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Pennsylvania's Legal Journal

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    A pedestrian whose leg was amputated after she was hit and dragged by a

    Steven F. Marino

    Steven F. Marino

    mass transit bus has filed a personal injury claim against the Southeastern Pennsylvania Transportation Authority.

    Viorika Meza, who resides in Philadelphia’s Olney section, is suing SEPTA, bus driver Aaron Hughes and others over a Dec. 20, 2011, accident in her neighborhood that ended with the plaintiff being trapped and pinned by a SEPTA bus along Godfrey Avenue.

    At around 6:40 in the evening, Hughes was turning the bus left onto Godfrey Avenue from 5th Street when he struck the plaintiff, who was a pedestrian crossing Godfrey at the time, according to the lawsuit.

    As she was crossing the street, Meza, suddenly and without warning, was struck by the New Flyer model SEPTA bus, the suit states, an incident that caused her body to be dragged down the street by the bus and eventually pinned by the vehicle.

    Emergency responders worked to free Meza from the weight of the vehicle, and the woman remained conscious during the extrication process, the record shows.

    The plaintiff ultimately suffered the amputation of her left leg due to the accident.

    The lawsuit says that Meza suffered permanent injury to her bones, cartilages, ligaments, muscles, nerves and tissues of her body, causing her to endure “unrelenting pain and disability.”

    Meza has also allegedly suffered physical pain, discomfort, trauma, humiliation, embarrassment, emotional distress, sleeplessness, anxiety, inability to perform simple activities of daily living, depression, hopelessness and despondency.

    The complaint says that Meza incurred substantial medical bills due to her injuries, and that she has had to “adjust to the life of a leg amputee,” which, in addition to the emotional toll, may include future monetary expenses.

    The other defendants named in the litigation are SEPTA board member Pasquale T. Deon, Sr., SEPTA General Manager Joseph M. Casey, and Rosco Inc., which supplied, distributed or sold the transit bus mirror system being used by the mass transit vehicle at the time of the accident.

    The complaint contains counts of negligence, vicarious liability, civil rights violations, municipal liability, supervisor liability, design defect and failure to warn.

    On the last claim, the plaintiff alleges that Rosco Inc., the maker of the bus’s mirror, failed to adequately warn people such as the plaintiff that the vertical mounting of the mirror system at or below the driver’s eye level on the driver’s side of transit buses created a high likelihood that pedestrian-bus left turn knock-down accidents present a serious safety risk.

    In failing to adopt an alternative design of the mirror system, the suit says, Rosco acted with a “reckless and deliberate indifference” to the safety of the plaintiff.

    Meza seeks exemplary damages, costs, attorneys’ fees, interest and delay damages.

    The suit was filed on Dec. 6 at U.S. District Court in Philadelphia by attorneys Steven F. Marino and David H. Conroy, of the Philadelphia firm Marino & Conroy.


    The federal case number is 2:13-cv-07139-ER.

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    A judge has entered default judgment in excess of $380,000 against a manjustice pendulum logo who allegedly caused teeth and neck injuries to a bar patron during an apparent sucker punch.

    U.S. Magistrate Judge Thomas J. Rueter, of the Eastern District of Pennsylvania, said he found in favor of plaintiff Joseph Ruggiero after defendant Torrance Amos, Jr., failed to plead or otherwise defend himself in the case.

    Ruggiero filed suit against Amos and others in June of last year, after which the plaintiff moved for default judgment against Amos only in mid-November, the record shows.

    A hearing was held on Ruggiero’s default judgment motion last month, and again Amos failed to be a part of the proceeding, according to Rueter’s memorandum, which was filed on Dec. 6.

    Default judgment was then entered against Amos in the amount of $386,097, the record shows.

    Ruggiero commenced his suit on Sept. 22, 2011, against Amos, as well as The Grog, a Bryn Mawr, Pa. tavern, and bar employees Douglas Shafer, Charles McHugh and Chand Patella.

    Ruggiero had gone to The Grog with friends, but ended up leaving following an altercation with Shafer, the bouncer, according to court papers.

    The altercation arose when an underage individual who was a member of the plaintiff’s party was denied entry into the establishment.

    The complaint says that Shafer ended up pushing the plaintiff onto the pavement outside the bar, after which Shafer attempted to close the door, but was prevented from doing so by Ruggiero’s companions.

    The lawsuit goes on to state that Shafer pushed Ruggiero a second time after Ruggiero tried to re-enter the bar and that Ruggiero also threw a punch at the bouncer.

    There is a factual dispute in the record, however, with Ruggiero claiming that in addition to pushing him, Shafer punched the plaintiff in the face causing him to suffer teeth injuries.

    Following the altercation, Ruggiero and his friends began to walk away, but when they got about a quarter of a block from the tavern, one in a group of individuals who had been following the plaintiff and his companions punched Ruggiero in the face “from behind,” causing the plaintiff to lose several teeth and sustain injuries to his cervical spine, the record shows.

    Ruggiero does not allege that any other person hit him in the face that day besides Shafer and Amos.

    In his lawsuit, Ruggiero seeks more than $75,000 in compensatory and punitive damages.

