Perjury Claim Scuttles Defense, Yet Jurors Award Only $300K in $100M Florida Brain Injury Trial

Posted by Arlin Crisco on May 29, 2015 6:18:31 PM

Edward Murawski testifies that he did not take his cell phone with him on a 2007 ATV ride in which his companion, Brittany Falkner, was injured. Judge Elizabeth Krier granted a motion to strike defense pleadings when cell phone records showed calls had been made and received on Murawski’s phone around the time of the accident. 


Fort Myers, FL—Two days after evidence of perjury led to a decision striking defense pleadings, jurors awarded less than $300,000 to a woman who claimed she suffered lifelong brain and spinal damage because her ATV riding companion failed to properly help her following a crash. Falkner v. Murawski, 09CA004033.

Watch a  Clip From This Trial Jurors deliberated for about five hours Wednesday afternoon and Thursday before awarding Brittany Falkner $299,778 for future medical expenses in the 2007 incident. The six-member jury refused to award damages for pain and suffering or loss of earnings. Falkner, who claims the incident rendered her cognitively impaired and unable to walk without assistance, sought $100 million in her suit against Edward Murawski.

The suit stems from a July 2007 accident in which Falkner struck a tree head-first while riding on the back of an ATV driven by Murawski in a secluded, heavily wooded area in Naples, Florida. Murawski and two companions, Brandon and David Markovich, towed the bloody, unconscious Falkner on an ATV across more than a mile of uneven terrain before placing her in Murawski’s pickup truck and carrying her to Naples Community Hospital, more than 10 miles from the crash site.

The jury’s decision Thursday follows Judge Elizabeth Krier’s decision early this week striking defense pleadings based on evidence that Murawski lied about whether he had a cell phone at the time of the accident.

Because Falkner contends that her lasting injuries are largely due to Murawski’s failure to take appropriate action following the accident, a critical issue in the case is whether he could have called 911 after the crash. While on the witness stand last Friday, Murawski testified that he left his cellphone at home on the night of the accident and could not have called for emergency help.

However, according to a motion for sanctions filed by Falkner’s lawyers, cell phone records Falkner’s legal team received late Friday showed that several calls were made to and from Murawski’s phone around the time of the accident, including a call to Falkner’s mother.

Based on the phone records, Judge Krier struck the defense pleadings, instructing the jury that Murawski was to be considered negligent and that jurors were only to consider the amount of damages to be awarded. However, jurors did not hear evidence regarding the phone records.

With the amount of damages the only issue in dispute, attorneys focused on the extent of Falkner’s injuries in closing arguments Wednesday. The Martinez-Odom Law Group’s Gene Odom, representing Falkner, requested up to $79 million for Falkner’s lifelong pain and suffering. Noting mortality tables estimated Falkner would live another 57 years, Odom said the $79 million figure “sounds like a big number. It’s a real big number, but 57 years of life is a big number.” 

Odom told jurors that Falkner would carry permanent scars, physical disabilities, and ever-worsening cognitive impairments that would increasingly impact her day-to-day activities. “What is the appraisal for pain-free life?” Odom asked. “Pain-free life, uninhibited ability to enjoy life, what everybody works so hard for.”

Odom also reminded jurors of evidence that Falkner's future medical expenses could run more than $20 million, based on what Odom argued was an uncontroverted life care plan developed by Dr. John Merritt. “There was no testimony to contradict really anything that Dr. Merritt said about what was going to be required for care in the future,” Odom said. “The only testimony or evidence of that was Dr. Merritt’s assessment.”

However, Murawski’s attorney, John Wilke, argued that Merritt never spoke directly to Falkner’s treating physicians when developing his life care plan. Merritt’s “information came from Mr. Odom, who is a fine lawyer and an advocate for his client, but at least not that I’m aware of, a medical doctor,” Wilke said. “It runs contrary to some of the doctors’ testimony from the treating physicians about what could be done, what should be done, in their various fields of specialty in this case.”

