Florida Supreme Court Rules Smoker with Lung Cancer Entitled to Punitive Damage Claims

engle punitive damages pic 2

The decision is a victory for “Engle progeny” plaintiffs, who were allowed to file individual lawsuits against the tobacco companies.

The Florida Supreme Court has allowed a widow of a man who died from lung cancer to seek punitive damages on strict liability and negligence claims in her Engle progeny wrongful death lawsuit against R.J. Reynolds Tobacco Co.

The decision resolved an appellate court split on the issue, now allowing individual members of the Engle class action to seek punitive damages on all claims properly raised.

The decision is a victory for “Engle progeny” plaintiffs, who were allowed to file individual lawsuits against the tobacco companies when the Florida Supreme Court decertified the original Engle class and overturned the $145 billion verdict.

The court permitted individual members to use the jury findings from the class action ruling, maintaining a res judicata effect for individual member’s cases.

Progeny plaintiff damage claims

Lucille Soffer brought her individual wrongful death action against R.J. Reynolds asserting the four causes of action pled in the Engle class action of negligence, strict liability, fraud by concealment, and conspiracy to commit fraud.  Soffer amended her complaint to add a demand for punitive damages.

During the jury charge conference, RJ Reynolds asserted, and the trial court agreed, that the jury should be instructed that only the fraudulent concealment and conspiracy counts could be considered for punitive damages based on the procedural posture of the Engle case.

In the Engle class action, plaintiffs initially sought punitive damages on the fraud charges, and later asked for leave to amend the complaint to include punitive damages for negligence and strict liability.  The court denied the motion as untimely.

The trial jury did not award punitive damages based on its jury instructions, but a judgment of $2 million was entered for Soffer.  She appealed, asserting the court erred in prohibiting punitive damages on the negligence and strict liability counts.

The First District Appeals Court upheld the trial court decision, finding that Engle progeny plaintiffs “wear the same shoes” as the Engle plaintiffs and could not bring other claims and remedies that had not been timely asserted as part of the Engle class action.

The Second District heard a similar Engle progeny case, but it determined that while Engle progeny plaintiffs benefit by the res judicata effect of the Engle class action findings, they are not precluded from seeking a remedy barred as untimely for “mere procedural deficiencies.”

Florida Supreme Court resolves District Court split

Soffer appealed the First District Court’s ruling, and the Florida Supreme Court found in her favor.  The Court ruled that Soffer, and all Engle progeny plaintiffs may seek punitive damages on all properly pled counts in individual actions.

The court stated that the trial court’s denial of the motion to amend in the Engle class action was not based on the merits of the request, but was based on the procedural posture at the time since the request was untimely.

Further, the procedural posture changed once the court vacated the entire punitive damages award of $145 billion, the related findings on punitive damages were vacated along with it, entitling each progeny plaintiff to punitive damages in his individual lawsuit.

The court also stated that a demand for punitive damages is not a “separate and distinct cause of action,” rather it is dependent on the existence of an underlying claim.

Progeny entitled to punitive damage claim

Finally, the court reasoned that since the burden to establish entitlement to punitive damages is on the plaintiff to prove by clear and convincing evidence that the defendant’s conduct causing the damage was either intentional or grossly negligent, claiming punitive damages does not vary depending on the underlying legal theory of the claims.

The ourt ruled that its decision on the res judicata effect of findings addressed in Engle have no application to claims for punitive damages sought by Engle progeny plaintiffs, and that there was “simply no basis to conclude that the procedural posture of Engle would bar an Engle progeny plaintiff.

The case is Lucille Ruth Soffer v. R.J. Reynolds Tobacco Company, case no. SC13-139, in the Supreme Court of Florida.

Taxotere Chemotherapy Drug Maker Failed To Disclose Risk of Permanent Hair Loss

taxotere hair loss

Sanofi-Aventis used misleading marketing to indicate that temporary hair loss could occur, but would grow back.

Cancer survivors around the country are filing lawsuits against drug manufacturer Sanofi-Aventis for its failure to warn about the risk of permanent hair loss with the use of its chemotherapy drug Taxotere.

The drug, commonly referred to as docetaxel, is a part of a family of drugs referred to as taxanes, which are used as chemotherapy agents that prevent cancer cells from growing and dividing.  Taxanes are used for the treatment of breast cancer, lung cancer, advanced stomach cancer, head and neck cancer, and metastatic prostate cancer.  There are several brands of taxanes that exist, including several generic forms.

