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Pennsylvania's Legal Journal

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    Attorneys representing plaintiffs who allege they suffered liver failure damage or failure

    U.S. District Judge Lawrence F. Stengel

    U.S. District Judge Lawrence F. Stengel

    due to their use of over-the-counter Tylenol have succeeded in getting a federal court panel to approve the formation of a multidistrict litigation docket through which the claims will be consolidated and handled.

    The U.S. Judicial Panel on Multidistrict Litigation this week OK’d the creation of an MDL docket at the federal courthouse in Philadelphia to address the allegations against the makers of the acetaminophen-containing product.

    All pending cases will be consolidated under the MDL, which has been titled “Tylenol (Acetaminophen) Marketing, Sales Practices and Products Liability Litigation,” and will be overseen by U.S. District Judge Lawrence F. Stengel, who sits in the Eastern District of Pennsylvania.

    The decision follows a hearing late last month in San Diego in which plaintiffs’ lawyers pleaded their case before the panel, arguing that an MDL was appropriate because all of the pending lawsuits share common factual issues concerning the design, manufacture, labeling, marketing, and sale of Tylenol.

    In its April 1 transfer order, the Judicial Panel on Multidistrict Litigation stated that “centralization will eliminate duplicative discovery, prevent inconsistent pretrial rulings … and conserve the resources of the parties, their counsel, and the judiciary.”

    The panel concluded that the Eastern District of Pennsylvania is the appropriate transferee district for the litigation, because defendant McNeil Consumer Healthcare is headquartered in the district, and both McNeil-PPC Inc. and Johnson & Johnson, the other codefendants, are both located in nearby New Jersey.

    Many of the defendants’ witnesses and documents are likely to be found in or near Philadelphia, the panel continued, and Stengel, who is already overseeing the 21 Tylenol actions that are pending in the Eastern District, is currently not overseeing any other MDL.

    “He is an experienced jurist, and we have every confidence that he will steer this litigation on a prudent course,” the panel wrote in its transfer order.

    Court records show that there are currently around 27 Tylenol products liability cases pending against the defendants, 21 of which were initiated in Philadelphia.

    The judicial panel’s order means the other cases will be transferred to the Eastern District of Pennsylvania where Stengel will coordinate and consolidate the actions for pretrial proceedings.

    “On the basis of the papers filed and hearing session held, we find that the actions listed … involve common questions of fact, and that centralization in the Eastern District of Pennsylvania will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation,” the panel’s transfer order reads.

    The order is signed by acting judicial panel chair Kathryn H. Vratil.

    The Pennsylvania Record previously reported on the overarching claim in the litigation, which is that the drug companies marketed and sold its over-the-counter Tylenol products in a manner that concealed the margin of risk of liver toxicity and liver failure.

    The plaintiffs in many of the actions are being represented by attorneys Arnold Levin, Laurence S. Berman, Fred S. Longer and Michael M. Weinkowitz, of the firm Levin, Fishbein, Sedran & Berman.


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    When the country’s major tobacco companies paid out more than $200 billion in the late

    U.S. District Judge Anita Brody

    U.S. District Judge Anita Brody

    1990s to settle claims that they misled consumers about the health risks associated with cigarette smoking, it seemed as though no other legal settlement could possibly come close in terms of size and scope.

    But that remains to be seen, especially considering there’s multidistrict litigation playing out in federal court in Philadelphia in which the defendant is an organization that rakes in more than $9 billion per year in revenue.

    For more than a year-and-a-half now, individual suits have been piling into the National Football League Players’ Concussion Injury Litigation, an MDL being overseen by U.S. District Judge Anita Brody at the Eastern District of Pennsylvania.

    At present, there are more than 4,200 named player-plaintiffs in the 200-plus suits filed against the NFL over allegations that the organization purposely misled athletes about the long-term health risks associated with concussions caused by on-the-field play.

    On Tuesday April 9, the parties will appear in Brody’s courtroom to hold the first set of oral arguments in the case, with both sides addressing the NFL’s motion to dismiss the case.

    In court papers, lawyers for the NFL have argued that the plaintiffs’ claims are preempted by the collective bargaining agreement, and that the federal court system is not the proper venue in which to handle the claims.

    Defense attorneys have also stated that they believe the NFL is not the proper defendant in the case, since the players are technically employees of their respective football teams, not the league.

    While the case could technically be tossed by Brody following Tuesday’s oral arguments on the NFL’s dismissal motion, some legal observers believe the case will move forward, although when a potential trial could occur is anyone’s guess, since the pre-trial legal wrangling could go on for years.

    NFL spokesman Brian McCarthy was recently quoted in the Wall Street Journal as saying that the league has some court precedence on its side, citing the granting of the NFL’s dismissal motion in the wrongful death case filed by the widow of Korey Stringer, a lineman from the Minnesota Vikings who died as a result of heatstroke that occurred during training camp.

    Attorneys for the NFL, the WSJ article stated, are similarly expected to argue in front of Brody that the sheer number of lawsuits consolidated in the MDL and the varying circumstances involving the plaintiffs make the litigation “too varied to qualify as a class action.”

    “These claims – like personal injury claims generally – cannot be decided on a class-wide basis because they turn on individual issues such as each player’s medical condition and injury history,” McCarthy was quoted as saying in the March WSJ report.

    Lawyers for the former players, however, have argued in court filings that class action status is appropriate because of the allegations that the league intentionally misled professional football players about the dangers of repeated concussions.

    The fact that the misleading was intentional, at least in the eyes of the plaintiffs’ lawyers, proves an element of fraud, and voids any chance for the questions presented in the case to be folded into collective bargaining, the WSJ article stated.

    Another argument is that many of the plaintiffs named in the litigation played football before the first collective bargaining agreement was entered into in the late 1960s, or during a time period in the late 1980s and early 90s when there was no CBA in effect, thereby proving that the civil claims are valid.

    Paul Anderson, a Missouri-based attorney who tracks the MDL case in his blog, NFLConcussionLitigation.com, said in a recent post that the contrasting legal views highlights what he terms the upcoming “battle of the experts.”

    “It will take medical and causation experts to persuade the jury that the NFL’s conduct, in fact, caused or contributed to the players’ damage,” Anderson wrote on April 3.

    Anderson went on to write that the NFL’s recent public comments, such as McCarthy’s statements to the Wall Street Journal, could indicate that the league and its attorneys are “revving up the rhetoric in case Judge Brody denies the motion to dismiss. Maybe it’s a calculated PR move – by noting that a settlement is NOT in sight, and the players’ claims are weaker than they appear.

    “The image-conscious NFL has taken a beating in the court of public opinion,” Anderson continued. “In any event, before we even get to the merits, the issue of preemption and whether the players’ claims belong in court will have to take center stage on April 9th in Philadelphia.”


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    The federal judge handling the case of a man who claims Pennsylvania State troopers set

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

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

    him aflame when they deployed a Taser gun toward the plaintiff, who had gasoline on his clothing at the time, has for the second time refused to grant summary judgment to the officers named as defendants in the litigation.

    In an April 3 memorandum and order, U.S. District Judge Gene E.K. Pratter denied a defense motion for summary judgment in the case of Allen Brown v. Trooper Burghart et al.

    As previously reported by the Pennsylvania Record, Brown filed suit against the law enforcement officers in July 2010 claiming he suffered third-degree burns over nearly a third of his body after he was stunned by a Taser device during an August 2008 encounter with the troopers.

    Trooper Justin LeMaire stopped Brown at about 5 a.m. on Aug. 24 2008 after the officer discovered the plaintiff was operating an unregistered motor scooter with no license plate along busy Interstate 76, also known as the Schuylkill Expressway, in Philadelphia.

    Brown asserted in his lawsuit that he was attempting to gain access to a local off-road bike path, but had to first travel on a brief stretch of the highway in order to get to the trail.

    It was at this time that LeMaire spotted Brown and attempted to pull him over, but the plaintiff ended up leading the trooper on a low-speed chase down the interstate.

    Brown, who had no car and no driver’s license, was attempting to get to his mother’s home in Norristown, Pa. from his home in Philadelphia at the time of the incident.

