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Pennsylvania's Legal Journal

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    A federal judge in Philadelphia has agreed to transfer a suit alleging violations of the

    U.S. District Judge Gene E.K. Pratter

    U.S. District Judge Gene E.K. Pratter

    Federal Employers’ Liability Act from one end of the commonwealth to the other.

    U.S. District Judge Gene E.K. Pratter, sitting in the Eastern District of Pennsylvania, sided with Norfolk Southern Railway Co. in a case initiated by Joseph York, an employee who claims he injured his elbow while working for the defendant’s rail yard in Conway, Pa.

    This past August, York filed suit against Norfolk Southern raising claims under FELA, but the defendant soon moved to transfer the matter either to the Western District of Pennsylvania or to the Northern District of Ohio.

    The plaintiff resides in Youngstown, Ohio.

    On March 6, Pratter ruled that the case would be best handled by the Western District of Pennsylvania.

    The record shows that York sustained elbow injuries at the Conway, Pa., rail yard, but waited a few weeks to seek treatment at a hospital in Austintown, Ohio.

    All of York’s follow-up medical appointments also took place in the greater Youngstown area.

    In moving to transfer the suit out of Philadelphia, Norfolk’s attorneys wrote that all of the witnesses likely to be called in the case live and work either in western Pennsylvania or Ohio, and that the site of the occurrence of the events allegedly leading up to the injury is located within the Western District of Pennsylvania.

    Actions can be brought under FELA either in the district in which the defendant resides, where the cause of action arose, or where the defendant conducts business as the time the suit is filed, the judge’s ruling shows.

    In this case, Pratter wrote, no one has disputed that the suit could have been brought in either the Western District of Pennsylvania or the Northern District of Ohio.

    Here, it is the private interests that weigh strongly in favor of transfer, the judge noted.

    Pratter wrote that the two district courts advocated by Norfolk cannot be said to inconvenient York since the plaintiff lives in that area.

    Moreover, the judge wrote, the incident that gave rise to the claim occurred in western Pennsylvania.

    While Norfolk argued that it would be more convenient for witnesses if the case took place in either western Pennsylvania or northern Ohio, York countered that the convenience of witnesses is only relevant to the extent that the witnesses may actually be unavailable for trial.

    Pratter, however, wrote that to the extent that fact witnesses are employees of Norfolk, “while they may be available for trial in any forum, the extreme inconvenience and expense to Norfolk of bringing them to trial in Philadelphia relates to the relative convenience of the parties to the suit, not just to the witnesses.”

    The ruling also states that potential medical witnesses from the Youngstown, Ohio, area would potentially be unavailable for trial in Philadelphia, since they would be beyond the subpoena power of the Eastern District of Pennsylvania.

    Pratter went on to write that even though Norfolk has operations in eastern Pennsylvania, “local interests in the Western District of Pennsylvania, where the accident actually occurred, are certain to be even stronger.”

    “Overall, then, the private and public interest factors weigh in favor of transfer,” the ruling states. “Indeed, aside from Mr. York’s choice to bring his suit in this District, there is next to nothing tying the case to this forum.”

    York’s lawsuit, which was filed on Aug. 24, states that he was injured removing what he understood to be old retarders at the rail yard.

    This required York to apply pressure using something called a lining bar, the suit states. At one point, the rail line initially moved, and then snapped back into place, when the chain attached to the device York was using came undone causing the lining bar to violently jerk, and, in turn, causing York’s elbow injury.

    York kept working, but the pain worsened, and the plaintiff eventually had to go to the emergency room, despite allegations that a supervisor told York to “keep his mouth shut” about what had transpired.

    York was initially diagnosed with elbow tendonitis, but was later informed he had a torn ligament that would require surgery.

    His supervisor eventually told York that he would have to “eat this injury” because it was never reported, and if the two employees reported it at this point, they would both be fired, the complaint states.

    York eventually had surgery and is now disabled from employment as a track laborer with Norfolk, the suit states.


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    A North Carolina woman joins the growing list of plaintiffs suing drugmakers McNeil

    Michael M. Weinkowitz

    Michael M. Weinkowitz

    PPC and Johnson & Johnson over allegations that the defendants failed to warn users that Tylenol and Tylenol PM could lead to acute liver failure.

    Attorneys Laurence S. Berman and Michael M. Weinkowitz, of the Philadelphia firm Levin, Fishbein, Sedran & Berman, filed suit March 8 at the federal court in Philadelphia on behalf of Krista Elaine Bolick, who claims her liver failed as a result of her ingestion of the popular pain reliever.

    Like others that have recently been filed over similar allegations, the latest lawsuit claims that the active ingredient in Tylenol, acetaminophen, has led to consumers suffering from liver damage and acute liver failure.

    The suit states that Bolick purchased the Tylenol product in or about March 2010, taking it the “appropriate times and in appropriate amounts for therapeutic purposes and within the recommended daily doses for the product,” but that she ended up having to get emergency room care in the spring of that year for acute liver failure.

    “The potential for acetaminophen-induced liver damage and failure have been well documented and well known to the Defendants for many years prior to the incident involving Plaintiff,” the lawsuit states.

    Nevertheless, the suit states, the defendants continued to enter the drug into the stream of commerce.

    The complaint claims that the pain reliever is defectively designed, and that the drug companies failed to properly market, manufacture, distribute and supply and sell Tylenol to the consuming public.

    The defendants also over-promoted the Tylenol products, including over-promoting its safety and efficacy, as well as failing to warn, properly label and place adequate warnings and instructions on Tylenol bottles, the complaint alleges.

    The lawsuit also accuses the defendants of failing to market a “feasible alternative design” that was in existence that was capable of preventing the plaintiff’s injuries.

    “Defendants’ conduct, as described above, was extreme and outrageous,” the complaint reads. “Defendants risked the lives of the consumers and users of their products, including Plaintiff, with knowledge of the safety and efficacy problems and suppressed this knowledge from the general public.

    “Defendants made the conscious decisions not to redesign, re-label, warn or inform the unsuspecting consuming public.”

    The lawsuit contains counts of strict liability, breach of implied warranty of merchantability, breach of implied warranty of fitness for a particular purpose, negligent failure to warn, negligent design defect, negligence, negligent misrepresentation, breach of express warranty, fraud, fraudulent concealment, and violations of consumer protection laws.

    The plaintiff seeks more than $150,000 in compensatory damages, punitive damages, damages for pain and suffering, interest, attorneys’ fees and costs.

    The complaint is the latest in a growing number of complaints against the makers of Tylenol that contain similar allegations.

    The plaintiffs’ lawyers are currently pushing for the creation of a multi-district litigation case docket at the Eastern District of Pennsylvania.

    The United States Judicial Panel on Multidistrict Litigation has scheduled a hearing for the matter later this month in San Diego.

     

    The federal case number is 2:13-cv-01264-LS. 


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    Attorneys for a New Jersey-based trucking company have filed a request to transfer a

    Dawn Doherty

    Dawn Doherty

    personal injury claim initiated against their client from the Philadelphia Court of Common Pleas to the U.S. District Court for the Eastern District of Pennsylvania.

    Dawn C. Doherty and Thomas A. Dinan, lawyers with the Philadelphia firm Marks, O’Neill, O’Brien, Doherty & Kelly, filed a notice of removal March 11 at the federal court in Center City on behalf of Delran, N.J.-based Gondul Trucking Inc. and its proprietor.

