Former Waitress Gets Stiffed by Defense Verdict in Rear End Auto Case

Posted by Steve Silver on Jul 27, 2015 7:13:30 PM


Dalton, GA—A former restaurant waitress who has been receiving pain management treatments since an automobile accident in 2012 lost her personal injury lawsuit in Whitfield County Superior Court against the driver who rear ended her, following defense suggestions that two chiropractors who treated her during this time may actually have caused the pain. Christy Carr Fowler v. Shelby McFarland (14-CI-197-J)

According to testimony in the case and other records, Christy Fowler was stopped at a traffic light on Cleveland Highway in Dalton on March 29, 2012. Shelby McFarland, who was behind Fowler’s car, was temporarily distracted, misjudged the distance between the vehicles, and collided with Fowler’s car. Following the accident, Fowler was taken by ambulance to a local emergency room for treatment. McFarland was cited for following too closely and admitted responsibility for the collision prior to trial.

Click Here FREE Georgia Trial Video Samples At the trial, Fowler testified that she was flung forward and back by the force of the collision, which sent various loose items inside her car flying. Afterwards, she continued to experience back and neck pain and went to see her primary care physician, Dr. Murrah Watson. She stated that she went back to work as a server and manager at the Rib and Loin, a popular Chattanooga area barbecue restaurant, but had to quit in early June, 2012, due to her pain and had not sought other employment since then. Fowler said that she missed her job but that she couldn’t do the work anymore because of her pain and limited strength and mobility. Fowler was wearing a neck brace at the time she quit work and still occasionally wears a neck brace. Further, she stated that she not worked or sought other employment since.

Fowler also testified that she had sought treatment for her pain from several other physicians and two chiropractic clinics. She visited Life Touch Chiropractic in May 2012 and was examined but never received treatment there. She then went to another chiropractic clinic, Hixson Spine Center, where she received treatment for a year. She stopped going to Hixson because she felt the treatments weren’t helping anymore. She later went to Tennessee Valley Pain Management where she still receives treatment. Fowler also testified that she had been involved in a one-car rollover accident in 2006 and that she had fallen while doing housework in 2007 but had fully recovered from those incidents, neither of which caused her back or neck pain.

During cross examination, McFarland’s attorney, Alan Miller, had Fowler acknowledge making various statements in her earlier deposition that she did not testify to on direct examination. Fowler admitted stating in her deposition that McFarland approached her car after the accident, banged on the window and swore at her. Fowler also said that her mother informed her that the police had to restrain McFarland.

Miller also brought out various inconsistencies among Fowler’s different statements. By contrast to her trial testimony that she worked until June 2012, he had her acknowledge that the last pay stub she submitted was in May, 2012. Similarly, he asked her about the bills from Life Touch Chiropractic that indicated she had received adjustments in May. Fowler reiterated that she was not treated there, even though she was seeking damages for those charges. Similarly, Fowler denied having received chiropractic care in 2004, despite office records to the contrary, insisting that it was her daughter who received the treatment.

Miller also questioned Fowler about statements he made that her chiropractors hurt her. She responded that she experienced pain at Life Touch when she had her neck placed in a support for the X-ray, but that the chiropractor did not “physically hurt” her. She also said that she experienced the normal discomfort at Hixson Spine Center that patients get from receiving adjustments but that she did not stop going there because of any pain suffered, only because the treatments weren’t working.

Fowler also introduced into evidence video depositions from Dr. Watson and Dr. Stephen Dreskin, her treating physician at Tennessee Valley Pain Management. They testified to the various methods of treatment and pain medications they had prescribed and indicated that Fowler’s symptoms were consistent with being injured in a rear end collision.

The defense only called two witnesses, Shelby McFarland and her father, who came to the scene shortly after the accident. They both described the damage to both vehicles as minor and denied that the bumper fell off Fowler’s car as Fowler contended. Shelby McFarland also denied approaching Fowler’s car after the accident. Instead, she testified that she pulled into an adjacent parking lot and waited for the police to arrive while Fowler remained in her car. Both Shelby McFarland and her father expressed surprise that Fowler was claiming she received extensive injuries resulting from the accident, which Shelby described as a bump.

