R.J. Reynolds Win in Widow's $9M COPD Suit Highlights Engle Review for the Week of May 18

Posted by Arlin Crisco on May 22, 2015 7:00:12 PM


Jeffrey Furr tells jurors evidence showed Willie Gray smoked by choice rather than because of addiction. Jurors found in favor of Reynolds in a suit by Gray's widow, Ethel Gray. 

Gray v. R.J. Reynolds

Pensacola, FL—R.J. Reynolds prevailed Thursday in a $9 million suit brought by a widow who claimed her husband’s decades of smoking led to his lung and artery disease.

Watch Video from Tobacco Trials The six-member jury needed about three hours to reach a verdict for the tobacco maker, finding that Ethel Gray’s husband, Willie Gray, had not been addicted to Reynolds cigarettes. Addiction is one of several elements Engle progeny plaintiffs must prove.

Willie Gray began smoking in the 1950s with hand-rolled cigarettes filled with pipe tobacco, but started purchasing Reynolds-brand Winston cigarettes by the 1960s, according to his wife. Ethel Gray, 81, claimed her husband smoked at least a pack of cigarettes a day for more than 25 years before ultimately quitting in the 1990s. Willie Gray suffered from chronic obstructive pulmonary disease, coronary artery disease, and peripheral vascular disease, which his wife claimed was caused by his smoking, prior to his death.

Addiction was a central point of dispute in the case. During closing statements Wednesday, Gray’s attorney, Richard Diaz, reminded jurors addiction expert Dr. David Burns concluded Gary was addicted to nicotine and that Gray’s behavior supported a finding of addiction. Diaz reminded jurors of testimony that Gray could not go more than an hour without having a cigarette, would “chain smoke” by lighting one cigarette from the spent butt of another, and would wake up in the middle of the night to smoke.

“There is no definition for addiction in the legal instructions. But you know what, folks, you’ve got your reason and common sense,” Diaz told jurors. “And when it walks like a duck, and quacks like a duck, and looks like a duck, it’s a duck.”

However, the defense contended that Gray smoked Reynolds-brand cigarettes by choice rather than because of addiction. During closing arguments, King & Spalding’s Jeffrey Furr said evidence established that Gray had no desire to stop smoking from the 1950s through the 80s and successfully quit smoking the first time he tried, in 1993.   

Furr also questioned medical evidence diagnosing Gray as a nicotine addict. Furr noted that Burns’ finding of nicotine addiction did not rely on criteria in the Diagnostic and Statistical Manual of Mental Disorders 5, which Furr argued was the typical test for nicotine addiction. Furr reminded jurors that, by contrast, defense expert Dr. William Giakas concluded Gray had not been addicted to cigarettes based on DSM V criteria.

“As Dr. Giakas walked through with you for hours reviewing Mr. Gray’s smoking behavior, there was zero evidence of any clinical significance or impairment attached to Mr. Gray’s smoking,” Furr told jurors.

“In fact, as Dr. Giakas explained, Mr. Gray was able to control his smoking and quit any time he chose to do so.”

Neither the attorneys for the parties nor Reynolds representatives could immediately be reached for comment. 

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

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

Former UFC Champ Seeks $2M+ At Trial Over Real Estate Ponzi Scheme

Posted by David Siegel on May 22, 2015 2:52:00 PM


San Luis Obispo — Former Ultimate Fighting champion Chuck “The Iceman” Liddell accused a title company of forging his signature on escrow documents and costing him $2 million by investing in a real estate Ponzi scheme, at a trial that began Wednesday in California state court.

Liddell’s suit accuses Cuesta Title of being complicit in dealing with developer Kelly Gearhart, who convinced investors to sink money into projects like golf courses and commercial buildings, but instead used the funds to pay himself and others.

Liddell’s attorney, Warren Paboojian of Paradat & Paboojian Inc. told jurors during his opening statement that Cuesta Title failed to disclose conflicts of interest to Liddell, like the fact a company agent had flown on Gearhart’s private jet and was involved in a relationship with his brother.

Paboojian said that after Liddell invested $2 million in four residential lots on the Vista Del Hombre golf course, Cuesta Title forged Liddell’s signature on documents that allowed his investments to be released prior to the close of escrow and without the titles to the properties being transferred.

"There was fraud. They knew it," Paboojian said of the company during his opening statement, according to a Courtroom View Network webcast of the trial. (Click here to see video from the trial.)