Wilke also questioned the effect of Falkner's injuries, noting that Falkner had a child, which she cares for with the help of her family, since filing the suit. “The reality of the life that’s being lived, which they’re entitled to live, outside this courtroom is inconsistent with the legal arguments regarding the nature and extent of the injuries from a day-to-day activity standpoint that are being made inside this courtroom,” Wilke said. “It is something to be considered when you’re weighing the true impact this accident has had, this pickup truck ride has had, on Brittany Falkner.”

Immediately after the verdict, the parties’ attorneys met with Judge Krier in sidebar for about an hour before the jury was released. Falkner’s attorneys are expected to file a motion for a new trial.

Falkner’s attorney, the Romano Law Group's John Romano, said he was dissatisfied with the result and would press on with the case. “To say that I am disappointed would be the understatement of the decade,” Romano said. “This is a tremendous young lady we have in Brittany, and this is a temporary setback because we will continue to fight and she will continue to persevere.”

Murawski’s attorney, John Wilke, did not respond to a call for comment. 

Arlin Crisco can be reached at acrisco@cvn.com.


 

Related information 

Brittany Falkner is represented by the Romano Law Group's John Romano and Corey Friedman, and by the Martinez-Odom Law Group's Gene Odom. Edward Murawski is represented by John Wilke, of the Law Office of John J. Wilke.

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Topics: Negligence, Florida, Transportation, Falkner v. Murawski

First Wright Hip Implant Product Liability Trial Begins

Posted by David Siegel on May 28, 2015 9:43:00 PM

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Plaintiffs' attorney Steve Vartazarian shows jurors an x-ray of a metal hip implant that he argues snapped because of a defective manufacturing process. Click here to see video from the trial. 

Los Angeles — Wright Medical Technology Inc. defended one of their metal hip implants for the first time before a jury in a product liability trial that began Thursday in California state court over allegations that laser etchings on the device made it brittle and prone to fracture.

Plaintiff Alan Warner’s case is the first to go to trial out of over a thousand other Wright hip implant suits pending in state and federal court. While the vast majority of those cases involve claims that metal components in the implants ground together and wore down, Warner’s case is the first time Wright has had to defend the design of their hip implants before a jury in any capacity.

Warner was standing in his kitchen in 2010, when he suddenly felt a sharp pain in his left side, where a “Profemur R” device had been implanted three years earlier to replace an older artificial hip. X-rays revealed that the stem portion in Warner’s implant had snapped, an outcome that his attorney said could only result from a defective manufacturing process.

Steve Vartazarian of The Vartazarian Law Firm told jurors during his opening statement that Warner didn’t fall or engage in any other physical activities that could have caused the device to fail, and that Warner’s surgeon implanted it properly, according to a Courtroom View Network webcast of the trial. 

“He didn’t do anything that caused it to break,” Vartazarian said.

Wright’s investigation of the break revealed that the fracture emanated from a mark etched onto the device by a laser to help doctors properly position it during surgery. Vartazarian told the jury that the titanium used in the Profemur R can withstand etchings up to 35 microns deep without being affected, but that anything deeper causes the metal to weaken and become brittle.

Vartazarian said the etching that caused Warner’s hip implant to fail was over 100 microns deep, noting that other etchings on the implant got progressively deeper beyond the 35 micron limit, indicating that the laser was either misused or not operating properly.

Warner’s implant was manufactured in France by Cremascoli Ortho Group, a company acquired by Wright in 2000, and Vartazarian said the company claimed it was unable to provide key documents about the implant’s manufacturing process after records were transferred to the United States.

Wright was unable to provide any information on who used the laser on Warner’s implant, what type of training they received, or what settings were used to operate the laser, according to Vartazarian. He also said the company could not produce engineering schematics detailing specifically how deep the laser etchings were supposed to go.

“I’ll let them tell you where that information is,” he said.  

Vartazarian acknowledged that out of the roughly 9,000 Profemur R devices sold, fractures like the one Warner experienced were rare. However he characterized using that argument as a “speeding ticket” defense, saying no one would tell a judge they’re not guilty of speeding because on 9,000 other occasions they didn’t get caught.

