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Pennsylvania's Legal Journal

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    A federal appeals court recently sided with the trial judge overseeing the multidistrict asbestos litigation playing out at U.S. District Court in Philadelphia, determining that the jurist properly dismissed a dozen cases from the MDL for failure to comply with … Read More »

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    To litigate or arbitrate? That’s the task currently assigned to a federal judge in Philadelphia presiding over the massive concussion injury litigation against the National Football League. This week, that jurist, U.S. District Judge Anita Brody, signaled that the parties … Read More »

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    A Philadelphia police officer is suing retailer Target and two John Doe defendants over

    Jay L. Edelstein

    Jay L. Edelstein

    injuries he allegedly sustained after an altercation with one of the men at the Target store at 7400 Bustleton Avenue in Northeast Philadelphia.

    Attorney Jay L. Edelstein, of Edelstein Law, filed suit earlier this month at the Philadelphia Court of Common Pleas against James Wagner, against Minneapolis-based Target Corp. and the two unidentified individuals over a March 1, 2011, incident that allegedly caused James Wagner to sustain severe injuries to his eye that required five surgeries undertaken to repair his eyesight.

    On that spring day two years ago, the suit states, James Wagner was struck with a weapon wielded by the John Doe assailant after the officer responded to a police call at the Target store.

    The incident caused the officer to sustain injuries including severe trauma to his right eye, orbital fracture, stellate wound of the right eye, a dislocated intraocular lens, loss of sight, retinal hemorrhage, optic nerve sheath hemorrhage, loss of lens, loss of iris, acute and traumatic glaucoma, memory loss, facial disfigurement, lacerations, and head, neck and back injuries, according to the complaint.

    The officer claims he will likely be required to undergo additional medical procedures in an effort to correct his eyesight problems, something that has cost him and his wife a great deal of money.

    Wagner also claims his job has taken a hit because of his injuries.

    The lawsuit accuses Target of failing to immediately act to restrain the assailant with in-store security personnel before the man got to the point where he attacked the officer.

    The John Doe defendants are accused of assault and battery while Target Corp. is accused of negligence and recklessness.

    It was not clear from the suit who the second John Doe defendant was in relation to the incident.

    The John Doe defendant who is accused of striking Wagner in the eye was allegedly previously known to Target as a shoplifter and someone who has committed assaults on others, according to the complaint.

    Wagner also alleges that Target had reason to know that dangers would be presented to patrons of the store because that particular retail location is situated in a supposedly high-crime area.

    Despite this apparent knowledge, the suit states, Target failed to employ the proper security measures to protect those lawfully in and around the property.

    This week, Target’s legal counsel filed a removal notice in U.S. District Court, asserting that the civil action, originally filed in state court on June 13, belongs in the federal venue because there is diversity in citizenship and because the amount in damages sought by the plaintiffs appear to exceed the jurisdictional limit in a Pennsylvania court.

    “Based on Plaintiffs’ claims, it is believed that the amount in controversy in this matter exceeds Seventy-Five Thousand Dollars ($75,000.00), and satisfies the threshold for federal diversity jurisdiction,” wrote Target attorney Francis J. Grey, Jr., of the Philadelphia firm Lavin, O’Neil, Ricci, Cedrone & DiSipio.

    The federal case number is 2:13-cv-03670-TON.


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    A former Philadelphia firefighter has filed a products liability complaint against the

    Larry Bendesky

    Larry Bendesky

    makers of a safety mask that he contends failed while in the midst of fighting a fire two years ago, an incident that led the plaintiff to develop a host of injuries, including near-fatal smoke inhalation.

    Michael McGuire and his wife, Angelique, who reside in Northeast Philadelphia, are suing North Carolina-based Scott Technologies Inc., Princeton, N.J.-based Tyco International Inc., and Huntingdon Valley, Pa.-based Safeware Inc. over on-the-job injuries Michael McGuire allegedly sustained back on March 2, 2011.

    According to the complaint, which was filed on June 18 at the Philadelphia Court of Common Pleas by attorneys with the Philadelphia injury firm Saltz, Mongeluzzi, Barrett & Bendesky, Michael McGuire was using his Scott AV-2000 respiratory protection mask while battling a city blaze when he became ill after the mask failed due to an improper seal.

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

    In addition to the near-fatal smoke inhalation, McGuire also suffered carbon monoxide poisoning, a severe lung smoke inhalation injury, hypoxemic respiratory failure, acute respiratory distress syndrome, delirium, cardiomyopathy, post-intensive care syndrome, rhabdomyolosis, persistent muscle weakness, memory impairment, pneumonia, recurrent lung infections, residual lung disease, decreased respiratory function, anxiety, depression, post-traumatic stress syndrome and other ills and injuries.

    The couple claims they suffered economic damages, including wage losses due to Michael McGuire’s inability to work following the incident, and costs relating to medical care.

    The defendant companies are accused of negligence for designing, manufacturing, selling, and distributing a defective product, failing to offer adequate warnings about the product, knowledge of prior accidents and injuries caused by the defective and malfunctioning product, and failing to provide adequate safety devices to go with the mask.

    According to the complaint, Safeware workers performed repairs and technical services on McGuire’s Scott AV-2000 respiratory protection mask on Oct. 18, 2010, months prior to the device’s alleged failure.

    The services included testing the mask for a proper seal.

    In addition to the negligence claim against all three defendants, the lawsuit also contains counts of products liability, breach of warranty, and failure to warn.

    There is also a loss of consortium count filed on behalf of Angelique McGuire, which claims the co-plaintiff has been deprived of her husband’s companionship, physical assistance and wage earnings because of his injuries.

    The couple says they are seeking more than $50,000 in compensatory damages, in addition to interest and costs.

    The complaint was filed by lawyers Daniel A. Schwarz, Larry Bendesky, Brian E. Fritz and William A. Weiss.

    Just over a week after the complaint’s filing, defense attorneys petitioned the U.S. District Court in Philadelphia to take jurisdiction over the case, arguing that the damages sought by the plaintiffs are likely to exceed the amount appropriate for state court.

    The removal notice was filed on behalf of defendant Safeware Inc. by attorneys Patrick C. Lamb and Zachary R. Magid, of the Philadelphia firm Marks, O’Neill, O’Brien, Doherty & Kelly P.C.