Liddell is widely known due to status as a former UFC heavyweight champion. He is largely credited with helping bring mixed martial arts fighting to a mainstream audience, and he has appeared on the celebrity performance show “Dancing with the Stars.”

Gearhart declared bankruptcy after the scheme collapsed, causing investors to go after Stewart Title Company of California, which purchased Cuesta Title, to recoup their $20 million in losses.

He pleaded guilty in 2014 to federal charges of money laundering and wire fraud and is scheduled for sentencing on June 1 in Los Angeles.

A bellwether trial in 2013 involving a test group of investor plaintiffs resulted in a defense verdict for Cuesta Title. That trial was also recorded gavel-to-gavel by CVN.

The vast majority of the 500 plaintiffs subsequently settled their claims against the title company, but Liddell, who is part of a group of fewer than 30 investors yet to resolve their claims against Cuesta Title, claims to have a stronger case than other investors. 

While previous plaintiffs invested with Cuesta Title through a loan broker, Liddell's’ attorneys say he dealt directly with the company. They claim that that Cuesta Title forged Liddell’s signature, an accusation that previous plaintiffs did not make. Cuesta Title is expected to call a handwriting expert to testify that Liddell's signature was not forged. 

Claims from three other remaining investors are also being heard at trial along with Liddell’s.

During his opening statement on behalf of Cuesta Title, Gerard Kelly of Sidley Austin LLP said the company had no knowledge of of Gearhart’s illegal activities.

"The bad guy in this is clearly Kelly Gearhart," Kelly said.

He said Liddell should have known that he was investing in a potentially high-risk deal, and that he had authorized the company to release his money.

"Mr. Liddell did no investigation," Kelly said. "He just plopped down his two million bucks and said, 'Release the money.'"

He explained that escrow companies are legally prohibited from giving financial advice to clients or warning them off making bad investments. The company must follow client instructions, which in this case meant working with Gearhart, who had returned profits for investors in the past.

"He was a success for many, many years," Kelly said.

The trial before Judge Martin Tangeman is scheduled to last up to two weeks, and is being recorded and webcast gavel-to-gavel by CVN.

Attorneys for the parties did not respond to a request for comment.

Liddell is represented by Warren Paboojian of Paradat & Paboojian Inc., and other investors are represented by attorney Maria Hutkin.

Cuesta Title is represented by Gerard Kelly and Nicole Ryan of Sidley Austin LLP.

The case is Liddell, et al. v. Cuesta Title, case number CV09-0676, in San Luis Obispo County Superior Court.

E-mail David Siegel at dsiegel@cvn.com

Topics: Real Estate, California

ATV Rider Details Off Road Transport of Unconscious Crash Victim in $100M Brain Injury Trial

Posted by Arlin Crisco on May 21, 2015 11:45:00 AM


Brandon Markovich details how he and his companions took an unconcious Brittany Falkner to a hospital more than 10 miles from Falkner's ATV crash site. Falkner is suing one member of the riding group, Ed Murawski, for brain and spinal injruies she claims she suffered from her transportation after the accident.  


Fort Myers, FL—A riding companion of a Florida woman suing over brain damage she allegedly suffered following a 2007 ATV accident detailed for jurors Wednesday the party’s struggles as they moved the unconscious woman from a secluded crash site to a hospital 10 miles away. Falkner v. Murawski, 09CA004033.

Watch a  Clip From This Trial Brandon Markovich told jurors that he did not see the accident that threw 17-year-old Brittany Falkner into a tree in 2007. However, he testified that she appeared unconscious and unresponsive as he and his companions, including his father, David Markovich, and Ed Murawski, carried Falkner for more than 30 minutes across rough terrain, first with an ATV, then inside a small pickup truck, to a hospital emergency room themselves.

 “Get Brittany to the hospital,” Markovich described as the party’s goal after the accident. “She needed emergency services.”

Falkner is suing Murawski, claiming that his transportation of her over uneven terrain and to a hospital ill-equipped to handle trauma cases such as hers led to her permanent brain and spinal injuries. She is seeking more than $100 million in damages for the incident, which she says has left her unable to walk unassisted and cognitively impaired.

On Wednesday, the younger Markovich told jurors that, prior to the accident, he had lost the group as they were driving their ATVs through wooded rough terrain. He said that, after he circled back, he saw Murawski on one ATV towing a second ATV with his father holding Falkner upright. Markovich said the group towed Falkner at least 15 minutes longer before they carried her up a steep embankment to Murawski’s small pickup. Falkner was positioned upright and slumped against Murawski inside the truck while Markovich drove them across another mile of rough terrain to reach a paved roadway and a 15-20 minute drive to the hospital.