    LeMaire called for backup during the chase, with Trooper Peter Burghart soon coming to his aid.

    Toward the end of the chase, Brown’s scooter overturned, causing gasoline to spill from the vehicle and onto the plaintiff, the record shows.

    After some struggling, LeMaire deployed his Taser, and Burghart soon followed up with his own Taser jolt, with Burghart’s shot igniting the gas that had spilled onto the plaintiff’s clothing and causing Brown to catch fire.

    In denying an earlier defense motion for summary judgment, Pratter had noted that the two troopers had acknowledged that Tasers could, in fact, ignite flammable material.

    Pratter ended up ruling in the previous motion, which was filed in June of last year, that LeMaire’s status in the case lacked clarity, and she denied the trooper’s motion for summary judgment without prejudice, allowing the parties the ability to properly outline the specific facts and law concerning LeMaire’s potential liability.

    This month, Pratter wrote that just as the court had previously found that fact issues existed precluding the granting of summary to Burghart, it similarly found that genuine issues of material fact preclude granting LeMaire his requested relief.

    Pratter, citing her previous ruling, wrote that Burghart is not entitled to qualified immunity because an officer familiar with legal precedent regarding the amount of force appropriate in the case of an unarmed, but resisting suspect who was not attempting to harm officers and, aside from resisting arrest, had only committed traffic violations, “surely would not conclude that conduct risking lighting that suspect on fire was an appropriate amount of force.”

    “Trooper LeMaire had the same opportunities to assess the situation as Trooper Burghart, so despite his attempts to reargue whether the use of a taser under these circumstances violated Mr. Brown’s rights and whether the law was or was not clearly established for purposes of qualified immunity, the only real issue remaining here is whether there are material factual disputes as to whether Trooper LeMaire had an opportunity to intervene,” Pratter wrote.

    The judge stated that LeMaire argues, without citing any case law, that Brown must show “unequivocally” that LeMaire knew gasoline had spilled on the plaintiff in order for the trooper to be held responsible for failing to intervene.

    Pratter, however, wrote that the standard is not whether LeMaire “subjectively” knew about the gasoline, but what an “objectively reasonable officer would have done under the same circumstances.”

    “Those circumstances included an overturned motor scooter, the knowledge that vehicle accidents may result in gasoline spills, and the knowledge that using a taser in the presence of flammable material causes a fire risk,” the judicial memorandum states.

    The judge wrote that LeMaire arguably had two windows of opportunity to prevent his fellow officer from using his Taser under the circumstances, and there is no evidence he did or attempted to do so.

    “Whether or not these two windows of time were enough to give Trooper LeMaire a reasonable opportunity to intervene is a question for the factfinder,” Pratter wrote. “Thus, the Court will not grant summary judgment in favor of Trooper LeMaire.”


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    A Philadelphia jury last month returned a hefty $15 million-plus plaintiffs’ verdict in a

    Thomas Duffy

    Thomas Duffy

    motor vehicle products liability case against Central City Toyota.

    According to court records and the attorneys involved in the litigation, the jurors awarded $11.4 million following the five-week trial to Noreen Lewis, a family physician who was seriously injured after the ball joint in the 2006 Toyota Sienna she was driving failed, causing the vehicle, which was rented from the local car-share service PhillyCarShare, to roll over and careen down a ravine, the lawsuit had stated.

    Lewis, a Philadelphia resident, claimed in her suit, originally filed in early March 2010 at Philadelphia’s Common Pleas Court, that the accident caused her near permanent loss of the use of her left arm.

    The minivan had been maintained by Central City Toyota, which was the only defendant found liable in the case, according to attorneys Thomas J. Duffy and Kenneth F. Fulginiti, of the Philadelphia firm Duffy & Partners, which represented Lewis.

    The five other passengers in the vehicle, who were also named as defendants in the litigation, were represented by attorney Dennis A. Porno, of Pasquarella, Kunnel & Pomo.

    The record shows that those five other plaintiffs, identified as Lashona Lewis, Evelyn Lewis, Michael Lewis, Bridget McGinchey and Bryanna McGinchey, secured $4.3 million of the jury’s award.

    The record shows that while the suits were originally filed as two separate actions, Philadelphia Common Pleas Court Judge Allan Tereshko on Oct. 20, 2011, granted a plaintiffs’ motion to consolidate the cases.

    The five-week trial was presided over by Philadelphia Common Pleas Court Judge George Overton.

    In her amended complaint, filed in April 2010, Lewis claimed that the incident that gave rise to her injuries was due to the negligence of the defendants.

    The incident was caused by product failures and product defects, concealment of defects and problems, and was due to a failure to warn of unreasonable dangers, defects and problems with the vehicle, the suit alleged.

    Lewis said she suffered injuries including a temporal fracture, three fractured ribs, a lung contusion, a heart contusion, a torn scapula, C5-6 disc herniation, and an L1 fracture and traction injury to the brachial plexus.

    The Toyota dealership had argued in court that Lewis was to blame because the vehicle was being driven at a high rate of speed at the time of the accident, news reports state, but the jurors ended up agreeing with the plaintiffs’ counsel that the faulty ball joint broke while the vehicle was being driven, and that is what caused the car to flip.

    News reports also quoted plaintiffs’ counsel Duffy as saying the dealership had offered up $1.7 million to settle the case during the trial.

    In a plaintiffs’ firm news release, Duffy stated that his goal in the case was to give Lewis the means to move on from the accident and plan for her future.

    “Now, that future includes financial resources to pay for good medical care, lost wages she would have earned if she could have continued in the profession she loved, and compensation for the Lewis lost her medical practice as a result of accident because she could no longer perform her job duties.

    The dealership had argued that Lewis was driving too fast during wet weather at the time of the accident, which occurred on a highway in New York State, but her attorneys argued that the mechanical failure due to faulty maintenance and service was the true cause of the accident.

    “As a result, what should have been a pleasant family outing to see Dr. Lewis’s daughter perform in a school play in New York turned into a career-ending injury which will leave Dr. Lewis with severe pain and physical limitations for the rest of her life,” the news release stated.


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    A Pennsylvania couple is suing the Archdiocese of Philadelphia, a Bucks County parish

    Marci Hamilton

    Marci Hamilton

    and a priest who formerly worked at the church over claims that the man sexually assaulted the wife during a retreat last year.

    Malvern, Pa. attorney Daniel F. Monahan and Washington Crossing, Pa. attorney Marci A. Hamilton filed suit at Philadelphia’s Common Pleas Court April 4 against the archdiocese, the Order of St. Paul The First Hermit, the National Shrine of Our Lady of Czestochowa and Father Marek Lacki.

    According to the complaint, the female plaintiff, who is referred to as Jane Doe in order to protect her identity due to the fact that she was a victim of an alleged act of sexual assault, first met Lacki in early March of last year when the plaintiffs volunteered to assist with events at Rachel’s Vineyard, a church-sponsored couples retreat promoted by the Pauline Fathers and hosted at the place of worship.

    The Pauline Fathers is a group that works with the Archdiocese to place priests in various parishes.

    The plaintiffs attended the retreat at Our Lady of Czestochowa in honor of their wedding anniversary, the lawsuit states.

    It was during this time, the complaint alleges, that Lacki encouraged the couple to drink alcohol with him and talk about the marital difficulties they were experiencing.

    “He was very charming and encouraged them to be open with him,” the suit reads.

    The suit says Lacki seemed particularly eager to learn about the couple’s sex life, and it was during this time that the defendant learned Jane Doe had been the victim of childhood sex abuse, and that she has suffered from depression and had trouble dealing with sex after having given birth to nine children, and gone through several miscarriages.

    Following the retreat, the complaint states, Lacki insisted that Jane Doe come to a private room at the church and pray and discuss with the priest her childhood abuse issues in more detail.

    On March 26, 2012, while in the church’s private room, Lacki allegedly sexually abused and assaulted the plaintiff against her will.

    “He did so by grooming her, and then using physical, intellectual, moral, emotional and psychological force,” the complaint reads. “Despite repeated attempts by Plaintiff to ward off the assaults, it progressed to Lacki’s forcible digital rape of Plaintiff after which he smeared her menstrual blood on her face.”