    He claims he had to have several surgical procedures to fix his teeth and neck.

    Ruggiero alleged that unpaid medical bills for services already rendered come to $1,097, while future medical care estimates come in somewhere between $80,000 and $90,000, the record shows.

    The plaintiff also alleges that his injuries have impaired his employment prospects and have delayed his goal of obtaining a college degree.

    In his memorandum, Rueter wrote that, “the court finds that plaintiff has sustained permanent injuries and suffered substantial pain and suffering resulting from the assault committed by defendant Amos.”

    In addition to the $1,097 in past medical expenses, the judge awarded Ruggiero $85,000 for future medical care and $300,000 for pain and suffering.

    The judge did not, however, award punitive damages to the plaintiff, “because the compensatory damage award is sufficient to punish defendant Amos and deter others from committing similar acts,” Rueter wrote.

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    A New York man who is said to be paralyzed from the neck down due to

    Robert W. Sink

    Robert W. Sink

    injuries he sustained after driving home drunk from a northeastern Pennsylvania bar has reportedly reached a $6.6 million settlement in his Dram Shop case against the drinking establishments and a bartender.

    Manolin Jason Mercado, 36, of the Bronx, N.Y., filed suit in December 2011 at the U.S. District Court for the Middle District of Pennsylvania against Pub 570, bartender Brittany Marie DeBias, and Sticks N Stones Bar and Grill over a May 2, 2010, vehicle accident that ended with the plaintiff suffering paralysis.

    The complaint blamed the defendants for over-serving Mercado despite the fact that he was visibly intoxicated.

    According to the civil action, DeBias, the Pub 570 bartender, continued to serve Mercado alcohol despite the fact that he was visibly intoxicated and incapable of safe driving.

    At the end of her shift, DeBias drove Mercado in Mercado’s vehicle to Sticks N Stones, where the plaintiff continued to drink despite the fact that he had apparently already had enough.

    After leaving the second bar at about 9:20 that evening, Mercado drove off the roadway and rolled his vehicle several times, an accident that caused him to sustain severe spinal cord injuries that resulted in paralysis.

    The complaint accused the various defendants of negligence and of violating Pennsylvania’s Dram Shop Act, which prohibits drinking establishments from serving visibly intoxicated patrons.

    Robert W. Sink, Mercado’s Philadelphia-based attorney, told the Morning Call newspaper in Allentown Wednesday that the $6.6 million settlement represents merely a fraction of the plaintiff’s estimated future medical expenses, which could be as much as $34 million.

    Mercado’s lost wages from his job as a doorman and repairman at a New York City apartment building were estimated to be in the neighborhood of $2.8 million, the Morning Call reported.

    Sink told the publication that a large portion of the multi-million-dollar settlement would go toward repaying Medicare for medical care costs that Mercado incurred after his insurance lapsed following the car accident.

    Sink was quoted in the paper as saying that had the case gone to trial, and Mercado was found 51 percent liable for his own injuries, the man would have been awarded no money under state law.

    The court docket shows that defendant Pub 570 was represented by Center Valley, Pa. attorney John P. Hendrzak and Scranton, Pa. attorney Zygmunt R. Bialkowski, Jr.

    Lawyer Richard B. Wickersham, Jr., of the Philadelphia firm Post & Schell, represented DeBias, the bartender, while Sticks N Stones was represented by Philadelphia attorney Michael H. Malin, Jr.

    The docket shows that Sink made the court aware of a proposed settlement in the case back in late September.

    Sink’s letter, which said the settlement was reached with the assistance of mediator Thomas Helbig, did not contain a dollar amount.

    Sink did not immediately return an emailed message from the Pennsylvania Record Wednesday evening seeking to confirm the settlement amount.

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    Sometimes lawyers are flowery courtroom orators.gavel

    Other times they’re more like risk assessors.

    In late September, it was the latter.

    When John Hendrzak sat down at the mediation table with an attorney representing a bar patron who was suing two liquor establishments for over-serving him prior to a single-vehicle crash, he had a feeling how the case might turn out.

    The plaintiff, Joseph Mercado, was left a quadriplegic from the accident.

    He can only get around by blowing into a tube that propels his motorized wheelchair.

    Considering that Mercado’s legal team was asserting more than $37 million in lifetime medical expenses from the get-go, Hendrzak, in-house counsel representing an insurance company for defendant Pub 570, had a feeling the case would never see the inside of a courtroom.

    And he was right.

    This week, it was announced that the parties had reached a $6.6 million settlement in the case, which pitted Mercado against Pub 570, one of its bartender’s, and another business called Sticks N Stones Bar and Grill.

    From a legal standpoint, quadriplegic cases generally don’t go to trial in the Keystone State, Hendrzak said in a phone interview Thursday.

    The reason – “it’s too big a risk on both sides,” Hendrzak said.

    Pennsylvania’s comparative negligence statute is written in such a way that if a plaintiff is found more than half liable for his or her own injuries, they are awarded zero dollars.

    While Mercado took it upon himself to drive drunk, he still asserted that bartenders should have known he was legally intoxicated and thus should not have continued serving him drinks before he got behind the wheel of his vehicle.