“It’s very hilly, a lot of turns, winding turns, stuff like that. I’m going through the woods, and as it follows the side of the quarry lake, there, again, it’s a real bumpy road,” Markovich said. “It’s all pretty much sandy and bumpy until you get to the paved area.”

Falkner’s attorneys claim Murawski was negligent in transporting Falkner, who suffered spinal injuries and brain trauma, with his companions rather than contacting emergency medical personnel. However, on defense cross examination, Markovich testified that it would have been difficult to direct an emergency crew to the crash site. “There are multiple trails (in that ATV area), so in order to get them to go down the exact one we’re on would be fairly difficult to explain,” Markovich said.  

Markovich also told jurors that, to his knowledge, no one in their party had cell phones with them when the accident occurred. “We’ve lost a few (phones) out there. Not a lot of cell signal,” Markovich said.

“We didn’t figure we needed them.”

Markovich opened the trial’s sixth day of testimony. Trial is expected to continue into next week.

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

Related Information

The Martinez-Odom Law Group's Gene Odom and the Romano Law Group's John Romano and Corey Friedman represent Brittany Falkner. Wilke & Brooks' John Wilke represents Edward Murawski. 

Watch gavel-to-gavel video of the trial.


Topics: Negligence, Florida, Transportation, Traumatic Brain Injury, Falkner v. Murawski

Paralyzed Hunter Claims Cardiologist Failed to Warn about Strenuous Activites Prior to Fall from Deer Stand

Posted by Steve Silver on May 20, 2015 6:18:21 PM


Savannah, GA—Trial continues in Chatham County State Court in the med mal case of a Savannah cardiologist who allegedly failed to properly warn a patient regarding strenuous activities following surgery, which resulted in an accident that left the patient paralyzed from the chest down. Shane Berryhill and Pamela Berryhill v. Dale Daly MD et al. (STCV1102180)

According to attorneys’ statements and evidence presented in the case, Shane Berryhill suffered a fractured back and other injuries on October 20, 2009, when he fell from a deer stand approximately 20 feet to the ground while hunting. Less than one week prior to the accident, Dr. Daly performed a heart catheterization on Daly, followed a day later by an angioplasty and the insertion of a stent.

Click Here FREE Georgia Trial Video Samples The parties agree that the actual surgery performed by Dr. Daly was successful and did not cause Berryhill’s accident. Instead, Berryhill contends that he fainted in the deer stand as a result of the combination of medications he was taking, causing the fall, and that Dr. Daly failed to provide him with the appropriate advice and warnings regarding his medications or his activities.

According to Berryhill’s attorney, Brent Savage, Berryhill consulted his primary care physician in early October 2009, after feeling ill. That physician prescribed Vaseretic (which actually contained two separated medications) for high blood pressure and referred Berryhill to Dr. Daly. The physician met Berryhill in his office, then admitted him to the hospital for a catheterization that was performed on October 14. The catheterization revealed significant blockage in the arteries, and Dr. Daly performed an angioplasty and installed a stent the next day. Berryhill was discharged from the hospital on October 16.

In his opening statement, Savage criticized Dr. Daly’s prescribing a third blood pressure medication, Byastolic, in addition to the two the two medications contained in Vaseretic. In Savage’s view, the Byastolic was not needed, since Berryhill’s blood pressure was already under control with Vaseretic. However, Byastolic slowed the patient’s heart rate and was known to cause lightheadedness and dizziness, especially upon exertion, such as the effort involved in climbing a 20-foot ladder to the deer stand. Savage stated that Dr. Daly never warned Beryhill about the possible side effects from Byastolic and also dispensed the Byastolic to Berryhill in the form of drug rep samples that contained no warnings whatsoever.

Savage also stated that Dr. Daly failed to warn Berryhill properly about strenuous activities following what he termed “minimally invasive” surgery. According to Savage, Dr. Daly met with Berryhill after the catheterization, at which time he advised Berryhill to avoid strenuous activities for 24 hours. However, the physician never met with Berryhill following the angioplasty, instead having nurses give Berryhill instructions. Savage called the various instructions Berryhill received as “inconsistent,” but stated that Dr. Daly never in person placed limitations on Berryhill’s activities or proscribed Berryhill from strenuous activity by the time he went hunting.