    The underlying claim involves allegations by Bristol, Pa. resident Lauren Konefal that she was seriously injured after a Gondul vehicle driven by co-defendant Sawash Shukur violently struck the rear of the plaintiff’s car while both were driving along Route 13 in Bristol on March 26, 2012.

    Konefal’s attorney, Brad S. Rush, of the firm Kovler & Rush P.C., filed the injury claim Feb. 26 at Philadelphia’s Common Pleas Court.

    The complaint alleges that Konefal sustained injuries including cervical sprain and strain, lumbar and thoracic sprain and strain, post-traumatic anxiety reaction, post-concussion syndrome, and disc bulges and herniations as a result of last year’s accident.

    The incident also allegedly caused the plaintiff great financial detriment and loss.

    The suit accuses the defendants of various acts of negligence, including failing to give proper and sufficient warning of an approaching vehicle, failing to keep a proper lookout and operating a vehicle at an excessive rate of speed.

    Konefal says she  is seeking damages in excess of $50,000.

    In the defendants’ removal notice, attorneys Doherty and Dinan wrote that the matter would be best handled at the federal venue because it involves a controversy between citizens of different states, and because the amount of damages sought may exceed the jurisdiction of a Pennsylvania state court.

     

    The federal case number is 2:13-cv-01275-JS. 


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    In a gruesome workplace injury case befitting a horror film script, a federal judge has

    U.S. District Judge Gene E.K. Pratter

    U.S. District Judge Gene E.K. Pratter

    partially ruled in favor of a plaintiff who suffered a “degloving” injury more than a decade ago when his hand was caught in the rollers of a smoothing and drying machine.

    U.S. District Judge Gene E.K. Pratter, sitting in the Eastern District of Pennsylvania, ruled on March 12 that Rizzi 1857 S.P.A., an Italian manufacturing company, is liable for the horrifying injuries caused to Gil Grove.

    Grove was at work in Reading, Pa. at Garden State Tanning Inc. on Aug. 7, 2002, when, while operating the smoothing and drying machine at the leather company, his left hand became caught in the contraption, which caused the skin to be torn clean off of his hand.

    Some of Grove’s fingers were also partially amputated during the workplace incident.

    Following what the court called a “gruesome injury,” Grove had to undergo numerous surgeries, physical therapy and other medical treatments, and he claimed he had sustained permanent disfigurement, an inability to work, and experienced lost earning capacity and pain and suffering.

    After filing suit against the manufacturing company, Grove faced numerous delays and difficulties pursuing his claims, namely by learning that Rizzi had voluntarily liquidated itself under Italian law and deciding to forgo having counsel represent it in this matter, according to the judge’s memorandum.

    The District Court eventually granted Rizzi’s legal counsel’s motion to withdraw from the case, a request relating to the company’s closure.

    Pratter’s memorandum states that Rizzi has continually failed to defend itself in this case since 2006, and that it neglected to send a representative to a May 2007 scheduled status conference.

    The defendant has also repeatedly ignored the court’s order to obtain new legal counsel, Pratter wrote.

    If Rizzi failed to obtain a lawyer, Pratter wrote, the court would consider entering default judgment against the defendant.

    That default was entered on March 25, 2008, the record shows, although the case was subsequently stayed to determine how Rizzi’s apparent bankruptcy, or the equivalent status under Italian law, might affect the litigation playing out in the States.

    The court lifted the stay, however, in late May of last year after Grove’s lawyer submitted to the court a series of status reports, including one noting that Rizzi had failed to file a petition for recognition of its Italian bankruptcy, the record shows.

    Grove then moved for default judgment.

    In her memorandum, Pratter wrote that Grove was correct in his assertion that he has suffered prejudice because he cannot recover damages against Rizzi even as its assets are being liquidated.

    “Considerable delays already have impacted this litigation, and it appears that these delays will ‘stretch on indefinitely,’” the judge wrote. “Therefore, the prejudice factor … weighs in favor of default judgment.”

    Pratter also wrote that she had to consider in this case whether the defendant has any meritorious defenses, which is a defense, if established at trial, that would completely bar the plaintiff’s recovery.

    The judge went through each of Grove’s claims with respect to this factor. The claims listed in his lawsuit were strict product liability, breach of warranty and negligence.

    Pratter wrote that Rizzi failed to demonstrate a meritorious defense in each of the three aforementioned counts.

    Futhermore, the judge determined that Rizzi’s affirmative defenses were also not meritorious, because the defendant has failed to set forth the type of “specific facts” needed to show why any of those defenses might be valid.

    The third factor to consider when weighing the propriety of a default judgment, Pratter wrote, is a defendant’s culpable conduct. In this case, while Rizzi eventually answered Grove’s complaint, it had gone years without actively defending itself in this action, and ignored numerous court orders, conduct that qualifies as culpable and weighs in favor of granting default judgment.

    While Pratter ruled in favor of the plaintiff with regard to liability, the judge did not reach the same conclusion with regard to damages, writing that Grove’s seeking recovery for past and future pain and suffering is the type of damages that requires a jury’s determination.

    As such, Pratter denied Grove’s motion for default judgment whereas damages are concerned.

    The judge set May 13 as the day when a jury trial on damages will take place in the Eastern District of Pennsylvania.

    The trial is to conclude no later than May 14.


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    A Montgomery County woman is suing the makers of an artificial hip replacement system

    Thomas R. Anapol

    Thomas R. Anapol

    over allegations that she sustained various injuries as a result of having had the device implanted into her body.

    Stephanie Teoli, of Oreland, Pa., claims in her civil action that she experienced physical problems after The Rejuvenate System was surgically implanted into her body at Thomas Jefferson University Hospital in Philadelphia on Jan. 24, 2011.

    The complaint, which was filed on March 18 at the U.S. District Court in Philadelphia by lawyer Thomas R. Anapol, of the Philadelphia firm Anapol Schwartz, says that a post-surgical diagnostic workup revealed the absence of device loosening, infection, malposition or any other explanation for the pain and suffering experienced by the plaintiff.

    Subsequent blood tests, however, indicated the presence of heavy metal ion contamination in the plaintiff, the suit states, and an MRI revealed adverse local tissue reaction and dehiscence at the posterior capsule.

    Teoli eventually underwent a revision surgery on Aug. 8, 2012, the suit shows, during which it was discovered that there was significant corrosion on the Rejuvenate System that is manufactured by Howmedica Osteonics, the New Jersey company named as the defendant in the lawsuit.

    The complaint accuses Howmedica of placing into the stream of commerce a defective medical device that the defendant itself acknowledged had been the subject of reports of failure due to heavy metal contamination in the body.

    Howmedica admitted to having received such reports, and said as much in the spring of 2012 after it issued an Urgent Field Safety Notice to surgeons and hospitals across the country regarding its product, the lawsuit states.

    The safety notice specifically referenced failures at the device’s taper neck junction between the neck and stem due to corrosion and fretting, the suit states.

    “This corrosion and fretting was exactly the same failure mechanism that Defendant had warranted would not occur because of the Rejunvenate System’s design and composition,” the complaint reads. “It was also exactly the same failure mechanism that the medical and scientific community had been studying and documenting in modular implant device design since the 1980s.”

    The suit states that the safety notice went on to describe symptoms and findings identical to those experienced by the plaintiff in the current lawsuit, which included tissue necrosis, metallosis, adverse soft tissue reaction and pseudotumor formation.

    During the first week of July 2012, the suit states, the defendant issued a voluntary recall of all Stryker Rejuvenate and ABG II stems in the country, again citing reports of device failures due to heavy metal fretting and corrosion.