While Vartazarian didn’t name a specific amount of damages the jury should award, he said that Warner has incurred hundreds of thousands of dollars in past and future medical expenses. Warner underwent 14 major surgeries after the initial break due to subsequent dislocations and infection, and his current hip implant will have to be replaced again in the near future.

“This fracture launched a whirlwind of surgeries for Mr. Warner,” Vartazarian said, adding that Warner has severe scarring from the multiple operations and is now almost entirely confined to his home.  

Wright’s attorney, David Van Dyke of Howard & Howard, told the jury that Warner’s implant broke because the top of it never properly affixed to his existing bone. He also said that Warner’s surgeon, Dr. Brad Penenberg, chose to use the smallest version of the Profemur R stem piece available. 

Van Dyke said Warner’s existing bone structure was inadequate to support the Profemur R, and that it never should have been prescribed by Penenberg in the first place. When the insecure top portion shifted inside Warner’s body, Van Dyke claimed it placed stress on the narrow stem piece that caused it to crack. 

"This was not a defective product,” Van Dyke said. “It simply did not have proper fixation.” 

He also showed jurors 9,343 dots on a projection screen to represent the number of Profemur R implants sold, with one single dot illuminated to illustrate the rarity of the fracture Warner experienced. 

“Only one [implant] out of 9,343 is known to have fractured at the guidance laser mark,” Van Dyke told the jury. 

Helen Zukin of Kiesel Boucher Larson LLP, who serves as co-liaison counsel for the plaintiffs in federal multidistrict litigation involving Wright hip implants, told CVN that there are roughly 600 cases pending in California state court and 600 consolidated before U.S. District Judge William S. Duffey, Jr. in Atlanta. 

“I think there’s always significance when you have a first trial involving a medical device when you have many other cases lined up behind it,” Zukin said.

The current trial before Judge Michael Harwin is expected to last up to three weeks and is being recorded and webcast gavel-to-gavel by Courtroom View Network.

The case is Alan Warner v. Wright Medical Technology Inc., case number BC475958, in Los Angeles County Superior Court.

Warner is represented by Steve Vartazarian of The Vartazarian Law Firm and by George McLaughlin of Warshauer-McLaughlin Law Group PC.

Wright is represented by Michael Kell, Michael Fawaz and David Van Dyke of Howard & Howard, and by Michael Kirby and Micaela Banach of Kirby Noonan Lance & Hoge LLP.

E-mail David Siegel at dsiegel@cvn.com

Related Content:

Click here for a copy of the complaint.

Click here to see more product liability trials in CVN's one-of-a-kind video archive. 

Topics: Products Liability, healthcare, California

Nursing Home Operator Rocked By $19.2M Elder Abuse Verdict

Posted by David Siegel on May 28, 2015 4:58:00 PM

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Plaintiffs' attorney Arthur Lloyd shows jurors a government inspection report that he said proves The Forum at Desert Harbor knew their patients were at risk for developing bedsores. Click here to see video from the trial.

Mesa — Nursing home operator Five Star Quality Care Inc. was walloped with a $16.7 million punitive damages verdict on Thursday in Arizona state court after already being nailed with a $2.5 million compensatory verdict for allowing an 86-year-old woman to develop an infected bedsore, bringing the total damages awarded to her family to $19.2 million. 

The jury agreed with attorneys for Doris Cote’s family that medical staff at The Forum at Desert Harbor, a skilled nursing facility, consciously disregarded procedures meant to keep patients from developing bedsores and intentionally falsified medical records to cover up other signs of abuse like severe weight loss.

Arthur Lloyd of Lloyd & Robinson PLLC, representing the Cote family, told jurors that they should force Newton, Mass.-based Five Star to reform their practices by returning a verdict that would “get past middle management and gets into the boardroom.”

“All the policies and procedures that were implemented in The Forum came from Massachusetts,” Lloyd said, according to a Courtroom View Network webcast of the trial.

