Marietta, GA – A Cobb County State Court jury awarded over $208,000 to a man who suffered severe neck injuries when another driver ran a red light and struck his car broadside. Jorge Horton v. Shannon King-Cortopassi, 12-A-3850.

The jury awarded Jorge Horton approximately $28,000 for incurred medical expenses and $180,000 for pain and suffering to cap the two-day trial.

According to attorneys’ statements and trial testimony, Horton was struck on January 2, 2012 as he was crossing an intersection on Atlanta’s Roberts Drive. Horton claimed that the driver of the other car, Shannon King-Cortopassi, was traveling about 40 mph and failed to brake when she hit Horton’s car.

Horton testified that, after the accident, he received conservative treatment at two local clinics for his injuries. After several months of treatment, Horton said he consulted another physician when he believed he wasn’t improving.

Prior to the trial, King-Cortopassi admitted liability for the accident and for the medical expenses Horton incurred while undergoing treatment. The only issue for the jury to determine was the amount of damages due Horton for future medical expenses and pain and suffering.

The treating physician diagnosed Horton, now 52, with degenerative disc disease in his neck, a condition present in 85% of people by age 50. However, the doctor also found that Horton had two herniated discs and recommended surgery. He noted that Horton, who had performed manual labor his entire life, had never reported any symptoms of trauma before the accident and determined that that the herniated discs were caused by the accident.

The defense expert, Dr. Barry Jeffries, came to a contrary conclusion after examining Horton’s medical records, including MRI scans. He found that Horton’s herniated discs were solely the result of age-related degenerative disc disease. Jeffries testified via video deposition that herniated discs caused by a sudden accident would be accompanied by other damage such as fractured bones, torn muscles, and internal bleeding, none of which Horton suffered.

In his opening statement, Horton’s attorney, Joe Weeks, asked the jury, “Who are you going to believe, the treating physician or a hired witness… [Dr. Jeffries] could have, but he didn’t, do an independent medical examination… He testifies, as I said, 27 years, 2500 times; he disagrees with the patient and their doctor at least 2475 of those times. That’s really what this case is about, do you believe a treating physician or someone who’s hired to say the same thing over and over and over again?”

King-Coropassi’s attorney, Kristie Fitzgerald, explained to the jury in her opening statement her reasons for consulting Dr. Jeffries. “I went to law school; I didn’t go to medical school… When I needed someone to look at [Horton’s] MRIs, which I had no clue how to read, I had to go to … a treating physician. He sees MRIs every day.” Further, she noted that Horton had not undergone the recommended surgery, that he was still working, and that he had received no physical therapy or injections in the two years before trial.

Attorneys for the parties could not be reached for comment by the time of publication.

Related information:

Joe A. Weeks of Avondale Estates represented Jorge Horton, and Kristie Fitzgerald of the Atlanta firm of Sharon W. Ware & Associates represented Shannon King-Cortopassi.

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Atlanta—A Fulton County State Court jury awarded nearly $22 million Monday to the estate and widower of a woman who suffered severe, ultimately fatal, brain damage during an epidural procedure in 2008. Sterling Brown v. Southeastern Pain Specialists, P.C., et al., 10EV010621.

Sterling Brown sued Southeastern Pain Specialists and Southeastern Pain Ambulatory Center, as well as Dr. Dennis Doherty and Mary Hardwick, the physician and lead nurse, respectively, that performed an epidural procedure on Brown’s wife Gwendolyn. Brown contended Doherty continued with the procedure, intended to relieve back pain, despite repeated warnings that Gwendolyn’s blood-oxygen levels had become critically low. Gwendolyn suffered severe brain damage during the procedure, rendering her bed-ridden and unable to communicate. She died from brain-injury complications in 2014.