    Mercado, 36, a resident of the Bronx, N.Y., filed suit against Pub 570 and Sticks N Stones over the May 2, 2010 accident, that left the plaintiff completely paralyzed from the neck down.

    In his complaint, Mercado said the Pub 570 bartender, Marie DeBias, drove Mercado in Mercado’s vehicle to Sticks N Stones, and then left him there.

    Mercado ended up imbibing more while at the second bar – both establishments are located in East Stroudsburg, Pa. – and when he left, he wound up driving his car off the road and flipping the vehicle several times.

    In depositions, Hendrzak said there were discrepancies with regard to how much Mercado had to drink that night, and whether or not he was capable of driving home.

    “This was a very contested liability case with over 40 depositions,” the attorney said.

    If Mercado ended up dying in the accident, or if the man’s injuries were less severe, the suit would have likely gone to trial on contested liability, Hendrzak said.

    If this was a death case, “our damages would have been capped, we would have tried this in a heartbeat,” he said.

    But because the plaintiff was left a quadriplegic due to the crash, and is facing a lifetime of medical costs, it was fairly obvious to both sides that a settlement was the way to go.

    “When you’re talking high stakes poker, it’s risk analysis,” Hendrzak said.

    All of the settlement dollars came from insurance, Hendrzak said, and DeBias, the Pub 570 bartender, was on the hook for nothing, since she was covered by her employer’s policy.

    Mercado’s Philadelphia-based attorney, Robert W. Sink, surely realized that if a jury determined his client was liable for just 51 percent of his own injuries, the man wouldn’t see a dime, Hendrzak said, making a settlement more attractive.

    Sink, who could not be reached for comment, told the Morning Call newspaper in Allentown this week that a large portion of the settlement funds would go toward repaying Medicare for medical costs that Mercado incurred after his insurance lapsed following the vehicle accident.

    Hendrzak gave a shout-out to the mediator in the case, attorney Tom Helbig, who he said did a “phenomenal job” representing all sides.

    Hendrzak also commended the other lawyers for their professionalism in what was a very difficult, and trying, case.

    “It was highly contested,” Hendrzak said. “It was very professionally handled on all sides.”

    Mediation itself, which occurred in late September took a full, eight-hour day, Hendrzak said.

    In the end, all sides appeared to be pleased with the outcome, he said.

    “We’re satisfied [with] the settlement,” Hendrzak said.

    Hendrzak said Pub 570’s excess insurer, Zurich, was on the hook for most of the settlement money, about $5.65 million, while Sticks N Stones agreed to pay $950,000.

    A breakdown of comparative negligence statues on the website of the law firm Saxe Doernberger & Vita P.C., shows that Pennsylvania employs what is known as the “50 Percent” rule, which says a plaintiff can recover if he or she is 50 percent liable for his or her injuries, but not if that percentage is 51 percent or more.

    Other states have what is called “Pure” negligence, which is when a plaintiff can recover the percentage of damages caused by the defendant no matter how much the plaintiff was at fault.

    Washington, D.C., Maryland, North Carolina and Virginia have no law regarding comparative negligence, according to the law firm.

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    Medical device manufacturer Coloplast Corporation has filed a petition to transfer a

    Joseph Bongiovanni

    Joseph Bongiovanni

    products liability case initiated by a Philadelphia man who claims he sustained injuries due to a defective penile implant device to U.S. District Court.

    The complaint, originally filed in late May at the Philadelphia Court of Common Pleas on behalf of John Starks, contends that the defendant placed into the stream of commerce a defective and malfunctioning Coloplast Titan OTR Inflatable Penile Implant.

    Starks, who is being represented by Philadelphia lawyer Jerry Lyons, of Joseph Chaiken & Associates, claims in the litigation that the device he had surgically implanted into his body on March 15, 2010, eventually stopped working, became defective, malfunctioned, failed, leaked and otherwise would not operate properly.

    The malfunction caused the plaintiff to have to undergo a second surgery on March 20 of last year to remove the defective product and have another penile device implanted in its place.

    Starks alleges the ordeal caused him to sustain additional scar tissue, pain and suffering, additional medical costs, impairments of bodily functions, loss of life’s pleasures including the ability to engage in sexual activity, embarrassment and humiliation, and post-surgical pain.

    The suit contains counts of negligence, strict products liability, breach of contract and breach of warranties.

    Starks seeks more than $75,000 in damages, plus interest and costs.

    In the petition to transfer the case out of Philadelphia’s Common Pleas Court, Coloplast’s lawyer, Joseph N. Bongiovanni, IV, of the Philadelphia firm Marks, O’Neill, O’Brien, Doherty & Kelly, wrote that the Eastern District of Pennsylvania is the appropriate venue in which the litigation should play out because the amount of monetary damages sought by Starks would automatically trigger federal court jurisdiction.

    In Pennsylvania, $50,000 is the jurisdictional limit at the state trial court level.

    The defense lawyer also points out that Coloplast does not do business in Pennsylvania, but rather is headquartered in the State of Minnesota.

    U.S. District Court, Bongiovanni wrote, should have original jurisdiction over the Starks case due to the fact that there is diversity in citizenship between the parties.

