Jury Issues Failing Grade to College Student in Slip/Fall Suit Against Board of Regents

Posted by Steve Silver on Mar 27, 2015 12:45:00 PM

Atlanta—A Fulton County Superior Court jury issued a verdict against an Atlanta Metropolitan State College student who was injured when she slipped and fell in a puddle of water in a classroom building. Desiree Lee v. Board of Regents of the University System of Georgia (2012CV225353).

According to her testimony at trial, Desiree Lee, an Atlanta Metropolitan student, was going to her English class on July 26, 2011. She had just exited an elevator in the classroom building when she slipped in a puddle of water, fell backwards, and hit her head on the floor. She reported that she did not see the puddle prior to the accident and had no idea how large it was. Lee was taken in an ambulance to Grady Hospital, and received medical treatment for her injury both in the emergency room and in subsequent months. Because Atlanta Metropolitan is a state university, she filed the current negligence suit against the Board of Regents.

Click Here FREE Georgia Trial Video Samples At the trial, Lee’s attorney Andrew Kiehle questioned several witnesses associated with the college in regard to the school’s safety and maintenance policies. Antonio Long, the campus police chief, testified that the college did not have a specific written safety policy regarding slip-and-fall incidents, and the school’s general policies regarding injury treatment pertained to police matters such as assaults or traffic accidents. He added that his office did not conduct any follow-up investigation in regard to Lee’s accident. Long acknowledged that the school had video cameras in the classroom building corridor, but the footage from the day of the accident was not saved because the college only saved footage that might be evidence in a criminal case, not a standard slip-and-fall incident.

Keith Williams, the Director of Plant Services at the college, testified that the school followed two industry standard custodial manuals in regard to maintenance procedures. According to Williams, custodians did not keep individual log books of their activities, but they were given work schedules to follow. However, the schedules were somewhat flexible because some rooms might be occupied at the time originally scheduled for cleaning. As a result, a custodian’s exact work route through the classroom building might change from day to day. He added that that custodians did not do any mopping during the day. During a typical day shift, there would be four custodial people responsible for all the activity on the 400,000 square foot campus.

Williams further testified that his office did not monitor the content of the video cameras in the classroom building. When asked how he knew if custodians were doing their job as scheduled, Williams replied that if any rooms were not cleaned as scheduled, people would notify his office and complain.

After Lee rested her case, Assistant Attorney General Ron Boyter, representing the Board of Regents, moved for a directed verdict on the ground that Lee had failed to demonstrate that the college had no policies and procedures in regard to inspecting the classroom building. In his view, the testimony “is very clear that there are policies in place … they’re told what to do, what procedures to go through. They follow industry standards. There’s a work order that tells them where they’re supposed to go… they follow up on it to make sure they’re doing their job. Nothing in the case law requires that to be written down.”

In Andrew Kiehle’s view, however, “there is no policy in place because there is no written policy in place… I don’t think a policy is a policy unless it’s in writing. Testimony from a witness is for a jury to decide… Testimony is testimony; a document is a document. There is no document, no policy showing what their policy is.”

Judge Tom Campbell reserved his ruling on the defense motion, and the defense proceeded with its case.

The primary defense witness was Janniece Perdue, the custodian on duty in the classroom building on the day of the accident Perdue testified that any time she would go through an area of a building, she was required to police the area to ensure there was no debris or any spills on the floor. At the time of the accident, she was cleaning a classroom down the hall from the spot where Lee fell. Perdue stated that she had passed through the area where Lee fell about approximately 15 minutes earlier before entering the classroom and beginning her cleaning.

Perdue said she received a call on the radio she carried, notifying her of the accident. She went into the hallway and saw Lee lying on the ground with several people around her. She noticed a puddle of water about three feet wide in the area. Perdue then took the elevator to another floor to get wet floor signs and a mop bucket and then returned to clean up the spill.

After the trial, Andrew Kiehle told Courtroom View Network that, in his view, the key to the jury’s eventual decision was probably Janniece Perdue’s testimony that she had been in the area of the puddle approximately 15 minutes earlier. Representatives for the defense were unavailable for comment.

Related information:

Attorneys involved in the case include Andrew Kiehle of Kiehl Law Group of Atlanta for Desiree Lee and Jared Campbell and Ron Boyter of the Attorney General's Office for the Board of Regents.

