Openings of Oral Cancer Trial Against RJR Top the Tobacco Litigation Review for the Week of June 22

Posted by Arlin Crisco on Jun 26, 2015 2:43:00 PM

 Gerson-Larkin

Philip Gerson delivers opening statements in Paul Larkin's suit against R.J. Reynolds for Carole Larkin's oral cancer.


 

Larkin v. R.J. Reynolds Tobacco Co. 

Whether a decades-long smoker who contracted oral cancer knew the dangers of cigarettes in time to prevent her illness took center stage as trial opened Thursday in her husband’s suit against R.J. Reynolds.

Watch Video from Tobacco Trials Carole Larkin, a smoker for more than 30 years, died in 2000, two years after being diagnosed with cancer of her mouth and tongue. Larkin, who quit smoking in 1988 after doctors diagnosed her with a benign tumor on her tongue, allegedly suffered from oral dysplasia, or a proliferation of abnormal cells caused by her smoking. Her husband, Paul, is suing Reynolds, claiming a tobacco industry-wide conspiracy to hide smoking's dangers caused his wife's cancer.

During opening statements Thursday, Larkin’s lawyers told jurors that Larkin's wife was manipulated by tobacco industry messaging obscuring the dangers of smoking and was not aware of the health risks until it was too late to avoid her cancer. “Reynolds will claim that (Carole Larkin) knew all of the truth about the health risks of cigarette smoking and the addictive nature of it,” Larkin’s attorney, Gerson & Schwartz’s Philip Gerson said. “There will be no evidence of that that they can point to. In fact, the proof will be that Carole Larkin never heard of cancer of the floor of her mouth, cancer on her tongue, until her doctor told her she had it.”

However, the defense argued that Carole Larkin was never influenced by tobacco industry marketing and was on notice of smoking’s hazards based on U.S. Surgeon General advisories and years of warnings on the packs of the cigarettes she smoked. “You won’t hear from Mr. Larkin… or anyone else that knew Carole Larkin that she ever said that she was somehow confused or misled about the risks of smoking,” Jones Day’s Jose Isasi said. “There will be no evidence, in response to these (warnings on cigarettes), that Mrs. Larkin ever expressed surprise that cigarettes were harmful to her health, or questioned if messages from organizations like the American Cancer Society or the Surgeon General were correct.”

Next week: Plaintiff's attorneys are expected to move into the heart of their case in chief.


 

McCoy v. R.J. Reynolds

As trial began Tuesday in a widower’s Engle progeny suit against tobacco giants R.J. Reynolds and Philip Morris, attorneys debated the role nicotine addiction played in a host of diseases a Florida mother of eight suffered before her death.

Glodine McCoy, who began smoking at 13, died at 70 in 1997 after smoking for 50 years. Her husband, John, claims the tobacco giants’ concealment of cigarettes’ health hazards caused his wife’s nicotine addiction and a variety of diseases, including lung cancer, artery disease, and chronic obstructive pulmonary disease.  

During opening statements, John McCoy’s attorney, Scott Schlesinger, told jurors that Glodine McCoy’s nicotine addiction was so powerful that she continued smoking even when her family, which included eight of the couple's children, went without food. “One of (McCoy’s) sons explained, ‘There were some times we didn’t have any food. We couldn’t afford food, but (McCoy) bought her cigarettes,’” Schlesinger told jurors, before claiming that cigarette manufacturers knew their product could cause such a reaction. “There’s an internal (tobacco industry) document that says the addiction is so powerful that in times of scarcity, cigarettes will supplant food (as a) necessity (for) people,” Schlesinger said. “So there’s actually a document recognizing, and describing, and predicting, exactly the intensity of Glo’s addiction.”

However, Jeffrey Furr, representing Reynolds, argued that Glodine McCoy smoked by choice, not because of addiction, and that she quit smoking “cold turkey” with no medical assistance after suffering a heart attack. “She had the ability to quit any time she really wanted to,” Furr said.

Furr also contended the diseases that affected Glodine McCoy’s health were time barred. Noting McCoy’s diseases must be proven to have “manifested” between May 5, 1990 and November 21, 1996 to be considered compensable under Florida’s statute of limitations, Furr argued medical records and family testimony would establish McCoy’s artery disease, COPD, and cancer developed either before or after that time period. 

Next Week: Plaintiffs' attorneys are expected to complete the bulk of their case in chief. 


