1. Jury Returns $37M Verdict in Suit Linking J&J Talc to Mesothelioma
A jury in Middlesex County, awarded $37 million in the case of a man who claimed he developed mesothelioma from lifelong use of Johnson & Johnson’s talc products.
The jury apportioned 70 percent of the award to Johnson & Johnson, maker of the Johnson’s Baby Powder that 46-year-old plaintiff Steven Lanzo III said he had used all his life, and 30 percent to co-defendant Imerys Talc America, which produced the raw ingredient in the company’s products. The jury awarded $30 million to Lanzo and $7 million to his wife.
The jury is set to return to consider whether to award punitive damages. [Defendants were hit with an $80 million punitive damages verdict on April 11.]
The verdict for the plaintiff came after two months of trial before New Jersey Superior Court Judge Ana Viscomi.
The verdict marks the first time a plaintiff prevailed in a case linking J&J’s talc products to mesothelioma. One other such case, brought by plaintiff Tina Herford, ended in a defense verdict in November 2017, in Los Angeles Superior Court.
Johnson & Johnson has also faced more than 5,000 suits by women who claimed they developed ovarian cancer from using J&J talc products for feminine hygiene.
Lanzo said in his suit that he was a lifelong user of Johnson’s Baby Powder and was diagnosed with the deadly disease two years ago. While mesothelioma is often associated with shipyard workers or other industrial jobs, Lanzo is a nonsmoker who never worked in an occupation that could expose him to asbestos.
Lanzo was represented by Moshe Maimon of Levy Konigsberg in New York.
Robert Brock of Kirkland & Ellis in Washington represented Johnson & Johnson.
Johnson & Johnson spokeswoman Carol Goodrich said on behalf of the company, “While we are disappointed with this decision, the jury has further deliberations to conduct in this trial and we will reserve additional comment until the case is fully completed.”
Imerys Talc America issued a statement from spokeswoman Gwen Myers.
“Our hearts go out to those affected by all forms of cancer. We are disappointed by the jury’s decision, but we remain confident that talc did not cause Mr. Lanzo’s cancer. The evidence was clear that his asbestos exposure came from a different source such as the asbestos found in his childhood home or schools, and the jury’s decision is inconsistent with a recently published study of workers who mined and milled talc all day over the course of more than 50 years that did not find a single case of mesothelioma,” Myers said.
“Imerys follows all FDA and other regulatory guidelines and utilizes rigorous testing to ensure that our talc meets the highest quality standards, and we are just as confident in the safety of our products as ever. We intend to appeal this decision and will continue to stand by the safety of our product,” Myers said.
2. Jury Awards $33M in Pelvic Mesh Suit Against Bard
A Bergen County jury awarded $33 million in a pelvic mesh products liability trial against medical device maker C.R. Bard.
Plaintiff Mary McGinnis was awarded $23 million in damages and her husband, Thomas, was awarded $10 million for loss of consortium. The jury will reconvene Friday to consider whether to award punitive damages against Bard, which is headquartered in Murray Hill, New Jersey.
The case is the first bellwether trial against Bard in New Jersey’s mass tort program.
The jury found that the Avaulta Solo Prolapse Repair System and the Align Transobturator Stress Urinary Incontinence Repair system were defectively designed and failed to provide adequate warnings. As a result of defects in the devices, McGinnis had to have several surgeries, and was left with permanent pain and serious injuries, Adam Slater of Mazie Slater Katz & Freeman in Roseland, New Jersey, who represented her, said in a statement.
Slater said in the statement that he would hold a press conference after the punitive damages phase of the trial is complete.
According to the New Jersey judiciary’s website, 154 pelvic mesh cases against Bard are pending before Superior Court Judge James DeLuca in Bergen County.
Even if no punitives are added, Thursday’s verdict is among the highest ever recorded in litigation over pelvic mesh products, according to the website Drugwatch.com.
Bard settled more than 500 pelvic mesh lawsuits for $21 million in 2014, and resolved another 3,000 cases for $200 million in 2015.
Bard has also seen verdicts in individual pelvic mesh suits for $5 million, $3.6 million and $2 million in recent years, according to Drugwatch.com.
Bard was represented by Lori Cohen of Greenberg Traurig in Atlanta.
Bard spokesman Troy Kirkpatrick issued a statement, which said: “We are disappointed with the outcome of the trial and we plan to appeal. Any implantable medical device carries inherent risks as well as clinical benefits. We provide information about both the risks and the benefits of these products in order that physicians, in consultation with their patients, can determine whether those benefits outweigh the potential risks in a particular instance.
“While we understand that Mrs. [McGinnis] was dissatisfied with the outcome of her procedure, it is important to note that thousands of women over many years have benefited from these products and have improved lives because of them.”
Bard once sold more than a dozen types of pelvic mesh devices but the company took all of them off the market in June 2017, according to Mesh News Desk. The move came shortly after Bard, a medical device manufacturer, was sold to Becton Dickinson for $24 million, that site said.
3. Jury Issues $24M Verdict in Kidney Stone Case
A Monmouth County jury rendered a $24.3 million verdict March 16 in a medical malpractice suit, Pereira v. Kramer, claiming the plaintiff underwent amputation of one hand and both legs due to negligent treatment of a kidney stone. The recovery, however, is limited to $18.5 million because the jury apportioned no fault to the only remaining defendant who had not settled.
Ana Pereira, 29 at the time, came to the emergency room at Monmouth Medical Center on March 1, 2011, with an infected kidney stone. But more than 24 hours passed before the on-call urologist, Dr. Michael Esposito, saw Pereira, the suit claimed. Esposito, whose office was in Bergen County, later said he saw no immediate need to make the trip to Monmouth County, according to plaintiff lawyer Bruce Nagel.