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Topics: Premises Liability, Negligence, Georgia, Lee v. Board of Regents

$2M Verdict But No Punitives in Retrial of Engle Cancer Suit Against RJR and Philip Morris

Posted by Arlin Crisco on Mar 26, 2015 4:40:06 PM


Robert McCarter delivers closings in Robert Gore's suit against R.J. Reynolds and McCarter's client, Philip Morris. Gore claims the tobacco makers' concealment of the smoking's health hazards led to his wife's artery disease and, eventually, her fatal cancer. Watch gavel-to-gavel coverage of the trial here.

Vero Beach, FL—Jurors today awarded $2 million in a Florida man’s suit against tobacco manufacturers R.J. Reynolds and Philip Morris for the artery disease and cancer that he says killed his wife, a smoker for more than 40 years.   

Watch Video from Tobacco Trials Jurors deliberated a day-and-a-half before reaching their verdict, which apportioned 54% of responsibility to Gloria Gore, the smoker at the case's heart, and 23% each to R.J. Reynolds and Philip Morris. Gore’s widower, Robert Gore, sought $7.5 million in the Engle progeny suit, claiming that the tobacco companies hid the dangers of smoking for decades, which caused his wife’s nicotine addiction, her carotid stenosis, and eventual fatal lung cancer.

In reaching its decision, the jury found that Gloria Gore's addiction to cigarettes for more than four decades led to both her carotid stenosis and lung cancer. Although it awarded $2 million in compensatories to Robert Gore, it refused to find liability for punitives. 

The suit is one of thousands of similar Engle progeny lawsuits filed against tobacco companies in Florida. 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 that 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 conspired to hide the dangers of smoking. To rely on those findings, individual Engle progeny plaintiffs such as Gore must prove the smoker’s addiction to cigarettes and a causal link between the addiction and a smoking-related disease that manifested itself by November 21, 1996.

Doctors diagnosed Gloria Gore with carotid stenosis, an artery disease, in 1992. She ultimately died of lung cancer in 2000. However, because her carotid stenosis was the only disease to have “manifested” itself prior to the November 21, 1996 cutoff date for Engle class action membership, the link between that disease and her smoking served as a central point of dispute in the trial.  

During closing arguments Tuesday, Shook Hardy’s Robert McCarter, representing Philip Morris, told jurors that Gloria Gore’s genetics, and not her smoking, led to her artery disease. “What you see is that her mother, a non-smoker, had (artery disease); her sister, a non-smoker, had it. She had two uncles, we don’t know their smoking status, but they both had it. And, Mrs. Gore had carotid artery disease,” McCarter said. “Cigarette smoking has nothing to do with it. It runs in your family whether you’re a smoker or not.”

Robert Gore’s attorneys countered that medical testimony proved Gloria Gore’s artery disease was linked to her smoking. During closings, Foote, Mielke, Chavez & O’Neil’s Robert Foote reminded jurors that Gloria Gore’s treating physician, Dr. W. Clark Beckett, a vascular surgeon, testified that he believed Gore’s carotid stenosis would not have occurred absent her smoking. “This whole family history thing is a complete red herring," Foote said. "Because what you heard from the doctors who talked about it was that there is no question (that) what caused... her carotid artery disease was the smoking. The 4 or 5 million hits (from cigarettes) that she took over her life."

Beyond the potential link between Gloria Gore’s smoking history and her carotid stenosis, attorneys sparred over whether she had been addicted to cigarettes, a fundamental requirement to succeed in an Engle progeny action. Arguing that testimony showed Gloria Gore tried to quit smoking, at most, only once in more than 40 years, McCarter told jurors “Without evidence that Mrs. Gore ever made a sincere attempt to quit smoking, how could anybody say that she was addicted?”

However, Foote reminded jurors that three physicians, including Beckett and addiction expert Dr. David Burns, testified that they believed Gloria Gore was addicted to cigarettes. “We have three medical opinions, and no opinion otherwise,” Foote said. “This is not ‘the greater weight of the evidence.’ This is 100% of these people believe… that she was addicted to nicotine contained in defendants’ cigarettes.”

The week-and-a-half long trial, with Judge Cynthia Cox, presiding, was the second in less than a year for the suit. In August 2014, Judge Cox declared a mistrial in the case when jurors awarded no compensatory damages to Gore but still found defendants liable for potential punitive damages.  

Attorneys could not immediately be reached for comment. 

Additional information

Attorneys in the case include Foote, Mielke, Chavez & O’Neil’s Robert Foote and Stark & Stark's Stephen Corr representing Robert Gore. Shook Hardy's Robert McCarter represents Philip Morris and Jones Day's Stephen Geise represents R.J. Reynolds. 