In his closing statement, Fowler’s attorney Sutton Slover reminded the jury that McFarland had acknowledged responsibility for the action. He went on, “If you are to believe that this didn’t happen, that [Fowler] didn’t get injured, then you’re going to have to believe that she wasn’t going to the pain doctor or she didn’t need to go, that she didn’t need to go to the chiropractor, she didn’t need all those pain medications, she didn’t need to drive up to Hixson Spine Center, she didn’t need to see Dr. Watson. You’re going to have to disbelieve that.”

Slover noted that Fowler had consistently reported pain resulting from the car accident since “day one.” He added that there was not “one shred” of evidence that Fowler wasn’t hurt. And, if Fowler was hurt, as “a slew” of Fowler’s doctors thought, then there was no other possible cause of the pain other than the accident. Further, as Dr. Dreskin opined, her pain was likely to be permanent. Slover also pointed out that Fowler tried to work for several weeks following the accident.

In his closing statement, Alan Miller countered that medical evidence from Fowler’s treating physicians indicated she had degenerative problems, “a sore neck” before the accident. Further, if anyone were to blame for Fowler’s pain, it was the two chiropractors who treated her. He pointed to language in Fowler’s deposition and written statements that indicated, in Fowler’s words, that the chiropractors “hurt me, never made me better, aggravated my condition and made me cry.” Miller continued, “A zero award is a true verdict, a true award, a fair award. A zero award will stop this kind of thing right in its tracks.”

Miller further noted that Dr. Dreskin had said that “he depended on Ms. Fowler for all his information, for all his treatment plan, for all his medications. He depended on what Ms. Fowler told him. He based it all on what she told him.”  Miller invited the jury to look at Fowler’s credibility, including her claims that McFarland banged on Fowler’s car window and swore at her after the accident. Miller also pointed out the various inconsistencies in Fowler’s different statements He also reminded the jury that Fowler’s 2006 car accident from which Fowler said she was fully recovered was a one-car accident, while the accident involving McFarland was a two-car accident.

At the conclusion of the two-day trial, the jury issued its verdict for McFarland. After the trial, Alan Miller said that the key to the verdict was the likability of his client, who, at the time of accident was on her way to attend a college class. Miller felt his client was very credible and came across as a person trying to make the most of her life. He also noted that plaintiff’s case may have been hurt by the statements Fowler herself made while filling out the various medical records that were introduced into evidence in the case. Representatives for the plaintiff were unavailable for comment prior to the publication of this article.

Steve Silver can be reached at ssilver@cvn.com.


Related information:

Attorneys involved in the case include Sutton Slover and Ross Moore of Atlanta for Christy Carr Fowler and E. Alan Miller of Atlanta's Martenson, Hasbrouck & Simon and Nicole Gupta of Atlanta's Rich, Nash & Manganiello for Shelby McFarland.

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Topics: Negligence, Georgia, Fowler v. McFarland

$684k Awarded To Crash Victim After Botched Brake Job

Posted by David Siegel on Jul 24, 2015 11:21:00 PM

Morrell_screenshot-1

Plaintiff's attorney Robert Vannah shows jurors an image during his closing argument of Kathleen Morrell's car after it was struck by by another vehicle with faulty brakes serviced by Big O Tires. Click here to see video from the trial. 

Reno — A Nevada state court jury smacked the largest franchiser of tire retailers in North America, Big O Tires LLC, with a $684,000 verdict on Thursday, after the company admitted to performing a faulty brake job that caused a serious car accident.

Jurors deliberated for less than a day following a four-day trial before awarding plaintiff Kathleen Morrell what her attorney Paul Marrero of Golightly & Vannah claims is an amount over 10 times larger than Big O’s highest settlement offer of $60,000. The company admitted liability midway through the trial, according to Marrero, so the jury only deliberated over the amount of damages Morrell’s alleged injuries justified after she was rear-ended in 2013 by a car serviced at Big O.

Morrell claims she suffered neck injuries in the collision that require her to undergo procedures called nerve ablations, where nerve tissue is destroyed using soundwaves to block pain. The nerve eventually regenerates and requires a new ablation, and if those procedures cease to be effective spinal fusion surgery can become necessary, Marrero's co-counsel Robert Vannah argued to jurors.

According to Vannah, Gary Mackenzie plowed into the back of Morrell’s car at 35 miles per hour while driving on Interstate 80 to pick up his wife from work after getting his brake pads replaced at Big O earlier in the day.