The Taxotere lawsuits claim Sanofi-Aventis failed to warn patients and physicians of the increased risks of permanent hair loss, or permanent alopecia, even after treatment ends.  Sanofi-Aventis designed Taxotere to have an increased potency as compared to other taxanes, claiming that it was novel and merited for patent protection.  Because of its market exclusivity, Sanofi-Aventis was able to restrict competition and earn billions of dollars in revenues.

Marketed as superior to other chemo drugs

The manufacturer marketed Taxotere as superior to other treatments because of its increased potency.  The increased potency leads to an increased toxicity that is directly related to the increased adverse side effects, including permanent hair loss.

Although alopecia is a common side effect related to chemotherapy, Sanofi-Aventis used misleading marketing to indicate that temporary hair loss could occur, but would grow back.

One lawsuit alleges that Sanofi-Aventis knew of the increased risk of permanent hair loss because it disclosed the risks to patients and regulatory agencies in other countries, but failed to disclose the information in the United States.

Manufacturer aware of risk

Sanofi-Aventis further failed to disclose the results of additional studies it conducted that provided new facts about the risks associated with Taxotere use.

Research findings published by the National Cancer Research Institute found that 10-15 percent of patients who received Taxotere suffered from permanent hair loss.  Another study found that severe alopecia – an emotionally distressing side effect among female patients – was a reported complication of treatment with the drug.

The lawsuit states the Taxotere manufacturers “prayed on one of the most vulnerable group of individual’s at the most difficult time in their lives” and earned billions of dollars of revenues at the expense of “unwary cancer victims simply hoping to survive their condition and return to a normal life.”

Safer options available

The lawsuits state that if Sanofi-Aventis had properly warned patients and physicians of the increased risk of permanent alopecia by using Taxotere during chemotherapy, they would have been prescribed a different chemotherapy drug called Taxol, which is more effective than Taxotere, and does not result in permanent hair loss.

At this time, there has not been a recall of Taxotere, however the U.S. Food and Drug Administration acknowledged that Taxotere can result in permanent hair loss and required that the manufacturer place a warning on the label in December 2015.

Individual lawsuits have been filed, but there has not been any large group settlements involving Taxotere.  It is likely that the individual lawsuits will be combined in a multi-district litigation (MDL) case.

Grounds for filing a Taxotere permanent alopecia lawsuit include;

  • Failure to warn because Sanofi-Aventis failed to label its product or warn patients or physicians about the risks of permanent alopecia.
  • Fraudulent misrepresentation because Taxotere manufacturers falsely represented that it rigorously tested the drug and determined it was safe for its intended use.
  • Misleading marketing because Sanofi-Aventis was aware that Taxotere increased the risk of permanent alopecia, but made false and misleading statements that it was a superior drug as compared to other similar drugs, which do not cause permanent hair loss.
  • Concealed knowledge of hair loss risk because Sanofi-Aventis did not disclose the information they had on the drugs risk for permanent hair loss in the United States, although they included the warnings to patients and regulatory agencies in other countries.


Harvested Marijuana Covered Under Commercial Liability Insurance

marijuana insuranceA Colorado District Court has ruled that a commercial general liability insurance policy covers marijuana plant buds harvested for sale by a retail medical marijuana business and growing facility.

“Mother plants” that are not cultivated to produce harvestable marijuana, but instead provide the supply through genetically identical clones of each strand of marijuana, are not covered under the policy.

Green Earth Wellness Center (Green Earth) is a retail medical marijuana grower and distributor in Colorado Springs, Colorado.  It obtained a commercial general liability insurance policy from Atain Specialty Insurance Company (Atain).  The policy became effective on June 29, 2012.

Claims for marijuana damage

A week before the policy commenced, a wildfire started near Colorado Springs in the Waldo Canyon and eventually spread to the city.  The wildfire smoke and ash seeped into the Green Earth’s ventilation system, destroying its marijuana plants.  Green Earth submitted a claim to Atain for the damage to the plants.  After a months-long investigation, Atain denied the claim finding that the damage had occurred prior to the policy effective date and that Green earth misrepresented the state of the loss and failed to mitigate the damages.