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

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

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

Watch the 84 Seconds that Swung a $100M Brain Injury Trial | Florida Trial Video Vault

Posted by Courtroom View Network on Jun 26, 2015 11:45:21 AM

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. 


 

Less than 100 seconds of testimony changed the course of a $100 million case last month. 

Click Here FREE Florida Trial Video Samples The Falkner v. Murawski trial began as a dispute over culpability with $100 million at stake, and ended with jurors determining damages alone, and awarding less than $300,000 to Brittany Falkner, the woman who claims she suffered brain damage because of her ATV riding partner’s negligence following a late night crash in the woods.  

The turning point of the two-week trial came in a little more than a minute of testimony from the defendant, Edward Murawski. He claimed he and his companions took an unresponsive Falkner more than 10 miles from the crash site to a hospital themselves rather than calling 911 because he did not have his cell phone with him. 

Under persistent questioning from Falkner’s attorney, the Martinez-Odom Law Group’s Gene Odom, Murawksi first claimed to be "about 100 percent certain" that he didn't have his cell phone on the night of the accident, before stating unequivocally that he had left it at home. 

"All I'm asking is where, to your best recollection, and if you're equivocal, let me know. If you don't know or you're not 100 percent sure, where was your cell phone at that time (of the accident)?" Odom asked. 

"My cell phone was in my house," Murawski answered. 

Shortly after Murawski testified, according to motions for sanctions filed with the court, Falkner's legal team received cell phone records showing numerous calls were made from Murawski's cell phone around the time of the accident, including a call to Falkner's mother. 

Based on the phone records, Judge Elizabeth 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 and ultimately awarded $299,778, a fraction of the more than $100 million Falkner sought for what she claimed was lifelong brain damage. 

The verdict prompted Falkner's legal team to file a motion for a new trial. Regardless of the court’s ruling on the motion, 84 seconds of Murawski's testimony played a critical role in the nine-figure case. 


Related information 

Read more about the trial's conclusion here. 

Watch the full trial here.

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Topics: Negligence, Florida, Falkner v. Murawski

New Georgia Evidence Code Ruling Leads to $120K Jury Verdict: CVN Trial Highlight

Posted by Steve Silver on Jun 24, 2015 2:54:39 PM


In some trials, an attorney’s opening or closing statement or the examination of a key witness makes the difference in the jury’s ultimate verdict. In the recent Fulton County Superior Court case of Dina Andrews v. Percy Bady (2013CV230964), however, a decision by Judge Robert McBurney on the admissibility of one document under the new Georgia Evidence Code may well have been the deciding factor.

The defendant in the case, Percy Bady, is a nationally known singer/songwriter/producer who was sued by his former manager, Dina Andrews, for breach of their management contract. Although Bady acknowledged at trial that he owed Andrews money under the contract, Andrews’ attorney, Kelli Hooper, faced a difficult task in proving the total amount of damages owed her client.

Click Here FREE Georgia Trial Video Samples Under the terms of the contract, Andrews was perpetually entitled to 20 percent of the royalties Bady receives on certain songs. At the trial, Bady disputed just which songs were subject to the contract. Further, his attorney, Mario Breedlove, reminded the jury that, as plaintiff, Andrews had the burden of proving each song that was covered under the contract and the amount of damages owed.

Bady has been a prolific composer who now receives royalties on hundreds of songs that he wrote or contributed to during his 30-year career. However, only some of those songs were subject to the contract with Andrews, and, in many cases, he receives only a few dollars—and in some cases a few cents—per year on each song. Further, Bady did not produce any of his business records prior to the trial, claiming that they had been destroyed in a flood at his offices years previously.

To prove her client’s case, Hooper obtained over 3,000 pages of records from the various organizations that have paid Bady royalties. These records indicated the total royalties they paid Bady for all of his songs. Then, Hooper and Andrews determined which songs they believed were covered and the amount of royalties paid Bady each year since 2007 on those songs (due to the statute of limitations, Andrews could only receive a percentage of Bady’s royalties from 2007 forward). According to their calculations, Andrews was entitled to receive over $70,000 as her share of Bady’s royalties.

Hooper still needed to present this evidence to the jury in a manner that they could follow. To do so, she and Andrews compiled an Excel spreadsheet listing all the songs they believed were covered under the contract, the royalties paid to Bady on each song, and the amount due Andrews under their theory of the case. By reviewing the spreadsheet, the jury could verify the amount of damages owed.