    The defense has already provided written notice to plaintiff’s counsel of the removal petition, the filing states.

    According to its website, Coloplast is a global business that develops and manufactures products relating to ostomy care, surgical urology, continence care, and wound and skin care.

    The company employs more than 7,000 people worldwide, according to the site.

    The federal case number is 2:13-cv-03872-MAM.

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    A Philadelphia attorney representing a trucking agency and a commercial

    Jay Barry Harris

    Jay Barry Harris

    driver embroiled in a vehicle accident case brought by a central Pennsylvania couple has moved to transfer the litigation out of state court and into a federal venue.

    Attorney Jay Barry Harris, of the Philadelphia law firm Fineman Krekstein & Harris, filed a removal notice at the federal courthouse in Harrisburg this week seeking to have a U.S. District Court judge take up jurisdiction in a case brought by Nedal Morad and her husband, Ashraf Musleh.

    The couple is suing Old Dominion Freight Line Inc. and driver Michael Maxwell over a Sept. 1, 2011, accident along Interstate 81.

    The lawsuit, filed earlier this month by Harrisburg attorney Matthew L. Owens, says that Morad was driving along the highway near mile marker 57.2 when Maxwell, of Waco, Texas, rear-ended the woman’s vehicle, causing the plaintiff to sustain serious back injuries.

    Morad claims she suffered both cervical and lumbar spine injuries that required medical treatment and physical therapy.

    The plaintiff alleges she incurred medical expenses to treat her injuries, and that she suffered from mental anxiety and nervousness as a result of the crash.

    The lawsuit accuses Maxwell of failing to maintain a safe speed, failing to keep a safe following distance, failing to properly look out for other vehicles operating on the roadway, and failing to be “highly vigilant.”

    Morad acted with due care and was not liable for contributory or comparative negligence, the complaint says.

    Old Dominion Freight Lines, Maxwell’s employer, is vicariously liable for the accident and Morad’s injuries because Maxwell was operating the company’s vehicle at the time and was a “permissive driver in the course and scope of his employment at the time the accident occurred.”

    Old Dominion stands accused of failing to properly train drivers, failing to monitor drivers’ behavior and driving habits, failing to properly screen and hire drivers, and failing to adhere to and comply with general state and local vehicle operating ordinances.

    The plaintiffs seek damages for pain and suffering; past and future embarrassment, humiliation and mental anxiety; past and future incidental costs; loss of life’s enjoyment and pleasures; earnings losses; and for Morad’s limited range of motion.

    In his removal notice, defense attorney Harris wrote that the matter belongs in the federal court system because the action is between citizens of different states.

    Harris also maintains that despite the plaintiffs’ contention that the damages will hover around $50,000, the reality is that damages would likely exceed $75,000, which would trigger U.S. District Court oversight.


    The federal case number is 1:13-cv-03008-SHR.

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    A Pittsburgh firefighter, husband, and father of two is suing the National

    Jason E. Luckasevic

    Jason E. Luckasevic

    Collegiate Athletic Association over allegations that the organization failed to warn him about the dangers of concussions sustained during on-the-field play.

    Matthew Onyshko, 32, who has two young children with his wife, Jessica, a co-plaintiff in the litigation, accuses the NCAA of failing to take effective action to protect him from the long-term effects of concussions and sub-concussive blows to the head while he played college football at California University of Pennsylvania from 1999 to 2003.

    The complaint, which was filed by attorney Jason E. Luckasevic, of the Pittsburgh firm Goldberg, Persky & White, says that the NCAA breached its duty to protect Onyshko “in the face of long-standing and overwhelming evidence regarding the need to do so.”

    “The NCAA failed to educate its football-playing athletes, like Onyshko, on the long-term, life-altering risks and consequences of head trauma in football,” the lawsuit reads. “They failed to establish known protocols to prevent, mitigate, monitor, diagnose, and treat neurological disorders.”

    The athletic association, the plaintiff claims, failed to address and/or correct the coaching of tackling or playing methodologies that cause head injuries, and it failed to educate coaches, trainers and student-athletes as to the symptoms indicating possible concussions.

    “The NCAA engaged in a long-established pattern of negligence and inaction with respect to concussions and concussion-related maladies sustained by student-athletes,” the complaint states.

    Onyshko, the suit says, experienced many repeated blows to the head during his collegiate football career.

    On three occasions in particular, he lost consciousness for at least 30 seconds.

    After he graduated, the Pittsburgh man began to experience headaches, numbness, twitching, muscle atrophy, fatigue, loss of mobility, slurred speech, difficulty swallowing, weakness and other neurological symptoms, the lawsuit states.

    And just recently, Onyshko was diagnosed with a progressive brain and spinal cord injury with “ALS-like symptoms” said to be caused by repeated head trauma during his college football career.

    The complaint states that medical science has known for decades that “repetitive and violent jarring” of the head or impact to the head can cause what is known as Mild Trauma Brain Injury with a heightened risk of long-term, chronic neuro-cognitive maladies.

