Trio of Tobacco Companies Cleared in $15M Lung Cancer and COPD Suit

Posted by Arlin Crisco on Jul 31, 2015 2:52:00 PM


Vero Beach, FL—Three of the country’s largest tobacco companies prevailed Thursday in a former smoker’s suit for the lung cancer and respiratory disease she claims was caused by an addiction to cigarettes. Collar v. R.J. Reynolds, et al., 2011-CA-000115.

Watch Video from Tobacco Trials Jurors answered “no” to the initial questions of whether Fannie Collar, a smoker for 50 years according to her attorneys, was addicted to nicotine and whether that addiction caused her lung cancer and chronic obstructive pulmonary disease.

Collar, 81, was diagnosed with lung cancer and COPD in the early 1990s. Although physicians successfully treated her cancer, Collar’s COPD is incurable and she relies on an oxygen tank to help her breathe. She sued R.J. Reynolds, Philip Morris, and the Liggett Group, claiming they concealed the dangers of smoking for decades causing her nicotine addiction and, ultimately, her smoking-related diseases.

Collar sought $15 million in compensatory damages plus unspecified punitives against the tobacco giants.

The two-week trial turned on whether Collar's smoking was driven by addiction. During closing arguments Wednesday, Collar’s attorney, Steven Hammer reminded jurors that medical documents over the years described Collar as suffering from “nicotine abuse” and “tobacco use disorder.” Hammer said “all of those things reflect nicotine addiction.”

Hammer also argued Wednesday that Collar’s smoking behavior bore the tell-tale signs of addiction. Hammer reminded jurors of evidence that Collar failed in more than 100 attempts to quit. He noted that her craving for nicotine was so powerful that she once smoked cigarette butts taken from a vacuum cleaner.

“This woman tried to quit. She was too addicted,” Hammer said. “She kept relapsing. And that is the sign of an addict.”

However, the defense argued that Collar chose to smoke out of enjoyment and despite knowing the dangers of cigarettes. During closings Wednesday, Shook, Hardy & Bacon’s William Geraghty, representing Philip Morris, reminded jurors of evidence that Collar ignored repeated warnings from friends and family to stop smoking. “Of course Miss Collar didn’t listen. She continued smoking no matter what anyone told her,” Geraghty said. “She was the kind of person that was going to smoke no matter what anyone said to her.”

Geraghty also reminded jurors of testimony from her treating pulmonologist, Dr. John Suen, who said Collar successfully quit smoking when she was motivated. “(Suen) probably knows her better than anybody you heard from in the course of this entire trial. He has no interest in the outcome of this case. And he told you Fannie Collar quit smoking when she was motivated to do so,” Geraghty said.

“And frankly, ladies and gentlemen, that’s all you really need to know to decide the issues in this case.”

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

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


Related Information

Sheldon J. Schlesinger P.A.'s Steven Hammer and Jonathan Gdanski represent Fannie Collar. Jones Day's Mark Belasic represents R.J. Reynolds. Shook Hardy & Bacon's William Geraghty represents Philip Morris. Kasowitz, Benson, Torres & Friedman's Nancy Kaschel and Ann St. Peter-Griffith represent the Liggett Group.

Watch gavel-to-gavel coverage of the trial on demand.

Not a subscriber?

Click here to learn more about our unrivaled tobacco litigation library.

Topics: Negligence, Products Liability, tobacco, Engle Progeny, Florida, Collar v. R.J. Reynolds

Watch an Expert's Ill-Advised Comparison Scuttle a Key Products Liability Trial | Florida Trial Video Vault

Posted by Courtroom View Network on Jul 31, 2015 2:47:00 PM

 


While strong testimony from an expert witness can be the lynchpin to a favorable jury verdict, the converse is also true, as one ill-timed statement from an expert can destroy even the best-prepared case. In Morse v. R.J. Reynolds, an expert’s reference to the September 11 World Trade Center attacks led to a mistrial in a wrongful death tobacco case potentially worth millions.

Click Here FREE Florida Trial Video Samples Pearl Morse sued tobacco manufacturers R.J. Reynolds and Philip Morris for the lung cancer death of her husband, Jay. Nicotine addiction and its link to Jay Morse's cancer was a key element to the case. To help establish addiction, Morse’s attorneys called Dr. Shannon Miller, an addiction expert, to testify. At the end of three days on the stand, however, when asked how many people will die prematurely from smoking, Miller answered "(A)bout 430,000 people die of smoking each year. It's the equivalent of about three World trade Centers."

