Trial Readiness and Motorcycles Make Litigator’s Practice Flourish

Colorado attorney Tom Metier is a member a member of The National Trial Lawyers Top 100 Trial Lawyers.

Colorado attorney Tom Metier is a member a member of The National Trial Lawyers Top 100 Trial Lawyers.

When attorney Tom Metier calls an insurance company asking for the policy limits for a client, they listen. And it’s not just because he won $52 million at a 2016 trial, the largest personal injury verdict ever awarded in Colorado.

Defendants know that Metier will have his case ready to go to trial at the initial mediation. They also know that he’ll win at the trial, and will also pursue a second trial if necessary to collect bad faith damages.

It is this readiness to go to trial that is the foundation of The Metier Law Firm, where he practices with seven other attorneys. After 36 years as a lawyer, he still tries up to eight cases per year. “If you stay focused on being a trial lawyer, the business will take care of itself,” he says.

His trial prowess, combined with a strategic decision 10 years ago to add a motorcycle injury niche practice to his firm with Law Tigers, has grown his firm into seven offices in Colorado, Wyoming and Nebraska. Law Tigers brings his firm 150 new motorcycle cases per year. They fit perfectly with his practice representing catastrophically-injured people with brain and spinal cord injuries, burns, wrongful death and psychological injuries and PTSD suffered in plane crashes, trucking accidents, oil field and industrial workplace injuries, medical negligence and insurance bad faith.

Metier believes a trial attorney must practice his or her craft on a constant and continuing basis. “I will ask attorneys, ‘when is the last time you did an opening statement, direct examination, or cross examination?’ If they have to look at a calendar instead of their watch, they need to up their game,” Metier says.

Metier has taught trial skills at Gerry Spence’s Trial Lawyer’s College since 1995 and trains lawyers in numerous seminars and speaking engagements across the country. In 2017 he was named to the Top One Percent List of the National Association of Distinguished Counsel. Metier is a Board-Certified Trial Advocate, a member of The National Trial Lawyers Top 100 Trial Lawyers, a Regent of the Academy of Truck Accident Attorneys, and a Trustee of the National College of Advocacy for the American Association for Justice. He’s been listed as a Colorado Super Lawyer each year since 2006 and is named to The Best Lawyers in America.

Traumatic brain injuries


Metier initially earned his national trial reputation by representing clients with traumatic brain injuries. “Thirty years ago, I had my first brain injury case and realized they are very big cases. I learned the medicine and the psychology of how the brain works and began taking these cases to trial.”

That’s when Tracy, a 21-year old college student, came to his firm. Though her car was slightly damaged in a crash, her face had slammed into the steering wheel. She couldn’t remember her homework assignments, she got lost frequently and was overwhelmed by the ordinary noise of a grocery store. She cried constantly and had seizures. She had a traumatic brain injury and he agreed to represent her.

“As trial lawyers we are confronted by great mysteries. How is it that a person with these accomplishments won’t be able to navigate life? The injury doesn’t show up on an MRI, imaging or x-ray. How do we put a juror into the skin of my client to viscerally understand what she can and cannot do? This is all about trial skills.”

Faced with a plaintiff with a serious TBI but no outward injury, jurors will say, “you can’t give money for that.” This is where Metier’s genuine sincerity and storytelling skills come in.

“The juror is saying they don’t know how to evaluate those losses. They don’t know how to believe those losses. They don’t know whom to trust,” Metier says. “A trial lawyer must understand that most humans only think about 18 months ahead. The future beyond 18 months is foggy and unfocused. We need to take the jury on a trip into the future to understand what the plaintiff and her family are going to experience over their lifetime, and how our client’s life will change. It’s not an event in the past, it’s about what her life will look like over time.”

“A trial lawyer needs to understand what does aging do, what does therapy do, what does medication do. It’s not just numbers and future surgeries and treatment, but what it means in a person’s lifetime — 15 years from now they’ll have another surgery. What does that mean to their self-concept and their ability to live?”

$52 million verdict

In November 2016, a Denver District Court jury returned a $52 million verdict for Metier’s client, a mother of four small children whose car was hit by a negligent driver. Mendy Brockman and her husband were driving south on Interstate 25 near Denver when a motorist crossed into their lane and hit them. In the collision, her car rolled over, broke her neck and left her a tetraplegic — paralyzed from the cervical spine down with some residual arm function. “She is capable of wheeling her wheelchair, but can’t transfer in or out of her chair,” Metier said.

Metier and his team sued the negligent driver, windshield glass maker AGC Glass, seatbelt maker Takata and Honda. He settled with Honda and AGC Glass and went to trial against Takata and the driver. “The verdict was a product of the jury coming to understand what her life and challenges were going to be.”