The jury's $21.98 million award included $16 million for Sterling Brown's wrongful death and loss of consortium claims and $4.2 million to Gwendolyn Brown's estate for her pain and suffering. The verdict, which took jurors more than six hours to reach over Friday afternoon and Monday, declared Doherty 50% responsible for Gwendolyn Brown's brain injury, Southeastern Pain Specialists 20% responsible, and Southeastern Pain Ambulatory Center 30% responsible. Hardwick prevailed in the negligence claims against her.  

The trial, which stretched over more than two weeks, turned on the cause of Gwendolyn Brown's brain damage and whether Doherty violated standards of care during the procedure, which involved sedating Brown with Propofol, a sedative she had taken twice before without issue. Sterling Brown's attorney, Jay Sadd, of Atlanta's Slappey & Sadd LLC, argued Gwendolyn Brown likely suffered an adverse reaction to the sedative, leading to hypoxia, or dangerously low blood-oxygen levels, within minutes of the procedure's start. Sadd argued that Doherty inexplicably waved off warnings of medical staff and two electronic monitors completing the procedure in an increasingly chaotic operating room. “All the nurses that were in the room that day, and all the employees will say that she was not fine. She was not breathing. And everybody knew it. Except maybe Dr. Doherty.”

The defense, however, argued that a sudden stroke or other unforeseeable cause was more likely the culprit. During closing arguments Friday, Doherty's attorney, John Hall, from Atlanta's Hall Booth Smith, told jurors that, even if Brown's brain damage was caused by Propofol, Doherty could not have reasonably predicted the complication. "The law doesn't charge us with having a crystal ball," Hall said, emphasizing the rarity of adverse reactions to the drug and Gwendolyn Brown's prior history with Propofol. "It charges us with looking at things that are foreseeable."

Hall told jurors that standard checks of Gwendolyn Brown, so-called "A-B-Cs", or evaluations of a patient's airway, breathing, and circulation, did not show that she was suffering from hypoxia. "If you don't have (problems with the "A-B-Cs"), that's not foreseeable that it's hypoxia," Hall said. 

Instead, Hall claimed that Brown's attorneys were concealing the full picture of the epidural procedure and the timeline of the procedure that Brown's attorneys detailed didn't account for medical records showing when Gwendolyn Brown was breathing while sedated. "Why would they try to sell you the car that there is absolutely no breathing anywhere in that record?" Hall asked.  

However, Sadd told jurors in his closing argument that some figures related to Brown's breathing levels were not necessarily accurate because of the "chaos" in the operating room. Sadd also challenged the credibility of the defense's expert, anesthesiologist Dr. Richard Moon, a colleague of Doherty's who testified that Doherty did not breach a standard of care. “Dr. Moon, if you’ll recall, does not have any experience doing ESI (epidural) procedures. Isn’t that strange?” Sadd asked. “All the people that do pain management procedures in this world, here, even, in Georgia, and you’re going to call somebody who was your friend who doesn’t even do ESI procedures?” 

During closings, Sadd argued that the jury should rely on the timeline of events and the actions of medical staff on the scene rather than subsequent testimony in Doherty's favor. Sadd reminded jurors that Michelle Perkins, a nurse involved in the procedure, texted chief nurse Mary Hardwick, requesting assistance for Gwendolyn Brown. "Do you secretly text somebody because you think everything is just going fine? Nah," Sadd said. "Do you secretly text somebody who is the chief nurse, who you know is with another patient who needs to be cared for... unless you really need them?"

The jury's award consists solely of compensatory damages. Notably, although the jury found that punitive damages were warranted against Doherty in a separate verdict Tuesday, it ultimately awarded $0 in punitives. 

Attorneys for the parties could not be reached for comment before publication. 

Bakersfield - Opening statements in a bellwether product liability suit alleging Johnson & Johnson's Ethicon unit designed a defective pelvic mesh product and withheld knowledge of the mesh's health risks began Monday in California state court.

Plaintiff Coleen Perry’s suit is the first case involving Ethicon’s “TVT-Abbrevo” sling system to be decided by a jury out of tens of thousands of pelvic mesh suits filed in state and federal court across the country. Perry had the device implanted in 2011 to treat a bladder problem called stress urinary incontinence, according to her complaint. Perry’s suit claims she later suffered painful side effects after her immune system reacted to the device’s propylene mesh and it eroded through her vaginal tissue.