The testimony, less than a week after the 13th anniversary of the attack on the World Trade Center, prompted a swift objection from the defense.

Although Judge George Turner allowed the parties to continue until the day's end, the next morning he granted a defense motion for a mistrial based on the possibility that the statement may have been calculated to inflame the jury.

“We’re dealing with a psychiatrist here, and there could be a subliminal plant dealing with what he mentioned and what he knew not to mention ‘Twin Towers.' So the subliminal plant deals with punishment,” Judge Turner said.

“There’s a correlation there that I can’t get beyond,” Judge Turner explained as he declared a mistrial

Miller’s testimony in Morse, and the effect it had, is a reminder of how high stakes can be in expert testimony.


Related information

Watch the Morse v. R.J. Reynolds trial on demand.

Not a subscriber?

Learn how you can watch CVN Florida's unparalleled coverage of the state's key trials.

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

Landmark $150M Jeep Fuel Tank Verdict Slashed By Judge

Posted by David Siegel on Jul 30, 2015 11:17:00 AM

Walden_jeep

The 1999 Jeep Grand Cherokee in which four-year-old Remington Walden burned to death after its fuel tank exploded following a rear-impact collision. 

Bainbridge — A Georgia state court judge has reduced a record-setting $150 million verdict against Fiat Chrysler Automobiles over exploding Jeep fuel tanks to $40 million, while also slapping away the automaker’s request for a new trial in the case.

The decision came at the same time Fiat Chrysler was whalloped with a $105 million fine by federal regulators over the company’s failure to recall millions of older-model Jeeps with rear-mounted fuel tanks that can explode in the event of a collision. The penalty is the largest ever issued by the National Highway Traffic Safety Administration related to an automobile recall, according to the agency.  

Judge J. Kevin Chason denied Fiat Chrysler’s bid for a new trial in an order issued July 24 after attorneys for the automaker and the parents of four-year-old Remington Walden, who burned to death while strapped in his carseat after his family’s 1999 Jeep Grand Cherokee was rear-ended, presented oral arguments at a hearing 10 days prior. He rejected claims that the jury’s verdict was a result of “passion and prejudice” or that the award amounted to punitive damages that weren’t permitted in the case.

“This Court listened carefully to the entirety of the trial, including those examinations, statements, and arguments now criticized by FCA, and has reviewed the trial transcript, and finds that FCA's criticisms are unfounded,” Judge Chason’s order states.

(Click here to read a copy of Judge Chason’s ruling. Click here to see gavel-to-gavel video of the July 14 hearing on Fiat Chrysler’s motion, and here for video of the trial.)

Attorneys for the Walden family had indicated that they were open to a “reasonable” reduction in the award but also urged Judge Chason to deny a request for a new trial in the case. The reduced award consists of $30 million for Walden’s wrongful death and $10 million for the pain and suffering he experienced in the fire, down from the original verdict’s $120 million for wrongful death and $30 million for pain and suffering.

Fiat Chrysler spokesman Michael Pallese suggested to CVN that the company doesn’t consider Judge Chason’s ruling a final resolution of the Walden’s lawsuit.

“The reduction in the damage awards does not cure the many errors that tainted this verdict and denied FCA US a fair trial,” Pallese said. “We are considering our legal options.”

Attorneys for the plaintiffs were not available for comment.

Fiat Chrysler announced a recall of roughly 1.5 million Jeeps in 2013 following pressure from federal regulators, due to the fire risk from leaking fuel tanks in the event of a rear-end collision, but the 1999 Jeep Grand Cherokee was not recalled. Instead the company offered to install trailer hitches on the vehicles to provide better crash protection.

The Walden case was the first to make it to trial after Fiat Chrysler settled numerous other claims related to fuel tanks in older Jeeps. The verdict, which was the largest of its kind ever returned by a Georgia state court jury, helped spur renewed scrutiny of the 2013 recall and whether or not the company met its obligations, which resulted in Sunday’s record NHTSA fine.

The agency found that the trailer hitch option was inadequate, and in addition to the monetary penalty ordered Fiat Chrysler to contact owners of more than one million Jeeps that weren’t subject to an initial recall and offer either a trade-in or a monetary incentive to upgrade their existing vehicle.