    The lawsuit contains counts of breach of express warranty, strict products liability, negligence and negligent misrepresentation.

    The plaintiff seeks compensatory damages in excess of $75,000, plus interest, costs, punitive damages, attorneys’ fees and other court relief.

    The federal case number is 2:13-cv-01420-ER. 


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    An attorney representing a New Jersey man who is being sued by a Philadelphia resident

    Elizabeth Horneff

    Elizabeth Horneff

    over claims that the plaintiff sustained serious back injuries after his vehicle was struck in the rear by a vehicle driven by the defendant on an area highway has petitioned the U.S. District Court to transfer the case out of Philadelphia and into the federal venue.

    Elizabeth Horneff, a lawyer from the Philadelphia firm Margolis Edelstein, filed court papers on March 19 seeking to remove a case in which her client is named as a defendant from the Philadelphia Court of Common Pleas, where the suit was first filed in late February, to the U.S. District Court for the Eastern District of Pennsylvania.

    The record shows that Southampton lawyer Neil Hoffman, of the firm Hoffman, Michels & Sternberg, filed the personal injury claim on behalf of Anthony DiMatteo and his wife, Traci DiMatteo, against Bridgeton, N.J. resident Jose Jimenez-Luna, also known as Jose Jimenez, and New York-based Diversified Wireless Inc.

    The crux of the complaint is that Anthony DiMatteo was seriously injured on Nov. 4, 2011, at about 6:30 in the morning when a vehicle driven by Jimenez, and owned by Diversified Wireless, slammed into the rear of the plaintiff’s car while both parties were driving westbound on Interstate 76.

    The lawsuit alleges that DiMatteo sustained various injuries as a result of the collision, including a number of disc herniations and spinal problems, as well as an elbow contusion, eye contusion, and nervous system shock.

    The suit accuses the defendants of carelessness, negligence and recklessness for failing to have their vehicle under proper control, failing to give proper and sufficient notice of their approach and failing to exercise due care and caution under the circumstances.

    The DiMatteo lawsuit says the plaintiffs seek more than $50,000 in damages, plus interest and costs.

    In the defendants’ removal notice, attorney Horneff wrote that the case should play out in federal court because there is diversity of citizenship among the parties and because the defense contends that the amount in controversy will actually exceed the jurisdictional limits in a Pennsylvania state court.

    “Petitioner desires to and does hereby remove this civil action from the Court of Common Pleas of Philadelphia County, Pennsylvania to the United States District Court for the Eastern District of Pennsylvania, pursuant to the laws of the United States in such cases made and provided,” the defense filing states.

     

    The federal case number is 2:13-cv-01441-JP. 


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    A federal judge in Philadelphia has denied a petition for a new trial in a workplace injury

    U.S. District Judge Petrese Tucker

    U.S. District Judge Petrese Tucker

    case that ended in a defense verdict.

    U.S. District Judge Petrese B. Tucker, of the Eastern District of Pennsylvania, denied this month a motion that had been filed by plaintiffs Barbara and John Zaprala, who had sued USI Services Inc. over knee and hand injuries Barbara sustained on March 10, 2007, after slipping inside of the Macy’s store at the King of Prussia Mall in Montgomery County.

    Barbara claimed she became injured after slipping and falling on the tile floor near her workstation at the time she was leaving work for the evening.

    The injuries, she claimed, caused her to have to undergo knee replacement surgery, and caused other physical complications, such as an infection and pulmonary embolism.

    The defendant in the case, USI Services, is an independent contractor that provided janitorial services to Macy’s.

    Barbara claimed that she had slipped on a wet spot inside the department store that was created by melting snow that USI employees had tracked into the store on the bottom of their shoes.

    Following a six-day jury trial in early February 2011, however, jurors returned a verdict in favor of USI, finding that it had not been negligent in the case, the record shows.

    The plaintiffs subsequently filed a motion seeking a new trial, arguing on appeal that there was improper admission or exclusion of evidence, improper instructions to the jury, and that the jury’s verdict was against the clear weight of the evidence.

    Under one argument, the plaintiffs argued that the court should not have permitted testimony from Stephen Wistar, USI’s meteorologist, regarding his contention that no precipitation fell during the period in question.

    The couple also argued that the court should not have allowed Wistar’s testimony that snow in the mall’s parking garage, walkway or elsewhere around the Macy’s store had melted naturally prior to March 10, 2007.

    Wistar’s qualifications and the reliability of his methodology were not questioned by the plaintiffs, rather the couple challenged the “fit” prong of the admissibility of expert testimony, which demands that the court ascertain whether the testimony is “relevant for the purposes of the case,” and whether it assists “the trier of fact,” according to the judicial memorandum.

    The plaintiffs had argued that the fit requirement wasn’t met because Wistar testified that he was advised of certain snow removal activities by defense counsel, but was not personally aware of when the snow was removed or that it had, in fact, melted.

    Tucker, however, wrote that the court finds these arguments “unpersuasive.”

    “Mr. Wistar offered expert testimony that, based on climatological data, there was no snow or ice on the ground at King of Prussia Mall on the date of the incident,” the judge wrote in her memorandum. “This testimony was clearly ‘relevant for the purposes of the case,’ because the Plaintiffs’ entire theory of this case was that Barbara Zaprala slipped on snow or ice tracked into the Macy’s store by customers.”

    Additionally, just like any other expert witness, Wistar was not required to have personal knowledge of certain facts or data that were used in formulating his opinion, Tucker wrote.

    “As such, it was entirely proper for him to rely on information received by or made known to him at or before trial,” the memorandum states.

    “The true source of Plaintiffs’ ire appears to be the fact that Mr. Wistar was not an eyewitness to the ground conditions outside of the Macy’s entrance on the day of the incident and admitted that he had not visited the site of the incident,” Tucker continued. “But this is of little consequence, given that Plaintiffs did not produce any climatological data or eyewitnesses to contradict Mr. Wistar’s opinion that there was no snow in the parking lot or on the pedestrian walkway on the date of the incident.”

    Addressing another one of the plaintiffs’ arguments, Tucker wrote that the court properly instructed the jury regarding the duty of care owed by the defendant.

    The plaintiffs had argued that the judge’s charge to the jury did not adequately advise the jury that the specific duty of care that USI had to Barbara Zaprala was the same duty of care that Macy’s had to the woman.

    Tucker wrote that she was not persuaded by this argument, finding that the court did not err in not using the precise language that the plaintiffs now argue should have been included in the jury instructions.

    “In total, the Court’s charge to the jury included six separate instructions on the issue of negligence,” the judge wrote. “The Court finds that those instructions, taken together, adequately advised the jury of the duty of care USI owed to Barbara Zaprala.”

    Tucker wrote that it was unnecessary for the court to specifically state that USI has the “same duty of care that Macy’s had to Plaintiff” given all the other instructions provided on the issue of negligence, and Macy’s not being a party to the lawsuit.

    The judge wrote that the Restatement (Second) of Torts places the same liability on an independent contractor as the possessor of land, but only to the extent of the act or activity the independent contractor is performing on behalf of the possessor.

    “It would therefore have been inaccurate for the Court to suggest to the jury that USI owed the same duty, in all respects, as did Macy’s,” Tucker wrote.

    The judge also wrote that the jury’s verdict was, in fact, against the clear weight of the evidence.

