Palmer, Lepisto, Robertson win mammoth vaginal mesh verdict

 
Tracie Palmer, Braden Lepisto and Elia Robertson won a $120 million verdict against Johnson & Johnson subsidiary Ethicon in a vaginal mesh case. The verdict, which included $100 million in punitive damages, was the largest to date in a vaginal mesh case and the largest contested liability personal injury verdict in Pennsylvania history. It followed a string of six vaginal mesh cases won by Kline & Specter in Philadelphia Common Pleas Court, with the verdicts totaling $266 million. The latest verdict was for Susan McFarland, now 68, who had the mesh implanted in 2008 to treat urinary incontinence. But the surgically implanted plastic device eroded into her vagina and revision surgery the following year failed to help. As a result, McFarland suffers pelvic pain, groin pain and dyspareunia, or an inability to have sexual intercourse without pain. She also suffers chronic urinary tract infections and still has the original urinary incontinence the mesh was supposed to have treated. The product in question was Ethicon's TVT-O, which is still being sold and implanted while other, similar products have been removed from the market. Thousands of lawsuits against various vaginal mesh devices are pending nationwide. "This verdict speaks volumes," Palmer told The Legal Intelligencer. "This is a product still on the market and the jury's message to Johnson & Johnson is take this product off the market for the health and safety of America's women." Among previous Kline & Specter verdicts in vaginal mesh cases included one for $57.1 million and, most recently, a $41 million jury award in February. The McFarland case involved a protracted legal battle. A first trial held last September ended with a hung jury. The latest trial was interrupted by a lengthy delay midway through the proceedings. But after about three weeks of total trial time, a jury deliberated only about three hours before delivering its verdict, which included a finding that J&J was negligent in its design of the TVT-O. (Read article)  

Safier, Fitzgerald win $9.2 million verdict for injured sanitation worker


Regan Safier and Patrick Fitzgerald won a $9.2 million verdict for a Reading man whose leg was amputated in a screw conveyor at a meat processing factory while he was cleaning the machine. Jose Natal, who worked for an outside cleaning company, fell into the large mechanism at Devault Foods in Devault, Pa., near Malvern in May 2015. He had no prior training in cleaning the conveyor and was not adequately supervised while working. The device also had no safety limit switch to prevent it from starting when its cover doors were open. Natal, 31 at the time, was able to pull himself from the screw conveyor but too late to save his right leg, which was amputated below the knee. His left leg was also badly damaged. The lawsuit named Devault Foods and Infoswitch Inc. as defendants. The screw conveyor has metal blades that rotate around a central shaft, with the screw pushing processed meat along as the giant screw turns. For cleaning, Natal was instructed to stand atop the metal screw blade and rotate it with his feet while using a pressure washer. While he was cleaning the conveyor, it unexpectedly activated, pulling his left leg into the screw blade. He was able to pull that leg from the machine but then his right leg was ensnared. The complaint alleged the screw conveyor was defective for a number of reasons, among them because it was designed without safety guards or an emergency kill switch either inside or alongside the machine. None of these, the lawsuit stated, would have incurred great cost to the manufacturer. 

Williams aids whistleblower in Medicare fraud case


David Williams represented a New Jersey man in a whistleblower case that resulted in a pharmacy and its owners paying the federal government $775,000 for allegedly engaging in an illegal kickback scheme. The scheme involved a third-party marketing company inducing patients to get medication they didn't need and then having the pharmacy bill Medicare and receiving a substantial share of the reimbursements. The pharmacy, Vital Life Institute LLC, formerly known as AgeVital Pharmacy, located in Sarasota, Fla., agreed to pay the sum to resolve claims it violated the federal False Claims Act. "By timely informing the government of this fraud our client proved instrumental in exposing and ending the defendants' scheme," Williams told the news media. "Hopefully these types of actions will also serve as a deterrent to others who would defraud essential government programs." The whistleblower, an elderly Williamstown man, was set to be paid a reward of roughly $140,000 by the government for helping to expose the alleged scheme. Williams added: "This settlement demonstrates the value and impact of everyday citizens who come forward to expose fraud. Medicare beneficiaries who carefully review their explanation of benefits statements like this citizen can make a difference." Kline & Specter's practice focuses largely on personal injury and medical malpractice, but the firm also litigates other matters, such as whistleblower cases. In 2018 and 2019, Williams has represented whistleblowers in cases involving Medicare and Medicaid fraud that resulted in settlements of $16.2 million, $5.9 million and $3.5 million.