During opening statements, Perry’s attorney Thomas Cartmell of Wagstaff & Cartmell LLP told jurors that Ethicon knew about the potential for propylene mesh to prompt an immune system response but failed to appropriately warn patients and physicians. Cartmell told jurors that if Perry and her doctor knew the TVT-Abbrevo couldn’t be easily removed and would remain in Perry’s body despite additional surgery, it never would have been used.

Cartmell told jurors that evidence would show Ethicon used a laser-cut mesh in the TVT-Abbrevo, which remains on the market, instead of mechanically-cut mesh to save money, despite knowing the laser-cut mesh was too heavy and stiff for implantation in vaginal tissue and having already developed safer, lighter weight alternatives to propylene mesh.

“The reason for this product was because they needed to protect their money,” Cartmell said, according to a Courtroom View Network webcast of the proceedings. “They should have used one of their lighter-weight meshes they had already developed and was in their arsenal.”

Cartmell said Ethicon falsely represented that the TVT-Abbrevo had been approved by the U.S. Food and Drug Administration. Instead the FDA had given a clearance to the device based on evidence submitted by Ethicon, Cartmell argued. He claimed that Ethicon didn’t provide the agency adequate information to make the clearance determination, because the studies used to support its application were based on other mesh devices.

While he didn’t ask for a specific amount of damages during his opening, Cartmell told jurors that the mesh would likely remain inside Perry’s body forever, and that she would probably never be able to engage in sexual intercourse with her husband again despite only being 50.

Representing Ethicon, Kim Schmid of Bowman and Brooke LLP told jurors the TVT-Abbrevo was the “gold standard” in pelvic mesh products, and that Perry only considered suing Ethicon after seeing a plaintiff attorney’s advertisement.

Schmid argued that Perry had numerous medical procedures in a nine-month span to treat organ prolapse, and that there was no way to definitively link the TVT-Abbrevo implantation to Perry’s current condition.

“The other surgeries involved the same risks and possible side effects as the TVT-Abbrevo,” Schmid said.

Ethicon has not fared well to date in state court trials over its pelvic mesh products. In 2013 a New Jersey jury socked the company with an $11.1 verdict - which is still being appealed -  over the Prolift system. That trial was also recorded by CVN. In April 2014 a Dallas jury slammed Ethicon with a $1.2 million verdict over its TVT-O product. Another trial over the Prolift, which was the first wrongful death claim against Ethicon to go before a jury, reportedly settled on Jan. 21 in Missouri state court.

The company has seen slightly better results in federal court, where the majority of pelvic mesh cases in the country are centralized in a sprawling multi-district litigation before U.S. District Judge Joseph R. Goodwin in West Virginia. Ethicon obtained a directed verdict in its favor at the first federal trial over its products in February 2014, but later suffered a $3.27 loss in a trial over the TVT-O sling the following September.

A third federal bellwether trial involving Ethicon is scheduled for March, according to court dockets.

The only pelvic mesh manufacturer to obtain defense verdicts in state court is Boston Scientific Corp., which prevailed in two cases in Massachusetts in 2014 but was later hit with an $18.5 million verdict by a federal jury. 

The current state court trial before Judge Lorna Brumfield is expected to last up to three weeks.

Attorneys for Perry and a representative for Ethicon did not respond to requests for comment from CVN.

The plaintiffs are represented by Wagstaff & Cartmell LLP, Richard A. Freese of Freese & Goss, Stewart Albertson of Albertson & Davidson LLP and by Peter De La Cerda of Edwards & De La Cerda PLLC.

Ethicon is represented by Bowman and Brooke LLP, William Gage and Burt Snell of Butler Snow LLP and by Soo Lin and Joshua Wes of Tucker Ellis LLP.

