The Legal Intelligencer LI Top Verdicts 2015 June 21, 2016 : Page 3
VerdictSearch’s Top PA Verdicts of 2015 • 3 CONTENTS Top Case Summaries ......................................... 3 Top PA Verdicts of 2015 .................................... 4 Top PA Settlements of 2015 .............................10 Top PA Decisions of 2015 ...................................... 18 Top 2015 Verdicts by Category ....................... 20 VP and Group Publisher Hal M. Cohen Associate Publisher – Sales Donald Chalphin IT Director Brian R. Harris Law Firm Account Manager Lana J. Ehrlich TOP CASE SUMMARIES ANTITRUST Cephalon Agrees to Record Settlement in Pay-for-Delay Case Amount: $1.2 Billion Type: Settlement Case Type: Antitrust Case Name: Federal Trade Commission v. Cephalon Date: June 9, 2015 Court and Case Number: E.D. Pa. No. 2:08-cv-02141-MSG. Judge: Mitchell S. Goldberg. Type of Action: Injuries: Monetary damages. Plaintiffs Counsel: • Markus Meier, Bradley S. Albert, Lisa S. Blatt, Saralisa C. Brau, Walter Wayne Brown, Daniel Butrymowicz, Llewellyn Davis, Richard A. Feinstein, Alpa D. Gandhi, Garth Huston, Jon J. Nathan, Lauren K. Peay, Michael Perry, J. Maren Schmidt, Abigail Slater, Timothy J. Slattery, Dominic Edward Vote, Daniel J. Walker and Matthew B. Weprin, U.S. Federal Trade Commission, Washington D.C. • John Robert Robertson, Hogan Lovells, Washington, D.C. Defense Counsel: • James C. Burling, Mark A. Ford, Peter J. Kolovos, Michelle D. Miller, Elizabeth M. Ryan, Peter A. Spaeth, Gregory P. Teran, Yin Zhou, Andrew J. Ewalt, Eric J. Mahr, Mary J. Edwards, Emily R. Whelan and Robert J. Gunther Jr., Wilmer Cutler Pickering Hale & Dorr, Boston, Washington D.C. and New York City. • David J. Creagan and David E. Edwards, White & Williams, Philadelphia. • Frank R. Emmerich, Nancy J. Gellman and John A. Guernsey, Conrad O’Brien, Philadelphia. Comment: The Federal Trade Commission’s biggest settlement to date—$1.2 billion in a pay-for-delay case—came out of federal court in Philadelphia. Cephalon, now owned by Teva Pharmaceutical Industries, agreed to settle a suit filed by the FTC in 2008 over the company’s reverse-payment arrangements with generic drugmakers. Reverse-payment settlements are the deals made by major pharmaceutical companies with generic drugmakers in order to keep the cheaper drugs off the market and, in this case, Cephalon had made deals with four generic drugmakers ranging from $25 million to $164 million to protect its name-brand wakefulness drug called Provigil. The judge handling the case, U.S. District Judge Mitchell S. Goldberg of the Eastern District of Pennsylvania, has to approve the settlement before it is final. Although Markus Meier, the FTC’s lead attorney on the case, wasn’t sure how long it would be before the judge would rule, he said he didn’t expect that Goldberg would wait too long. Top Pennsylvania Verdicts of 2015 Note: These charts are based on cases reported by VerdictSearch, an affiliate of The Legal Intelligencer . These verdicts are reported as issued after trial. The summaries and listings do not include whether post-trial motions or appeals have been decided or are pending. The list includes awards involving injuries only to one party in each case and claims that derive from those injuries. VerdictSearch’s Top Verdicts of 2015 is published by ALM Media, LLC 120 Broadway, New York, NY 10271 Continued on Page 5 >
Top Case Summaries
Cephalon Agrees to Record Settlement in Pay-for-Delay Case
Amount: $1.2 Billion
Case Type: Antitrust
Case Name: Federal Trade Commission v. Cephalon
Date: June 9, 2015
Court and Case Number: E.D. Pa. No. 2:08-cv-02141-MSG.
Judge: Mitchell S. Goldberg.
Type of Action:
Injuries: Monetary damages.
• Markus Meier, Bradley S. Albert, Lisa S. Blatt, Saralisa C. Brau, Walter Wayne Brown, Daniel Butrymowicz, Llewellyn Davis, Richard A. Feinstein, Alpa D. Gandhi, Garth Huston, Jon J. Nathan, Lauren K. Peay, Michael Perry, J. Maren Schmidt, Abigail Slater, Timothy J. Slattery, Dominic Edward Vote, Daniel J. Walker and Matthew B. Weprin, U.S. Federal Trade Commission, Washington D.C.
• John Robert Robertson, Hogan Lovells, Washington, D.C.
• James C. Burling, Mark A. Ford, Peter J. Kolovos, Michelle D. Miller, Elizabeth M. Ryan, Peter A. Spaeth, Gregory P. Teran, Yin Zhou, Andrew J. Ewalt, Eric J. Mahr, Mary J. Edwards, Emily R. Whelan and Robert J. Gunther Jr., Wilmer Cutler Pickering Hale & Dorr, Boston, Washington D. C. and New York City.
• David J. Creagan and David E. Edwards, White & Williams, Philadelphia.
• Frank R. Emmerich, Nancy J. Gellman and John A. Guernsey, Conrad O’Brien, Philadelphia.
The Federal Trade Commission’s biggest settlement to date—$1.2 billion in a pay-fordelay case—came out of federal court in Philadelphia.
Cephalon, now owned by Teva Pharmaceutical Industries, agreed to settle a suit filed by the FTC in 2008 over the company’s reverse-payment arrangements with generic drugmakers.
Reverse-payment settlements are the deals made by major pharmaceutical companies with generic drugmakers in order to keep the cheaper drugs off the market and, in this case, Cephalon had made deals with four generic drugmakers ranging from $25 million to $164 million to protect its name-brand wakefulness drug called Provigil.
The judge handling the case, U.S. District Judge Mitchell S. Goldberg of the Eastern District of Pennsylvania, has to approve the settlement before it is final.
Although Markus Meier, the FTC’s lead attorney on the case, wasn’t sure how long it would be before the judge would rule, he said he didn’t expect that Goldberg would wait too long.
The case had been scheduled to go to trial in June.
In a prepared statement, FTC chairwoman Edith Ramirez said, “Today’s landmark settlement is an important step in the FTC’s ongoing effort to protect consumers from anti-competitive pay-for-delay settlements, which burden patients, American businesses and taxpayers with billions of dollars in higher prescription drug costs. Requiring wrongdoers to give up their ill-gotten gains is an important deterrent.”
Goldberg had ruled on the issue of whether the FTC would be able to go after six years of profits by pursuing disgorgement—it could, he ruled.
When the FTC filed its suit in 2008, it had initially only sought injunctive relief to keep Cephalon from enforcing the settlements and making new ones in the future.
But, following Goldberg’s 2011 finding in a related case that Cephalon’s patent for the active ingredient in Provigil was invalid, and the entry into the market of a generic version of the drug a year later, the FTC was prompted to change course and pursue disgorgement, according to Goldberg’s opinion on that issue.
“The FTC persuasively argues that the finding that Cephalon procured its patent by fraud as well as the entry of generic Provigil into the market in 2012 are ‘dramatic changes in circumstances since it brought its case’ and necessitate a change in the relief requested,” Goldberg said.
Cephalon had objected to the change, making several arguments, primarily that the section of the FTC Act under which the case was brought doesn’t allow the commission to seek equitable monetary relief.
That didn’t persuade the judge; he ruled the FTC would be allowed to pursue disgorgement.
The question of how disgorgement should be used has not had a unified answer from the five commissioners of the FTC—three Democrats and two Republicans.
Although all five voted to accept this settlement and to use disgorgement as a remedy, the two Republican commissioners wrote a separate statement.
“Notwithstanding our support for obtaining disgorgement in this case, we continue to have significant concerns about the commission’s use of this powerful remedial tool without commission guidance about when it will seek this remedy,” Commissioners Maureen Ohlhausen and Joshua Wright said in their statement, calling for guidance from the FTC for the firms that it regulates on when it will seek disgorgement in antitrust cases.
—The Legal Intelligencer
Com-Net Claimed Tyco Owed It Millions Under Buyout Terms
Venue: Allegheny County Court of Common Pleas
Case Type: - Fraud, Misrepresentation, Breach of Contract
Case Name: Steven Savor, individually and as attorney-in-fact for and shareholders’ representatives of the former shareholders of Com-Net Critical Communications Inc. v. M/A-Com Tech Holdings Inc. f/k/a Tyco Acquisitions Corp. XVIII, M/A-Com Inc., and Tyco Electronics Corp. Inc.,
Date: July 13, 2015
Court and Case Number: C.P. Allegheny, No. GD-06-008926
• Kimberly A. Brown, Thomas S. Jones, Margaret C. Gleason, Kevin C. Meacham, Jones Day; Pittsburgh, PA, for Steven Savor
• Thomas R. Ajamie; Ajamie LLP; Houston, TX, for M/A-Com Inc., Tyco Electronics Corp., M/A-Com Tech Holdings Inc.
• Angelica R. Shepard; K&L Gates LLP; Pittsburgh, PA, for M/A-Com Inc., Tyco Electronics Corp., M/A-Com Tech Holdings Inc.
On March 30, 2001, plaintiff Steven Savor, CEO of Com-Net Critical Communications Inc., agreed to allow the company to be acquired for $280 million by Tyco Acquisition Corp. XVIII, through a stock-purchase agreement.
At the time, Com-Net’s subsidiary was in the process of building and maintaining a statewide law-enforcement radio system for the State of Florida. The system was scheduled to be completed within three years and would enable the state’s law enforcement and public safety officials to communicate with each other throughout the state.
When Tyco purchased Com-Net, it agreed to pay for the stock in three ways: a $180 million payment on the day the deal closed, a $20 million payment on the first anniversary of the deal, and a $100 million payment (later reduced by agreement to $80 million) when the Florida system was completed, with a possible reduction for any overspend if the project cost more than $124 million to complete.