U.S. Transportation Secretary Anthony Foxx said in a statement that the fine will hold Fiat Chrysler accountable for past failures and also help to get unsafe vehicles off the road.

“This civil penalty puts manufacturers on notice that the Department will act when they do not take their obligations to repair safety defects seriously,” Foxx said.  

The second trial over Jeep fuel tanks is scheduled to start next January in California, according to court records.

The Walden family is represented by Jim Butler and David Rohwedder of Butler Wooten Cheeley & Peak and James Butler of Butler Tobin LLC. 

Fiat Chrysler Automobiles is represented by Thomas Dupree of Gibson Dunn & Crutcher.

The case is James Bryan Walden and Lindsay Newcombe Strickland, on behalf of Remington Cole Walden v. Chrysler Group LLC, case number 12-CV-472, in the Superior Court of Decatur County in the State of Georgia.

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

Topics: Products Liability, Georgia, automotive

Defense Attorney Explains Paying Expert Witness More Than Plaintiff's Treating Physician's Charges: GA Trial Highlight

Posted by Steve Silver on Jul 29, 2015 4:37:20 PM


Expert witness fees often raise credibility issues with juries, but rarely more so than in one recent DeKalb County State Court case. In Evan Terrell v. Alexandria Hamilton (14A51260), the defense’s expert witness claimed that the fees charged by plaintiff’s treating physician were excessive but then revealed on cross examination that his own fee was greater than the treating physician’s entire bill.

The case arose out of a multi-car rear end auto accident on Panola Road in DeKalb County on June 28, 2013. Alexandria Hamilton’s car hit a pickup truck that was stopped in a line of traffic, and the truck was knocked forward into Evan Terrell’s vehicle. Terrell first sought treatment from a chiropractor and then visited Dr. Robert Karsch, an orthopedist. Terrell later filed suit against Hamilton, claiming he had suffered a broken big toe in the accident. Before the trial, Hamilton admitted liability for the accident but contested the severity of plaintiff’s injuries and the damages to which he was entitled.

Click Here FREE Georgia Trial Video Samples At trial, Terrell’s attorney Sutton Slover introduced the video deposition testimony of Dr. Karsch, who diagnosed Terrell’s broken toe and said it was caused by the auto accident. He added that, because of Terrell’s weight (the plaintiff was an amateur football coach who weighed 300 pounds), it was likely that he could develop arthritis in his toe in the future and require surgery.

To counter Dr. Karsch’s opinion, Hamilton’s attorney, Himanth Digurmathi, submitted the video deposition testimony of his own expert, Dr. Bennett Axelrod, an orthopedic surgeon. Dr. Axelrod was critical of many aspects of Terrell’s case. He criticized the initial set of x-rays taken by the chiropractor Terrell consulted and also criticized Terrell for waiting over a month before seeking treatment from Dr. Karsch.

While he agreed with Dr. Karsch’s diagnosis that Terrell had a broken toe when Dr. Karsch took a follow-up x-ray, Dr. Axelrod could not say with any reasonable degree of medical probability that the accident caused the broken toe. Based on his own experience, Dr. Axelrod stated that this type of auto accident rarely caused injuries to the toe. He also noted that Terrell was not limping when he saw the chiropractor only a few days after the accident, although he was limping when he first visited Dr. Karsch.

In addition to testifying about Terrell’s treatment and diagnosis, Dr. Axelrod also provided an opinion about Dr. Karsch’s fees. Dr. Axelrod opined that Dr. Karsch’s charges for x-rays and office visits were considerably higher than normal in the Atlanta area and were not usual and customary given the type of services provided.

This last testimony presented a problem for Digumarthi. According to the medical records introduced by plaintiff, Dr. Karsch’s charges for Terrell’s treatment totaled approximately $3,300. However, as Slover brought out in cross-examination, Dr. Axelrod’s fees in the case totaled $3,400. In his closing statement, Slover would bring up Dr. Axelrod’s fee again, calling the testimony a “bought opinion.” Slover stated, “[They are] hiring a doctor who got more money than anybody … He wants to charge a high amount but complain about [Dr.] Karsch’s bills.”

Digumarthi, who delivered his closing statement before Slover’s, wanted to ensure that the jury was not influenced by the size of Dr. Axelrod’s fee, especially in light of his opinion regard Dr. Karsch’s charges. He began addressing the issue by reminding the jury of Dr. Axelrod’s lengthy training and experience (27 years as a surgeon). Digumarthi then stated that it was this lengthy experience and training that enabled Dr. Axelrod to inform the jury of the information he knew and the opinions he had formed as a result of that experience and training.

