Watch the Argument that Led to a $9.8M Punitive Award Against Construction Firm| Florida Trial Video Vault

Posted by Courtroom View Network on Aug 28, 2015 4:10:00 PM


A case involving an intervening cause raises an added challenge to a plaintiff's attorney: convincing jurors to look beyond the most obvious defendant responsible for an accident and instead link a plaintiff's injuries to actions that may have occurred weeks, months, or years earlier.  This is particularly true in cases claiming a corporate defendant's decisions led another, unrelated defendant to cause an accident. In Young v. Nyberg, et al., Marc Matthews delivers a closing argument that convincingly completes the link between a construction company's alleged breach of safety standards on a roadside utility project and a fatal car crash.

New Call-to-action In 2009, a Chevy sedan driven by Roger Nyberg struck a Buick driven by Allen Young, sending Young and his car into a concrete pole being used on the project. Young suffered severe neck and spinal injuries and died three years later. His son, Timothy Young, sued Nyberg and others, including L.E. Myers, the company that oversaw the construction project. 

At trial, Young's attorneys argued Nyberg would not have struck the concrete pole if L.E. Myers had closed the lane of traffic closest to the work. In closing arguments, Young's attorney, Marc Matthews, walked jurors through evidence of lane closure requirements he claimed L.E. Myers ignored to save money. Acknowleding that Nyberg was the direct cause of the collision, he urged jurors to look beyond Nyberg and hold the construction company responsible for the collision that killed Young. Comparing the the project to a death trap, Matthews told jurors, "In the end, Mr. Nyberg just sprung the trap. He didn't set it. That trap was set when the lane wasn't closed. The company (L.E. Myers) set that trap, and they made money in the process."

Matthews' closing sealed the connection for jurors between Young's death and L.E. Myers. And, it ultimately paved the way for an $11 million verdict, including $9.8 million in punitive damages against the contruction company. 


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Topics: Negligence, Florida, Video Highlight, Young v. Nyberg

U.S. Sugar Faces Trial Over Worker's Claim of Career-Ending Rail Yard Accident

Posted by Arlin Crisco on Aug 28, 2015 1:47:15 PM

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Daniel Fleming tells jurors that Manuel Valdes was not injured in an accident at a South Central Florida Express railroad depot. Fleming represents South Central, and its parent company, U.S. Sugar, in a suit brought by Manuel Valdes.


West Palm Beach, FL—As trial opened Wednesday in a rail yard laborer's suit against U.S. Sugar and its short line railroad, attorneys debated the circumstances and severity of the depot accident that allegedly left Manuel Valdes with an artificial hip and post-concussion syndrome. Valdes v. U.S. Sugar Corp., 2012CA017292.

Valdes, who worked for South Central Florida Express, claims he was injured when he fell from a company truck as it pulled away from the railroad’s depot in 2012. He is suing both the railroad and its owner, U.S. Sugar, claiming the truck’s driver, company foreman Sam Mallo, failed to check side safety mirrors before putting the truck in motion as Valdes tried to retrieve his backpack from the truck bed.

New Call-to-action During openings on Wednesday, Valdes’ attorney, Rossman, Baumberger, Reboso, & Spier’s Howard Spier, accused U.S. Sugar of failing to preserve important physical evidence that would support Valdes’ version of the accident. “We have a lot of information as to what happened, but not a lot of physical evidence to show you, because the (accident) scene was not preserved in any way,” Howard Spier said. “There (are) no skid marks we can show you, if there were any. We can’t show you a picture of the backpack in the bed of the truck.”

Spier told jurors accident accounts from two South Central employees largely supported Valdes’ version of events, but changed once Valdes filed suit. For example, Spier said Terry Combass, a coworker who saw the incident, initially completed an accident report that corroborated Valdes’ description of the fall. However, “deposition-wise, when he’s got a lawyer, litigation is ongoing, (Combass) says ‘Well, he didn’t really fall to the ground. I didn’t mean that,’” Spier said. “You’ll get to consider all that.”