According to Savor, who was the appointed representative for Com-Net shareholders, Tyco agreed to pay $280 million for all of Com-Net’s stock, but payment of $80 million of the purchase price was deferred until completion of the Florida communications system. The closing on the sale of the Com- Net stock to Tyco occurred on May 14, 2001. At that time, Tyco and its subsidiary, M/ACom Inc., became responsible for completing the Florida communications system. Tyco Electronic Corp. issued a guaranty for the payments and other obligations owed to the Com-Net shareholders under the stockpurchase agreement.
Savor, however, claimed that Tyco refused to pay the $80 million owed to Com-Netformer shareholders under the stockpurchase agreement. He asserted that certain costs, including the costs for 30 additional radio-frequency tower sites, could not be included in the overspend calculation, because Tyco had failed to obtain his consent prior to adding them to the system.
Savor sued Tyco, M/A-Com, and Tyco Electronic Corp., alleging that the companies were negligent in breach of the stock purchase agreement and a separate guaranty. (Savor also sued the companies on claims of fraud and negligent misrepresentation, but those claims were dismissed, prior to trial.)
Savor’s expert in radio engineering, who evaluated what had occurred during the buildout of the system under Tyco, testified about the changes, defects, and mismanagement.
According to M/A-Com and Tyco’s counsel, although Com-Net had initially estimated it would take 134 radio-frequency tower sites to meet the required 98 percent coverage, Com- Net had agreed in its contract with the State of Florida to provide as many radio-frequency sites as needed to meet the coverage commitment. Before the stock-purchase agreement was signed, Com-Net learned its initial estimate of 134 radio-frequency tower sites was based on flawed modeling, and that additional radio-frequency tower sites would be required to meet the 98 percent coverage guarantee. Before the stock-purchase agreement closed, Com-Net had abandoned its initial 134 radio-frequency-site design, added two radio-frequency sites to the design, and knew additional radio-frequency sites would be required to meet the 98 percent coverage guarantee.
Tyco ultimately completed the Florida radio system, and in 2010, the company obtained written confirmation from the State of Florida that the system met the requirements of the Florida contract, including the 98 percent coverage requirement. To meet the coverage requirement required more than 164 radiofrequency sites -- 30 more than initially estimated by Com-Net. It cost Tyco more than $218 million to meet the contract’s coverage and other obligations, almost double the amount initially estimated by Com-Net.
Tyco contended that, under the overspend calculation, the final payment of $80 million was exhausted.
M/A-Com and Tyco asserted that Savor could not recover on behalf of the other former Com-Net shareholders, because they did not appear as parties in the lawsuit.
The engineers and project managers who worked on the Florida project testified that the work they performed in either designing or building out the Florida communications system (including the use of 164 radiofrequency towers) was necessary to meet the requirements of the Florida contract, including the 98 percent coverage guarantee. M/A-Com and Tyco’s experts in engineering agreed.
Savor, on behalf of Com-Net shareholders, sought $80 million in damages, plus prejudgment interest.
Savor’s expert in finance opined that the accounting changes made by Tyco were inconsistent and improper with the stock purchase agreement.
M/A-Com and Tyco’s expert in accounting testified that lease costs should be included in the overspend calculation under generally accepted accounted principles. The expert also testified that the reclassification of certain expenses after an accounting conversation was normal and proper. (Savor’s expert in financing countered that these costs should not be included in the overspend calculation.)
The court found that M/A-Com and Tyco owed $80 million to Savor, the shareholders’ representative. The court determined that, since Tyco delayed completion of the communications system until 2010, when it could have been done in 2005, $45,751,232.88 in interest, dating back to Jan. 1, 2006, was awarded to Savor.
According to the court, $55.9 million of the total cost was improperly included in Tyco’s calculations under the stock-purchase agreement’s requirement for consent for certain costs incurred and a setoff of only specified, “reasonable and necessary costs.” The court concluded that there was no overspend, and Savor, on behalf of Com-Net shareholders, was due the entire $80 million holdback, plus interest.
The court determined that would receive $1,117,808.22 in pre-judgment interest. The case is on appeal.
This report is based on information that was provided by plaintiff’s and defense counsel.
Penn State Agrees To Pay to Settle NCAA Dispute
Amount: $60 Million
Venue: Commonwealth Court
Case Type: Constitutional, Contractual.
Case Name: Corman v. The National Collegiate Athletic Association
Date: Jan. 16, 2015
Court and Case No.:Commonwealth Court, 1 MD 2013.
• Matthew H. Haverstick and Stephen C. MacNett, Conrad O’Brien, for Corman; Christopher B. Craig, chief counsel, for McCord.
• Donald Remy, NCAA chief legal officer, Everett Johnson, Latham & Watkins, Washington, D.C., and Thomas W. Scott, Killian & Gephart, Harrisburg, for the NCAA.
• Daniel I. Booker and Donna M. Doblick, Reed Smith, Pittsburgh, for Penn State University.
• Matthew M. Haar, Saul Ewing, Harrisburg, for Penn State University.
On Jan. 16, state officials, the National Collegiate Athletic Association and Penn State University announced they had reached a settlement in the dispute over the validity of a consent decree the athletic body imposed on the university that included a $60 million penalty.
As part of the settlement, Penn State agreed to commit $42 million to the state to provide services for child-abuse victims, and $18 million to create an endowment for expanding research, education and public service regarding sexual abuse, the university announced. The agreement additionally restored Penn State’s vacated wins from 1998 through 2011 under former head football coach Joe Paterno, and lifted all other punitive sanctions. The penalties had been imposed on the university in the wake of the Jerry Sandusky sex-abuse scandal.
According to court documents, state Sen. Jake Corman, R-Centre, and state Treasurer Rob McCord jointly filed a second amended complaint against the NCAA in the Commonwealth Court in March 2013, arguing that Penn State’s $60 million fine should be deposited into the state’s Institution of Higher Education Monetary Penalty Endowment Trust Fund, which was established in February 2013 when Gov. Tom Corbett signed the Endowment Act into law. The fund is maintained in the state Treasury.
In September 2013, the Commonwealth Court found that Corman and McCord had standing to sue the NCAA over the fines, and that the recently enacted Endowment Act was not unconstitutional. The court, however, also found that Penn State was not an indispensable party that should be joined in the suit.
The Commonwealth Court twice affirmed the constitutionality of the Endowment Act, but the focus of the dispute, however, changed in April, after Commonwealth Court Judge Anne E. Covey called for a hearing into the validity of the consent decree as a whole.
Covey specifically noted that the NCAA’s answer and new matter said that Penn State received considerations as a party to the consent decree, that the NCAA observed the principles of its constitution and bylaws, that it was justified to enter into the decree and that it acted in good faith.
The NCAA, however, maintained that the ruling expanded the scope of the litigation.
The matter appeared to be on its way to a resolution by September 2014, but in October, the Commonwealth Court denied the NCAA’s unopposed motion to dismiss the case, saying the NCAA and Penn State were seeking to “usurp” the court’s authority.
Trial had been scheduled for early February.
The announcement on the proposed settlement came three days after a federal judge tossed a parallel suit that had been filed by the NCAA in the U.S. District Court for the Middle District of Pennsylvania. That suit, NCAA v. Corbett, alleged that the Endowment Act was unconstitutional.
—The Legal Intelligencer
Drugmakers Settle With US Over Underpaid Medicaid Rebates
Amount: $54 Million
Venue: U.S. Eastern District, Pa.
Case Name: Streck v. Allergan Settlement
Date of Settlement: July 8, 2015.
Court and Case No.: E.D.Pa.; 2:08-cv-05135.
Type of Action: Qui tam.
Injuries: Lost revenue.
• Benjamin C. Mizer, U.S. Department of Justice, Washington, D.C.
• Todd Collins, Berger & Montague, Philadelphia.
• Laena P. Keyashian, Covington & Burling, New York.
• Alison Tanchyk, Morgan, Lewis & Bockius, Miami.
Pharmaceutical companies AstraZeneca and Cephalon have agreed to pay the U.S. government and several states a combined total of $54 million to settle claims that they underpaid rebates owed under the Medicaid Drug Rebate Program, according to the U.S. Department of Justice.
Specifically, AstraZeneca is set to pay $46.5 million plus interest; $26.7 million of that will go to the government while the remainder will go to states participating in the settlement. Cephalon, in a separate settlement from the same case, is set to pay $7.5 million plus interest to resolve similar claims, of which $4.3 million will go to the government while the rest is distributed among the participating states. In total, 12 states are part of the settlement.
Additionally, drug company Biogen has settled with whistleblower Ronald Streck— who alleged the companies defrauded the U. S. government and states by underpaying Medicaid rebates—for $1.5 million, according to a settlement agreement. The docket reflects that Biogen had been terminated from the litigation June 18.
“The Medicaid Drug Rebate Program relies on drug manufacturers reporting accurate pricing information used in the rebate calculations,” said principal deputy assistant attorney general Benjamin C. Mizer—the head of the Justice Department’s Civil Division—in a DOJ release. “These settlements demonstrate the Department of Justice’s commitment to ensuring that state Medicaid programs receive the full amount of rebates from manufacturers that Congress intended.”
AstraZeneca’s attorney, Laena P. Keyashian of Covington & Burling in New York, declined to comment. Alison Tanchyk of Morgan, Lewis & Bockius, representing Cephalon, did not immediately return a call seeking comment. A call to Biogen’s media office was not immediately returned.
Todd Collins of Berger & Montague, one of the firms representing Streck, said the settlement came at the end of a long road.
“We have been fighting this litigation for years; we still have more ahead of us,” Collins said. “We think these are important issues which put some money into the treasury and hopefully can serve as a reminder to anyone in the future who wants to put his thumb on the scale and charge too much, in this case underpay rebates.”
According to the DOJ, drug companies must pay quarterly rebates to state Medicaid programs in exchange for Medicaid coverage of the companies’ drugs. Those rebates, the DOJ said, are partially based on the average manufacturer prices, or AMPs, that drugmakers report to the government for each of their covered drugs.
“Generally, the higher the reported AMP for a drug, the greater the rebate the manufacturer pays to state Medicaid programs for the drug,” the DOJ said in a written statement. “These settlements resolve allegations that AstraZeneca and Cephalon underreported AMPs for a number of their drugs by improperly reducing the reported AMPs for service fees they paid to wholesalers. As a result, the government contends that AstraZeneca and Cephalon underpaid quarterly rebates owed to the states and caused the United States to be overcharged for its payments to the states for the Medicaid program.”