    The plaintiffs’ attorneys went on to write that when detectives from the Bucks County District Attorney’s Office attempted to question Lacki about the criminal allegations, the priest responded by saying the matter was under the seal of confession, and he would not discuss anything with the police.

    Following what the plaintiffs’ lawyers call the district attorney’s failure to act, Lacki was removed from Our Lady of Czestochowa and, based upon information and belief, allowed to flee to Poland, his native land, to avoid further criminal and civil actions against himself and the other defendants.

    The suit says that the church, the Pauline Fathers and the Archdiocese of Philadelphia have routinely, either individually or collectively, shielded priests with “deviate sexual proclivities.”

    The complaint accuses the other defendants of concealing the knowledge that Lacki had “deviate sexual interests,” and that each of them had a long history of concealing sexual abuse by clergy.

    During a recent press conference in front of the Doylestown church to announce the lawsuit, Hamilton, who stood with Monahan, said that the plaintiff has “no other recourse in order to find justice other than to file this lawsuit for all the suffering that she and her family … have gone through.”

    A video of the news conference was posted online by area news outlets.

    Hamilton called the woman a “trusting, devout Catholic mother,” who was betrayed by the parish priest.

    The attorneys originally filed the lawsuit with Philadelphia’s Common Pleas Court on April 3 using a pseudonym in place of the plaintiff’s real name, but the suit was sent back by the prothonotary because of the alias, Hamilton told the Pennsylvania Record in a brief email exchange.

    Hamilton said she and Monahan filed a petition asking for the court to accept their clients as John and Jane Doe, which was attached to the complaint when the re-filed it on April 4.

    The petition says that the plaintiffs should be allowed to proceed under pseudonyms because they could face shame and humiliation if publicly named due to the sensitive nature of the case.

    The lawsuit contains counts of sexual abuse and vicarious liability, negligence, negligent supervision, and loss of consortium.

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

     

    The case ID number is 130400886. 


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    Attorneys for an armored car company being sued by a Bucks County man over

    Charles M. Adams

    Charles M. Adams

    allegations that he sustained serious injuries after being involved in a vehicle accident with the defendants are seeking to transfer the litigation from state to federal court.

    Attorney Charles M. Adams, of the firm Langsam, Stevens, Silver & Hollaender, filed a removal notice with the U.S. District Court for the Eastern District of Pennsylvania on April 8 seeking to transfer the lawsuit out of the Philadelphia Court of Common Pleas because there is diversity in citizenship.

    According to the record, Langhorne, Pa. lawyer Michael L. Saile filed suit in mid-March in state court on behalf of Bristol, Pa. resident Vincent J. Accardi over claims that his client sustained a host of serious physical injuries after his vehicle was struck by a vehicle owned by Maryland-based Dunbar Armored Inc. on March 31, 2011.

    The defendant’s vehicle was being driven by employee Marcus T. Cosby, who resides in Hainesport, N.J.

    Cosby and his passenger, fellow Dunbar employee Antoine Edwards, are both named as codefendants in the litigation.

    Accardi claims that as a result of the accident, he sustained back injuries requiring surgery, as well as an inability to walk, loss of balance, dizziness, headaches, inability to eat, and a host of bone fractures and other ailments.

    The plaintiff has also suffered from depression, panic attacks, anxiety, fevers, leukocytosis, high white blood cell count, vertebral problems and other injuries that required multiple operations.

    Accardi also allegedly contracted the infection Methicillin-resistant Staphylococcus Aureus, more commonly known as MRSA, during surgery.

    The plaintiff had to move in with his brother and sister-in-law for four months upon discharge from the hospital, and he was forced to remodel his home in order to accommodate the physical limitations from his injuries, the complaint states.

    “As a direct and proximate result of the negligence and/or carelessness of Defendants … Plaintiff has further undergone and endured significant and serious physical pain, suffering, mental anguish and emotional pain, and suffered severe bodily injuries … and endured extensive hospitalization and medical treatment which is currently ongoing,” the lawsuit reads.

    Accardi also has a Medicare lien and a healthcare insurance lien placed against any recovery to which he may be entitled to compensate him for the severe injuries, the suit states.

    The accident, according to the complaint, occurred on Route 13 in Bristol Township, Bucks County, and was the result of the Dunbar employees failing to keep a safe and clear distance from other vehicles on the roadway, the plaintiff alleges in his civil action.

    The road surface was apparently wet during the time of the accident.

    Aside from seeking to have the case removed from the Philadelphia Court of Common Pleas to the U.S. District Court, the defendants’ attorneys wrote in their filing that that Edwards, the vehicle passenger, was fraudulently joined to the lawsuit.

    Edwards, who was riding in the back seat of the armored vehicle, did not influence Cosby’s “operation of Dunbar’s vehicle” at the time of the accident, the defense attorneys wrote, despite the fact that Accardi claims that Edwards’ inactions or inactions “somehow caused Dunbar’s vehicle to strike Plaintiff’s vehicle,” the removal notice states.

    To prove negligence on the part of Edwards, the defense lawyers wrote, the plaintiff would have to establish that Edwards owed him a duty of care, and under state law, a passenger who does not own the host vehicle “owes no duty to protect third-persons or other passengers from the negligent acts of the vehicle’s owner or driver.”

    “In addition, as a passenger, Defendant Edwards was under no legal duty to inspect Dunbar’s vehicle,” the removal petition reads. “Plaintiff cannot establish a cause of action against Defendant Edwards and there is no reasonable basis in fact or colorable ground which supports Plaintiff’s claims against Edwards.”

    Accardi is seeking more than $50,000 in damages against each of the defendants.

     

    The state case ID number is 130301907 and the federal case number is 2:13-cv-01828-JP.


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    Philadelphia law firm Marshall, Dennehey, Warner, Coleman & Goggin recently

    William L. Banton, Jr.

    William L. Banton, Jr.

    announced that one of its lawyers, William Banton, Jr., has become a fellow of the American College of Trial Lawyers.

    Banton, who serves as the assistant director of the Health Care Department at Marshall Dennehey, was inducted into the ACTL during the college’s spring meeting in Naples, Fla.

    A practicing attorney since 1984, Banton has focused mostly on medical malpractice litigation for the past two decades, according to Marshall Dennehey.

    According to his biography at the law firm, Banton has handled more than 200 medical malpractice cases since 1994, and has also been involved in a number of foster care abuse and sexual abuse cases.

    Banton has also defended major asbestos manufacturers in toxic tort matters and has represented the interests of Pennsylvania municipalities in civil rights cases litigated in federal court.

    His law firm claims that 99 percent of the cases Williams has tried went to a jury.

    Banton has obtained many defense verdicts or settlement agreements “significantly below” settlement demands, according to Marshall Dennehey.

    An example given was that of a case in which Banton successfully defended a pediatrician where the settlement demand was $7 million, with the attorney obtaining the dismissal of his client following oral argument, just before the case went to trial.

    And he also obtained favorable settlements for clients in a handful of cases involving demands in excess of $3 million, his firm stated.

    Banton, who obtained a bachelor’s degree from Philadelphia’s Temple University, and his juris doctor from Southern University Law Center in Louisiana, previously clerked for Theodore A. McKee, a former Philadelphia Common Pleas Court judge who currently serves as chief judge on the U.S. Third Circuit Court of Appeals, which is also based in Philadelphia.

    Banton also previous served as chief solicitor for the City of Philadelphia’s Law Department.

    He entered private practice in 1985 and he joined Marshall Dennehey five years later.

    Fellowship in the American College of Trial Lawyers is extended by invitation only, and only experienced trial attorneys who have “mastered the art of advocacy and whose professional careers have been marked by the highest standards of ethical conduct, professionalism, civility and collegiality,” can become a part of the college, Marshall Dennehey stated in a news release.

    Lawyers must also have a minimum of 15 years of trial experience under their belts before they can be considered for the fellowship.

    According to the firm, there are currently 5,879 members of the ACTL in the United States and Canada.

    The college, the firm stated, strives to improve and elevate the standards of trial practice, the administration of justice and the ethics of the trial professionals.