However, the defense argues that witness testimony suggests Valdes is exaggerating the circumstances surrounding the accident. Melkus, Fleming & Gutierrez's Daniel J. Fleming, representing U.S. Sugar and South Central, told jurors Wednesday that Valdes was never thrown from the truck but instead waved his arm wildly and cried out as soon as the truck began to move, then slowly lowered himself from to the ground. “The truck didn’t knock him down. He didn’t fall off anything,” Fleming said. 

Since the accident, Valdes has undergone two rotator cuff surgeries, a hip replacement, and wears a hearing aid to counteract what he claims is post-concussion tinnitus. However, Fleming argued that medical evidence would show that Valdes was not injured in the 2012 incident. “The doctors that saw plaintiff in the days, weeks, and even the first couple of months never once admitted him to the hospital, never once said you’ve got to go have surgery,” Fleming said.

Instead, Fleming said magnetic resonance imaging performed months after the accident showed long-term degenerative shoulder damage unrelated to the incident.

Spier acknowledged Valdes experienced shoulder pain prior to being hired by South Central, but the acident ultimately injured his career with the company.  Valdes “passes all the exams and tests, the physical exams, apparently with flying colors (in 2011),” Spier said. “And from that point on, he’s working until this incident occurs. And, now we have these issues and these surgeries.”

Trial is expected to last through next week.

Neither the parties’ attorneys nor representatives for the corporations could be reached for comment.

Email Arlin Crisco at acrisco@cvn.com.


Related Information

Manuel Valdes is represented by Rossman, Baumberger, Reboso, & Spier’s Howard Spier and Jarrett DeLuca, of Vinas & DeLuca. U.S. Sugar Corp. and South Central Florida Express are represented by Melkus, Fleming & Gutierrez's Daniel J. Fleming.

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Topics: Negligence, Florida, Transportation, Valdes v. US Sugar

$2 Billion Suit Over Popular Diabetes Drug Actos' Alleged Cancer Risks Goes To Trial

Posted by David Siegel on Aug 27, 2015 6:25:00 PM

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Plaintiffs' attorney Robert Eglet shows jurors the type of hard drives he claimed Takeda destroyed because they contained evidence that the widely-prescribed diabetes medication Actos causes bladder cancer. Click here to see video from the trial. 

Las Vegas  Japanese drug manufacturer Takeda Pharmaceuticals Co. Ltd. should pay $2 billion in damages after intentionally destroying hard drives containing evidence that their blockbuster diabetes medication Actos caused bladder cancer, according to an attorney representing two men who took the drug in a closely-watched suit that went to trial on Thursday in Nevada state court. 

Plaintiffs’ attorney Robert Eglet began his opening statement in the high-stakes case by telling jurors that Takeda destroyed incriminating evidence despite a litigation hold issued in 2002 requiring them to preserve materials related to the alleged cancer risks of Actos, which was one of the company’s top-selling drugs. He said Actos caused bladder cancer in his clients George Decou and Maurice Iorio, but told jurors that “pieces of the puzzle” necessary to prove that claim were missing because of Takeda’s cover-up.

“Takeda has prevented you from knowing the whole truth about the diabetes drug Actos that they produce, and that it can cause bladder cancer,” Eglet told jurors, according to a Courtroom View Network webcast of the proceedings. (Click here to see video from the trial.)

The trial's outcome could play a key role in determining whether or not a $2.4 billion proposed settlement between Takeda and plaintiffs in nearly 8,000 similar lawsuits survives. 95 percent of Actos plaintiffs need to accept the settlement’s terms, which offer an average payout of $250,000, before the deal would kick in. To date only 75 percent have signed on, and a large award in the current trial could persuade holdout plaintiffs to take their claims to a jury instead of settling.

 

 

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Eglet lost his bid in 2014 to hit Takeda with a multi-billion dollar verdict at a previous Actos trial in Las Vegas, but a federal jury that same year slammed the company with a staggering $9 billion verdict over the drug. U.S. District Judge Rebecca Doherty ultimately cut the award to $36 million, but also excoriated Takeda for intentionally destroying Actos-related evidence, a subject placed front and center in Eglet’s opening statement.

He repeated jury instructions from Judge Jerry Wiese, which said jurors should presume that missing Actos-related information on hard drives destroyed by Takeda contained information adverse to the company’s position.