Except for one juror, the jury was composed of young Millennials between age 21 and 30, unmarried and without children. “We had to teach a jury with no children what it’s like for a mother of four not to be able to even brush her daughter’s hair. It is a combination of bringing our client’s experience of the past and the future into the courtroom in real time present tense, so the jury experiences them as their own,” Metier explained.

He is now pursuing bad faith claims against Travelers to collect on the judgment.

“Some people ask me why I am I so dedicated to representing those that are seriously injured. If you are a trial lawyer you could do criminal defense work or corporate work or chase the big money. But helping people who are seriously injured for me is more meaningful.”

Motorcycles and law practice

During his free time Metier is an athlete who loves to ride motorcycles. Metier owns a pearl yellow 2007 Harley Davidson Road King Custom. This is a 96-cubic inch machine with big fenders and saddlebags that is designed to ride cross-country to the annual Sturgis Motorcycle Rally in the Black Hills.

He is currently having a bike custom built – using a 2016 Harley Super Glide. He’ll add a turbocharger to the 103-cubic-inch engine, which he may bore out. It will have a unique paint job and will be a little longer than earlier Harleys. “I want it to be a bike so that anybody who sees it says, ‘that’s an adventure.’”

It was a near-death crash on a motorcycle that first got him into law practice. At age 22 he was riding his Triumph Trident 750 in Illinois when a Toyota pulled in front of him. He hit it at 55 miles per hour, flying into the passenger window. He wore a helmet, but still suffered a concussion and knee injury. He woke up helpless and alone in a hospital — but was relieved to find that the motorcycle community was already helping him get his bike fixed.

“So I decided to go to law school in order to represent injured motorcyclists,” he says. After law school at the University of Iowa, Metier moved to Colorado and entered private practice, focusing on getting as much trial experience as possible across a wide variety of cases. Metier now provides trial and co-counsel services to clients and law firms across the country. Metier Law Firm has offices in Denver, Colorado; Cheyenne, Wyoming; and Omaha, Nebraska, as well as other locations.

150 new cases with Law Tigers

One way that Metier has built his firm is to become one of the first members of Law Tigers, a professional association of motorcycle injury lawyers founded in 2001.

Law Tigers generates 150 new motorcycle cases per year for his firm, and that number is increasing.  “The power of niche marketing, until you’ve experienced it, is unbelievable,” he says. “An attorney can have their own practice and identity, and also be a Law Tiger attorney. Being a Law Tigers member doesn’t limit who you are, it adds to who you are. Not only was it a great business decision, it’s a personal privilege.”

One of the problems for personal injury lawyers is they’re marketing to people who are already hurt. “But imagine you could have a community that looks to you before they are injured. With Law Tigers, you become an important part of the riding community first. As a result, for most riders there aren’t any alternative law firms in the riding community,” he says.

“There is a wonderful marketing program that Law Tigers provides to us,” he says. “We incorporate that into our practice in an ongoing team approach.”

The Law Tigers strategy is to dominate the niche of motorcycle injury cases in a particular state. This is accomplished through the green-eyed tiger brand, which is ubiquitous on TV, on the internet and in outdoor advertising. The brand is coupled with a grass-roots marketing program that makes an attorney a partner in the community of riders, reaching them where they shop, in motorcycle clubs they belong to and at events they attend.

“We have an ongoing relationship with motorcycle community, and as a result of that our phone rings with people who are motorcycle riders with new claims,” he says. “Not only are you able to prosecute a lot of very good PI cases, but the depth of appreciation and feeling of belonging with a niche market is extremely powerful. It’s Nirvana for somebody who loves to help people.”

For attorneys who have an ongoing successful practice, Law Tigers will more than justify itself. Adding a niche practice doubles up your success. For attorneys who are looking for a great way to build a practice, Law Tigers is golden.”

Giving back

Metier is also known in his community for giving back. He is a major sponsor of Realities for Children, a local charity that supports children who have been abused or neglected, and have been put into foster care. The program helps children with scholarships, school supplies, donated bicycles, monthly youth activities, and funds for emergencies.

“A lot of people have been abused as kids, and the motorcycle community is not immune. In the motorcycle community, there is a high devotion to kids who were abused and neglected,” Metier says.

Every Memorial Day, Metier’s firm is a major sponsor of the 2013 Guinness World Record largest-ever motorcycle poker run benefiting Realities for Children. Riding the Law Tigers scenic ride, motorcyclists pay an entry fee and got playing cards by visiting various locations. If they collect a winning hand, they win a prize. “Our firm annually generates hundreds of thousands of dollars for charities each year, by facilitating opportunities for others to give,” Metier says.