According to Collins, the government has not yet released Biogen from litigation, despite its settlement with Streck.
—The Legal Intelligencer
Investors Awarded For Adviser’s Fiduciary Breaches
Amount: $48.4 Million
Venue: American Arbitration Association
Case Type: Breach of fiduciary duty, misrepresentation.
Case Name: Sutow v. Family Endowment Partners
Date: April 14, 2015.
Court and Case No.:American Arbitration Association, 14-20-1300-0979.
Injuries: Financial losses.
• Glenn S. Gitomer and Garth G. Hoyt, McCausland, Keen & Buckman, Radnor.
• Robert S. Friedman, Mark E. McGrath and Thomas M. Monahan, Sheppard, Mullin, Richter & Hampton, New York, New York.
An arbitrator awarded two investors more than $48.4 million for the alleged misrepresentations of a registered investment adviser and investment firm that the claimants’ counsel said bordered on a Ponzi scheme.
The award against Family Endowment Partners LP and partner Lee D. Weiss included $17.4 million in actual damages, $990,705 in attorney fees and costs, and $30 million in treble damages. Philip S. Cottone of the American Arbitration Association issued the arbitration award.
According to the arbitration award, the claimants, James and Jane Sutow, filed the demand for arbitration against Family Endowment Partners and Weiss over $20 million in investments that the investment advisory firm had recommended. The Sutows sought damages under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL).
The case had been docketed in the Eastern District of Pennsylvania—which issued an order confirming the award April 14—and had been arbitrated in Malvern in the fall of 2014 into the winter of 2015.
The Sutows, who are Pennsylvania residents, alleged the recommendations were negligent and unsuitable, and that Weiss failed to disclose personal interests he had in some of the companies he recommended for investment, including a Polish tobacco distribution company that was said to be “technically insolvent” by one of the Sutows’ experts.
Cottone also said in the arbitration award the financial advisers had recommended the Sutows make loan payments to a company that had acquired the tobacco distributor, despite the fact that the acquiring company was not current on previous loan payments.
“As a result, they put up additional money to pay themselves the past due amounts that they were owed,” Cottone said, noting the Sutows’ counsel had referred to this practice as “akin to a Ponzi scheme.”
Cottone awarded the Sutows rescission damages under the Pennsylvania Securities Act, and said they were also entitled to treble damages under the UTPCPL.
In the arbitration award, Cottone noted that Weiss testified for nearly six of the 13 days of hearings, and James Sutow testified for three.
According to Cottone, the financial advisers contended Sutow was a sophisticated businessman, who tasked them with managing a diverse portfolio, and that they had no discretion to make purchases, but only recommendations.
The firm and Weiss additionally argued that brokers only owe clients limited fiduciary obligations, and that suggestions regarding non-discretionary trade do not give rise to a fiduciary duty.
However, Cottone said that, as registered investment advisers, Weiss and the firm had a fiduciary duty, and they breached that duty.
Cottone said that, among other things, Weiss did not disclose that he was a longtime acquaintance with the head of the company that had acquired the Polish tobacco distributor, and that Weiss was unable to show specifically what information he gave the Sutows regarding recommended investments in related companies.
Gordon Yale, an accounting expert for the Sutows, also testified that some of the expectations about the companies the advisers recommended were unrealistic and showed a lack of due diligence, according to Cottone.
Cottone also said the legal instruments that Weiss and the firm recommended for signature were worse than “amateurish,” and “seem to have been done on the back of an envelope.”
“At best they are ‘amateurish’ and at worst they are designed to give the obligor a decided advantage in the event of default,” Cottone said.
The financial advisers used Stanley I. Fortgang as their expert, Cottone said. But Cottone added Fortgang’s testimony was “very revealing in what he did not say.”
“In fact, he was not asked to opine on the issues of disclosure, suitability or due diligence,” Cottone said. “The fact that he was not asked to do that, and that no other experts were offered on those subjects, speaks volumes.”
—The Legal Intelligencer
Fatal Shooting Could Have Been Stopped By Guards
Venue: Philadelphia County Court of Common Pleas
Case Type: Wrongful Death, Intentional Torts, Assault, Battery, Worker/Workplace Negligence, Negligent Infliction of Emotional Distress
Case Name: Khaalid Amir Wilson and Gabriel DeShawn Wilson, co-administrators of the Estate of Tanya Renee Wilson, deceased v. U. S. Security Associates Inc. and Yvonne Hiller / Paul H. Masciantonio, esquire, administrator of the Estate of LaTonya Brown, deceased v. U.S. Security Associates Inc. and Yvonne Hiller, No. 111000971; 111200653
Date: March 30, 2015
• Shanin Specter, Dominic C. Guerrini; Patrick J. Fitzgerald, Kline & Specter, P.C.; Philadelphia, PA, for Khaalid Amir Wilson, Paul H. Masciantonio, Gabriel DeShawn Wilson, Estate of LaTonya Brown, Estate of Tanya Renee Wilson
• Robert G. Devine and Michael W. Horner, White and Williams LLP; Philadelphia, PA and Cherry Hill, NJ for U.S. Security Associates Inc.
• Jay L. Edelstein; Edelstein Law, LLP; Philadelphia, PA, for U.S. Security Associates Inc.
On Sept. 9, 2010, plaintiffs’ decedents Tanya Renee Wilson, 47, and LaTonya Brown, 36, were fatally shot by a suspended coworker, Yvonne Hiller, at a bakery plant in Northeast Philadelphia.
Earlier that evening, Hiller had initiated a noisy and disruptive quarrel with the two women, then had been suspended from her job. A security supervisor escorted Hiller from the building to the bakery’s courtyard, where she was permitted to smoke a cigarette unattended. Afterward, she walked unescorted through the plant’s security-guard post and then to her car.
According to the decedents’ estates, after sitting in her car for several minutes, she retrieved a .357 Magnum from under the car seat and drove back to the security post. She threatened the guards with the gun. The security supervisor ran out the back door of the post, and the other guard dropped to the floor.
They allowed Hiller to pass the security post and re-enter the building. She walked through the large facility to a break-room on the third floor, where she shot Brown in the right arm and chest and shot Wilson in the neck. Both women died at the scene. (A third coworker survived after being shot.)
Hiller was sentenced to two consecutive life terms without parole.
Brown and Wilson’s estates sued Hiller and U.S. Security Associates Inc. (USSA), the company hired to provide security at the plant, on claims of negligence, negligent infliction of emotional distress (which was later withdrawn), assault, battery, and false imprisonment. Both estates sought recovery for damages under the Wrongful Death and Survival Acts.
Surveillance footage was played at trial which showed Hiller walking through the security post and threatening the guards with the gun. The footage also depicted the security supervisor fleeing the post and the other security guard falling to the floor, pacing back and forth, and unsuccessfully attempting to call 911 on the company phone. Some minutes later, the security guards called emergency services using their cell phones.
The estates’ counsel contended that USSA’s guards failed to protect the lives of the employees at the bakery. Specifically, USSA guards believed Hiller to be “psychotic” but failed to perform a proper escort of Hiller to her vehicle upon her suspension and failed to ensure she had left the premises.
The estates claimed that when Hiller had returned with a gun, the guards had abandoned their post and failed to warn employees in the plant that Hiller had returned and was armed, whether by the plant-wide public address system, telephone, or walkietalkie radio. One guard also refused a request for information made by a plant manager as to Hiller’s whereabouts, claiming that he could not talk. The estates’ counsel maintained that the guards had been undertrained and unprepared for an active, workplace shooter situation, such as this incident.
USSA’s counsel denied liability, arguing that the company’s security officers acted reasonably by calling 911 within a few minutes of Hiller’s return with a gun.
The two guards recounted the incident and discussed the emotional distress they endured from the incident.
The defense maintained that, given the panic and emotional trauma the guards had experienced, they acted to the best of their abilities.
Brown is survived by four children, and Wilson is survived by three.
The estates’ expert in forensic pathology testified about the pain and suffering which Brown and Wilson experienced that evening. According to the expert, their first reaction was fear when they saw Hiller’s gun being raised toward them, and they reflexively sought to flee. Because flight was not possible, Brown and Wilson experienced a “cascade” of mental anguish accompanied by physical manifestations, including faster heart rates, generalized muscle spasms, and mental pain and anguish, followed by chemical somatic pain throughout their bodies. The expert also testified as to the trauma they experienced as a result being shot, including the conscious physical pain and suffering, and the state of shock. The expert opined that Brown and Wilson were fully conscious until dying of a slow bleed five to 10 minutes after being shot.
The estates sought recovery under the Wrongful Death and Survival Acts for past and future lost earnings. Wilson’s estate sought between $1,334,495 and $2,070,670 in past and future lost earnings and fringe benefits, and Brown’s estate sought $1,971,336 to $2,735,670 in damages.
In their claim for punitive damages, the estates’ counsel maintained that that the actions and inactions of the guards were outrageous so as to demonstrate intentional, willful, wanton, reckless conduct. The estates’ counsel noted that USSA had a net worth of $192,563,000.
The defense’s expert in economics disputed the estates’ expert in economics’ calculations, and opined that the economic damages sustained by Wilson and Brown’s estates were lower.
The jury found that Hiller had killed Brown and Wilson. According to the jury, USSA, through its employees, had failed to exercise reasonable care, and its conduct was a substantial factor in causing the injuries and deaths of Brown and Wilson. Seventy percent of liability was attributable to Hiller, and 30 percent was attributable to USSA.
In the compensatory phase, the jury determined $8,020,000 in wrongful death and survival action damages. After a retrial on the punitive damages claims, a second jury found that the conduct of USSA and its security officers was outrageous. The jury determined $38,512,600 in punitive damages.
As to the trial for compensatory damages, the defense filed a motion for judgment notwithstanding the verdict. As to the trial for punitive damages, the defense filed motions for new trial, remittitur, and judgment notwithstanding the verdict.
This report is based on information that was provided by plaintiffs’ counsel. Defense counsel did not respond to the reporter’s phone calls. Yvonne Hiller was not asked to contribute.