Lloyd explained to the jurors that Five Star’s valuation on the New York Stock Exchange is over $200 million and that the company brings in annual revenues of over one billion dollars. He asked the jury to award between $18 and $20 million.  

Five Star's highest pre-trial settlement offer was $500,000 according Lloyd's co-counsel Micheal Wright of Udall Shumway PLC.

Cote’s family sued Five Star in 2012 for wrongful death and elder abuse, claiming that while she recovered from an infected shoulder at The Forum, Cote was overmedicated with painkillers, allowed to fall multiple times, malnourished and eventually developed a bedsore that became infected with Methicillin-resistant Staphylococcus aureus, known as MRSA.

She died of pneumonia six months after being transferred to another nursing home. However the jury said that while Five Star's conduct caused Cote's pain and suffering, it was not ultimately responsible for her death.

The Forum tried to cover its tracks, Lloyd argued, by failing to accurately describe Cote’s weight loss in reports that all Medicare and Medicaid-certified nursing homes are required to file. He said Cote only weighed around 115 lbs. when she entered The Forum and lost nearly nine percent of her body weight due to malnutrition.

Lloyd said staff at The Forum were aware of their misconduct, because federal inspectors told the nursing home’s administrators in 2011 that sufficient steps were not being taken to keep patients from developing bedsores, also known as pressure ulcers, which can occur when skin remains in contact with a surface like a bed for prolonged periods.

“The facility failed to initiate care and provide services to prevent pressure ulcers and promote healing for six of seven sample residents,” Lloyd said, quoting from the report.

The Forum agreed to make immediate changes which should have been completed before Cote’s admission in November 2011, but Lloyd claimed they only made these commitments in an attempt to stave off further scrutiny from the government.

“What you’re here for today is to determine whether or not these promises that Five Star made were empty hollow statements designed just to get the government surveyors off their back,” Lloyd told the jury.  

Attorneys for Five Star argued that Cote’s sharp decline was the result of ailments that afflict many senior citizens at the end of their lives and not because of negligence by the nursing home’s medical staff. They claimed Cote developed the bedsore that became infected while in a hospital and not at The Forum and dismissed allegations that her care was substandard as “red herrings.”

Wright told CVN that in post-verdict discussions, members of the jury told him the egregiousness of Five Star’s conduct and the company’s net worth were the primary factors they took into consideration. Wright said the jurors reached their final punitive award amount by each picking a number and averaging them.

The jurors also said the 110 pictorial trial boards they saw played a role in their decision, according to Wright, who said his team used tactics advocated by Rodney Jew, a trial consultant who encourages the use of such visual aids.

Wright said while the nursing home industry always takes notice of punitive verdicts like this, the jury’s decision would be more likely to impact the settlement of future cases than actual patient care.

“They see it as a business expense and part of their risk management,” Wright said. He added that he expected Five Star to appeal the verdict, though he didn’t think there were any grounds for it to be reversed.

“They’ll surely go through the motions,” he said.

Representatives for Five Star did not respond to CVN’s requests for comment.

The trial before Judge Mark Aceto was recorded and webcast gavel-to-gavel by CVN.

The Cote family is represented by Arthur Lloyd of Lloyd & Robinson PLLC and by Micheal Wright of Udall Shumway PLC.

The defendants are represented by Carol Romano and Kelli Williams of Gust Rosenfeld PLC.

The case is The Estate of Doris L. Cote, et al. v. Five Star Quality Care Inc., et al., case number CV2012-094285, in Maricopa County Superior Court.

E-mail David Siegel at dsiegel@cvn.com

Related Coverage:

Nursing Home Slapped With $2.5M Bedsore Verdict, Punitive Phase To Follow

BNSF Railway Hit With $2.9M Wrongful Death Verdict

Click here for a copy of the complaint. 