When Pereira was seen by Esposito, Pereira had a seriously infected kidney, and Esposito performed a procedure to drain the infection and insert a stent to aid in elimination, Nagel said.
Meanwhile, Pereira was placed in the intensive care unit, where Dr. Violet Kramer, a critical care physician, treated her with a vasopressor, a type of drug administered to patients in shock. But the suit claimed Kramer failed to properly monitor the patient’s vital signs while administering the drug, and Pereira lost circulation in her extremities. Ultimately she underwent amputation of both legs below the knee, and of one hand, due to the lost circulation, Nagel said.
Pereira sued Kramer, Esposito, Monmouth Medical Center, and several other doctors and residents.
In a 2017 settlement, Esposito and his practice each tendered $1 million, their policy limits, and the hospital and other defendants settled for a total of $16.5 million, for a total of $18.5 million.
Kramer declined to settle, and Pereira’s claims against her proceeded to trial. After a one-month trial before Monmouth County Superior Court Judge Mara Zazzali-Hogan, the jury found Kramer not liable. The jury apportioned 96 percent of the injury to defendants who had already settled, and 4 percent to Pereira’s own pre-existing condition. The panel awarded $18.3 million for pain and suffering and $6 million for economic loss.
Pereira was attending accupuncture school at the time of the incident, and was unable to complete the program. She wears prostheses but is unable to work, Nagel said.
Nagel represented Pereira along with Susan Connors of his firm, Nagel Rice in Roseland.
Nagel said he would move for a new trial and for judgment notwithstanding the verdict.
Kramer was represented by James Vasios of Vasios, Kelly & Strollo in Union. Esposito, Monmouth Medical Center and the other doctor defendants were represented by Philip Mattia of Mattia & McBride in Fairfield. Neither returned calls about the case.
4. Monmouth Jury Awards $17M to Family of Brain-Damaged Teen
A New Jersey jury handed down a $17 million verdict to parents who sued a hospital, a doctor and his practice for prematurely removing their daughter from a ventilator, resulting in permanent brain injuries.
According to attorneys and court papers, the eight-member jury in Monmouth County Superior Court Judge Katie Gummer’s courtroom handed up the verdict after approximately a month-and-a-half of trial and five hours of deliberation. The verdict in favor of plaintiff Kelsey Heaney and her parents was broken down into $5 million for pain and suffering, $2 million for future lost wages, and $10 million for medical care expenses.
Heaney was hospitalized with acute pneumonia at age 7 in 2008, requiring lung surgery. According to the plaintiffs’ court papers, she was on the way to making a full recovery when her breathing tube was taken out prematurely. She suffered hypoxia and, as a result, sustained brain injuries that left her dependent on others for care.
The defendants were Dr. Charles K. Dadzie, Meridian Pediatric Associates and Jersey Shore University Medical Center.
According to a report from the defense expert, Dr. Jeffrey P. Burns of Harvard Medical School, the defendants’ decision to extubate Kelsey was within the standard of care, “as was her care and management after extubation, as was the management of her airway, resuscitation, and post resuscitation state in the several hours after her unexpected cardiac arrest.”
Heaneys’ attorneys, Slade H. McLaughlin and Paul A. Lauricella of Philadelphia-based McLaughlin & Lauricella, said they believed defense attorneys’ apparent lack of sympathy toward the girl’s mother during cross-examination soured the jury’s perception of the defendants.
Lauricella said the plaintiffs are “nice people who were not treated well by the defense. The old saying that as an attorney your primary currency is your credibility; they squandered that.”
He added, “They tried to undermine the little girl’s condition, they tried to question the little girl’s grades in her special needs classes … they tried to make it out that the little girl wasn’t brain-damaged.”
McLaughlin said the plaintiffs themselves also helped their case. “The little girl was very nice, the parents were wonderful and they were really able to convey the type of life the little girl leads as opposed to the type she would have led had this not happened to her.”
The defense lawyers, MaryAnn Nobile Wilderotter of Ronan, Tuzzio & Giannone in Tinton Falls, who represented Dadzie; Richard A. Amdur of Amdur, Maggs & Shor in Eatontown, who represented the hospital; and Timothy M. Crammer of Crammer, Bishop & O’Brien in Absecon, who represented Meridian, did not return calls seeking comment.
McLaughlin and Lauricella said no pretrial settlement offer was made by the defendants.
5. Middlesex Jury Awards $11M in Amputation Case
A Middlesex County jury awarded $11.05 million on November 28 in Fava v. Moss, a medical malpractice suit brought by a man who had both legs amputated due to delayed treatment for his circulatory condition.
According to the suit, plaintiff Michael Fava was brought to the emergency room at John F. Kennedy Medical Center in Edison on May 13, 2013, with severe leg pain and an inability to move his legs. His legs had no pulse and were swollen, dictating an immediate surgical procedure to relieve pressure, said plaintiff lawyer Carol Forte. The emergency room doctor called in surgeon Vincent Moss at 5 a.m., but Moss said he would see the patient later in the day, she said.
Moss claimed at trial that he did provide a consultation, but there was no note in the chart from him on that date, calling into question whether he saw the patient at all, according to Forte, of Blume, Forte, Fried, Zerres & Molinari in Chatham. Moss’ colleague, Harold Chung-Loy, claimed he saw the patient that day at 7 p.m., but he, too, failed to enter any note in the chart, suggesting he did not see the patient either, Forte said. Both doctors testified that Fava’s leg problems were too advanced to benefit from surgery, according to Forte.
Fava had a fasciotomy surgery three days after he was admitted, but he nonetheless required amputation of both legs above the knee.