Hooper then moved to admit the spreadsheet into evidence under O.C.G.A § 24-10-1006, part of the 2013 Georgia Evidence Code. That statute now expressly allows, under certain conditions, “the contents of otherwise admissible voluminous writings …which cannot conveniently be examined in court [to] be presented in the form of a chart, summary, or calculation.” Specifically, the statute requires that “the originals, or duplicates [of the underlying documents] shall be made available for examination or copying, or both, by other parties at a reasonable time and place.”  

Bady’s attorney, Mario Breedlove, objected to the admission of the spreadsheet, which was presented to the defense for the first time at trial. He noted that Andrews had received the underlying records months earlier but had not provided the spreadsheet in response to an interrogatory asking for a detailed itemization of damages.

Breedlove also contended that the statute did not apply to plaintiff’s spreadsheet because the document was more than a mere summary. “This is a calculation of numbers, whether they’re accurate or not, we don’t know, derived allegedly with the assistance of a forensic accountant who hasn’t testified; I think it’s more than a summary…. This information has been available to the plaintiff for many months and it is unfair for me not to have seen this document to be able to cross-examine the witness as to the content after reviewing the records that are calculated within the document.”

Hooper responded that at the time Andrews replied to the interrogatories, they had not received the various documents from the companies paying Bady royalties and that, as they received those documents, they notified the defense. Further, in her view, the spreadsheet was admissible under the statue because the underlying records were certainly voluminous and the calculations performed in the spreadsheet were nothing more than simple mathematics. “It would be a disservice to the jury to send them back there with 3,000 pages of documents and a calculator and assume that they could … come up with anything in a reasonable period of time.”

After hearing the arguments from both attorneys, Judge McBurney admitted the spreadsheet into evidence. In his view, although plaintiff could have presented the spreadsheet earlier, the defense had the underlying records for the same length of time as did plaintiff. In the judge’s opinion, the dispute between the parties centered on which songs were or were not subject to the contract, and the defense could have performed its own set of calculations. The spreadsheet itself was not creative but mechanistic. Also, the calculations involved were not complex mathematics, possibly requiring expert testimony, but repetitive mathematics. For these reasons, the judge ruled that the spreadsheet qualified as a summary under O.C.G.A. § 24-10-1006.

The jury eventually ruled in favor of plaintiff, and the spreadsheet may well have played a role in the jury’s verdict. They awarded Andrews over $70,000 in damages plus attorney’s fees for a total verdict of $120,000.

CVN’s earlier articles about the case can be found here and here. Steve Silver can be contacted at ssilver@cvn.com.

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Georgia Defense Attorney Spotlighted on the Season's Final Engle Trading Card

Posted by Courtroom View Network on Jun 23, 2015 5:47:30 PM

Today's CVN Engle progeny trading card features an Atlanta-based attorney who won his first three Engle trials in front of CVN cameras.

This week's featured attorney:

  • Tried his first CVN Engle case in 2012.
  • Went 2-0 in CVN Engle trials last year.
  • Is a defense attorney with a .750 career winning percentage in CVN Engle trials.

2015_GUESS_WHO_ENGLE_CARD2_web

Click to see the last Engle Card attorney this season!

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. 

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Topics: Engle Litigation Trading Cards, Engle Progeny, Florida

Atlanta Real Estate Attorney Found Liable for Clients' $1.5 Million Loss in Failed Costa Rican Resort Development

Posted by Steve Silver on Jun 23, 2015 11:34:00 AM


Atlanta, GA—A Fulton County State Court jury awarded over $1.5 million to two men who lost their entire investment in a failed Costa Rican resort real estate venture and then brought a legal malpractice action against their real estate attorney. Eli Peretz et al. v. S. Alan Cohn et al. (12EV015232).

According to documents filed in the case and other information, Eli Peretz was a contractor who participated in a number of Atlanta area real estate transactions involving renovating and reselling apartment complexes. In 2008, he entered into discussions regarding a possible Costa Rican real estate resort investment with four individuals who had worked with him on some of his earlier projects. These individuals, who were referred to throughout the litigation as the “California Group,” wanted Peretz to loan money to their company, Lifestyles Ventures Cayman, that would be used to help develop the Costa Rican property.

Click Here FREE Georgia Trial Video Samples Peretz and Dr. Nick Gabbay, who was also interested in participating in the venture, went to Costa Rica and researched the investment. Eventually, Peretz retained S. Alan Cohn, who had represented him in numerous other real estate transactions over the previous 20 years, to advise him. Peretz informed Cohn that he wanted a guarantee from the members of the California Group or he would not make the investment.