Savage was especially critical of Dr. Daly’s interactions with Pamela Berryhill, Shane’s wife, who discussed his postoperative care. “Pam Berryhill, who has a recollection of talking to Dr. Daly on the afternoon of the 15th when her husband was in recovery, said ‘Three blood pressure medicines?’ Dr. Daly will tell you that never happened but ‘I did talk to her and I don’t make a note of it.’ … [Dr. Daly says] she never asked me about the third blood pressure medication but if she had, if she had the presence of mind to ask me because that’s the patient’s duty, they say, you got to ask me questions, if I had been asked that I would have told him that there was a chance of lightheadedness when you’re moving from sitting to standing but she forgot to ask me those questions.”

In his opening statement, Dr. Daly’s attorney, Wiley Wasden called the angioplasty life-saving major surgery and took exception to Savage’s description of the warnings and advisories Berryhill received. Wasden said that after the catheterization Dr. Daly knew that he would see Berryhill again so there was no need to give him advisories about the angioplasty at that time.

Wasden described the nature of the advisories Dr. Daly gave Berryhill at that time: “He focuses on the key issues. He doesn’t go to the Internet and print up 500 pages from all these web sites you’re going to hear about and give it to these poor people… You’ve seen the ads on television; you’ll see they advertise aspirin and in a 30-second ad they’ll tell you 10 seconds you should take aspirin and in the next 20 seconds all the things that can go wrong… Dr. Daly is dealing with a life threatening condition. He’s got a man who’s being told for the first time he’s got a 99 percent blockage of his artery. Mr. Berryhill and his wife are scared to death and he’s trying to explain to them this is what you need done and these are the big risks you should worry about. He focused on the true risks before the surgery.”

As far as the discharge instructions were concerned, Wasden said Dr. Daly went over the instructions with Berryhill after the angioplasty and discussed Berryhill’s activities. At that time, he gave Berryhill instructions that clearly stated no strenuous activity for one week. The earlier instructions he had given Berryhill concerned the catheterization only, not the angioplasty, as Dr. Daly informed Berryhill. Further, when the nurse gave Berryhill discharge instructions, she discussed limitations on his activities and risk factors and Berryhill acknowledged he understood them. Further, even if Berryhill were confused, both Dr. Daly and the nurses both told him to call.

Wasden also denied that Dr. Daly gave Berryhill Byastalic for blood pressure. Instead, Berryhill reported experiencing chest pain before the catheterization, and Dr. Daly gave Berryhill some samples of Byastolic in the office to ensure that Berryhill did not have a heart attack before the catheterization could be performed. After the angioplasty, Dr. Daly noted that the combination of medications was working, so he decided to continue having Berryhill take them, because Berryhill would need to continue taking medication in the future to control his blood pressure. Wasden also contended that the warnings Savage referred about Byastolic originated on an Internet site, but that, to the contrary, the American Heart Association and the American College of Cardiology had recommended using a beta blocker such as Byastolic in conjunction with an ACE inhibitor like Vaseretic for Berryhill’s condition.

The trial is expected to continue for the remainder of the week. CVN will have gavel-to-gavel coverage of the trial available when it concludes. Steve Silver can be reached at ssilver@cvn.com.

Related information:

Attorneys involved in the case include Brent Savage of Savannah's Savage, Turner, & Pinckney for Plaintiffs, Wiley Wasden of Savannah's Brennan, Wasden, & Painter for Defendants Dale Daly MD and Savannah Cardiology PC, and Sarah Akins of Savannah's Ellis, Painter, Ratterree & Adams for Defendant Walgreen Company. 


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


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Topics: Medical Malpractice, Georgia, Berryhill v. Daly

Veteran Defense Attorney Is the Feature of Engle Trading Card Tuesday

Posted by Courtroom View Network on May 19, 2015 6:16:00 PM

Today's CVN Engle progeny trading card features one of Florida’s preeminent Engle defense attorneys.

This week's featured attorney:

  • Is undefeated in her last six trials, including 4 wins in that streak.
  • Carries an 80% winning record over five trials taken to verdict.
  • Won two trials for her client, despite jury findings of Engle class membership.


Who is this on this Week's Engle Card? Click to find out. 

Our Engle trading cards honor the attorneys who have had a lasting impact on Florida's landmark tobacco litigation. Our images and statistics are taken from our unequaled coverage of Engle progeny proceedings for more than six years. 

Not a subscriber?

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

Topics: Negligence, Products Liability, tobacco, Engle Litigation Trading Cards, Engle Progeny, Florida

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