After a three-week trial before Superior Court Judge Phillip Paley in Middlesex County, the jury awarded $7.5 million in past and future pain and suffering, and $3.55 million in future medical expenses, for a total of $11.5 million. The jury apportioned 45 percent of liability to Moss and 45 percent to Chung-Loy, and 10 percent to the patient’s pre-existing condition, bringing the total award to $9.94 million.
Forte tried the case along with Kenneth Elwood of the same firm.
The lawyer for Moss and Chung-Loy, David Weeks of Ruprecht, Hart & Weeks in Westfield, and Robert Donnelly Jr. of Dughi Hewitt & Domalewski in Cranford, representing the hospital, did not return calls about the verdict.
6. Monmouth County Jury Awards $8.5M in Case of Unnecessary Surgery
A Monmouth County jury awarded $8.5 million on January 17 in a medical malpractice suit, Dancyger v. Kocsis, over unnecessary thyroid surgery.
Rebecca Dancyger, then 18, saw general surgeon Cynthia Kocsis in August 2013 after a complex cystic mass was found on her left thyroid lobe. Her primary care doctor and radiologist recommended fine needle aspiration of the mass. But Kocsis instead performed surgery after convincing Dancyger and her mother that the mass was likely cancer, said plaintiff lawyer Paul da Costa.
Kocsis planned to remove the left thyroid lobe and send it for pathological review. If the left lobe was positive for cancer, the plan was to remove the right lobe as well, da Costa said. But Kocsis instead ended up removing the entire thyroid lobe, which turned out to be benign, da Costa said.
Kocsis claimed she removed the entire thyroid because the right lobe was covered with multiple blue dome cysts, but tests showed there were no cysts on the right lobe, and neither lobe was cancerous, according to da Costa.
The suit claimed that the plaintiff would not need surgery at all if the doctor had performed the needle aspiration tests, but Kocsis asserted that the client was deathly afraid of needles and refused to undergo a biopsy. Further, the physician said the patient and her mother simply wanted to have the surgery, and did not want to bother with a biopsy, da Costa said.
Dancyger claimed she suffered vocal cord paralysis with loss of voice for two months after the surgery, as well as post-traumatic stress disorder, which resolved after one year, and permanent anxiety disorder. She also requires permanent hormone replacement medication, according to the suit.
The jury returned the $8.5 million verdict after a one-week trial before Superior Court Judge Katie Gummer.
Da Costa was assisted at trial by Daniel Devinney. Both are with Snyder Sarno D’Aniello Maceri & da Costa in Roseland.
Kocsis was represented by Thomas Heavey of Grossman, Heavey & Halpin in Brick, who did not return a call about the case.
7. Construction Worker Left Paralyzed Settles for $8.2M in Essex
A worker rendered paraplegic after falling off a scaffold at a construction site agreed to settle his Essex County suit, Criollo v. Clark Developers, for $8.225 million on Jan. 22.
Jose Criollo, then 46, was employed by Empire Home Improvements when he was working at a jobsite in Clark on Nov. 15, 2013. Criollo was working on a scaffolding tower when dust and debris from above fell into his eyes, causing him to take a step backward and fall to the ground below.
Criollo was diagnosed with a fractured spine at T12-T13, with a complete spinal cord injury. He underwent emergency surgery and remained hospitalized for more than a month, followed by four months in a rehabilitation facility, according to his attorneys, Michael Gallardo and John Ratkowitz of Ginarte Gallardo Gonzalez Winograd in Newark.
He alleged in his suit that Clark Developers, the controlling contractor on the site, breached acceptable standards of construction site safety by failing to have an accident-prevention plan, failing to appropriately train workers, failing to require workers to wear fall protection, and failing to arrange regular inspections of the scaffold by an OSHA-competent person. The scaffold was not fully planked, was missing guardrails and had no access ladder, according to the attorneys.
They said Clark Developers pursued a contract indemnification claim against Empire Home Improvement. After two mediation sessions with John Keefe Sr., a former Appellate Division with the Keefe Law Firm in Red Bank, the parties settled. Under the settlement, Clark Developers agreed to pay $7.275 million, and Empire’s payment was $950,000 for a total of $8.225 million.
Clark Developers was represented by Frank Kontely III of Hoagland, Longo, Moran, Dunst & Doukas in New Brunswick. Empire was represented by Anthony Pasquarelli of Sweet Pasquarelli , also in New Brunswick. Kontely and Pasquarelli did not return calls about the case.
8. Student Injured in Gym Class Fall Gets $8M Verdict
In Dickens v. Irvington Board of Education, an Essex County jury awarded $8 million in the case of a middle school student whose left arm was seriously injured when she tripped during gym class. But the jury’s apportionment of 25 percent comparative liability to the plaintiff brought her recovery to $6 million.
Destinee Dickens, who was then an eighth grade student at Union Avenue Middle School in Irvington, was injured on Oct. 4, 2011, when her gym class was being led along a paved pathway behind the school to an athletic field. A wire cable ran across the pathway, suspended between posts on either side, purportedly to prevent vehicles from going onto the athletic fields, said Dickens’ attorney, Gregg Alan Stone. Some students walked around the wire barrier, and others jumped over it, Stone said. The wire was about 18 inches off the ground at its lowest point, and Destinee tried to jump over it, but her right shoe got caught, Stone said.
She fractured her left arm and elbow, requiring three operations, and she has developed an neurological problem causing numbness and tingling, Stone said. Now 19, she has developed arthritis in her elbow and is unable to fully extend her left arm. A doctor testified at trial that the condition of her arm would get progressively worse, according to Stone.