“The Court has determined that the defendants willfully and intentionally destroyed certain documents and information, and that such destruction occurred for the purposes of prejudicing individuals who could ultimately use such documents and information against defendants for litigation purposes,” Judge Wiese's jury instructions state.

Takeda has argued that Iorio, who died in 2013 and Decou developed bladder cancer from smoking, and that their illnesses can’t be clearly linked to taking Actos.

Company spokeswoman Sandy Rodriguez told CVN that Takeda has extensive clinical data showing that there isn’t a provable link between taking Actos and developing bladder cancer, including a 10-year study performed by the University of Pennsylvania and Kaiser Permanente.

“Takeda continues to believe that the claims made in the litigation are without merit and stands firmly behind the substantial data confirming a positive benefit/risk profile for Actos,” Rodriguez said. “As a company, we believe Takeda acted responsibly with regard to Actos, and we will vigorously defend Takeda in this case.”

Takeda’s opening statements are scheduled to begin Friday morning. 

Actos generated $4.5 billion in sales in 2011 and made up 27 percent of Takeda’s revenue that year, according to Bloomberg News, and Eglet argued to jurors that Takeda withheld information about the drug’s supposed cancer risks to protect those huge profits. He said Takeda didn’t disclose Actos’ potential dangers until a few months before the company’s patent on the drug expired in 2012, despite allegedly knowing of them as far back as 1993 when Actos was still being developed and tested on rats.

“Takeda was purposely untruthful to its consumers,” Eglet told the jury, suggesting that Takeda wanted to maximize Actos sales while it enjoyed an exclusive patent on pioglitazone, the generic name for Actos.

Actos was launched in 1999 and jointly marketed with Eli Lilly & Co., and it quickly become one of Takeda’s top-selling drugs. Regulators in France and Germany yanked Actos from the market in 2011, the same year that the U.S. Food & Drug Administration issued a warning that the drug could cause an increased risk of bladder cancer while still allowing it to be sold in the United States.

Nine Actos cases have gone to trial since an initial bellwether case in California state court in 2013, including three trials recorded gavel-to-gavel by CVN. Juries ruled against Takeda in five of those cases, although two of those verdicts were later thrown out by judges. However in July a California appeals court reinstated the first $6.5 million plaintiffs verdict against Takeda after a lower court granted the company’s request for a new trial.

Eglet has a history of landing record-setting verdicts in Nevada courtrooms. A jury in 2013 returned a $524 million verdict against United Healthcare in a case tried by Eglet, after the insurer referred a patient to an endoscopy clinic where he was exposed to hepatitis. It was the largest plaintiffs verdict in Nevada history at the time, and the $2 billion Eglet seeks in the current case would far exceed that amount.

"Without substantial punitive damages there is nothing to deter a company of this size from engaging in the same unconscionable, deadly practices again," Eglet said in a statement.

The trial before Judge Wiese is being webcast live and recorded gavel-to-gavel by CVN and is available for online viewing along with past Actos cases and other high-stakes pharmaceutical product liability trials.

The plaintiffs are represented by Robert Eglet of Eglet Prince and Kemp and by Jones & Coulthard.

Takeda is represented by Snell & Wilmer.

The case is George Decou, et al. v. Takeda Pharmaceuticals America Inc., et al., case number A-13-683446-C in Nevada’s Eighth Judicial District Court in Clark County.

E-mail David Siegel at dsiegel@cvn.com

Topics: Products Liability, Pharmaceutical, Nevada

Trial Continues in Case of Worker Burned Alive in Recycing Plant Fire

Posted by Steve Silver on Aug 27, 2015 2:36:16 PM

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Atlanta—The tragic death of a 19-year-old worker in an industrial fire at an Atlanta recycling plant has become the subject of a heated trial currently underway in Fulton County State Court. Efrain Hilario et al. v. Newell Recycling of Atlanta, Inc. (12EV015400).

Newell Recycling is one of the southeast’s leading scrap metal processors. Among the operations at its headquarters facility in East Point, GA, the company uses industrial shredders to shred and process automobiles and other scrap metal for resale. According to documents filed in the case and other information, on January 6, 2011, Erik Hilario was working at the East Point facility. At approximately 11:00 p.m. that night, Hilario was operating a front end loader, removing scrap metal from the yard when the loader caught fire. Hilario was badly burned and died shortly thereafter.