    In addition to his fellowship with the ACTL, Banton is also a member of the American Board of Trial Advocates, he was recently chosen for membership in the International Academy of Trial Lawyers, and he has been named a Pennsylvania Super Lawyer each year since 2006 in the area of personal injury defense.


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    Attorneys representing both sides in the massive multidistrict football players’ injury

    Paul Clement addresses media outside U.S. District Court in Philadelphia

    Paul Clement addresses media outside U.S. District Court in Philadelphia

    litigation playing out at the federal courthouse in Philadelphia sparred face-to-face for the first time on Tuesday, addressing the National Football League’s motion to dismiss the case.

    The NFL is looking to have the District Court throw out the consolidated lawsuit on procedural grounds, contending that the claims are preempted by the collective bargaining agreement between the league and the players’ union.

    On Tuesday, both sides argued before U.S. District Judge Anita Brody, who is overseeing the case, with regard to their respective positions.

    “The NFL held itself out to be the guarantor of safety,” Washington, D.C. attorney David C. Frederick, who practices with Kellogg, Huber, Hansen, Todd, Evans & Figel, and represents the plaintiffs in the case, said during oral arguments.

    The defense team, which is led by attorney Paul Clement, a former U.S. Solicitor General, maintains that the players’ injury claims are preempted by the CBA, and that they should be before a labor arbitrator and not in the tort system.

    “You can’t think of the league’s responsibilities here in a vacuum,” Clement said, noting that the league, teams and individual players themselves have some share of the responsibility when it comes to health and safety.

    The plaintiffs argue that throughout the years, the NFL has intentionally withheld information and misrepresented the dangers with regard to long-term health risks associated with concussions and other injuries that players sustained during professional play.

    The number of plaintiffs is now 4,000-plus and counting. They comprise more than 200 individual suits that have been consolidated and transferred to the Eastern District of Pennsylvania.

    Officially known as the National Football League Players’ Concussion Injury Litigation, the case has drawn widespread interest in both sports and legal circles.

    So much interest has been garnered, in fact, that Brody closed off her courtroom even before Tuesday’s proceedings began, sending the overflow crowd to a first-floor courtroom where the hearing was shown on a projection screen.

    Observing attorneys, local and national news media and members of the public turned out to catch a glimpse of the oral arguments.

    The question before Brody is whether or not the case should be dismissed at this stage of the game due to defense contentions that the injury claims are preempted by the collective bargaining agreement.

    Clement said that if there is any element to the claims that is preempted by the CBA, then the plaintiffs’ entire argument is preempted.

    At the same time, however, Clement conceded that case law with regard to preemption arguments has varied over the years.

    As for the master complaint itself, the plaintiffs assert both claims of negligence and fraud against the NFL, with the latter alleging the league didn’t give truthful information with regard to the long-term risks of concussions, and the latter alleging that the league intentionally spread misinformation with regard to said risks.

    In court, Clement argued that under the CBA, the individual football clubs, or teams, and not the NFL, are responsible for player health and safety, a central theme that has been touched on in defense filings.

    The defense argues that if anyone is going to be sued, it should be the clubs, which are the players’ employers, not the league.

    Frederick countered by arguing that the NFL, as the overseer of professional play, still has a basic duty of care to the players, and that the league breached that duty when it committed alleged acts of negligence and fraud.

    Frederick said the NFL is basically seeking immunity through its preemption argument.

    Clement, however, said, “preemption and immunity are not the same thing.”

    Clement contends that preemption is the case here because the CBA is not silent on issues regarding player health and safety.

    Following the hearing, Clement spoke to members of the media outside the courthouse, during which he reiterated his assertion that the suit is deficient on procedural grounds.

    Under the CBA, the attorney said, players get “extraordinary rights,” but with that comes things players give up, such as the ability to sue in civil court under certain circumstances.

    Clement wouldn’t offer up specific defense strategies, saying only if, and after, the litigation proceeds would the NFL address the merits of the plaintiffs’ claims.

    Brody said from the bench that she would soon rule on the dismissal motion, but she didn’t signal when exactly a ruling might come down.

    Meanwhile, the plaintiffs’ side held a news conference in the basement of the Hotel Monaco just blocks from the courthouse following the hearing, during which Frederick and his team addressed the media alongside former players and players’ spouses.

    Among those in attendance was Kevin Turner, a former NFL fullback who played for both the Philadelphia Eagles and the New England Patriots.

    Turner has since been diagnosed with Amyotrophic Lateral Sclerosis, more commonly known as Lou Gehrig’s Disease.

    “I’m really glad we’re moving forward with this,” said Turner, who has since gone on to form the Kevin Turner Foundation, which raises awareness about sports-related brain trauma.

    Turner joked that while the legal stuff is “over my head,” it sounded like “we won” following the procedural arguments before Brody.

    “It seems by actions today that this is something that will move on, I think, at a reasonable pace,” Turner said.

    Also addressing the media was Mary Ann Easterling, widow of the late Ray Easterling, who committed suicide in April of last year, after which it was discovered that he had suffered from chronic traumatic encephalopathy, a degenerative brain disease linked to repeated concussive blows to the head.

    Easterling could barely compose herself, breaking down in tears immediately upon taking the microphone.

    “I was really pleased with the judge’s questions and her treatment of the subject,” Easterling said. “I feel really good about the case.”


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    A wrongful death claim that had been filed by a New York State widow over her

    U.S. District Judge Lawrence F. Stengel

    U.S. District Judge Lawrence F. Stengel

    husband’s death as an alleged result of Tylenol use has been transferred to the newly created multidistrict over-the-counter Tylenol litigation docket in Philadelphia.

    Cathleen Murphy filed suit against McNeil Consumer & Specialty Pharmaceuticals, a division of McNeil-PPC and Johnson & Johnson, in December 2010 at the U.S. District Court for the Eastern District of New York, the record shows.

    In her complaint, Murphy alleges that her husband, Michael Murphy, sustained liver damage that ultimately led to his death as a result of his use of Extra Strength Tylenol.

    Michael Murphy, the suit claims, only took the acetaminophen product regularly from April through May 2008.

    The suit accuses the defendants of representing to Michael Murphy and the consuming public that Extra Strength Tylenol is safe and poses “no significant health hazard to consumers,” when in fact the pharmaceutical is specifically toxic to the liver.

    “Defendants owed a legal duty to Plaintiff’s Decedent to manufacture and sell Extra Strength Tylenol without hidden and/or concealed defects,” the lawsuit reads. “Defendants breached such duty which proximately caused Plaintiff’s Decedent damages.”

    Michael Murphy, the record shows, died as a result of acute liver failure due to acetaminophen poisoning and toxicity on Jan. 23, 2009.

    The complaint alleges that the drug companies did not warn of any potential effects of Tylenol on the liver until 1993, and that at that time, the label only warned consumers who drank three or more alcoholic beverages per day to consult a doctor before taking the drug.

    “It did not warn of the risk of hepatic injury in the absence of alcohol intake,” the suit reads. “Subsequent changes in the warnings remained inadequate to inform Plaintiff’s Decedent of the risk of liver injury and death from the use of Extra Strength Tylenol.”

    Michael Murphy underwent a liver transplant after sustained liver failure, but he ultimately died as a result of his body’s rejection of the new organ, the suit states.

    The lawsuit contains counts of negligence, defective design, manufacturing defect, failure to warn, breach of implied and express warranties, fraudulent misrepresentation, negligent misrepresentation, fraudulent concealment, wrongful death, and violations of New York’s General Business Law.

    Just last month, the U.S. Judicial Panel on Multidistrict Litigation gave approval for the creation of an MDL docket under which the 27 pending claims would be consolidated and overseen by a federal judge at the U.S. District Court in Philadelphia.

    On April 10, the Murphy claim was added to the MDL, which is being handled by U.S. District Judge Lawrence F. Stengel.


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    The state House Judiciary Committee recently held a hearing on House Bill 1150, also

    Pa. State Rep. Bryan Cutler

    Pa. State Rep. Bryan Cutler

    known as the Fairness in Claims and Transparency Act, or FACT, which would provide for transparency of claims made against asbestos bankruptcy trusts and in the tort system.