“Attorney rescue” cases

Metier also grows his practice with what he calls “attorney rescue cases.” This is when an attorney has taken a serious injury case, “and they realize they don’t have enough horses in the corral to take the case to trial.” As a strategy, insurance companies will try to swamp a plaintiff attorney in pre-trial motions so that they can’t focus on properly preparing for trial. Lawyers with substantial injury cases face stumbling into trial not fully prepared and exhausted. That is where Metier and his team come in.

“When we co-counsel a case, we meet very early, hopefully shortly after the case is taken. We’ll develop the damages and liability as it will be presented at trial. We test with focus groups. Every day a personal injury lawyer is not attending to trial preparation, they are being put on their heels. We bring our team in and overwhelm the defense with actions that they must respond to. Meanwhile, we’re putting the trial together, so when we get to mediation, we know what the value of the case is, we have witnesses, and everything is put together. If we can’t achieve our bottom line in mediation, we go to trial,” Metier says.

“Strength when you need it” is the motto Metier offers to attorneys who are co-counsel. “We want to help our brothers and sisters in the bar, and if we are able to help, we will.”

“Most lawyers settle cases. That’s never been my model,” Metier says. “I encourage every lawyer to be willing to take cases to trial.” Certainly, there are cases that should be settled, such as when the value of the injury exceeds the insurance coverage.

“However, for me, I couldn’t sleep at night if I thought I was settling cases that need to be tried. Insurance companies often won’t pay what they should for a brain injury, and so they won’t offer their policy limits. They won’t pay what they should without being forced to trial. We offer them the opportunity to settle for what makes sense for the client, and to the attorney. But if they won’t, we’ll go to trial and get a verdict. And if there is a second trial to get the insurance company to pay it, so be it.”

 

Webinar: Why TBI Treatment is so Important for Your Client

Register now for the upcoming free webinar, “Why TBI Treatment is so Important for Your Client” on Nov 28, 2017 at 12:00 PM EST.

Join us for a look at Traumatic Brain Injury care. Learn from professionals how to perform an initial assessment to determine if your client should be seen by a professional, and understand what options are available for care. A better understanding of the seriousness of a TBI can help your client get the treatment they may need and the verdict they deserve.

During this webinar with John Zacharias and his nationally renowned team at Advantage Healthcare Systems you’ll learn about TBI identification and treatment options for your clients.

  • TBI Assessment – Simple screening options (including a TBI questionnaire)
  • Process and timeframes for evaluation such as neurologist, then neuropsychologist
  • Types of care; Day program, In-home and Telemedicine
  • Early identification and better results

Register at: https://attendee.gotowebinar.com/register/9211199730405599747

After registering, you will receive a confirmation email containing information about joining the webinar.

This program is sponsored by HMR Funding.

Is your client either uninsured, underinsured or denied coverage for some reason? Does your client need funding assistance to pay for their medical expenses or pay for their living expenses while they recover from their injuries?

HMR Funding is your medical funding solution. We take the risk the same as you, so you can help your client pay for the treatment they may need to get on a path to recovery while you work to get them the justice they deserve.

Plaintiffs Seek Mass Tort Court for Diabetes Drug Onglyza

Plaintiffs in 44 lawsuits pending in 24 different judicial districts have requested that the Judicial Panel on Multidistrict Litigation create a new mass tort docket in the Northern District of California for cases involving the diabetes drug Onglyza.

The motion by attorneys Timothy M. Clark and Lauren Welling of Sanders Phillips Grossman, LLC in Irvine, CA, requests that the cases against defendants Bristol-Myers Squibb and AstraZeneca be consolidated in new MDL No. 2809. The JPML meets to decide on November 30.

There are 22 MDLs pending in the Northern District spread among the 20
District Judges. National counsel for the defendants are based in San Francisco. More than half of the plaintiffs are represented by counsel from California. One of the three defendants named in these suits is based in San Francisco.

Another factor in favor of the Northern District of California is its proximity to the only other consolidated proceeding related to Onglyza and the injuries asserted here. Indeed, In re: Onglyza Product Cases, JCCP 4909 pending in front of Hon. Curtis E.A. Karnow in San Francisco.

Risk of heart failure

Onglyza (Saxagliptin) was introduced to the United States market on July 31, 2009, and Kombiglyze was introduced on November 5, 2010. The defendants developed their Onglyza drugs to market and sell them as treatments for type 2 diabetes. However, the use of Onglyza carries a significantly increased risk of causing heart failure, congestive heart failure, cardiac failure, and death from heart failure.