    The NCAA has known or should have known for many years that collegiate football players and their families, including Onyshko, were unaware of the serious risk posed to the players’ long-term cognitive health caused by repeated head impacts while playing football, the complaint reads.

    “From its inception, the NCAA had a duty to protect football players like the Plaintiff from health and safety risks,” the suit states. “The NCAA held itself out as acting in the [sic] Onyshko’s best interests. Plaintiff relied on the NCAA to disclose relevant risk information and protect his health and safety.”

    The civil action accuses the NCAA of negligence for failing to protect the plaintiff’s health and safety.

    “The NCAA knew or should have known that its actions or inaction in light of the rate and extent of concussions reported and made known to the NCAA would cause harm to the Plaintiff in both the short and long term” the complaint reads.

    Jessica Onyshko, the plaintiff’s wife, has a loss of consortium claim in the litigation that says she has suffered the loss of her spouse’s support, society, services and companionship due to his injuries, and that she, too, has had to spend money on medical care relating to her husband’s treatment.

    The couple seeks more than $75,000 in damages, along with interest and costs.

    The complaint was filed nearly four months after thousands of former professional football players and the National Football League agreed to a $765 million proposed settlement in multidistrict concussion litigation that had been playing out at the federal courthouse in Philadelphia.


    The federal case number is 2:13-cv-01791-CRE.

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    The Pennsylvania Supreme Court this week allowed a multi-million dollar

    Pa. Supreme Court Chief Justice Ronald D. Castille

    Pa. Supreme Court Chief Justice Ronald D. Castille

    punitive damages award to stand in a case against Wyeth Pharmaceuticals brought by an out-of-state woman who says she developed breast cancer as a result of taking the hormone replacement therapy drug Prempro.

    In a one-sentence per curiam order filed Dec. 16, the high court dismissed the defendant’s final appeal as having been improvidently granted.

    Allocatur, the justices said, should never have been Ok’d.

    Arkansas residents Mary Daniel and Thomas Daniel, Sr., filed suit at Philadelphia’s Common Pleas Court in late June 2004 alleging that Mary developed breast cancer in August 2001 after having taken the HRT drug for two years.

    The woman ended up having to undergo surgery and chemotherapy to treat her disease, the record shows.

    The couple sued Wyeth for negligence, breach of express warranty, fraud and loss of consortium.

    Records show that a Philadelphia jury awarded the plaintiffs $1,681,650 in compensatory damages following a four-week trial in January 2007.

    Punitive damages were also awarded at trial, but the judge ordered the dollar figure to remain under seal, according to the court docket at the Philadelphia Court of Common Pleas.

    Jurors determined that Wyeth negligently failed to warn Mary’s physician of the risks of breast cancer while taking Prempro, the record shows.

    The jury also concluded that Prempro was a factual cause of Mary’s breast cancer.

    Later that year, Philadelphia Common Pleas Court Judge Allan Tereshko granted a post-trial motion by Wyeth seeking judgment notwithstanding the verdict because an expert witness retained by the plaintiffs had recanted his testimony on causation during a deposition he gave in another HRT case against Wyeth, the record shows.

    “The fact that the jury did not have an opportunity to hear the Zandi testimony was significant in that it likely would have resulted in a defense verdict because Daniel failed to prove, more likely than not, Prempro caused her cancer,” Tereshko wrote in his Sept. 24, 2008 opinion, referring to the case of Zandi v. Wyeth.

    In May 2011, the court docket shows, then-Common Pleas Court Judge Sandra Mazer Moss ordered that the record be unsealed, and the amount of punitive damages reported.

    Bloomberg News subsequently quoted a plaintiff’s attorney in the case as saying that punitive damages were in the neighborhood of $8.6 million, making the overall verdict more than $10 million.

    In 2011, the Pennsylvania Superior Court, a lower-tier appellate body, reversed the trial court’s ruling scrapping the jury verdict and ordered Wyeth to pay the more than $10 million in damages to Daniel, records show.

    The Superior Court judges had determined that no fraud on the court took place  and that a new trial should never have been granted.

    Wyeth Pharmaceuticals was bought by drugmaker Pfizer in 2009.

    Spokesmen for Pfizer did not return a message seeking comment.

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    There are signals that there may be some roadblocks in the proposed

    Law Professor John Banzhaf

    Law Professor John Banzhaf

    settlement that was unveiled nearly four months ago in the multidistrict concussion litigation against the National Football League.

    For one thing, talk has surfaced regarding possible “double dipping” by attorneys who have been representing former professional football players who say the NFL actively withheld information on the long-term health risks associated with concussions players sustained while on the field.

    More than 4,500 former players and their respective spouses have been suing the league for close to two years now.

    U.S. District Judge Anita Brody, who oversaw the litigation, which had been consolidated in the Eastern District of Pennsylvania, has yet to formally approve the preliminary $765 million settlement, which means she has also yet to weigh in on the issue of legal fees.

    On Dec. 16, Brody appointed Perry Golkin as a special master to assist her in evaluating the financial aspects of the proposed settlement, according to the case docket.

    The judge wrote in her order that the appointment is warranted by the “expected financial complexity of the proposed settlement.”