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

Tobacco Makers Hit with $3M Punitive Verdict in Widow's Wrongful Death Suit

Posted by Arlin Crisco on Mar 25, 2015 11:56:00 AM

Rose Pollari's attorney, Alex Alvarez, asks jurors for $30 million in total punitive damages against Philip Morris and R.J. Reynolds. Jurors ultimately awarded $3 million total punitives against the tobacco companies in Pollari's suit for the lung cancer death of her husband, Paul. Click here to watch on-demand gavel-to-gavel video of the trial. 

Fort Lauderdale, FL--Jurors today awarded $3 million in punitive damages to a widow who claimed her husband died of lung cancer in 1994 after decades of smoking cigarettes made by Philip Morris and R.J. Reynolds. Pollari v. R.J. Reynolds, et al.

Watch Video from Tobacco Trials The punitive award came on the heels of Monday’s $10 million compensatory award to Rose Pollari, who sued the two tobacco manufacturers, claiming that her husband Paul Pollari’s nicotine addiction and eventual lung cancer were caused by the tobacco industry’s concealment of smoking’s health hazards and marketing to children for most of the 20th century.

However, during the trial’s one-day punitive damages phase, the defendants argued that they no longer engaged in the tactics that have exposed them to billions of dollars in liability in thousands of trials similar to Pollari’s.

In closing arguments of the punitive phase, Shook Hardy’s Kenneth Reilly, representing Philip Morris, reminded jurors of testimony concerning federal restrictions imposed on tobacco companies since the 1990s and argued that wholesale changes in corporate leadership mitigated against awarding punitive damages. "What message do you send to the people at Philip Morris who are moving in this direction?" Reilly asked. "If there are other people or companies, or organizations that view themselves as being out of alignment, by your message do you encourage them to take this new path? Or do you encourage them to continue where they are because it's not going to do them a bit of good, they're just going to get smacked?"

However, The Alvarez Law Firm’s Alex Alvarez, representing Rose Pollari, told jurors that the defendants needed to be punished for the conduct he says led to Paul Pollari's nicotine addiction. Alvarez also argued that increased federal regulations on the tobacco industry have not prevented cigarettes from continuing to reach underage smokers today. “These FDA regulations have not prevented them from selling one cigarette,” Alvarez said. “Forty-two hundred children start smoking, or try their first cigarette, every day. It’s not by accident.”

The $3 million award, imposed equally between Philip Morris and Reynolds, is 1/10 of the $30 million in total punitives Alvarez requested in closing arguments, telling jurors “unless they feel like they were punished, then punitive damages did nothing.”

The jury took less than two hours to reach its punitive verdict, which concludes a two-week trial that focused in part on whether Pollari’s cancer originated in his lungs.

The case is one of thousands of similar Engle progeny lawsuits filed against tobacco companies in Florida. The cases all stem from a 2006 Florida Supreme Court decision decertifying Engle v. Liggett Group Inc., a class-action tobacco case originally filed in 1994. Although that 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 conspired to hide the dangers of smoking. To rely on those findings, individual Engle progeny plaintiffs such as Pollari must prove the smoker’s addiction to cigarettes and a causal link between the addiction and a smoking-related disease.

Attorneys were not immediately available for comment. 

Related information

Attorneys in the case include Kelley Uustal's Todd McPharlin and Eric Rosen, and The Alvarez Law Firm's Alex Alvarez, representing Rose Pollari.  Shook Hardy's Kenneth Reilly represents Phillip Morris USA and King & Spalding's Ursula Henninger represents R.J. Reynolds. 

Read $10M Verdict, Plus Punitives to Come Strikes Tobacco Giants in Wrongful Death Suit.

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

High Speed Tandem Driving Collision Trial Begins in Clayton County

Posted by Steve Silver on Mar 24, 2015 7:19:00 PM


Plaintiff's attorney Terry Jackson questions a witness during the James Price v. Raju Thapa et al. tria in Clayton County State Court. Price was severely injured in a 2008 motor vehicle accident in rural Spalding County.

Jonesboro, GA—Testimony began today in Clayton County State Court in an automobile negligence case in which a man injured in an accident sued the drivers of two other vehicles under a joint enterprise theory, even though one of the vehicles was not involved in the accident at all. James Price v. Raju Thapa et al. (2010CV06741).

