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Atlanta—After a one-day postponement due to inclement weather, testimony resumed today in Fulton County Superior Court in a trial in which Margaret Jones, a veteran Atlanta public relations and political consultant, is seeking to recover unpaid consulting fees for her work in preparing the winning proposal for the $400+ million Perry Homes redevelopment project (now known as West Highlands). Margaret Jones and Associates and Margaret Hylton Jones v. Perry Homes Redevelopment, LLC et al. (2003CV79479)

In 1999, the City of Atlanta demolished the former Perry Homes public housing project in west Atlanta, and the Atlanta Housing Authority began accepting proposals from private contractors to redevelop the property. According to statements and testimony in the case, Jones, who had served as a consultant to the AHA previously, met early in 2000 with Carl Drury, a golf course developer who wanted to build a course on a property adjacent to the proposed Perry Homes revitalization project.

Shortly thereafter, Jones and Drury met with Richard White, another consultant for the AHA, to discuss the Perry Homes revitalization project. Eventually, Drury; multi-unit housing developer Noel Khalil, a client of White; and single-unit housing developer Steve Brock formed Perry Homes Redevelopment, the entity that was awarded the project in 2001. However, Drury’s planned golf course was never built, and the final West Highlands project consisted of a mix of multi-unit and single-unit housing.

All the parties agree that Jones has never been paid for any work she performed on the project. Jones filed her lawsuit against Brock, Khalil, and White in 2003. In 2011, the Georgia Court of Appeals allowed the case to go to trial against all three defendants on differing theories of liability.

In his opening statement, Jones’s attorney, Richard Robbins, acknowledged that Jones never had a signed contract with any of the parties in the case for consulting fees. However, he contended that Jones, Drury, and the three defendants all considered themselves “team members” and that none of them had written contracts regarding compensation while the proposal was being developed. Instead they went forward on the basis of a “couple of handshakes,” and all participated in the preparation of the proposal

Robbins added, “It doesn’t get complicated until they win the award. Now we will see what happens when money enters the picture and when certain people get the right to make a lot of money.” According to Robbins, White then entered into a “secret signed deal” with Khalil to which Jones was not a party. Brock, on the other hand, denied any knowledge of any agreement with Jones, according to Robbins. He continued, “At the end of the day, everyone there got money off this project … that Margaret spearheaded, and Margaret is sitting here 12 years later without anything.”

The three defendants had different views of the financial arrangements involved in the project, but none believed they owed Jones any money. Khalil’s attorney, Christopher Philips, also characterized the various parties to the project as a “team.” However, he said that although the parties had several discussions in the early stages of the project on how they were to be paid, they never came to an agreement. Instead after May 2000, “everybody stops focusing on that; the focus becomes let’s get the job, let’s get the award. Because nobody gets paid if you don’t get the award.”

According to Philips, even after the award was made, the parties couldn’t agree on the payment of fees. However, by 2002, Khalil needed to begin construction on his portion of the project and needed written contracts in place to proceed. So, Khalil signed an agreement with White to pay him Khalil’s share of the consulting fees for the project. Khalil understood that Jones would be paid by White in accordance with whatever arrangement the two consultants had. Since Khalil had already made full payment of all fees owed by the time of the trial, Jones’s recourse for unpaid fees, if any, would be against White.

Steve Brock’s attorney, Joe Sharp, denied that Brock had any agreement with any of the other parties in the case for the payment of consulting fees. Further, he denied that Brock had requested or received any services from Jones in connection with the preparation of the proposal. “Brock Built [Brock’s company] did not hire Ms. Jones. Brock Built did not ask Ms. Jones to do anything for it. Ms. Jones asked to do stuff for Brock Built; Brock Built said no. All the information that went into the proposal for Brock Built, it provided itself.”

Richard White is appearing pro se in this case. In his opening statement, he contended that Khalil was his only client in the project, that he had an agreement with Khalil and was paid by Khalil. He said that Drury was Jones’s client in the project, that she had provided services for Drury during the preparation of the proposal (such as the preparation of Drury’s curriculum vitae), and that any fees owed Jones were owed by Drury.

Testimony is expected to continue in the case for the remainder of the week.

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Related information:

Attorneys in this case include Richard Robbins with the Robbins Firm of Atlanta for Margaret Jones, Christopher Phillips with Hunter Maclean of Savannah for Noel Khalil, and Joseph Sharp with Polsinelli of Atlanta for Steve Brock.

