Jury Finds for Atlanta Surgeon in Med Mal Case Following Woman's Death After Hernia Operation

Posted by Steve Silver on Apr 1, 2015 6:40:56 PM


Atlanta, GA—A Fulton County Superior Court jury found in favor of a surgeon whose patient died following supposedly routine hernia surgery that led to several subsequent hospitalizations over the next few three months. Eric Morgan et al. v. Dr. Clarence Hixon et al. (2012CV224094)

According to testimony and documents in the case, on December 12, 2011, Dr. Clarence Hixon performed surgery on Letha Johnson at Atlanta Medical Center to repair a hernia and alleviate her acid reflux. Johnson was acknowledged by the parties to be in generally frail health at the time of the surgery. Afterwards, Johnson complained of shortness of breath and considerable discomfort. She received a blood transfusion, and a CT scan revealed blood in her abdomen. Dr. Hixon did not drain the blood at that time, and, as Johnson’s attending physician, he discharged her from the hospital on December 24.

Click Here FREE Georgia Trial Video Samples Johnson was readmitted to Atlanta Medical Center on December 27 after complaining of shortness of breath. A CT scan then revealed a substantial amount of fluid in Johnson’s abdomen. On December 30, a drain was inserted in Johnson’s abdomen and over a liter of infected fluid was removed. Another physician removed the drain on January 6, 2012, and Dr. Hixon discharged Johnson a day later.

Johnson was admitted to Atlanta Medical Center a third time on January 15, 2012. She was unresponsive and in critical condition. Johnson was diagnosed with sepsis, and the infection was again drained. On February 14, Johnson was transferred to a long term care facility, for continued treatment. Johnson’s condition deteriorated, and she was admitted to Emory Hospital for further surgery. She later developed septic shock and was transferred to a hospice, where she died on March 2, 2012. Her death certificate indicated the cause of death was sepsis and respiratory failure.

Johnson’s relatives later filed the current wrongful death malpractice action against Dr. Hixon and his practice, Peachtree Surgical Specialists. According to the plaintiffs, Dr. Hixon’s alleged malpractice occurred during Johnson’s first two admissions to Atlanta Medical Center.

Dr. Eugene Meyer, a general surgeon, testified as the plaintiffs’ expert witness. He believed that Johnson suffered an injury to her pancreas or spleen during the initial surgery that resulted in significant bleeding and the eventual formation of a hematoma. Dr. Meyer stated that, instead of discharging Johnson on December 24, Dr. Hixon should have drained the fluid at that time and investigated further to determine the cause of her bleeding.

When Johnson was admitted to the hospital the second time, Dr. Meyer again believed that Johnson should not have been discharged until the cause of the infection could be determined and treated. He added that he believed the infection originated in Johnson’s pancreas and that the fluids drained should have been tested for pancreatic enzymes. In Dr. Meyer’s view, if Johnson had been properly diagnosed and treated during her first two admissions to the hospital, the infection would have been resolved and she would likely not have subsequently developed sepsis and died.

Dr. Hixon testified that he believed his treatment of Johnson at all times was proper and within the standard of care. He did not drain the blood from Johnson’s abdomen during her first hospitalization because the hematoma was resolving and, considering her overall frail condition, the risks of doing so outweighed the benefit. Based on all of Johnson’s clinical signs, he believed discharging her on December 24 was warranted.

When Johnson was readmitted, Dr. Hixon noted that her condition had deteriorated and, at that time, he decided to drain the fluid from her abdomen. However, he felt that there was no reason to suspect a pancreas injury as the cause of her infection. As with the first discharge, Dr. Hixon believed that the January 7 discharge was warranted due to her medical condition at the time.

Dr. Hixon acknowledged that Johnson was in very serious condition at the time of her third admission. However, he believed that she had responded to treatment during that admission and was not critically ill at the time she left Atlanta Medical Center for the last time.

Dr. Courtney Shelton, Johnson’s longtime personal care physician, and Dr. William Crossland, a pulmonary specialist, both assisted in the treatment of Johnson during her hospitalizations. Both indicated that there was no reason to keep Johnson in the hospital at the time of each discharge, and that there was no indication at the time of her final discharge that she was likely to die.

