Engle Progeny Review for the Week of January 26

Posted by Arlin Crisco on Jan 30, 2015 7:53:04 PM


Edward Caprio v. Philip Morris, et al. 

Fort Lauderdale—As trial opened Wednesday, Edward Caprio's lawyer, Steven Hammer, told jurors how he believed an addiction to nicotine, not a choice to smoke, left his client tied to an oxygen tank and unable to successfully quit cigarettes until last month, years after he had been diagnosed with chronic obstructive pulmonary disease. 

"It's been said that silence is golden, but for Ed (Caprio), when he's sleeping, if this (Oxygen) machine shuts down, and becomes silent, it's a death sentence," Hammer said. "Nobody chooses to be strapped to an oxygen machine. Nobody chooses to walk around with a walker, strapped to an oxygen tank," Hammer, of the Law Offices of Sheldon J. Schlesinger, said. 

Caprio 72, is suing Philip Morris, R.J. Reynolds, Lorillard and the Liggett Group, makers of the cigarettes he claims led to his COPD and eventual lung cancer. Caprio claims he began smoking when he was 15, and argues that his nicotine addiction was so powerful that he was unable to completely give up smoking, even after being diagnosed with COPD in 1996 and subsequent lung cancer.

Hammer told jurors that Caprio's nicotine addiction was fueled by tobacco industry's "engineering" of cigarettes and its concealment of smoking's dangers in order to maintain and increase market share. "If you don't sustain that addiction, you lose customers," Hammer said. "And that's what's important to these companies, their customers. Not the health of the customers, but the money of the customers."

However, Philip Morris attorney Walter Cofer, of Shook Hardy Bacon, countered that Caprio successfully stopped smoking decades ago, when he went without cigarettes for six months during the 1980s. Cofer told jurors Thursday that the six-month period was more than enough time to move through the typical nicotine withdrawal period. Cofer told jurors that Caprio's decision to resume smoking was based on a choice and that it was that decision that led to his lung cancer and COPD. "How would things be different if in the 1980s, when Mr. Caprio... went without smoking for six months, (he'd) stayed quit? The answer is simple: we wouldn't be here," Cofer said. 

Neither the parties' attorneys nor tobacco company representatives could be reached for comment. 

Coming next week: Caprio's attorneys will move into the central issues of their case. 

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

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Topics: Florida, Tobacco Litigation, Engle Progeny Review, Caprio v. Philip Morris

Fate of MLK Jr.'s Historic Possessions May Be Decided at February Trial

Posted by Courtroom View Network on Jan 29, 2015 7:47:00 AM


The Martin Luther King Jr. National Memorial in Washington D.C. honors the civil rights leader. A trial in Atlanta is scheduled for February to determine the fate of his Nobel Peace Prize and traveling Bilble.


Atlanta—A week before the Academy Awards honors Selma, the acclaimed film focusing on the Rev. Martin Luther King Jr.’s historic civil rights march to Montgomery, Alabama, a trial is scheduled that pits the civil rights leader’s children against one another to determine the future of the civil rights leader’s iconic possessions. Estate of Martin Luther King, Jr., Inc. v. Bernice King,  2014CV241929

King’s sons, Dexter and Martin Luther King III, representing King’s estate, have sued their sister, Dr. Bernice King, CEO of the King Center for Nonviolent Social Change, seeking to recover their father’s 1964 Nobel Peace Prize and his traveling Bible. The suit stems from a decision last year by the estate’s executive board, comprised of the three children, in which King’s two sons voted to sell the Bible and Peace Prize. Bernice King, whose King Center had held the property on loan from the estate, refused.

Trial in the case is scheduled to begin February 16 in Fulton County Superior Court before Judge Robert McBurney, while the property remains in court possession.

The suit is one of a number of disputes among the siblings concerning their father’s property, though at least one suit between the parties has resolved. Last Thursday, the estate announced it had dropped its claim seeking to revoke the King Center’s right to use the civil right’s leader’s name and image unless Bernice King was removed as its CEO. That suit alleged that historically important documents had been left unsecured and susceptible to mold, mildew, and theft.

Beyond the lasting historical significance of the items at the center of the current litigation—King’s traveling Bible was used when President Barack Obama took his Oath of Office in 2012—millions of dollars are at stake. An Associated Press story reports that the 1964 Nobel Peace Prize alone could sell for up to $20 million if King’s sons prevail in their claim.

King, who was assassinated in 1968, left no will. His estate passed from his widow, Coretta Scott King, to King’s children upon her death in 2006. That year King’s heirs sold a collection of more than 10,000 of his personal documents for $32 million. That collection is now housed at the civil rights leader’s alma mater, Morehouse College, according to the AP.