    Safeware’s lawyers also maintain jurisdiction is proper in federal court because despite the plaintiffs’ assertion that the company is based in Pennsylvania, it was actually incorporated in the state of Maryland.

    “Safeware, Inc. does not have its principal place of business in the Commonwealth of Pennsylvania,” the removal notice states.

     

    The state case ID number is 130203297 and the federal case number is 2:13-cv-03746-RB. 


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    Attorneys representing Amtrak in a premises liability case arising from injuries a

    Jay Solnick

    Jay Solnick

    Philadelphia man allegedly sustained after falling on an escalator in Delaware are moving to transfer the litigation from the Philadelphia Common Pleas Court to the U.S. District Court for the Eastern District of Pennsylvania.

    Lawyer Andrew J. Kornblau, of the firm Landman Corsi Ballaine & Ford, filed a Notice of Removal with the federal court on June 27 asking a judge to take jurisdiction over a case initiated in state court on June 12 by Philadelphia resident Louis Holland.

    Attorneys Jay L. Solnick and Jessica A. Altman, of the firm Solnick & Levin LLC, had filed a civil action in state court on behalf of Holland over claims that their client took a spill at the defendants’ property at 100 South French Street in Wilmington, DE back on Oct. 24, 2011, an incident that caused the plaintiff to sustain fractured teeth, multiple facial lacerations, soft tissue swelling, nose and brow injuries, and other ills.

    Holland was riding an escalator when he was caused to slip and fall due to due the presence of a greasy, slimy or otherwise slippery substance left on the surface of the moving stairway, the lawsuit alleges.

    Aside from Amtrak, which is formally known as the National Railroad Passenger Corp., the other defendants named in the complaint are the Southeastern Pennsylvania Transportation Authority and the Delaware Transit Corp.

    The suit accuses the defendants of combined negligence, asserting that the three agencies created, knew about, or should have known about the existence of the dangerous and defective condition on the premises.

    Holland, who in addition to his physical injuries claims he has suffered from mental pain and anguish, maintains that he has had to spend much money on medical treatment, and that he has experienced earnings losses due to his injuries.

    The state court action says that Holland seeks $50,000 in compensatory damages, plus interest, litigation costs and other legal relief.

    Kornblau, one of the lawyers representing Amtrak, wrote in his filing that SEPTA has consented to Amtrak’s removal of the lawsuit to the Eastern District of Pennsylvania.

    The defense attorney maintains that the federal court has original jurisdiction over the case because the rail agency was created by the United States Congress, and because more than half of Amtrak’s corporate stock is owned by the federal government.

    The removal notice further states that as of the date of the filing, it did not appear as though the third defendant, the Delaware Transit Corp., had been served with the suit; no attorney has yet entered an appearance on behalf of the agency.

    Furthermore, the plaintiff’s attorneys advised Amtrak’s counsel on June 27 that they had not yet received confirmation or proof of service of the complaint upon the Delaware Transit Corp.

    Kornblau wrote that the Delaware Transit Corporation’s consent to removal is not required in this case precisely because they have not yet been served with the complaint.

     

    The federal case number is 2:13-cv-03767-MSG.


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    An experienced mass tort attorney from Philadelphia has been appointed plaintiffs’ co-

    James Ronca

    James Ronca

    lead counsel in the Mirena IUD Products Liability Litigation being overseen by U.S. District Judge Cathy Seibel in the Empire State.

    James Ronca, a lawyer practicing with Philadelphia firm Anapol Schwartz, will serve as co-lead counsel in the multidistrict litigation that has been consolidated in the Southern District of New York, according to the informational website Mirena Injuries.

    The site states that Ronca has also been named co-lead counsel in two other MDL cases currently underway: the Trasylol Products Liability Litigation in the Southern District of Florida, and the Zimmer NexGen Products Liability Litigation in the Northern District of Illinois.

    Ronca has also been involved with other national pharmaceutical and medical device cases, such as the Depo Provera Litigation, and he is a member of the Depositions Committee of the Baycol Products Liability MDL, according to the Mirena Injuries website.

    “Jim’s depth of knowledge spanning numerous areas of personal injury law continues to attract the attention of his peers,” states a post on the website, which is operated by Anapol Schwartz.

    The website notes that Ronca was awarded the Musmanno Award by the Philadelphia Trial Lawyers Association in 1998 for his “achievements as an outstanding litigator and fearless advocate,” and that he was also the recipient of a distinguished service award just last year from the Pennsylvania Association for Justice.

    The Mirena litigation involves common claims that the birth control device, which was developed by Bayer Healthcare Pharmaceuticals, can cause injuries in women who have had the system implanted into their bodies.

    The basic allegation is that the product can spontaneously perforate the uterine wall and migrate throughout the body, causing a host of problems such as infection and other complications.

    This past spring, the U.S. Judicial Panel on Multidistrict Litigation approved of the creation of a Mirena MDL at the Southern District of New York, ruling that the lawsuits being filed across the country contained shared questions of fact.

    “In consolidating the large number of Mirena lawsuits spread throughout the United States, the USJP is ensuring the efficient administration of justice for women who have suffered serious injuries allegedly caused by the Mirena IUD ranging from dangerous abscesses to infertility,” plaintiffs’ lawyer William Audet, of the California firm Audet and Partners LLP, was quoted as saying on the website Women’s Health Law Info.

    Audet and Partners is merely one firm representing plaintiffs in the litigation.

    A news release from the nationwide law firm Bernstein Liebhard LLP, which is also representing plaintiffs in Mirena cases, says that a status conference in the MDL was scheduled for July 1.

    The outcome of that conference was not immediately clear.

    According to Bernstein Liebhard, nearly 50 Mirena claims have been filed in the Southern District of New York on behalf of allegedly injured plaintiffs.

    “We continue to hear from women who allegedly suffered serious Mirena side effects,” the firm stated in its news release. “We look forward to additional progress in this litigation in the coming months.”

    Mirena was originally approved by the U.S. Food & Drug Administration as a birth control method back in 2000, but throughout the years has been mired in claims that the device has caused numerous injuries due to its spontaneous bodily migration.

    Ronca, the Philadelphia-based lawyer recently appointed as co-lead counsel in the Mirena MDL, has been a trial lawyer for more than three decades, according to his biography on the Anapol Schwartz website.

    The Dickinson School of Law graduate focuses mostly on pharmaceutical and medical device cases, major vehicle accident cases, and construction site litigation.