Dr. Jeffrey Schwab, a general surgeon, also testified as an expert witness for Dr. Hixon. He stated that, at the time Johnson was initially discharged from the hospital, draining the hematoma was not warranted because of the potential risks involved in the procedure. Instead, he believed that, according to Johnson’s records at the time of discharge, Dr. Hixon acted properly. He also agreed with Dr. Hixon that there was no indication of pancreatitis at the time of her second hospitalization and that her second discharge was also warranted. Finally, he indicated that there was no reason to suspect at the time Johnson was discharged from Atlanta Medical Center the last time that she would die in the near future.

In his closing statement, the plaintiffs’ attorney Michael Harper rejected any suggestion that he was asking the jury to base its verdict on hindsight. Instead, he stated that Dr. Hixon “has all this objective clinical data, beforehand not hindsight, before she goes home here… Now he testified ‘she seemed fine to us.’ That is because he failed to diagnose the problem… This is beforehand. This is not hindsight. He had all of this information in front of him before he sent her home both times.”

In his closing statement, Dr. Hixon’s attorney Mark Meliski reminded the jury that the only medical witness who criticized Dr. Hixon’s treatment of Johnson was Dr. Meyer. “It’s funny to me that Dr. Meyer came in here, and I felt a little bit sorry for him because he’s on an island in every opinion that he has. For every opinion that he has in terms of criticizing Dr. Hixon, he is the only physician in the room that has that opinion. Everybody else that you heard from has a different opinion.”

Meliski also reminded the jury that, in order to find for the plaintiffs, they would need to find that Dr. Hixon’s negligence caused Johnson’s death. He pointed out that at the time she left Atlanta Medical Center the last time, all the doctors who treated Johnson believed her condition was treatable and that she was not going to die.

After the trial, plaintiffs’ attorney Michael Harper told Courtroom View Network that the case was hard fought on both sides. In his view, the key to the jury’s verdict was that they believed he had not presented sufficient proof that Dr. Hixon’s actions caused Johnson’s death. Representatives for the defense were unavailable for comment before this article was published.


Related information:

Attorneys involved in the case include Michael Harper of Atlanta's Michael Harper & Associates for the plaintiffs, and Mark Meliski of Atlanta'a Owen, Gleaton, Egan, Jones & Sweeney for the defense.

Watch on-demand video of the trial as soon as it becomes available. 

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Topics: Medical Malpractice, Georgia, Morgan v. Hixon

Hidden Camera Shots, Expert Testimony Lead to Defense Win in Former Pilot's $6.5M Med Mal Case

Posted by Arlin Crisco on Apr 1, 2015 2:12:15 PM

Thomas Aubin tells jurors that surveillance photos show Daniel Crowe using his left arm in ways that run contrary to Crowe’s complaint of an arm injury.  Aubin’s clients, Drs. Steven Wexner and Jeffrey Jacobs, prevailed in Crowe’s suit claiming he suffered nerve damage to his arm during colon surgery performed the physicians. Click here to watch the closings.    


 

Fort Lauderdale, FL—After more than two weeks of testimony ranging from expert medical opinions to surveillance footage, a jury Tuesday afternoon took less than two hours to find physicians at The Cleveland Clinic Florida were not responsible for nerve damage that a former commercial airline pilot claimed ended his career. Crowe v. Cleveland Clinic, et al., CACE1120220.

Click Here FREE Florida Trial Video Samples Jurors found Drs. Steven Wexner and Jeffrey Jacobs were not negligent during an April 2010 colon surgery on Daniel Crowe, a former American Airlines pilot. Crowe sued Wexner, the procedure’s surgeon; Jacobs, its anesthesiologist, and The Cleveland Clinic Florida for $6.5 million.

Crowe contended that being placed upside down with his shoulders resting on a combination of rigid supportive bean bags and a layer of protective padding during surgery injured the his brachial plexus, the network of nerves runnin from the spine to each arm. Though Crowe claimed his right arm largely recovered, he alleged that the nerve damage to his left arm left him in severe pain and without full use of his arm or hand, grounding him as a pilot.

In closing arguments Tuesday, Searcy Denney’s John Shipley III, representing Crowe, reminded jurors that Dr. Brian McAlary, an anesthesiologist and plaintiff’s expert, testified that he believed “suboptimal” positioning on the hard bean bag pads damaged the nerves in Crowe’s arm.