The following year, burglars broke into the facility through its roof and ventilation system, stealing marijuana plants.  Green Earth filed a claim for the damage to the roof and ventilation system caused by the burglary, but not for the loss of the marijuana plants.  Atain denied the claim because its adjustor determined the cost of the damage was less than the policy deductible.

Insurance company contraband exclusion

Atain argued that it was not required to cover Green Earth’s loss of harvested marijuana plants caused by the wildfire smoke damage because its policy contains an exclusion of coverage for contraband or property used in the course of illegal transportation or trade.  Atain further argued that federal public policy required the denial of coverage of marijuana plants for sale.

The court defined the term contraband using the common ordinary meaning of forbidden possession.  The court pointed out the federal government’s ambivalence towards the enforcement of the controlled substance act in circumstances where the possession and distribution of marijuana are consistent with a well regulated state law.  The court rendered the contraband exclusions ambiguous because of the difference between federal and state law.

The court applied state law, finding the medical marijuana business legal and not contraband.  The court also looked to the policy quote and pre coverage documents, which clearly indicated the parties mutually intended to include coverage to the harvested plants and inventory.  Atain was well aware of Green Earth’s business, and at the time of extended coverage, knew that federal law prohibited the business.  The court refused to rule on the public policy issue asserted by Atain and ruled that its only function was to “apply Colorado law” and in doing so, found that the harvested marijuana for sale is covered by the insurance policy.

Insurance company denies coverage

Green Earth brought a lawsuit against Atain for breach of insurance contract and for unreasonable delay in payment.  Atain filed a motion for summary judgement claiming that the benefit to the marijuana plants was barred by the “growing crops exclusion” in the policy and that the damage to the roof claim was barred by the policy’s theft exclusion. Atain also argued that its contraband exclusion in the policy coverage applies to marijuana.

Atain further filed motions for the court to determine if it is legal for an insurance policy to pay for the loss of marijuana in light of the Colorado Medical Marijuana Act, federal law, and federal public policy.  Green argued that coverage is warranted because its marijuana plants constitute stock under the policy terms and were not excluded by the growing crop or contraband exclusions.

Policy excludes “growing crops”

For the wildfire damage claims, the court assessed the “mother plants” used for various marijuana strain seeds and the plants that are harvested for sale, separately.  Green argued coverage was warranted because the growing crops exclusion was ambiguous and marijuana plants grown indoors constitute stock under policy terms.

The court relied on Colorado State law and determined that stock is considered merchandise held for sale and raw materials used for the process of finished goods.  The court said that stock could cover growing plants, but the Atain policy specifically excludes growing crops.  As further support, the court looked to the original insurance quote issued to Green Earth that included a provision that coverage did not extend to growing or standing plants.

The court found Green Earth’s arguments “elaborate” and used the policy quote and temporary binder contract to resolve any ambiguity, finding that the phrase “growing crops” contained no inherent ambiguity, and that Atain’s quote and contracts unambiguously encompass mother plants and are not covered by the policy.

Case remanded to trial

The court denied Atain’s motions for summary judgement on the breach of contract and delay in payment claims, finding that a dispute of fact existed as to when the policy coverage commenced and when the damages from the wildfire occurred.

The court further remanded the issue of the theft claims to trial because the policy provides coverage for building damage caused by a burglar breaking in or exiting the facility.  Green Earth provided surveillance footage of the burglar causing damage and a general contractor’s quote for repairs estimated at $8,000.  Atain only provided a quote from its own adjuster, who priced the repairs at $2400, just $100 shy of the $2500 deductible amount.


The case is The Green Earth Wellness Center, LLC v. Atain Specialty Insurance Company, Civil Action no. No. 13-cv-03452-MSK-NYW, in the U.S. District Court for the District of Colorado.



Miranda Warning Never Given, Yet Appeals Court Affirms Use of Incriminating Statements in Trial

no Miranda

The Wisconsin Court of Appeals affirmed a man’s burglary conviction that was based on incriminating statements he made to police without receiving a Miranda warning.

The court ruled that his confession was sufficiently attenuated from the arrest that occurred over a span of several minutes.

Police found Brian Harris in the basement of a vacant townhome. Officers handcuffed him and interrogated him while in the basement.  The officers testified that they engaged in “basic questioning” about who Harris was and why he was in the building.