    The bill is being sponsored by state Rep. Bryan Cutler, a Lancaster County Republican.

    It appears to have close to 30 cosponsors.

    Records show that those who were scheduled to testify on April 8 included Sam Marshall, the president and CEO of the Insurance Federation of Pennsylvania; Sam Denisco, vice president of government affairs for the Pennsylvania Chamber of Business and Industry; Kevin Shivers, executive director of the Pennsylvania chapter of the National Federation of Independent Business; as well as a handful attorneys, such as Nicholas P. Vari, of K&L Gates LLP; Peter J. Neeson, of Rawle & Henderson; Marc Scarcella, of Bates White LLC; and Larry Cohan, of Anapol Schwartz.

    The bill is designed to address a “glaring loophole in the current system of assessing responsibility for damages in asbestos-related suits which is imposing job-crushing liabilities on many Pennsylvania businesses,” Cutler had said in his memorandum to fellow House members, which was sent out on April 2.

    The bill is supported by the likes of the Pennsylvania Chamber of Business and Industry, and is opposed by groups including the Pennsylvania Association for Justice, which represents trial lawyers.

    The measure, which would require plaintiffs in asbestos lawsuits to disclose claims they had previously filed against the asbestos bankruptcy trust funds, is similar to a law that was passed by the Ohio legislature last year called the Asbestos Transparency Act.

    It also mirrors a federal bill titled the Furthering Asbestos Claim Transparency, or FACT, which was initially introduced in 2012 and reintroduced this year.

    The federal measure was debated during a House Judiciary Subcommittee on Regulatory Reform, Commercial and Antitrust Law hearing in Washington last month.

    At that time, the panel’s chair, Spencer Bachus, an Arizona Republican, said that the “enemy of any just compensation system is fraud and abuse,” and FACT needs passage in order to preserve assets for future victims of asbestos injuries.

    While the federal bill still sits in committee, some states are moving ahead with their own version of the legislation, such as Ohio.

    Darren McKinney, of the American Tort Reform Association, told Legal Newsline late last year that the Ohio law may be the first of its kind in the nation.

    At the time, McKinney was quoted as saying that, “with the scandal that is double-dipping in the court systems and in trust funds, a statutory response is the only solution.”

    Here in Pennsylvania, Cutler hopes his bill, the Fairness in Claims and Transparency Act, will put an end to the process known as “double-dipping,” whereby people recover damages through asbestos trust funds and the civil court system.

    “Some may think asbestos litigation is waning, but these crippling liabilities continue to affect businesses throughout Pennsylvania, from small businesses that work with asbestos products to large manufacturers and employers who are successor companies to the original asbestos miners from the 1970’s,” Cutler wrote in his memo to fellow lawmakers.

    Cutler claims that recent reports showed that between September and December 2010, 45 Pennsylvania-based companies were named as defendants in asbestos suits.

    “The enormous burden of these cases drains resources from these businesses that could otherwise be used for economic growth and job development,” Cutler wrote.

    The legislator pointed to the problems with so-called “double-dipping,” in which an asbestos claimant can technically recover twice for the same injury – once through tort litigation and a second time through the asbestos trust claim process involving since-bankrupt companies who have set up trust funds to compensate victims.

    Cutler says his bill would correct the “double-dipping” problem in two ways.

    First, it would apply the principles of Pennsylvania’s Fair Share Act to asbestos litigation such that asbestos defendants would be apportioned liability based only on their relative fault.

    And secondly, FACT would require plaintiffs to disclose all asbestos exposure information and to indicate whether they have submitted an asbestos injury claim to a trust fund set up by insolvent companies.

    “Disclosure of this information will allow a judge or jury to consider all asbestos exposures, claims which have been or could be submitted to a trust and claims which have been paid by a trust, in some cases as much as $1.6 million per claimant, as part of an asbestos-related suit,” Cutler stated in his House memorandum.


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    A Pennsylvania woman is suing the makers of a weight loss product over claims that she

    James C. Shah

    James C. Shah

    suffered liver toxicity after ingesting the supplement in the spring of 2011.

    Karen Jacobs-Poles and her husband, Dwayne Poles, who reside in Springfield Township, Delaware County, filed a complaint at the federal courthouse in Philadelphia April 10 against Delaware-based Wellnx Life Sciences USA, SLIMQUICK Laboratories and Platinum US Distribution Inc., as well as Ontario-based Wellnx Life Sciences Inc., which does business as NXLabs and NXCare Inc., and Global Health Technologies over claims that the defendants’ product, SLIMQUICK Ultra Fat Burner caused Karen to sustain serious physical injuries.

    According to the complaint, Karen Jacobs-Poles went to her physician in late May 2011, about a month after she began taking the product, with complaints about scleral ictus, or yellowing of the eyes.

    The doctor tested the woman’s blood for liver function, after which Karen was told her levels were high and she should go to the emergency room of a local hospital.

    Karen ended up being diagnosed with jaundice, grossly elevated liver function tests, and acute hepatitis; a subsequent ultrasound showed that the plaintiff had an enlarged liver, according to the lawsuit.

    Karen, the suit alleges, went on to receive testing for hepatitis, HIV, Wilson’s Disease and other known causes of acute liver toxicity, and her only new exposure appeared to be her ingestion of SLIMQUICK.

    Physicians noted that Karen had “grossly abnormal LFTs in the setting of recent weight loss with use of OTC herbal remedy,” the complaint reads.

    She was subsequently referred to a gastroenterologist, who also noted that the only “culprit” appeared to be the drug supplement.

    The plaintiff immediately stopped taking the weight loss product after developing jaundice, the suit states.

    Karen had no known history of liver disease or autoimmune disease.

    The complaint states that Karen continues to suffer from serious liver damage and regularly sees a gastroenterologist.

    The lawsuit accuses the makers of Slimquick, which was first introduced around 2005, of putting a product on the market that contains ingredients known to be harmful to human health, and, in particular, toxic to the liver.

    The two ingredients singled out as being known “hepatoxins,” the lawsuit states, are camellia sinensis, or green tea extract, and Arctostaphylos uva-ursi, which is a plant that contains hydroquinone, a known liver toxin.

    “The Defendants knew, or should have known, that SLIMQUICK contained ingredients that cause injury to humans and, in particular, liver injury,” the suit reads.

    While the defendants failed to warn of the risk of liver toxicity with SLIMQUICK use, the suit states, the product’s boxes instruct users to cease ingestion if the consumer experiences nausea, abdominal pain, dark urine or jaundice.

    “These are all symptoms of liver failure, indicating Defendants were well aware of the association between SLIMQUICK and liver toxicity,” the suit states.

    The complaint contains counts of negligence, design defect, failure to warn, misrepresentation, breach of express and implied warranties, and loss of consortium.

    The plaintiffs seek more than $75,000 in compensatory and punitive damages.

    The suit was filed by Media, Pa. attorneys James C. Shah and Natalie Finkelman.

     

    The federal case number is 2:13-cv-01884-CMR.


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    A federal judge has granted a plaintiff’s motion to remand in a personal injury casegavel playing out against retail giant Wal-Mart.

    U.S. District Judge Joel H. Slomsky, sitting in the Eastern District of Pennsylvania, agreed to send a case initiated by Stephan Stewart against Wal-Mart Distribution Center and Wal-Mart Stores Inc. back to the Philadelphia Court of Common Pleas because joinder of two additional defendants destroyed the federal court’s diversity of citizenship jurisdiction.

    Stewart sued the Wal-Mart defendants in early August of last year over allegations that he cut his knuckle on March 1, 2011, while removing debris from the inside of a pallet at the company’s distribution center.

    The plaintiff had been employed by Rehrig Penn Logistics at the time, working as a pallet cleaner and sorter for the retailer’s distribution center.

    The Pennsylvania Record previously reported on the lawsuit.

    In his civil action, Stewart alleges that the defendants’ negligence caused his personal injuries, and he asserts that Wal-Mart knew or should have known about the “unreasonably dangerous” condition of the pallets at the distribution center.

