Feds drop appeal in major med-mal case, to pay in full

The $41.6 million verdict won by Regan Safier for a child injured during birth will be paid in full, as the federal government withdrew its appeal of the record award. The verdict -- believed to be the largest ever in a medical malpractice case in the U.S. middle district of Pennsylvania – was handed down by Judge Sylvia H. Rambo following a six-day bench trial last April for a child who suffered severe brain injuries in a botched forceps delivery at a central Pennsylvania hospital. Rambo ruled that obstetrician Dr. Thomas Orndorf, who was employed at a federal health center, violated the standard of care when he delivered the child. Safier applauded the government’s decision to drop its appeal. She told the news media: “The government recognized that their issues on appeal were without merit and that the verdict was just and appropriate.  The judge recognized the catastrophic injuries suffered by this child and awarded the money necessary to care for him over his lifetime.” The doctor’s use of forceps resulted in skull fractures that caused brain bleeding and destruction of the child’s cerebellum, leaving him with intellectual and physical disabilities. The bulk of the award, $32.9 million, is to pay for future medical care in periodic payments over the child’s lifetime. Another $5 million was awarded for non-economic damages such as pain and suffering and $2.7 million was for future lost wages, among other payments. (See news article.)

Williams aids whistleblower in $16.2 million Medicare fraud case

David Williams represented a whistleblower in litigation that resulted in a $16.2 million judgment against Orthopaedic and Neuro Imaging LLC and its owner for submitting false claims for Medicare reimbursement. The whistleblower, Robin White, a former ONI employee, is entitled to receive 18 percent of the judgment (a $2.9 million reward) under the U.S. False Claims Act. A federal judge in Delaware ruled that the company, which operates independent diagnostic testing facilities in Delaware and Maryland, defrauded the government by administering contrast dye during MRI scans in patients without the required supervision of a physician. (Read the government news release) In such cases, a private attorney representing a whistleblower will often institute a lawsuit under the qui tam provisions of the False Claims Act and then the government will take over the case. After the judge’s ruling, the FBI issued a statement saying that the agency “along with our partners, will work aggressively to combat healthcare fraud utilizing all tools available to the agencies charged with rooting out fraud. We will continue to work tirelessly to prevent these programs from becoming targets and fight fraud wherever we find it. Medical providers who take shortcuts to enrich themselves in delivering patient care will be held accountable.” Williams lauded both his client and the government’s endeavors. “This tremendous outcome was only possible because our client had the courage to step forward,” he said. “The judgment reflects the hard work and collaborative effort of private attorneys and the government as envisioned by the drafters of the False Claims Act.”

Bezar, Marks win settlement in accidental shooting death

Nadeem Bezar and Emily Marks achieved a $7 million settlement against a child welfare agency in the highly publicized death of a four-year-old girl who was accidentally shot by her father. An official investigation into the April 2016 shooting reportedly found that the child and six siblings lived in squalid conditions in their West Kensington home. The review found that the agency, which had contracted with the city and the Philadelphia Department of Human Services, had multiple warnings that things were not right at the home but that it failed to follow procedures to keep the children safe. A panel that reviewed the girl’s death found “institutional neglect” during the family’s involvement with DHS. The seven children lived in the house with no running water or central heat, only the warmth they were able to get from space heaters and hair dryers. They were fed little, instead of a meal often forced to split two cans of soup among them and given one tablespoon of oatmeal each. They slept on trash bags and were forbidden from going outside. On the day of the incident, the little girl was shot by accident by her father as she and her siblings were watching television. “My heart breaks for what these children had to endure for years and especially that they were left to witness the shooting death of their own sister,” said Bezar. “How this agency allowed these children to be exposed to such danger is unfathomable.” The review of the incident was conducted by the Pennsylvania Department of Public Welfare as well as administrators at DHS, the Philadelphia law and health departments, city hospitals and the Philadelphia Police Department.