    The three MDL’s on which Ronca has served as co-lead counsel have each comprised more than 1,000 individual cases, his bio states.

    Ronca previously served on the Pennsylvania Supreme Court’s Civil Procedural Rules Committee, of which he was vice chair in 2011.

    As for Anapol Schwartz, the firm bills itself as a Pennsylvania leader in pharmaceutical and medical device mass tort litigation.

    It’s lawyers have been, and continue to be, involved with high profile cases, such as the ongoing NFL Players’ Concussion Injury Litigation playing out at the federal court in Philadelphia and the civil rights case in the Middle District of Pennsylvania that arose out of the “Kids for Cash” judicial scandal that resulted in long prison stints for two former Northeastern Pennsylvania trial judges.


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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 Bucks County couple has filed a federal tort claim against the United States

    Marshall Bleefeld

    Marshall Bleefeld

    government and a U.S. Postal Service employee over injuries the husband allegedly sustained in a motor vehicle accident with the mail carrier.

    Gerardo and Shelley Marquez, who reside in Furlong, Pa., are suing the federal government and postal worker Andrew McMasters at the U.S. District Court for the Eastern District of Pennsylvania.

    The complaint says that Gerardo Marquez became injured on Sept. 12, 2011, after his vehicle was struck by a Postal Service box truck driven by McMasters while both the plaintiff and defendant were traveling along Route 309 in Montgomery County.

    While the suit doesn’t specify whether or not the collision was a head-on crash, it does state that McMasters, who resides in West Chester, Pa., “negligently, carelessly and/or recklessly operated [his] vehicle so as to cross into and enter” Gerardo Marquez’s lane of travel and “violently crash” into the plaintiff’s vehicle.

    The suit says that a claim was presented to the Postal Service about a week after the accident, one that was subsequently denied by the governmental agency.

    McMasters is accused of operating a motor vehicle at a high and dangerous rate of speed under the circumstances, failing to have his vehicle under proper control, failing to keep a proper distance from other vehicles, and other acts of negligence and recklessness.

    Gerardo Marquez alleges that as a result of the collision, he sustained right shoulder internal derangement, tendon and rotator cuff injuries, disc herniations, an aggravation of lumbar disc disease and lumbar radiculopathy, chondromalacia of the left patella, as well as cervical, right shoulder, lower back and left knee sprains and strains.

    The couple claims that they have incurred various medical expenses as a result of Gerardo Marquez’s injuries.

    Marquez himself claims he has suffered from physical and mental impairment that prevents him from performing his regular duties and activities.

    The plaintiffs also claim to have sustained earnings losses.

    In addition to the negligence claim, Shelley Marquez has a loss of consortium claim against the defendants in which she states she has been deprived of the companionship, society and earnings of her husband.

    The lawsuit lastly contains a property damage count in relation to the couple’s automobile.

    The plaintiffs seek unspecified compensatory damages, plus interest and litigation costs.

    They are being represented by Jenkintown, Pa. attorney Marshall D. Bleefeld, of the firm Rosen, Moss, Snyder & Bleefeld LLP.

    The federal case number is 2:13-cv-03847-NS.


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    In a closely watched case around the Philadelphia region, a state appellate court panel

    Pa. Commonwealth Court Judge Renee Cohn Jubelirer

    Pa. Commonwealth Court Judge Renee Cohn Jubelirer

    recently affirmed a Bucks County Court judge’s decision to scrap a $14 million verdict in a case involving a teenage girl who lost her leg following a school bus accident because the award far exceeded a state law cap of damages in personal injury cases against school districts and municipalities.

    In a July 3 ruling, the Commonwealth Court panel affirmed a Bucks County Common Pleas Court order molding the $14,036,263.39 jury verdict to $500,000 pursuant to Pennsylvania’s Political Subdivision Tort Claims Act, which limits recovery of damages against the commonwealth’s political subdivisions to a half-million dollars.

    The case, which had been reported on frequently by local media, involved Ashley Zauflik, who was a 17-year-old student at the Pennsbury School District in Bucks County back in 2007 when she was run over by a school bus in a horrific accident.

    Following a 2011 civil trial, jurors issued their multi-million-dollar award in Zauflik’s favor, but Bucks County Common Pleas Court Judge Robert Mellon reduced the damages to $500,000 due to the state law that caps liability in injury cases against localities and school districts.

    In its ruling, the Commonwealth Court panel acknowledged the tragic circumstances of the case, but stated that it had no choice but to affirm the trial court’s ruling because it was constrained by the law and court precedence.

    “As tragic as the circumstances are in this case, we are constrained by the precedential case law that has previously upheld the constitutionality of the statutory cap of the Tort Claims Act multiple times,” the Commonwealth Court ruling states. “It is the role of the General Assembly, not this Court, to make the difficult policy decisions and enact them into law if such decisions receive the support of the necessary majority.”

    In the end, the appellate judges affirmed the molding of the $14 million-plus jury verdict to $500,000, and added $2,661.63 in delay damages in addition to sanctioning the school district $5,000 for not timely disclosing the existence of an excess insurance policy at the time of the school bus accident.

    The decision was written by Commonwealth Court Judge Renee Cohn Jubelirer.

    Also participating in the decision were President Judge Dan Pellegrini and Senior Judge Rochelle S. Friedman.

    Friedman filed a dissenting opinion in which she stated her belief that the statutory cap is unconstitutional because it violates Zaufik’s right to receive the jury’s award.

    Friedman noted that while other school districts contract busing services out to third parties, the Pennsburg School District provides its own transportation for students.

    “While there is no statutory prohibition against Pennsbury’s conduct, had transportation been provided by a private transportation company, Zauflik would have been entitled to receive the full benefit of the jury’s award of over $14,000,000,” Friedman wrote. “Surely the legislature can devise legislation that more fairly and adequately addresses this gross disparity.”

    Friedman wrote that had such legislation been in effect prior to Zauflik’s injury, the girl would have been able to collect the full award.

    Friedman also wrote that she was “troubled by the apparent constitutional impairment in disregarding the jury’s award in this case.”

    By imposing a statutory cap, the dissenting judge wrote, the Pennsylvania General Assembly has infringed on the rights of citizens guaranteed under the state constitution.

    “Because I believe that the $500,000 cap violates Zauflik’s right to receive the jury’s award, I would conclude that the statutory cap is unconstitutional as applied,” Friedman wrote. “For this reason, I dissent.”