    The argument that it was not was based on the plaintiffs’ contention that the contract terms between Macy’s and USI were unambiguous, with the couple arguing that the contract, “clearly indicated” USI’s duties and responsibilities, and that factual testimony “clearly indicated” that USI breached that duty.

    Tucker, however, wrote that the contract was not unambiguous, and that the plaintiffs’ argument is misguided because this was a negligence action, not a breach of contract action.

    “Whether or not the Janitorial Contract was clear and unambiguous does not conclusively answer the question of whether USI acted reasonably,” the judge wrote. “Because the contract was ambiguous, extrinsic evidence regarding its meaning was properly admitted.”


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    An elderly Philadelphia woman asserts in a newly filed personal injury complaint that she

    Gabriel Levin

    Gabriel Levin

    suffered facial lacerations and other injuries when she was dropped by a transit employee who had been carrying the wheelchair-bound plaintiff up her front stairs in the fall of 2011.

    Mary Torelli, who was 79 at the time of the incident, claims that a worker with MV Transportation Inc., a Fairfield, Calif. business that contracts with the Southeastern Pennsylvania Transportation Authority to aid physically disabled senior citizens, was carrying her wheelchair up the front cement steps to her rowhome when, at the fourth or fifth step, the employee dropped the plaintiff out of her chair, and onto the ground below face-first.

    The lawsuit, which was filed March 20 at the Philadelphia Court of Common Pleas by Philadelphia attorney Gabriel Z. Levin, of the firm Levin & Zeiger, says that Torelli was being dropped off at her home on Oct. 12, 2011, when she was dropped out of her wheelchair.

    The fall caused the plaintiff to sustain facial lacerations, a finger gash, bruised toes and other injuries, the complaint alleges.

    The wheelchair allegedly fell on top of Torelli after she hit the ground face-first.

    As part of the defendant’s contract with SEPTA, MV Transportation employees provide paratransit services to customers who require special assistance, such as elderly residents, and the workers are supposed to assist customers from the MV vehicle to their homes.

    “The Defendant in this case is a common carrier who is required by law to use a higher degree of care for the safety of its passengers than ordinarily imposed on others,” the complaint reads. “This obligation requires the carrier to use the highest degree of diligence and care in the operation of its vehicle and the care of its passengers.”

    The lawsuit further states that while there were two employees of the defendant driving Torelli on that day, only one of the employees got out of the vehicle to help the plaintiff ascend her front steps.

    After being helped inside her home following the fall, Torelli was eventually taken to the emergency room where she received treatment for her injuries.

    As a result of the incident, Torelli has been unable to engage in many personal activities or has a reduced ability to do so, the lawsuit claims.

    The complaint also says that the plaintiff continues to suffer from pain and discomfort, her physical appearance has been altered as a result of the fall, and she continues to suffer from emotional distress.

    The complaint contains counts of negligence, negligent infliction of emotional distress, vicarious liability, negligent hiring, negligent retention and negligent supervision.

    The plaintiff seeks more than $50,000 in compensatory damages, unspecified punitive damages, attorney’s fees and costs.

     

    The case ID number is 130302873. 


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    The family of an elderly Philadelphia woman who allegedly died as a result of scalded bygavel hot bath water in what the plaintiffs contend was an act of negligence on the part of contractors have filed suit against the home restoration company and plumbing agency who worked on the late woman’s house prior to her death.

    Ilona Le and her son, Alex Le, are suing Northeast Philadelphia-based Rapid Restoration LLC and Edward Hughes and Son, Inc., a plumbing company based in the city’s Fishtown neighborhood, over allegations that an improperly installed hot water heater led to serious injuries that ultimately caused the death of Christine Grygiel.

    Rapid had been retained to perform an interior reconstruction of Grygiel’s house after the structure was seriously damaged by a fire sometime in 2010, the complaint states.

    During February 2012, the home’s hot water heater began to leak, and defendant Edward Hughes and Son were brought in to replace the device.

    In early March of last year, following the installation of the hot water heater, Grygiel attempted to take a bath when scalding hot water came out of the faucet while it was turned to the cold position, causing the water temperature to reach a “dangerous and life threatening temperature,” the lawsuit says.

    Alex Le, the woman’s grandson, heard the woman’s agonizing screams, and rushed to the bathroom, where he discovered his grandmother had been scalded by the hot water.

    Alex Le shut off the water and lifted his grandmother from the tub, but the damage had already been done, the complaint states, with the scalding hot water causing second-degree burns to the woman’s trunk, abdomen, back, buttocks and arms.

    Grygiel died three days later, in what the lawsuit contends was a direct result of the burns.

    The cause of death was listed as thermal injury and sequelae, the suit states.

    Rapid Restoration is accused of failing to properly perform the restoration work, and in particular, failing to properly install piping emanating from the hot water heater.

    The company, the suit alleges, failed to follow established procedures by not assuring that the hot and cold water pipes were properly installed so that the hot water supply pipe was running to the cold water connector of the faucet in the first-floor bathroom.

    Rapid Restoration is also accused of creating a hazardous and dangerous condition by having the hot water coming from the cold-water faucet.

    Edward Hughes and Son is accused of performing similar negligent acts, including permitting the water flow to be reversed so that there was no automatic adjustment for water over a safe temperature.

    The plumbing company is also accused of failing to properly install the hot water heater to assure the manual and automatic temperature regulation of the faucet control was not compromised.

    Grygiel ended up experiencing “extreme pain and suffering,” the complaint alleges, and her family has suffered financial loss as a result of having to take care of the injured and dying woman.

    “Defendants acted with reckless indifference to the interests of Decedent in failing to assure the pipe[s] were properly installed,” the suit reads.

    The complaint contains counts of wrongful death, negligent infliction of emotional distress, and survival action.

    The plaintiffs are being represented by Philadelphia attorney James R. Radmore.

     

    The case ID number is 130302865.


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    The estate of a former Boy Scout who was catastrophically injured after being struck by a

    Thomas Kline

    Thomas Kline

    truck while the boy was riding a bicycle as part of a group outing has filed a negligence action against the Boy Scouts of America and the company that employed the driver who struck the young teenager.

    Harrisburg residents Thomas and Irene Grab, who are listed as co-guardians of Kevin Grab, filed suit in state court in Philadelphia on March 20 against Irving, Texas-based Boy Scouts of America, National Counsel; York, Pa.-based New Birth of Freedom Council Inc. and Keystone Council Inc.; and Harrisburg-based Hershey Creamery Company over the injuries young Kevin Grab sustained on Aug. 10, 2007, when the boy was struck by an ice cream delivery truck driven by a Hershey employee.

    According to the lawsuit, Grab, who taking part in a group Boy Scouts outing at the time, was cresting a hill on his bicycle without adult supervision when he was struck by the Hershey truck, which had been traveling along State Route 234 in Gettysburg.

    The truck’s driver, who at the time had been traveling westbound on Route 234, also known as Heidlersburg Road, was making deliveries for the Hershey Creamery Company at the time, and was attempting to turn the vehicle around after realizing that he had made a wrong turn somewhere along the way, according to the lawsuit.

    It was at this time that his passenger shouted to the driver that Grab had entered the intersection.

    The warning was too late, however, and the truck’s right bumper ended up striking Grab’s bicycle at a “significant rate of speed,” the complaint states.

    After being struck by the truck, Grab, then 13 years old, was thrown off his bike and landed on the ground about 60 feet from the point of impact.

    The boy had to be intubated at the scene of the accident and subsequently transported to Milton Hershey Medical Center where he was hospitalized for an entire week, the lawsuit states.