Type 2 diabetics have an increased risk of cardiovascular disease, which is the leading cause of morbidity and mortality in the patient population. With full knowledge of the susceptibility of type 2 diabetics to cardiovascular-related adverse events, the defendants allegedly developed Onglyza and Kombiglyze XR to market and sell them to type 2 diabetics to allegedly lower adverse complications associated with type 2 diabetes.

Saxagliptin works by inhibiting incretins, which enables the stimulation of insulin to continue longer than what naturally occurs after meals.

At no time during the development of its Saxagliptin drugs did the defendants perform adequate studies to determine if their drug, and its drastic alterations of the natural incretin hormone cycle, may cause increased risks of cardiovascular-related adverse
events.

In December 2008, the FDA issued a memorandum — entitled Final Guidance for
Industry, Diabetes Mellitus: Evaluating Cardiovascular Risk in New Antidiabetic Therapies to Treat Type 2 Diabetes. It stated that applicants of new anti-diabetic medications for the treatment of type 2 diabetes should demonstrate their products are not associated with an unacceptable increase in cardiovascular risk.

After the defendants began selling and making substantial profits off their drugs for five years, they finally conducted a clinical trial for Saxagliptin. It found that  Saxagliptin users had a statistically significant increased risk of being hospitalized due to heart failure.

An FDA committee called on the defendants to add a heart failure warning to the drug in 2015, but no label change occurred until the FDA required a new warning to the drug label on April 5, 2016.

Judge in Abilify Mass Tort Case Orders Defendants to Name Settlement Counsel

US District Judge M. Casey Rodgers ordered lawyers for Otsuka Pharmaceutical and Bristol-Myers Squibb to engage settlement counsel and to have them attend monthly settlement conferences in mass torts litigation over Abilify, an atypical anti-psychotic medication.

Some 374 cases have been consolidated before Judge Rodgers in the Northern District of Florida in MDL 2734, IN RE: Abilify (Aripiprazole) Products Liability Litigation.

Compulsive gambling

Plaintiffs allege that Abilify (aripiprazole), an atypical anti-psychotic medication commonly prescribed to treat schizophrenia, bipolar disorder, depression, and Tourette syndrome, can cause compulsive gambling behaviors.

All the lawsuits allege that Abilify was defectively designed or manufactured, that the defendants knew or should have known of the alleged propensity of Abilify to cause compulsive gambling behaviors in users, and that the defendants failed to provide adequate instructions and warnings with this product.

Abilify entered the market in 2002. Abilify floods the brain with dopamine, creates uncontrollable urges on the reward system, and impairs decision-making. Reports of compulsive behavior began showing up in 2008, according to attorney Lexi Hazam of Levin Papantonio.

Patients experience such overwhelming gambling urges while taking Abilify that
they are driven to crime to support their compulsions, according to research by Gavaudan et al., Partial Agonist Therapy in Schizophrenia: Relevance to Diminished Criminal Responsibility, 55 J. FORENSIC SCI. 1659, 1659-60 (2010).

There have been many reports of compulsivity from Abilify in medical literature:

▪ Johannes D.M. Schlachetzki & Jens M. Langosch, Letter to the Editors:
Aripiprazole Induced Hypersexuality in a 24-Year-Old Female Patient With
Schizoaffective Disorder? 28(5) J. CLINICAL PSYCHOPHARMACOLOGY 567, 567-68 (2008).
▪ Gilles Gavaudan et al., Partial Agonist Therapy in Schizophrenia: Relevance to
Diminished Criminal Responsibility, 55 J. FORENSIC SCI. 1659, 1659-60 (2010) (2
Cases).
▪ Milton G. Roxanas, Pathological Gambling and Compulsive Eating Associated
with Aripiprazole, 44 AUSTRALIAN & NEW ZEALAND J. OF PSYCHIATRY 291, 291 (2010).
▪ M. Kodama & T. Hamamura, Aripiprazole-Induced Behavioural Disturbance
Related to Impulse Control in a Clinical Setting, 13 INT’L J.
NEUROPSYCHOPHARMACOLOGY 549, 549-50 (2010) (2 Cases).

The defendants put a warning on the drug in Europe in 2012 after reports of 19 cases of “pathological gambling.” In 2015 Canadian regulators concluded that there is “a link between the use of aripiprazole and a possible risk of pathological gambling or hypersexuality” and found an increased risk of pathological (uncontrollable) gambling and hypersexuality with the use of Abilify.”