The location where the wire cable was located is owned by the Township of Irvington but is under the control of the Irvington Board of Education, Stone said. Dickens’ suit named the township as a defendant, but it was dismissed on summary judgment.
Her suit also named Derek Strong, the gym teacher, as a defendant. Strong testified that he complained to other teachers and the assistant principal that the wire posed a hazard, and said he was told the school had to weigh the safety of students against the potential for vehicles to drive on athletic fields, according to Stone, of Kirsch, Gelband and Stone in Newark, who was assisted by Ronald Morgan.
After a five-day trial before Superior Court Judge Stephanie Mitterhoff, the jury awarded $8 million, found no liability on the part of Strong, and apportioned 75 percent of liability to the school district and 25 percent to Dickens, Stone said.
The school district’s lawyer, Ronald Hunt of Hunt, Hamlin & Ridley in Newark, did not respond to a request for comment.
9. Slip-and-Fall Results in $7M Settlement in Middlesex
A plaintiff will receive $7 million in his Middlesex County suit, Vaidya v. Bank of America, as compensation for injuries he sustained when he slipped and fell in an icy parking lot.
Plaintiff Chetan Vaidya, now 53, of Plainsboro, agreed to the settlement with the defendants on June 29 after a series of conferences before Middlesex County Superior Court Judge Jamie Happas, said Vaidya’s attorney, Nicholas Leonardis.
Vaidya was injured on Feb. 9, 2015, in the parking lot of a Bank of America branch on Route 518 in Rocky Hill, said Leonardis, of Stathis & Leonardis in Edison.
The parking lot was covered with ice and had not been salted, Leonardis said. He slipped and fell as he attempted to step onto a sidewalk while going to the bank’s ATM.
Vaidya struck his head and body on the parking lot, rendering him a quadriplegic and causing partial vocal chord paralysis, Leonardis said.
Vaidya, after surgery and physical therapy, has regained the power to walk and drive a car, but has not been able to return to work, Leonardis said.
Vaidya sued Bank of America; CBRE, the building owner; a subcontractor, Brickman Group; and the company it hired to maintain the sidewalk, Best Landscaping.
ACE American Insurance Co. represented Best, and contributed $1 million toward to the settlement, Leonardis said, while American General Insurance and Liability and Zurich American Insurance Co. will pay the remainder as umbrella carriers, Leonardis said.
Jared Duvoisin, of Newark’s Tompkins, McGuire, Wachenfeld & Barry, represented Bank of America, CBRE and Brickman. Lane Ferdinand, who runs a firm in Springfield, represented Best.
Both confirmed the amount of the settlement.
10. Middlesex Jury Awards $6.8M to Injured Motorist
In Gorth v. Stutzman, a Middlesex County jury on Jan. 11 awarded a Stanhope man $6.8 million as compensation for injuries he sustained when his car was struck in a chain-reaction collision.
The jury found defendant All Holding Co. and its employee, Lama Stutzman, liable for injuries to plaintiff Joseph Gorth, now 44, in connection with the accident, said Gorth’s attorney, Edward Lutz, who heads a firm in Parsippany.
Gorth was injured on July 22, 2015. He was a passenger in a car owned by his employer, Dyer Insulation of Rockaway, at the time of the accident. The car in which Gorth was a passenger was on Stelton Road in South Plainfield.
The truck, owned by All Holding of Soudertown, Pennsylvania, and driven by Stutzman, struck another truck from behind, causing a chain reaction that resulted in Gorth’s car being struck, Lutz said.
As a result of the accident, the plaintiff sustained a broken back, torn labrum, aggravation of asymptomatic cervical disc herniations, and a vertebral osteomyelitis and discitis at the fracture site, which required multiple hospitalizations and extensive medical treatment, Lutz said.
Gorth, Lutz said, returned to work after a year, but eventually had to stop working because of continuing pain.
The award will be offset by a $100,000 workers’ compensation lien, Lutz said.
All Holding and Stutzman were the only defendants in the lawsuit, Lutz said.
All Holding’s carrier, Liberty Mutual Insurance Co., retained Nicole Hollingsworth of Viscomi & Lyons in Morristown to represent All Holding and Stutzman. Hollingsworth didn’t return a call about the case.
Middlesex County Superior Court Judge Melvin Gelade presided over the four-day trial.
11. Jury Awards $6M in Case Alleging Improper Intubation
In Howlen v. Capital Health Systems, a Mercer County jury on Sept. 26 awarded the family of a 20-year-old Trenton woman who died several days after giving birth to her child more than $6 million as compensation.
The woman, Toniquea Rivers, died on Feb. 3, 2012, days after giving birth to her son Zion Mikel Howlin Rivers, said the family’s attorney, Joshua Van Naarden.
Rivers collapsed at her parents’ home and was taken to St. Francis Medical Center in Trenton by a Capital Health Services ambulance, said Van Naarden, of Ross Feller Casey in Philadelphia.
The lawsuit alleged that an untrained paramedic improperly intubated Rivers, and that she lost oxygen supply to the brain. She was pronounced dead at the hospital, Van Naarden said.
The defendant asserted qualified immunity, but unsuccessfully, Van Naarden said.
The jury awarded Rivers’ family $1.68 million for her pain and suffering, $1.12 million for loss of household services, $873,193 for loss of future earnings, and $332,645 for loss of fringe benefits, Van Naarden said.
The jury awarded the child an additional $2 million, he said.
Capital Health Systems, which was self-insured, was the sole defendant against which damages were awarded. The company retained Carolyn Bohmueller of O’Brien & Ryan in Plymouth Meeting, Pennsylvania. She did not return a call about the case.
Superior Court Judge Douglas Hurd presided over the three-week trial.