    Following the week of intense hospitalization, Grab was transferred to the medical center’s rehabilitation unit, where he remained until Oct. 5, 2007.

    Grab ended up being diagnosed with a severe traumatic brain injury, and he has since been rendered incapacitated, requiring the constant supervision of his guardians.

    The Boy Scout defendants are accused of recklessness and negligence for failing to supervise young children on the bicycle trip from Harrisburg to Gettysburg National Military Park.

    The lawsuit shows that while adults were present at the time, no adult was at the front of the bicycle pack, which is where Grab was when he was struck by the truck.

    The Boy Scout defendants are also accused in the suit of negligently planning the bicycle trip, failing to protect children from a known dangerous intersection, and failing to exercise proper caution.

    Hershey Creamery is accused of negligently failing to keep a proper lookout on the roadway, failing to take proper evasive maneuvers to avoid striking Grab, failing to exercise proper caution and failing to use due care under the circumstances.

    The plaintiffs seek damages in excess of $50,000, plus interest, costs, delay damages and other legal and equitable relief.

    The Grabs are being represented by prominent Philadelphia attorneys Thomas R. Kline and David K. Inscho, of the firm Kline & Specter.

     

    The case ID number is 130302977. 


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    Two city agencies are being sued by a driver and passenger who claim they became injured

    Jerry Lyons

    Jerry Lyons

    after driving their vehicle into an open construction hole smack dab in the middle of a roadway.

    Philadelphia resident Leonie Gilbert and fellow city resident Carol Williams are suing Philadelphia’s Streets Department and Water Department over claims that the driver and her passenger sustained physical injuries on Oct. 16, 2012, when their vehicle drove into what they allege was a “huge” construction hole on the 7200 block of Forrest Avenue.

    Gilbert, the driver, claims she and her passenger were jolted about upon impact, and that they sustained “severe, painful and permanent injuries” as a result of the incident.

    The other defendant named in the complaint is Clements Bros and Sister Inc., which the suit says is a business located at the location in question.

    As a result of the accident, Gilbert alleges that she sustained injuries to her head, neck, back, body, knees, limbs and nerves.

    This included a disc protrusion, lumbar and cervical radiculopathy and other injuries.

    Gilbert claims she incurred more than $2,500 in medical bills to treat her injuries. She also experienced pain and suffering, loss of life’s pleasures, wage loss, embarrassment, humiliation, property damage, along with serious and permanent impairments of body functions.

    Williams, the codefendant, claims that she sustained similar injuries as Gilbert, but that she additionally suffered a severe chest contusion requiring emergency mammography and ultrasound, a left breast hematoma, broad based disc protrusion, and cervical sprain and strain.

    Williams, too, suffered embarrassment and humiliation, medical bills of over $2,500, wage loss, excess medical bills, and serious and permanent body function impairments, the complaint states.

    Both women seek damages in excess of $50,000, plus interest and costs.

    The plaintiffs are being represented by Philadelphia lawyer Jerry Lyons, of the firm Joseph Chaiken & Associates.

     

    The case ID number is 130302949. 


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    An Arizona woman is suing drugmaker Bayer over claims that the defendant’s birth

    Wendy R. Fleishman

    Wendy R. Fleishman

    control system Mirena caused her to sustain serious bodily injuries.

    Cynthia Solano asserts in her civil action, which was filed at the U.S. District Court in Philadelphia on March 25, that the Mirena that she had had inserted into her body in late January 2011 ended up perforating her uterus and becoming embedded in her body.

    During multiple prior doctor visits, the plaintiff claims she had been assured that the device was properly implanted inside of her, yet she continued to suffer from cramping, pain and spotting, according to the complaint.

    The day after she visited her doctor in early December of last year, Solano vomited and ended up having to go to the hospital for treatment, where a CT scan revealed that the Mirena had caused problems in her body.

    While hospitalized, Solano was diagnosed with renal failure and a slow heartbeat, the suit states.

    The plaintiff alleges she also suffered from emotional distress after the hospital denied admittance to her son for a visitation, since the plaintiff doesn’t technically have legal guardianship over the boy.

    As for her physical state, Solano claims she has had persistent neck pain and limited mobility since her surgery, as well as continued abdominal pain, heavy menstrual bleeding and severe cramping.

    “The long-term consequences of these injuries on Ms. Solano’s health are unknown at this time, which is a source of great anxiety for her,” the lawsuit states. “Additionally, Ms. Solano has significant out-of-pocket expenses for medical coverage and other costs associated with her Mirena-related problems.”

    Solano, the complaint reads, required short-term disability leave from her job, and due to the loss of income from not working as a result of her injuries, she has had to take money out of her 401K account “in a thus far fruitless attempt to pay her bills.”

    “As a single parent to two young children, she and her family were dependent on a friend for care in the post-operative period,” the suit states.

    The product liability complaint accuses Bayer of improperly designing, developing, manufacturing, testing, marketing, promoting, distributing, advertising and selling Mirena, which is known as an intrauterine device that the suit calls “dangerous and defective in certain patients.”

    The complaint claims that Mirena can perforate the uterus and migrate into other parts of the body, something that requires surgical intervention for correction.

    “Contrary to Bayer’s representations about a host of benefits of using Mirena, the Product is not safe and simple ..,” the suit reads.

    The individual defendants named in the lawsuit are Bayer Corp., Bayer Healthcare LLC, Bayer Pharmaceuticals Corp., Bayer Healthcare Pharmaceuticals Inc., Berlex Laboratories Inc., Berlex Inc., Bayer AG and Bayer OY.

    The lawsuit contains counts of failure to warn and instruct, negligence, negligence per se, breach of implied and express warranties, negligent misrepresentation, fraudulent misrepresentation, fraud by concealment, defective manufacturing, design defect, unjust enrichment, and strict liability.

    The plaintiff demands judgment against the defendants in the form of unspecified compensatory damages, disgorgement of profits, statutory damages, attorneys’ fees and costs, prejudgment interest and litigation costs.

    The suit was filed by New York attorney Wendy R. Fleishman of the firm Lieff Cabraser Heimann & Bernstein LLP.

    The federal case number is 2:13-cv-01530-JP. 


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    An elderly Maryland man who was diagnosed with lung cancer on Jan. 30 of last year has

    Robert E. Paul

    Robert E. Paul

    filed a mass tort injury claim in the asbestos docket consolidated in the Eastern District of Pennsylvania.

    Lawyers representing Frank K. Nethken, 82, and his wife, Velma, filed suit in federal court on March 25 against CSX Transportation.

    The complaint states that Frank Nethken’s lung cancer diagnosis was a direct result of the plaintiff having been exposed to products containing asbestos during his working years.

    An employment history contained within the complaint shows that Frank Nethken worked as a United States Navy ground controller, as a machinist at Cumberland Steel, as a rocket inspector for Allegheny Ballistics Lab, (now ATK Rocket Center in West Virginia), and as a machinist for B&O Railroad.

    The lawsuit also says that Nethken served as mayor of the City of Cumberland in Maryland from 1978 to 1982.

    He was exposed to asbestos in all of these positions, the complaint alleges.

    Nethken believes he was exposed to asbestos fiber or asbestos products manufactured, sold, distributed or otherwise placed into the stream of commerce by the defendants, the suit states.

    The suit notes that the plaintiff was a pack-to-a-pack-and-a-half-a-day cigarette smoker from 1951 to 2012.

    The plaintiffs are seeking damages in excess of $100,000, plus interest, costs and unspecified punitive damages.

