For the second time in as many weeks, a Philadelphia personal injury law

Joel Feller

firm has filed a lawsuit on behalf of a man who claims he suffered injuries due to his use of a testosterone supplement medication.

Lawyers with Ross Feller Casey on Tuesday filed a civil complaint at Philadelphia’s Common Pleas Court on behalf of Edwin Rios and his wife, Eileen, who reside in southern New Jersey.

The Vineland couple claims Edwin, who is 67 and has no history of cardiovascular problems, suffered a myocardial infarction last spring, something the plaintiffs attribute to the man’s use of the medication Testim.

The plaintiff, who is also a Type II diabetic, began using Testim in May 2012.

He suffered the heart attack about a year later.

The lawsuit says that the injury was caused by the “exogenously administered testosterone-containing medication Testim,” which is manufactured and distributed by Chesterbrook, Pa.-based Auxilium Pharmaceuticals Inc. and Philadelphia’s GlaxoSmithKline, the two defendants named in the litigation.

The civil complaint accuses the drug companies of knowing Testim was dangerous, but nevertheless failing to provide adequate safety warnings.

Testim, like other testosterone gels that are applied to a man’s upper arms, provides a “continuous transdermal delivery system for testosterone for 24 hours following a single application to the skin,” according to the lawsuit.

Testim, which received approval from the U.S. Food and Drug Administration back in October 2002, was “defective in its condition and unreasonably dangerous with respect to its design, warnings, instructions, and/or indications for use,” the lawsuit reads.

The drug companies are accused of orchestrating a “national awareness campaign and multi-platform media initiative and program to purportedly educate male consumers about the signs and symptoms of ‘Low T,’ and to introduce a ‘cure’ for ‘Low T’ in the form of, among other prescription testosterone-containing preparations, Testim,” according to the complaint.

The complaint alleges that the defendants knew a decrease in testosterone levels in men is part of the natural aging process, and that returning testosterone levels to so-called “physiologic levels to treat the contrived and pharmaceutical industry created and driven diagnosis of ‘Low T’ was a recipe for grievous harm in the form of cardiovascular events.”

Just last week, lawyers from Ross Feller Casey filed a similar lawsuit on behalf of an Alabama man who says he suffered a stroke due to his use of Testim.

The firm claims that suit was the first of its kind to have been filed at the Philadelphia Common Pleas Court.

Like the other suit, the Rios complaint says that a decrease in testosterone levels is a “normal and expected component of the male aging process,” and, despite assertions by the defendants, is not a “syndrome” nor “disease” nor “condition.”

“Increasing testosterone levels via the administration of exogenous testosterone in men who have experienced a physiologic decrease in testosterone levels during the aging process presents unreasonable health hazards, and is manifestly dangerous,” the complaint reads. “Defendants repeatedly and knowingly represented, through deeds, action, and words, including an aggressive and pervasive direct-to-consumer advertising campaign, that low testosterone levels and ‘Low T’ were pathologic entities requiring treatment.”

As a result of his use of Testim, Edwin Rios, the plaintiff, experienced pain and suffering, loss of life’s pleasures, physical debility, mental anguish, fear and fright, embarrassment and humiliation, economic loss, requirement for medical monitoring, and past, present and future medical expenses, the complaint states.

His wife, Eileen, brings a claim for the loss of marital consortium.

The suit contains counts of strict liability, negligence, breach of implied and express warranties, fraud and recklessness, and negligent misrepresentation.

The couple seeks unspecified compensatory damages along with interest, costs and delay damages.

Drug company Johnson & Johnson and medical device manufacturer

Eric H. Weitz

Ethicon Inc. have filed a removal petition in U.S. District Court in Philadelphia stating that a South Carolina woman’s product liability claim involving allegations of faulty pelvic mesh belongs in that venue, not the Philadelphia Court of Common Pleas.

Judy Abrams, of Honea Path, S.C., filed suit in early February in Common Pleas Court over claims that she was injured in February 2009 after a physician implanted the defendants’ Gynecare Prolift +M Pelvic Floor Repairing System inside of her body during a surgery at AnMed Health Medical Center in Anderson, S.C.

The lawsuit, which was filed by lead attorney Eric H. Weitz, of the Philadelphia firm Messa & Associates, alleges that Abrams, as a result of the defendants’ conduct, has been injured “catastrophically,” and that she sustained severe and permanent pain, suffering, disability, impairment and loss of life’s enjoyment.

The complaint says that patients implanted with the defendants’ product have suffered from mesh erosion, mesh exposure, mesh contraction, infection, inflammation, scar tissue, organ perforation, pelvic floor damage and other problems associated with the device.

Despite knowledge of the catastrophic injuries and complications caused by the pelvic mesh, however, the defendants have continued to market and sell their products while failing to adequately warn of its dangers.

The suit even points out that in January 2012, the U.S. Food and Drug Administration ordered the defendants to conduct randomized, controlled clinical testing of the pelvic mesh products and mesh components or to be ordered to cease their manufacturer, marketing and sale.

As of the date of the filing of the complaint, the plaintiff’s lawyers’ note, it is unknown whether Ethicon or Secant Medical, another defendant, ever began or completed any of the clinical testing ordered by the FDA.

The defense’s removal petition, filed on March 17 by Drinker Biddle & Reath attorneys Kenneth A. Murphy, Melissa A. Graff and Andrew P. Reeve, states that the lawsuit should play out in federal court for various reasons.