After officers handcuffed and questioned Harris, they also looked around the basement and discovered copper piping on the ground along with blades, a bolt cutter, and crowbars in a duffle bag.

Moved from basement to police car

The officers walked Harris outside and placed him into the back of a squad car where an officer took his “mugshot.”  The officer then attempted to get in contact with the homeowner and was completing paperwork when Harris told him that he had been homeless for seven years and that he was going to sell the copper piping for money for food.

Harris was then brought to the Kenosha county jail where he made incriminating statements to a detective, who also failed to give Harris a Miranda warning.  The detective asked Harris if he would go with him for an interview, and testified that Harris responded “something to the effect that they caught me, what’s the point.”

Before trial, Harris filed a motion to suppress the statements, claiming his Fifth Amendment right against self-incrimination was violated when police failed to give him a Miranda warning.  The circuit court denied the suppression and allowed his comments to be used a trial.  A jury found Harris guilty of burglary, possession of burglary tools, criminal damage, and criminal trespass.  Harris appealed the conviction.

The Court of Appeals affirmed the conviction, agreeing with the circuit court’s denial of Harris’ motion to suppress because officers were not interrogating Harris at the time he made the incriminating comments.

The state conceded that the officer engaged in a custodial interrogation, which required a Miranda warning, in the basement of the townhome, but that the interrogation and unlawful conduct ended by the time they placed Harris in the police car.

The Court did not discuss the officer’s failure to issue a Miranda warning and avoided any review of the legal precedent all together by and interpreted the officer’s questions as “routine” and “more focused on  assessing whether Harris” had a legal right to be in the home, brushing over the fact that Harris was  Harris was “almost immediately” handcuffed.

Court addressed attenuation of inculpatory statements

The Appeals court instead assessed how attenuated Harris’ comments were from the police officers unlawful custodial interrogation, considering the “the temporal proximity of the official misconduct and the confession, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct.”

The court found that the temporal proximity of the interrogation and Harris’ statements “tip[] in Harris’s favor,” but that there was presence of intervening circumstances, such as moving Harris from the basement to the squad car, meaningful enough to sufficiently attenuate his statements from the illegal interrogation.

The court found further that the questions asked of Harris were routine in order to determine if he lived there, and that no promises or threats were made to induce Harris’s comments.  The court affirmed that Harris’s comments were attenuated enough to be “purged of the taint of illegality” of a un-mirandized interrogation.

The court also affirmed that Harris’s statements made to the detective were properly admitted at trial.  The court wrote that the detective was not required to give a Miranda warning for asking Harris if he would go with the detective to be interviewed, instead “Harris chose to communicate ‘no’ to [the detective] in a foolish manner…that provided the State with additional evidence to be used against him at trial.”


The case is State of Wisconsin V. Brian I. Harris, case number 2014AP1767-CR, in the Court of Appeals of Wisconsin.

AZ Supreme Court Denies New Trial Despite Bailiff’s Improper Comment

bailiff jury

The Arizona Supreme Court affirmed a trial court decision to deny a new trial for a case in which the bailiff engaged in prohibited ex parte communication with the jury during deliberations.  The bailiff told the jury that an hour or two would be plenty of time for deliberations.

In a breach of contract trial between automotive parts retailer CSK, Inc., and electrical parts company, American Power Products, Inc., more than 24 witnesses, and 164 exhibits, one of which was more than 4,000 pages long, were introduced in a 12-day trial.  American Power Products sought more than $5 million in damages.

During closing arguments, American Power Products attempted to simplify the case, encouraging the jury to look specifically at “exhibit No. 412 Tab two” and avoid all other exhibits.  Counsel for CSK, Inc. suggested the jury reject all claims and counterclaims and award American the $10,733 it owed to American.

During jury deliberations, a juror asked the bailiff how long deliberations typically lasted.  The bailiff told the jury “an hour or two should be plenty.”  After deliberating for one to two hours, the jury returned a verdict for American of $10,733.

American hired an investigator, learned of the jury ex parte communication with the bailiff, and moved for a new trial based on improper jury conduct and the bailiff’s statement to the jury.

Motion for new trial denied

The trial court denied the motion for a new trial without conducting an evidentiary hearing.  American contended that the jury’s quick deliberation was “aberrational” and “kind of stunning.”