Kline & Specter win appellate decisions in vaginal mesh cases

 
Kline & Specter appellate attorneys Charles "Chip" Becker and Andra Laidacker beat back a number of motions and appeals by Johnson & Johnson subsidiary Ethicon in transvaginal mesh litigation. In one group of rulings, the Pennsylvania Supreme Court and three different trial judges denied motions and petitions by the company to remove Judge Kenneth Powell, Jr. from presiding over pelvic mesh cases. J&J had claimed Powell should have recused himself because his mother was suing J&J in another matter. Powell had said he could maintain his impartiality.  In Carlino v. Ethicon, Superior Court affirmed a $13.5 million verdict won by Shanin Specter, Kila Baldwin and Michael Trunk. Ethicon had raised a large number of appellate issues including whether the suit was timely filed and whether the trial judge made errors concerning evidence and jury instruction. In Hammons v. Ethicon, also tried by Specter and Baldwin, the Supreme Court rejected Ethicon's final arguments concerning the conduct and evidence at trial, which resulted in a $12.5 million verdict. However, the court agreed to hear Ethicon on the issue of personal jurisdiction--namely, whether the Pennsylvania courts may exercise jurisdiction over Ethicon in cases involving plaintiffs from outside Pennsylvania. In allowing review on the jurisdictional question, the Supreme Court denied a group of related petitions that Ethicon had filed in other cases. The firm's pelvic mesh cases claim that vaginal mesh used to remedy organ prolapse and urinary incontinence eroded after it was surgically implanted, leaving women with severe pain, particularly during sexual intercourse.

FDA bans vaginal mesh to treat organ prolapse

 
The battle against defective vaginal mesh products is making headway not only in the courts but also in the news media and with the Food and Drug Administration. After years of debate over the products, the government agency recently ordered the two remaining companies selling the medical device for the treatment of pelvic organ prolapse -- Boston Scientific and Coloplast -- to remove the products from the market. The FDA's step could portend similar action for the purveyors of all mesh products, including those still sold to treat urinary incontinence. Kline & Specter has been a key combatant in the fight, with its attorneys exerting pressure in several ways on the FDA to act. Indirectly: by winning seven verdicts totaling $266 million against Johnson & Johnson subsidiary Ethicon. The verdicts got wide media coverage, one with a lengthy segment on the long-running BBC program Panorama. Directly: In February, two months before the FDA action, Kila Baldwin, winner of several verdicts against Ethicon, addressed an FDA agency advisory committee about the use of vaginal mesh for the treatment of anterior pelvic organ prolapse. Noting catastrophic injuries caused by mesh products, she quoted an internal J&J document stating that "no mesh is the best mesh." Baldwin told the FDA panel: "My clients agree." Shanin Specter, quoted in a lengthy article on mesh products in The New York Times, said the FDA should extend its latest decision to mesh devices used to treat some urinary conditions. "This is a good step forward," he said, "but mesh used to treat stress incontinence also continues to devastate thousands of women, and the FDA should act decisively there, too." In the Times article, which noted more than 100,000 cases against mesh products, Specter said mesh devices used to treat urinary incontinence have an unacceptably high complication rate, in the range of five to 15 percent. He noted there is an alternative surgical procedure that foregoes mesh and instead uses a patient's own tissue. "There was never a need for these mesh products," he said. (Read article)

Stern representing Ethiopian Airlines 302 victim

 
Andy Stern, as lead counsel, filed suit in Chicago federal court against the Boeing Corporation on behalf of a 28-year-old doctor killed in the March 10 crash of Ethiopian Airlines Flight 302 en route to Nairobi, killing all 157 passengers. The suit was filed by Stern and Liz Crawford (Kline & Specter), Wayne Culbertson, Suresh Nekuri and Joe Power (local counsel) on behalf of Manisha Nukavarapu, MD, a citizen of India and a lawful United States resident who had been practicing at East Tennessee State University. Nukavarapu had been traveling to Kenya to visit her sister, who had just given birth to triplets. The lawsuit contends the Boeing 737 Max 8 has a defectively designed flight control system that, without pilot command, "automatically and erroneously forces the aircraft into a dangerous and uncontrollable nose down attitude and dive." The Federal Aviation Administration (FAA) ordered the Max 8 grounded following the crash. Several months earlier, a similar crash of the Max 8 claimed 189 lives in Indonesia. Stern, who has significant piloting and aviation litigation experience, also cited a failure to warn and properly train pilots relating to flaws in the design of the Max 8. The suit was filed in Chicago, the headquarters of Boeing. Stern is seeking punitive damages and claims that Boeing "falsely represented that the subject aircraft is airworthy, safe, reliable and fit for its intended purposes." The complaint also faults the FAA, noting in a section titled "Civil Conspiracy" that: "Boeing conspired with and consented to a scheme, device, plan and agreement with other entities and individuals, including the FAA ... to certify the Boeing 737 Max series in violation of the laws and regulations of the United States for the purpose of speeding up the approval process of the Boeing 737 Max series, which in turn gave Boeing a financial and competitive advantage in the aviation industry." (Read article)