For starters, the defense attorneys contend that regardless of the assertion that the plaintiff’s monetary damages claim falls within the jurisdiction of a Pennsylvania state court, it’s clear that the woman is actually seeking damages in excess of $75,000, the amount triggering federal court jurisdiction.

The petition also states that there is complete diversity of citizenship between the plaintiff and the “properly joined” defendants.

As for the other defendants, the attorneys wrote that Bucks County-based Secant Medical was fraudulently joined to the litigation because it has no involvement with the Ethicon pelvic mesh product that is the subject of the lawsuit.

A plaintiff such as Abrams, the lawyers wrote, cannot defeat a defendant’s federal right of removal by fraudulently joining a forum defendant such as Secant in this case.

As proof of fraudulent joinder, the defense lawyers attached to the petition the affidavit of a man identified as Marc Kisielnicki, who notes that Ethicon manufactured and sold the Prolift +M pelvic mesh device prior to “decommercialization” of the product in 2012.

Secant, the petition states, was not involved in any manner in the knitting of the composite material that was utilized to make the mesh device, and Johnson & Johnson never used any materials provided by Secant in the making of the Prolift +M.

“Because no cause of action exists against it, Secant is an unnecessary and dispensable party to the dispute between Plaintiff and Removing Defendants,” the petition states.

The state case ID number is 140200307 and the federal case number is 2:14-cv-01599-PD.

The widow of a man who died from renal failure and intracerebral

Michael M. Weinkowitz

hemorrhage allegedly tied to his use of the medication Pradaxa has filed a federal wrongful death complaint against the makers of the drug.

Nancy L. Standish is suing Boehringer Ingelheim Pharmaceuticals over the death of her husband, James Standish, Jr., who died on April 10, 2012, after suffering a bilateral cerebellar and left frontal subarachnoid and intraparenchymal hemorrhage.

The injuries led James Standish to spend two days in Crozier Chester Medical Center in suburban Philadelphia before he ultimately passed away, the suit claims.

James Standish, the complaint states, had been taking Pradaxa since July 2007 for treatment of non-valvular atrial fibrillation.

The medication is a direct thrombin inhibitor that is designed to reduce the risk of stroke and systemic embolism in patients with non-valvular atrial fibrillation, which is a heart rhythm disorder.

Pradaxa, which received Food and Drug Administration approval in the fall of 2010, was promoted as being more effective than a drug called warfarin in preventing stroke and systemic embolism, the lawsuit states, but in reality the makers of the drug failed to properly warn of its dangers.

The defendants, the suit says, also failed to warn emergency room physicians, surgeons and other critical care medical professionals than unlike generally-known measures taken to treat and stabilize bleeding in users of warafin, there is no effective agent to reverse the anticoagulation effects of Pradaxa, and therefore no effective means to stabilize patients who experience uncontrolled bleeding while taking Pradaxa.

The complaint says that as of Dec. 31, 2011, the FDA has received more than 500 reports of deaths of people in the United States linked to Pradaxa.

There have additionally been more than 900 reports of gastrointestinal hemorrhages, more than 300 reports of rectal hemorrhages, and more than 200 reports of cerebrovascular accidents suffered by Americans associated with Pradaxa use, according to the lawsuit.

As a result of the defendants’ claims regarding the effectiveness, safety and benefits of Pradaxa, the plaintiff’s husband and his doctors were unaware that the man would have been exposed to the risks of excessive and/or uncontrollable bleeding and other health issues associated with the medication, the complaint states.

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

The plaintiff says she has incurred medical, funeral and estate expenses relating to the death of her husband.

She seeks compensatory damages in excess of $75,000, unspecified punitive damages, damages for pain and suffering, interest, attorneys’ fees and costs.

The complaint was filed in U.S. District Court in Philadelphia on March 19 by attorney Michael M. Weinkowitz of the firm Levin, Fishbein Sedran & Berman.

The federal case number is 2:14-cv-01627-ER.

A federal judge has ruled that the City of Philadelphia is not liable for

U.S. District Judge Cynthia M. Rufe

injuries sustained by a woman who was just a child when she suffered a years-long period of sexual abuse at the hands of a city police officer.

U.S. District Judge Cynthia M. Rufe earlier this month also determined that three former Philadelphia police commissioners and the city’s Department of Parks and Recreation are not to blame for the abuse perpetuated upon Deborah Grooms by Tyrone Wiggins, who is currently serving out a 17-and-a-half-to-35-year state prison sentence for his conviction on criminal charges stemming from his eight-year campaign of “horrifying sexual abuse” of Grooms beginning when the woman was 10 years old.

Background information on the case shows that Wiggins, also defendant in the civil action, taught a karate class at a city rec center operated by the Parks and Recreation Department at which Grooms was enrolled.

The former officer became acquainted with the girl’s family, and soon after gaining their trust began to sexually abuse Grooms, actions he continued for a total of eight years.

“Wiggins used his physical strength, proximity to Grooms’ family, and his status as a police officer to intimidate Grooms,” the judicial memorandum states. “He threatened her with incarceration if she ever told anyone about his actions.”

Wiggins even committed some of his crimes against Grooms while on duty; he was known to lie to dispatchers when they asked where he was, during times when he was sexually assaulting the girl in Fairmount Park.

Wiggins, the record shows, got so loud at Grooms’ apartment at times that police officers would respond to the home, although Wiggins was able to get the responding officers to retreat after flashing his badge and saying that everything was alright.