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Judge Thomas Lynch questions jurors following their partial verdict in Caprio v. Philip Morris. Click here for Tuesday's proceedings, including jury question and verdict.

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Fort Lauderdale, FL—After nearly three full days of deliberations, a jury’s partial, potentially inconsistent, verdict Tuesday in a smoker’s Engle progeny suit against four of the country's largest tobacco manufacturers raised questions of a mistrial and jeopardized its half-million-dollar award. Caprio v. Philip Morris, 2007-CV-036719.

Edward Caprio sought more than $13.3 million in his suit claiming cigarettes made by R.J. Reynolds, Philip Morris, Lorillard, and the Liggett Group caused his chronic obstructive pulmonary disorder. After receiving the case Friday morning, jurors on Monday expressed difficulty reaching a verdict, prompting Judge Thomas Lynch to deliver an Allen charge. By Tuesday afternoon, the jury announced they reached consensus on only four of seven questions on the verdict form, including addiction causation and allocation of responsibility. Although the jury awarded Caprio $559,172 for his medical expenses and lost earnings, it failed to agree on an award for pain and suffering or entitlement to punitive damages. Under questioning from Judge Lynch, the jury also recanted verdict form answers in favor of Caprio on two fraud-reliance questions.

After the jury's verdict and outside its presence, defense counsel repeatedly moved for a mistrial, which Judge Lynch said he would consider during future post-verdict proceedings. Shook Hardy Bacon’s Walter Cofer, representing Philip Morris, told Judge Lynch that that the partial verdict, combined with the jury’s repudiation of issues on which it initially claimed to reach agreement, rendered the decision unsalvageable. “Thank you for all of your efforts to salvage a partial verdict. Let’s release (the jury) and thank them for their service, and let’s go home,” Cofer said. “We have a mistrial.”

However, the Schlesinger Law Offices’ Scott Schlesinger, representing Caprio, argued that the partial verdict should stand, reasoning that early Engle trials in Broward County were typically bifurcated proceedings on the issue of liability and damages. Schlesinger also claimed that defense counsel’s motions for mistrial were made to avoid the verdict’s fundamental finding of liability. “Why is it so important for the defendant to have a complete mistrial and not have any result from this case whatsoever?” Schlesinger said. “Who benefits? Where’s the sincerity in their arguments?”

A decision on any motion for mistrial is not expected to be made until after conclusion of post-verdict proceedings.

Caprio, 72, started smoking when he was 15, and claims he most recently quit last month, nearly 19 years after he was first diagnosed with COPD. Caprio now relies on around-the-clock oxygen supplementation.

Addiction formed a key issue at trial. Caprio's attorney, Schlesinger Law Offices' Steven Hammer, reminded jurors in closings last week of expert testimony concerning Caprio's nicotine addiction and described his client as still “hopelessly addicted” to cigarettes.

Conversely, defense attorneys argued that Caprio’s multiple quit attempts over the decades, some of which extended for months at a time, established that environmental and behavioral triggers, rather than addiction, fueled Caprio’s smoking. “If Mr. Caprio was so hopelessly addicted to nicotine that he simply couldn’t function without it, how did he manage to quit smoking for six months in 1985 or ’86; three of four months in 2001; or for four, five, or six months in 2005; or since January 1, 2015? If he was so hopelessly addicted to nicotine, how could he do that?”

Neither the attorneys for the parties, nor representatives of the tobacco manufacturers involved, could be reached for comment.

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Atlanta—Fulton County State Court Judge Diane Bessen declared a mistrial when the jury was unable to reach a verdict in a medical malpractice case involving a woman who suffered permanent nerve damage following spinal fusion surgery. The plaintiff, Terri Hendrix, had alleged over $4 million in special damages in the case. Terri Hendrix and Mike Hendrix v. Herschel Beker, M.D., and Resurgens, P.C. (13EV016515).

According to testimony and statements in the case, on September, 22, 2011, Dr. Herschel Beker performed a spinal fusion on Hendrix to alleviate chronic back and leg pain on her right side. In performing the surgery, Dr. Beker used a device called a rongeur that removed a portion of one of Hendrix’s spinal discs.  However, at least one of the nerves in Hendrix’s spine was injured during the surgery, resulting in permanent damage.