    On Aug. 29, 2012, the record shows, the defendants removed the case to the U.S. District Court because, they contended, there was diversity in citizenship among the parties.

    The plaintiff subsequently filed a motion to remand, saying the matter belonged in state court because he discovered that two Wal-Mart managers may be responsible for his injuries.

    Stewart filed with the motion to remand a supplemental brief seeking to join the two managers, identified as Chris Cherry and Ed Geisler, to the litigation.

    Cherry was an operations manager and Geisler was an asset protection manager at the Wal-Mart distribution center where the plaintiff’s alleged injuries took place.

    The plaintiff’s amended complaint says that Cherry and Geisler were negligent because they knew or should have known that the distribution center was, and remained, in an unreasonably unsafe and unsanitary condition.

    Both Cherry and Geisler are Pennsylvania residents, which is why Stewart sought to remand the case back to state court in Philadelphia.

    Stewart maintained that he wasn’t seeking to join the two additional defendants “solely to destroy diversity but rather to assert meritorious causes of action against potential culpable parties,” according to the memorandum by Slomsky, the judge.

    “Plaintiff does not allege that he was unaware of the existence of Cherry and Geisler when he filed the Complaint,” Slomsky wrote. “Plaintiff contends that he was not aware of the role Cherry and Geisler played in the alleged wrongdoing at the time the Complaint was filed.”

    It wasn’t until after Stewart filed his motion to remand that the plaintiff learned of additional parties who may be responsible for his injuries, Stewart had asserted, according to the judicial memorandum.

    Slomsky agreed with the plaintiff’s argument that if joinder wasn’t granted, his lawyer would have to do “duplicative work,” since Stewart would be required to bring a separate state court action to pursue his claims against the two additional defendants.

    “In both a state and federal action, the facts and issues appear to be identical, and it would be burdensome to pursue both cases at the same time. This burden on Plaintiff will be significant and prejudicial if joinder is not permitted.”

    Slomsky, in granting remand, also noted the Third Circuit U.S. Court of Appeal’s statement that “removal statutes are generally ‘to be strictly construed against removal and all doubts should be resolved in favor of remand.’”

    In this case, the judge wrote, “the presumption of state jurisdiction … weighs in favor of granting the instant Motion for Remand.”

    The case was remanded to the Philadelphia Court of Common Pleas.


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    Defendants in a workplace injury case initiated by a tractor-trailer driver have moved

    Michael H. DiGenova

    Michael H. DiGenova

    to transfer the litigation out of Philadelphia’s Common Pleas Court and into the U.S. District Court for the Eastern District of Pennsylvania.

    Daniel Torres, who resides in Philadelphia, and was employed by Black Horse Carriers Inc., filed suit in state court early last month against Philadelphia-based The TJX Companies Inc. and The Marmaxx Group, as well as Warminster, Pa. resident Rick Goroshko and Douglassville, Pa. resident Glen Hansford, over claims that he was seriously injured on April 5, 2011, while making a delivery to a Marshall’s store in Oceanside, N.Y.

    Torres, who had picked up a haul at the defendants’ Philadelphia distribution center, was responsible for hooking up the trailer to his truck and driving the merchandise to the New York retail location.

    Upon arrival, Torres and the store’s employees had difficulty in opening the trailer because its contents, during the course of travel, had migrated to the back of the trailer, the suit states.

    The delivery bay where the trailer had to be backed in to was at a significantly sloped downward angle, the complaint states, making it difficult to access the merchandise.

    The complaint alleges that the load was not properly secured, which was the reason that the contents of the delivery trailer shifted and lodged against the trailer door.

    Torres was eventually able to open the trailer door, with the help of others, after which he was injured by falling boxes and totes, which struck the plaintiff in the head, shoulder, back and front of his body, causing a whole host of physical injuries, according to the lawsuit.

    Torres ended up sustaining injuries to his head, neck, back, body, shoulders, arms and legs, the suit states, some of which required surgical repair.

    The plaintiff also suffered from aggravation of degenerative arthritis, exacerbation of cervical disc disease, injuries to his nerves and bodily systems and other injuries.

    As a result, the plaintiff’s workers’ compensation insurance carrier had a lien for payment of medical and wage loss benefits which, as of this February, exceeded $100,000, and is expected to increase in the future, the suit states.

    As of the filing of his complaint, Torres was receiving ongoing disability benefits and regular medical treatment.

    The defendants are accused of various acts of negligence.

    The Marmaxx Group, The TJX Companies and Marmaxx Operating Corp. in particular were responsible for “every aspect” relating to selecting, placing, storing, securing, inspecting, installing, loading and opening merchandise on the trailer used by Torres, the complaint states.

    In the defendants’ petition for removal, their attorneys wrote that while Goroshko and Hansford are citizens of Pennsylvania, “their joinder to this action is tantamount to fraudulent joinder because plaintiff has failed to state a claim of action” against the two.

    The U.S. Third Circuit Court of Appeals, the attorneys stated, have determined that joinder is fraudulent if a plaintiff fails to state a claim against the non-diverse defendant or defendants.

    The motion says that nowhere in the plaintiff’s complaint are Goroshko and Hansford individually named other than as defendants in the parties’ section.

    “The reason for this unique pleading is simple: plaintiff has no valid claim against the individual defendants, Goroshko and Hansford, because they were not involved in the loading or unloading of the subject trailer that forms the basis for plaintiff’s claims,” the removal petition reads.

    The defense attorneys wrote that the plaintiff’s claims against Goroshko and Hansford, employees of the defendants, are barred under principles of Pennsylvania common law.

    “Plaintiff has failed to allege how defendants, Goroshko and Hansford, owed plaintiff any direct duty or breached any duty to him by committing any independent acts or omissions of negligence,” the defense lawyers wrote. “Rather, the only employees of the corporate defendants that owed plaintiff a duty, if any, were those who in fact loaded the subject trailer and/or opened the subject trailer.”

    Furthermore, the defense attorneys wrote that the litigation belonged in federal, not state, court because the amount in controversy exceeded the jurisdictional limit of a Pennsylvania court and because it is a civil action between citizens of different states.

    The plaintiff is being represented by Philadelphia attorney Michael H. DiGenova.

    The defendants are being represented by Philadelphia attorneys Mark A. Lockett and Kevin E. Monastra.

     

    The state case ID number is 130301681.

    The federal case number is 2:13-cv-01929-GP. 


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    A Colorado jury recently determined that helmet manufacturer Riddell failed to

    Martin Buchanan

    Martin Buchanan

    adequately warn a former football player about the dangers of concussions, with the verdict coming mere days after company lawyers sought to have Riddell severed from a nationwide class action suit against the NFL playing out in Philadelphia.

    The New York Times this week reported that the Colorado jury returned a hefty verdict against Riddell Helmets, with the country’s largest helmet manufacturer ordered to pay $3.1 million in damages to Rhett Ridolfi, a 22-year-old man who sustained a head injury back in 2008 while conducting a drill with his high school football team.

    It is not yet clear what type of effect the Colorado case, which occurred in Las Animas County District Court in Trinidad, Colo., would have on the federal class action injury case against the National Football League, but some legal observers view this as important.

    “Although this verdict appears to be an anomaly, it could indicate that juries are placing more responsibility on manufacturers to explicitly warn about the limitations of helmets,” Missouri-based attorney Paul Anderson wrote on his website, NFLConcussionLitigation.com. “In addition, judges may be more willing to allow a jury to decide whether a warning would be heeded, as opposed to deciding the case summarily on the papers.”

    Just last week, both sides in the NFL case met in court for the first time during oral arguments over the league’s motion to dismiss the litigation, which is being initiated by a large number of former players who argue the league fraudulently concealed the long-term health risks related to on-the-field head injuries.

    The players’ injury case is being handled as an MDL, or multidistrict litigation, docket being overseen by U.S. District Judge Anita Brody of the Eastern District of Pennsylvania.

    There are currently more than 4,000 plaintiffs in 200-plus individual lawsuits that have been consolidated into the MDL in Philadelphia.