Topics: Negligence, Malpractice, healthcare, Arizona

Defense Expert Claims to Be "a Lot" More Cost Effective than Other Medical Personnel for Patient Diagnosis: Georgia Trial Highlight

Posted by Steve Silver on May 27, 2015 6:35:18 PM

 


In a recent Cobb County State Court case, the jury had to determine whether the plaintiff’s back problems resulted from injuries he suffered in an automobile accident or, instead, were a normal degenerative condition that occurs in most people over the age of 50. Jorge Horton v. Shannon King-Cortopassi (12-A-3850)

Prior to trial, defendant Shannon King-Cortopassi admitted liability for the accident, which occurred on January 2, 2012, when she broadsided plaintiff Jorge Horton’s car at an Atlanta intersection while traveling at a speed of about 40 miles per hour. After the accident, Jorge Horton complained of back and neck pain, which continued despite months of conservative treatment.

Click Here FREE Georgia Trial Video Samples The only issue at trial was the amount of damages. Both sides introduced testimony regarding Horton’s injuries. Horton introduced a deposition from his treating physician, Dr. Joseph Saba, who said that Horton had two herniated discs that were caused by the accident, and he recommended Horton undergo surgery. King-Cortopassi introduced a video deposition from a consulting radiologist, Dr. Barry Jeffries, who felt that Horton’s condition was caused solely by age-related degenerative disc disease, a condition present in 85% of people by age 50 (Horton was 52 at the time of the trial).

Horton’s attorney Joe Weeks repeatedly attacked Dr. Jeffries’ credibility on cross-examination. Dr. Jeffries, who testified frequently for defense attorneys in personal injury cases, did not examine Horton, as did Dr. Saba, but, instead based his diagnosis on his review of Horton’s medical records, including MRI scans. Weeks was able to finish his cross-examination by eliciting several damaging statements from Dr. Jeffries during a final five-minute re-cross examination.

Weeks seized upon Dr. Jeffries’ claim that he was better able to diagnose Horton than was his treating physician. He began his re-cross by asking Dr. Jeffries whether people could save money by eliminating all the various medical personnel and just ask Dr. Jeffries instead for a diagnosis when they arrive at the hospital. Dr. Jeffries first attempted to say that emergency rooms were making increased use of CT scans read by radiologists such as himself but then went on to say: “You are correct. You could save a lot of money if you went straight to me.” Weeks was then able to characterize that answer as a claim by Dr. Jeffries that nurses and ER doctors were “pretty useless.”

Later, Dr. Jeffries tried to caution against overreliance on a patient’s medical history by saying that some patients will fake a medical history. This statement gave Weeks a further opening. He asked Dr. Jeffries whether the physician was contending that Horton was a faker. Dr. Jeffries said he had no way to determine whether Horton was faking his symptoms. This statement allowed Weeks to follow up and end his examination on a strong note. He pointed out to Dr. Jeffries that none of the other doctors involved in treating Horton believed he was faking, to which Dr. Jeffries replied, “That’s their opinion; it’s not my opinion.” Weeks’s final question was somewhat rhetorical, “So you’re not going to defer to their opinion on anything?” to which Dr. Jeffries replied, “All I’m testifying to is the truth.”

The jury returned a verdict of over $208,000 for Horton, indicating that they believed Dr. Saba’s diagnosis rather than Dr. Jeffries’.

Steve Silver can be reached at ssilver@cvn.com. CVN’s earlier coverage of this case can be found here.

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Nursing Home Slapped With $2.5M Bedsore Verdict, Punitive Phase To Follow

Posted by David Siegel on May 27, 2015 1:46:00 AM

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Plaintiffs' attorney Micheal Wright shows jurors where Doris Cote developed a bedsore that he argued became infected and caused her death. Click here to see video from the trial. Click here for a copy of the complaint. 

Mesa — An Arizona state court jury awarded $2.5 million on Friday to the family of an 86-year-old woman who developed an infected bedsore in a nursing home operated by Five Star Quality Care Inc. and later died, along with an undetermined amount of punitive damages to be decided in a second phase of the trial.

The 10-member jury deliberated for one day after hearing two-weeks of testimony before deciding unanimously that The Forum At Desert Harbor, a skilled nursing facility located in Peoria, was responsible for allowing Doris Cote to become malnourished and dehydrated after overmedicating her with painkillers. Cote’s family claimed her resulting weakened condition allowed a bedsore to become infected and eventually cause her death.