Hendrix’s attorney, Jay Lukowski, contended that Beker committed professional malpractice when he avulsed (tore) one of the lumbar nerves near the area of the surgery, resulting in severe pain and the partial loss of use of Hendrix’s left leg. During her testimony, Hendrix also stated that she began suffering bladder problems immediately after the surgery that eventually resulted in her needing to use a catheter daily in order to urinate. Lukowski contended that Beker negligently damaged some of Hendrix’s sacral nerves during the surgery as well, which caused the bladder problems.

Dr. Raymond Jacob, a neurosurgeon who was Hendrix’s expert witness, testified that the rongeur Dr. Beker used must have gone beyond the area of the spinal disc itself and penetrated the adjacent dural sac in which the spinal nerves were located. The rongeur then avulsed the spinal nerves. He felt Dr. Beker was negligent because he could not properly see the area in which he was operating and he failed to keep his surgical instrument under control. Jacob thought that both Hendrix’s leg and bladder problems were caused by the nerve damage resulting from Dr. Beker’s negligence.

Both Dr. Beker and his expert witness, orthopedic surgeon Dr. James Malcolm, testified that damage to the lumbar nerve such as what Hendrix suffered was a known complication of the type of surgery that Beker performed. Beker denied damaging Hendrix’s sacral nerves during the operation, and Malcolm agreed, pointing out that the sacral nerves were over an inch away from the lumbar nerve that was damaged. Malcolm also said there was no evidence that Beker couldn’t visualize the area in which he was operating.

According to defense attorney Paul Weathington, the injury to Hendrix’s lumbar nerve was “unavoidable” and an “acceptable complication of the surgery.” He also denied that Hendrix suffered any damage to her sacral nerves, pointing out that various medical reports in the months after the surgery indicated Hendrix could urinate normally. “They desperately want to win the issue of [sacral] nerve injury… It’s to prove that Dr. Beker injured more than this [lumbar] nerve which we contend was unavoidable. It’s to prove that he got into the central area of the canal where they maintain these [sacral] nerves are. They desperately want you to believe that there was a [sacral] injury and they can’t win the case if you don’t believe that.”

In his closing statement, Lukowski countered by pointing out that Hendrix, her husband, and her mother all testified that she began experiencing urination problems immediately after the surgery and that those problems never went away. Lukowski stated, “Coincidence. That’s what the defense wants you to believe. That this is nothing but a great big coincidence, that miraculously Terri’s better; now she’s worse.” He further noted that Hendrix’s treating physician and a consulting urologist also gave their opinions that Hendrix’s bladder problems resulted from the surgery.

Attorneys for the parties could not be reached for comment.

CVN will provide on-demand footage of the trial as soon as it becomes available. 

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 Related information:

Attorneys involved in the case include Jay Lukowski and Louise Meller of Atlanta's Kaplan and Lukowski, as well as Evan Altman of Atlanta, for the plaintiffs, and Paul Weathington and Heather McGrotty of Atlanta's Weathington Smith representing the defendants.

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

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Alex Alvarez delivers closing arguments prior to the jury's award of more than $17.4 million in damages, including $11.6 million in punitives, in his client Vickie McKeever's Engle progeny suit against Philip Morris. Click here for a clip from the closings. 

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McKeever v. Philip Morris

Fort Lauderdale—Jurors awarded Vickie McKeever $17.4 million, including $11.6 million in punitive damages on Friday evening, in her suit against Philip Morris for her now-deceased husband's chronic obstructive pulmonary disorder and lung cancer. 

Prior to considering punitives Friday, jurors on Thursday took less than five hours to deliberate before finding that Vickie McKeever was entitled to nearly $5.8 million in compensatory damages, including $3.5 million for Theodore McKeever’s pain and suffering.

Theodore McKeever, who was born in 1930, began smoking when he was 13. By 1996, he was diagnosed with emphysema. He was subsequently diagnosed with lung cancer in 2005 and had one lung removed a year later. McKeever died in 2013.

The two-week trial centered on the issue of nicotine addiction, a prerequisite to Engle class membership. In closings Thursday, the Alvarez Law Firm’s Alex Alvarez, representing McKeever, told jurors that, while expert testimony supported the claim that McKeever was addicted to nicotine, "common sense" proved the point. “Think about this for just a second. This man smoked, one, two, three packs a day, for over 60 years, right? It was enough to cause his COPD. It was enough to cause his lung cancer, but it wasn’t enough to be addictive?” Alvarez asked. “How does that make sense? How does that make common sense?”