    In addition to hearing arguments over the NFL’s motion to dismiss, Brody last week also listened to attorneys representing Riddell who argued that the case brought against their clients should be heard separately from the case against the NFL.

    One Riddell attorney said in court that not one plaintiff in the NFL case identified a particular helmet with a specific defect.

    The judge said that argument goes to a motion to dismiss, not a motion to sever, although the lawyer still maintained that the Riddell claims shouldn’t be lumped in with the NFL’s case brought by the former players.

    California attorney Martin Buchanan, however, said during the proceeding that joinder in a case like this is appropriate.
    “Here we have a common thread that’s running through all of these cases and that is the NFL,” he told Brody. “The duty to warn is really the verifying theme here.”

    It was not yet clear when Brody would rule on the NFL’s motion to dismiss and Riddell’s motion to sever.

    Meanwhile, in the Colorado case, a Riddell spokesman was quoted in the New York Times as saying that the company is “confident that the jury would have reached a different conclusion had the Court not erroneously excluded the testimony of our warnings expert.”

    “We intend to appeal this verdict, and we remain steadfast in our belief that Riddell designs and manufactures the most protective football headgear for the athlete,” the spokesman said, according to the Times.

    The jury in Colorado determined that Riddell’s negligence was to blame for Ridolfi’s head injuries, which led to paralysis on the left side of his body following the football drill five years ago.

    But while the jury concluded that Riddell failed to warn the plaintiff of the dangers of concussions, if also rejected claims that there were design defects in the defendant’s product.

    Riddell’s statement following the verdict said that the company was pleased that the jury found the helmet itself was not defective in any way.


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    In what seems to have become a common trend as of late, the Philadelphia District

    Philadelphia District Attorney Seth Williams

    Philadelphia District Attorney Seth Williams

    Attorney’s Office has once again made arrests in connection with alleged fraudulent personal injury claims filed against SEPTA.

    Ten people were recently charged with submitting false injury claims against the Southeastern Pennsylvania Transportation Authority stemming from an April 5, 2010, incident involving the route “C” mass transit bus.

    According to the office of Philadelphia District Attorney R. Seth Williams, the 10 commuters claimed they were injured after the exterior side view mirror of the bus came into contact with an abandoned newsstand.

    Surveillance video from the bus, however, showed that no passengers who were riding the vehicle at the time appeared disturbed or made any sudden movements as a result of the incident, the D.A.’s office announced.

    Philadelphia police did not respond to the accident scene and no one riding the bus at the time reported injuries to the driver.

    Nevertheless, Williams’ office stated, SEPTA soon received notices of personal injury claims from seven different area law firms representing the 10 defendants.

    Tasha Jamerson, spokeswoman for the D.A.’s Office, told the Pennsylvania Record that her office could not release the names of the lawyers who had filed the personal injury claims, or the law firms for which they work, because none of them had been charged with any crimes.

    The injury claims sought money from the mass transit agency for medical bills and pain and suffering.

    The medical bills included visits to emergency rooms and trips to various chiropractors’ offices, according to the prosecutor’s office.

    The settlement requests from the allegedly injured passengers sought compensation ranging from $5,000 to $225,000.

    Furthermore, Williams’ office stated, detectives with the Insurance Fraud Unit determined, through the use of surveillance video and a witness list filled out by the bus operator, that only six of the 10 people who filed the injury claims were actually on the bus at the time of the incident.

    The video on the bus also contradicted specific details of the claims that were filed by the defendants, the D.A.’s office stated.

    One of the defendants, 65-year-old Jackie Greene, resides in Montgomery County. The rest hail from Philadelphia.

    The other nine defendants are Bilah Taylor, 22, Shera Bernard, 25, David Childs, 29, Debra Smith, 52, Tonya Wells, 45, Manuel Patton, 41, Thelma Webb, 32, and Saiyd Yancey, 29.

    Assistant District Attorney Michael Kershaw and Donald Murtha, a detective with the Insurance Fraud Unit, have been assigned to the case.


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    A federal judge in Philadelphia has denied two defense motions in a products liability

    U.S. District Court Judge William H. Yohn, Jr.

    U.S. District Court Judge William H. Yohn, Jr.

    case, one to exclude the plaintiff’s expert witness testimony and another seeking summary judgment.

    The case involves Montgomery County, Pa. residents Daniel Reardon and his wife, Anita Heriot Reardon, who are suing Illinois Tool Works Inc. over injuries allegedly sustained by the husband.

    The lawsuit, which was initially filed at the Philadelphia Court of Common Pleas but later transferred to the U.S. District Court for the Eastern District of Pennsylvania, alleges claims of design defect and warning defect relative to injuries Daniel Reardon says he sustained in mid-January 2010.

    The complaint says that Reardon was working with a framing nailer manufactured by ITW when he was injured by a pneumatic injection of high-pressure gas into the skin under his right thumbnail.

    The fuel cell on the device was defectively designed because it could accidentally release high-pressure gas when users attempt to attach the metering valve, the suit alleges.

    Reardon contends he read the device’s proper instruction on attaching the metering valve at the time of the accident, and he asserts that there were no warnings to inform users that gas could be released at hazardously high pressures.

    The plaintiffs intend to use engineer Gary Sheesley as an expert, with Sheesley expected to testify that an alternative design that is economically and technically feasible could have eliminated the possibility of such hazardous release, or that ITW could have sold fuel cells preassembled with the metering valve.

    The defendant subsequently moved to have Sheesley’s testimony excluded as unreliable and, in conjunction, moved for summary judgment.

    A hearing was held on the matter in early March, the court record shows.

    In his memorandum and order, U.S. District Judge William H. Yohn wrote that he would not exclude the expert’s testimony because, “based on Sheesley’s deposition and reports, I am convinced that he has reached his conclusions through a reliable process.”

    “While Sheesley cannot point to which specific exemplar fuel cells he has manipulated, this is not a sufficient reason to discount his explanation that he was able to achieve an accidental gas release with at least some of the cells,” Yohn wrote. “Furthermore, he has drawn on his experience and knowledge as an engineer, as well as other information such as OSHA regulations and the accidental gas release that he replicated, to opine that gas could be released from the fuel cell at sufficiently high pressure to cause an injection injury.”

    Court precedence also makes clear that testing of alternative warnings is not necessary for Sheesley to testify on the warning defect claim, Yohn wrote, with an engineer allowed to opine on the necessity of a warning based on “specialized, rather than generalized, experience.”

    “Thus, I find that the method Sheesley followed in formulating his opinions is reliable and his testimony will assist the jury in determining the material facts in dispute,” the judge wrote. “Defendant can, of course, challenge his expert testimony through cross-examination and by proffering its own expert to present contrary evidence.”

    The plaintiffs are being represented by Philadelphia attorneys Thomas F. Reilly and Allan Scholler, of The Chartwell Law Offices.

    Lawyer Meaghann C. Porth, of the Wayne, Pa. firm Campbell, Campbell, Edwards & Conroy, is representing Illinois Tool Works.


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    A case involving a Philadelphia-area fast food manager who claims she broke her ankle

    Jon Michael Dumont

    Jon Michael Dumont

    after slipping on a puddle of water at her place of employment may have to proceed in federal, not state court, after defense attorneys filed a motion to transfer the litigation.

    Nicholas J. Renzi, of Adams Renzi Law in Philadelphia, filed a personal injury complaint at the Philadelphia Court of Common Pleas on April 2 on behalf of his client, city resident Benet Moultrie-Long and her husband, Curtis Long.

    The suit alleges that Benet Moultrie-Long sustained an ankle fracture that required surgery after she slipped on a puddle of water at the KFC restaurant that she managed on May 27, 2011.

    On that same day, employees with Temple, Texas-based McLane Foodservice Inc. and McLane Company had delivered frozen items to the fast food restaurant, which is located in Conshohocken, Montgomery County.

    In her lawsuit, the plaintiff claims she sustained the ankle fracture, contusions, abrasions, lacerations and nerve damage, as well as trauma, mental upset, anguish and humiliation.

    This week, attorney Jon Michael Dumont, of the Philadelphia firm Rawle & Henderson, filed a petition with the U.S. District Court in Philadelphia seeking to move the litigation to that venue.