Grooms finally reported the abuse to police in 2006, after which Wiggins was suspended by former Police Commissioner Sylvester Johnson.

The former officer was still allowed to teach karate at the rec center, however, and later, as criminal charges approached, Wiggins was allowed to resign from his job so as to keep his pension, according to the court record.

As for the civil case, Johnson, another former police commissioner, Richard Neal, and the city itself filed motions to dismiss, arguing that while Grooms stated an injury cognizable under Section 1983 of the Civil Rights Act, the complaint fails to state a sufficient factual basis to impose liability on defendants other than Wiggins.

Grooms had argued that the other defendants should be held liable for failing to train police officers, and because the city caused her constitutional violations pursuant to official policies or customs.

Rufe, the judge, wrote that with respect to the failure-to-train accusation, the complaint did not give sufficient indication of the factual basis of the two essential elements needed to state a plausible claim for relief, in this case indifference and causation.

“Beyond alleging that Neal and Johnson were the Commissioners of Police at the times when Grooms’ constitutional rights were violated, she alleges no facts to support the inference that at the time she was abused there was any known or obvious condition that required training that either individual defendant failed to address,” Rufe wrote. “Groom argues in both her complaint and in her opposition to the motions to dismiss that the individual defendants had a continuing duty to review police officers’ conduct and credentials, but this does not rise to the level of ‘actual or constructive notice that a particular omission in their training program causes city employees to violate citizens’ constitutional rights.’”

The judge also wrote that Grooms pleaded no facts that could support the inference that Neal, who was commissioner until 2002, was on actual or constructive notice of Wiggins’ behavior at any point.

“It is not enough that Wiggins abused her,” Rufe wrote. “The abuse or the conditions that permitted the abuse to continue must have been known or obvious to the moving defendant and he must have chosen to ignore them in order to be held liable on a failure to train theory.”

Grooms, Rufe wrote, also failed to plead facts that could subject the city to liability under a theory that an official policy or custom caused the woman’s injuries.

“She never alleges with any specificity what the policy or custom was or any facts beyond her injuries to suggest that [an official policy] existed,” the judge wrote. “Therefore, Grooms fails to allege how a fact finder could infer that a policy, rather than a rogue officer, caused her injuries.

“In short,” Rufe wrote, “Grooms unquestionably alleges sufficiently that she was injured, but beyond conclusory statements, she never alleges that police commissioners or other municipal officials knew or had reason to know of her injuries or that they enforced a specific custom or policy pursuant to which she was injured.”

Rufe concluded by stating that while Grooms undoubtedly suffered “grievous, abominable injuries,” the woman failed to allege facts that could support a legal theory that would impose liability on the municipal defendants.

A three-judge state appellate court panel has affirmed a Philadelphia

Pennsylvania Superior Court Senior Judge William H. Platt

judge’s grant of summary judgment to Dave & Busters Inc. in a personal injury case brought by a man who says he hurt himself while bowling at the city business.

In a March 21 non-precedential opinion written by Superior Court Judge William H. Platt, the appeals panel determined that a Philadelphia trial judge was correct this past June to weigh in favor of the defense in a case brought by Lynell Pettigrew, who sued in late March 2012 over an incident that occurred two years prior at the Dave & Busters location at 325 N. Columbus Boulevard in Philadelphia.

Pettigrew claimed he sustained an injury after slipping and falling on the floor of the facility while bowling, the record shows.

A board of arbitrators initially found in favor of Dave & Busters, and a Philadelphia judge ultimately agreed with the arbitrators.

Pettigrew subsequently appealed the judge’s decision to Superior Court, arguing that the trial court erred in granting the defendant’s motion for summary judgment because genuine issues of fact existed over both the ownership of the premises and whether the defendant possessed constructive or actual notice of the alleged defect or hazardous condition at the facility.

The Superior Court judges wrote that the trial judge properly found that the record did not contain sufficient evidence to show that the defendant owed a duty of care to the plaintiff because Pettigrew was not injured at the facility named in the complaint but rather at another Dave & Buster’s location.

When responding to the complaint, lawyers for Dave & Busters argued that the incident couldn’t have occurred at the Columbus Boulevard location because that facility has no bowling alley.

The defendants in the case, which also included Dave & Busters of Pennsylvania Inc., also denied that they owned the Dave & Busters located at Franklin Mills Circle in Northeast Philadelphia, which is where the incident may have occurred since that facility does have bowling lanes.

The defendants stated that that facility may be owned by Tango of Franklin Inc., the record shows.

Pettigrew, however, never sought to amend his complaint to reflect the aforementioned issues, the Superior Court noted.

In his response to the defendants’ summary judgment motion, however, Pettigrew “tacitly conceded” that the incident didn’t not occur at the Columbus Boulevard location, and he stressed that the Franklin Mills location was not properly put on notice of his injuries.

The appeals judges wrote that the defendants did not owe a duty of care to Pettigrew because, as the plaintiff conceded in his response to the defendants’ summary judgment motion and in his brief to the Superior Court, he was not injured at the Columbus Boulevard location owned by the defendants.

“On appeal, as he did in his response to summary judgment, [Pettigrew] attempts to skirt this problem by alleging that [the defendants] also owned the Franklin Mills facility,” the Superior Court ruling states. “We agree with the trial court that this contention did not raise a genuine issue of material fact at summary judgment because [Pettigrew] never pleaded in his complaint nor sought to amend his complaint to assert that the incident occurred at the Franklin Mills facility.

