Engle Progeny Review for the Week of January 19

Posted by Arlin Crisco on Jan 23, 2015 4:21:00 PM

Breaking News:  Philip Morris Prevails in $21.9M Engle Progeny, Laryngeal Cancer Suit


Jose Vila v. Philip Morris

Miami—Jurors Friday afternoon found Philip Morris-brand cigarettes did not cause the cancer that cost Jose Vila his larynx, clearing the tobacco giant in Vila’s $21.9 million Engle progeny tobacco lawsuit.

The jury took less than seven hours before finding that, while Vila suffered from nicotine addiction that caused his laryngeal cancer, Philip Morris-brand cigarettes were not the legal cause of the disease.  

Vila had sought up to $21.9 million in past compensatory damages alone, with his attorney, the Ferraro Law Firm's Allan Kaiser, presenting a range of damages to jurors during closing arguments. 

Vila sued Philip Morris, claiming its Marlboro-brand cigarettes caused his nicotine addiction and laryngeal cancer. Vila 60, began smoking at 15 while living in Spain, and continued the habit for more than 24 years, quitting sometime after his cancer diagnosis in 1994. Vila's larynx was removed two years later to treat a recurrence of the cancer.

The length of time Vila smoked Philip Morris’ cigarettes, and Vila’s own credibility, was a key issue at trial. Shook Hardy Bacon’s Robert McCarter, representing Philip Morris, told jurors Vila had not smoked his client’s cigarettes long enough for them to cause Vila’s cancer. McCarter reminded jurors in closing arguments that circumstantial evidence weighed against Vila’s claim that he began smoking Marlboro cigarettes as a teenager in Spain. What you learned when we cross-examined Dr. Proctor is Marlboro cigarettes were five times more expensive in Spain than other cigarettes because they were imported and the sale was by the Spanish monopoly,” McCarter said. “So Mr. Vila is claiming that, as a teenager without any money, to be smoking the most expensive cigarette, or one of the most expensive cigarettes in Spain.”

Instead, McCarter said the evidence established that Vila smoked Philip Morris-manufactured Marlboros for only three-and-half years, while living in the U.S., which wasn't long enough to cause Vila's cancer. “Where is the evidence that three-and-a-half years of smoking is enough to cause laryngeal cancer?" McCarter asked. "Where is the evidence? They have the burden of proof? Who testified to that? Nobody.”

However, Kaiser argued that the Marlboros Vila smoked for more than a decade while living in the Dominican Republic were produced by a Philip Morris-owned company. "(The Marlboro cigarettes in the Dominican Republic) are Philip Morris cigarettes, and they're the same Marlboro cigarettes that are manufactured here in the United States  and smoked here in the United States," Kaiser said. "And, if for a minute... Philip Morris USA, Inc.had evidence that there really weren't cigarettes that they were making being sold in the Dominican Republic, they would've brought a representative from their company to say 'No. Those Philip Morris Marlboro cigarettes weren't ours,' and they didn't do it." 

McCarter countered that the Marlboro cigarettes Vila bought in the Dominican Republic were manufactured by a third-party licensee in which Philip Morris held an interest. McCarter told jurors that connection was insufficient to hold Philip Morris liable. "This question (on the verdict form) doesn't ask whether cigarettes made by a company that Philip Morris had a stake in caused (Vila's) cancer," McCarter said. "The question is, did cigarettes manufactured by Philip Morris cause (Vila's) cancer. Philip Morris did not manufacture those cigarettes.Their own expert (tobacco industry expert Robert Proctor) admitted it."

Neither the parties’ attorneys nor Philip Morris representatives could be immediately reached for comment.

The verdict, which jurors took more than six hours to reach, gives tobacco manufacturers the win in the first state court Engle progeny case to come to trial in 2015. On Wednesday, however, a federal jury in Jacksonville hit Philip Morris with a $17.2 million verdict in an Engle progeny suit brought by a woman who claimed that smoking the company’s cigarettes led to vascular disease and the amputation of her legs. Donna Brown v. Philip Morris USA et al,3:09-CV-10687-WGY-HTS. 