12. Suit Over On-the-Job Fall Settles for $5.35M in Middlesex
A foreman for a plumbing, heating and air conditioning company who was seriously injured in a job site fall agreed to a $5.35 million settlement in his Middlesex County suit, Ward v. Aurolife Pharma, on March 16.
Brian Ward, now 60, was working at Aurolife Pharma USA in Dayton on Sept. 3, 2014, when he plunged 20 feet through a mezzanine onto the floor below. Ward was installing industrial equipment at the facility when he fell through an unguarded, 6-by-6-foot hole in the mezzanine floor, the suit alleged.
Ward fractured his pelvis, requiring implantation of a plate and screws. He also had fractures of the lumbar spine, ribs and left foot, and sustained a traumatic brain injury. He now walks with a limp and has been unable to return to his job as a construction foreman, and his lost wage claim was roughly $1 million, said plaintiff lawyer Barry Eichen of Eichen Crutchlow Zaslow in Edison.
Eichen said Aurolife Pharma, a drug manufacturer, was in charge of the hiring of subcontractors. Aurolife and general contractor MWK & Co. each claimed the other was responsible for safety on the site, including providing protective measures around the open hole, according to Eichen. The defendants also argued that Ward was responsible for his own safety and was negligent because he had been on the mezzanine 10 times prior and was aware of the unsafe condition of the unprotected hole, said Eichen, who was assisted by Christopher Conrad of his firm.
The settlement calls for Aurolife Pharma to pay $4 million, while MWK agreed to pay $850,000, and TriSteel Fabricators will pay $500,000.
Aurolife Pharma was represented by Randy Faust of Faust, Goetz, Schenker & Blee in Livingston.
MWK & Co. was represented by Michael Marrone of McElroy, Deutsch, Mulvaney & Carpenter in Morristown.
Tri-Steel Fabricators was represented by Kristin Vizzone of Stephen Gertle‘s office in Wall.
Faust, Marrone and Vizzone did not return calls about the case.
13 (Tie). Jury Awards $5M Compensatory in Ethicon Mesh Case
A Bergen County jury returned a $15 million verdict against Johnson & Johnson subsidiary Ethicon in a suit over alleged defects in its Prolift pelvic repair product, including $5 million in compensatory damages.
The verdict, for $4 million in compensatory damages to plaintiff Elizabeth Hrymoc, $1 million in compensatory damages to her husband, Tadeusz Hrymoc, and $10 million in punitives, was awarded after a three-week trial before Superior Court Judge Rachelle Harz.
Johnson & Johnson has promised to appeal and says it stands by its pelvic mesh products.
Thursday’s verdict is the second in a bellwether pelvic mesh case in New Jersey. It follows another for $11 million that was awarded in 2014. That verdict was later upheld by the Appellate Division, and the Supreme Court declined to take up the case.
Hrymoc, 71, who suffered vaginal pain after surgery to implant the product in 2008, is unable to have sexual intercourse or undergo a pelvic exam as a result of her injuries, said plaintiffs lawyer Adam Slater of Mazie Slater Katz & Freeman in Roseland.
The jury found that the Prolift pelvic repair system was defectively designed and failed to contain adequate warnings, and that the TVT-O system for treatment of stress urinary incontinence failed to contain adequate warnings. The punitive damages were awarded based on a finding that the Prolift design and warnings demonstrated willful and wanton disregard for the health and safety of the plaintiff. The jury, including one attorney and numerous others with master’s degrees, was “very sophisticated,” Slater said.
The resolution of the Hrymoc case means that “every single important legal ruling has been made, so trying these cases going forward is going to be very streamlined,” according to Slater. Those legal issues include what evidence is admissible on particular issues, and what jury charges are allowed, he said.
“Those orders now apply in every case. It’s going to be much easier and much more efficient. That’s very, very significant,” said Slater.
Also of note is that punitive damages have been awarded in both New Jersey Prolift suits, which requires a finding, by an enhanced, clear-and-convincing evidence standard, that the defendant showed a wanton disregard for the plaintiffs’ safety and health, Slater said.
Johnson & Johnson spokeswoman Mindy Tinsley said in a statement in response to Thursday’s verdict: “Ethicon intends to appeal this verdict, as we believe the evidence showed that the company appropriately informed surgeons of the pertinent complications and that the products were properly designed and studied.”
Tinsley’s statement continued: “All surgeries to treat pelvic organ prolapse and stress urinary incontinence have risks, including Prolift and TVT-O, and Ethicon is always concerned when a patient experiences surgical complications. The majority of surgeons around the world continue to agree that midurethral slings like TVT-O are a suitable first line surgical option to treat stress urinary incontinence. Many surgeons also continue to support the use of pelvic mesh to treat prolapse as an important treatment option for women because the vast majority of women experience improvement in their symptoms and quality of life. Ethicon stands by, and will continue to defend, our pelvic mesh products in litigation.”
Slater was joined at trial by his firm’s David Mazie, David Freeman, Cheryll Calderon, Karen Kelsen and David Estes.
Ethicon’s lawyers included William Gage of Butler Snow in Ridgeland, Mississippi; Judith Wahrenberger of Ruprecht Hart Weeks Ricciardulli in Westfield; Kelly Crawford of Riker Danzig Scherer Hyland & Perretti in Morristown; and Philip Combs of Thomas Combs & Spann in Charleston, West Virginia.
13 (Tie). Fatal Bus vs. Pedestrian Accident Yields $5M Settlement
The family of a Fort Lee woman who was struck and killed by a bus while attempting to cross the street is to receive $5 million as compensation in a Bergen County suit, Kan v. Rainbow Transportation.