Shipley acknowledged that a softer foam pad was placed between Crowe’s shoulders and the bean bags that supported Crowe’s weight, but he claimed it was insufficient to prevent nerve damage. “You’re going to have (the foam pads) with you back there (in the jury room),” Shipley told jurors Tuesday. “You can feel them. They look like a kitchen sponge. You can decide whether they’re enough protection for Dan Crowe to prevent these brachial plexus injuries that he had."

However, Stearns Weaver’s Thomas Aubin, representing the defense, told jurors that expert testimony established that Crowe’s positioning met acceptable standards of care. During closings, Aubin read testimony of Dr. Paul Kovalcik, a surgeon and plaintiff’s expert, who agreed that Crowe’s arms had been properly placed for the colon surgery. “This is their expert surgeon telling you, in this court, on this stand, that the defendants met the standard of care as it relates to the first aspect of positioning,” Aubin said.

During trial, the defense also challenged Crowe’s credibility, highlighting the absence of nerve damage complaints in post-operative medical records and offering surveillance footage of the former pilot performing daily tasks with his left hand.

During closings, Shipley told jurors the surveillance footage actually bolstered Crowe’s claim because it showed him using his right hand to start a car whose ignition switch was on the left hand side of the steering column. “All that surveillance for all that time… doesn’t prove anything other than the fact that he does have this injury and can’t start his car with his left hand,” Shipley said. “There’s no testimony in this case that what Dan Crowe wants to do is take narcotic medications and sit home and watch CSI on TV. He wanted to fly.”

Aubin countered that the surveillance images stood in stark contrast to Crowe’s injury claims. During closings, Aubin highlighted surveillance shots of Crowe driving, carrying a bag over his shoulder, and performing other daily tasks with his left hand. “You folks have to decide the credibility of every witness,” Aubin told jurors. “You folks have to decide if what’s being shown to you in this staged courtroom is what’s happening outside this staged courtroom.”


Additional information

Attorneys include Searcy Denney's John Shipley and Darryl Lewis, representing Daniel Crowe, and Stearns Weaver's Thomas Aubin and Matthew Podolnick, representing the defense. 

Watch select portions of the trial on demand. 

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Topics: Negligence, Medical Malpractice, Florida, Crowe v. Cleveland Clinic,

Ford Settles $31M Seat Belt Design Suit, Avoiding Mistrial

Posted by David Siegel on Mar 30, 2015 3:51:00 PM

Batts

An attorney for Ford shows jurors a certification stating that the 1999 Ford Escort met all federal safety requirements during her closing argument. Click here to see video from the trial. Click here for a copy of the complaint.

Nashville, N.C. — Ford Motor Co. settled a $31 million product liability suit over the design of a seat belt on Monday in North Carolina state court, narrowly avoiding a mistrial after the jury claimed to be deadlocked following weeks of testimony about whether or not the belt caused a teenager’s paralysis.

Watch Video from National Trials The settlement announcement follows a dramatic series of events on Friday evening, when the jury initially seemed to clear Ford of any liability in the case, which stemmed from a rear-end collision that left plaintiff Che-Val Batts paralyzed despite other unrestrained passengers in the 1999 Ford Escort he was riding in suffering comparatively minor injuries.

The jury informed the court just before midnight on Friday that it had reached a verdict a few hours after closing arguments took place. The verdict stated the two-point lap belt Batts was wearing was not defective, and that the driver of the car who rear-ended the Escort, Alejandro Rios, was solely responsible for Batts’ injuries and should pay $750,000 in damages, according to a Courtroom View Network webcast of the proceedings. Batts' attorneys had asked for over $31 million in compensatory and punitive damages. 

However during jury polling, it became evident the verdict was not unanimous as required under North Carolina law, and deliberations resumed on Monday morning. Shortly before lunch the jurors claimed to be deadlocked 8-4, and Judge Thomas Lock directed them to continue deliberations.

The confidential settlement was announced in court a short time later.

Plaintiffs' attorney J. Kent Emison of Missouri-based Langdon & Emison told CVN he and his clients are "extremely pleased" with the resolution to the case but declined to comment on the specifics of the settlement. 

A Ford spokeswoman declined to comment on the terms of the deal beyond expressing sympathy for Batts and stating his injuries were caused by Rios’ actions. 