“Here, by pleading in the complaint that [Pettigrew] was injured at the Columbus [Boulevard] facility and by persisting in that averment until the response to summary judgment, [Pettigrew] failed to give [the defendants] fair notice of the material facts that support his claims.”

The panel stated that even if it concluded that the defendants had fair notice that Pettigrew was claiming he was injured at the Franklin Mills facility, the grant of summary judgment would still be proper because Pettigrew failed to demonstrate a genuine issue of material fact with respect to the ownership of that facility.

“It is long settled that, under Pennsylvania law, it is the ‘possessor of land’ that is subject to liability for harm caused to invitees by dangerous conditions on the land,” the panel wrote. “Thus, in order to defeat [the defendants’] motion for summary judgment [Pettigrew] could not rest on his pleadings, but needed to show record evidence creating a genuine issue of material fact as to [defendants] possession of the Franklin Mills facility.”

The other participating jurists were Superior Court President Judge Susan Peikes Gantman and Judge Judith Ference Olson.

A Bucks County man who says he sustained serious and irreversible injuries

Clifford D. Bidlingmaier

when his fingers were amputated by a metal shearer while at work has filed a products liability complaint against the makers of the device.

Albert Mueller, a resident of Levittown, Pa., is suing Tennessee-based Tennsmith Inc. over injuries he says he sustained back on April 28, 2012, while at work at Sherwood Steel Inc.

The plaintiff’s job in the metal fabrication department requires him to use a Tennsmith metal shearer, the lawsuit states.

It was during one of those times that Mueller had his right index, right middle and right ring finger on his hand amputated by the defendant’s product.

The injuries occurred on the plaintiff’s right hand, which is his dominant hand, the complaint states.

Mueller required surgery, physical therapy and other medical care and attention due to his injuries.

He says he experienced great physical pain and suffering, mental anguish, chronic pain and agony as a result of the workplace incident.

Mueller also maintains he will continue to incur lost wages as a result of the accident due to his inability to work using his hands.

The lawsuit contains counts of negligent product liability, strict liability, and warranty.

The defendant stands accused of manufacturing and selling a product in a defective condition.

The metal shearers in question were “unreasonably dangerous to its users,” the complaint says, specifically because it has no guard or safety devices to protect workers from possible amputation.

“The lack of a guard, safety devices and/or warnings on the Defendant’s mechanical shears was the direct and proximate result of the negligence, carelessness and recklessness of the Defendant …,” the complaint reads.

The plaintiff says he has been left permanently partially disabled due to the workplace incident.

Mueller seeks more than $150,000 in damages plus attorney’s fees, interest, costs and delay damages.

The lawsuit was filed on March 26 by attorney Clifford D. Bidlingmaier of the Bucks County firm Kardos, Rickles, Hand & Bidlingmaier.

The federal case number is 2:14-cv-01785-JHS.

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

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.

A Philadelphia man claims in a newly filed civil suit that he was severely

Adrian J. Moody

injured after falling on a patch of ice that had accumulated near a mailbox at a city post office.

Glen Guy filed a personal injury claim March 28 at the U.S. District Court for the Eastern District of Pennsylvania against the United States Postal Service over allegations that he was left unconscious for about a minute and required medical care after he fell on a patch of ice on the steps leading to a mailbox outside of the postal facility at 2601 N. 16^th St. in Philadelphia back in early February of last year.

The plaintiff’s alleged injuries occurred while he was walking down the steps to the mailboxes, which the suit says were not properly maintained by the Postal Service.

After he fell backward, Guy was rendered unconscious for almost a minute, the complaint states.

He had to be taken by ambulance to Temple University Hospital where he was diagnosed as having a right-sided pneumothorax fracture and rib fractures.

After he was transported to the hospital, the suit says, Guy had to have a chest tube inserted into his right side.

The Postal Service is accused of breaching its duty of care by failing to keep the area around the outside mailboxes clear from ice and other hazardous conditions.

“As a further direct and proximate result of Defendant Postal Service’s breach of its duty of care as described herein, Plaintiff Guy suffered extreme physical and mental pain and discomfort, and was forced to incur medical expenses in being treated for his injuries,” the complaint reads.

Guy seeks $150,000 in compensatory damages.

He is being represented by attorney Adrian J. Moody.

The federal case number is 2:14-cv-01867-LFR.

The local law firm that has been at the forefront of testosterone

Matthew A. Casey

replacement therapy injury claims in Philadelphia has filed another complaint against the makers of the “Low T” drug Testim, this one claiming a 45-year-old Virginia man died from a sudden heart attack as a result of using the product.

Ross Feller Casey last week filed its fourth such suit in two weeks, the latest complaint alleging that Stephen T. Hardwich died from a heart attack on March 9 in what the plaintiff’s attorneys says was an injury induced by the man’s use of the testosterone medication.

Hardwich, of Midlothian, Va., who began using Testim in mid-2013, had no prior history of cardiovascular or cerebrovascular disease, the complaint says, but he ended up dying after suffering a sudden heart attack early last month, allegedly as a result of the testosterone-containing medication.

The medication either “directly and proximately caused, or increased the risk of harm,” to the plaintiff, the suit states.

The complaint contains counts of strict liability, negligence, breach of implied and express warranties, fraud and recklessness, negligent misrepresentation and wrongful death.