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

$40M Cerebral Palsy Malpractice Lawsuit Goes To Trial

Posted by David Siegel on Jan 22, 2015 1:43:00 AM

Salem, Ore. - Opening statements took place Wednesday in a $40 million medical malpractice trial in Oregon state court over claims that a doctor’s delay in performing an emergency Cesarean section caused a child to be born with permanent brain damage.

The parents of 7-year-old Maverick Ramseyer sued Dr. Denis Dalisky in 2011 alleging that his failure to order a C-section quickly enough after Ramseyer’s heart rate dropped to dangerously low levels resulted in him developing cerebral palsy, which an attorney for Elizabeth and Derrick Ramseyer told jurors would require a lifetime of costly medical care.

"It's never going to get better," said Kenneth Suggs of Janet Jenner & Suggs LLC while detailing the extent of Maverick’s brain damage to the jury, according to a Courtroom View Network webcast of the proceedings.

Elizabeth Ramseyer was two-weeks overdue in December 2007, when she was admitted to Silverton Hospital, according to the Ramseyers' complaint. Suggs told jurors Dalisky ordered the use of dangerously high levels of childbirth induction drugs and did so mostly from his home while directing hospital nurses over the phone.

Ramseyer was instructed to push before she was sufficiently dilated, which caused Maverick to go into distress and his heart rate to repeatedly dip below normal, Suggs told the jury. Dalisky finally ordered a C-section when the heart rate dropped to a dangerously low rate for nearly 8-minutes. By then Maverick had inhaled fecal material and been deprived of oxygen for long enough to cause brain damage, according to Suggs.

Suggs argued that both the decision to manage Ramseyer’s birth remotely and to not immediately order a C-section based on the information relayed to Dalisky fell below the standard of care.

"What would a reasonable doctor do?" Suggs asked the jury. "A reasonable doctor now would come see the patient. A reasonable doctor would evaluate the patient. And a reasonable doctor would deliver the baby because you have no idea how long this is going to go."

Suggs told the jury that while $40 million in damages may seem high, that amount is necessary to adequately provide decades of medical care for a child with severe neurological disabilities. Cerebral palsy affects muscle coordination and emotional development, and Suggs said Maverick will require a range of expensive therapies and equipment like braces for years to come.

"We're going to ask you to award enough money so that those things can be afforded after he becomes 18," Suggs said. "The parents have no stake in this. It's all for Maverick."

Representing Dalisky, John Hart of Hart Wagner LLP told jurors that his client acted properly during a delivery with unexpected complications, and that the extent of Maverick’s disabilities can’t be fully determined until he is older.

Hart argued that periodic dips in a baby’s heart rate like those experienced by Maverick, known as variable decelerations, are common when labor is induced with drugs, and that they don’t always indicate a baby is in distress.

"They are so common that we could go to any hospital in Oregon right now and see variable decelerations," Hart said.

Dalisky promptly ordered a C-section as soon as he had information showing Maverick was in distress, according to Hart, who told the jury that doing so any earlier would have posed a risk to the mother.

Hart disputed the Ramseyers’ claims that Maverick needs lifelong care, describing him as a normal 7-year-old who participates in taekwondo and plays soccer.  He also called into question the credibility of expert witnesses retained by the plaintiffs who had never physically examined Maverick.

"We're shocked that now all these doctors who have never seen Maverick are going to come in and explain why he needs lifelong care."

The trial before Judge Vance day is expected to last up to two weeks.

Attorneys for the parties did not immediately respond to a request for comment from CVN late Wednesday evening.

The Ramseyers are represented by Kenneth M. Suggs of Janet Jenner & Suggs LLC and by Laura Kalur of Kalur Law.

Dalisky is represented by John E. Hart of Hart Wagner LLP.

The case is Ramseyer v. Dalisky, case number 11C22122, in Marion County Circuit Court.


Topics: Malpractice

Jury Awards $425K To Driver of Car T-Boned By Tractor-Trailer

Posted by Steve Silver on Jan 21, 2015 2:18:00 PM


Defense attorney Christopher Penna delivers his closing argument to the jury shortly before they delivered a $425,000 verdict for Plaintiff Lee Scott Collins.


Decatur, GA - A DeKalb County jury awarded $425,000 in damages to a driver whose Jeep Cherokee was spun around and pushed sideways several hundred feet by a fully loaded tractor-trailer. Lee Scott Collins v. Lonzia Collins, KCH Trucking Company and Westfield Insurance Company, 13-A-48999.