    Golkin is reportedly investigating allegations of “double dipping” on the part of some plaintiffs’ attorneys, according to Darren Heitner, a partner at Wolfe Law Miami who contributes news articles to Forbes.

    In this case, double dipping refers to lawyers getting paid through a common fund set up to compensate them for their work on the litigation, and also through contingency fees with individual player-plaintiffs.

    ESPN’s Outside the Lines blog reported this week that the allegation arose when Christopher Seeger, who served as the player-plaintiffs’ lead negotiator in the MDL, attempted to arrange an agreement whereby he would receive 10 percent of any monetary damages awarded to 79-year-old former NFL player Billy Kinard.

    Seeger, a lawyer with the firm Seeger Weiss, stands to receive a large portion of the common fund that was created to cover attorneys’ fees in the litigation, Outside the Lines reported.

    The fund could reportedly reach $100 million, and is separate money not attached to the $765, which is specifically designated for the injured players.

    Outside the Lines reported that Seeger quickly withdrew his proposal for the 10 percent from Kinard after Kindard’s attorney challenged the proposed arrangement.

    Seeger, one of a handful of lawyers on an executive committee designed to negotiate with the league, could not be reached for comment.

    In the Outside the Lines article, Seeger was quoted as saying that he is not representing any new plaintiffs on a fee arrangement.

    “A small number of plaintiffs were mistakenly offered a retainer agreement after approaching Seeger Weiss for representation post-announcement,” Seeger said in a statement provided to the website.

    John Banzhaf, III, a professor of public interest law at George Washington University Law School in Washington, D.C., said while Golkin, the special master, was likely appointed due to the double dipping allegations, he could have also been brought aboard to help Brody, the judge, assess other financial issues in the complex litigation.

    Banzhaf said if Golkin comes back a couple months down the road with a report critical of the settlement, Brody could be pressured to send back the settlement with instructions that it be revised.

    At this point, the settlement could be left intact, delayed or defeated all together, he said.

    Banzhaf said contingency fee arrangements, in the traditional sense, are not inherently bad, but this situation is slightly different because there is already a pot of cash being set aside for lawyers who worked on the MDL.

    “Generally this is reasonable, fair and often very effective,” Banzhaf, by phone, said on traditional contingency fee situations.

    In many cases, the system works out for clients who have little money to spend on lawyers in cases involving, say, a motor vehicle accident or other type of injury, he said.

    Under that contingency fee system, a lawyer typically takes about a third of the money recovered by a plaintiff in any given tort case.

    But in the high-stakes NFL litigation, the common fund that was set up was designated as the pool from which attorneys are supposed to get paid.

    In the Outside the Lines article, Sam Franklin, an attorney representing Kinard, the former player, said that after reviewing the fee agreement he became concerned that Seeger, the attorney on the executive committee, was attempting to take money from his client on top of the money he would get from the common fund.

    “That’s what’s wrong: It’s double-dipping, getting paid by the defendant and getting an additional 10 percent by each client you sign up,” Franklin was quoted as saying in the ESPN article. “I’ve never seen anything like this.”

    In a letter to Seeger, according to the article, Franklin asked: “On what basis do you believe your firm at this stage can propose an engagement to represent class members in seeking benefits from the claims process, including a fee of 10 percent plus a share of ‘common expenses?”

    In a return email, according to Outside the Lines, Seeger admitted that his firm had agreed to represent Kinard for “the reduced fee of 10 percent,” adding that “we absolutely reject your suggestions and assumptions of anything inappropriate,” and “will not be executing a retainer with your client, Mr. Kinard.”

    Seeger apparently offered to represent Kinard free of charge at this point, but that offer was rebuffed.

    In his interview, Banzhaf said if a former player in the NFL litigation signs a contingency fee agreement with an attorney, that attorney is getting “a lot of money he never earned,” if the lawyer was involved with numerous players at once.

    The players, in turn, would get arguably less than they are entitled to, the professor said.

    Meanwhile, the settlement approval process moves forward.

    It is not yet clear when Brody would rule on the proposed settlement.

    What is certain is that’s she’ll wait to weigh in until the financial report by her special master is completed.

    At this point, there’s no telling how long that process could take.

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    An amputee who served in Vietnam who sued the makers of a wheelchair

    Sayde Joy Ladov

    Sayde Joy Ladov

    lift back in September over claims that he sustained injuries after falling from the device has now added the United States government to his list of those he blames for the accident.

    Philadelphia resident Ronald Smiley who, along with his wife, Marilyn, sued New Jersey-based Artisan Builders and The Wheelchair Man Company earlier this fall, filed a separate complaint on Dec. 18 against the federal government over a Sept. 23, 2011, incident that occurred outside of his home.

    At the time, Ronald Smiley, who requires the use of a motorized wheelchair because he lost his left leg during the Vietnam Conflict, rode his scooter onto the lift manufactured and installed by The Wheelchair Man and Artisan respectively when the locking mechanism on the device failed to engage, causing the plaintiff and his scooter to fall approximately 12 feet to the street below.

    As a result of his fall, Smiley says he sustained various injuries to the discs in his neck that required medical treatment.