The court responded that it did not “think it was stunning at all,” and might have been in response to counsel’s failure to follow the court’s suggestion to simplify the case, which featured a confusing combination of contract provisions and technical jargon.

The court of appeals reversed and remanded the case, finding that the trial court erred by not holding an evidentiary hearing to determine how the jury interpreted the bailiff’s comments.

The Arizona Supreme Court reviewed the case finding it “raise[d] an issue of statewide importance.”  The court examined ex parte communications on a case-by-case basis, examining whether there was an improper communication and if so, if the communication was “prejudicial or merely harmless.”

Bailiff comment not prejudicial

The court determined that the bailiff’s communication with the jurors was improper, but that it had no bearing on the issues.  The court discussed that if the bailiff’s communication related to the evidence, ultimate issue, or applicable law in the case, or if it clearly interfered with the jury’s decision-making process, then the statements would be considered prejudicial.

In this case, the court found that the bailiff’s statement did not favor either party, and did not interfere with the jury’s decision-making process or deliberations.  The court reversed the court appeals’ decision and affirmed the trial court’s denial of a new trial.


The case is American Power Products, Inc. v. CSK Auto, Inc., case No.  CV-14-0261-PR, in the Supreme Court of the State of Arizona.

NLRB Orders Samsung to Stop Use of Employment Agreement Waiving Right to Sue

DontSignArbitrationAgreementThe National Labor Relations Board has ordered Samsung refrain from coercively interrogating employees and to cease the use of an agreement to arbitrate claims.

The mutual agreement required employees to waive their rights to pursue class or collective actions as a condition of employment.

The ruling comes after an employee started speaking with other employees about her plans to file a lawsuit against Samsung for unpaid wages.

Employee Jorgie Franks asked other employees if they would be interested in joining a lawsuit with her because they worked “too many hours compared to what they were being paid.”  Franks determined that based on the hours she was working and her income, she was being paid minimum wage.

Agreement condition of employment

Frank’s attempt to join other employees in a lawsuit against Samsung went against Samsung’s Mutual Agreement to Arbitrate Claims that required employees, as a condition of their employment, to waive their right to pursue any class or collective actions against Samsung, even through arbitration.

The agreement stated that neither Samsung nor the employee could litigate any action against the other except through individual arbitration.

The NLRB panel affirmed an administrative judge’s finding that Samsung’s practice of having new employees sign a Mutual Agreement to Arbitrate Claims as a condition of employment violated the National Labor Relations Act.

The NLRB ordered Samsung to rescind all mutual agreements and give notice to all employees that it will no longer maintain or enforce the Mutual agreements to Arbitrate claims.

Coercive interrogation

The NLRB also ordered that Samsung stop the practice of coercively interrogating employees about any protected concerted activities after finding that a human resources administrator unlawfully interrogated Franks on two occasion regarding her plans to file a lawsuit against Samsung and her discussion about it with other employees.

The human resource manager called Franks and informed her that other employees “felt very uncomfortable” with her conversation and told her not to talk to other employees about her concerns, and instead contact the human resource manager directly.

After Franks discussed the potential lawsuit with another employee, the human resource manager contacted her again by email asking if anything changed after their prior conversation and asking why she did not follow her request that she not discuss the lawsuit with other employees.

Franks testified that she was “nervous and tried to be vague in her response” and informed the manager that she was uncomfortable further discussing the situation.

Coerced interrogation

The NLRB determined that the human resource manager had interrogated Franks on both occasions, finding that the manager’s interrogation “coerce[d] the employee…so that he or she would feel restrained from exercising rights protected” by the National Labor Relations Act.

The NLRB panel determined that the manager’s conversation and email to Franks were “calculated to elicit a response from Franks” to gain information about her brining a collective action lawsuit.

The NLRB ordered Samsung to cease and desist from interrogating employees or interfering with or restraining employees from exercising their guaranteed right to act with other employees in protected concerted activities.  The Board further ordered Samsung reimburse plaintiff’s attorneys fees and litigation expenses.

The case is Samsung Electronics America Inc. f/k/a Samsung Telecommunications America LLC and Jorgie Franks, case number 12-CA-145083, before the National Labor Relations

Arizona Adopts Learned Intermediary Doctrine in Drug-Induced Lupus Case

drug induced lupusThe Arizona Supreme Court has reinstated a case brought by a young woman against Medicis Pharmaceutical Corporation for her diagnoses of drug-induced lupus that is allegedly a side effect from the acne medication Solodyn.