    Attorney Tom Kline, of the Philadelphia firm Kline & Spector, who represented the plaintiff, told the Philadelphia Inquirer late last week that the damages cap is a “manifest injustice.

    The paper quoted Kline as saying that he planned to appeal to the Pennsylvania Supreme Court, which he hopes will “grant review to look carefully again at the unfair limitation on damages.”

    Past news reports said that Zauflik was one of about 20 students who were struck by an out-of-control bus outside of the high school in January 2007.

    The Inquirer reported that she had to be placed in a medically induced coma for days following the accident, and that she was hospitalized for a month, during which she reportedly underwent more than 10 surgeries.

    The driver who was operating the bus at the time maintained that the vehicle experienced a malfunction at the time of the tragic accident.


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    Backtracking on her original intent to rule on the NFL’s motion to dismiss the

    Layn Phillips

    Layn Phillips

    consolidated concussion litigation by month’s end, U.S. District Judge Anita Brody on Monday decided instead to order the parties in the case to engage in mediation.

    In her July 8 order, the veteran federal judge of the Eastern District of Pennsylvania said she would suspend her decision to rule on the defense motion until after both sides completed mediation.

    The mediator Brody appointed to handle the talks is retired U.S. District Judge Layn Phillips.

    Brody ordered that Phillips report back to her on or before Sept. 3 on the results of the mediation, which differs from arbitration in that there is not a measure of finality.

    Brody had earlier stated she intended to rule on the dismissal motion later this month.

    The multidistrict National Football League Players’ Concussion Injury Litigation, which has been consolidated at the federal courthouse in Philadelphia, consists of more than 4,000 plaintiffs who allege the National Football League intentionally misrepresented the dangers involved with concussions and other brain trauma sustained during professional play.

    The player-plaintiffs contend that they were not adequately warned of the long-term health risks that come with football head injuries.

    The NFL is seeking to dismiss the case over assertions that the plaintiffs’ claims are covered by the collective bargaining agreement; the players and their spouses dispute this notion, and argue the claims should be addressed in the tort system.

    Both sides met for the first time at the U.S. District Court in Philadelphia back in April to present their respective arguments concerning the defendant’s motion to dismiss.

    In addition to ordering mediation, this week’s court order also prevents the parties and their attorneys from publicly discussing the mediation process or disclosing any other information that may arise from mediation, unless Brody gives the OK.

    The judge stated that she made her decision on mediation following a recent “informal exploratory telephone conference with lead counsel.”

    According to a biography on the website of the California law firm of Irell & Manella, where Phillips, the mediator, is a partner, the retired federal judge worked at the U.S. Attorney’s Office in Los Angeles in 1980 as an assistant prosecutor, after which, at age 31, he was nominated to serve as U.S. Attorney for that district.

    Three years later, at age 34, he was nominated by President Ronald Reagan to serve as a federal judge in Oklahoma City, which he did for a four-year period.

    Phillips also previously sat by designation on the U.S. Court of Appeals for the Tenth Circuit in Denver, where he participated in panel decisions and penned various opinions in criminal law, business litigation and civil rights, his bio states.

    Phillips is a graduate of the University of Tulsa.


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    California-based clothing retailer Ross is named as a defendant in a slip-and-fall suit

    Alan F. Galerman

    Alan F. Galerman

    initiated by a Philadelphia woman who claims she sustained a fractured vertebrae and spinal swelling after falling at one of the company’s area locations.

    Juanita Rodriguez, of the 1700 block of North 3rd Street in Philadelphia, filed suit this week against Ross Stores Inc., Ross Penngen Inc., and Ross Dress For Less Inc. over allegations that she became injured after slipping and falling on a slippery floor at the Ross store at 4640 Roosevelt Boulevard in Northeast Philadelphia two summers ago.

    The lawsuit doesn’t specify what substance had been spilled on the floor at the time of the incident, only that the walkway was “wet, slick and slippery.”

    As a result of her fall, Rodriguez claims she sustained a variety of injuries to her bones, joints, muscles, tendons, blood vessels and soft tissues.

    The injuries were contained to her neck, back, extremities, face and head, the suit states, and included acute vertebral fractures with bone edema, or internal swelling.

    The plaintiff claims she has experienced pain and suffering, has been prevented from attending to her usual duties and activities, and now has permanent disabilities that will affect her in various aspects of her life.

    Rodriguez has also incurred expenditures relating to medical care, and she expects to expend additional money on the same into the indefinite future, the complaint states.

    The defendants are accused of negligence, carelessness and/or recklessness for allowing a dangerous and defective condition to exist on the premises, failing to correct the hazardous condition, and failing to give notice to customers of the dangerous condition.

    “Plaintiff, Juanita Rodriguez, has suffered agonizing aches, severe physical pains, disability, mental anguish and humiliation and will continue to suffer same for an indefinite time in the future, to Plaintiff’s great detriment and loss,” the complaint states.

    Rodriguez also alleges she has suffered a loss of earnings and earning capacity due to her inability to work because of her injuries.

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

    Rodriguez is being represented by Jenkintown, Pa. attorney Alan F. Galerman, of the firm Galerman & Tabakin, who filed the civil action July 9 at the U.S. District Court in Philadelphia.

    The federal case number is 2:13-cv-03971-AB.


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    A federal judge in Philadelphia has refused to dismiss Johnson & Johnson as a defendant

    U.S. District Judge Jan DuBois

    U.S. District Judge Jan DuBois

    from a lawsuit initiated by a woman who claims she sustained injuries due to an allegedly defective surgical mesh product.

    U.S. District Jan DuBois, of the Eastern District of Pennsylvania, disagreed with J&J’s claim that it should be dismissed from litigation filed against it and Ethicon Inc. by Ramona Shelley because, as J&J asserted, the defendant is merely a holding company that doesn’t “design, develop, manufacture, market, promote or sell any product.”

    Johnson & Johnson had argued that it did not manufacture the Prolene TM soft mesh device that allegedly caused the plaintiff complications, and that it therefore owed no duty of care to Shelley.

    The company sought to have all claims against it dismissed. Additionally, J&J cited a declaration by company secretary Douglas K. Chia that sought to convert certain portions of the dismissal motion into a motion for summary judgment.

    DuBois viewed things differently.