    The plaintiff also claims that he has been unable to attend to his daily chores and activities as a result of the incident.

    The latest complaint is being brought against the U.S. Government under the Federal Tort Claims Act because the Department of Veterans Affairs was responsible for purchasing the wheelchair lift for Smiley from The Wheelchair Man.

    The plaintiff, the complaint says, would make “various applications to defendant for items needed to assist in ambulation and defendant would designate various providers for plaintiff to use relative to his needs.”

    The company that installed the lift at Smiley’s Philadelphia home was Artisan Builders and Elevators.

    The latest complaint accuses the government of negligence for failing to properly investigate whether Artisan could properly install the lift, failing to properly inspect and maintain the lift, failing to advise Artisan that the lift should not be modified, failing to oversee all individuals who rendered services to plaintiff, and failing to provide and maintain in good working condition the lift in question.

    In the September lawsuit, Smiley and his wife accused the two companies of failing to properly install the lift, modifying the lift against the instructions of the manufacturer, and failing to properly install, inspect, maintain and repair the lift.

    The previous suit seeks more than $150,000 in damages against the two companies while the latest complaint seeks the same amount of damages against the government.

    Both lawsuits were filed by Philadelphia attorney Sayde J. Ladov of the firm Dolchin, Slotkin & Todd.


    The federal case number is 2:13-cv-07411-CDJ.

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    A suburban Philadelphia man is suing a Maryland business over claims hejustice pendulum logo sustained head injuries and completely lost his sense of smell following a chain reaction accident triggered by items that fell off of the back of a landscaping truck.

    Martin Blum, who lives in Jenkintown, Montgomery County, filed suit in U.S. District Court in Philadelphia on Dec. 18 against Joppa, MD-based Akehurst Landscaping Services Inc. over an incident that took place on Jan. 16, 2012, near mile marker 70 on Interstate 95 in Baltimore County, Maryland.

    Blum was driving his car southbound along the highway, on his way to a business meeting in North Carolina, when a truck driven by Michael Buell, an employee of the defendant, lost its cargo, an act that caused a multiple car collision along the roadway, according to the complaint.

    The lawsuit says that the defendant failed to adequately secure its load of wheelbarrows and other landscaping tools, causing the items to be ejected from the bed of the truck and land on the highway, which triggered the multi-vehicle accident.

    The plaintiff alleges he was seriously injured as a result of the incident.

    He says he sustained a cerebral concussion, post-concussion syndrome, and vertigo, as well as a complete loss of the sense of smell, as well as other physical and emotional injuries.

    The plaintiff claims he sustained earnings losses due to his inability to work following the accident.

    Blum seeks more than $75,000 in damages.

    He is being represented by Philadelphia attorney Richard K. Hohn of the firm Hohn & Scheuerle.


    The federal case number is 2:13-cv-07410-TON.

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    A Philadelphia Common Pleas Court judge has overruled defense

    Philadelphia Common Pleas Court Judge Frederica A. Massiah-Jackson

    Philadelphia Common Pleas Court Judge Frederica A. Massiah-Jackson

    preliminary objections in a personal injury case against Hatfield Quality Meats and others.

    Judge Frederica Massiah-Jackson, in a Dec. 18 order, ruled that James C. Levering’s case against the food processing company can play out in Philadelphia County Court, despite objections that had been lobbed by the defendants that venue was improper.

    Levering is suing Hatfield, Clemens Food Group, Pleasant Valley Packing, Clemens Family Corp. and others over a June 9, 2012, incident in which the plaintiff, who was a business invitee at the Clemens Food Group processing plant in Hatfield, Montgomery County, crushed his hand while operating the defendants’ elevator.

    The defendants subsequently filed objections asserting that the matter should be transferred to the Montgomery County Court of Common Pleas because it would be more convenient for the parties involved, the record shows.

    The defendants, however, were unable to persuade Massiah-Jackson during a Dec. 6 hearing as to why the litigation should be sent out of Philadelphia.

    “The Hatfield Defendants were not able to demonstrate by detailed averments, affidavits or argument why Philadelphia is vexatious or burdensome,” the judge wrote.

    Citing appellate court precedent, Massiah-Jackson wrote that there is a “vast difference” between inconvenience and oppressiveness, and traveling from Montgomery County to Philadelphia for the case is not a hardship.

    The defendants had also argued that they do not regularly conduct business in Philadelphia, but supplemental discovery and exhibits “make it clear that these Hatfield Defendants successfully and strategically market themselves by providing Philadelphia services, Philadelphia foods and regularly engage in Philadelphia business,” the judge wrote.

    One example the judge offered was the Hatfield Quality Meats Partnership Agreement with the Philadelphia Phillies for 2010 through 2016 that provides the defendants with exclusive rights to the hot dog concessions at Citizens Bank Park in South Philadelphia.

    Massiah-Jackson went on to write that when deciding whether a corporation regularly conducts business in a county, a court makes an assessment both as to quality and quantity of contacts.

    In this case, the defendants send sales representatives to Philadelphia at least once a month.