Lawyer Ordered to Repay Millions for Diverting Assets
Type: Judicial Finding
Venue: U.S. District Court, Eastern District of Pa.
Case Type: ERISA, breach of fiduciary duty.
Case Name: Perez v. Koresko
Date: Feb. 6, 2015 Court and
Case No.: E.D.Pa. No. 2:09-cv-00988
Injuries: Financial loss.
• Joanne Roskey, Linda M. Henry, Andrea J. Appel and Ashton S. Phillips, U.S. Department of Labor, Philadelphia.
• Lawrence G. McMichael, Dilworth Paxson, Philadelphia.
A federal judge ordered a suspended Bridgeport attorney and his law firm to pay $18.4 million in restitution for his alleged misuse of millions of dollars in funds from several employee-benefit plans.
The judgment against John J. Koresko V and the Koresko Law Firm represents the remainder of their $38.4 million liability to the benefit plans after nearly $20 million of Koresko’s assets across 10 bank accounts have been frozen and turned over to an independent fiduciary.
In a Feb. 6 opinion issued after a 2014 bench trial, U.S. District Judge Mary A. McLaughlin of the Eastern District of Pennsylvania found Koresko and the related defendants were liable for $38.4 million, which represented the funds they allegedly diverted from the plans.
McLaughlin issued a final judgment and order in the case March 13, finalizing the amount owed and setting the case up for what korekso’s lawyers said would be post-trial motions and a possible appeal.
McLaughlin’s February opinion outlined the contentious six years of civil litigation by the U.S. Department of Labor against Koresko. In that opinion, McLaughlin laid out the allegations against Koresko of violations of his fiduciary duties under the Employee Retirement Income Security Act related to his serving as a fiduciary of three trusts.
The Department of Labor, which began investigating Koresko and his firm in 2004, sought more than $50 million in restitution and disgorgement to the trusts, McLaughlin said.
The judge said the DOL presented “voluminous” evidence of Koresko’s alleged ERISA violations, including the diversion of tens of millions of dollars of plan assets through more than 21 accounts created by Koresko at several banks; the transfer of millions of dollars of plan assets into accounts that only Koresko controlled; the taking out of over $35 million in loans on the trusts’ insurance policies; and the transfer of that money to accounts that only Koresko controlled.
The DOL also alleged Koresko deposited plan assets into various Interest on Lawyers’ Trust Accounts and accounts in Koresko’s name. Other allegations included Koresko’s transfer of millions of dollars of plan assets to law firms and consulting firms through which the plans did not benefit; the use of death benefit proceeds to purchase property in the Caribbean island of Nevis and in South Carolina; the use of plan assets to pay personal expenses; and the use of plan assets to pay business expenses, according to the opinion. There were never any criminal charges filed against Koresko, his attorney said.
Koresko’s attorney, Lawrence G. McMichael of Dilworth Paxson, said he would be filing post-trial motions seeking a new trial. McMichael said Koresko didn’t attend the June 2014 bench trial in his case because of his poor health and lack of counsel.
McMichael said his client has and will continue to argue that he didn’t believe the voluntary employees’ beneficiary association (VEBA) trust he created was covered by ERISA regulations.
Koresko individually, and not his law firm, hired Dilworth Paxson in October 2013 to represent him in the discrete matter of a contempt proceeding. McMichael said the judge would not allow Koresko to hire counsel for his trial, but eventually approved the request for substantive representation in July 2014, after the trial was over. The Koresko Law Firm was and continues to be unrepresented. McMichael said the firm is no longer in operation.
Koresko has argued that the documents that govern the VEBA trust provided he would be indemnified by the trust in the event of litigation.
As part of her March final order, McLaughlin said the Koresko defendants were permanently divested of any ownership in the frozen funds. She also clarified the total liability of Koresko and his firm after his counsel informed the court that it had double-counted $1.4 million in funds transferred to a Nevis bank. That brought the total liability against Koresko defendants down from $39.8 million to $38.4 million, according to the order. The defendants were also permanently enjoined from ever serving as an administrator, fiduciary, officer, trustee, counsel or any other representative of any employee benefit plan.
Marc Machiz, regional director with the DOL’s Employee Benefits Security Administration in Philadelphia, said in a statement, “The defendants completely disregarded the duty of loyalty they owed to the employee benefit plans and the workers who rely on them. In an ideal world, this does not happen. When it does, there is justice in undoing this massive fraud, and in banning the defendants from coming anywhere near employee benefits again. We are pleased that the rights of workers were protected through the court’s final judgment and order.”
—The Legal Intelligencer
Parents attributed son’s death to driver’s reckless collision
Venue: Allegheny County Court of Common Pleas
Case Type: Motor Vehicle - Speeding, Passenger, Rear-ender, Multiple Vehicle; Wrongful Death - Survival Damages; Motor Vehicle - Alcohol Involvement; Worker/ Workplace Negligence - Negligent Hiring, Negligent Supervision
Case Name: Jennifer M. Straw and Thomas P. Straw, individually and as co-administrators of the Estate of Elijah C. Straw, deceased; and Rowan J. Straw, a minor, by and through his parents and natural guardians, Jennifer M. Straw and Thomas P. Straw v. Kirk A. Fair and Golon Masonry Restoration Inc. v. Pittsburgh Lubes Inc. v. John Robert Fanto III d/b/a Tower Automotive and Napa Automotive, No. GD-13-3294
Date: December 15, 2015
• Neil R. Rosen, Jon R. Perry and Renee A. Metal; Rosen Louik & Perry, P.C.; Pittsburgh, PA, for Rowan J. Straw, Thomas P. Straw, Jennifer M. Straw, Estate of Elijah C. Straw
• Andrew R. Benedict; Weber Gallagher Simpson Stapleton Fires & Newby LLP; Philadelphia, PA, for Golon Masonry Restoration Inc.
• Robert A. Arcovio; Margolis Edelstein; Pittsburgh, PA, for Kirk A. Fair
On May 1, 2012, plaintiff Thomas Straw, 42 a professional photographer and Web site designer, was rear-ended by a pickup truck on Route 28, in Tarentum, killing his 6-year-old son, plaintiffs’ decedent, Elijah Straw.
Elijah was sitting in the right rear passenger’s side of Straw’s 2004 Pontiac Vibe sport utility vehicle. The Ford F-250 pickup truck was driven by Kirk Fair, of Golon Masonry Restoration Inc.
Straw’s wife, plaintiff Jennifer Straw, 38, was a front-seat passenger, and their other son, plaintiff Rowan Straw, 4, was sitting in the left rear passenger’s side.
Thomas and Jennifer Straw suffered broken vertebra, broken ribs, and concussions, and Rowan suffered a broken femur and suffered seizures. Elijah was pronounced dead at the hospital.
According to Straw, his vehicle malfunctioned, causing the hood to be released upward, which prompted him to bring his vehicle to a controlled stop in the center lane of Route 28, just prior to Exit 10. At that location, the road was a four-lane highway with three travel lanes. Straw claimed that he observed no other vehicles traveling in the lane directly behind him, and the left and right lanes were open. After stopping the vehicle and activating his hazard lights, Straw again checked his rear-view mirror, at which time he saw Fair’s truck barreling toward his vehicle.
Fair allegedly did not stop or attempt to move into any of the three open lanes on either side of Straw’s vehicle; instead, he smashed into Straw’s vehicle at a high rate of speed.
Fair pleaded guilty to homicide by vehicle, four counts of recklessly endangering another person, and other traffic violations. He was sentenced to six to 23 months’ imprisonment and 10 years’ probation. Straw was not cited in any manner for the accident.
The Straws sued Fair and Golon Masonry Restoration on claims of negligence. Fair and Golon brought in as third-party defendants Pittsburgh Lubes Inc. (where Straw’s vehicle underwent an oil change), John Robert Fanto III (the owner of an auto-mechanic business that inspected Straw’s vehicle about six months prior to the accident), and Napa Automotive (which, two months prior to the accident, determined that, despite its hood sticking up a quarter of an inch, the vehicle was safe to drive), all of whom were dismissed via summary judgment.
According to the Straws’ counsel, downloaded data from Fair’s truck indicated that he was driving approximately 71 miles per hour for at least 20 seconds prior to impact. (The speed limit was 55 miles per hour.) The data demonstrated that Fair did not apply his brakes until approximately .6 seconds prior to impact when the truck was approximately 58 to 59 feet from Straws’ vehicle. At impact, the truck was traveling between 54 and 64 miles per hour. Pursuant to the accident reconstruction conducted by the state police, Fair would have been able to see Straw’s vehicle at approximately 2,058 feet prior to impact, if he had been looking at the road. Fair admitted that he was not looking at the road, but instead was fumbling with binders that had fallen to the floor.
The Straws’ counsel maintained that Fair had at least 20 seconds after observing the Straws’ vehicle and over 2,000 feet of visibility to bring his truck under control and avoid hitting the Straws by either stopping the truck or moving the truck into one of the three open lanes available to him.
Fair, who was taking the narcotic buprenorphine, failed three portions of a fieldsobriety test. (The officers allegedly found insufficient probable cause to obtain blood for testing.) The Straws’ counsel asserted that Fair did not have a valid prescription for the drug, which has a half-life of 24 to 60 hours, and Fair violated the drug’s label, which warns users not to drive or operate heavy machinery.
The Straws’ expert in toxicology testified that Fair would have been impaired at the time of the accident.
The Straws’ counsel asserted that Golon permitted Fair to drive a company vehicle, despite Fair’s criminal record of a DUI in 2008, and hired Straw while his driver’s license was suspended due to the DUI.
In his deposition testimony, Golon’s owner and president said that, should an employee’s driving record reveal that he had a past history of having driving under the influence, the employee would be forbidden from ever driving a Golon vehicle. Per Golon’s own policies and procedures, Fair should not have been driving at the time of the accident, the Straws’ counsel asserted.
The defense faulted the Straws for ignoring the longstanding history of problems with the hood of their vehicle and the fact that multiple automotive repair facilities failed to fix the problem prior to the accident. The defense further faulted Straw for stopping his vehicle in the middle of a busy highway.
The defense’s expert in toxicology opined that Fair was not impaired at the time of the accident, as demonstrated by his passing the field-sobriety tests, and could not have been since, as Fair admitted, he had not taken the drug more than 24 hours prior to the accident.