New Call-to-action After Hilario’s death, his parents and the administrator of his estate filed suit, naming several corporate entities with “Newell” in their names as defendants. The nature of Newell’s operations and its corporate structure, which included approximately 30 separate corporate entities, made the identification of the proper defendants a major issue in the case. At the time of his death, Hilario received paychecks from Newell Recycling, LLC. The East Point facility itself was owned by Newell Recycling of Atlanta, Inc. In the lawsuit, Newell Recycling of Atlanta, Inc., was named as a defendant, but Newell Recycling, LLC was not.

Prior to trial, defendants moved for summary judgment on the grounds that Hilario was an employee of Newell Atlanta and that, therefore, the claims in this case were barred by the exclusivity provisions of the Workers’ Compensation Act. According to the defense, Newell Recycling was merely an administrative services company providing payroll services for Newell Atlanta and various other Newell companies operating businesses in other locations. 

The defense said that Newell Recycling and Newell Atlanta operated under the terms of an Employee Leasing Agreement where, for a fee, Hilario and other employees were leased to Newell Atlanta and were, therefore, considered employees of Newell Atlanta for workers' compensation purposes. Plaintiffs, on the other hand, pointed to various corporate documents indicating that Newell Atlanta and Newell Recycling were independent contractors. In addition, according to plaintiffs, Newell Recycling had the right to determine Hilario’s pay and promote or fire him.

Judge Diane Bessen denied the defense’s motion for summary judgment on this issue, ruling that it was up to the jury to decide whether Hilario was an employee of Newell Atlanta at the time of his death or not. By the time the trial began, Newell Atlanta was the only remaining defendant in the case.

Under plaintiff’s theory of the case, the fire was caused by gasoline that had leaked from a machine called a puncher that was used to punch holes in automobile gas tanks and drain them before the cars were crushed and shredded. Once holes were punched in the gas tanks, the gasoline was supposed to drain into a container in the puncher where it could safely be disposed of. Under plaintiff’s theory, enough gasoline spilled out on the ground in the path of the loader Hilario was driving so that when he pushed scrap metal along the paved surface, the friction created a spark that ignited the gasoline.

At trial, plaintiffs are alleging two theories of liability, premises liability and product liability. Judge Bessen denied defense motions for summary judgment and dismissal on both theories. In her view, it was a jury issue whether Newell Atlanta failed to maintain a safe work area and failed to have adequate safety equipment available in the event a fire did occur. Following this decision, Newell Atlanta amended its answer and now admits  that the fire was caused by spilled gasoline and that it is liable under a premises liability theory (subject to a possible workers’ compensation bar).

Judge Bessen also denied Newell Atlanta’s motion to dismiss on a product liability theory in regard to the design of the puncher. Newell Atlanta claimed that Georgia product liability law did not apply to this case because the puncher was only used internally by Newell employees and never sold to the general public. However, Judge Bessen ruled that the sale of the product is not an essential element of a claim that a product was defectively designed or that the manufacturer failed to adequately warn. This issue was also left for the jury to decide.

The product liability claim may be a factor in the size of the eventual verdict in this case, because plaintiffs are requesting punitive damages. The Georgia statutory cap of $250,000 on punitive damages does not apply to product liability claims.  

This trial is expected to continue into next week. Courtroom View Network will have full gavel-to-gavel converage of the trial after it concludes.

Steve Silver can be reached at ssilver@cvn.com.

 

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Topics: Negligence, Wrongful Death, Georgia, Hilario v. Newell Recycling

Attorney Compares Client's Injury to Football Concussion to Win 12-Year-Old Case: GA Trial Highlight

Posted by Steve Silver on Aug 25, 2015 4:43:07 PM

 

According to an old legal saying, “justice delayed is justice denied.” In a recent Henry County Superior Court case, plaintiff Nita King faced that very possibility, as her lawsuit resulting from a July 18, 2002, automobile accident did not finally go before a Superior Court jury until February, 2015, almost 12 ½ years later. Nita King v. Olin Wayne Davis (DECEASED) 2008-SU-CV-3386.