    The defense lawyers contend that in reading the plaintiff’s lawsuit, it appears damages would exceed the $50,000 jurisdictional limit at the Court of Common Pleas.

    The petition to transfer also says that the matter should be handled in federal court because there is diversity in citizenship between the parties.

     

    The state case ID number is 130400322.

    The federal case number is 2:13-cv-02013-RB.


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    A Philadelphia trial court judge this week docketed an opinion outlining why she believes

    Philadelphia Common Pleas Court Judge Frederica A. Massiah-Jackson

    Philadelphia Common Pleas Court Judge Frederica A. Massiah-Jackson

    her order denying a motion to transfer venue in a personal injury case against Comcast should be affirmed.

    On April 17, Philadelphia Common Pleas Court Judge Frederica A. Massiah-Jackson denied a motion by defendant Comcast of Southeast Pennsylvania to transfer a case initiated by Rose and Jeff Thomas to Bucks County.

    The couple filed their suit against Comcast in November 2012 at Philadelphia’s Common Pleas Court over allegations that Rose Thomas became injured when she was pinned against her garage door by a Comcast van.

    The plaintiff had attempted to assist a Comcast technician to push his work van out of her driveway at the time of the incident.

    Rose Thomas claims she sustained serious injuries in the incident.

    Comcast subsequently filed a motion to transfer the litigation to the Bucks County Court of Common Pleas, because, it asserted, it regularly does business in Bucks and not Philadelphia.

    The cable company argued that the Philadelphia Court of Common Pleas would be a forum non conveniens, because that location is both oppressive and vexatious.

    Massiah-Jackson, however, had ruled that Comcast failed to meet its burden of proof in requesting transfer.

    “A Trial Court must consider whether the defendant has demonstrated more than that the plaintiff’s chosen forum is merely inconvenient,” Massiah-Jackson wrote. “In this case, there has not been any suggestion that Plaintiff-Thomas’ choice of forum was designed to harass the defendant. Nor has this Defendant established that traveling from Bucks County to Philadelphia is onerous.”

    The judge went on to write that case law is clear that “conclusory assertions of oppressiveness or vexation, without detailed information can not satisfy Defendant-Comcast’s burden.”

    Massiah-Jackson also wrote that not one of Comcast’s public interest factors presents a compelling reason to transfer the case to Bucks County, since “it is well-settled that a plaintiff’s choice of forum should rarely be disturbed,” and because of the fact that lawyers are routinely required to travel to examine case documents and records regardless.

    “No matter where this case proceeds the defendant will have to travel to bring evidence to the courthouse,” the judge wrote. “The Philadelphia Metropolitan Area has many major highways to provide ease of travel for all witnesses.”

    The judge also wrote that Comcast was provided an opportunity to develop its record in support of its motion to transfer venue by court order in late January, and that it declined to do so when Comcast chose not to present a corporate designee with particularized knowledge relating to where Comcast LLC conducts business and other venue-related issues.

    In the end, Massiah-Jackson urged the state’s Superior Court to uphold her denial to transfer venue.


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    U.S. District Judge Cynthia Rufe, of the Eastern District of Pennsylvania, recently granted

    U.S. District Judge Cynthia M. Rufe

    U.S. District Judge Cynthia M. Rufe

    a motion by two health insurers to remand their respective Avandia drug cases to the Philadelphia Court of Common Pleas.

    The decision by Rufe doesn’t mean the lawsuits won’t ever end up being removed to the federal courthouse, where an ongoing Avandia Multidistrict litigation has been consolidated, but due to a technicality, the complaints are headed back to the civil justice division at Philadelphia City Hall.

    The two plaintiffs in the case, UnitedHealth Group Inc. and Humana Health Plan Inc., sought remand because the cases were commenced by the filing of a praecipe to issue writ of summons for the purpose of taking pre-complaint interrogatories.

    Essentially, a praecipe to issue write of summons is a pre-litigation maneuver that signals pending litigation.

    A writ itself, however, is not an actual complaint, and in her memorandum and order, which was dated April 17, Rufe sided with the two health insurers in deciding that removal to the federal court of the two lawsuits was premature.

    The record shows that in their respective pre-complaint interrogatories, the two health insurance companies stated, “in nearly identical language,” their intentions to sue GlaxoSmithKline and other drug companies seeking declaratory judgment pertaining to the plaintiffs’ subrogation and reimbursement rights; recovery from GSK in subrogation of their expenses of treating the adverse health outcomes its members experienced associated with Avandia; and reimbursement from their health plan members who were Avandia or Paxil claimants and had settled their claims.

    UnitedHealth also stated that it intended to sue on behalf of itself and other similarly situated health plans, according to Rufe’s memorandum.

    GlaxoSmithKline, however, removed the cases to the federal venue, arguing that the interrogatories made clear that the claims to be asserted are within the purview of the federal court system pursuant to the Employee Retirement Income Security Act, the memorandum states.

    The two plaintiffs, however, maintained that because no actual complaints had been filed, the defendants’ removal was premature under the Federal Rules of Civil Procedure.

    Citing Third Circuit precedence, Rufe agreed, writing that a mere summons cannot serve as an “initial pleading” for the purposes of triggering the clock for removal to federal court.

    “The [Third Circuit] ruling has been interpreted in this District to mean that ‘removal is not proper until a complaint has been served on the defendants,” Rufe wrote. “Accordingly, because Plaintiffs here have not served a complaint, Defendants’ notice of removal was not too late, it was too early.”

    Rufe went on to write that while the court “appreciates that it appears likely that once complaints have been filed the state court actions will be removable on the basis of federal question jurisdiction,” the actual complaint itself is the “operative document” for removal to federal court, and until a complaint has been filed in state court, any removal is premature.

    In her memorandum and order, Rufe simultaneously denied UnitedHealth’s motion for counsel fees, writing that under the circumstances of these cases, including the likelihood of eventual federal jurisdiction, “the Court finds that GSK had a colorable basis for its actions and that an award of costs and fees is not warranted.”


    0 0

    A Florida man who had a history of working with products containing asbestos dust and

    Kevin Mulderig

    Kevin Mulderig

    fibers has filed a mass tort complaint at the Philadelphia Court of Common Pleas over allegations that his asbestos exposure was the factual cause of his January lung cancer diagnosis.

    Frank Kozlowski and his wife, Marie, of Melbourne Beach, Fla., filed a short-form complaint in the master asbestos litigation docket in Philadelphia on April 26 against 17 companies that the plaintiffs claim owe them damages due to Frank’s recent medical diagnosis.

    The lawsuit, filed by attorney Kevin Mulderig, of the Cherry Hill, N.J. firm Weitz & Luxenberg, says that Frank Kozlowski, who was a pack-a-day smoker from 1957 to 2006, was diagnosed as having lung cancer by his Florida physician on Jan. 21 of this year.

    Aside from working as a laborer in the City of Brotherly Love for a brief period of time from 1959 to 1962, it doesn’t appear as though the plaintiff has a strong connection to Philadelphia.

    According to his work history, Frank Kozlowski, in addition to his time as a Philadelphia laborer, also worked at the Portsmouth Naval Yard in New Hampshire from 1963 to 1967, and he did auto work at Ed Roth & Sons in Glassboro, N.J. in 1968.

    Furthermore, the work history shows, Frank engaged in additional automobile work in West, N.J. and Franklinville, N.J. throughout the 1970s, and he spent time working at both the Bremerton Naval Yard and Naval Station Norfolk during the early-to-mid 1960s.

    The following defendants are named in the complaint: Air & Liquid Systems Corp., Aurora Pump Co., Borg-Warner Corp., Byron Jackson Pumps, CertainTeed Corp., Dana Companies LLC, Foster Wheeler LLC, General Electric Co., Georgia Pacific LLC, Honeywell International Inc., IMO Industries Inc., Maremont Corp., Metropolitan Life Insurance Co., Owens-Illinois Inc., Pneumo Abex LLC, and Warren Pumps LLC.

    The plaintiffs seek damages as set forth in the master asbestos litigation at Philadelphia’s Common Pleas Court.

    The case ID number is 130404113. 


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