    Furthermore, she wrote, Clemens Food Group submitted documents that show nearly $3 million in sales in 2010, 2011 and 2012 to Philadelphia wholesalers, and nearly $6 million in annual sales to Sysco’s Philadelphia location for distribution in the tri-state, Pennsylvania, New Jersey and Delaware area.

    “The defendants vigorously suggest that $9 million of annual Philadelphia business is but a fraction of their nearly $1 billion annual gross sales, thus, rendering venue improper in Philadelphia,” Massiah Jackson wrote. “Under the circumstances presented, this Court does not agree.

    “Venue is triggered when there is a continuous, although small amount of business activity with Philadelphia,” the judge continued. “A corporation may engage ‘regularly’ even though the acts make up a small part of the total activity and enterprise.”

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    A federal judge in Philadelphia has agreed to send back to state court a personal injury

    U.S. District Judge Jan DuBois

    U.S. District Judge Jan DuBois

    lawsuit initiated by a Pennsylvania man who claims he sustained serious injuries when a heavy mounted crane fell onto his shoulder and back while he was working.

    The complaint asserts negligence claims against AMERCO, U-Haul International Inc., U-Haul Co. of Pennsylvania and Falls Manufacturing Co.

    The record shows that plaintiff Eldridge Salley filed a motion with the U.S. District Court for the Eastern District of Pennsylvania to remand the case to Philadelphia’s Common Pleas Court on the grounds that complete diversity was not present between the parties.

    AMERCO simultaneously moved to dismiss the claims against it for lack of personal jurisdiction while U-Haul Co. of Pennsylvania and Falls Manufacturing Co. sought to dismiss the entire complaint for failure to state a claim upon which relief can be granted, or alternatively for a more definite statement.

    In his July 15 ruling, U.S. District Judge Jan E. DuBois granted the plaintiff’s motion to remand the case to Philadelphia County, although the jurist denied Salley’s petition seeking litigation fees and expenses.

    Because the judge remanded the civil action, he refused to rule on the defendants’ motions to dismiss.

    The lawsuit involves claims that Salley suffered spinal fractures, bone fragments, and a permanent deformity of the spine after the piece of heavy equipment fell on top of him at a location owned and operated by the defendants in Fairless Hills, Bucks County.

    The plaintiff initially filed his suit in Philadelphia’s Common Pleas Court on Feb. 1, but U-Haul International subsequently filed a removal notice seeking to transfer the litigation to U.S. District Court, with U-Haul’s lawyers arguing that the matter belongs in a federal jurisdiction due to diversity in citizenship among the parties.

    AMERCO and U-Haul International are based in Nevada and Arizona respectively.

    U-Haul Co. of Pennsylvania, however, has its principal place of business in the Keystone State, as does Falls Manufacturing Co., a division of that company.

    The two defendants argued that removal to federal court was proper because they claim they were fraudulently joined to the litigation, the record shows.

    In court papers, U-Haul argued that the Pennsylvania defendants were Salley’s statutory employers under the Pennsylvania Workmen’s Compensation Act, and because of this they are liable only as outlined in the PWCA.

    Therefore, U-Haul argued, the Pennsylvania defendants are immune from suit in the negligence action because Salley lacks a colorable claim against them, hence the fraudulent joinder contention.

    U-Haul conceded that Salley was on paper an employee of Centrix Staffing, a temporary staffing agency, but nevertheless argued that pursuant to the “borrowed servant” doctrine that the Pennsylvania defendants were Salley’s statutory employers, the judicial memorandum shows.

    In support of this claim, U-Haul submitted an affidavit by William Hawthorne, the president of Falls Manufacturing Co., which is owned by U-Haul Co. of Pennsylvania, and which stated that the company provided Salley with daily job assignments, and that U-Haul, not Centrix Staffing, controlled the welding work that was performed by Salley.

    Salley, however, in his own affidavit, contended that during his employment, “nobody on the job controlled the manner in which I performed mig welding as an independent contractor.”

    Salley also claims he was never given U-Haul attire and had to use his own tools at his job site.

    The judge ultimately determined that given the facts of the case, it appears that the Pennsylvania defendants were not Salley’s statutory employers, and therefore could be held potentially liable in the civil action.

    “Salley’s claims against the Pennsylvania defendants are not ‘wholly insubstantial and frivolous,’ and ‘there is a possibility that a state court would find that the complaint states a cause of action’ against the Pennsylvania defendants,” DuBois wrote in his memorandum. “Thus, the Court concludes that joinder of the Pennsylvania defendants was proper and that subject matter jurisdiction is lacking due to the absence of complete diversity of citizenship.”

    At the same time, DuBois denied Salley’s motion for fees and expenses, writing that while the court rejected the defense’s fraudulent joinder argument, the court cannot say that U-Haul lacked an “objectively reasonable basis for removal” due to the disputed nature of the facts as alleged in the case.

    Court records show that Salley is being represented by Philadelphia lawyer Justin Bieber.

    Richard B. Wickersham, Jr., of the Philadelphia firm Post & Schell, P.C., appears to be representing the U-Haul defendants and Falls Manufacturing Co. in the case, while fellow Post & Schell lawyer Karyn Dobroskey Rienzi seems to be representing AMERCO, the court docket shows.

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