The accident occurred when Olin Davis, driving a Dodge Ram truck, pulled out of a lane of traffic and ran a red light. King, who was approaching the intersection with the green light, was unable to react in time and collided with Davis’s truck. Davis’ attorneys admitted liability for the accident prior to trial but questioned the extent of King’s injuries and whether they resulted from the collision.

The case was complicated by several issues related to the passage of time. Defendant Davis died in 2012 of causes unrelated to the accident, so his testimony was presented by means of a transcript from earlier proceedings. As for King, she had been involved in four other traffic accidents since the collision involving Davis, even one in which she struck a deer. Each time, King reported injuring her back, neck, and knee, which she also alleged occurred in the original 2002 accident.

Click Here FREE Georgia Trial Video Samples When King testified, she said she suffered memory loss, depression, and an inability to concentrate, in addition to her physical pain, after the accident. She was unable to go back to work for nearly a year after the accident, and her subsequent work history was spotty. She also said that her injuries never really healed, and the subsequent injuries merely aggravated them. Friends and relatives also testified as to the change in King’s mental condition after the 2002 accident.

Defense attorney Adrian Britt, in his closing statement, tried to seize on the subjective nature of King’s complaints and what he felt was a lack of support in the evidence for them. He told the jury he believed the case was about “over treating soft tissue injuries in an automobile accident that thankfully looks worse than it was.” He also pointed out numerous inconsistencies between King’s trial testimony and other sworn statements King had given over the years.

In addition, Britt pointed out the various x-rays, CAT scans and other tests King had been given that did not show any abnormalities. Indeed, he suggested to the jury that the sole purpose for all the tests, and for much of the other treatment King received, was to “run up the medical bills.” Britt concluded, “There is no abnormality in this case; nothing’s wrong. Five years later, slew of more tests, and still nothing’s wrong but the subjective complaints of the plaintiff’s that keeps causing people to run tests.”

In some trials, this strategy might have been effective. However, despite Britt’s contentions, King’s attorney Graylin Ward had already been able to show the jury some extremely objective evidence. King had testified at the trial that her head hit the car’s dashboard as a result of the collision. As a result, she suffered facial scars and, most significantly, a visible skull indentation. During King’s testimony, Ward had her show the jury her scars and skull indentation. He also showed the jury photographs of King during his closing statement.

In that closing statement, Ward asked the jury to consider the effect that impact had on King. In his view, as confirmed by his medical witnesses, the blow to the head was the reason for King’s mental problems over the years, as she and her witnesses had testified. Ward put the impact in a context to which a jury could relate, the often violent head injuries suffered by athletes like football players and boxers.

Ward noted that if such an athlete complained of post-concussion syndrome, people would not find such a complaint unlikely. He continued that King’s injury was similar, “That was a terrible impact; it was a horrible impact. She injured her head.” He noted that athletes who suffered similar blows complained of similar mental symptoms years later.

Ward noted that the changes in King’s behavior all occurred after the accident: “After she hit her head in the car that day, it changed her. She went from being a vibrant person to one who [said she had a] ‘daily depression,’ losing a lot of weight, being distanced from the family. … She went [to doctors] for years and they couldn’t figure out what was wrong with her. Sounds kind of similar to pro football players, sounds kind of similar to basketball players, sounds similar to boxers who all of a sudden have that syndrome that’s causing them to be that way. That’s what we have.”

Ward also got in the last word, after Britt’s closing statement, as he again showed the jurors King’s facial photos. “They say a picture is worth a thousand words… A permanent injury, a serious blow to the head, the injury that you saw, that Ms. King came before you; she showed you that injury still exists. An injury where a doctor has said she has post-concussion syndrome is worth $100,000.”

For the most part, the jury agreed with Ward. They awarded King $85,567.21 for her own damages and an additional $7,350.80 in damages for her then two-year-old son, who was also injured in the accident, for a total judgment in her favor of $92,918.01.

Courtroom View Network's earlier articles on the case can be found here and here. Steve Silver can be contacted at ssilver@cvn.com.

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