The defendants are Auxilium Pharmaceuticals Inc. and GlaxoSmithKline.

The attorneys representing Hardwich’s widow, Rosemary, maintain that the defendants’ defective, inadequate and unreasonably dangerous warnings and instructions for use, as well as product design and testing, have caused injuries and even death in those who have used testosterone gels such as Testim.

Three other suits previously filed by Ross Feller Casey at Philadelphia’s Common Pleas Court allege that a New Jersey man had a heart attack, an Alabama man suffered a stroke, and a Scranton, Pa. man sustained severe heart damage all as a result of taking testosterone replacement therapy.

Drugs similar to Testim include AndroGel, Axiron, AndroDerm and Fortesta.

Ross Feller Casey says it believes its suits are the first and only ones to have been brought in Philadelphia’s Common Pleas Court and one of only a small handful of similar cases filed nationwide.

Just days after the Hardwich wrongful death claim, the law firm filed another testosterone suit, this one on behalf of a Grapevine, TX man who alleges he suffered a pulmonary embolism back in the fall of 2008 a mere half-year after he began using the testosterone gel Testim.

The plaintiff in that case, Garland T. Joseph, survived, but had to be treated with anticoagulant therapy to treat his injuries.

Joseph, who is 70 years old, has been an insulin-dependent diabetic for about two decades, but he had no prior history of myocardial infarction or stroke prior to suffering the embolism, the lawsuit states.

He does, however, have a history of hypertension.

Joseph “relied upon the claims and representations of the Defendant that Testim had been clinically demonstrated to be safe and effective when used to raise testosterone levels in the treatment of ‘Low T,’ and was approved for use for that purpose,” his complaint reads.

Joseph’s wife, Shirley A. Joseph, also has a loss of consortium count in the lawsuit.

Some attorneys specializing in products liability law contend that testosterone replacement therapy litigation might be the next big multi-district case or mass tort.

“We’re getting cases and have been talking to lawyers from other parts of the country,” Philadelphia lawyer Stephen Sheller, whose firm, Sheller P.C. specializes in products liability litigation, told the Legal Intelligencer in a recent article. “I predict it will be a mass tort. From what we see happening and the calls we’re getting, it looks like it’s a serious problem.”

In that same story, Stanley Thompson, director of the Complex Litigation Center at the Philadelphia Court of Common Pleas, said if enough similar filings emerge, the creation of a testosterone replacement therapy mass tort could be considered.

The Hardwich case ID number is 140303953 and the Joseph case ID number is 140304352.

A Philadelphia judge has overruled defense preliminary objections in a

Philadelphia Common Pleas Court Judge Frederica A. Massiah-Jackson

medical malpractice case initiated by a patient who claims he sustained nerve damage following an elective surgery to repair a herniated disc.

Common Pleas Court Judge Frederica Massiah-Jackson in an order last month overruled the objections and ordered the defendants to file a response to the plaintiffs’ amended complaint within 20 days.

Jason Morgan and his wife, Michele, are suing Neurosurgical Associates, Aria Health Physician Services and Dr. Joseph E. Scogna over injuries Jason Morgan says he sustained following an Aug. 15, 2011, procedure to correct a herniated disc in his neck.

The plaintiff claims that the bone fusion operation led to him sustain significant and permanent nerve and neurological damage.

The couple is suing the defendants for negligence and medical malpractice.

After the litigation was commenced, the defendants filed preliminary objections, arguing that they had entered into an agreement to arbitrate all medical negligence claims, the court record shows.

In her ruling, Massiah-Jackson determined that the arbitration agreement at question is not valid because it is “unconscionable.”

An agreement is considered unconscionable, the judge wrote, when one party has no choice but to accept a provision that unreasonably favors the drafting party.

“Not only has the statutory and case law clearly provided protections and parameters for all parties in medical negligence litigation, Plaintiff-Morgan did not have any choice when these documents were presented for his signature,” the judge wrote. “Defendant-Scogna has been unable to identify a single provision which he drafted which favors Plaintiff-Morgan and which does not unreasonably favor the alleged tortfeasor.”

Massiah-Jackson, who noted that the burden of proof for preliminary objections rests on the moving party, ruled that the objections by Scogna and Neurosurgical Associates challenging specificity and conformity of the pleadings, and the assertion of a valid agreement to arbitrate are overruled.

She ordered the sides to prepare for a trial in Philadelphia County.

A federal judge in Philadelphia has granted summary judgment to sports club chain LA Fitness in a case brought by a member who says he was injured during a confrontation at the gym in Andorra, Pa.

U.S. District Judge Thomas O’Neill, Jr., of the Eastern District of Pennsylvania, sided with LA Fitness in the litigation commenced by Cornelius Lister, who claimed he was injured in early September 2012 when a physical altercation broke out at the northwest Philadelphia branch during a basketball game.

Records show that the plaintiff was attacked by at least four other men, one of whom was also a club member, during a basketball game at the gym.

There was evidence that the basketball court was limited to members at the time and not open to guests and that a club employee who was working at the front desk had allowed non-members who participated in the assault to enter the club, according to the judge’s April 3 memorandum.

At the summary judgment stage of the litigation, attorneys for LA Fitness argued that the exculpatory clause in the plaintiff’s membership agreement with the athletic club protects it against liability in instances such as the one involving Lister.