But it was not until 2016 warning added to drug label in US. “These defendants put a warning label on the drug in other countries, but they were making the biggest profit in the US, but not giving consumers the benefit of that information,” Hazam said.

For more information read FDA Links Abilify to Compulsive Gambling, Eating, Shopping and Sex

 

$15.57 Million Verdict Against Driver and Broker in Trucking Accident Case

A Philadelphia jury awarded $15.57 million to a pedestrian who was struck by a drunken commercial truck driver, who had a history of drunk and reckless driving that the company failed to discover.

Following a three-week trial, attorneys Alan M. FeldmanDaniel J. Mann and Edward S. Goldis of Feldman Shepherd in Philadelphia, secured the verdict against J.B. Hunt Transport, Inc. and driver Ricky Hatfield, finding Hatfield 60% responsible for the accident, and J.B. Hunt’s 40% responsible.

“Had J.B. Hunt performed even the most cursory background check, it would have discovered Hatfield’s terrible driving history that included a prior DUI while operating a tractor-trailer, and a prior reckless driving charge,” Feldman said.

The case is Isaac and Graciela Cerda de Espinoza v. J.B. Hunt Transport, Inc., Ricky Hatfield and Hatfield Trucking, Philadelphia County Court of Common Pleas, June Term, 2015, No. 2656.

Over 4X the legal alcohol limit

On November 19, 2013, plaintiff Isaac Espinoza was standing on the shoulder of I-81 in Gilford Township near Chambersburg, Pennsylvania, assisting a friend whose vehicle had become disabled.

While lawfully on the shoulder of the roadway, a truck-tractor operated by defendant  Hatfield left the travel lanes of the road and crashed into Espinoza and his friend. Hatfield fled the scene but was later apprehended and arrested by the Pennsylvania State Police.

His blood alcohol content measured .171, more than four times the legal limit for operators of commercial vehicles. Hatfield was convicted of DUI, assault with a commercial vehicle while intoxicated and other offenses, and is presently incarcerated.

In March 2013, Hatfield received motor carrier operating authority from the Federal Motor Carrier Safety Administration to have his own trucking company. He was recruited to haul freight as a contract motor carrier by J.B. Hunt’s brokerage division, which entered into contracts called “Outsource Carriage Agreements” with motor carriers, who were often one-driver, one-truck operations like Ricky Hatfield’s.

While the contract required the motor carrier applicant to certify that its drivers had no DUIs or reckless driving citations in the past 5 years, no effort was made by J.B. Hunt to conduct a background check to corroborate Hatfield’s claim of a clean record, or to otherwise obtain references or information about the safety history of Hatfield.

Had J.B. Hunt checked, it would have learned that Hatfield had in the preceding 5
years had a conviction for DUI while driving a tractor-trailer, two reckless driving violations, a speeding citation for driving a commercial vehicle in a construction zone, and had been dismissed from prior employment with a trucking company for failing a drug and alcohol test during which he tried to bribe the person who was administering the test to him.

Defense: driver should have screened himself

J.B. Hunt maintained that it had no responsibility to screen or vet Ricky Hatfield, who was doing business as Hatfield Trucking. J.B. Hunt contended that under applicable federal regulations, motor carriers were responsible for screening their own drivers, and that accordingly, Ricky Hatfield should have screened himself.

The plaintiff needed to establish that Hatfield was actually performing work under the contract at the time of the accident. Hatfield, testifying by video deposition taken at the prison where he is incarcerated, stated that he was not working for J.B. Hunt or anyone else at the time of the accident, but rather had the day off, and had made a personal decision to become intoxicated. Another issue was that when the accident occurred, Hatfield was 125 miles away from the location he had been dispatched to and was headed in the opposite direction.

To counter this testimony, Plaintiff introduced evidence that on the day of the accident:

• Hatfield was under dispatch by J.B. Hunt to pick up a trailer in Fredericksburg, Virginia the following day, and remained under dispatch at the time of the accident.
• The dispatch had been confirmed by a load tender form sent to Hatfield by J.B. Hunt.
• Hatfield had used his J.B. Hunt debit card to purchase nearly $500 worth of diesel fuel in preparation for picking up the load the following day.
• Hatfield had also used his J.B. Hunt debit card to obtain a $100 cash advance, which he used to buy the bottle of liquor found outside his truck after the accident
• Hatfield was operating his tractor, rather than his personal vehicle, because he needed the tractor to hook up to trailers in his work for J.B. Hunt.

Espinoza sustained serious and permanent injuries which left him with a completely non-functional right upper extremity, limited use of the left upper extremity, multiple pelvic fractures, rupture of the diaphragm, multiple cervical fractures requiring cervical fusion surgery and a traumatic brain injury.