The court for the first time recognized the learned intermediary doctrine, which states that a manufacturer satisfies its duty to warn end users by giving appropriate warnings to the prescribing physician.

Amanda Watts completed her first round of treatment as a minor when she was prescribed the medication for 20 weeks. Two years later, Watts was prescribed the medication again for another 20 weeks.

Upon initially receiving Solodyn, Watts did not receive the full prescribing informational materials that indicated the long-term use of the medication had been associated with “drug-induced lupus like syndrome, autoimmune hepatitis, and vasculitis.”

No drug-induced lupus warning

Watts only received a “MediSAVE” card from her medical provider stating the safety of using the medication longer than 12 weeks was unknown.  Watts also received an insert that warned patients should consult a doctor if symptoms did not improve within 12 weeks.

After taking the medication for a second time, she was hospitalized and diagnosed with drug-induced lupus and hepatitis as side effects of Solodyn. Watts has recovered from the hepatitis, but doctors expect her to have lupus for the rest of her life.

Watts sued Medicis for consumer fraud and product liability under the Consumer Fraud Act (CFA) for the misrepresentation and omission of material information on the MediSAVE card.  She also sued Medicis for failure to warn her of the defective and unreasonably dangerous nature of long-term use of the medication.

Learned intermediary doctrine adopted

A trial court granted Medicis’ motion to dismiss.  The court of appeals vacated the dismissal and remanded the case.  The court found that the learned intermediary doctrine (LID) was no longer viable and incompatible with the Uniform Contribution Among Tortfeasors Act (UCATA).

The UCATA allows a tortfeasor to seek contribution from other tortfeasors, specifying how liability is apportioned among the them.  The court of appeals also found that the CFA was applicable to the case.

The Arizona Supreme Court granted review because the legal issues in the case are of “statewide importance and likely to recur.”  The high court had never before addressed the learned intermediary doctrine, but joined the majority of other states in adopting the Third Restatements expression of the LID.

The supreme court found the reasoning of the lower appeals court, that the LID was incompatible with the UCATA, to be flawed. The court wrote that the LID and the UCATA address two distinct issues and are not in conflict with each other.

The LID addresses whether a manufacturer satisfied its duty to warn a product user by properly warning the learned intermediary.  The UCATA specifies comparative liability given a determination that multiple parties are at fault.

Product liability claim revived

The court vacated the trial court’s dismissal of Watt’s product liability claim and remanded for further proceedings, finding that Watt had properly alleged that Medicis breached its duty to warn if it gave inadequate or defective warnings to Watt’s prescribing physician about the use of Solodyn for more than 12 weeks.

The court found that the LID could apply if Medicis can establish that it provided complete and adequate warnings to the prescribing providers.

The high court affirmed the appeals court finding that the CFA was applicable to the case because prescription pharmaceuticals are considered merchandise under the act.

The court also affirmed that Watt’s has an actionable claim because Medicis misrepresented Solodyn on the MediSAVE card by stating the safety of use of the drug for longer than 12 weeks was unknown, even though they were aware that extended use could cause drug-induced lupus.

The case is Amanda Watts v. Medicis Pharmaceutical Corporation, Case number CV-15-0065-PR, in the Supreme Court of the State of Arizona.


Defense Counsel Sleeps at Trial, 11th Circuit Affirms Conviction

sleeping defense counsel 2The 11th Circuit Court of Appeals has affirmed a lower court decision that a man convicted of murder was not prejudiced when his defense attorney admittedly dozed off and fell asleep during the trial.

Anthony Williams, along with two other accomplices, burglarized a man’s home.  When the homeowner intercepted them, they shot and killed him.

During the trial, several witnesses testified, including a defendant accomplice, implicating Williams in the crime and linking him to the gun used to kill the homeowner.

William’s defense counsel questioned every witness and cross-examined prosecution witnesses about inconsistencies in their testimony.  He also repeatedly objected to witness testimony and was allowed to question a witness outside the presence of the jury.

When defense counsel cross-examined forensic experts and policed officers, he elicited their acknowledgement of inconsistencies and exculpatory information regarding their scientific practices.