The plaintiff had counter-argued that the exculpatory clause is unenforceable because it is ambiguous and because it doesn’t apply to reckless conduct.

Lister had also argued that there was sufficient evidence of negligence on the part of the defendant to go to a jury.

In opposing summary judgment, the plaintiff contended that the exculpatory clause in the membership agreement is ambiguous because it does not specifically apply to intentional acts by guests or to the club’s negligence in failing to prevent those intentional acts.

“The types of injuries referred to in the release are those resulting from exercise, club activities, and accidents,” Lister’s lawyers had written in court filings. “Nothing in the release states that a member waives claims arising out of the intentional assaults by other users of the club or the club’s failure to protect against such assaults.”

The judge, however, wrote that the plaintiff’s argument is without merit.

“In the membership agreement plaintiff agreed that his use of defendant’s facilities involved risk of injury to person and that he assumed full responsibility for such risk; further, he agreed that he released and held defendant harmless from all liability to himself for any damages on account of injury to himself whether caused by the active or passive negligence of defendant while on defendant’s premises,” O’Neill wrote.

That “risk of injury,” the judge continued, included injuries arising from participation by himself or others in supervised or unsupervised activities at the gym.

“There is nothing ambiguous about this language,” O’Neill wrote. “The injury alleged by plaintiff arose from his participation with others in a unsupervised activity at defendant’s club.”

On the plaintiff’s reckless conduct argument, O’Neill wrote that the conduct attributed by Lister to the defendant cannot be characterized as reckless and “plaintiff cites no authority supporting the proposition that it is.

“Plaintiff’s conclusory statement that ‘defendant recklessly disregarded its own policies’ is insufficient to make it so,” the judge wrote.

“Plaintiff has not presented any evidence of conscious action or heedless indifference on the part of defendant nor demonstrated that its conduct was more than inadvertence,” O’Neill wrote. “Therefore, the membership agreement that plaintiff signed releases defendant from liability for plaintiff’s injury.”

A Georgia woman is suing the Philadelphia Museum of Art over claims that

Brad S. Tabakin

she was injured after falling on broken slate at the city art institution.

Winter Chatman, of Duluth, Ga., filed suit last week at the U.S. District Court for the Eastern District of Pennsylvania against the art museum and the City of Philadelphia’s Risk Management Division over bodily injuries she says she sustained on April 12, 2012.

At about 10 in the morning on that day, the complaint says, Chatman was walking on the northwest terrace to the rear of the museum when, suddenly and without warning, she tripped and fell due to broken and uneven slate walkway.

The incident allegedly caused the museum patron to sustain multiple bruises, contusions, nerve damage and other injuries to her neck, left shoulder, knees, left hip, left foot and head.

The plaintiff says she has experienced great pain and suffering, suffered a serious impairment of her bodily functions, and had to spend various sums of money on medical attention.

Chatman’s financial expenses have exceeded $19,150, the complaint states.

The defendants are accused of negligence and carelessness for allowing and causing a dangerous condition to exist at the premises, failing to correct the defect, failing to warn museum patrons of the dangerous condition of the slate walkway, and failing to provide and maintain a safe and proper route of travel for those visiting the cultural institution.

Chatman seeks damages in excess of $75,000, plus interest, litigation costs and attorneys’ fees.

The plaintiff is being represented by lawyers Brad S. Tabakin and Richard A. Wolfe of the Jenkintown, Pa. firm Galerman Tabakin & Wolfe.

The federal case number is 2:14-cv-02005-NIQA.

A Pennsylvania man who claims he sustained serious injuries as a result of

Michael Heygood

an allegedly defective table saw has filed a products liability complaint against the makers of the device.

James H. Simmers, Jr., of Morrisville, Bucks County, filed suit at the Eastern District of Pennsylvania on Monday against South Carolina-based Ryobi Technologies Inc., Techtronic Industries North America Inc. and One Word Technologies Inc. over injuries he says he sustained in late August of last year while using the Ryobi BT210 table saw manufactured and distributed by the defendants.

The complaint accuses the defendants of designing, manufacturing, marketing and selling their table saw without the available safety technologies that would have made the device safer for consumer use.

Like all table saws sold in the United States, the Ryobi saw must be sold with a blade guard, and while the guard comes with the product, it is extremely difficult to use and must be removed for a user to make certain cuts with the saw, the lawsuit states.

Because it is very hard to put it back in place, users often either assemble the saw without the blade guard or remove it and leave it off of the machine permanently while using the device, the complaint states.

“This widespread practice was well know [sic] by Defendants, yet Defendants made no effort to improve the design of the guard to make it more user friendly until required to do so by recent changes to industry-wide standards,” the suit states.

The other problem with the saw, the complaint alleges, is that the splitter, or spreader, which is a device designed to prevent kickbacks while cutting, is attached directly to the blade guard, meaning no kickback protection is offered to the user once the blade guard is removed.

The complaint says that the defendants have known for years that kickbacks can be substantially reduced or eliminated by using something called a “riving knife,” rather than a splitter or spreader.

A riving knife is a small piece of metal that sits behind the blade and rises and falls with the blade.

And even if the blade guard is removed, the riving knife remains in place, “substantially reducing or eliminating kickbacks,” the complaint states.

Riving knives are already required to be installed on all table saws sold in Europe.

The Ryobi saw used by the plaintiff, however, did not have a riving knife.

If it did, the suit says, the plaintiff’s injuries would have either been lessened or non-existent.