According to statements at trial and other documents in the case, the accident occurred on September 25, 2008, at the intersection of Johnny Cut and Jackson Roads in rural Spalding County. At approximately 11:00 a.m., a van driven by Vijay Shah on Johnny Cut Road ran a stop sign at a substantial rate of speed and collided with James Price’s vehicle, which was traveling on Jackson Road. Although Price applied his brakes, he was also moving at a considerable speed when the accident occurred.

Click Here FREE Georgia Trial Video Samples Shah’s van overturned in the road, while Price’s van ran off the road and through a fence before coming to a stop in a field over 150 feet away. Shah died as a result of injuries received in the accident. Among the injuries Price allegedly suffered in the accident were a fractured skull, a torn rotator cuff, permanent tinnitus in the ears, and an aggravation of a preexisting knee injury that may require a knee replacement.

At the time Shah approached the intersection, Raju Thapa was driving his car about 20 to 30 feet behind Shah’s van. Thapa and Shah were headed to a nearby convenience store at the time of the accident. After the collision, Thapa was able to safely stop his car and was not involved in the actual accident. He remained on the scene until a Georgia State Patrol vehicle arrived and then gave his statement to the trooper.

Price filed the current lawsuit against Shah’s estate, Thapa, and Thapa & Brothers, Inc., Thapa’s company. The Georgia Court of Appeals allowed the suit against Thapa to proceed to trial under a theory of “tandem driving”; Price v. Thapa, 323 Georgia App. 628 (2013). That theory “requires that the participants be jointly engaged in driving their respective vehicles in a negligent manner, in close proximity with one another, while traveling to a common destination.”  

Prior to the trial, both Price and Thapa gave multiple sworn statements that contained inconsistencies and contradictions. Price has alleged that Thapa and Shah were both driving at a speed of about 60 to 70 miles per hour at the time of the accident, in excess of the 55 mile-per-hour speed limit, and that Shah made no attempt to stop his van. Price also believes that Thapa ran the stop sign as well. Thapa has denied running the stop sign, and, in addition, stated that he and Shah were only driving at a speed of about 40 to 45 mph when the accident occurred.

The parties also dispute the nature of the relationship between Thapa and Shah at the time of the accident. In his opening statement, Price’s attorney Terry Jackson suggested that Thapa and Shah were in business together servicing ATM machines and were headed to the convenience store as part of that business. Both Thapa’s attorney, Evan Mermelstein, and Thapa & Brothers’ attorney, Darrel Sutton, denied any such relationship existed. They contended that Thapa and Shah were merely friends. Shah became aware that the convenience store might be for sale and suggested that Thapa take a look at the store. Because Thapa was unfamiliar with the area, he was following Shah’s van to the store at the time of the collision.

The trial is expected to continue for the remainder of the week.


Related information:

Attorneys involved in the case includeTerry Jackson of Atlanta for James Price, Evan Mermelstein of Apharetta for Raju Thapa, Darrell Sutton of the Sutton Law Group of Marietta for Thapa & Brothers, Inc., and William Amos of Sharon Ware and Associates of Atlanta for the estate of Vijay Shah.

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

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Topics: Negligence, Georgia, Price v. Thapa

First Jeep Fuel Tank Fire Lawsuit Goes To Trial

Posted by David Siegel on Mar 24, 2015 5:14:00 PM


Plaintiff's attorney Jim Butler shows jurors an image during his opening statement of the fire that allegedly killed 4-year-old Remington Walden, after the Jeep he rode in was rear-ended. Click here to see video from the trial. Click here for a copy of the complaint.

Bainbridge, Ga. —Fiat Chrysler Automobiles faces allegations in a high-stakes trial that began Monday in Georgia state court that a defective fuel tank in a Jeep Grand Cherokee caused a fire that burned a child to death after a rear-end collision. 

Watch a  Video From This Trial The case is the first to go to trial over claims that fuel tanks in older-model Jeep SUVs are prone to rupture and explode in a collision, according to attorney Jim Butler of Butler Wooten & Fryhofer LLP, who represents the plaintiffs. Fiat Chrysler announced a recall of roughly 1.5 million Jeeps in 2013 at the urging of U.S. regulators due to the fire risk, and consumer safety advocates say the trial could prompt renewed calls for a broader recall of the vehicles.

The 1999 Jeep Grand Cherokee at issue in the case was ultimately not part of the recall, although the National Highway Traffic Safety Administration initially requested it be included along with model years 1993-1998. The agency has attributed 75 deaths to fires involving Jeep fuel tanks since 1998.