He requires attendant care 24/7, which is provided by his family at his home. Espinoza suffers chronic pain unrelieved by medication, and he will never be able to engage in gainful employment or recreational activities for the rest of his life.

Florida Jury Awards $45 Million in Truck Crash that Killed Medical Student

Plaintiff Raymond Astaphan’s was killed when his car struck a truck that was making a U-turn across four lanes of traffic in the dark.

After a four-week trial, a Broward County, Florida, jury returned a $45 million verdict against a construction company whose truck driver caused a multiple-vehicle crash that killed a 29-year-old medical student.

Ranger Construction Industries, Inc. had a contract with the state of Florida for construction along Interstate 75, most of which was in the highway median. One of its truck drivers, Juan C. Calero, attempted to make a U-turn in Pembroke Pines, FL, crossing all four southbound lanes of I-75 into oncoming traffic at 11:35 pm on May 28, 2015.

Plaintiff Raymond Astaphan’s car struck the trailer, shearing off this roof and killing him on impact. Patrissia Rolle, 26, a doctor, was a passenger in his vehicle and she suffered multiple orthopedic injuries and a brain injury. A 17-year old woman in another care was also killed, and an 18-wheel tractor-trailer also collided with the construction truck.

The plaintiff argued that the only safe way off of the I-75 median construction site that night was with a lane closure, proper supervision, lighting, and the assistance of Florida Highway Patrol. Instead, Ranger Construction and its supervisor left truck driver Calero unsupervised in an area he had never been to before, in complete darkness.  Ranger loaded up the flatbed tractor-trailer with an 80,000-pound load of concrete barrier wall and instructed Calero to drive about one mile south, to the Miramar Parkway Bridge, for unloading.

Based on e-mails uncovered by the plaintiff’s legal team, Ranger Construction supervisors and managers simply blamed the truck drivers and the motoring public for the problems construction vehicles were having entering and exiting the medians. Ranger Construction allegedly did nothing to fix the danger it was imposing on the roadways. 

At trial, the plaintiff argued that Ranger Construction Industries, Inc. not only put lives at risk of harm and death, but also violated the terms of its contract with the Florida Department of Transportation requiring it to give construction vehicles a safe means of exiting median construction sites on I-75.

The jury found Ranger Construction Industries, Inc. violated its contract with the FDOT and found Ranger Construction Industries, Inc. negligent in causing the death of Raymond Astaphan

The jury found the defendants responsible and entered a $20 million verdict for compensatory damages.  The jury also awarded punitive damages of $25 million against Ranger Construction Industries, Inc. and $5,000 against the truck driver. The jury also found that Calero was Ranger Construction Industries, Inc.’s agent and that Ranger Construction Industries, Inc. was engaged in an inherently dangerous activity.  The jury apportioned fault equally between the two defendants.   The entire verdict was for $45,005,000.

“This case is a reminder of how powerful and important our third branch of government is for enforcing safety and protecting everyone from harm,” said Stuart Ratzan, lead trial counsel for the plaintiff.  “Through its verdict, the jury, a cross-section of our community, with humility, discipline, and order understood that highway construction companies must follow the rules, not just in Broward County, but all over the country,” Ratzan said.

Raymond Astaphan is survived by his parents, Jennifer and Reginald.  “They are heroes…heroes for our community and for us all,” said Ratzan and Weissman.

The Plaintiff was represented by Stuart N. RatzanStuart J. Weissman, and Evan Gilead of Ratzan Law Group, P.A.Miami, Florida.  Ratzan Law Group was assisted by Lincoln Connolly of Lincoln J. Connolly Trials & Appeals, P.A. 

First Xarelto Trial Underway in Philadelphia Mass Tort Program

XareltoA trial over the blood thinner Xarelto, made by Janssen Pharmaceuticals Inc. and Bayer Pharma AG, is underway in the Philadelphia Court of Common Pleas, where more than 1,500 Xarelto bleeding claims have been centralized in a mass tort program.

Lynn Hartman of Indiana charges she suffered serious gastrointestinal bleeding after using the novel anticoagulant for a little over a year.  (Case No. 160503416)

During the opening statements, the plaintiff attorney Gary Douglas of Douglas & London asserted that the drug’s manufacturers manipulated clinical trial data and downplayed important safety information to make Xarelto appear safer and more effective than competing blood thinners, such as warfarin.

“Our firm is representing a number of plaintiffs who are pursuing similar Xarelto claims. We will be watching the Philadelphia trial closely for any developments that could impact our clients’ cases,” says Sandy A. Liebhard, a partner at Bernstein Liebhard LLP.