Technology has been available for many years that stops a saw blade from spinning upon almost immediate contact with human skin, the suit says, but the defendants failed to make that technology, known as SawStop, available on their product.

“Because it lacked such technology, the Ryobi Saw was unreasonably dangerous as designed and manufactured,” the lawsuit states.

Simmers, the plaintiff, was seriously injured when his fingers came into contact with the rotating saw blade.

The exact extent of his injuries is not detailed in the complaint.

Simmers suffered from mental anguish, physical disfigurement and impairment, and had to spend money on medical care.

He also experienced lost wages and lost his ability to engage in usual and normal activities, the suit states.

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

Simmers seeks damages for pain and suffering, mental anguish, impairment, disfigurement, lost wages and medical expenses.

He also seeks attorney’s fees, interest and costs.

Simmers is being represented by attorney Michael Heygood of the Dallas, TX law firm Heygood Orr & Pearson.

The federal case number is 2:14-cv-02022-JP.

A Philadelphia woman is suing over claims she sustained injuries after falling on a set of steps.

Debra Herbin filed a lawsuit on Feb. 25 in the Philadelphia County District Court against Keith Pugh, citing negligence.

Herbin claims that on Aug. 3, she was attending a party at a property maintained by Pugh, 2237 N. Eighth St. in Philadelphia, when she tripped on a step, sustaining injuries. The suit alleges the doorway step was too high and the area was poorly lit, resulting in Herbin’s fall.

Herbin is seeking damages in excess of $50,000. She is being represented in the case by Philadelphia attorney Leonard R. Parks, of Law Offices of Parks and Associates PC.

Philadelphia County District Court Case No. 140202513.

Duckworth

A Philadelphia employee is suing over claims he sustained injuries on the job.

Walter Carpenter filed a lawsuit on Feb. 26 in the Philadelphia County District Court against the Southeastern Pennsylvania Transportation Authority, citing negligence.

Carpenter claims on April 30, 2012, he was working for the defendant as a truck driver and was filling the fuel truck when he was caused to sustain injury. The suit alleges the defendant didn’t provide a safe work environment with properly functioning equipment, resulting in an accident that injured Carpenter’s lower back and right leg.

Carpenter is seeking damages in excess of $50,000. He is being represented in the case by Philadelphia attorney James M. Duckworth of Keller and Goggin P.C.

Philadelphia County District Court Case No. 140202689.

A man is suing the city of Philadelphia after he fell on a sidewalk.

Allen Brevard filed a lawsuit Feb. 24 in the Philadelphia County Court of Common Pleas against the city of Philadelphia, citing negligence.

The lawsuit states Brevard was walking on a sidewalk near the corner of 33rd Street and Girard Avenue on Oct. 23, when he fell and fractured his leg, requiring surgery, and other injuries.

Chaiken

Brevard is suing for damages in excess of $50,000. He is being represented by Joseph Chaiken of Joseph Chaiken & Associates.

Philadelphia County Court of Common Pleas Case No. 140202344.

A Center City Turf Club is suing the business after falling down steps.

Michael Henderson filed the lawsuit Feb. 25 in the Philadelphia County Court of Common Pleas.

The lawsuit states Henderson was a visitor at the club at 1635 Market St., Philadelphia, on Feb. 18, 2013, when he fell on steps at the entrance. The steps had water on them from a malfunctioning bathroom, according to the complaint.

Henderson is seeking a maximum of $50,000. He is being represented by Leonard R. Parks of the Law Office of Parks & Associates P.C.

Philadelphia County Court of Common Pleas Case No. 140202485.

A woman and her husband are suing a health care group and a cleaning service after falling in the facility.

Jeannine Fedele and Michael Fedele filed a lawsuit Feb. 24 in the Philadelphia County Court of Common Pleas against Trinity Health Care Alliance L.L.C, Kelly Reinhold, doing business as First Choice Cleaning, First Choice Cleaning Company, First Choice Services Inc., doing business as First Choice Cleaning Services, First Choice Cleaning Services Inc., careof Incorp Services Inc., First Choice Cleaning Solutions Inc., First Choice Cleaning, Josphine Benson, doing business as First Choice Cleaning, MRA Group Inc., doing business as MRA Realty Advisors, and MRA Realty Inc., citing negligence.

The lawsuit states Jeannine Fedele was walking inside Suite 106 of Trinity Health at 700 Horizon Circule, Clalfont, while working for Alliance Cancer Specialists P.C. on April 5, 2012, when she fell and sustained various injuries. The floor was made slippery by substances placed on the floor, the complaint said. She hurt her shoulder, elbow and left knee, among other injuries, the complaint said.

The Fedeles are seeking damages in excess of $50,000, plus interest and court costs. They are being represented by attorney Fredric S. Karpe.

Philadelphia County Court of Common Pleas Case No. 140202275.

A Philadelphia Common Pleas Court jury last week awarded $7.8 million to

Michael Trunk

the relatives of a middle-aged jockey who was killed after being thrown, dragged and stomped by a horse startled by loose chickens traversing a suburban racetrack.

The award to the family of the late Mario Calderon consists of more than $2 million in compensatory damages and a hefty $5 million in punitive damages.

The civil complaint, which was filed in the spring of 2012, accused Philadelphia Park Casino and Racetrack, which is now known as Parx Casino, of negligence for allowing chickens to roam free on the racetrack despite the fact that the act had previously caused another horse to spook and injure its rider.