Golon maintained that, even if Fair was in the course and scope of its employment, it had no responsibility for the accident.
Emergency medical technicians detected a heartbeat and a pulse for Elijah, who was airlifted to a hospital. He was pronounced dead an hour-and-half later.
The Straws were taken by ambulance to a hospital.
Thomas Straw was diagnosed with a concussion, an fracture of lumbar vertebra L4, and a rib fracture. He was discharged four days later. Over the next six months, he underwent extensive physical and cognitive therapies to address severe headaches, longand short-term memory loss, and aphasia. He sought damages for past and future pain and suffering.
Jennifer Straw was diagnosed with a concussion, about five rib fractures, and a fracture at thoracic vertebra T3. After a few days hospitalized, she underwent a course of physical and cognitive therapies for a few months. She sought damages for past and future pain and suffering.
Rowan was diagnosed with a fracture to his right femur and with seizures. Both legs were entirely casted (for six weeks) and he was discharged one week later. He treated with medication for seizures, which later dissipated. The child also received some physical therapy and treated with counseling for the next few years. He sought damages for past and future pain and suffering.
The crux of the Straws’ treatment was the couple’s extensive psychiatric treatment to treat their major depressive disorder, which they continued to treat at the time of trial and will do so indefinitely. In addition to ongoing counseling, they treated with maximumstrength mood enhancers.
The Straws talked about their attempts to remain a unified, happy family, in spite of Elijah’s death. They talked about their loss and how they wake up in the morning feeling happy, but the feeling wears off after 10 seconds upon realizing their son is gone. (In the years since the accident, the Straws had another child, a daughter.)
The Straws each sought damages for past and future emotional distress.
Elijah’s estate sought to recover about $4 million in future lost earnings. The estate’s expert in vocational rehabilitation based the calculations on the Straws’ education, which included master’s degrees. The estate further sought to recover damages under the Wrongful Death and Survival Acts.
The defense counsel maintained that the Straws made full recoveries form their physical injuries and their emotional injuries were not as significant as they claimed.
The defense’s expert in vocational rehabilitation calculated Elijah’s future lost earnings at about $1 million.
The jury found that Fair was negligent and that his negligence was a factor in causing the death of Elijah and in causing the injuries to the Straws. According to jurors, Fair had acted within the course and scope of his employment at the time of the accident, and Fair’s actions in causing the accident rose to the level of recklessness/outrageous conduct.
Golon was independently negligent in the dealings with Fair, and Golon’s negligence was a factor in causing Elijah’s death.
Elijah’s estate and the Straws were determined to receive $32 million. (Following the verdict, the Straws withdrew their punitive claim without prejudice to advance the claim in future litigation.)
Golon Masonry Restoration filed motions seeking a new trial and alleging multiple trialcourt errors.
This report is based on information that was provided by plaintiffs’ counsel. Defense counsel did not respond to the reporter’s phone calls.
Patient claimed surgery caused blindness, permanent back pain
Venue: Delaware County Court of Common Pleas
Case Type: Medical Malpractice - Nurse, Hospital, Neurosurgeon, Neurosurgery, Anesthesiology, Surgical Error, Failure to Detect, Failure to Monitor, Negligent Treatment, Failure to Communicate
Case Name: Bruce Drainer v. Hagop L. DerKrikorian, M.D., Hagop L. DerKrikorian, M. D. P.C., Jennifer Smith, M.D., Jennifer Caroulis, C.R.N.A., Judith Boudwin, C.R.N.A., Faith Lauser, C.R.N.A., Society Hill Anesthesia Consultants P.C., Riddle Memorial Hospital, and Main Line Health Inc., No. 12-010718
Date: January 27, 2015
• David J. Caputo and Garabet M. Zakeosian Kline & Specter, P.C.; Philadelphia, PA, for Bruce Drainer
• Nancy K. Raynor; Raynor & Associates, P.C.; Malvern, PA, for Hagop L. DerKrikorian, M.D., Hagop L. DerKrikorian, M.D. P.C.
• Amalia V. Romanowicz and Barri Alison Orlow, Post & Schell, P.C.; Philadelphia, PA, for Jennifer Smith, M.D., Faith Lauser, C. R.N.A., Judith Boudwin, C.R.N.A., Jennifer Caroulis, C.R.N.A., Society Hill Anesthesia Consultants P.C.
• Judith Boudwin, C.R.N.A., Jennifer Caroulis, C.R.N.A., Society Hill Anesthesia Consultants P.C.
• Peter J. Hoffman; Eckert Seamans Cherin & Mellott, LLC; Philadelphia, PA, for Main Line Health Inc., Riddle Memorial Hospital
On Jan. 20, 2012, plaintiff Bruce Drainer, in his early 50s, underwent a two-level lumbar laminectomy to decompress spinal nerve roots, performed by neurosurgeon Hagop DerKrikorian at Riddle Memorial Hospital, in Media.
Prior to surgery, Drainer was evaluated by anesthesiologist Jennifer Smith, who oversaw a team of nurse anesthetists comprised of Jennifer Caroulis (whose surname later became McGinley), Judith Boudwin, and Faith Lauser.
Drainer claimed that the surgical consent form did not mention any associated risk of perioperative visual loss or permanent blindness. According to Drainer, the anesthesia plan was for general endotracheal anesthesia with a non-invasive blood-pressure monitor using a blood-pressure cuff, a continuous electrocardiogram, pulse oximetry, capnometry, temperature measurement, and measurement of urine output with a catheter.
At 8:18 a.m., Drainer was taken into the operating room. General anesthesia was induced and he was turned onto a prone position with his arms abducted to the sides and flexed at the elbows.
At about 8:40 a.m., Drainer developed arterial hypotension (low blood pressure); as a result, he was administered 200 micrograms of phenylephrine (a decongestant) to increase his blood pressure.
From 8:45 a.m. to 11:25 a.m., Drainer received 13 doses of phenylephrine, totaling 2,400 micrograms, in addition to 30 milligrams of ephedrine, a similar drug. Surgery was completed by 4:42 p.m.
According to Drainer, his urine output was 440 cc over the course of surgery, of which 300 milliliters had been collected by 8:40 a.m. The remaining 140 milliliters was produced from 8:40 to 3 pm.
The anesthesia record indicated that DerKrikorian was notified by the anesthesia team at 4:42 p.m. that Drainer had decreased urine output, and he was given 10 milligrams of a diuretic. Another 10 milligrams was later given. Drainer produced only 30 milliliters of urine for the remainder of the surgery.
Drainer claimed that his intraoperative blood loss was estimated at 200 milliliters, and that he received 5,200 milliliters of a lactated solution as his sole intravenous fluid therapy.
Upon awakening following surgery, Drainer was unable to see. An ophthalmology consultation was obtained, and he was diagnosed with posterior ischemic optic neuropathy (PION), a damage of the optic nerve from lack of blood flow.
Drainer sued DerKrikorian, Riddle Memorial Hospital, and Smith, Caroulis, Boudwin, Lauser, and their employer, Society Hill Anesthesia Consultants P.C., on claims of medical malpractice.
Drainer and DerKrikorian settled for a confidential amount, prior to trial. DerKrikorian did not appear at trial, nor did his counsel put on a defense; however, DerKrikorian remained on the verdict slip.
Boudwin and Lauser were dismissed by stipulation, prior to trial.
Drainer’s counsel asserted that the unnecessarily prolonged surgery increased the risk of his suffering perioperative visual loss and was the cause of his blindness. The failure to adequately decompress his spinal nerve roots caused him to later endure two additional back surgeries and worsening symptoms of pain and lower extremity numbness and weakness.
In his report, Drainer’s expert in ophthalmology detailed that the risk factors (e.g., diabetes, male gender, obesity) associated with developing PION following back surgery were present with Drainer pre-operatively, since he was diabetic and obese. According to the expert, the factors related to Drainer’s intra-operative care that increased the risk of his suffering PION and blindness during his spinal surgery included prolonged back surgery, prone positioning, venous stasis, hypotension, excessive crystalloid administration, and lack of colloid administration to maintain his intravascular volume.
Drainer’s expert in anesthesiology, in his report, faulted Smith and Caroulis for failing to appreciate the extent of the planned surgery and for failing to modify the anesthetic-care plan when the surgery lasted longer than expected. According to the expert, Smith and Caroulis failed to appreciate Drainer’s risk of perioperative visual loss; failed to communicate with DerKrikorian any concerns regarding the length of surgery and the risk for perioperative visual loss; failed to monitor Drainer’s blood pressure with an arterial line; failed to appreciate that Drainer was intravascularly volume-depleted; failed to use colloid solutions to replete Drainer’s intravascular volume; failed to maintain adequate systemic perfusion; failed to measure arterial blood gas via blood-gas analysis; and administered excessive amounts of crystalloid solution.
The defense counsel noted that Drainer had a history of obesity, diabetes, anxiety, panic disorder, depression, severe degenerative joint disease with chronic lower back pain, and suspected sleep apnea.
According to the defense, Drainer was more susceptible to ischemic neuropathy because of his underlying diabetes which was not well controlled per the records. Drainer’s condition actually improved after the operation, until a “sudden” development of increased pain occurred, asserted the defense.
The defense for Society Hill maintained that Smith and Caroulis’ treatment of Drainer met the standard of care and that all the proper precautions had been taken with regard to anesthesia procedures.
In court papers, Riddle Memorial asserted that “based on the available evidence at the time of surgery, Drainer did not have risk factors that have been identified as independent variables that would predispose him to post-operative vision loss.”
Drainer was treated with corticosteroid and erythropoietin hormones and received hyperbaric-oxygen therapy, all of which was unsuccessful in restoring his vision. On Jan. 25, he was transferred to a rehabilitation facility.
On April 18, he underwent emergent lumbar surgery due to cauda equina syndrome (compression of the nerves at the lower spine) with severe central canal stenosis at intervertebral disc L2-3. He received an L2-3 re-exploration, a laminectomy, a left L2-3 microdiscectomy, and removal of a retained disc fragment. On May 4, Drainer underwent a lumbar fusion due to recurrent pain.