Cohn drafted an operating agreement that created an LLC, Elite at Golfito Bay, owned by Peretz and Dr. Gabbay, that would be the actual party participating in the investment. He also reviewed various documents prepared by the California Group. These documents included a promissory note, a Subscription for Promissory Notes, and a “letter agreement” which was the basis for the underlying controversy in the case.  The “letter agreement” purported to be a guarantee from an entity named LGDK, LLC and stated that the entity had an estimated worth of $2.1 million.

Peretz subsequently transferred $1 million, and Dr. Gabbay transferred $500,000 to the account of Lifestyles Ventures Cayman. The development subsequently failed and many of the entities involved wound up in bankruptcy proceedings. Neither Peretz, Dr. Gabbay, nor Elite at Golfito Bay ever received any payments from any entity.

Subsequently, Peretz, Dr. Gabbay, and Elite at Golfito Bay filed the current action against Cohn and his law firm. They alleged that Cohn’s actions, particularly in connection with the “letter agreement,” constituted legal malpractice and a breach of his fiduciary duties. In addition, they alleged that Cohn had a previous relationship with the members of the California Group and their various business entities that presented a conflict of interest with his representing Peretz and Dr. Gabbay in the Costa Rican venture.

Peretz and Dr. Gabbay both testified that they informed Cohn that they required a suitable guarantee from the members of the California Group before they would make the loan to Lifestyle Ventures Cayman. They met with Cohn in Peretz’s office on July 16, 2008, at which time Cohn informed them that the members of the California Group had been told by their attorneys that they could not personally guarantee the loan. During the meeting, Cohn spoke via telephone with Peter Gaeckle of the California Group and eventually received some faxed documents.

Dr. Gabbay testified that Cohn informed them the members of the California Group had each put residential property he owned into an LLC that would issue the guarantee. According to Cohn, the LLC had a net worth of $2.1 million. Both Peretz and Dr. Gabbay stated that Cohn never informed them about any liens on the properties. Instead, Dr. Gabbai testified, Cohn told him the venture was a “good deal” and that he would make a great deal of money on the venture.

On cross examination, both Peretz and Dr. Gabbay acknowledged that they had received the subscription agreement, which contained language describing the venture as “highly speculative,” and that they knew the venture had substantial risks. In addition, neither of them made any independent effort to verify the net worth of the LLC before signing the documents and wiring the money.

The members of the California Group testified by video deposition. Peter Gaeckle stated that the properties mentioned in the letter agreement were subject to liens and that he had disclosed that fact to Cohn prior to the finalization of the Costa Rican transaction.

Kurt Hilbert, an Atlanta real estate attorney, testified as an expert witness for plaintiffs. He examined the various documents in the case and expressed a number of concerns. In particular, LGDK, LLC, the entity purportedly guaranteeing the loan, did not exist. A company named LGDK Investors, LLC, existed and later filed for bankruptcy, listing plaintiffs as its creditors, and indicating that the properties it held were subject to substantial liens.

In Hilbert’s opinion, the failure to list an actual existing legal entity as guarantor rendered the guarantee invalid. However, even if LGDK Investors, LLC, was considered the guarantor, the company was insolvent and unable to satisfy the guarantee. However, on cross examination, Hilbert acknowledged making mistakes in pleadings he had prepared in various cases. Further, Hilbert said he had never seen a net worth statement in a real estate guarantee. According to Hilbert, if Cohn knew there were liens on the properties and failed to disclose that to plaintiffs, then his actions would fall below the standard of care required for an attorney. It was also improper not to inform Peretz and Dr. Gabbay of any potential conflicts of interest involved in representing them in the Costa Rican transaction.

In his testimony, Cohn denied that Dr. Gabbay was his client or that he had made statements calling the Costa Rican investment a good deal. He said he had told Peretz about the existence of possible liens against the properties in the guarantee and that he had made no effort to verify the company’s net worth. He stated that he did not advise Peretz one way or the other about verifying the company’s net worth.

Cohn also acknowledged sending and receiving a number of e-mails to members of the California Group that Peretz never received or was informed of. Cohn said that Peretz was “not a fan of the e-mail system” and that he usually communicated with Peretz by phone. He denied ever representing the California Group or their affiliated properties prior to the Costa Rican transaction, although he did represent them subsequently.