    They are being represented by attorney Robert E. Paul of the Philadelphia firm Paul, Reich & Myers.

    The federal case number is 2:13-cv-01544-ER.


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    A Pennsylvania Superior Court panel has reversed a Philadelphia trial court’s judgment

    Senior Pa. Superior Court Judge James Fitzgerald, III

    Senior Pa. Superior Court Judge James Fitzgerald, III

    in favor of a plaintiff who launched a premises liability action against retail giant Target Corp.

    Makalla Davis sued Target in mid-September 2009 over claims that she sustained “mind-numbing” injuries to her knees after she tripped over beanbag chairs that had been on the store’s floor.

    The plaintiff claimed that she was trying to move out of the way of another store customer when she tripped and fell over the hazardous condition.

    The case went in front of a Philadelphia Common Pleas Court jury on Feb. 28, 2011, the record shows, and the jurors ended up determining that Target was negligent, and that the plaintiff was only 10 percent comparatively negligent.

    Davis ended up being awarded $150,000, which was molded to $135,000.

    Following post-trial motions, the record shows, the trial court ended up granting Davis’s request for delay damages in the amount of $3,189, and the court simultaneously denied Target’s motion for a new trial.

    Target eventually appealed to the Superior Court, arguing that it was entitled to a new trial because Davis had failed to establish that the store breached a duty to her.

    The defendant argued that Davis admitted to having seen the beanbag chairs before she tripped over them, and that the plaintiff’s knowledge of the defective condition negated Target’s duty to inspect the premises.

    The three-judge Superior Court panel agreed with the defendant, writing that while there was evidence that Target’s policy was to have an employee walk the floor to inspect for items that should not be on the floor, the question in this case was whether Davis had actual or constructive notice of the beanbags despite the store’s policy.

    “Because Appellee failed to demonstrate that Appellant had actual or constructive notice of the beanbags, Appellant was entitled to judgment as a matter of law,” the Superior Court’s ruling states.

    In its second issue on appeal, Target contended that the trial court erroneously precluded the proposed testimony of two police officers that Davis was under the influence of marijuana at the time of the incident, and that she had actually injured her knees when she banged them against the door of her holding cell after being taken into policy custody, according to the appellate court’s non-precedential decision.

    Lastly, Target alleged that the jury’s verdict was “manifestly excessive” because it deviated from the trial evidence.

    The panel wrote that because it reversed the order denying judgment notwithstanding the verdict, it would not reach the merits of those claims.

    The appellate panel ended up remanding the case back to the Philadelphia Court of Common Pleas, instructing the lower court to enter judgment in favor of the defendant and conduct further proceedings as appropriate.

    The decision was written by Senior Superior Court Judge James J. Fitzgerald, III. Also participating in the decision were Judges Jacqueline O. Shogan and David N. Wecht.

    Wecht, however, filed a 13-page dissent, in which he said the appellate panel’s standard of review mandates that the judges view the evidence through a lens highly deferential to the verdict winner, which in this case was Davis, the plaintiff.

    Wecht went on to write that while the evidence regarding notice in this case was “less than overwhelming,” viewing the trial evidence through the lens required by law shows that it was established that Target was on constructive notice of the dangerous condition.

    Wecht noted that while no evidence of record suggests that Target had actual notice of the dangerous condition, the appeals panel’s charge had to focus upon whether Target had constructive notice of that condition.

    Wecht wrote that viewing the evidence of record in the light most favorable to Davis, the verdict winner, he can discern no abuse of discretion by the trial court.

    “While Davis’ evidence is not overwhelming, it nonetheless is quite clear, from the jury’s verdict and from the evidence upon which the jury relied, that reasonable minds could differ as to whether Target had constructive notice of the defective condition in one of its aisles,” Wecht wrote.

    Wecht also wrote that while the jury award was larger than what Davis requested in her original complaint, there is clear evidence in the trial record to support the award.

    “Accordingly, I find no reason to conclude that the verdict was exorbitant or excessive,” he wrote. “The award certainly was not so excessive as to shock the court’s conscience, or to demonstrate that the jury’s decision was predicated upon or influenced by partiality, prejudice, mistake, or corruption. Therefore, the trial court did not abuse its discretion in denying Target’s motion for remittitur of the jury’s award.”


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    Attorneys representing LA Fitness in a personal injury case initiated in Philadelphia have petitioned the U.S. District Court for the Eastern District of Pennsylvania to instead hear the case.

    Philadelphia lawyer Norman W. Briggs, of the Briggs Law Office, filed a notice of removal on March 26 seeking to transfer a negligence action from the Philadelphia Court of Common Pleas to the federal venue.

    The case was initiated on Feb. 27 by West Chester, Pa. residents Kevin M. Rulis and his wife, Benedicte E. Duchen-Rulis.

    The plaintiffs allege that Kevin Rulis became injured on July 13, 2012, after slipping and falling inside an LA Fitness racquetball court due to a leaking and improperly functioning heating ventilation and cooling system in the gym.

    Kevin claims that as a result of slipping on the moist, dusty and dirty floor surface, he sustained a torn Achilles tendon and other physical injuries.

    The plaintiff asserts that he has had to undergo medical treatment as a result of his fall, and that he will continue to incur various expenses relating to his care.

    Briggs wrote that the matter belongs in federal court because none of the members of LA Fitness or Fitness International LLC, the two defendants named in the complaint, are Pennsylvania citizens, and because the amount of damages sought by the plaintiffs exceeds the jurisdictional limit of a Pennsylvania state court.

    The record shows that the alleged incident occurred at the LA Fitness location at 109 Quarry Road in Downingtown, Pa.

    The plaintiffs are being represented by Philadelphia attorney Richard K. Washington, Jr.

    The defense removal notice notes that while the plaintiffs personally served Fitness International LLC with a copy of the complaint on March 11 at the Downingtown location, despite repeated requests to the plaintiff’s lawyer, the defense has been unable to obtain an actual copy for the Sheriff’s Affidavit of Service.

    Still, the removal request is being filed within 30 days of the date of service of the complaint, Briggs wrote.

     

    The state case ID number is 130202966 and the new federal case number is 2:13-cv-01582-BMS.


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    A lawsuit brought by the family of Tiaina B. “Junior” Seau over the late professional

    Steven M. Strauss

    Steven M. Strauss

    football player’s suicide has been consolidated with other actions against the NFL involving claims that the league hid the long-term health risks of on-the-field concussions.

    Court records show that the Seau wrongful death claim was recently consolidated at the Eastern District of Pennsylvania with more than 200 other suits being overseen by U.S. District Judge Anita Brody.

    The multi-district litigation, which now comprises more than 4,100 individual plaintiffs, is scheduled to have its first oral arguments in just one week’s time, when both sides address the NFL’s motion to dismiss based on the league’s contention that the plaintiffs’ claims are preempted by the collective bargaining agreement.

    The arguments are scheduled for Tuesday, April 9 in Brody’s courtroom at the federal courthouse in downtown Philadelphia.

    Seau, a former San Diego Chargers linebacker, died last May at age 43 after he shot himself through the heart with a .357 magnum, according to media reports.

    Seau’s family contends that he had suffered in recent years from depression, insomnia, anxiety and alcoholism, and that his problems worsened in the months leading up to his death.

    Seau’s children subsequently donated their father’s brain to the National Institutes of Health for studying, the results of which showed the former professional athlete had suffered from a degenerative disease known as chronic traumatic encephalopathy, or CTE, which can only be diagnosed postmortem, and is tied to people who had a history of concussions and other brain injuries, news reports stated.