“He hits his brakes, and there’s nothing,” Vannah said, noting that within seconds of the crash Mackenzie exited his car and told Morrell his brakes failed, and that he repeated the same statements to police officers that arrived at the scene moments later.  

The verdict is substantially less than the nearly $3 million that Vannah had asked the jury to award during his closing argument. Vannah requested $2.25 million for Morrell’s past and future pain and suffering but the jury, apparently swayed by defense arguments that the accident didn’t significantly impact Morrell’s quality of life, only awarded $140,000.

The remainder of the verdict was allocated for Morrell's past and future medical expenses, according to a Courtroom View Network webcast of the trial. 

Jared Green of McCormick Barstow Sheppard Wayte & Carruth LLP, representing Big O, told jurors that Morrell had lived without pain for most of the 18 months following the accident and that there was no reason to think that would change in the future. He noted that Morrell was not initially diagnosed with any serious injuries following the wreck, and that she only began a series of lengthy chiropractic treatments after consulting with attorneys at Golightly & Vannah.

“You can’t just come up with a number and throw it out there,” Green said, asking jurors to calculate damages based on Morrell’s testimony and not her attorney’s arguments. “It’s got to be based on some kind of tangible evidence.”

Mackenzie was dismissed from the case once Big O admitted liability, but before that occured his attorney, David Harsh, told the jury that Mackenzie’s brakes failed because the brake fluid and plates had been corroded and warped by excessive heat. He claimed the brake fluid hadn’t been sufficiently “bled” or purged of air bubbles, which can greatly reduce a hydraulic brake system’s effectiveness.

On the morning of the accident, Mackenzie had his brakes replaced but soon noticed thick black smoke bellowing from his left rear tire due to excessive friction, according to Harsh. He drove back to Big O, where the rear brake pads were replaced, but not the accompanying rotors, Harsh claimed. He argued that Big O’s employees again failed to adequately bleed the brakes, and that the remaining fluid was no longer effective due to being boiled when the first replacement brake pads overheated.  

“Just because you rear-end a vehicle doesn’t mean you did anything wrong,” Harsh told jurors.

This was the first case taken to a jury trial in Reno by Golightly & Vannah since the Las Vegas-based firm opened an office in Washoe County, Marrero told CVN. 

“We’re all very satisfied with the outcome,” he said. 

Attorneys for Mackenzie and Big O did not respond to requests for comment.

Morrell is represented by Robert Vannah and Paul Marrero of Golightly & Vannah.

Big O Tires is represented by Jared Green of McCormick Barstow Sheppard Wayte & Carruth LLP.

Gary Mackenzie is represented by attorney David Harsh.

The case is Kathleen Morrell v. Big O Tires LLC., et al., case number CV14-00380 in Nevada’s 2nd Judicial District Court for Washoe County.

E-mail David Siegel at dsiegel@cvn.com

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Topics: Products Liability, Nevada, automotive

In Wrongful Death Trial Against Caterpillar, Harvard Doc Says Asbestos Likely Caused Deadly Cancer

Posted by Arlin Crisco on Jul 24, 2015 4:44:00 PM

Mark-Gonzalez

Dr. Eugene Mark testifies via videoconference about the likelihood Pablo Gonzalez Sr.'s mesothelioma was caused by asbestos.


Miami—As trial in a wrongful death suit against heavy equipment manufacturer Caterpillar Inc. and parts maker Dana Holding Corp. entered its second week, a Harvard physician testified that decades of asbestos exposure likely caused the cancer that killed a South Florida mechanic.  

Click Here FREE Florida Trial Video Samples Dr. Eugene Mark, a pathologist at Massachusetts General Hospital, told jurors that malignant mesothelioma, the disease Pablo Gonzalez Jr., claims killed his father, Pablo Gonzalez Sr., is more likely to be caused by inhaling microscopic asbestos fibers than to develop from another reason.

“I think that opinion would be held by almost anybody, any physician and occupational person in the world. They would argue whether (60-90%) are caused by asbestos, but nobody is going to say that asbestos is not (an) important (cause).”

The elder Gonzalez repaired heavy equipment for decades, including brakes and gaskets on Caterpillar vehicles with parts manufactured by Dana. He was 79 when he died in 2011 from mesothelioma. His son claims asbestos dust exposure from brakes made and used by the two manufacturers caused his father’s death. The defendants contend that there is no definitive link between asbestos exposure and the elder Gonzalez's disease.