While the settlement was disclosed to the jury on Monday, it is unclear when the parties actually resolved the case. On Friday evening a Ford spokeswoman emailed CVN a statement six hours before the non-unanimous verdict was announced claiming the parties had reached a confidential settlement and waived all rights to an appeal.

The statement, which Ford later retracted, also included language indicating the jury had reached a verdict in favor of the plaintiff. Ford later said they prepare media statements for multiple outcomes in a case, and that the wrong statement had been mistakenly released. The company did not respond to follow-up questions regarding whether or not a settlement had actually been reached when the retracted statement was issued on Friday.  

Batts’ attorneys claimed the rear-impact collision in 2010 caused him to “jacknife” over the belt and injure his spinal chord, and that Ford should have installed an allegedly safer three-point shoulder belt in the car.  

Ford's attorneys argued that lap belts were intentionally used because they are safer for small children, but Emison responded that Ford’s own promotional materials suggested that if a child was too small for a shoulder belt, that they be restrained in a booster seat instead of using a lap belt. He claimed Ford knew as far back as the 1960’s that two-point lap belts offer less protection than three-point shoulder belts.

Fords’ attorneys told the jury those arguments were irrelevant, because the Escort met all federal safety standards at the time and was not defective. They claimed Batts was not wearing the lap belt properly at the time of the collision, and that he had slouched forward in his seat, so the belt covered his stomach instead of resting on his hips like it was designed to.

During her closing argument, Ford’s attorney Sandra Giannone Ezell of Bowman and Brooke LLP kept an image displayed on a projection screen of a federal certification stating that the 1999 Ford Escort met all required safety standards. She told jurors that the federal law applied to the car “bumper to bumper” including the two-point lap belt in the rear seat. She argued that any injury from the belt wasn’t due to it being defective, but because it was not worn by Batts the way its designers intended.

“We are 100 percent sorry that this happened to him and zero percent responsible,” Ezell told the jury. “There is no question Che-val Batts was not seated upright with the belt on his hips at the time of this accident.”

During the trial jurors heard graphic testimony regarding Batts’ extensive injuries, and in one of the most emotionally charged moments of the proceedings, Rios, who does not speak English, broke down in tears on the witness stand upon learning for the first time that the accident resulted in Batts being paralyzed.

However Ezell repeatedly stressed to the jury that sympathy for the plaintiff must not guide their deliberations and forcefully argued that the only question that mattered was whether or not Ford complied with applicable safety standards when designing the 1999 Escort.

“Everyone who came in here said Ford followed the law,” Ezell told the jury.

The trial was recorded gavel-to-gavel by Courtroom View Network.

The plaintiffs are represented by J. Kent Emison of Langdon & Emison and by Hoyt Tessener and Megan West of Martin & Jones PLLC.

Ford is represented by Sandra Giannone Ezell and Nathan Colarusso of Bowman and Brooke LLP.

Rios is represented by attorney Kevin Lewis.

The case is Amos Tyndall, as Guardian Ad Litem for Che-Val Batts v. Ford Motor Co. and Alejandro Ortiz Rios, case number 11-CVS-86, in the General Court of Justice, Superior Court Division of Nash County.

David Siegel can be reached at dsiegel@cvn.com.

Previous coverage:

Paraplegic's $28M Suit Over Ford’s Seat Belt Design Goes To Trial

Related:

Click here to check out more product liability cases in CVN's one-of-a-kind online video archive. 

Topics: Products Liability, automotive

Jury Issues Failing Grade to College Student in Slip/Fall Suit Against Board of Regents

Posted by Steve Silver on Mar 27, 2015 12:45:00 PM


Atlanta—A Fulton County Superior Court jury issued a verdict against an Atlanta Metropolitan State College student who was injured when she slipped and fell in a puddle of water in a classroom building. Desiree Lee v. Board of Regents of the University System of Georgia (2012CV225353).

According to her testimony at trial, Desiree Lee, an Atlanta Metropolitan student, was going to her English class on July 26, 2011. She had just exited an elevator in the classroom building when she slipped in a puddle of water, fell backwards, and hit her head on the floor. She reported that she did not see the puddle prior to the accident and had no idea how large it was. Lee was taken in an ambulance to Grady Hospital, and received medical treatment for her injury both in the emergency room and in subsequent months. Because Atlanta Metropolitan is a state university, she filed the current negligence suit against the Board of Regents.