The family of Leyla Kan, the deceased woman, and American Alternative Insurance Co., the carrier for defendant Rainbow Transport of Bergenfield and its driver, Esperanza Jaramillo, agreed to the settlement on Feb. 9, said the family’s attorney, Englewood solo Robert LInder.
Kan was struck and killed on Aug. 7, 2014, as she was walking across Broad Avenue at Fort Lee Road in Leonia, in a marked intersection, Linder said.
Kan was struck by the school bus and dragged 71 feet. She was pronounced dead at the scene, Linder said.
The victim’s family filed a wrongful death and survivorship claim against Rainbow Transport and its driver in Bergen County Superior Court. The case had been managed by Superior Court Judge Rachel Harz, but had not yet been scheduled for trial. It settled during discovery.
American Alternative was represented by Danielle DeGeorgio, of Faust Goetz Schenker & Blee in Livingston. She did not return a call about the case.
Kan was the owner and operator of the Picnic Café, a restaurant in Palisades Park. Kan is survived by her husband, Oktay Kan; her son, Atilla Kan; and her grandson, Tristan Kan, Linder noted.
13 (Tie). Middlesex County Auto Case Ends With $5M Verdict
In Tortorella v. Ong, a Middlesex County jury on April 20 awarded a Scotch Plains woman $5 million in damages as compensation for spinal injuries she sustained when her car was rear-ended.
The jury, after deliberating 45 minutes, awarded the damages to plaintiff Sandi Tortorella, now 43, at trial before Superior Court Judge Thomas McCloskey, according to her attorney, Nicholas Leonardis of Stathis & Leonardis in Edison. The trial came after Tortorella rejected a pretrial offer of $500,000, he said.
Tortorella was injured on Feb. 19, 2015, as she was stopped at a red light at the intersection of Old Raritan Road and Woodland Avenue in Edison, and her car was struck from behind by a car driven by defendant Tiyun Ong of Short Hills, Leonardis said.
Tortorella sustained herniated discs at the cervical level, which required spinal fusion and the insertion of screws and plates, Leonardis said.
The suit claimed the injuries are likely to result in further disc degeneration, which will require additional surgery in the future, he said.
The damages awarded were all for pain and suffering, he noted.
Ong’s carrier, State Farm Insurance Co., retained Stephen Czeslowski of Campbell, Foley, Delano & Adams in Toms River. He didn’t return a call seeking comment.
16. $4.8M Settlement Reached in ‘Melrose Place’ Actress’ Fatal Drunken-Driving Crash
The family of a woman who was killed in a drunken-driving crash with former “Melrose Place” actress Amy Locane has agreed to a $4.8 million settlement of her suit in federal court.
Under the terms of the settlement, the hosts who allegedly served Locane drinks at a barbecue shortly before the crash, Rachel and Carlos Sagebien, will pay $3.3 million and Locane and her husband, Mark Bovenizer, will pay $1.5 million. The settlement was reached in early October, following a Sept. 25 ruling by U.S. District Judge Anne Thompson denying summary judgment motions by the Sagebiens, and Bovenizer.
Court records said the case was scheduled for administrative termination on Dec. 1, pending consummation of undisclosed settlement terms. The terms were disclosed by a lawyer familiar with the settlement proceedings. The Sagebiens’ settlement will come from their homeowners’ and umbrella policies with Chubb and Bovenizer’s from his auto and umbrella policies with Travelers, according to this person, who spoke on condition of anonymity.
The litigation stems from a June 27, 2010, crash on a rural road in Montgomery Township in which Locane, driving 53 mph in a 35-mph zone, struck a car occupied by Fred and Helene Seeman. Helene Seeman died in the crash and her husband, who was driving, was seriously injured.
The couple’s car was pulling into their driveway when the crash occurred, and their son, Curtis, then 17, came out of the house and witnessed his mother’s last moments.
On the day of the fatal crash, Locane performed in a play at a theater in Hopewell, then had two glasses of wine and part of a third, according to her testimony. She then went to the barbecue at the Sagebien home in Montgomery.
She testified that she had two or three glasses of wine at the barbecue, where she stayed for about 90 minutes. Both Carlos and Rachel Sagebien testified that Locane appeared intoxicated. Locane testified that she and Bovenizer, who had arrived in a separate car, made plans to leave together but after she used the bathroom she found that he had taken the couple’s two children and left without her.
Locane left the party in her husband’s Chevrolet Tahoe, then had a minor collision in Princeton. After speaking to the other driver, she left the accident scene and headed down Cherry Hill Road, where she collided with the Seeman vehicle.
Locane’s blood-alcohol level after the accident was .268, more than three times the legal limit of .08. She pleaded guilty to third-degree vehicular homicide and assault by auto and served two and a half years in jail.
Thompson denied the Sagebiens’ motion for partial summary judgment in September after finding that the question of whether they truly believed she would not drive herself home was a matter for a jury to decide. The judge likewise found the question of whether Bovenizer knew or should have known that Locane was drunk when he entrusted to her his car keys and access to his car was a jury question.
The civil suit, filed in December 2010, moved slowly because of a concurrent criminal case against Locane. A stay of the criminal case was lifted in December 2012 after two years.
John Lamastra of Kirmser, Lamastra, Cunningham & Skinner, house counsel for Chubb, who represented the Sagebiens, did not return calls about the case.
The lawyer for Locane and Bovenizer, Linton Turner Jr. of Mayfield, Turner, O’Mara & Donnelly in Cherry Hill, declined to discuss the case through an assistant.
The plaintiffs were represented by Raymond Silverman of Parker Waichman in New York. A person answering the phone there said Silverman would not comment on the case.