Suit filed against three hotels over sex trafficking

 
In an effort to strike a blow at the rampant sex slave business, Tom Kline, Nadeem Bezar, Emily Marks and Kyle Nocho filed suit against three Philadelphia hotels where two captive girls were sold for sex. The complaint accused the owners and management of the Roosevelt Inn, Days Inn and North American Motor Inns of failing to take steps to prevent sex trafficking "and instead permitted heinous and unspeakable acts to occur" at their establishments. The girls were 15 and 16 years old when they were forced into prostitution by two different traffickers for several months. They were freed in 2013 following raids by the FBI and city police. Kline told the news media: "The lawsuit filed today will seek to remedy the disregard of the degradation and humiliation of young women in order to pursue a profit. These lawsuits seek to right a wrong on behalf of the victims of not only crime, but illicit gain." Bezar added that it was wrong of the hotels to turn a blind eye to the victimization of girls and that, "Plain and simple, it's not acceptable to profit from the sexual assault of children." (Watch Fox29 coverage) The complaint alleged the girls were solicited, held and then taken to the hotels, where they were drugged and forced to have sex with paying customers. Their captors would accompany the girls, described as fearful and anxious, and treat them "in an aggressive manner" at the hotels, where cash was paid for rooms to staff with knowledge of what was occurring on the premises. The lawsuit seeks compensatory and punitive damages. The action follows a suit filed a year ago by the firm against the Roosevelt Inn that was the first civil action under the Pennsylvania Human Trafficking Law of 2014, which allows for compensation for victims against those who profit directly or indirectly from the crime. 

Specter, Merson file suit against landmark hotel in sex abuse case

 
Shanin Specter and Jordan Merson filed suit against New York City's Jane Hotel on behalf of a woman who said she was raped by an employee who let himself into her room. The 39-year-old woman, a resident of Hawaii, said she was asleep when the sexual abuse occurred. She had been staying alone at the landmark West Village hotel for one night before continuing on a vacation trip to Spain. The alleged rapist, a hotel restaurant worker with whom the woman had spoken earlier, used a master key to get into the victim's room, Specter told the New York Post. The lawsuit was filed in Manhattan Supreme Court. The victim, whose name was withheld, has also filed a criminal complaint. The Jane Hotel is well known in New York. It was opened in 1908 and renovations at the establishment were completed in 2008.

Kline addresses 500 at annual conference


Tom Kline was the keynote speaker at The Dispute Resolution Institute's 21st annual Personal Injury Potpourri held at the Pennsylvania Convention Center. He discussed four themes of practicing law -- advocacy, remedy, accountability and reform -- and did so by giving the 500 attorneys in attendance a virtual (Power Point) tour of the Thomas R. Kline Institute of Trial Advocacy and its recently completed Exhibit Hall. The institute, at 12th and Chestnut streets, includes exhibits of some of Kline's famous cases, such as the Hall v. SEPTA case in which he won a $51 million verdict for a little boy whose foot was torn off in a SEPTA escalator. The case also resulted in the mass transit agency replacing and updating its escalators systemwide and also improving its inspections program. The exhibit includes details of many other cases plus artifacts from the "life and times" of Tom Kline. One such item was the somewhat misshapen metal funnel Kline had made in his younger days, an exhibit accompanied with Kline's words: "When I brought home this funnel, which I made in seventh grade shop class, my dad inspected the shape and rendered the following verdict: 'It is clear that you are going to have to learn to make your living with your head rather than your hands.'"  (Watch the full speech.)