The case is Coleen Perry v. Ethicon Inc., et al., case number S-1500-CV-279123, in the Superior Court of California for Kern County.

Breaking News:  Philip Morris Prevails in $21.9M Engle Progeny, Laryngeal Cancer Suit

Jose Vila v. Philip Morris

Miami—Jurors Friday afternoon found Philip Morris-brand cigarettes did not cause the cancer that cost Jose Vila his larynx, clearing the tobacco giant in Vila’s $21.9 million Engle progeny tobacco lawsuit.

The jury took less than seven hours before finding that, while Vila suffered from nicotine addiction that caused his laryngeal cancer, Philip Morris-brand cigarettes were not the legal cause of the disease.  

Vila had sought up to $21.9 million in past compensatory damages alone, with his attorney, the Ferraro Law Firm's Allan Kaiser, presenting a range of damages to jurors during closing arguments. 

Vila sued Philip Morris, claiming its Marlboro-brand cigarettes caused his nicotine addiction and laryngeal cancer. Vila 60, began smoking at 15 while living in Spain, and continued the habit for more than 24 years, quitting sometime after his cancer diagnosis in 1994. Vila's larynx was removed two years later to treat a recurrence of the cancer.

The length of time Vila smoked Philip Morris’ cigarettes, and Vila’s own credibility, was a key issue at trial. Shook Hardy Bacon’s Robert McCarter, representing Philip Morris, told jurors Vila had not smoked his client’s cigarettes long enough for them to cause Vila’s cancer. McCarter reminded jurors in closing arguments that circumstantial evidence weighed against Vila’s claim that he began smoking Marlboro cigarettes as a teenager in Spain. What you learned when we cross-examined Dr. Proctor is Marlboro cigarettes were five times more expensive in Spain than other cigarettes because they were imported and the sale was by the Spanish monopoly,” McCarter said. “So Mr. Vila is claiming that, as a teenager without any money, to be smoking the most expensive cigarette, or one of the most expensive cigarettes in Spain.”

Instead, McCarter said the evidence established that Vila smoked Philip Morris-manufactured Marlboros for only three-and-half years, while living in the U.S., which wasn't long enough to cause Vila's cancer. “Where is the evidence that three-and-a-half years of smoking is enough to cause laryngeal cancer?" McCarter asked. "Where is the evidence? They have the burden of proof? Who testified to that? Nobody.”

However, Kaiser argued that the Marlboros Vila smoked for more than a decade while living in the Dominican Republic were produced by a Philip Morris-owned company. "(The Marlboro cigarettes in the Dominican Republic) are Philip Morris cigarettes, and they're the same Marlboro cigarettes that are manufactured here in the United States  and smoked here in the United States," Kaiser said. "And, if for a minute... Philip Morris USA, Inc.had evidence that there really weren't cigarettes that they were making being sold in the Dominican Republic, they would've brought a representative from their company to say 'No. Those Philip Morris Marlboro cigarettes weren't ours,' and they didn't do it." 

McCarter countered that the Marlboro cigarettes Vila bought in the Dominican Republic were manufactured by a third-party licensee in which Philip Morris held an interest. McCarter told jurors that connection was insufficient to hold Philip Morris liable. "This question (on the verdict form) doesn't ask whether cigarettes made by a company that Philip Morris had a stake in caused (Vila's) cancer," McCarter said. "The question is, did cigarettes manufactured by Philip Morris cause (Vila's) cancer. Philip Morris did not manufacture those cigarettes.Their own expert (tobacco industry expert Robert Proctor) admitted it."

Neither the parties’ attorneys nor Philip Morris representatives could be immediately reached for comment.

The verdict, which jurors took more than six hours to reach, gives tobacco manufacturers the win in the first state court Engle progeny case to come to trial in 2015. On Wednesday, however, a federal jury in Jacksonville hit Philip Morris with a $17.2 million verdict in an Engle progeny suit brought by a woman who claimed that smoking the company’s cigarettes led to vascular disease and the amputation of her legs. Donna Brown v. Philip Morris USA et al,3:09-CV-10687-WGY-HTS. 