While the jurors found that the treatment Cote received fell below the standard of care, they rejected her family’s wrongful death claim, only finding that she was injured as a result of the nursing home’s negligence.

During his closing argument on behalf of the Cote family, Arthur Lloyd of Lloyd & Robinson PLLC told jurors that doctors initially expected Cote to be successfully discharged from The Forum after recuperating from a shoulder infection and compound fracture. Instead Lloyd said she was allowed to fall numerous times and developed a bedsore as a result of not being turned frequently enough, according to Courtroom View Network webcast of the trial. 

“What happened to Doris Cote should never happen to any human being,” Lloyd said before asking the jury to award between $2 and $3 million dollars in compensatory damages.

Bedsores, also known as pressure ulcers, occur when the skin breaks down where it comes into prolonged contact with a surface like a bed, and they are a common concern in nursing homes. Lloyd told the jury that Doris wasn’t turned frequently enough as she became lethargic due to overmedication and dehydration, and the sore devolved into a festering wound that went down to the bone.

“This is what abuse and neglect looks like,” Lloyd told the jury.  

Cote, who had a pacemaker and suffered from kidney disease, was first admitted to The Forum to recuperate from septic arthritis in November 2011. Lloyd said she lost 9 percent of her body weight by the time she was discharged.

The day she was discharged, Cote fell and suffered a lumbar fracture after her walker got caught in the doorway of her home. She was hospitalized and again admitted to The Forum, where Lloyd said she suffered numerous additional falls and developed a MRSA infection in a bedsore.

She was hospitalized again in January of 2012 before being discharged to another nursing home and eventually succumbing to pneumonia the following June. Her family sued Five Star later that year.

During her closing argument on behalf of the defendants, Carol Romano of Gust Rosenfeld PLC said Cote’s sharp decline was the result of ailments that afflict many senior citizens at the end of their lives and not because of negligence by the nursing home’s medical staff.

Romano said Cote, who suffered from numerous medical conditions before her first admission to The Forum, developed the bedsore that eventually became infected while she was hospitalized and not under the nursing home's care. She rejected Lloyd’s claim that Cote didn’t receive adequate skilled nursing care to treat the worsening sore.

“Every single day somebody wrote something in this woman’s chart about her wounds,” Romano told the jury. “That’s not falling through the cracks.”

Romano dismissed claims that Cote wasn’t adequately protected from falls as a “red herring.” According to Romano, the worst injury Cote suffered from her falls was a finger abrasion, and she argued that some falls are inevitable in situations where frail patients are involved in activities like physical therapy.

“It’s just a fact of life,” Romano said, before ending her closing argument by reminding jurors that everybody dies for some reason, and asking them not to punish dedicated healthcare workers who take on the difficult job of caring for very sick people.

During his closing rebuttal, Micheal Wright of Udall Shumway PLC said that Doris Cote could have recovered as planned had The Forum’s staff adhered to the standard of care.

“They were just complacent, and they didn’t pick up on the red flags that were occurring,” Wright said.

Massachusetts-based Five Star operates more than 260 senior care facilities across the country, according to the company’s website.

The trial before Judge Mark Aceto, including the punitive damages phase currently underway, is being recorded and webcast gavel-to-gavel by CVN.

Attorneys for the parties declined to comment on the case prior to the conclusion of the second phase of the trial.

The Cote family is represented by Arthur Lloyd of Lloyd & Robinson PLLC and by Michael Wright of Udall Shumway PLC.

The defendants are represented by Carol Romano and Kelli Williams of Gust Rosenfeld PLC.

The case is The Estate of Doris L. Cote, et al. v. Five Star Quality Care Inc., et al., case number CV2012-094285, in Maricopa County Superior Court.

Related Coverage:

Jury Says Top Hospital Not At Fault After Intestine Connected To Vagina

BNSF Railway Hit With $2.9M Wrongful Death Verdict

Topics: Negligence, Malpractice, healthcare, Arizona

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