Prior to losing his sight, Drainer enjoyed an active lifestyle that consisted of various social activities with friends, spending time with his two sons, fishing, and watching and following sports. Due to his blindness, he has to rely on others for basic necessities of life. He allegedly will need assistance in many of his activities of daily living, including being able to properly take his prescribed medications.
Drainer is dependent on insulin for treatment of diabetes and is unable to properly monitor his blood sugar. He has suffered humiliation, anxiety, and depression from his condition.
Drainer, who is single, sought over $3 million in future medical costs (which is primarily for his blindness) and damages for past and future pain and suffering.
The jury found that DerKrikorian was 100 percent liable. There was no question posed to the jury as to Riddle Memorial Hospital’s liability.
No liability was found against Smith and McGinley (Caroulis). Drainer was determined to receive $21,861,179.
This report is based on information that was provided by counsel for DerKrikorian, Lauser, Caroulis, Smith, Boudwin, and Society Hill Anesthesia Consultants P.C. Plaintiff’s counsel declined to contribute, citing confidentiality provisions. Counsel for Riddle Memorial Hospital did not respond to the reporter’s phone calls. Additional information was gleaned from court documents and The Legal Intelligencer.
Developer pledged to build homes, country club claimed
Venue: Chester County Court of Common Pleas
Case Type: Real Property, Contracts, Breach of Contract
Case Name: Applecross Club Operations LLC v. Pulte Homes of PA LP, Pulte Home Corp. of Delaware Valley, and PH 50 LLC, No. 2012-09804
Date: September 28, 2015
• Stewart J. Greenleaf Jr., Timothy T. Myers, Marvin L. Wilenzik and Michelle E. Costa; Elliott Greenleaf; Blue Bell, PA, for Applecross Club Operations LLC
• J. Bradford McIlvain and Justin W. Oravetz; Archer & Greiner P.C.; Philadelphia, PA, for PH 50 LLC, Pulte Homes of PA LP, Pulte Home Corp. of Delaware Valley
• Frank Pina; Accounting; Princeton, NJ called by: J. Bradford McIlvain, Justin W. Oravetz Shaun Henry; Golf Courses; Harrisburg, PA called by: J. Bradford McIlvain, Justin W. Oravetz Andrew Rau; Land Use Planning; West Chester, PA called by: J. Bradford McIlvain, Justin W. Oravetz
In January 2006, plaintiff Applecross Club Operations and developer Pulte Homes of PA entered into an agreement for Applecross to purchase and operate golf and country club facilities for a community that Pulte was building, in East Brandywine and West Brandywine townships.
Pulte Homes had purchased split parcels in East Brandywine and West Brandywine, in 2001 and 2003, respectively. Applecross claimed that Pulte had agreed to build more than 1,000 properties on the parcels. The West Brandywine portion was to include about 375 age-restricted units. Applecross pushed for and received promises and agreements that the age-restricted units would be part of the development.
With closing scheduled for mid-2010, Pulte allegedly changed its plans regarding the number and type of units it was building in the East Brandywine property. After Applecross discovered the plans had changed for East Brandywine, it demanded a written amendment to the agreement, providing assurances that Pulte would build the West Brandywine portion. The agreement also would obligate Pulte Homes to compensate Applecross $6,000 for each unit less than 653 homes in the East Brandywine portion.
Applecross alleged that Pulte reneged on the agreement to buy the West Brandywine property. By the spring of 2012, Pulte had allegedly dropped plans for building the age-restricted units in West Brandywine, and Applecross learned that Pulte had also dropped its total unit count to 574, or about 56 percent of the units originally promised.
Applecross sued Pulte (and related entity PH 50) on claims of breach of contract.
Applecross’s counsel argued that Pulte had induced Applecross to buy, develop, and own the country club and that the parties had previously agreed that more than 1,000 units, including the 375 age-restricted units in West Brandywine, would be part of the development.
The defense maintained that Pulte never agreed to build more than 1,000 homes, and that it expressly rejected Applecross’ request that it guarantee a minimum number of homes during contract negotiations.
Applecross’ expert in golf-course appraisal analyzed the value of the golf course compared with its value if the 1,000-plus units been built, and determined the difference was $6.8 million.
Applecross’ expert in economics determined that the golf course, over 30 years, was projected to lose approximately $20 million in profits, loss of business (e.g., membership dues), and diminution of value.
The defense’s expert in golf-course appraisal refuted Applecross’ expert in golfcourse appraisal’s figure of $6.8 million, instead calculating an amount of about $3.3 million.
The defense’s expert in accounting criticized Applecross’ expert in economics’ use of rate in determining Applecross’ alleged damages, and opined that the damages amount would be around $7 million.
The jury found that there was a written contract between Applecross, Pulte, and PH 50 that obligated the defendants to build at least 1,000 residential units in both Brandywine townships, and that the defendants breached the written contract.
Applecross was determined to receive $20 million.
Plaintiff’s counsel motioned for postjudgment interest. The defense motioned for judgment notwithstanding the verdict, a new trial and/or for a remittitur, and to vacate sanctions for civil contempt.
This report is based on information that was provided by plaintiff’s counsel. Defense counsel did not respond to the reporter’s phone calls.
Manager Argued Harassment, Gender Bias Led To Termination
Venue: U.S. District Court, Western District of Pennsylvania, Pittsburgh
Injury Types:back, head-headaches, neck, urological-kidney, sensory/speech-vision; impairment, mental/psychologicalanxiety, mental/psychological-insomnia, mental/psychological-depression, mental/ psychological-emotional distress
Case Type: Civil Rights - Title VII, Employment - Retaliation, Workplace Harassment, Gender Discrimination
Case Name: Sandra S. Robertson v. Hunter Panels LLC and Carlisle Construction Materials Inc., No. 2:13-cv-01047-JFC Date: April 17, 2015
• Timothy P. O’Brien; Law Office of Timothy P. O’Brien; Pittsburgh, PA, for Sandra S. Robertson
• John Stember and Stember Cohn & Davidson-Welling; Pittsburgh, PA, for Sandra S. Robertson
• Julie A. Donahue, Patrick J. Fazzini and Maria Greco Danaher, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.; Philadelphia, PA, for Hunter Panels LLC, Carlisle Construction Materials Inc.
In April 2012, plaintiff Sandra Robertson, in her mid-40s, was terminated from her employment at Hunter Panels LLC, of Smithfield. She had been hired in June 2006 to perform inventory and equipment management for the company, which makes thermal insulation panels used in construction. She was quickly promoted, becoming the only female supervisor/ manager. However, Robinson claimed that she was fired in retaliation for complaining about harassment and a hostile work environment and for accusing the company of running an “old boys’ club,” after the plant manager repeatedly refused to act on her complaints.
Robertson maintained that she had reported that sexist language had been used toward her and that other supervisors spread false allegations that she was “abrasive and demeaning.” She stated that her male supervisors and co-workers routinely called her a “b-ch,” and a co-worker always answered her phone calls with, “F--k you, Sandy.”
According to Robertson, when she first complained, in the summer of 2011, the company sent her to a mandatory angermanagement program, although the counselor told her she did not need it. The next few months went well, and in January 2012, she received a stellar evaluation. However, a few months later, Robertson again complained about ongoing harassment, and she was fired for her “management style.”
Robertson sued Hunter Panels and its parent, Carlisle Construction Materials Inc., as joint employers, on claims of gender discrimination, retaliation, hostile work environment, and violations under Title VII and the Pennsylvania Human Relations Act.
Robertson’s counsel cited testimony of a male subordinate, who described Robertson as the best supervisor he’d ever had. According to the witness, a supervisor called him a “spineless f--king traitor” for requesting a transfer to Robertson’s department. In addition, according to Robertson’s counsel, the plant manager’s secretary provided testimony that she had warned the manager about the harassment and said that he needed to address it, but he ignored her.
Robertson asserted that the company accused her of wanting to “play by her own rules,” but her counsel indicated that Robinson was a team player, as a 20-year veteran of the U. S. Air Force who rose to master sergeant with responsibility for ensuring the availability of needed parts and equipment for aircrafts.
Robertson claimed that the company created electronic documents to support her termination only after she complained about harassment. Her expert in computer forensics analyzed the documents, and opined that Hunter and Carlisle created a number of these documents only after she complained. The dates noted on the documents were reportedly at odds with the documents’ metadata (i.e., when the electronic document was actually created, by whom, and how many times it was saved). The documents proved that Hunter and Carlisle retaliated against her, maintained Robertson’s counsel.
The counselor who saw Robertson on three occasions in the company’s angermanagement program testified that Robertson did not have anger-management problems, and characterized her as a perfectionist.
The defense maintained that Robertson was angry, rude, and unprofessional, and that her insubordinate behavior prompted her termination. The defense noted that Robertson was good at her job, but she was unable to let things go, and she was combative with the production department, who shared space with Robertson’s department. The defense disputed the findings of Robertson’s expert in computer forensics.
Robertson sought to recover approximately $170,000 in back pay. In her claim for front pay, Robertson’s counsel presented her earnings from her tenure at Hunter. After she was terminated from the company, she was reportedly unable to find a job, which prompted her to go back to school. She was slated to receive her undergraduate degree in spring 2015.
Robertson claimed that her termination “discombobulated” her life, and resulted in bouts of depression and anxiety, temporary vision loss in one eye, neck and low-back pain, kidney stones, migraines, and weight loss of 185 pounds.
Her husband testified that Hunter “took his wife away from him.” Robertson sought compensatory damages.
In her claim for punitive damages, Robertson’s counsel asserted that Hunter had malicious and reckless disregard of Robertson’s rights. Moreover, according to her counsel, Carlisle Construction Materials had ample resources, with 27 plants worldwide, earned nearly $2 billion in net sales in 2014, had roughly $1 billion in assets, and had 4 million square feet under lease.
The jury found that Hunter and Carlisle discriminated against Robertson because of her gender, that they subjected her to a hostile work environment because of her gender, and that they unlawfully retaliated against her when they terminated her employment.
According to jurors, Robertson experienced emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary loss, due to Hunter and Carlisle’s conduct. Robertson was determined to receive $92,000.
The jury further determined that Hunter and Carlisle acted with malice and/or reckless indifference to the federally and state protected rights of Robertson, who was determined to receive $12.5 million in punitive damages.
The parties settled for an undisclosed amount.