Click Here FREE Georgia Trial Video Samples At the trial, Lee’s attorney Andrew Kiehle questioned several witnesses associated with the college in regard to the school’s safety and maintenance policies. Antonio Long, the campus police chief, testified that the college did not have a specific written safety policy regarding slip-and-fall incidents, and the school’s general policies regarding injury treatment pertained to police matters such as assaults or traffic accidents. He added that his office did not conduct any follow-up investigation in regard to Lee’s accident. Long acknowledged that the school had video cameras in the classroom building corridor, but the footage from the day of the accident was not saved because the college only saved footage that might be evidence in a criminal case, not a standard slip-and-fall incident.

Keith Williams, the Director of Plant Services at the college, testified that the school followed two industry standard custodial manuals in regard to maintenance procedures. According to Williams, custodians did not keep individual log books of their activities, but they were given work schedules to follow. However, the schedules were somewhat flexible because some rooms might be occupied at the time originally scheduled for cleaning. As a result, a custodian’s exact work route through the classroom building might change from day to day. He added that that custodians did not do any mopping during the day. During a typical day shift, there would be four custodial people responsible for all the activity on the 400,000 square foot campus.

Williams further testified that his office did not monitor the content of the video cameras in the classroom building. When asked how he knew if custodians were doing their job as scheduled, Williams replied that if any rooms were not cleaned as scheduled, people would notify his office and complain.

After Lee rested her case, Assistant Attorney General Ron Boyter, representing the Board of Regents, moved for a directed verdict on the ground that Lee had failed to demonstrate that the college had no policies and procedures in regard to inspecting the classroom building. In his view, the testimony “is very clear that there are policies in place … they’re told what to do, what procedures to go through. They follow industry standards. There’s a work order that tells them where they’re supposed to go… they follow up on it to make sure they’re doing their job. Nothing in the case law requires that to be written down.”

In Andrew Kiehle’s view, however, “there is no policy in place because there is no written policy in place… I don’t think a policy is a policy unless it’s in writing. Testimony from a witness is for a jury to decide… Testimony is testimony; a document is a document. There is no document, no policy showing what their policy is.”

Judge Tom Campbell reserved his ruling on the defense motion, and the defense proceeded with its case.

The primary defense witness was Janniece Perdue, the custodian on duty in the classroom building on the day of the accident Perdue testified that any time she would go through an area of a building, she was required to police the area to ensure there was no debris or any spills on the floor. At the time of the accident, she was cleaning a classroom down the hall from the spot where Lee fell. Perdue stated that she had passed through the area where Lee fell about approximately 15 minutes earlier before entering the classroom and beginning her cleaning.

Perdue said she received a call on the radio she carried, notifying her of the accident. She went into the hallway and saw Lee lying on the ground with several people around her. She noticed a puddle of water about three feet wide in the area. Perdue then took the elevator to another floor to get wet floor signs and a mop bucket and then returned to clean up the spill.

After the trial, Andrew Kiehle told Courtroom View Network that, in his view, the key to the jury’s eventual decision was probably Janniece Perdue’s testimony that she had been in the area of the puddle approximately 15 minutes earlier. Representatives for the defense were unavailable for comment.


Related information:

Attorneys involved in the case include Andrew Kiehle of Kiehl Law Group of Atlanta for Desiree Lee and Jared Campbell and Ron Boyter of the Attorney General's Office for the Board of Regents.

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Topics: Premises Liability, Negligence, Georgia, Lee v. Board of Regents

$2M Verdict But No Punitives in Retrial of Engle Cancer Suit Against RJR and Philip Morris

Posted by Arlin Crisco on Mar 26, 2015 4:40:06 PM

Gore

Robert McCarter delivers closings in Robert Gore's suit against R.J. Reynolds and McCarter's client, Philip Morris. Gore claims the tobacco makers' concealment of the smoking's health hazards led to his wife's artery disease and, eventually, her fatal cancer. Watch gavel-to-gavel coverage of the trial here.


Vero Beach, FL—Jurors today awarded $2 million in a Florida man’s suit against tobacco manufacturers R.J. Reynolds and Philip Morris for the artery disease and cancer that he says killed his wife, a smoker for more than 40 years.   