Digumarthi acknowledged that Dr. Axelrod charged “a lot of money” but noted that LeBron James also got paid a lot to play basketball, “and he didn’t even do that well last night” (referring to James’s playoff game the night before). Digumarthi continued, “Doctors in general get paid a lot of money because of what they do in our society. They go through all of this work, all of this training, and they get paid a lot more money than an average person does. … I’m not disputing that [Dr. Axelrod] is getting paid a lot of money.”

Digumarthi then directly addressed the fact that Dr. Axelrod’s fees were higher than Dr. Karsch’s charges. He stated that, unlike Dr. Karsch, Dr. Axelrod was hired specifically for the purpose of giving an expert opinion and should be paid in accordance with what expert witnesses are paid. He finished by noting that Dr. Axelrod also served as an expert witness for plaintiff’s attorneys on occasion, including testifying forthe law firm in which Sutton Slover’s father was a partner.

The jury did issue a verdict for Terrell in the case but only awarded $7,000 in damages, considerably less than the “bottom line” figure of $62,000 that Slover requested.

Courtroom View Network’s earlier coverage of the case can be found here. Steve Silver can be contacted as ssilver@cvn.com.

Not a Subscriber?

Learn more about CVN's unparalleled coverage of top Georgia trials.

 

Topics: Georgia, Terrell v. Hamilton

Former Waitress Gets Stiffed by Defense Verdict in Personal Injury Auto Case

Posted by Steve Silver on Jul 27, 2015 7:13:00 PM


Dalton, GA—A former restaurant waitress who has been receiving pain management treatments since an automobile accident in 2012 lost her personal injury lawsuit in Whitfield County Superior Court against the driver who rear ended her, following defense suggestions that two chiropractors who treated her during this time may actually have caused the pain. Christy Carr Fowler v. Shelby McFarland (14-CI-197-J)

According to testimony in the case and other records, Christy Fowler was stopped at a traffic light on Cleveland Highway in Dalton on March 29, 2012. Shelby McFarland, who was behind Fowler’s car, was temporarily distracted, misjudged the distance between the vehicles, and collided with Fowler’s car. Following the accident, Fowler was taken by ambulance to a local emergency room for treatment. McFarland was cited for following too closely and admitted responsibility for the collision prior to trial.

Click Here FREE Georgia Trial Video Samples At the trial, Fowler testified that she was flung forward and back by the force of the collision, which sent various loose items inside her car flying. Afterwards, she continued to experience back and neck pain and went to see her primary care physician, Dr. Murrah Watson. She stated that she went back to work as a server and manager at the Rib and Loin, a popular Chattanooga area barbecue restaurant, but had to quit in early June, 2012, due to her pain and had not sought other employment since then. Fowler said that she missed her job but that she couldn’t do the work anymore because of her pain and limited strength and mobility. Fowler was wearing a neck brace at the time she quit work and still occasionally wears a neck brace. Further, she stated that she not worked or sought other employment since.

Fowler also testified that she had sought treatment for her pain from several other physicians and two chiropractic clinics. She visited Life Touch Chiropractic in May 2012 and was examined but never received treatment there. She then went to another chiropractic clinic, Hixson Spine Center, where she received treatment for a year. She stopped going to Hixson because she felt the treatments weren’t helping anymore. She later went to Tennessee Valley Pain Management where she still receives treatment. Fowler also testified that she had been involved in a one-car rollover accident in 2006 and that she had fallen while doing housework in 2007 but had fully recovered from those incidents, neither of which caused her back or neck pain.

During cross examination, McFarland’s attorney, Alan Miller, had Fowler acknowledge making various statements in her earlier deposition that she did not testify to on direct examination. Fowler admitted stating in her deposition that McFarland approached her car after the accident, banged on the window and swore at her. Fowler also said that her mother informed her that the police had to restrain McFarland.

Miller also brought out various inconsistencies among Fowler’s different statements. By contrast to her trial testimony that she worked until June 2012, he had her acknowledge that the last pay stub she submitted was in May, 2012. Similarly, he asked her about the bills from Life Touch Chiropractic that indicated she had received adjustments in May. Fowler reiterated that she was not treated there, even though she was seeking damages for those charges. Similarly, Fowler denied having received chiropractic care in 2004, despite office records to the contrary, insisting that it was her daughter who received the treatment.