    Seau’s relatives originally filed their wrongful death claim in California’s Superior Court, but the action was later transferred to the federal venue in southern California.

    The lawsuit, like the other 200-plus consolidated in the National Football League Players’ Concussion Injury Litigation, claims that the NFL fraudulently concealed the long-term health risks associated with head concussions obtained during professional play on the field.

    “For many decades, evidence has linked repetitive mild traumatic brain injury (“MTBI”) to long-term neurological problems,” the Seau suit reads. “The NFL was aware of the evidence and the risks associated with repetitive traumatic brain injuries for many decades, but deliberately ignored and actively concealed the information from the players, including the late Junior Seau.”

    The plaintiffs in the Seau case are three of the late player’s sons, one of his daughters, a guardian of two of the sons, and the trustee in charge of Junior Seau’s estate, the court docket shows.

    Seau’s family is being represented by attorney Steven M. Strauss of Cooley LLP.


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    An Oklahoma mother has filed a complaint in the Multidistrict Zoloft Marketing

    Peyton Murphy

    Peyton Murphy

    Products Liability Litigation consolidated at the U.S. District Court in Philadelphia over allegations that her ingestion of the antidepressant during pregnancy caused her son to develop serious birth defects.

    Torrie Johnson asserts in her civil action that Pfizer, the makers of Zoloft, committed various acts of negligence in failing to warn pregnant woman that taking the pharmaceutical could cause congenital defects in fetuses.

    The suit contends that Pfizer negligently and intentionally designed, manufactured, distributed and sold Zoloft without appropriate safeguards and warnings to the consuming public that the drug should not be taken during pregnancy because of its serious teratogenic effects.

    The plaintiff alleges that her son suffered from birth defects including congenital endocardial cushion defect, a heart murmur, congestive heart failure, failure to thrive and a general developmental delay.

    At three months of age, the suit states, Johnson’s son, identified only as “E.C.,” was diagnosed with congestive heart failure and failure to thrive, and he subsequently had to undergo a surgical procedure to repair an atrioventricular defect, although his doctors continued to detect mitral regurgitation thereafter.

    During E.C.’s eighth month of life, the complaint says, he was observed by his physician to be in the 10th percentile or below in terms of body weight, and he remained unable to gain weight through his 16th month.

    During that time period, the boy’s activity was so low, that he couldn’t even hold his head up when on his belly, he slept too much, choked often and seemed to have trouble catching his breath, the complaint alleges.

    The child was described as having poor muscle tone and as being unable to bear weight.

    His head also “lagged” when he was pulled by his arms from a lying position, the suit states.

    In his 25th month of life, the complaint says, E.C. was still unable to put on sufficient weight, and his diagnosis of failure to thrive was reiterated.

    A murmur has also been detected at each of his doctor’s visits.

    Zoloft is a drug designed to treat obsessive-compulsive disorder, depression, panic attacks, posttraumatic stress disorder and social anxiety disorder.

    The lawsuit claims that Pfizer failed to test the drug’s effects on pregnant women or their unborn children, and that during its promotional activities of the medication, the drug giant did not discourage the use of Zoloft in pregnant woman.

    In fact, the drug company encouraged doctors to prescribe Zoloft to women of childbearing age, the complaint asserts, as well as to women who were trying to conceive, and those who were already pregnant.

    After Pfizer had been selling the drug for years, the suit states, independent scientists began conducting studies to determine the drug’s association with birth defects, although Pfizer didn’t perform similar studies.

    “Had Pfizer engaged in appropriate pharmacovigilance, they would have been aware of the numerous cases of birth defects caused by Zoloft prior to the time Plaintiff was prescribed Zoloft,” the complaint reads.

    The suit says the current Zoloft warning label still does not warn doctors or patients about the increased risk of serious malformations and other birth defects seen in babies whose mothers took Zoloft while pregnant.

    The suit accuses the drug company of concealing the risks, and overstating the benefits, of the antidepressant.

    The suit contains counts of strict product liability, breach of implied warranty, negligence, negligence per se, malicious conduct, unjust enrichment, and fraud, misrepresentation and concealment.

    Johnson seeks unspecified compensatory and punitive damages, as well as treble damages, disgorgement of profits, costs, attorneys’ fees and other court relief.

    Johnson is being represented by Colorado attorneys Joi G. Kush and Perry R. Sanders, Jr., of the Sanders Law Firm, as well as Baton Rouge, LA attorneys Denise Vinet, Justin Day, and Peyton Murphy.

    The federal case number is 2:13-cv-01652-CMR.


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    A federal judge sitting in the Eastern District of Pennsylvania has denied a bid by an out-

    Frederic S. Eisenberg

    Frederic S. Eisenberg

    of-state plaintiff to remand her wrongful death case to the Philadelphia Common Pleas Court, where it had originally been filed, ruling that diversity in citizenship exists because the defendants are not based in the Keystone State.

    U.S. District Judge Jan E. DuBois, in a March 29 memorandum and order, denied a motion to remand that had been filed by Cherie Leatherman, who contended that the litigation belonged in state court in Philadelphia.

    Leatherman, a Colorado resident, brought suit against Cabot Oil & Gas Corp., Pioneer Drilling Services LTD, Pioneer Drilling Inc. and Dean’s Casing Services Inc. on behalf of her late father, Gregory Walker, whose death allegedly resulted from an accident that occurred while he was working on a gas rig platform in central Pennsylvania.

    Leatherman initiated her civil action against the defendants in late April of last year at Philadelphia’s Common Pleas Court, court records show.

    The plaintiff contends that Walker’s death was caused by the negligence and reckless disregard of the defendants and their agents, and she seeks more than $50,000 in wrongful death and survival damages.

    After the suit was brought in Pennsylvania court, attorneys for the defendants filed a removal notice over claims that diversity in citizenship existed among the parties.

    Specifically, the lawyers wrote, Cabot is a citizen of both Delaware and Texas, Pioneer Drilling is based in Texas, and Dean’s Casing is located in Oklahoma.

    Leatherman responded by contending that the case was improperly removed to federal court because at least one of the defendants is a Pennsylvania citizen.

    Dean’s Casing, the plaintiff had argued, had not shown that its principal place of business was outside of Pennsylvania, although the company submitted an affidavit from its office manager stating that Dean’s is, in fact, an Oklahoma corporation with a principal place of business in Oklahoma, the record states.

    DuBois concluded that based on the office manager’s testimony at her deposition, the defendant does indeed have its “nerve center” in Oklahoma, and because of this complete diversity is present.

    However, the judge also refused to grant a defense request to dismiss the case in its entirety, allowing it to play out in the federal system, but not in the Eastern District of Pennsylvania; DuBois ordered that the case ultimately be sent to the federal court in Harrisburg.

    As an alternative to dismissal, the defendants had asked that the case be transferred to the Middle District of Pennsylvania based on forum non conveniens, or for the convenience of the parties.

    In her memorandum, DuBois wrote that the fact that the gas rig incident occurred in Dimrock Township, Pa., which is located in the Middle District of Pennsylvania, generally weighs against transfer, but in this case it is given less weight due to the plaintiff’s non-resident status.

    Courts generally give a plaintiff’s choice of venue “substantial weight” in determining whether to grant a motion to transfer, the judge wrote, but it’s given less weight if the plaintiff chooses a venue in which he or she does not reside and in which none of the operative facts giving rise to the suit occurred, the memorandum states.