Lee Scott Collins was driving the Jeep and hauling an attached dog trailer on I-75 in Cook County on April 19, 2012. According to evidence presented at trial and court documents, a KCH Trucking Company truck driven by Lonzia Collins (who is no relation to the plaintiff) struck the trailer and spun it around, jackknifing Lee Collins’ Jeep. The truck then hit the Jeep broadside on the driver’s side and pushed it several hundred feet before the vehicles came to a stop.

During the two-day trial, Lee Collins told jurors that the collision was harrowing. “Then the next thing you see is the grill of that truck right here,” Collins said. “You think you’re pretty much done; I mean you pretty much figure life is over at that point.”

The extent of Lee Collins’ injuries served as a key issue at trial. The jury heard extensive testimony from seven expert medical witnesses, including Collins’ treating physicians, on the issue. Collins’ attorneys introduced evidence that the accident injured Collins’ shoulder and back and led to post-traumatic stress disorder in their client. His doctor recommended surgery for his shoulder injury, which Collins has not yet undergone.

Lee Collins’ attorney, R. Scott Campbell of Shiver Hamilton, explained his client’s decision not to undergo the surgery he says he needs. “He doesn’t want the surgery. He’s dreading it,” Campbell said. But “(Collins) has come to the realization as it comes to his shoulder that he needs it.”  Campbell pointed out that the doctors who had actually treated Collins linked Collins’ injuries to the accident, while defense experts had never treated Collins.

By contrast, defense attorney Christopher Penna, of Penna & Mendocino, noted in closings that Lee Collins was treated for his injuries at a local clinic until September 2012, and did not visit another doctor until February 2014, when physicians determined that Collins’ physical problems were caused by the accident. During that nearly 17-month period, the plaintiff filed the lawsuit at issue. Penna also noted the lack of objective medical evidence to support a conclusion that the accident caused Collins’ ailments.

Penna said that Collins’ description of his condition before and after the accident “doesn’t prove to what extent the injuries or subjective complaints were caused by the accident. Just because something happens afterwards doesn’t mean it was caused by a specific event… particularly when the sole basis of liability linking up those events are subjective complaints by someone with a specific financial interest in this case.”

After the trial, Scott Campbell praised the jury for its attentiveness and perseverance in the case, noting that they deliberated until nearly 10:00 pm on a Friday night before reaching a verdict. He also expressed appreciation that the jury “got it right” by returning a verdict that Lee Collins was not in any way at fault in the accident. The defense attorney was not available for comment by the time of this article’s publication.

CVN will provide gavel-to-gavel video coverage of this trial as soon as it is available.



Related information:

Attorneys involved in the case include R. Scott Campbell of Atlanta's Shiver Hamilton representing plaintiff and Christopher Penna of Conyers' Penna & Mendocino for the defense.

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Topics: Negligence, Vehicle Collision, Georgia, Transportation

Georgia Power Struck with $3.6M Verdict in Utility Truck Collision Trial

Posted by Steve Silver on Jan 20, 2015 6:13:00 PM



Lawrenceville, GA – A Gwinnett County jury awarded $3.6 million to a couple who suffered spinal injuries when a Georgia Power Company truck rear-ended their car. Sandra Elizabeth Flores Juarez and William Pineda Villacorta v. Georgia Power Company and Cassandra Jeyeun Kim, 11-C-09903-S1.

Sandra Juarez, the car’s driver, received $1.5 million in compensatory damages, and her passenger, William Villacorta, received $2.1 million.

The accident occurred August 16, 2010, on Hamilton Mill Road in Gwinnett County. According to evidence introduced at trial and other court documents, Juarez stopped, signaled a left hand turn, and was waiting for traffic to clear when a Georgia Power truck driven by Cassandra Kim struck the rear of the couple’s Nissan Maxima. Kim, who was traveling about 40 mph just before the accident, was cited for following too closely.

Juarez underwent a spinal fusion and had arthroscopic surgery on her shoulder because of the accident. Villacorta suffered neck injuries and underwent a spinal fusion. Juarez’s medical bills totaled more than $300,000, while Villacorta’s medical expenses exceeded $200,000.