Watch Video from Tobacco Trials Jurors deliberated a day-and-a-half before reaching their verdict, which apportioned 54% of responsibility to Gloria Gore, the smoker at the case's heart, and 23% each to R.J. Reynolds and Philip Morris. Gore’s widower, Robert Gore, sought $7.5 million in the Engle progeny suit, claiming that the tobacco companies hid the dangers of smoking for decades, which caused his wife’s nicotine addiction, her carotid stenosis, and eventual fatal lung cancer.

In reaching its decision, the jury found that Gloria Gore's addiction to cigarettes for more than four decades led to both her carotid stenosis and lung cancer. Although it awarded $2 million in compensatories to Robert Gore, it refused to find liability for punitives. 

The suit is one of thousands of similar Engle progeny lawsuits filed against tobacco companies in Florida. The cases arise from a 2006 Florida Supreme Court decision decertifying Engle v. Liggett Group Inc., a class-action tobacco case originally filed in 1994. Although that court ruled Engle cases must be tried individually, it found plaintiffs could rely on certain jury findings in the original verdict, including the determination that tobacco companies had placed a dangerous, addictive product on the market and had conspired to hide the dangers of smoking. To rely on those findings, individual Engle progeny plaintiffs such as Gore must prove the smoker’s addiction to cigarettes and a causal link between the addiction and a smoking-related disease that manifested itself by November 21, 1996.

Doctors diagnosed Gloria Gore with carotid stenosis, an artery disease, in 1992. She ultimately died of lung cancer in 2000. However, because her carotid stenosis was the only disease to have “manifested” itself prior to the November 21, 1996 cutoff date for Engle class action membership, the link between that disease and her smoking served as a central point of dispute in the trial.  

During closing arguments Tuesday, Shook Hardy’s Robert McCarter, representing Philip Morris, told jurors that Gloria Gore’s genetics, and not her smoking, led to her artery disease. “What you see is that her mother, a non-smoker, had (artery disease); her sister, a non-smoker, had it. She had two uncles, we don’t know their smoking status, but they both had it. And, Mrs. Gore had carotid artery disease,” McCarter said. “Cigarette smoking has nothing to do with it. It runs in your family whether you’re a smoker or not.”

Robert Gore’s attorneys countered that medical testimony proved Gloria Gore’s artery disease was linked to her smoking. During closings, Foote, Mielke, Chavez & O’Neil’s Robert Foote reminded jurors that Gloria Gore’s treating physician, Dr. W. Clark Beckett, a vascular surgeon, testified that he believed Gore’s carotid stenosis would not have occurred absent her smoking. “This whole family history thing is a complete red herring," Foote said. "Because what you heard from the doctors who talked about it was that there is no question (that) what caused... her carotid artery disease was the smoking. The 4 or 5 million hits (from cigarettes) that she took over her life."

Beyond the potential link between Gloria Gore’s smoking history and her carotid stenosis, attorneys sparred over whether she had been addicted to cigarettes, a fundamental requirement to succeed in an Engle progeny action. Arguing that testimony showed Gloria Gore tried to quit smoking, at most, only once in more than 40 years, McCarter told jurors “Without evidence that Mrs. Gore ever made a sincere attempt to quit smoking, how could anybody say that she was addicted?”

However, Foote reminded jurors that three physicians, including Beckett and addiction expert Dr. David Burns, testified that they believed Gloria Gore was addicted to cigarettes. “We have three medical opinions, and no opinion otherwise,” Foote said. “This is not ‘the greater weight of the evidence.’ This is 100% of these people believe… that she was addicted to nicotine contained in defendants’ cigarettes.”

The week-and-a-half long trial, with Judge Cynthia Cox, presiding, was the second in less than a year for the suit. In August 2014, Judge Cox declared a mistrial in the case when jurors awarded no compensatory damages to Gore but still found defendants liable for potential punitive damages.  

Attorneys could not immediately be reached for comment. 


Additional information

Attorneys in the case include Foote, Mielke, Chavez & O’Neil’s Robert Foote and Stark & Stark's Stephen Corr representing Robert Gore. Shook Hardy's Robert McCarter represents Philip Morris and Jones Day's Stephen Geise represents R.J. Reynolds. 

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Topics: tobacco, Engle Progeny, Florida, Gore v. R.J. Reynolds

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