Defense counsel falls asleep

While the prosecution played a recording of an accomplice’s interview that took up 71 pages of the trial transcript, defense counsel dozed off.  After the recording ended, defense counsel immediately crossed-examined the Sheriff Office agent recorded in the interview.  The prosecution then requested a break, to which defense counsel interjected “I need to take a break; I fell asleep a couple of times.”

The jury found Williams guilty of first-degree felony murder and armed burglary.  He was sentenced to life in prison.  With new counsel, Williams attempted several post-conviction filings based in part on a claim of ineffectiveness of trial counsel.  Both petitions were denied and Williams then filed in the district court for the same relief.

The district court denied William’s claim based on factual findings that “’[a]lthough defense counsel indicated that he fell asleep for a portion of the time period during which the taped statement was played,’ Williams failed to ‘point to any other instance of counsel sleeping during the trial.’” The court further wrote that defense counsel was alert during the trial, cross-examined witnesses, and properly responded to objections and questions.

Asleep during non-critical stage

Williams then appealed district court’s denial of his petition for a writ of habeas corpus.  The Court of Appeals determined that the state trial court and the district court properly applied federal law in concluding that Williams was not prejudiced by counsel falling asleep a few times during a non-critical stage of trial when the jury listened to a recorded interview.

The Appeals court reasoned that Williams made no argument in his brief about the lower court ruling that he failed to demonstrate prejudice and “issues not clearly raised in briefs are considered abandoned” they did not need to address whether Williams was prejudiced by his counsel.s trial nap.  The court affirmed the denial of William’s petition for writ of habeas corpus.

The case is Anthony Williams v. Florida Department of Corrections, case number 14-11351, in the U.S. Court of Appeals for the Eleventh Circuit.

New Jersey Court upholds $10.6M Verdict After Second Trial for Man Injured in Falling Elevator

elevator falling manA New Jersey superior court has denied an elevator company’s motion for a new trial, instead affirming a $10.3 million jury verdict that was awarded in the second trial for a man who suffered permanent spinal injuries after a malfunctioning elevator fell two stories with the man inside.

While working as a union master carpenter at Headquarters Plaza in Morristown, NJ, Richard Tufaro, then 47 years old, was inside an elevator that malfunctioned and dropped two floors with Tufaro inside.

Tufaro suffered permanent spine damage and is now unable to return to work.  Tufaro and his wife, Sharon Tufaro, sued Schindler Eleator Corporation for its failure to properly maintain the elevator.

“It has been more than 10 years since Rich was permanently injured and unable to return to work as a master carpenter,” said Tufaro’s attorney, Andrew Fraser, a National Trial Lawyer Top 100 trial lawyer and partner at Laddey, Clark & Ryan.

Two jury awards

A jury found for the Tufaros and returned an award of $2.8 million to Mr. Tufaro and $950,000 to his wife in 2012. The Appellate Division overturned the verdict in 2013. The second trial in 2014 resulted in a $7.75 million jury verdict for the Tufaro’s, which is now at $10.6 million because of the interest that has accrued.  Schindler Elevator Corp. filed a motion for a new trial and remittitur for excessive damages.

The New Jersey superior court denied Schindler’s motion for a new trial writing that it “failed to address the legal standard warranting a new trial in its brief to the court” and that the arguments raised had already been argued and decided by the court.

The court also denied remittitur of the damages writing “it does not shock the judicial conscience when a second jury returns a verdict nearly twice as much as the first based upon largely the same evidence.”

The court, in its 25-page decision, analyzed more than 25 related cases cited by the defendant and the Tufaros.  The court also discussed Mr. Tufaro’s permanent physical injuries, the depression, PTSD and emotional suffering he has experienced, and expert testimony that he would never return to his normal functioning.

The court also discussed the videotape of Tufaro, captured by Defendant Schindler surveillance, that showed his inability to do work from “a job he loved,” and showed Mrs. Tufaro carrying heavy groceries “into the house while Mr. Tufaro watched.

The court also discussed the defendant’s missed opportunities to file submissions on the issues during oral arguments.

The opinion includes defendant counsel responses from the record when given an opportunity to be heard.  The defense counsel responded “the answer is no” and told the judge “your Honor can look at them, we could argue about them until three o’clock this afternoon, we’re never going to change our view.”

Jury verdict upheld

The court upheld the jury award of $7.75 million “after analyzing the case provided, considering the testimony and this Courts own feel for the case, under the totality of the circumstances, the Court has determined that the jury award should not be remitted and there was no prejudice to the Defendant to warrant a new trial.”