    “The Court rejects defendants’ argument with respect to Johnson & Johnson,” the judge wrote in his July 9 memorandum and order. “The parties have not conducted any discovery, and as such, treatment of the instant Motion as one for summary judgment would be inappropriate at this stage in the litigation.”

    DuBois ruled that making factual determinations at this point in the litigation would be inappropriate.

    The plaintiff did, in fact, state a plausible claim for liability on the part of Johnson & Johnson in her complaint, the judge wrote.

    The defendants had also sought to dismiss the remainder of the complaint’s non-negligence claims for failure to state a claim upon which relief can be granted under Pennsylvania law.

    The additional counts in the lawsuit were for strict liability–product defect, strict liability–failure to warn, breach of express and implied warranties, and fraudulent misrepresentation.

    Addressing the claims one by one, DuBois agreed with the defense’s argument that the two strict liability counts should be dismissed, citing a Pennsylvania Supreme Court ruling that determined state law does not recognize a strict liability claim based on a design defect or failure to warn as a “viable cause of action against a manufacturer of prescription drugs or devices …”

    The state’s high court had previously determined that “where the adequacy of warnings associated with prescription drugs is at issue, the failure of the manufacturer to exercise reasonable care to warn of dangers, i.e., the manufacturers’ negligence, is the only recognized basis of liability,” according to the federal court memorandum.

    Accordingly, DuBois dismissed both strict liability claims with prejudice.

    The judge, however, allowed the breach of express warranty claim to move forward, writing that such a claim is permitted under Pennsylvania law.

    DuBois did side with the defense in its bid to have the breach of implied warranty claim tossed, although the judge did so without prejudice.

    The complaint doesn’t specify whether there was a claim of breach of the implied warranty for merchantability or a breach of the implied warranty of fitness for a particular purpose, the memorandum states, but regardless of this fact, both claims are not cognizable under Pennsylvania law to the extent that they are based on a design defective or failure to warn.

    They are, however, permissible if based on a manufacturing defect or any other theory, DuBois noted.

    In the Shelley case, the judge stated, the breach of warranty claim appears to be based on a claim of design defect, since the lawsuit asserts that the mesh product was unsafe for its intended use because it had “very dangerous propensities” when put to its intended use and once implanted inside a person’s body would cause “serious injuries to the user.”

    DuBois dismissed this claim without prejudice, which enables the plaintiff to file an amended complaint containing more specific allegations.

    Lastly, DuBois denied the defendant’s motion to dismiss the fraudulent misrepresentation claim, which J&J said should be tossed because it isn’t based on a theory of negligence.

    The courts have found fraud claims concerning prescription medical devices cognizable if they contain allegations of “overt acts,” such as affirmative misrepresentations, “that go beyond a mere failure to warn,” DuBois wrote.

    “In this case, plaintiff avers that defendants made affirmative misrepresentations concerning the testing of Prolene TM soft mesh, the history of their use, and the risks and benefits of their use,” he stated. “By alleging such affirmative misrepresentations on the part of defendants, plaintiff has stated a claim for fraud and defendants’ motion on this ground is denied.”


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    A Bucks County woman claims in a newly filed personal injury suit that she became

    Margaret E. Quinlan

    Margaret E. Quinlan

    injured last spring after a “brick-sized” credit card machine fell on top of her foot while she was making a purchase at a shoe store located inside a Philadelphia shopping mall.

    Daphne Cox, and her husband, Bruce, who reside in Southampton, Pa., filed suit on Feb. 26 at the Philadelphia Court of Common Pleas against Indianapolis-based Finish Line Inc., which operates a footwear store inside the Franklin Mills Mall in Northeast Philadelphia.

    The couple claims that while Daphne Cox was checking out after making a purchase at the store on March 10, 2012, the small credit card scanner fell off of its stand and onto the plaintiff’s left foot after she swiped her card through the device.

    The complaint, which was filed by Bala Cynwyd, Pa. attorney Margaret E. Quinlan, of the firm Lowenthal & Abrams, faults the defendant for being negligent and careless in allowing a dangerous and defective condition to exist at the store’s register, where it knew paying customers would be at risk, and for failing to warn the plaintiff of the dangerous condition.

    The lawsuit claims that Daphne Cox sustained injuries to her left foot and toes, including nerve damage, and that she had to undergo medical and rehabilitative treatment and care as a result of the incident.

    Daphne Cox has suffered, and continues to suffer from, severe economic losses, including bills for medical treatment, medication, physical therapy, as well as an impairment of her earning capacity, the suit alleges.

    The plaintiff has also incurred great physical pain and emotional suffering, as well as bodily impairment, as a result of the defendant’s actions, the complaint asserts.

    Daphne Cox seeks $50,000 in damages, plus interest, costs and other court relief.

    Her husband, Bruce, also seeks $50,000 in damages for loss of consortium.

    The case ID number is 130202666.


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    A Philadelphia plaintiffs’ attorney has filed a mass tort claim in state court on behalf of

    Eric H. Weitz

    Eric H. Weitz

    an Indiana woman who alleges her child was born with a cleft palate as a result of the mother ingesting the anti-seizure medicine Topamax during pregnancy.

    Lawyer Eric Weitz, of the firm Messa & Associates, filed the injury suit Feb. 28 at the Philadelphia Court of Common Pleas on behalf of Hollie Buedel, who resides in Lafayette, Ind., and is suing on behalf of her minor child, Tanner Young.

    The defendant named in the litigation is New Jersey-based Ortho-McNeil-Janssen Pharmaceuticals.

    The suit, which was filed as a short-form complaint in the master long-form Topamax Litigation consolidated in the Complex Litigation Center at Common Pleas Court, says that young Tanner was born with a cleft lip and cleft palate in late November 2004 due to his mother’s use of Topamax while she was pregnant.

    Topamax is a drug that is designed to control the seizure disorder epilepsy.

    The plaintiff had taken the drug, which she was prescribed by her physician to curb her seizures, from about Feb. 12, 2004 to Nov. 8 of that year, approximately the duration of her pregnancy, the complaint states.

    The suit contains counts of strict product liability–design defect; strict product liability–failure to warn; negligence; negligent design; fraud, misrepresentation and suppression; constructive fraud; breach of express and implied warranties; and gross negligence and malice.

    Buedel seeks unspecified damages relating to loss of consortium, loss of services, economic losses, delay damages, and personal injury to minor plaintiff.

    The case ID number is 130203056. 