However, Arnold & Porter’s Jonathan Stern, representing Philip Morris, told jurors that evidence, including the amount that McKeever smoked, wasn’t sufficient to prove addiction. Stern pointed out that plaintiff’s addiction expert, psychologist David Drobes, testified that he assumed McKeever smoked 2 ½ to 3 packs of cigarettes a day. “There is absolutely no reliable evidence on that point. And, in fact, the reliable evidence is completely contradictory to that,” Stern said. “Mr. McKeever never said, ‘I smoked 2 ½ to 3 packs a day. That never came out of Mr. McKeever’s mouth.”

Stern also attempted to minimize the impact of testimony by Dr. Glenn Singer, one of Theodore McKeever’s physicians, by noting that Singer had not treated McKeever for addiction. “Dr. Singer was Mr. McKeever’s physician, but he is a pulmonologist. He didn’t treat him for anything having to do with addiction,” Stern said. “You know, that by the time Dr. Singer met Mr. McKeever, Mr. McKeever was a non-smoker. He had quit smoking months before.”

Subsequent to the award of compensatories, the trial's second phase, concerning the amount of punitives, took less than the full day Thursday, with plaintiff's attorneys offering the videotaped deposition of Frederick Raffa, an economist who testified concerning Philip Morris’ profits, while the defense’s sole witness, Richard Jupe, of Philip Morris’ parent company, Altria Group, testified concerning the tobacco manufacturer's marketing changes. 

During Phase II closings Friday afternoon, Stern highlighted Jupe’s testimony in describing what he characterized as “the Philip Morris of today.” Stern told jurors that the sweeping terms of a 1998 master settlement agreement, which barred marketing tactics such as product placement and advertising, fundamentally altered the company. “All of that (older marketing technique) is gone. No more. All of those things that Mr. Jupe told you about that are prohibited under the master settlement agreement are no longer available for advertising by Philip Morris,” Stern said. “And they never will be, as long as Philip Morris wants to stay in business.”

However, Alvarez told jurors in Phase II closings that Jupe’s testimony still encompassed Philip Morris’ attempts to deny liability for its actions. “Mr. Jupe would not even admit that nicotine in cigarettes was highly addictive,” Alvarez said hours before jurors returned their $11.625 million punitive verdict. “He couldn’t look you in the face and admit that they had lied and concealed for over 50 years. He couldn’t do it.”

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McMannis v. R.J. Reynolds

Punta Gorda, FL—Tobacco giants R.J. Reynolds and Philip Morris prevailed Thursday afternoon in Donald McMannis’ suit claiming that his wife Barbara’s fatal brain cancer stemmed from smoking-related lung cancer.

The jury needed less than four hours to reach its verdict, which answered “No” to the initial question of whether Barbara McMannis was addicted to nicotine and whether that was the legal cause of her lung cancer.

The origin of Barbara McMannis' cancer was a central issue throughout trial, as many of the medical records supporting her cancer diagnosis and treatment prior to her death in 1995 had been destroyed during routine document purges. Donald McMannis’ attorneys, including Morgan & Morgan’s Keith Mitnick, contended that various surviving documents, including Barbara’s death certificate, were sufficient to establish that she had smoking-related lung cancer that spread to her brain. “We don’t have all the results of all the tests. We don’t have all of the MRIs. We don’t have all of the information. But we have something that’s just as good when the burden of proof isn’t 'Do you know for sure?'" Mitnick told jurors in closings. “The attending doctor from the hospitalization in question said that she had metastatic pulmonary carcinoma—that’s lung cancer—to the brain.”

However, Shook Hardy Bacon’s William Geraghty, representing R.J. Reynolds, told jurors that the medical evidence remaining today, including lung tissue pathology reports that were negative for cancer, could not support a finding that McMannis had a lung malignancy. “Based on the medical records that we have available to us… you can say only two things for sure in this case: one, Mrs. McMannis had a tumor in her brain, and number two, that the doctors did not find any cancer in her lungs,” Geraghty told jurors on Thursday.   

Geraghty also reminded jurors that the plaintiff's own medical expert, Dr. Luis Villa, had never treated Barbara McMannis and had conceded on the witness stand the paucity of records available to support a finding of lung cancer.  “He acknowledged to you, ladies and gentlemen, that based on the evidence in this case, no doctor in any hospital in the United States of America would diagnose or treat Barbara McMannis for lung cancer. That’s what their own expert told you.”