Miller also questioned Fowler about statements he made that her chiropractors hurt her. She responded that she experienced pain at Life Touch when she had her neck placed in a support for the X-ray, but that the chiropractor did not “physically hurt” her. She also said that she experienced the normal discomfort at Hixson Spine Center that patients get from receiving adjustments but that she did not stop going there because of any pain suffered, only because the treatments weren’t working.

Fowler also introduced into evidence video depositions from Dr. Watson and Dr. Stephen Dreskin, her treating physician at Tennessee Valley Pain Management. They testified to the various methods of treatment and pain medications they had prescribed and indicated that Fowler’s symptoms were consistent with being injured in a rear end collision.

The defense only called two witnesses, Shelby McFarland and her father, who came to the scene shortly after the accident. They both described the damage to both vehicles as minor and denied that the bumper fell off Fowler’s car as Fowler contended. Shelby McFarland also denied approaching Fowler’s car after the accident. Instead, she testified that she pulled into an adjacent parking lot and waited for the police to arrive while Fowler remained in her car. Both Shelby McFarland and her father expressed surprise that Fowler was claiming she received extensive injuries resulting from the accident, which Shelby described as a bump.

In his closing statement, Fowler’s attorney Sutton Slover reminded the jury that McFarland had acknowledged responsibility for the action. He went on, “If you are to believe that this didn’t happen, that [Fowler] didn’t get injured, then you’re going to have to believe that she wasn’t going to the pain doctor or she didn’t need to go, that she didn’t need to go to the chiropractor, she didn’t need all those pain medications, she didn’t need to drive up to Hixson Spine Center, she didn’t need to see Dr. Watson. You’re going to have to disbelieve that.”

Slover noted that Fowler had consistently reported pain resulting from the car accident since “day one.” He added that there was not “one shred” of evidence that Fowler wasn’t hurt. And, if Fowler was hurt, as “a slew” of Fowler’s doctors thought, then there was no other possible cause of the pain other than the accident. Further, as Dr. Dreskin opined, her pain was likely to be permanent. Slover also pointed out that Fowler tried to work for several weeks following the accident.

In his closing statement, Alan Miller countered that medical evidence from Fowler’s treating physicians indicated she had degenerative problems, “a sore neck” before the accident. Further, if anyone were to blame for Fowler’s pain, it was the two chiropractors who treated her. He pointed to language in Fowler’s deposition and written statements that indicated, in Fowler’s words, that the chiropractors “hurt me, never made me better, aggravated my condition and made me cry.” Miller continued, “A zero award is a true verdict, a true award, a fair award. A zero award will stop this kind of thing right in its tracks.”

Miller further noted that Dr. Dreskin had said that “he depended on Ms. Fowler for all his information, for all his treatment plan, for all his medications. He depended on what Ms. Fowler told him. He based it all on what she told him.”  Miller invited the jury to look at Fowler’s credibility, including her claims that McFarland banged on Fowler’s car window and swore at her after the accident. Miller also pointed out the various inconsistencies in Fowler’s different statements He also reminded the jury that Fowler’s 2006 car accident from which Fowler said she was fully recovered was a one-car accident, while the accident involving McFarland was a two-car accident.

At the conclusion of the two-day trial, the jury issued its verdict for McFarland. After the trial, Alan Miller said that the key to the verdict was the likability of his client, who, at the time of accident was on her way to attend a college class. Miller felt his client was very credible and came across as a person trying to make the most of her life. He also noted that plaintiff’s case may have been hurt by the statements Fowler herself made while filling out the various medical records that were introduced into evidence in the case. Representatives for the plaintiff were unavailable for comment prior to the publication of this article.

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


Related information:

Attorneys involved in the case include Sutton Slover and Ross Moore of Atlanta for Christy Carr Fowler and E. Alan Miller of Atlanta's Martenson, Hasbrouck & Simon and Nicole Gupta of Atlanta's Rich, Nash & Manganiello for Shelby McFarland.

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

Not a Subscriber? Learn more about CVN's unparalleled coverage of top Georgia trials.

Topics: Negligence, Georgia, Fowler v. McFarland

Suggest a Case

Do you have a case you think we should be following? Let us know!

Subscribe to Email Updates

Posts by Topic

see all