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    A Montgomery County woman is suing the home improvement retail chain Lowe’s over

    Frank Murphy

    Frank Murphy

    allegations that she became injured when an employee, who the plaintiff claims was drunk at the time, ran into her with an electric cart.

    Francine Lombardo and her husband, Jerome Lombardo, filed their civil suit against Lowe’s Home Center Inc. Feb. 27 at the Philadelphia Court of Common Pleas.

    The plaintiffs are being represented by Norristown lawyer Frank P. Murphy of the firm Murphy & Dengler.

    The suit alleges that while shopping at the Lowe’s store in Oaks, Pa. on May 7, 2011, Francine Lombardo was struck by an electric pallet cart filled with mulch that was being driven by a store employee.

    The plaintiff claims that the worker who was operating the cart that struck her appeared intoxicated based upon the fact that he smelled of alcohol, had glassy eyes and slurred speech.

    The lawsuit claims that after the incident, three other store employees ushered the pallet cart operator away to another location within the store, and that after being “abandoned and in an injured condition” for about 15 minutes, the store manager gave Francine a bag of ice for her injured leg and told her she should report to a hospital.

    As a result of the incident, the complaint states, Francine Lombardo sustained an aggravation of a pre-existing condition called Complex Regional Pain Syndrome, also known as Reflex Sympathetic Dystrophy.

    The plaintiff also experienced numbness and discomfort in her right leg from the knee down to her toes, developed shoulder and lower back injuries, and sustained a right leg muscle tear that is not fully healed nearly two years after the accident.

    The couple has incurred medical costs related to Francine’s treatment, the suit claims.

    “By reason of the injuries sustained, Plaintiff, Francine Lombardo, was caused to suffer great pain and agony and was hindered in the past, and will be hindered in the future, from attending to her daily duties, functions and occupations causing her great physical damage and financial losses,” the complaint reads.

    The lawsuit accuses the defendant of creating a dangerous condition by allowing an intoxicated and otherwise unqualified person to operate a piece of dangerous machinery within the store, and for failing to properly train employees on how to operate electric pallet cart equipment.

    The complaint contains counts of negligence, gross negligence and loss of consortium.

    The couple seeks more than $50,000 in damages, plus interest and costs.

    The case ID number is 130202941. 


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    The manager of a Pennsylvania retail store is suing the makers of an overhead garage

    Martin Brigham

    Martin Brigham

    door over claims that the device came down and shattered her shoulder and arm, all the while pinning her to the ground, during an incident in the warehouse of her store in the summer of 2011.

    Keri Escobar, of Saylorsburg, Pa., who was employed as a support manager for PetSmart at the company’s Stroudsburg location, filed suit on Feb. 27 against Hegins, Pa.-based Ed-Way Erectors Inc., San Antonio, TX-based Miner Fleet Management Group, and Harrisburg-based Modern Handling Equipment Company and Modern Group LTD., over injuries she allegedly sustained on July 27, 2011.

    Construction was being done at the PetSmart store by outside contractors during her shift that day, and at one point the workers needed to remove some debris from the store by way of the loading dock area, the lawsuit states.

    At this time, Escobar went to open the TKO Jr. Welterweight Dock Door manufactured and sold by the defendants to allow the construction workers to gain access to the trash receptacles outside of the store.

    While waiting for the workers to finish up, Escobar was injured when the device, described as an overhead roll-up commercial garage door, came down on top of her, shattering her shoulder and arm and pinning her to the ground, the complaint states.

    The suit claims that the torsion spring had failed and had too little torque to counter-balance the weight of the door.

    The contractors ended up having to come to Escobar’s aid and lift the door off of her body.

    As a result of the incident, the lawsuit states, Escobar sustained numerous injuries, including, but not limited to, should fractures requiring total shoulder replacement surgery, a decreased range of motion, impairment in the use and function of her right upper extremity, neurocognitive deficits, mild traumatic brain injury, concussion syndrome, contusions and abrasions of the head and neck, and severe mental and emotional distress.

    At the time of the incident, Escobar also briefly lost consciousness due to a concussion, and she has gone on to suffer from post-traumatic seizures and acute post-traumatic headaches, the suit claims.

    Escobar is also expected to need additional medical attention in the future, including further surgeries and hospitalizations and physical and occupational therapy.

    “As a result of the injuries suffered on July 27, 2011, plaintiff Keri Escobar has endured and will endure for the rest of her life tremendous pain, suffering, embarrassment, self-consciousness and loss of enjoyment of life’s pleasures,” the complaint states.

    The plaintiff has also suffered earnings losses and lost future earning capacity, the suit claims.

    The complaint contains various counts of negligence and strict liability against each of the defendants.

    The complaint also alleges that defendant Miner disposed of the torsion spring that was allegedly the cause of the plaintiff’s accident, not giving Escobar an opportunity to examine it.

    Escobar seeks more than $50,000 in compensatory damages, plus costs, delay damages and other court relief.

    Escobar is being represented by Philadelphia attorneys Martin K. Brigham and Regina M. Foley of the firm Raynes McCarty.

     

    The case ID number is 130202948. 


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    The makers of a toy water gun that was allegedly responsible for giving a Montgomery

    Bradley D. Remick

    Bradley D. Remick

    County child a severe facial laceration that led to a “prominent and very disfiguring” scar are moving to transfer a product liability complaint by the boy’s parents from state court to the U.S. District Court in Center City, Philadelphia.

    Philadelphia attorney Bradley D. Remick, of the firm Marshall, Dennehey, Warner, Coleman and Goggin, filed a petition for removal to the federal courthouse on behalf of client Poolmaster Inc., the Sacramento, Calif.-based company that manufactures the Jumbo Hot Shots Power Launcher.

    Edward D. DiPietro and his wife, Kathleen DiPietro, filed suit in late January at the Philadelphia Court of Common Pleas on behalf of their minor son, Nicholas, over claims that the then-11-year-old boy became injured in early July 2011 while playing with friends.

    At the time, Nicholas, his brother and their two other friends were playing with the water gun manufactured by the defendant.

    At one point, one of the friends twirled the water launcher over his head, causing the tubular parts of the toy to separate, and leading the larger tube to propel and strike Nicholas in the face close to his right eye and nose, the lawsuit shows.

    As a result of the incident, Nicholas sustained a severe laceration to the area between his eyes that required sutures to close, the lawsuit states.