Xarelto Bleeding Allegations

Approved by the U.S. Food & Drug Administration in October 2011, Xarelto is jointly marketed by Bayer and Johnson & Johnson’s Janssen Pharmaceuticals subsidiary. The blood thinner is currently indicated for the prevention of strokes in people with atrial fibrillation; the treatment of patients suffering from deep vein thrombosis and pulmonary embolism; and the prevention of deep vein thrombosis in people undergoing hip or knee implant surgery.

Like other new-generation blood thinners, Xarelto has been touted as an improvement over decades-old warfarin. However, internal bleeding caused by warfarin can be stopped by the administration of vitamin K. There is currently no approved agent to reverse Xarelto bleeding.

Johnson & Johnson’s most recent earnings statement indicates that more than 21,000 Xarelto lawsuits have been filed in courts throughout the United States.

Plaintiffs involved in this litigation claim that the drug’s manufacturers downplayed the potential for Xarelto bleeding and wrongly promoted the drug as a superior alternative to warfarin. In addition to noting the lack of a reversal agent for Xarelto bleeding, plaintiffs take issue with the medication’s one-size-fits-all dosing regimen and dispute the defendants’ assertions that there is no need to subject Xarelto patients to routine blood monitoring.

The majority of Xarelto lawsuits are currently pending in a federal multidistrict litigation underway in the U.S. District Court, Eastern District of Louisiana, where three trials have already concluded with defense verdicts. There are 18,526 lawsuits pending before US District Judge Eldon E. Fallon in MDL 2592, IN RE: Xarelto (Rivaroxaban) Products Liability Litigation. Additional Xarelto bleeding claims have been filed in DelawareCalifornia and Missouri state courts.

Xarelto patients who allegedly experienced bleeding-related complications may be entitled to compensation for their medical bills, lost wages, pain and suffering, and more.

Defense Verdict in First Mass Tort Trial Over IVC Filters

Cook Platinum Celect IVC Filter

This is an update of our “First Trial Underway in Cook IVC Filter Mass Tort Case” published on 

A federal jury in Evansville returned a defense verdict in favor of Cook Medical, the Bloomington-based maker of medical devices, following a three-week trial over its blood-clot filters, which thousands of patients have complained are defective.

Doctors implant about 200,000 blood clot filters nationwide each year. The market for IVC filters is $435 million, according to market research firm Axis Research Mind.


The plaintiff’s case is underway in the first of three mass tort trials on whether Cook Medical Inc. is liable for selling a defective IVC filter that migrated through a blood vessel and punctured the plaintiff’s intestine.

“Defendants know its Cook filter was defective and knew that defect was attributable to the design’s failure to withstand the normal anatomical and physiological loading cycles,” the complaint states. The case is Hill v. Cook Medical, Inc., et al, 1:14-cv-6016.

It is the first bellwether, or test case, of 2,897 cases before US District Chief Judge Richard L. Young of the Southern District of Indiana in MDL 2570, IN RE: Cook Medical, Inc., IVC Filters Marketing, Sales Practices and Products Liability Litigation. 

Cook Medical Inc. of Bloomington, Indiana, won FDA approval for its “removable” Celect blood clot filter in 2003 using the 510(k) shortcut procedure, as opposed to the more rigorous premarket approval (PMA) process. FDA approval through Sec. 510(k) of the Medical Device Amendments of 1976 merely requires that a new device is “substantially equivalent” to a predicate device — but not a review of its safety or efficacy as would happen in a premarket approval application (PMA).

Perforated intestine

Plaintiff Elizabeth Jane Hill of Dunnellon, Florida, had a removable Cook Celect filter implanted in her vena cava, a large vein carrying blood into the heart, before back surgery on Nov. 17, 2010. By March 23, 2011, doctors tried unsuccessfully to remove the filter. Hill developed severe gastrointestinal symptoms, fatigue, diarrhea, vomiting and abdominal pain.

She underwent an endoscopy that revealed the filter had perforated through her inferior vena cava and into her small intestine. She went to Penn State Hershey Medical Center, a specialized hospital where the filter was finally taken out. As a result, the vena cava was permanently narrowed at the removal site.

The FDA recommends removing temporary filters between 29 and 54 days after implantation. However, studies have found that 43 percent of Celect filters perforate the vena cava within two months.

Hill charges that Cook failed to tell doctors that the filter cannot be removed and that it poses a risk of migrating, perforating and damaging the major blood vessel.