Sandra Juarez's attorney, Joseph Fried, of Atlanta’s Fried Rogers Goldberg, said he was “extremely proud of what the jury did.” He added that it “took courage” for the jurors to reach their verdict. According to Fried, the defense contested both the couple’s version of the accident and the extent of the injuries they suffered. However, Fried concluded, “[The jurors] kept their eye on the ball.”

Representatives for Troutman Sanders, which represented the defense in the case, referred CVN to Georgia Power for comment. Jacob Hawkins, a spokesman for Georgia Power, said that the company was "currently evaluating the court's decision and determining our next steps."

Related information

Joseph Fried, of Atlanta's Fried Rogers Goldberg, represented Sandra Juarez, Orlando Ojeda, of Atlanta's Walker Ojeda, represented William Villacorta, and Scott Farrow, of Atlanta's Troutman Sanders, represented the defense.

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

Topics: Negligence, Georgia

Engle Progeny Review for the Week of January 12

Posted by Arlin Crisco on Jan 16, 2015 7:25:00 PM



Dr. Jarrard Goodwin testifies that cigarette smoking, rather than another cause such as the humpan papilloma virus, caused Jose Vila's layngeal cancer.

Vila v. Philip Morris

The second full week of trial in Jose Vila's suit against tobacco giant Philip Morris featured his attorneys' attempt to link Vila's decades of smoking with the laryngeal cancer that cost him his voice box in 1996.

During testimony Thursday, Dr. Jarrard Goodwin, an otolaryngologist at the University of Miami, testified that the combination of Vila’s alcohol use and decades of smoking likely had a “synergistic effect” that led to Jose Vila’s cancer. However, while Goodwin said that Vila’s alcohol use increased the odds of his development of laryngeal cancer, his smoking history served as the most likely cause of his cancer cancer.

Vila, who says he began smoking when he was 15 and living in Spain, smoked for more than 24 years until he was diagnosed with laryngeal cancer in 1994. He underwent radiation therapy following his diagnosis. Two years later, after a recurrence of the cancer, physicians removed Vila's larynx.

On cross-examination, however, Goodwin, who reviewed Vila’s medical records but never personally treated Vila, acknowledged that records indicated Vila did not comply with recommended care following his 1994 radiation treatments. When asked under cross examination whether the records implied  that Vila never returned to his doctor after his completing radiation therapy, Goodwin answered “It’s compelling.”

Nonetheless, “The cancer was caused by his smoking, and it just didn’t get cured,” Goodwin said. However, Goodwin acknowledged that doctors may have been able to save Vila's larynx if he had completed recommended follow-up care. 

Earlier in the week, psychiatrist and addiction specialist Dr.  Richard Seely testified that Vila’s records indicated he was unaware of the dangers of tobacco when he began smoking and was likely heavily addicted to nicotine by the time he moved to the United States, where he ultimately learned of the adverse health effects of the habit.

“He has the disease of addiction. His brain has changed. His physicology has changed,” Seely said. “There’s a molecular memory in his brain, that, as soon as nicotine is introduced, it will precipitate a cascade of behaviors that will demonstrate that psychoactive drug, nicotine, will control Mr. Vila.”

Seely told jurors that Vila did not seriously attempt to stop smoking until he was first diagnosed with throat cancer in 1994, but that it took him two years, and multiple attempts, and that Vila only quit when “he finally, literally couldn’t smoke anymore because of pneumonia and (related health problems).

On cross examination, Seely acknowledged that his diagnosis of tobacco addiction was based in large part on Vila’s answers to him, such the length of time it took Vila to quit smoking, rather than on medical records that indicated that Vila had successfully quit smoking in 1994. However, Seeley added that “I find it incomprehensible that an individual can speak so graphically about the struggle to bear smoking five or six cigarettes after the radiation (treatments for his 1994 cancer): that it was like an atomic bomb going off, a fire, an exploded plane Hiroshima. I got the picture very directly of an individual who was suffering greatly as he suffered with his nicotine addiction after the radiation,” Seely said. “And I don’t feel it’s credible to think that he just made that up.”

Next week: Trial is expected to conclude next week.

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

Not a subscriber?

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

Topics: Negligence, Engle Progeny, Florida, Tobacco Litigation, Engle Progeny Review, Jose Vila v. Philip Morris

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