Locane was ordered to face sentencing for her role in the crash after a 2016 Appellate Division ruling said her sentencing judge, Robert Reed of Superior Court in Somerset County, failed to provide compelling reasons for his decision to downgrade her sentence from the mandatory minimum. The appeals court said Locane must be resentenced on her charges, which include second-degree vehicular homicide and third-degree death by auto.
The statute requires a defendant convicted of second-degree vehicular homicide to serve a minimum term of imprisonment of three years, even when sentenced as a third-degree offender. The sentencing judge downgraded the sentence based largely on the impact Locane’s absence would have on her two young children, one of whom has Crohn’s disease. Fred Seeman angrily protested the sentence as too lenient when it was delivered.
But Reed refused to revise the sentence when the case was remanded to him in January.
Locane, 46, has appeared on the large and small screens, including the 1990 movie “Cry Baby,” where she appeared opposite Johnny Depp. In 1992 she was cast in the television series “Melrose Place,” where she appeared in 13 episodes.
17. Spinal Surgery Complications Lead to $4.5M Verdict in Union
A Union County jury awarded $4.5 million on April 6 in a medical malpractice suit, Ayala v. Friedlander, M.D., over errors in a man’s spinal surgery.
But the plaintiff, Carlos Ayala, will recover $2.25 million because of a high-low agreement that the lawyers entered after closing arguments. The high was $2.25 million, and the low was $525,000.
Ayala’s suit claimed a March 2011 lumbar fusion surgery performed by neurosurgeon Marvin Friedlander and orthopedic spine surgeon Douglas Bradley deviated from the accepted standards of care because a pedicle screw was placed in the wrong location. The suit also claimed Friedlander deviated from the standard of care after surgery by failing to make timely diagnosis and treatment of the mispositioned screw.
According to the plaintiff’s lawyer, Paul da Costa of Snyder Sarno D’Aniello Maceri & da Costa in Roseland, the errant screw caused the plaintiff to develop pain in his right leg, numbness in his right calf and weakness in his right toes because it was impinging on the L5 nerve root. Friedlander did not order a CT or MRI until January 2013, when the pedicle screw was found to be in the wrong position and a failed fusion was diagnosed, the suit claimed. Ayala underwent a revision surgery in May 2013.
During a four-week trial before Superior Court Judge Robert Mega, the defense emphasized the fact that Ayala had a serious work injury in June 2008 while working as a forklift mechanic, which resulted in a significant L5-S1 disc herniation and lower back pain, da Costa said. The defense also emphasized that Ayala was not able to return to full duties as a forklift mechanic before the fusion surgery; argued that all proper procedures were used during the fusion surgery; and contended that the plaintiff never had the typical symptoms that would result when a pedicle screw was impinging on a nerve root, he said. Rather, the defense claimed that the right lower extremity symptoms were likely caused by a traction injury from the fusion surgery.
The jury found both defendants liable, allocating 75 percent of the fault to Friedlander and 25 percent to Bradley. The jury awarded $2.4 million for pain and suffering and loss of enjoyment of life; $2 million for lost income, and approximately $123,000 for medical expenses.
Under the high-low agreement, each doctor is to pay half of the $2.25 million, da Costa said.
Louis Ruprecht of Ruprecht, Hart, Weeks & Ricciardulli in Westfield, for Bradley, confirmed the verdict and the high-low settlement.
Friedlander’s lawyer, Michael Heron of William Brennan‘s office in Shrewsbury, did not respond a call about the case.
18. Suit Over Mother’s Postnatal Death Settles for $4M in Monmouth
The family of a woman who died after childbirth agreed to a $4 million settlement in their Monmouth County medical malpractice suit, Estate of Bloomstein v. Vaclavik, on April 4.
When Lauren Bloomstein was admitted to Monmouth Medical Center on Oct. 2, 2011, for the birth of her first child, her blood pressure was elevated, but obstetrician John Vaclavik did not take any steps to alleviate it, according to plaintiff lawyer Robert Adinolfi. After she gave birth, her blood pressure continued to rise, and she developed pre-eclampsia, which progressed into a liver disorder called HELLP syndrome, according to Adinolfi. HELLP syndrome (hemolysis, or ruptured red blood cells; elevated liver enzymes; and low platelet count) is a potentially fatal complication of pregnancy.
Bloomstein, 31, died of seizures eight hours after delivering a healthy infant. The suit claimed her condition would have stabilized if she had been treated with hypertension drugs. The suit named attending obstetrician John Vaclavik and Monmouth Medical Center as defendants.
Defense experts testified that Bloomstein’s blood tests for eclampsia came back negative, and the rapid progression of HELLP syndrome made her death unavoidable, Adinolfi said
The settlement calls for Vaclavik and Monmouth Medical Center to pay $2 million each, he said.
Bloomstein’s estate was represented by Adinolfi, of Gill & Chamas in Woodbridge, who was assisted by the firm’s Peter Chamas.
Vaclavik’s lawyer, Beth Hardy of Farkas and Donohue in Florham Park, and the hospital’s lawyer, Lauren Zalepka of Ronan, Tuzzio & Giannone in Tinton Falls, did not return calls about the case.
19. Worker Injured in Explosion Settles for $3.69M in Middlesex
An electrician’s assistant seriously injured in an explosion while making repairs at a manufacturing facility agreed to a $3.69 million settlement in his Middlesex County suit, Shallo v. Park Electric, on July 24.
The suit claimed that Robert Shallo, now 51, was assisting with electrical repairs at a warehouse in South Plainfield on Feb. 20, 2014, when he was hit with an arc flash explosion. He suffered burns over 30 percent of his body, including his face and torso. Shallo has received numerous skin grafts and will require additional surgeries. His injuries were so severe that he was placed in a medically induced coma for two months after the accident, said his lawyer, David Mazie of Mazie Slater Katz & Freeman in Roseland.