“The Cook filter had a safety profile that was not as good as or better than its predicate device,” the complaint states. “Defendant’s statements regarding the safety of the filter were false and misleading yet defendants continued to promote the Cook filter as safe an effective even though the data available studies, literature and clinical trial did not support long or short term safety and efficacy.”

Florida Jury Awards $15.9 Million in Medical Malpractice Amputation Case

medical malpractice, american association for justiceA Broward County, FL, jury awarded $15.9 million in damages to Miami resident Stephanie Hollingsworth in a medical malpractice case against rheumatologist Dr. Yvonne Sherrer.

Hollingsworth was age 26 when she was forced to undergo amputations of parts of her hands and feet following one week under Dr. Sherrer’s care at Holy Cross Hospital. The Schlesinger legal team successfully argued that Dr. Sherrer’s negligence caused Ms. Hollingsworth’s injuries.

Hollingsworth, who had auto-immune disease, was admitted to the hospital in November 2008 because of a flare-up that was causing pain in her hands and ulcerations on her feet. Her condition was caused by a specific complication that causes blood vessel inflammation and can lead to irreversible damage if not diagnosed and treated in a timely manner with a specific medication called Cytoxan.

Dr. Sherrer did neither. Her inaction led to a progressive deterioration in Hollingsworth’s condition over the course of a week.

Nightmarish injuries

“This doctor’s failure to follow the standard of care for her profession caused this young woman to suffer nightmarish injuries. She will never be able to lead a normal life,” said Hollingsworth’s attorney, Scott Schlesinger of Ft. Lauderdale, FL.

By the time she was transferred to another hospital, she was near death and her extremities were black with gangrene. Doctors at the second hospital administered Cytoxan and saved Hollingsworth’s life. However, they could not save the gangrenous tissue. Hollingsworth lost nine of her toes, part of her left foot, her right thumb and the tips of two fingers. She relies on prosthetic devices and cannot walk or stand for more than 30 minutes. She also suffers from phantom pain and the psychological consequences of the disfiguring amputations.

“Our legal team worked diligently to help the jurors understand the medical records in the case and to ensure that they were not led astray by the revisionist history and after-the-fact justifications presented by the defense,” Schlesinger said.

Schlesinger Law Offices, P.A. tried the case with Peter Somera and Paul Silva of Somera & Silva, L.L.P. and Crane Johnstone of Johnstone Law P.A.

$26 Million Verdict for Childbirth Injuries Caused by Hospital Negligence

A New York jury awarded more than $26 million in a medical malpractice case to a 7-year-old girl who was born deaf and with vocal cord paralysis because a hospital resident failed to prescribe hormones that could have suppressed premature labor.

After a monthlong trial, the jury returned a verdict, awarding more than $26 million to Danielle Madden-Buck and her daughter Aleigha Buck for the child’s past and future pain and suffering. The jury also awarded $500,000 for the wrongful death of her twin sister, who died 28 days after birth.

In 2010 Aleigha was born deaf, along with other health problems. Symptoms of pre-term labor started when her mother was 21 weeks pregnant. Pre-term birth is the biggest cause of injury and death related to childbirth – more than all other risk factors combined.

Seen only by resident

On February 9, 2010, the plaintiff’s mother twice visited the Labor and Delivery Triage Unit at Maimonides Hospital in Brooklyn, NY, due to painful cramping and a brownish discharge that was turning pink, which suggested bleeding. During both visits, she was seen only by a resident – not an attending doctor – and was discharged. The doctors missed the opportunity to prolong the pregnancy by ordering bed rest or prescribing hormones like tocolytics, which can suppress premature labor.

The mother delivered later in February when the twins were still very premature. The child’s twin sister, unfortunately, died one month after her birth. The plaintiff survived, but suffered a host of problems; the most prominent issues were her deafness and vocal cord paralysis. To this day, hearing aids are minimally helpful and she can only communicate through sign language.

Brooklyn Supreme Court Justice Ellen Spodek presided over the case. The plaintiff was represented by Jim Wilkens, of counsel to the Sullivan Papain Block McGrath & Cannavo P.C medical malpractice group. He argued that the mother’s condition was a possible precursor to cervical shortening and that she should have been admitted to monitor her cervical length. If this had been done at the first sign of cervical change, bed rest and tocolytics would have been more useful, and could have mitigated the risks of the delivery. The defending obstetricians conceded that those steps would have been effective treatments before the mother’s cervix became too short.

The jury deliberated for eight hours and returned a verdict in favor of the plaintiff, awarding more than $26 million for the child’s past and future pain and suffering. The jury also awarded $500,000 for the wrongful death of her twin sister, who died 28 days after birth.