Appearing via video conference, Mark described tissue samples he said showed the elder Gonzalez suffered from diffuse malignant mesothelioma. Mark then detailed brake mechanics’ general risk of the disease from exposure to chrysotile asbestos present in some brake dust.

On cross-examination, Mark acknowledged documented mesothelioma cases that were not linked to asbestos exposure. He contended, however, that lack of detailed work histories likely meant some of these documented, idiopathic cases were possibly still caused by asbestos exposure unknown to the patient. 

Trial in the case will continue into next week.

Neither the parties’ attorneys nor their representatives could be reached for comment. 


 

Related Information

Janpaul Portal and Marc Kunen, of The Ferraro Law Firm, represent Pablo Gonzalez Jr. Jose Gaitan, of The Gaitan Group PLLC, and Timothy Ferguson, of Foley & Mansfield PLLP,represent Caterpillar Inc. James Powers, of Wilson Elser Moskowitz Edelman & Dicker LLP, and Evelyn Davis and Catherine McCormack, of Hawkins Parnell Thackston & Young LLP, represent Dana Holding Corp. 

Watch gavel-to-gavel coverage of Gonzalez v. Caterpillar. 

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Topics: Products Liability, Asbestos, Florida, Gonzalez v. Caterpillar, et al.

Watch a Masterful Cross-Exam of a Sympathetic Witness with Millions on the Line | Florida Trial Video Vault

Posted by Courtroom View Network on Jul 24, 2015 2:41:00 PM

Jeffrey Furr cross-examines Ethel Gray about her husband's knowledge of the dangers of cigarettes. The jury found in favor of Reynolds in her suit against the company.


 

Cross-examination of a sympathetic witness can be the most difficult part of a trial. It requires a deft touch to make your point without appearing as if you are bullying a witness, turning the jury against you. King & Spalding’s Jeffrey Furr, in Gray v. R.J. Reynolds, provided a veritable master class on that delicate balance.

Click Here FREE Florida Trial Video Samples Ethel Gray sued Furr’s client, R.J. Reynolds, claiming the tobacco maker’s decades of concealing smoking’s dangers fueled her husband Willie Gray’s nicotine addiction and caused a host of smoking-related diseases. Whether Willie Gray knew the dangers of smoking before he switched to RJR’s Winston brand cigarettes was a key to the case.

Ethel Gray, an 81-year-old widow in frail health when she took the witness stand, was a stark contrast to Furr, the courtroom’s face for the country’s second largest tobacco manufacturer. It was a potentially damaging cross-exam for Furr and RJR: push the witness too hard and risk alienating a jury that sees you as a bully to an elderly woman. Don’t push hard enough and fail to make vital points to your case.

However, Furr found a perfect balance during his cross-examination of Gray. He was helpful without being patronizing, politely reminding Gray of her prior deposition, approaching the witness stand repeatedly to walk her through the document, and gently asking her to wait until he finished a question before she answered:

“Ma’am you’re doing a great job up there. I know you’re a little nervous and this is hard. But I have to ask you one thing, OK? This lady here (the court reporter) can only record one of us at a time? And I’ll do my very best to wait until you’re done speaking, so that we’re not speaking at the same time. And if you would try to do that, it would be really helpful to her, OK?”

At the same time, he persistently questioned Gray on critical points in her testimony, while knowing when to back off on less important questions. In one exchange, he asked her about her husband’s belief that Winston cigarettes were "safer." Gray initially refused to say that her husband’s switch to Winstons implied he must have known cigarettes in general were dangerous. Yet Furr neither conceded the issue nor appeared aggressive. He approached the question from various angles until he received the answer he was looking for. Immediately afterward, when Gray, who was suffering from health problems, became flustered, he quickly withdrew a follow-up question, his key point already made.

Gray ultimately would leave the stand later that afternoon because of health issues, trturning to testify later in the trial. Yet Furr’s balanced approach to Gray’s questioning bolstered the defense’s case without alienating the jury. It was a skillful cross-examination that delivered an important verdict for RJR.


Related Information

Watch Gray v. R.J. Reynolds.

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

Philip Morris Stung with $14.5M Award in Mouth Cancer Case

Posted by Arlin Crisco on Jul 24, 2015 12:37:00 PM

Merino-Rosenbaum

Randy Rosenblum argues smoking, not HPV, caused Carmenza Merino's mouth cancer. Jurors awarded Merino $14.5 million Thursday in her suit against tobacco maker Philip Morris. 