CVN will cover the case as it progresses.

 Related information

 Attorneys include:

  • Nicole Jennings Wade, representing the plaintiff, the Estate of Martin Luther King Jr. Inc.
  • Eric L. Barnum, representing the defendant, Bernice King.

Topics: Estate of Martin Luther King Jr. v. Bernice King, Property Law

In Med Mal Amputation Suit, Neurosurgeon Says He Soon Suspected Serious Vascular Disease

Posted by Arlin Crisco on Jan 29, 2015 12:58:00 AM


Andrea Robinson tells jurors in opening statements that Joan Beber's MDVIP physician, Dr. Charles Metzger, negligently failed to diagnose Beber's vascular disease, which led to the amputation of Beber's leg. Beber's widower, Robert, is suing Metzger and MDVIP. Click here to watch a clip of the opening statement.

West Palm Beach, FL—As the trial of a doctor and concierge medical firm accused of negligence surrounding the care of one of its patients entered its fifth day Wednesday, testimony focused on whether the concierge firm’s affiliated physician should have diagnosed the vascular condition that cost the patient her leg. Beber v. MDVIP, et al., 50-2009-CA-034380.

Jurors Wednesday heard deposition testimony of Dr. Gary Gieseke, a neurosurgeon who examined Joan Beber on March 7, 2008, after a referral from Dr. Charles Metzger, Beber’s primary physician and a defendant in the suit. Gieseke testified that Beber’s leg, which Beber said was numb, felt "ice cold" to the physician’s touch. Gieseke stated that he felt that Beber may have suffered from vascular disease, with decreased blood flow into her left leg, and that he recommended to Metzger the specific tests needed to diagnose or rule out the disease. Gieseke testified that "I just told him, I thought she had several things going on. But the main thing I was concerned about is (that) she might have a vascular impairment, meaning shutting off of arterial blood to the left leg." Gieseke testified that “I’d say (time was of the essence) when I called him” on March 7 to recommend further tests . Gieseke’s March 7 medical documents of the visit requested Metzger fax the reports “of the vascular studies ASAP.” Gieseke testified that Metzger said he would have the tests performed and faxed tests back to Gieseke’s office on March 10, 2008.

Joan Beber first contacted Metzger’s office in February 2008 complaining of leg pain but was referred and treated multiple times for back pain, despite the fact that her condition continued to deteriorate to the point that she could no longer walk. Physicians ultimately had to amputate Beber’s left leg above the knee in mid-March 2008 because of a blood clot related to vascular disease. Joan Beber died in 2012 from leukemia, and her husband Robert pursued a suit against both Metzger and MDVIP, the concierge medical firm the Bebers had joined and which recommended Metzger.

Beber’s attorney, Andrea Robinson, of Searcy Denney, claims Metzger was negligent in failing to diagnose Beber’s vascular condition in time to save her leg, and that MDVIP was liable for the malpractice of its affiliated physician. In opening statements last Thursday, Robinson told jurors that Metzger failed to see clear signs of vascular disease. “This was preventable. This didn’t have to get this far,” Robinson said. “But Dr. Metzger’s failure to consider anything else but a back problem got us to where we are today.”

Robinson also told jurors that MDVIP is liable for Metzger’s alleged malpractice on agency principles because of its ties with the physician and its right to control Metzger’s practice. “Dr. Metzger is (MDVIP’s) doctor,” Robinson said. “You’re going to see a slew of different areas where they actively control and pull the different strings of an MDVIP doctor.”

Robinson told the jury that MDVIP promised the Bebers when they agreed to sign up for the concierge medical service that they would provide the couple with a medical “quarterback” that would deliver  appropriate care. “And if he’s their quarterback, then they’re the coach. And they’re the ones calling the plays,” Robinson said. “And what happens when someone loses the game? Sure the quarterback’s on the hook, but so’s the coach.”

However, the defense contends that Metzger was an independent contractor and that MDVIP was not responsible for his medical judgment. Gray Robinson's David O. Doyle, representing the defense, told jurors in openings that “MDVIP is not a healthcare provider. They don’t treat diseases. They don’t diagnose diseases. They have a program where their members become part of a smaller practice so that they can focus, with their physician, on their healthcare."

Doyle also told jurors that MDVIP explicitly informed the Bebers that they were not responsible for physicians’ treatment at the time the couple signed up for the plan. “MDVIP could not have been clearer,” Doyle said, before reading from promotional materials: “’Your doctor owns the practice, manages the practice, and MDVIP has absolutely no involvement whatsoever in any medical decisions.'”