Butler told jurors during his opening statement Tuesday that 4-year-old Remington Walden died in 2012 after the Jeep he was riding in was struck from behind at an intersection by a Dodge Dakota truck traveling at 56 miles per hour, and the Jeep's fuel tank exploded, according to a Courtroom View Network webcast of the proceedings. Butler claimed Chrysler knew of the risks from locating the vehicle’s fuel tank only 11 inches from the rear bumper but ignored the problem for years.

“In 1998 Chrysler knew that the gas tank on a 1999 Jeep Grand Cherokee would be crushed in a rear impact,” Butler said, noting that Chrysler relocated the fuel tank to the center of the car in later models. “Chrysler admits it could have put the gas tank on the 1999 Grand Cherokee in the midships position.”

Butler explained to the jury that everyone else involved in the accident, including the driver of the second vehicle and other passengers in the Jeep suffered comparatively minor injuries, and that the only reason the accident resulted in a fatality was the rear-mounted gas tank. Remington was restrained in a booster seat at the time of the accident.

“If the wreck does not kill you, then you should not be burned,” Butler said. “Had there been no fire none of us would be here today and that boy would be alive and well.”

Remington's parents sued Fiat Chrysler in 2012.

During his opening statements on behalf of Chrysler, Brian Bell of Swanson Martin & Bell LLP told the jury that the 1999 Jeep Grand Cherokee was not defectively designed, and that the explosion was the result of a crash at over 50 miles per hour that exposed the fuel tank to forces well in excess of what regulators required it to withstand.

“We’ve all stood on the side of the road changing a tire or crossing the street, and at 55 miles an hour your hair is blowing and it’s noisy. That’s a very severe collision,” Bell said. “This crash just overwhelmed the structure of this vehicle.”

Bell disputed autopsy results that indicated Remington died from the fire. He told jurors Remington had already died of a head injury from the impact of the crash before the fire reached his booster seat.

Following the parties' opening statements, Butler played deposition testimony given by Fiat Chrysler CEO Sergio Marchionne. Marchionne reportedly met with then U.S. Secretary of Transportation Ray LaHood in 2013 after Chrysler initially rejected a recall over Jeep fuel tanks. Following the meeting the company said it would add rear tow hitches to 1.5 million vehicles, a fix that the agency later deemed adequate. 

Under rapid-fire questioning from Butler in an edited video compilation of Marchionne’s testimony, the Fiat Chrysler chief was pressed on the issue of how much responsibility the company has for the safety of Chrysler’s vehicles. Italian automaker Fiat acquired Chrysler after the American company declared bankruptcy in 2009.

Butler claimed Fiat Chrysler should have been more forthcoming about the alleged danger from the rear-mounted fuel tanks after the company was acquired, but Marchionne said the tank on the 1999 Jeep Grand Cherokee doesn’t pose a public safety risk.

“Any accident is possible, but it’s not a safety defect,” Marchionne said. Butler immediately responded that Marchionne lacked the personal knowledge to make that assertion.

“People have done the work for me and have done what is necessary for me to make that assertion,” Marchionne replied.

Fiat Chrysler spokesman Michael Palese expressed sympathy for Remington's parents, but echoed Bell's arguments that the 1999 Jeep Cherokee was not defectively designed.

“The energy level of the impact was substantially higher than the applicable federal requirement for rear impacts, which the Jeep Grand Cherokee met,” Palese said in a statement. “A thorough analysis of rear impact crash data indicates that the 1999 Jeep Grand Cherokee is no more likely to experience fire as a result of a rear impact than peer vehicles.”

The trial before Judge J. Kevin Chason is expected to last up to three weeks. Courtroom View Network will present a gavel-to-gavel webcast of the proceedings.

The plaintiffs are represented by Jim Butler and David Rohwedder of Butler Wooten & Fryhofer LLP, James Butler of Butler Tobin LLC, George Floyd of Floyd & Kendrick LLC and attorney L. Catharine Cox.

The defendants are represented by M. Diane Owns, Terry Brantley, Alicia Timm and Anandhi Rajan of Swift Currie McGhee & Hiers LLP, Brian Bell, Anthony Monaco and Andrew Albright of Swanson Martin & Bell LLP, Brian Westenberg and Sheila Jeffrey of Miller Canfield Paddock and Stone PLC, Erika Jones of Mayer Brown LLP and by attorney Bruce W. Kirbo.  

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

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