Calderon, a 55-year-old married father of two who raced horses for more than three decades, was catastrophically injured when his horse, Cassidy Blue, was spooked by the chickens and threw him to the ground.

Calderon, the lawsuit said, ended up getting one of his feet stuck in a stirrup, and the horse proceeded to drag him down the racetrack, kicking him in the process, which caused injuries, including chest and head trauma, that ultimately led to his death.

The incident occurred while Calderon was taking his horse out on a practice run at the track.

The award to plaintiff Nura D. Calderon, the deceased jockey’s widow, came after a week-and-a-half trial before Common Pleas Court Judge Albert J. Snite, Jr.

The verdict was against defendants Greenwood Racing Inc., the owner of the racetrack, as well as subsidiaries Bensalem Racing Association Inc. and Keystone Turf Club Inc.

The plaintiff was represented by attorney Michael A. Trunk of the Philadelphia firm Kline & Specter.

The complaint said that the defendants were aware of the problems with chickens running onto the track because of a prior incident, but didn’t do enough to keep the area free from this hazard.

Records show that some horse owners and trainers who have use of the adjacent barns were bringing the chickens to the property.

Trunk told the Pennsylvania Record in an emailed message that he was pleased with the verdict.

“I’m pleased for the family, and I’m pleased that the jury forced Parx to do what Parx refused to do on its own: take responsibility for the tragic and very preventable death of a long-time jockey and loving husband and father,” Trunk wrote. “I’m hopeful that Parx will now get the message that the safety of jockeys and others on its premises is paramount to everything else, including profits from gambling.”

A federal judicial body earlier this month denied a bid by the makers of the

Pamela J. Lormand

OxyElite Pro and Jack3d sports supplements to consolidate and transfer a handful of products liability actions to the U.S. District Court in Philadelphia.

The U.S. Judicial Panel on Multidistrict Litigation on April 2 denied the move by USPlabs LLC to centralize the litigation, which at the time consisted of nine actions pending in six different federal courthouses across the country.

The lawsuits consist of both individual personal injury claims and false advertising class actions that were originally filed in Pennsylvania, Florida, California, Texas and Hawaii.

The lead defendant, a sports supplement manufacturer, sought to consolidate the nine lawsuits into a multidistrict litigation and transfer the cases to the Eastern District of Pennsylvania, or, alternatively, to the Western District of Texas.

GNC Holdings Inc., which is the retail partner of Dallas-based USPLabs, is located in Pittsburgh.

Court records show that 10 of the codefendants and one of the plaintiffs supported the petition to consolidate and transfer, while the plaintiffs in six other actions and four potential tag-along actions opposed centralizing nine actions, but supported some combination of separate MDLs.

Still, the plaintiffs in two other cases and defendant Natural Alternatives International Inc. opposed centralization in any form.

Records show that the defendants had argued centralization of the all the actions was warranted, notwithstanding the differences in the primary active ingredient in the products and the claims presented by the tort and false advertising actions, because all of the cases allege that the products are unsafe and rely on the same series of FDA actions to support their claims.

The defendants also contended that discovery and pretrial motions would likely overlap.

The plaintiffs in all the actions, in arguing against consolidation and centralization, asserted that the DMAA and aegeline formulations in the products are so dissimilar that they are akin to different drugs.

Media reports said that the defendants’ products have been linked to an outbreak of hepatitis.

The litigation contends that OxyElite Pro and Jack3d contained ingredients that were unsafe and “adulterated” under the FDA’s definition.

The two main substances at issue, aegeline and 1,3-dimethylamylamine, or DMAA, have reportedly been linked to illnesses and deaths.

News reports stated that last summer, USPlabs agreed to destroy more than $8 million in OxyElite Pro and Jack3d supplements that contained DMAA.

In a January memorandum, lawyers representing USPlabs urged the judicial panel to have any potential consolidated litigation overseen by Judge Eduardo C. Robreno, what the defense attorneys called an “experienced MDL jurist.”

In its ruling earlier this month, the judicial panel said it was not persuaded that centralization and consolidation was necessary either to assure the convenience of the parties and witnesses or for the “just and efficient conduct of this litigation.”

“On the present record, it appears that the different formulations of the products will not give rise to substantially overlapping discovery, particularly in light of the differences in the health risks alleged and the distinct regulatory responses to the DMAA and aegeline products,” the panel wrote. “Additionally, the three consumer class actions raise a unique threshold issue with respect to the alleged impact of a state court class settlement agreement reached in 2012.”

The panel also declined the plaintiffs’ invitation to establish three separate MDLs to compensate for the differences in the lawsuits.

“There are a limited number of actions and involved counsel, with two groups of plaintiffs’ counsel in three of the actions concerning DMAA indicated that the number of such actions would remain small since USPlabs’ inventory of DMAA products was destroyed in 2012,” the panel wrote. “Additionally, the record indicates that the actions alleging injury from aegeline already are being coordinated in the District of Hawaii.

“In the present circumstances, voluntary coordination among the parties and the involved judges is preferable to centralization,” the panel concluded. “We encourage the parties to employ various alternatives to transfer which may minimize the potential for duplicative discovery and/or inconsistent pretrial rulings.”

The defendants’ January memorandum had been filed by attorney Pamela J. Lormand, of the New Orleans firm Brewer & Lormand, and Angel A. Garganta, of the San Francisco office of Arnold & Porter.