Doyle emphasized during openings that, regardless of MDVIP’s connection to Metzger, the evidence would show that the doctor did not violate standards of care. “The plaintiffs in this case are going to try very hard to convince you that Dr. Metzger, who’s not a (vascular) specialist, should have made a diagnosis that (a vascular) specialist didn’t make. Even with more information than he ever had,” Doyle said. “And that’s simply why this is a case of misplaced blame.”

Attorneys could not be reached for comment on the trial’s progression.

Related Information

Attorneys in the case include:

  • Andrea Robinson, Karen Terry and Jack Scarola, from Searcy Denney, representing the plaintiff.
  • David O. Doyle, Jeffrey Keiner, and Justin Marshall, from Gray Robinson, representing defendants.

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Topics: Negligence, Medical Malpractice, Florida, Beber v. MDVIP

Drowned Powerboat Racer’s Widow Settles Suit Against Race Organizers

Posted by Steve Silver on Jan 28, 2015 7:26:58 PM


Aquatic rescue expert Clay Ingle criticized the rescue procedures used to attempt to free powerboat racing champion Joey Gratton from his boat after its 2011 crash in a race overseen by Super Boat International Productions, Inc.Gratton's widow, Priscilla Gratton, settled her wrongful death suit against with Super Boat International. 


Fort Lauderdale, FL –The widow of drowned champion powerboat racer Joey Gratton reached a settlement in her wrongful death case against Super Boat International Productions, Inc., the organizers of a Key West race in which Gratton drowned. Details of the settlement were not made public and attorneys could not be reached for comment. Priscilla Gratton v. Donald DiPetrillo et al, CACE 12004442.

Priscilla Gratton alleged that race organizers negligently failed to ensure that properly trained rescue divers were on hand and did not immediately stop the 2011 race following an accident that caused his boat to flip. The defense contended that the death resulted from mechanical problems that prevented the rescue divers from extricating Gratton from the capsized boat in time.

The settlement came January 16, after the jury heard two and a-half days of testimony from various witnesses, including Michael Haugh and Steven Lang, the two divers who attempted to rescue Gratton. The last witness to testify was Gratton’s expert Clay Ingle, chief of a Chattanooga, TN, rescue service who had personally performed over 150 similar rescues of trapped boaters in his career.

Ingle characterized the use of civilians Haugh and Lang as primary rescuers, instead of trained professionals, as “way below” acceptable national standards for the type of race in which Gratton died. He explained: “The fact that [Haugh] wasn’t trained properly … he wasn’t a public safety diver, didn’t have the correct mindset … didn’t have the experience not to panic in a situation that’s deteriorating and not able to come up with an acceptable idea to correct problems that he was having; that’s the big negligence. This is horrible. This should never have happened because he was not properly trained.”

Ingle went on to testify that safely rescuing Gratton would have been simple for a properly trained professional. “There were so many mistakes made from the start; at any time a simple action could have solved this problem… If either one of them would have been trained appropriately they wouldn’t have panicked; they would have done what needed to be done; this would have been a simple rescue, no other way to say it.”

Ingle also said that divers in the rescue helicopter, which arrived at the accident scene before Haugh and Lang did, should have been the first ones to deploy. Further, the organizers’ failure to stop the race immediately after the accident made the rescue attempt more difficult.

When Gratton’s attorney Michael Allweis asked Ingle about specific actions taken by Haugh and Lang, Ingle criticized their leaving Gratton in the water and giving an “OK” sign to other rescuers while the racer was still in the boat. At the very least, Ingle said a diver should have remained with Gratton and made sure he could breathe, sharing the air from the diver’s own tank if needed.

On cross examination by William Milliken, Ingle acknowledged that various boating organizations had different safety standards and that he had no actual knowledge as to how much training Haugh and Lang had received. Ingle said, “If I didn’t witness it or I didn’t see the [certification] paper on it, I can’t testify someone’s been trained.”

Video coverage of the trial prior to its settlement is available on Courtroom View Network.

Related Information

Priscilla Gratton is represented by Michael D. Allweiss of Allweiss & Allweiss and by F. Gregory Barnhart of Searcy Denney Scarola Barnhart & Shipley.

The defendants are represented by William B. Milliken of Hayden Milliken & Boeringer PA and by Albert L. Kelley of Albert L. Kelley PA.  



Topics: Negligence, Wrongful Death, Florida

Jury Awards $200K+ To Driver Broadsided In New Year’s Traffic Accident

Posted by Steve Silver on Jan 27, 2015 7:20:00 PM

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.

Following the verdict, Horton's attorney, Joe Weeks told CVN that the key to the case was having a likable client who presented well and connected with the jury. Attorneys for King-Cortopassi were unavailable for comment.

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.

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

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Topics: Negligence, Georgia, Horton v. King-Cortopassi

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