“We could not be more pleased for the Tufaro family,” said Fraser.  “We have now tried this case twice and been successful twice.  It is time for Schindler to accept responsibility for the permanent damage caused by their negligence.”


The case is Richard L. Tufaro and Sharon M. Tufaro v Schindler Management, LTD., et al., case number MRS-L-945_07 in the Superior Court of New Jersey.


$20 Million Gas Explosion Verdict Upheld Amidst Claims of Attorney Misconduct

home garage fireA California Court of Appeals has upheld a $20 million verdict against the Southern California Gas Company (SoCalGas) for a natural gas leak and fire that caused second and third degree burns and brain damage to a man when he lit a cigarette in his rented converted garage room.

Pengxuan “Dean” Diao sued SoCalGas and the owners of the home in which he was renting the converted garage when he was 23-years-old.

A SoCalGas employee restored gas service to the main house after an earthquake shutoff valve stopped gas to the property. While attempting to relight a pilot light, the employee inadvertently opened a gas line leading to the converted garage.

While Diao was sleeping in the converted garage, his bedroom filled with about 300 cubic feet of natural gas.  When he awoke, he lit a cigarette and then saw fire engulf his room.  After running out, he noticed skin falling from his arm and was transported to the hospital.

Gas Company stipulated to negligence

Diao suffered from second and third degree burns on 20 percent of his body including to his face, neck, both upper extremities including hands and digits, right lower back and right lower extremity.

He required several painful treatments, including surgery for debridement and skin grafting.  Plaintiff now has severe hyperpigmentation and areas of severe burn scarring.

Diao sued SoCalGas who stipulated to its negligence as a substantial factor in causing Diao’s harm, but denied its negligence to the extent of harm that Diao claimed.  Initially Diao included the above listed injuries.  At his deposition a year after filing his complaint, Diao commented on memory loss and raised for the first time a “potential brain injury claim.”

Traumatic brain injury claim

Diao’s counsel later submitted the traumatic brain injury as a claim, stating they were unaware of it until after the deposition of Neurologist, Dr. Fisk, whom Diao previously retained.  SoCalGas and the homeowners also hired neurologists to have Diao examined.

The court commented “there were games being played” and that the situation was “all problematic,” but allowed the inclusion of the traumatic brain injury claim and neurologist reports because the initial neurologist report was disclosed and parties were given an opportunity to explore it.

A trial jury returned a verdict in favor of Diao, awarding him $186,718 in past economic damages, $2,600,100 in future economic damages, $8,500,000 in past non-economic damages, and $8,500,000 in future non-economic damages, for a total damages award of $19,786,818.  The jury found SoCalGas 90 percent liable and the homeowners 10 percent liable.

Post-trial motions filed

SoCalGas and the homeowners moved for partial judgment notwithstanding the verdict for a new trial claiming discovery abuses related to the traumatic brain injury (TBI) claim and that Diao presented insufficient evidence of TBI.

They also moved for a reduction in the damages award claiming Diao’s counsel made improper arguments that resulted in an excessive and punitive damages award.

The Court of appeals in reviewing the trial court record, found that substantial evidence was presented at trial to demonstrate that the gas leak, caused by a SoCalGas employee, caused Diao’s Traumatic brain injury.

SoCalGas argued that while making arguments to the jury, Diao’s counsel referred to SoCalGas as a “bully” and “vilified” SoCalGas by “inviting the jury to punish” them for unproven injuries to other hypothetical victims and referring extensively to its wealth and “unlimited resources” used in the case.

The court found that SoCalGas counsel, “did not make any effort to stop the alleged misconduct with even one objection.”

The court agreed with SoCalGas’s characterization of Diao’s counsel’s actions, writing, “We do not condone, and in fact strongly disapprove, Diao’s counsel’s conduct,” but found that his arguments did not “constitute reversible misconduct.”

The court further found that the damage award was not excessive or disproportionate to other awards given for comparable injuries.  In upholding the verdict amount, the court wrote that in light of Diao’s severe and debilitating injuries, the case must be determined on its own facts, and not in comparison to awards of other cases.


The case is Pengxuan Diao v. Southern California Gas Company, case number BC481312 in the Court of Appeal of The State of California, Second Appellate District.