Specter discusses questioning witnesses on Smerconish show


Shanin Specter gave a condensed lesson on "How to Ask a Question" on The Michael Smerconish Program on SiriusXM radio following a Senate hearing in which Attorney General William Barr was questioned. Smerconish, who is of counsel at Kline & Specter, asked Specter to grade senators on their questioning. Specter, who teaches "How to Ask a Question" at four law schools -- Hastings, Stanford, Berkeley and Penn -- gave Kamala Harris an A for posing "tight, focused questions." He also praised the Democratic presidential contender, a graduate of Hastings and a former California attorney general, for being quick with follow-up questions, remaining determined but polite throughout. Specter gave some Republican senators on the panel a grade of F because they didn't ask substantive questions but instead "were cheerleaders for the attorney general." His tips for questioning witnesses: (1) Know your facts; a fundamental failing of questioners is that they don't know enough about a given subject and not as much as those they are questioning (2) Use brief questions (3) Use "small and old" words (4) Listen to a witness -- instead of concentrating on your next question -- so you can pose an intelligent follow-up question, and (5) Be polite; "You don't want the audience to think you're the bad guy," he said. Smerconish asked when it is appropriate to be impolite. Specter's answer: Never. "You can get increasingly more direct and firm with your questions. Your voice timbre may raise slightly as you go along ... but you can never become impolite ... because then the focus goes to you and not the answers or the non-answers." And then, he said, your audience (or a jury) may become sympathetic with the witness. (Hear the complete interview)

Becker presents program on PA Constitution


Chip Becker co-presented a program titled "The Pennsylvania Constitution:  An Independent Source of Rights and Judicial Power" to the Pennsylvania State Trial Judges Conference in Pittsburgh. The conference is an annual event for the Pennsylvania Common Pleas Court judges, of whom there are roughly 500 across the state. Also in attendance were many state appellate judges. The program highlighted provisions of the Pennsylvania Constitution that have no counterpart in the federal document yet have governed significant judicial decisions in Pennsylvania. The program also discussed Pennsylvania constitutional rights that overlap with federal constitutional rights but have been interpreted by the Pennsylvania Supreme Court in a distinct fashion based on Pennsylvania history and the text and structure of the Pennsylvania constitution.

Laidacker addresses appellate courts committee

 
Andra Laidacker presented a CLE to the Philadelphia Bar Association Appellate Courts Committee on the topic of the appellate rule-making process and the recently enacted changes to the Pennsylvania Rules of Appellate Procedure. Laidacker, a member of Pennsylvania's Appellate Court Procedural Rules Committee since June 2017, spoke about how the ACPRC interfaces with the Supreme Court and with members of the bar in the process of promulgating rules. Laidacker also addressed attendees' questions about deliberative confidentiality and the transparency of the rule-making process. Lastly, she commented on the recent changes to Pennsylvania appellate practice concerning citation to non-precedential decisions of the Superior Court, applications for stay, and the rule concerning cross-appeals. 

Kline interviewed by HLN, Fox News

 
Tom Kline appeared on CNN's Headline News in a lengthy segment following the sentencing of four Penn State fraternity brothers in the hazing death of Timothy Piazza. Kline, who represents parents Jim and Evelyn Piazza, said: "This is about accountability and deterrence and the most important mission of the Piazzas is to make sure that this never happens again." The Piazzas have been making appearances across the country to push for legislation to make hazing a felony. Pennsylvania recently enacted such a law. "At the end of the day," Kline said, "the Piazzas want to make sure that no other parents have their situation with this horrible tragedy and the loss of their son."  (Watch the segment
 
In an unrelated matter, Kline was interviewed about a bizarre case in the news about an autopsy company run by a man who had falsely claimed he was a medical doctor. Kline said he'd never seen such a case in his 40 years of practicing law. (Watch the news clip)

Kline in for Barkley?


Good Day Philadelphia host Mike Jerrick and reporter Steve Keeley bantered on air about 76ers fan Tom Kline sitting courtside during the playoffs and kidded about him perhaps someday providing color commentary for the games. They noted that would give Kline & Specter five doctor/lawyers and one NBA commentator. (Watch the clip, including Jerrick's Tom Kline impression)

Upcoming Events: 
 

July 22 ? Andra Laidacker will speak at the annual Pennsylvania Bar Institute's Supreme Court Roundup 2019 -- a review of cases decided by the U.S. Supreme Court during the 2018-2019 term. At the PBI's Wanamaker Building Conference Center, Philadelphia, 12:00-4:30 p.m.

PHOTO GALLERY:


Ribbon cutting ceremony for the Andy and Gwen Stern Community Lawyering Clinic of the Thomas R. Kline School of Law. Gwen Stern is a law professor at the Kline School of Law. The Sterns made a $1.65 million gift to Drexel University to help enrich the law school's clinic located at Drexel's Dornsife Center in West Philadelphia. From left: Drexel President John Fry, Center Director Prof. Rachel Lopez of the Kline School of Law, Andy Stern, Gwen Stern and Dan Filler, Dean of the Kline School of Law


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