    The couple, who reside in Gilbertsville, Pa., are being represented by Exton, Pa. attorney Justin J. McCarthy.

    The plaintiffs accuse the defendant of negligence for failing to properly, adequately and safely manufacture, fabricate, assemble and construct the Poolmaster Water Launcher so as to prevent its two major plastic tubular components from separating during use.

    Nicholas’s parents claim that their son ended up sustaining a very prominent facial scar due to his injury, and that he has also suffered from headaches, anxiety, stress, embarrassment, and a loss of life’s pleasures.

    The plaintiffs’ lawsuit also contains counts of strict liability and breach of warranty.

    In the defense’s notice of removal, which was filed Feb. 28, Remick writes that the proper venue to adjudicate the matter is the federal court system because the amount of damages sought by the plaintiffs is believed to exceed a Pennsylvania trial court’s jurisdiction.

    The damages sought by the plaintiffs are believed to be in excess of $75,000, the removal petition states, although the plaintiffs’ complaint says the couple seeks more than $50,000 in damages.

    The federal case number is 2:13-cv-01091-BMS. 


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    A woman suing the makers of an infant carrier that allegedly caused the death of her child

    U.S. District Judge Juan R. Sanchez

    U.S. District Judge Juan R. Sanchez

    has succeeded in getting the case remanded to state court.

    Anthoinette Medley filed suit against Infantino LLC in June 2010 at the Philadelphia Court of Common Pleas, but the defendant ended up removing the tort action to the federal court in downtown Philadelphia, the record shows.

    The other defendants named in the complaint are Wal-Mart Stores East Inc., the Philadelphia Wal-Mart store where the product had been purchased, store managers Steve Myers and Jeffrey Weiss, Sears Holdings Corp., Kmart Corp., and Kmart of Pennsylvania.

    Medley’s infant son, Nelsir Scott, died on Feb. 20, 2009, while Medley was carrying the child in a “SlingRider” infant carrier manufactured by Infantino, her complaint alleges.

    The plaintiff originally sought to hold the retail defendants liable in negligence for selling a defective and unreasonably dangerous product that they knew or had reason to know was dangerous, and for failing to warn purchasers of the dangers associated with the SlingRider.

    Following a period of discovery, the defendants moved for summary judgment, arguing that there was no evidence linking the baby carrier in which Nelsir died to either Wal-Mart or Kmart, also maintaining that the theory of alternative liability was inapplicable, the record shows.

    Last June, the trial court entered an order summarily granting the retail defendants’ motion for summary judgment as unopposed, although Medley moved for reconsideration on the basis that she had, in fact, filed an opposition to the defense motion.

    The court eventually granted Medley’s motion for reconsideration and vacated its earlier ruling.

    The retail defendants were eventually dismissed from the litigation, however, although Infantino remained, with the manufacturer arguing that the case had now become removable based on diversity jurisdiction.

    After Infantino filed a motion to remove the case to the federal court, Medley filed her own motion to remand, with the plaintiff arguing that Infantino’s removal notice was filed beyond the one-year limit to remove an action based on diversity of citizenship.

    U.S. District Judge Juan R. Sanchez agreed, writing in a March 1 order that Infantino lacked an “objectively reasonable basis for seeking removal.”

    Infantino had argued that the one-year limit was inappropriate because Medley engaged in “flagrant forum manipulation” by joining the retail defendants, failing to vigorously prosecute her claims against them, and then voluntarily abandoning her claims against them after the one-year limitation had expired.

    In his memorandum, Sanchez wrote that although Medley’s pretrial memorandum admittedly says little about the retail defendants, “the authority cited by Infantino does not persuade this Court that Medley’s limited reference to the Retail Defendants in her pretrial memorandum constitutes an abandonment of her claims against those Defendants as a matter of law.

    “Notably, Medley was actively opposing the Retail Defendants’ motion for summary judgment at the time her pretrial memorandum was filed, a circumstance that undermines any inference of abandonment.”

    The judge wrote that while it is “undoubtedly true” that Medley desires to try this case in state court for “tactical reasons,” the circumstances of the case don’t suggest that blatant forum manipulation is present.

    “Medley did not fail to pursue discovery from the Retail Defendants, and she consistently opposed the Retail Defendants’ efforts to obtain dismissal of the claims against them, even after the one-year time limit had expired,” the ruling states. “Moreover, although Infantino characterizes Medley as having abandoned her claims against the Retail Defendants, the claims are more properly regarded as having been dismissed on the merits.”

    In the end, Sanchez decided to grant remand in the case, he wrote, simply because Infantino’s notice of removal was filed beyond the one-year time limit to remove a case based on diversity of citizenship.

    The judge also granted Medley’s motion seeking costs and attorney’s fees incurred as a result of the earlier removal to federal court.

    Sanchez gave Medley until March 8 to submit documentation detailing the costs and expenses incurred in response to Infantino’s removal.


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    A Montgomery County man is suing DePuy Orthopaedics and Johnson & Johnson over

    Howard Louik

    Howard Louik

    allegations that he sustained injuries as a result of having had a defective hip replacement system implanted in his body.
    Mark Hart, who resides in Telford Borough, filed suit March 4 in federal court in Philadelphia against the two medical device manufacturers claiming that the Pinnacle Acetabular System Device caused him to suffer significant physical pain and a debilitating lack of mobility.
    Hart was also required to undergo a complicated and painful revision surgery to replace the device last year, but because of the lack of remaining bone structure in his body, he will be unable to undergo another surgery for suggested implantation of a third replacement device, the complaint states.
    The plaintiff is being represented by attorneys Diana Nickerson Jacobs and Howard M. Louik of the Pittsburgh firm Goldberg, Persky & White.
    The complaint says that the Pinnacle device, which is a “metal to metal” hip prosthesis, and was designed for human hip joints damaged or diseased due to fracture, osteoarthritis, rheumatoid arthritis and avascular necrosis, has been the subject of more than 1,300 reports of failures or complications.
    The defendants, the suit alleges, were aware prior to August 2010 that the use of the device in patients can result in metallosis, biologic toxicity, and an “unacceptably high” failure rate requiring replacement revision surgery.
    The general allegation is that the Pinnacle device results in an unsafe release of toxic metal ions into recipients’ tissue and bloodstream, and that the metal particles can result in tissue death, bone erosion, swelling, nerve and muscle damage, and even the development of tumors.
    The suit states that for more than two years prior to the summer of 2010, the defendants knew that their hip replacement devices, which also included the ASR XL Total Hip System and ASR Hip Resurfacing System, were prone to fail within about two years of implantation despite the fact that such devices are supposed to last more than 15 years.
    In the present case, Hart’s suffering could “easily have been prevented,” the lawsuit states, if only the defendants had properly warned of the problems patients were experiencing due to implantation of the medical device.
    The complaint also alleges that Hart’s injuries will likely mean he’ll eventually be confined to a wheelchair.
    “None of this would have occurred had either Defendants either warned the public of the dangers of the Pinnacle Device or ASR Device in 2007 when dozens of complaints began being made to the FDA regarding the device’s failures, or, even better, taken the affirmative step of recalling the Pinnacle Device and/or ASR Device at that time,” the lawsuit reads.
    The complaint further states that the companies’ recent recall of only the ASR device has come too late for many patients who will now live with the “permanent and irreparable consequences of the faulty Pinnacle Device for years, if not the rest of their lives.”
    The complaint contains counts of negligence, strict products liability, breach of warranty, common law fraud, intentional misrepresentation, negligent misrepresentation, and violations of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law.
    Hart seeks reimbursement for medical and hospital bills, damages for physical injuries, and damages for fear, humiliation, embarrassment, emotional distress and mental pain, disfigurement and disability.