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Caprio v. Philip Morris

Fort Lauderdale—Jurors recessed Friday afternoon after spending more than six hours deliberating without reaching a verdict in Ed Caprio’s suit seeking  more than $13.3 million in damages for the COPD and lung cancer he claims was caused by defendants Philip Morris, R.J. Reynolds, Lorillard, and the Liggett Group.

Closings stretched across two days, as opposing counsel argued over Caprio’s decades-long smoking history, which included multiple quit attempts, and its relation to the issue of nicotine addiction.  During his closing, The Schlesinger Firm’s Steven Hammer, representing Caprio, described his client as “hopelessly addicted to nicotine,” and said that even diagnoses of respiratory disease and cancer couldn't break his addiction. “He tried so many different ways to quit and he couldn’t do it,” Hammer said. In asking jurors for more than $13.3 million in damages, 

Noting that Caprio, quit smoking in January 2015 but still requires around-the-clock oxygen supplementation, Hammer told jurors his client “still craves the cigarettes, and that’s crazy. That’s crazy. But he does.”

However, Shook Hardy Bacon’s Walter Cofer, representing Philip Morris, reminded jurors of evidence that Caprio had quit smoking for months at a time over the course of several decades, but elected to return to cigarettes each time before this year. Cofer told jurors that Caprio’s behavior was a tell-tale sign that his smoking was not based on addiction. “If Mr. Caprio was so hopelessly addicted to nicotine that he simply couldn’t function without it, how did he manage to quit smoking for six months in 1985 or ’86; three of four months in 2001; or for four, five, or six months in 2005; or since January 1, 2015? If he was so hopelessly addicted to nicotine, how could he do that?” Cofer asked.“Only Mr. Caprio could choose to smoke or quit smoking. More importantly, only Mr. Caprio could choose to stay quit.”

Jury deliberations will resume Monday at 9 a.m.

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Atlanta—Trial began today in Fulton County State Court in the case of a woman who underwent spinal fusion surgery to relieve chronic pain but who allegedly suffered permanent damage due to torn nerves resulting from her surgeon’s negligence. Terri Hendrix and Mike Hendrix v. Herschel Beker, M.D., and Resurgens, P.C. (13EV016515).

According to documents filed with the court and statements made at trial, Terri Hendrix sought treatment from Dr. Herschel Beker for chronic back and leg pain on her right side resulting from a compressed disk. On September 22, 2011, Dr. Beker performed a spinal fusion on Hendrix that relieved the pain. However, during the course of the surgery, Hendrix suffered significant nerve damage.

Shortly after the surgery, Hendrix began leaking spinal fluid in the area of the operation. She also complained of headaches, pain on her left side, and decreased sensation and weakness in the left leg. Two weeks after her spinal fusion, Hendrix underwent a second operation, performed by another surgeon, to repair the spinal fluid leak. She remained hospitalized for nearly a month following the second surgery.

According to her doctors, Hendrix currently suffers from drop foot and the inability to urinate normally, both caused by nerve damage. She self-catheterizes daily and uses an electrical device to help manage her pain. She requires a cane to help her walk and occasionally needs a wheelchair.

Hendrix contends that, during her initial surgery, Dr. Beker negligently tore three nerve fibers in her lumbar back, resulting in her pain and the damage to her leg, In addition, she contends that Dr. Beker also entered her spinal canal during the operation, damaging several sacral nerves, which caused her bladder problems.

Dr. Beker agrees that Hendrix’s lumbar nerves were torn during the surgery, but denies that his treatment of Hendrix constituted malpractice. Instead, he contends that this type of nerve damage is a known and acceptable complication resulting from the type of spinal fusion he performed on Hendrix and did not result from his negligence.

Hendrix has alleged over $4 million in special damages in this case, including past and future medical expenses and lost earnings. Her husband, Mike Hendrix, also alleges damages for loss of consortium.

The jury heard opening statements from both parties today, along with testimony by Mike Hendrix and a video deposition by Dr. Erik Shaw, one of Terri Hendrix’s physicians. The trial is expected to last three to four days.

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Related information:

Attorneys involved in the case include Jay Lukowski and Louise Meller of Atlanta's Kaplan and Lukowski, as well as Evan Altman of Atlanta, for the plaintiffs, and Paul Weathington and Heather McGrotty of Atlanta's Weathington Smith representing the defendants.

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

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