Miami—A former smoker was awarded $14.5 million Thursday for the role she claimed Philip Morris played in causing the oral cancer that consumed part of her jaw. Merino v. Philip Morris, 08-CA-001287.

Carmenza Merino, who smoked more than a pack of cigarettes a day for 32 years, sued Philip Morris, claiming she was misled by the tobacco giant's tactics to conceal the dangers of smoking, which led to her nicotine addiction and 1996 mouth cancer. Merino claimed she was so addicted to cigarettes that she was unable to quit smoking until the night before her cancer surgery. Doctors removed parts of her jaw tongue and lymph nodes because of the disease.

Watch Video from Tobacco Trials The jury’s award includes $8 million in compensatory damages handed down Thursday morning and $6.5 million in a punitive verdict rendered late Thursday afternoon. Jurors took only four hours to reach their verdict on compensatories, which apportioned 70% of responsibility to Philip Morris and 30% to Merino.

The first phase of the 11-day trial turned on the cause of Merino’s mouth cancer. Philip Morris argued that the human papillomavirus, rather than cigarettes, caused the disease. During closing arguments Wednesday, Shook, Hardy & Bacon's’s Kenneth Reilly reminded jurors of evidence that the microscopic “fingerprint,” or building blocks of HPV, were found adjacent to Merino’s tumor. Reilly also argued that the cancer’s development, when Merino was about 45, reduced the likelihood that smoking was the disease's cause. While Reilly noted evidence that smoking-related mouth cancer generally develops around age 65, Merino was “exactly the average age at which people develop oral cavity cancer from the human papillomavirus.”

However, Merino’s attorneys argued that there was no conclusive evidence that Merino had HPV. In Wednesday’s closings, The Ferraro Law Firm’s Randy Rosenblum told jurors that Merino had never been tested for HPV, and descibed the HPV argument as a “non-starter.”

Instead, Randy Rosenblum argued expert testimony showed that Merino’s tumor bore the tell-tale signs of being tobacco-related and that 95% or more of cancers like Merino’s are caused by smoking. “Is it more likely that cigarettes caused (Merino’s) cancer, when we know that (in) 95-99% of (similar cancers) it does?” Rosenblum asked.

After jurors handed down the compensatory verdict, phase II of the trial ran less than half the day Thursday and centered on whether Philip Morris’ recent conduct mitigated against a large punitive award. Richard Jupe, who works with a Philip Morris affiliated company, Altria Client Services, testified that Philip Morris is subject to federal regulation and strict limits on its marketing. Jupe also told jurors that Philip Morris had paid the state of Florida alone more than $4 billion as part of the 1998 Tobacco Master Settlement Agreement, a pact the industry reached with 46 states for tobacco companies' alleged role in smoking-related disease.

In phase II closings,  Reilly argued Jupe's testimony showed that the Philip Morris of today was a different company than the one accused of conspiring for decades to hide the dangers of its cigarettes. When imposing punitive damages, “you’re not punishing people in 1990, or people in 1980,” Reilly said. “You’re punishing the people that run the company today.”

The Alvarez Law Firm's Alex Alvarez, representing Merino, countered that the company's current personnel didn’t insulate it from punitive liability. “(The defense asks) you, 'What would it say to the people of Philip Morris if you award punitive damages?’” Alvarez said. “Well, those people decided to join a company that had a history of lying, deceiving, and killing people. So, they made a choice.” Alvarez said.

The jury took 30 minutes to deliver its punitive award, a quarter of the $24 million Merino's attorneys requested in closings of phase II. 

The Merino case is one of thousands of similar lawsuits filed in Florida against the nation’s tobacco companies. 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 the state’s high 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 hidden the dangers of smoking. To rely on those findings, individual Engle progeny plaintiffs such as Merino must prove the smoker’s addiction to cigarettes and a causal link between the addiction and a smoking-related disease.

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


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

Related information

The Ferraro Law Firm's Randy Rosenblum and The Alvarez Law Firm's Alex Alvarez represent Carmenza Merino. Shook Hardy Bacon's Kenneth Reilly represents Philip Morris. 

Watch gavel-to-gavel coverage of Merino v. Philip Morris.

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Topics: Negligence, Products Liability, tobacco, Florida, merino v. philip morris

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