Shallo is unable to work or drive a car, has poor balance and suffers pain and anxiety, Mazie said.
At the time of the injury, Shallo was working under the supervision of Brad Kleinman, who had performed at least 15 jobs at the same location, according to Mazie. Kleinman said he was under instructions not to restrict access to the work area or turn off power to the panel because it would disrupt business, Mazie said.
Richard Dunn, vice president for operations at defendant Paramount Property Management, testified that Shallo would not have been injured if he had been given protective gear, and Dunn also said the explosion would have been prevented if power had been turned off to the outlet, according to Mazie.
Federal inspectors found that failure to provide Shallo with protective gear and failure to turn off the power to the panel were violations of the Occupational Safety and Health Act. In addition, the local fire marshal cited Paramount for failing to obtain a work permit for the job that Shallo and Kleinman were performing, Mazie said.
Shallo sued Paramount; the building tenant, LANY Group; and two contractors working at the site, Park Electric and Associated Electrical Solutions Group. Mazie said it was unclear whether Shallo worked for Park Electric or Associated, which were controlled by the same family. Each claimed to be Shallo’s employer and thus entitled to the workers’ compensation bar.
Shallo claimed that both Paramount and LANY were contractually obligated to supervise and inspect any work performed on the premises by contractors. But Paramount’s duty, as an exclusive property manager, was nondelegable under the Supreme Court’s 1999 ruling in Alloway v. Bradlees, so whether LANY also owed a duty was a question of apportionment, not liability, said Mazie. Further, LANY admitted it was required to stop the electrical workers if it observed any unsafe working conditions, but failed to do so, Mazie said.
According to Mazie, the defendants claimed that a screwdriver that was found at the accident site had been poked into the electrical panel by Shallo, causing the explosion and injuries, an assertion that Shallo denied.
The parties reached a settlement after mediation with Ned Rosenberg, a former Superior Court judge with Trenk, DiPasquale, Della Fera & Sodono in West Orange. Under the settlement, Paramount and LANY each pay $1.5 million, Park Electric is paying $650,000, and Associated Electric will pay $35,000.
Also representing Shallo were David Freeman and David Estes of Mazie Slater.
None of the defense lawyers returned calls about the case.
Paramount’s lawyers were Jeffrey O’Hara of Connell Foley in Newark and William Paulus of Gerald Green‘s office in Princeton. LANY Group was represented by Matthew Mahoney of Linda Baumann‘s office in East Windsor. Park Electric was represented by Michael Kearns of Hoagland, Longo, Moran, Dunst & Doukas in New Brunswick. Associated Electrical was represented by Aldo Russo of Lamb Kretzer in Secaucus.
20. Middlesex Jury Awards $3.55M in Dram Shop Case
In Grecco v. McGowan, a Middlesex County jury last month awarded $3.55 million, including $50,000 in punitive damages, to a passenger in a car struck by a drunken driver.
On Oct. 1, 2011, Katherine Grecco was riding in a vehicle driven by her boyfriend, Peter Tyliczka, on Clifton Street in Westfield. The vehicle was traveling through the intersection with Tice Place when another motorist, Robert McGowan, traveling on Tice Place, failed to stop at a stop sign, striking Tyliczka’s vehicle. Tyliczka, 69, was killed, while Grecco, then 61, sustained a severe head injury leading to a brain bleed, as well as fractures to her right arm, left ankle, ribs and collar bone, said her lawyer, Craig Rothenberg of Rothenberg, Rubenstein, Berliner & Shinrod in Clinton.
Grecco has ongoing cognitive issues and was unable to return to work as a secretary, according to Rothenberg.
McGowan, of Stamford, Connecticut, 32, was later charged with driving under the influence of alcohol, pleaded guilty to criminal charges in August 2016, and is presently serving a prison sentence, according to news reports and electronic records.
McGowan had consumed alcohol at two area restaurants in the hours leading up to the crash: The Jolley Trolly in Westfield and The Office in Cranford, according to Rothenberg, who said McGowan had three pints of high-alcohol beer at the first establishment, and one and a half more pints of high-alcohol beer at the second.
The suit named McGowan, as well as Jolley Trolly and The Office, which were under common ownership. Counts against the Jolley Trolly were withdrawn, Rothenberg said.
The matter was tried in Middlesex County, of which Tylczika was a resident.
At trial before Superior Court Judge Phillip Paley, the defense contended that Grecco’s cognitive issues were attributable to Parkinson’s Disease rather than the accident injuries, and challenged the severity of her orthopedic injuries, according to Rothenberg. The Office disputed claims that McGowan was visibly intoxicated when he was served alcohol there. The defense also raised a seat belt defense, and the parties disputed whether Grecco was wearing a seat belt, he said.
The jury on Feb. 8 apportioned 60 percent of the fault to McGowan and 40 percent to The Office, rejected the seat belt defense, and awarded Grecco $3.5 million. At a subsequent punitive damages trial on Feb. 22, the jury awarded her an additional $50,000, against McGowan.
After the trial, The Office agreed to settle for an amount equal to its share of the verdict, $1.4 million plus interest, Rothenberg said. He noted that claims brought on Tyliczka’s behalf were settled, though he didn’t reveal the terms.
Rothenberg tried the case along with Dean S. Pashaian of the same firm.
Joseph Kreoll of Cruser, Mitchell, Novitz, Sanchez, Gaston & Zimet in Woodcliff Lake, for McGowan, and Emery Mishky of Margolis Edelstein in Berkeley Heights, for The Office, didn’t respond to calls seeking comment.