The defense also called an Atlanta real estate attorney, William Dodson, as an expert witness. Although he had never seen a statement of net worth in a guarantee, Dodson did not believe that language rendered the guarantee invalid, because it was legally superfluous language. In addition, he said it was the parties’ responsibility to verify the net worth of any property, not the attorney’s.

In her closing statement, Cohn’s attorney, Elizabeth O’Neill asked the jury to consider whether any mistakes Cohn might have made were actually the proximate cause of any loss. “Lawyers aren’t perfect. Alan is not perfect. He made some mistakes in the documents. Some of those mistakes were found when Mr. Hilbert picked them apart from his work as an expert. Some of them were found a long time before that… The question for you is not whether mistakes were made but whether they’re the proximate cause of damage.”

In O’Neill’s view, any imperfections in the guarantee did not cause the loss the plaintiffs suffered. Instead, the loss was due to the failure of the underlying investment. “The issue here is did Alan Cohn do or fail to do something that caused the plaintiffs damages. That letter of agreement did not cause the failure of the Costa Rican development. No personal agreement in the world could have prevented the failure of the Costa Rican development or the failure of the California Group’s various companies.”

O’Neill also noted that there was no evidence in the case that Cohn had ever represented the California Group in any prior transactions. Both Cohn and the group members denied that he ever represented them. She labeled plaintiff’s attempts to establish a conflict of interest “just an effort to create the appearance of impropriety.” According to O’Neill, as an experienced real estate investor, Peretz must have known about the possibility of liens on the properties, but he wanted to proceed with the Costa Rican venture. She concluded, “What we’ve been doing here all week is chasing dragons because the plaintiffs don’t want to accept responsibility that their investment failed and what they’d like to do is to … go back to the opportunity to be heroes for themselves and their families that they hoped they would be.”

In his closing statement, plaintiff’s attorney Stephen Katz urged the jury to rely on the documents they saw with their own eyes, specifically the guarantee. He noted that the defense kept stressing the riskiness of the venture and the statements about that risk in the documents but that the defense did not want to discuss the guarantee. “The note and the subscription agreement were risky. That’s exactly why you go see a lawyer. That’s exactly why you say … I’m not doing this deal unless I have a proper guarantee.” Katz also reminded the jury that the defense’s own expert witness testified he had never seen a statement of net worth in a guarantee in over 40 years of practice.

Katz criticized Cohn’s actions in regard to the guarantee once he knew of the existence of liens on the properties. ““When a lawyer is on the phone with the opposite side and he’s undertaking to put a provision in that he shouldn’t even be putting in …and he learns something that is material … critical to my client’s decision to invest at all. When he learns that there’s liens against that, you don’t turn around to your clients and say ‘oh gee, this is a wonderful deal; you’ve got $2.1 million.’ You say, ‘there are liens against that; I can’t advise you to go into that; go verify the lien.’ … That’s what a reasonably prudent lawyer does. Lawyers have a fiduciary obligation. … You have to exercise the utmost good faith.”

Katz also asked the jury to consider the extensive correspondence between Cohn and the members of the California Group of which Peretz was unaware and whether the prospect of getting more legal business from the California Group might have affected Cohn’s actions and the advice he provided Peretz and Dr. Gabbay. Katz concluded, “[Cohn] sold them out. He knew that they weren’t getting the guarantee and he knew for a fact that they would walk away. He didn’t want them to walk away because he was serving two masters. And that’s what this case is about.”

The jury found in favor of plaintiffs on both their theories of legal malpractice and breach of fiduciary responsibility and that an attorney-client relationship did in fact exist between Cohn and Dr. Gabbay. The jury did not award any damages for legal malpractice but did award Peretz $1,002,900 and Dr. Gabbay $500,000 for breach of fiduciary responsibility (the additional $2,900 represented the fee Peretz paid Cohn for his services initially). However, the jury declined to award punitive damages or attorney’s fees in the case.

Representatives for the parties declined comment on the case to Courtroom View Network. Steve Silver can be reached at ssilver@cvn.com.


Related information:

Attorneys involved in the case include Stephen Katz of the Katz Law Group of Marietta for plaintiffs and Elizabeth O'Neill and Kathryn Witlock of Hawkins, Parnell, Thackston, & Young of Atlanta for the defendants.

 

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

Topics: Commercial Law, Malpractice, Georgia, Peretz v. Cohn

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