Our weekly review is curated from our unequaled gavel-to-gavel coverage of Florida's Engle progeny cases.

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Salem, Ore. - Opening statements took place Wednesday in a $40 million medical malpractice trial in Oregon state court over claims that a doctor’s delay in performing an emergency Cesarean section caused a child to be born with permanent brain damage.

The parents of 7-year-old Maverick Ramseyer sued Dr. Denis Dalisky in 2011 alleging that his failure to order a C-section quickly enough after Ramseyer’s heart rate dropped to dangerously low levels resulted in him developing cerebral palsy, which an attorney for Elizabeth and Derrick Ramseyer told jurors would require a lifetime of costly medical care.

"It's never going to get better," said Kenneth Suggs of Janet Jenner & Suggs LLC while detailing the extent of Maverick’s brain damage to the jury, according to a Courtroom View Network webcast of the proceedings.

Elizabeth Ramseyer was two-weeks overdue in December 2007, when she was admitted to Silverton Hospital, according to the Ramseyers' complaint. Suggs told jurors Dalisky ordered the use of dangerously high levels of childbirth induction drugs and did so mostly from his home while directing hospital nurses over the phone.

Ramseyer was instructed to push before she was sufficiently dilated, which caused Maverick to go into distress and his heart rate to repeatedly dip below normal, Suggs told the jury. Dalisky finally ordered a C-section when the heart rate dropped to a dangerously low rate for nearly 8-minutes. By then Maverick had inhaled fecal material and been deprived of oxygen for long enough to cause brain damage, according to Suggs.

Suggs argued that both the decision to manage Ramseyer’s birth remotely and to not immediately order a C-section based on the information relayed to Dalisky fell below the standard of care.

"What would a reasonable doctor do?" Suggs asked the jury. "A reasonable doctor now would come see the patient. A reasonable doctor would evaluate the patient. And a reasonable doctor would deliver the baby because you have no idea how long this is going to go."

Suggs told the jury that while $40 million in damages may seem high, that amount is necessary to adequately provide decades of medical care for a child with severe neurological disabilities. Cerebral palsy affects muscle coordination and emotional development, and Suggs said Maverick will require a range of expensive therapies and equipment like braces for years to come.

"We're going to ask you to award enough money so that those things can be afforded after he becomes 18," Suggs said. "The parents have no stake in this. It's all for Maverick."

Representing Dalisky, John Hart of Hart Wagner LLP told jurors that his client acted properly during a delivery with unexpected complications, and that the extent of Maverick’s disabilities can’t be fully determined until he is older.

Hart argued that periodic dips in a baby’s heart rate like those experienced by Maverick, known as variable decelerations, are common when labor is induced with drugs, and that they don’t always indicate a baby is in distress.

"They are so common that we could go to any hospital in Oregon right now and see variable decelerations," Hart said.

Dalisky promptly ordered a C-section as soon as he had information showing Maverick was in distress, according to Hart, who told the jury that doing so any earlier would have posed a risk to the mother.

Hart disputed the Ramseyers’ claims that Maverick needs lifelong care, describing him as a normal 7-year-old who participates in taekwondo and plays soccer.  He also called into question the credibility of expert witnesses retained by the plaintiffs who had never physically examined Maverick.

"We're shocked that now all these doctors who have never seen Maverick are going to come in and explain why he needs lifelong care."

The trial before Judge Vance day is expected to last up to two weeks.

Attorneys for the parties did not immediately respond to a request for comment from CVN late Wednesday evening.

The Ramseyers are represented by Kenneth M. Suggs of Janet Jenner & Suggs LLC and by Laura Kalur of Kalur Law.

Dalisky is represented by John E. Hart of Hart Wagner LLP.

The case is Ramseyer v. Dalisky, case number 11C22122, in Marion County Circuit Court.