    In this case, DuBois wrote, all of the defendants prefer to litigate the suit in the Middle District of Pennsylvania, the accident giving rise to the litigation occurred in that district, and it would be easier to play out in the Middle District because witnesses might need to visit the accident site during discovery.

    “In short, this case has nothing to do with the Eastern District of Pennsylvania and should be heart in the Middle District of Pennsylvania,” DuBois wrote. “The Court concludes that defendants have met their burden of demonstrating that transferring this case to the Middle District of Pennsylvania would be in the interest of justice.”

    DuBois also denied without prejudice a request by Cabot Oil & Gas to dismiss parts of the suit on the merits, writing that those issues will be left to the discretion of the federal jurist who takes over the case in the Middle District.

    The complaint shows that Walker was 41 years old when he died on May 10, 2010, following the workplace incident.

    The man was killed while attempting to rotate and seat a casing pipe while he was on an elevated stabbing board at the rig, according to the lawsuit. It was at this time that Walker was struck by an object, which caused significant trauma to his head and body, and ultimately led to his death.

    The complaint accuses the defendants of failing to provide a safe work environment for employees.

    The plaintiff is being represented by attorney Frederic S. Eisenberg, of the Philadelphia firm Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck.


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    Lawyers representing a West Virginia commercial trucking company being sued by a City

    Gerald McHugh, Jr.

    Gerald McHugh, Jr.

    of Philadelphia worker over injuries he allegedly sustained as a result of coming into contact with a haul of lime have petitioned a federal judge to hear the case.

    Attorneys for Hinkle Trucking Inc. contend that a lawsuit initiated by Philadelphia resident Eddie Hurtt belongs at the U.S. District Court because diversity of citizenship exists between the parties.

    Hurtt, who worked as a guard for the city at its Queen Lane Water Treatment Plant, filed suit against Hinkle in early March in state court over claims that he developed chemical keratitis, or an inflammation of the cornea, as a result of having had lime blown in his face on March 25, 2011, when the defendant was delivering the substance to the plant, which is located in the city’s East Falls neighborhood.

    The lawsuit, originally filed in Philadelphia’s Common Pleas Court, says that lime has an alkaline pH value and presents a risk of injury to those who come into contact with the compound.

    Lime is also identified as a caustic substance that can cause severe eye damage, the complaint states.

    Hurtt’s alleged injury occurred when Hinkle’s employees were offloading the lime from their truck, at which time a “substantial amount” of the substance escaped from the vehicle and became airborne.

    As a result of his coming into contact with the lime, the plaintiff claims he has developed chronic corneal inflammation, which manifests itself as redness and irritation of the eyes.

    This condition will cause Hurtt to have permanent sensitivity to light, the suit says.

    The complaint also alleges that this debilitation, coupled with Hurtt’s nearsightedness, caused the City of Philadelphia’s medical director to declare the plaintiff permanently and partially disabled, which meant Hurtt would have to be placed on restricted work duty.

    As a result of the workplace injury, the suit says, Hurtt will require eye drops and medications for the remainder of his life, and he will continue to experience physical and mental pain and suffering and financial hardship.

    The lawsuit accuses the trucking company of various acts of negligence, including a failure to prevent exposure to reservoir employees during the lime delivery, failing to use proper and safe techniques to offload the substance from the truck and into the city’s storage facility, and failing to have the appropriate hoses or other equipment that would allow the offloading of the lime without creating a hazard to individuals in the vicinity of the truck.

    The plaintiff is being represented by Raynes McCarty lawyers Gerald A. McHugh, Jr. and Timothy R. Lawn.

    Hinkle, which is being represented by Media, Pa. attorney Donna M. DiPietro, of the Nicolson Law Group, filed its removal notice on April 1 at the U.S. District Court for the Eastern District of Pennsylvania, asserting that the matter would be more appropriately handled at the federal courthouse because the parties are citizens of different states and also because the amount in controversy is expected to exceed the jurisdictional limit in state court.

     

    The state court ID number is 130300312.

    The federal case number is 2:13-cv-01680-NS. 


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    For the second time in a week, retail giant Target Corp. has come out on the winning end

    U.S. District Judge Paul S. Diamond

    U.S. District Judge Paul S. Diamond

    of litigation initiated by plaintiffs who claim they became injured due to hazardous conditions at stores operated by the defendant.

    On April 2, U.S. District Judge Paul S. Diamond, sitting in the Eastern District of Pennsylvania, granted summary judgment to Target in a case brought by Santosh Lal, who alleged she injured her knee after slipping and falling on a puddle of spilled soda while shopping at the Target location in Plymouth Meeting, Pa.

    Lal had claimed that she did not know what had caused her fall at the time, and that she was unaware there was any liquid spilled on the tile floor at the store, the record shows.

    However, the incident report that had been signed by Lal stated that the cause of the incident was a soda spill, and the plaintiff’s own daughter subsequently testified that her mother had told her she felt something “slippery a little bit and she fall down,” according to Diamond’s judicial memorandum.

    At deposition, a floor supervisor for Target had testified that he usually inspected the “sub main aisle” where the incident took place, which is a fairly heavily trafficked area of the store, and Lal did not allege that any Target employee was aware of the liquid spill before her fall.

    Target argued that the court could determine as a matter of law that Lal did not slip on the puddle of soda because she had no direct knowledge that she slipped on the substance, the memorandum states, but Diamond disagreed with this contention, writing that store workers who came to Lal’s aid did, in fact, notice the spill near the plaintiff’s fall.

    The judge, however, wrote that there is no evidence from which a jury could reasonably find that Target had notice of the spill.

    “Indeed, Plaintiff concedes that Target had no actual notice of the spill,” Diamond wrote. “Rather, she contends that a jury could reasonably find that Target had constructive notice of the spill, given its size, shape, and location.”

    To prove constructive notice, the judge wrote, Lal would have to show that Target had an opportunity to remedy the dangerous condition, and without sufficient evidence that the spill had been on the floor for a significant duration of time, a jury could not reasonably infer that the defendant had constructive notice.

    “Plaintiff has presented no evidence as to when the spill occurred,” the judge wrote. “Rather, she suggests only that the soda spilled from an unattended shopping cart farther down the aisle. Even if Plaintiff is correct, this indicates only how, not when, the spill occurred.”

    Diamond also brushed aside Lal’s contention that because Target employees regularly patrol the store’s aisles, the defendant should have known about the spill that caused her fall, with the judge writing that while such evidence might well relate to whether Target acted reasonably, it does not show that Target knew or should have known of the spill.

    Diamond wrote that summary judgment is proper when there is no evidence as to the time or duration of a spill that causes a plaintiff’s injury, and in this case Lal has produced no evidence that Target had either actual or constructive notice of the spill that caused her fall.

    In addition to being found not negligent in this case, Target also came out on top in a state case recently when a Pennsylvania Superior Court panel reversed a plaintiff’s judgment in a similar premises liability action.

    In that case, the appellate judges sided with Target in a lawsuit it was embroiled in with Makalla Davis, who claimed she sustained knee injuries after tripping over a beanbag chair that had been left on the store’s floor.

    The plaintiff was actually awarded $135,000 by a Philadelphia Common Pleas Court jury, but the appeals panel subsequently reversed the verdict, determining that Davis failed to demonstrate that Target had actual or constructive notice of the dangerous condition.

    The state appellate judges ruled that Target was entitled to judgment as a matter of law, even though a jury had earlier determined otherwise.


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