    The federal case number is 2:13-cv-01133-JP.


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    A Pennsylvania Superior Court panel has affirmed a granting of summary judgment to

    Superior Court Senior Judge Eugene B. Strassburger

    Strassburger

    drugmaker GlaxoSmithKline in a Paxil products liability case involving a deceased infant, but the judges stressed they were upholding the decision for reasons other than those offered by the trial court.

    The case, which came out of the Philadelphia Court of Common Pleas, involved Dean and Mary Pettit, who gave birth to a baby girl named Danielle back in July 1997.

    Shortly after her birth, Danielle was diagnosed with a congenital heart defect known as hypoplastic left heart syndrome. Danielle suffered a stroke the day after having surgery for the condition when she was eight months old. She ended up dying at 10 years of age in July 2007.

    According to the suit, the Pettits soon discovered that their daughter’s heart condition could have been caused by Mary Pettit taking the antidepressant drug Paxil during her pregnancy. On Nov. 19, 2007, the couple filed a short-form complaint against GlaxoSmithKline in the Paxil Pregnancy Mass Tort Program at Philadelphia’s Common Pleas Court.

    The complaint asserted that Mary Pettit’s ingestion of Paxil during the first trimester of her pregnancy caused Danielle to be born with the heart defect that eventually led to her death.

    The complaint alleged that GSK was negligent in failing to warn the plaintiff’s doctor of the drug’s harmful side effect.

    The suit also contained counts of negligent misrepresentation and design defect.

    In February 2011, lawyers for GSK filed for summary judgment, asserting that under Ohio law, the defendant was entitled to summary judgment for various reasons.

    First, they argued that summary judgment was appropriate because the Pettits failed to establish proximate cause, asserting that the plaintiffs produced no evidence that Mary actually took Paxil, and that if she did, that the claim would fall under the learned intermediary doctrine.

    The defendant also asserted that the design defect and negligent misrepresentation claims were preempted by the Ohio Products Liability Act.

    A Philadelphia judge granted summary judgment to GSK on Jan. 30, 2012, following a few days of oral argument, the record shows.

    On appeal, the plaintiffs argued that the trial court erred by rendering credibility determinations and concluding, as a result of those determinations, that the evidence warranted the entry of summary judgment; concluding that the matter was barred under Ohio law by the learned intermediary doctrine; and failing to properly address the plaintiffs’ claims of negligent misrepresentation and design defect.

    On the first point, whether the trial court erred as a matter of law in concluding that Mary Pettit had not taken Paxil during her pregnancy, the appellate panel wrote that while the Philadelphia judge made a case for why a jury might not believe that Mary ever took the drug at all, let alone during pregnancy, “such conclusions do not comport with the applicable standard for summary judgment.

    In citing the Superior Court case of Coleman v. Wyeth Pharmaceuticals Inc., the appeals panel wrote that in considering a motion for summary judgment, a lower court must “thoroughly examine the whole record to determine whether there is a genuine issue as to any material fact, with all doubts as to the existence of a genuine issue resolved against the moving party.”

    The judges also wrote that credibility of evidence is not a proper consideration at the summary judgment stage because the trial court may not summarily enter judgment when the evidence depends on oral testimony.

    Mary Pettit had testified during her deposition that her family physician, Dr. George Huntress, had provided her with a two-and-a-half month supply of Paxil in sample packaging, which she took from September through November 1996.

    However, Dr. Huntress, who has since retired from medicine, never recalled treating Mary Pettit, the record shows.

    Paxil was also apparently never prescribed by Mary’s obstetrician.

    Mary’s husband, Dean, however, testified during his deposition that his wife had taken Paxil during the two-plus months leading up to her pregnancy, and that testimony is sufficient to create a genuine issue of material fact requiring a jury’s weighing in on the matter, the appeals panel wrote.

    “Accordingly, the trial court erred in concluding otherwise and improperly granted summary judgment on this basis,” the panel wrote.

    The judges also wrote that to survive summary judgment in a pharmaceutical failure to warn case, the Pettits also have to show proximate causation.

    GlaxoSmithKline asserted that the Pettits waived any claim regarding the issue of proximate causation, and even if they hadn’t, the claim still fails because Huntress testified he could not recall ever reading the Paxil warning labeling.

    The panel wrote that GSK correctly observed that the plaintiffs’ concise statement on appeal is devoid of any reference to this issue.

    The ruling states that even though the trial court addressed the issue of the proximate causation and the learned intermediary doctrine in its opinion as an alternative basis for summary judgment, and their analysis would not be impeded, “we are constrained to conclude that the Pettits’ failure to include this issue in its concise statement prevents our review.”

    Lastly, on the plaintiffs’ issue regarding the negligent misrepresentation and design defect claims under the Ohio Products Liability Act, the panel again agreed with GSK that the issues were considered waived because they were not raised in the plaintiffs’ concise statement of appeals.

    The memorandum was written by Senior Superior Court Judge Eugene B. Strassburger III. He was joined by Judges Anne E. Lazarus and Paula Francisco Ott.


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