear to be too hurt; she was apparently spotted standing beside her vehicle and talking “cordially” with Giroux on that day nearly two years ago.

     

    The state case ID number is 131102993.


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    A federal judge in Philadelphia has dismissed Railroad Friction Products

    U.S. District Judge Eduardo C. Robreno

    U.S. District Judge Eduardo C. Robreno

    Corp. from an asbestos suit brought by a deceased laborer’s widow, ruling that the defendant was correct to assert that the plaintiff’s claims are preempted by the Locomotive Inspection Act.

    Alice Perry had argued in court papers that the LIA does not preempt her claims because the brake shoes that her late husband, George Perry, was exposed to were not found on a locomotive.

    The woman alleges that her late spouse had developed asbestos-related injuries while installing and removing Railroad Friction Products Corp. manufactured brake shoes that were located on various types of railcars.

    The sole issue in the case, according to U.S. District Judge Eduardo C. Robreno, was whether the Locomotive Inspection Act preempted Perry’s state law claims, especially in light of the U.S. Supreme Court’s decision in Kurns v. Railroad Friction Products Corp., which Robreno said affirmed the “breadth of the long-standing field preemption of the LIA.”

    In Perry’s case, Robreno wrote, the issue was whether the LIA’s broad preemptive scope covered the woman’s claims relating to her late husband’s exposure to brake shoes located on railcars, and not on locomotives.

    Robreno determined that the LIA preempts the plaintiff’s claims because the railcar brake shoes are a “part or appurtenance” of the locomotive.

    In Kurns, the jurist wrote, the high court reaffirmed the 85-year-old decision of Napier v. Atlantic Coast Line, which held that state requirements of certain safety equipment on railroads were preempted by the LIA.

    In the Kurns litigation, the plaintiff brought state law claims of defective design and failure to warn, alleging that his exposure to asbestos-containing products led to him developing mesothelioma, the record shows.

    The man’s wife in that case pursued the litigation following her husband’s passing.

    In Kurns, the plaintiffs had argued that the LIA didn’t preempt their state law claims since the Federal Railroad Safety Act limited the scope of field preemption as defined by Napier.

    The courts, however, determined that while there is a preemption provision in FRSA that says a state may “adopt or continue in force” a rule or regulation related to railroad safety until the secretary of transportation issues a rule or order covering the subject matter of the state requirement, the provision does not limit the field preemption prescribed in Napier.

    The FRSA, the courts ruled, is a “gap-filler” statute, which “leaves existing statutes intact … and authorizes the Secretary to fill interstitial areas of railroad safety with supplemental regulation,” Robreno’s memorandum notes.

    The FRSA, therefore, had no effect on the scope of preemption as defined by Napier, Robreno noted.

    Robreno also pointed out that in Kurns, the court rejected each argument by the plaintiffs in support of their contention that their state law claims were outside of the field that Napier found to be preempted by federal law.

    One example given was the plaintiffs’ argument that sought to draw a distinction between the use of locomotives and locomotive equipment on the railroad line versus the repair and maintenance of such equipment off the line.

    The plaintiffs in that case had argued that LIA preemption extended only to the use of locomotives and equipment while trains were in use, but didn’t extend to the repair and maintenance of locomotives in facilities dedicated to such repair and maintenance.

    “The Court rejected this ‘attempt to redefine the pre-empted field,’” Robreno wrote. “The petitioners’ state law claims were ‘aimed at the equipment of locomotives[,]’ and thus were ‘directed to the same subject’ as the LIA, and therefore ‘Napier dictates they fall within the pre-empted field.’”

    In the Perry case, the plaintiff argued that the asbestos containing brake shoes located on railcars don’t fall into the category of a locomotive part or appurtenance, while the defendant asserted that the purported “railcar distinction” that Perry asserted was without merit.

    “What is a ‘part or appurtenance’ under the LIA has been judicially defined by several courts,” Robreno wrote. “The Supreme Court defined the scope of ‘every part of the locomotive and tender and of all appurtenances’ as ‘whatever in fact is an integral or essential part of a completed locomotive, and all parts or attachments definitely prescribed by lawful order’ of the Secretary.”

    Robreno also noted that the Third Circuit U.S. Court of Appeals found that asbestos insulation on locomotive boilers and brakes “undoubtedly” fell into the category of parts and appurtenances.

    In the present case, Robreno wrote that there is no doubt Perry’s claims are preempted by the LIA.

    “Even though the asbestos-containing products to which Plaintiff alleges Decedent was exposed were on railcars rather than on locomotives, such products are covered by the broad scope of LIA preemption,” Robreno wrote.

    The judge went on to write that it would lead to an “absurd result” if state law claims pertaining to locomotive brake shoes were preempted by federal law, but claims relating to the same exact parts that were connected to the railcars were not. “Uniformity is a primary goal of federal railroad regulation,” Robreno wrote.

    “And, just as it would be difficult to ensure that a self-propelled locomotive could meet each state’s laws, it also would be difficult to ensure that a railcar that is not self-propelled but that travels across state lines as frequently as the locomotive pulling it could meet each state’s restrictions.”


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