This report is based on information that was provided by plaintiff’s counsel. Defense counsel did not respond to the reporter’s phone calls.
Woman Asserted Pelvic Mesh Led To Painful Intercourse
Venue: Philadelphia County Court of Common Pleas
Injury Type(s): other-prolapse, other-scar tissue, other-erosion; vaginal wall, other-scar and/or disfigurement, pelvis, urologicalincontinence, urological-sexual dysfunction, urological-bladder; perforation/rupture, gynecological-vagina mental/psychologicalemotional distress
Case Type: Products Liability - Design Defect, Pharmaceutical, Failure to Warn, Strict Liability
Case Name: Patricia L. Hammons v. Ethicon Inc., individually and/r d/b/a Ethicon Women’s Health and Urology, a division of Ethicon Inc.; Gynecare; Johnson & Johnson; Secant Medical Inc.; and Secant Medical LLC, No. 130503913
Date: December 22, 2015
• Shanin Specter, Kila B. Baldwin and Adam M. Slater; Kline & Specter, P.C.; Philadelphia, PA, for Patricia L. Hammons
• Molly E. Flynn; Drinker Biddle & Reath LLP; Philadelphia, PA, for Gynecare, Ethicon Inc., Johnson & Johnson
• Tarek Ismail; Goldman Ismail Tomaselli Brennan & Baum LLP; Chicago, IL, for Gynecare, Ethicon Inc., Johnson & Johnson
• Susan M. Robinson; Thomas Combs & Spann, PLLC; Charleston, WV, for Gynecare, Ethicon Inc., Johnson & Johnson
• Matthew P. Moriarty; Tucker Ellis | LLP; Cleveland, OH, for Gynecare, Ethicon Inc., Johnson & Johnson
On May 5, 2009, plaintiff Patricia Hammons, 58, a retail-store stocker in Washington, IN, had an anterior Prolift pelvic-mesh device implanted to treat her prolapsed bladder. The surgery also included a hysterectomy and removal of her ovaries and fallopian tubes.
Two years earlier, in 2007, Hammons had begun to experience pressure in her pelvic region caused by pelvic organ prolapse (a condition where the front wall of the vagina, which supports the bladder, weakens).
After surgery, Hammons waited the prescribed six weeks before having intercourse. She claimed she experienced pain during sex, which prompted her to return to the physician who had implanted the mesh. The physician, according to Hammons, instructed her not to have deep-penetrative intercourse. When the pain continued, she presented to her family doctor, who referred her to a different gynecologist, who determined that Hammons was now suffering from a posterior prolapse (a condition where the wall of tissue between rectum and vagina weakens, and the vaginal wall bulges). In September 2009, she had native-tissue surgery to correct the condition.
Hammons continued to have pain during intercourse and continued to complain to her family physician. In 2012, after living with the painful condition in the intervening years, Hammons began experiencing severe urinary incontinence. She was sent to a urogynecologist (a female pelvic medicine and reconstructive surgeon), who traced her problems back to the pelvic mesh, which at this point had eroded through the tissue in her bladder and vagina.
In December 2012, a good portion of the mesh was surgically removed, causing two holes in Hammons’ bladder. In January 2013, a scope procedure was conducted to remove the remaining mesh in her bladder; however, mesh shards still remained and were unable to be extracted. Despite these surgeries, Hammons was unable to have intercourse due to excruciating pain.
The Prolift device, which was released in the market in 2005, was removed in 2012.
Hammons sued mesh-manufacturer Ethicon, its Gynecare division, and parent-company Johnson & Johnson, bringing claims under theories of negligence, strict products liability (defective design), and failure to warn.
(Secant Medical Inc., which manufactured some of the pelvic-mesh material, was also sued, but later dismissed.)
Hammons’ expert in urology opined that the pelvic mesh was defective, because improper weaving of the mesh caused the mesh pores to be too small and allowed for excessive scar formation to occur in the vagina, which in turn caused the vagina to become rigid and unable to expand, thereby resulting in painful intercourse. The mesh also bunched up, causing it to erode the vaginal wall and travel into the bladder. The expert concluded that the device was too much of a foreign body to be inserted into the vagina, since it caused a chronic inflammatory reaction and created an inability to remove the device if problems occurred, similar to Hammons’ circumstances.
Hammons’ case-specific expert (Ralph Zipper) in urogynecology tied each of these defects to Hammons.
Her other expert in urogynecology reviewed the medical literature about the Ethicon pelvic mesh, the company’s data, and the underlying data which went into developing the device, including patient questionnaires. The expert criticized Ethicon for ignoring some of the data’s implications, including the high rate of complications associated with the pelvic mesh and that 20 percent of the women using the device experienced pain during intercourse.
Hammons’ counsel also played deposition testimonies of Ethicon officials, including its medical directors and members of its research and development, marketing, and regulatory affairs divisions. According to Hammons’ counsel, the officials knew of the serious problems when developing the Prolift mesh, but continued to go forward in releasing it in the market. Hammons’ counsel further asserted that Ethicon failed to warn physicians of the severity and frequency of the complications the mesh could cause, including the inability to remove the device.
The defense counsel maintained that development of the device was led by doctors, not Ethicon, and the risks of using pelvic mesh were well known throughout the medical community. Moreover, despite the later complications, the mesh worked and properly supported Hammons’ bladder.
According to the defense’s expert in urogynecology, along with Hammons’ bladder, her uterus was also prolapsed, and, after she underwent a hysterectomy in 2009, her small bowel also began to prolapse into her vaginal canal. The expert stated that this can also lead to pain during intercourse.
Hammons testified about her inability to have intercourse and the feeling of loneliness it causes. She has a longtime partner. She sought damages for past and future pain and suffering.
In a claim for punitive damages, Hammons’ counsel presented Johnson & Johnson’s net worth at more than $69.7 billion.
The jury found that Ethicon and Johnson & Johnson were negligent, that the pelvic mesh was defective, and that Ethicon failed to warn about the product’s defectiveness. Hammons was determined to receive $12.5 million.
This report is based on information that was provided by plaintiff’s counsel. Defense counsel did not respond to the reporter’s phone calls.
Jury Favors Paralyzed Man In Delco Med Mal Suit
Amount: $12.5 Million
Venue: Delaware County Court of Common Pleas
Injuries: Medical expenses, loss of life’s pleasures, loss of consortium.
Case Name: Del Grosso v. Delaware County Memorial Hospital
Date: April 17, 2015
• Roy Decaro and Regina Foley, Raynes McCarty, Philadelphia.
• Benjamin A. Post, Post & Post, Berwyn; Robert Connell Pugh, Kane, Pugh, Knoell, Troy & Kramer, Norristown.
A Delaware County jury has awarded $12.5 million to a paralyzed man and his wife following an alleged delayed diagnosis of a cervical abscess.
Plaintiff Kenneth Del Grosso said he received negligent care at Delaware County Memorial Hospital in 2011, causing his paralysis of the arms and legs, as well as other damages. A jury on Aug. 7 found in his favor and against two of the doctors who treated him.
Del Grosso arrived at the emergency room of Delaware County Memorial Hospital on June 17, 2011, with symptoms of left-sided neck pain and tingling in his left arm, according to a pretrial memorandum for the plaintiffs. He was kept at the hospital overnight, where his symptoms worsened and he developed a fever, it said.
According to the memo, infectious-disease specialist Bonnie Rabinowitch evaluated Del Grosso and found symptoms of a cervical epidural abscess, so she ordered an MRI of the cervical spine. Rabinowitch and neurologist Hussam Yacoub directed the plaintiff’s care.
Four hours later, the memo said, radiologist Ben-Zion Friedman interpreted the MRI as having no abscess or epidural collection. The plaintiff alleged this was a “clear misdiagnosis.” According to the plaintiffs’ memo, Del Grosso underwent emergency surgery on a deep cervical abscess the next day, after Rabinowitch expressed ongoing concerns about spinal cord compression.
Friedman, in his pretrial statement, said he denied that any act or omission on his part caused Del Grosso’s injuries. Yacoub and Rabinowitch, in their statement, said they “aggressively treated and attended to Mr. Del Grosso,” and that they could not have changed the outcome of his illness.
Del Grosso also underwent inpatient therapies and was hospitalized several other times. He became paralyzed in the arms and legs, and lost bowel, bladder and sexual function, the plaintiffs’ memo said.
The plaintiffs cited medical expenses of more than $300,000 and future medical expenses between $6.4 million and $12.9 million, as well as lost wages of $480,000 to $1.16 million. They also said they sustained damages in the form of pain and suffering, loss of life’s pleasures and loss of consortium by Del Grosso’s wife, Elizabeth Del Grosso.
The jury found 67 percent of causal negligence attributable to Friedman and 33 percent attributable to Yacoub, according to a verdict sheet signed Aug. 7. It found no negligence on the part of Rabinowitch, or attributable to house doctor Brian Morgan and nurse Ellen James.
Several other defendants were named in the complaint, but dismissed from the case.
The jury awarded a total of about $12 million to Kenneth Del Grosso, including more than $9 million in past and future medical costs, $2.3 million in past and future noneconomic loss and nearly $500,000 in past and future lost earnings. The jury also awarded $500,000 to Elizabeth Del Grosso for loss of consortium.
According to the plaintiffs’ attorney, the trial lasted about two weeks, and the jury deliberated for about four hours. He said the trial was “expert-intensive,” with nine experts for the plaintiffs and 12 for the defendants.
– The Legal Intelligencer
Amputee Gets Settlement Before Second Trial
Amount: 12.5 Million
Venue: Philadelphia Court of Common Pleas
Injuries: Loss of leg, loss of consortium.
Case Name: Rolland v. Senn
Date: April 10, 2015
• Slade H. McLaughlin and Paul A. Lauricella, McLaughlin & Lauricella, Philadelphia; Howard J. Bashman, Willow Grove.
• James W. Gicking and Mark T. Riley, Marshall Dennehey Warner Coleman & Goggin, Philadelphia and King of Prussia, for United Construction Service and Bruce Irrgang;
• Francis J. Deasey, Deasey, Mahoney & Valentini, Philadelphia, for Steven Senn and Senn Landscaping
• Thomas F. Reilly, Chartwell Law Offices, Philadelphia, for Modern Equipment Sales and Rental Co.
• John J. Snyder, William J. Carr Jr. And Joseph A. Gorman, Rawle & Henderson, Philadelphia, for Modern Equipment Sales and Rental Co.
• Steven J. Ahmuty Jr., Timothy R. Capowski and Juan C. Gonzalez, Shaub, Ahmuty, Citrin & Spratt, New York, for Modern Equipment Sales and Rental Co.
An electrical worker who was injured by a track loader with a 10-year-old operator has reached a $12 million settlement with the defendants, after a trial court judge’s opinion overturned the original $20 million verdict in the case, but before the Superior Court affirmed that decision granting a new trial.
The Superior Court on July 2 affirmed an order granting a new trial in Rolland v. Senn, after a Philadelphia jury awarded $18 million to Ruick Rolland and $2 million in loss of consortium to his wife in 2013. But the parties reached a $12 million settlement agreement April 10.
The Superior Court opinion, written by Judge Anne E. Lazarus, said the verdict finding of no contributory negligence by the plaintiff was against the weight of the evidence, and a workers’ compensation file with information about the incident should not have been excluded from the trial.
Defendants Steven Senn and Senn Landscaping agreed to pay $1 million, property owner Bruce Irrgang and United Construction Service Inc. agreed to pay $5.5 million and track loader lessor Modern Equipment Sales & Rental Co. Agreed to pay $5.5 million to plaintiffs Ruick and Holly Rolland. A portion of the settlement was paid into an annuity.
“I frankly think we would have done just as well or better the second time around,” said Slade H. McLaughlin of McLaughlin & Lauricella, an attorney for Ruick Rolland. According to the plaintiffs’ attorneys, the annuity payment will allow the total amount to grow over the course of Rolland’s expected life span, bringing it closer to the $20 million originally awarded.
According to the Superior Court opinion, Irrgang, then the owner of UCS, contracted with Ruick Rolland in 2009 to perform electrical work on a project, and hired Senn and Senn Landscaping to complete a different task on the project. UCS also leased a 10,000-pound track loader from Modern Equipment Sales for the project, which it loaned to Senn.
The day the track loader was delivered, Senn’s 10-year-old son operated the machine for about one hour, the opinion said. Senn told Rolland and Modern Equipment Sales that his son was a competent operator. Several days later, the boy was operating the track loader when he lost control and struck Rolland, Lazarus wrote. Rolland required an abovethe- knee amputation on his left leg as a result of the incident.
The Rollands filed a personal injury lawsuit against all the defendants in December 2009, the opinion said, and a three-week trial began in March 2013.
During trial, Irrgang testified he asked Rolland to remove the child from the work site, and that Rolland was in charge of the work being done on the property, Lazarus wrote. However, Rolland said he was an independent contractor and did not have authority to remove Senn’s son from the track loader, Lazarus said.
The jury returned a verdict finding no negligence on Rolland’s part, and awarded him and his wife a combined $20 million. But Philadelphia Court of Common Pleas Judge John Milton Younge granted a new trial because of the exclusion of the workers’ compensation file, and the finding of no contributory negligence.
At the appellate level, Lazarus said the workers’ compensation file was relevant to the contributory negligence issue. Younge, in his own opinion, noted that in the file, Rolland listed himself as a supervisor, contradictory to his claims in court that he was an independent contractor working for the defendants.
The Superior Court said the finding of zero contributory negligence “was inconsistent with the fact that Ruick was personally responsible for his own voluntary actions and decision to closely approach the running track loader and give operating directions to a 10-year-old,” based on expert testimony. It also said the trial court correctly denied Irrgang and UCS’s motion for judgment notwithstanding the verdict.
Attorneys for Rolland said they recently received the final settlement payment, and are in the process of notifying the Superior Court.
– The Legal Intelligencer
Toddler’s Meningitis Due To Late Evaluation, Mother Claimed
Venue: Philadelphia County Court of Common Pleas
Injury Types: head, brain-brain damage, brain-hydrocephalus, other-meningitis, sensory/speech-deafness; total sensory/ speech-hearing; loss of sensory/speechspeech/ language; impairment of mental/ psychological-cognition; impairment
Case Type: Medical Malpractice - Hospital, Emergency Room, Delayed Diagnosis, Delayed Treatment
Case Name: Shantice M. Tillery, in her own right, and as parent and natural guardian on behalf of her minor son, Shamir D. Tillery v. The Children’s Hospital of Philadelphia, University of Pennsylvania School of Medicine, Children’s Healthcare Associates Inc., Monika Goyal, M.D., Joel Fein, M.D., and Kyle Nelson, M.D., No. 111202168
Date: November 16, 2015
• Andrew J. Stern and Elizabeth A. Crawford; Kline & Specter, P.C.; Philadelphia, PA, for Shamir D. Tillery, Shantice M. Tillery
• Benjamin A. Post and Kimberly M. Funaro, Post & Post LLC; Berwyn, PA, for Joel Fein, M.D., Kyle Nelson, M.D., Monika Goyal, M.D., Children’s Healthcare Associates Inc., The Children’s Hospital of Philadelphia
On Dec. 24, 2009, plaintiff Shamir Tillery, 11 months, was diagnosed with bacterial meningitis at The Children’s Hospital of Philadelphia.
On Dec. 22, Shamir had presented to the hospital with a high fever, rapid heart rate, abnormal respiratory rate, and a history of lethargy. (On Dec. 21, Shamir had presented to the hospital with the same symptoms, and he was examined and released, having been diagnosed with an upper respiratory infection.)
Shamir’s mother, plaintiff Shantice Tillery, claimed that, despite her son’s worsening condition on Dec. 22, emergency-room physician Monika Goyal failed to address the toddler’s underlying problems. According to Tillery, the repeated pursuit of a respiratorybased etiology was not warranted, given the lack of findings on physical exam and chest X-ray (which was negative), relatively good oxygen saturation, and tachycardia. Moreover, the respiratory rate remained abnormal even when Shamir’s 104.5 fever was brought down.
Shamir was diagnosed with bronchiolitis. He was given a puff of an inhaler and medication and was discharged that day.
On Dec. 23, at 8:45 p.m., Shamir returned to the hospital by ambulance with the same symptoms he had been experiencing since Dec. 21. He was examined by a resident physician at 10 p.m. He was then seen by attending-physician Kyle Nelson at 11:30 p. m., at which time blood work was ordered and showed a suspected bacterial infection. At 3:30 a.m. on Dec. 24, emergency-room physician Joel Fein administered a spinal tap, which confirmed bacterial meningitis. A CT scan demonstrated that Shamir suffered hydrocephalus (intracranial pressure), which resulted in total deafness and alleged brain damage.
Tillery sued Goyal, Nelson, Fein, and the hospital, alleging they had negligently failed to provide appropriate care for his condition, constituting medical malpractice.
(Tillery also sued hospital affiliates University of Pennsylvania School of Medicine Children’s Healthcare Associates Inc., which were later dismissed.)
Tillery’s counsel asserted that had Shamir been evaluated further for a bacterial infection on Dec. 22, he would have been admitted for further evaluation, testing, and antibiotic therapy, and it would have prevented the progression of Shamir’s significant bactermia to bacterial meningitis, thereby avoiding his permanent injuries.
Tillery’s counsel faulted Nelson for not seeing Shamir until two-and-a-half hours after he had arrived at the hospital, and faulted Fein for not performing a spinal tap until 3:30 a.m. on Dec. 24. Tillery’s counsel argued that Shamir should have been given steroids by 11 p.m. to reduce inflammation and to avoid deafness and a brain injury altogether, and every hour that passed, increased his risk of harm.
The defense counsel maintained that on Dec. 22, Shamir presented with signs and symptoms consistent with an upper respiratory infection/ bronchiolitis, which improved with the nebulizer treatment in the ambulance. Goyal properly monitored Shamir over several hours, during which time his symptoms improved before he was discharged.
Counsel further contended that on Dec. 23, the hospital acted as quickly as possible to diagnose Shamir’s bacterial meningitis. Earlier treatment with antibiotics, as Tillery’s counsel advocated, would not have improved the outcome of bacterial meningitis, the defense maintained.
Shamir was given intravenous antibiotics and remained hospitalized through the first week of January 2010, until his meningitis resolved.
In the ensuing years, Shamir has suffered from total deafness (he learned sign language), is unable to speak, and has alleged severe cognitive deficits.
Shamir, according to Tillery’s expert in lifecare planning, requires a lifetime of assistance and medical monitoring, including visits with an otolaryngologist and audiologist, behavioral management, and educational supplementation.
Tillery sought to recover a life-care plan of $3,080,069 to $7,326,368.
Due to his illiterateness and inability to speak and communicate, Shamir is allegedly permanently and totally disabled. Tillery sought to recover $1,955,426 to $5,290,458 in future lost earnings.
According to Shamir’s counsel, without an effective form of communication, Shamir’s learning potential will be stunted, and his intelligence will be lower as an adult than it would be if he was not so profoundly hearing impaired. Shamir requires a very intense and specialized program through the developmental/educational period to ensure that his hearing loss does not lead to further cognitive difficulties.
Tillery discussed how Shamir was normal and healthy prior to his treatment at The Children’s Hospital of Philadelphia. She sought damages for past and future pain and suffering on behalf of her son.
The defense counsel maintained that Shamir did not sustain a brain-related injury and that his delay in language was a result of the lack of exposure to American Sign Language at home; the Tillery family failed to learn sign language.
The defense suggested that, had Shamir undergone cochlear implantation in the months following his deafness, he would be able to hear.
(Tillery’s counsel argued that there was no guarantee that cochlear implants would have been successful and that Tillery was interacting with her son to the best of her ability, due to the hospital’s negligence.)
The jury found Goyal 40 percent liable and the hospital 60 percent liable. No liability was found against Fein and Nelson. Shamir was determined to receive $10,138,000.
The defense filed multiple motions, including motions regarding evidentiary rulings and motions for a new trial and judgment notwithstanding the verdict, which plaintiffs’ counsel opposed.
This report is based on information that was provided by plaintiffs’ and defense counsel. Counsel for the University of Pennsylvania School of Medicine was not asked to contribute.
Read the full article at http://www.evergreeneditions.com/article/Top+Case+Summaries/2512478/313125/article.html.