Ruling opens the door to punitive damages in Risperdal cases

A ruling that “significantly raises the stakes,” as The Legal Intelligencer put it, of litigation against the maker of Risperdal was handed down recently by Pennsylvania Superior Court. A panel of the court decided to allow punitive damages in cases against Janssen Pharmaceuticals, a division of Johnson & Johnson and maker of the anti-psychotic drug that has been linked to gynecomastia, or the growth of female-like breasts in boys and male adolescents. The ruling evolved from a case tried by Kline & Specter founding partner Tom Kline in which a jury awarded $500,000 to Timothy Stange, a Wisconsin resident, but was not allowed to consider punitive damages. The latest ruling was outlined in a 42-page opinion in which the panel said the trial judge should have applied the law from Stange’s home state of Wisconsin, which does allow limited punitive damages. The judge instead considered only statutes from Pennsylvania or New Jersey, the latter being J&J’s principal place of business. The decision will require re-evaluation of cases already tried and potentially larger – perhaps much larger – verdicts in those coming to trial. It may also provide incentive for J&J to settle pending cases. “The stakes in any mass torts are raised when punitive damages are recoverable,” Kline was quoted as telling the Intelligencer. ”This thoughtful and thorough opinion will now provide guidance for the entire litigation moving forward.”

Baldwin, client appear on BBC investigative program

Kila Baldwin appeared on the popular BBC investigative program Panorama to discuss defective vaginal mesh products sold by Johnson & Johnson and the subject of thousands of lawsuits by women worldwide. Panorama was first broadcast in 1953 and is the world's longest-running current affairs TV program. Baldwin discussed the case of Ella Ebaugh, 51, of Manchester, Pa., who had two mesh devices surgically implanted to relieve urinary incontinence. After the mesh eroded in her body, Ebaugh suffered a myriad of injuries, among them chronic pelvic pain and dyspareunia, or severe pain during sex. Two surgeries failed to resolve the problem. Earlier this year, Baldwin and co-counsel Tracie Palmer and Elia Robertson won a $57.1 million verdict, including $50 million in punitive damages, against J&J subsidiary Ethicon. Ebaugh, who appeared on the show with members of her family, cried as she recounted the trial and the lifelong injuries she will endure. “There’s nothing they can do to help me. There’s nothing they can do to fix it,” she said, adding. “It’s tough. The man that I love I can’t be intimate with.” Baldwin told Panorama reporter Lucy Adams that she was shocked when she first examined documents showing Ethicon had done relatively little testing of its product before bringing it to market. “I thought, ‘My God. This is frightening, this is really frightening that a company can conduct itself this way.'” (Watch the full 30-minute program

Plaintiffs win important ruling in vaginal mesh cases

The plaintiffs in vaginal mesh injury cases have won an important judicial ruling to keep some 120 cases filed by out-of-state clients in Philadelphia Common Pleas Court. J&J had sought to have the cases against subsidiary Ethicon dismissed from the venue, citing the U.S. Supreme Court’s recent decision in Bristol-Myers Squibb v. Superior Court of California. But Common Pleas Judge Arnold New ordered that all but one case be kept in Philadelphia. The venue effort was led by Lee Balefsky, head of the firm's Mass Tort Department, who deposed critical witnesses in the case.
Shanin Specter, who, with Baldwin, has won mesh verdicts of $12.5 million and $13.5 million for Indiana and New Jersey women in Philadelphia court, hailed the decision by New. He commented to The Legal Intelligencer: “We are heartened by Judge New’s ruling … Now our badly injured clients can continue to have us try their cases, which have been overwhelmingly successful both in Philadelphia and around the country.” Kline & Specter attorneys have also won verdicts in Philadelphia against the makers of vaginal mesh, including the $57.1 million award (see above), a $20 million award won by Christopher Gomez with attorneys from Ohio and Florida, and a $2.16 million verdict by Tom Kline with Baldwin and Gomez. The largest of those verdicts was not affected by New’s decision since the woman was from Pennsylvania and thus venue was not an issue. The Supreme Court ruling in Bristol-Myers made clear that out-of-state plaintiffs cannot sue companies where defendants or injured parties are not considered “at home.” But while Ethicon is based in New Jersey, New noted that all but one of its mesh products were manufactured by a company, Secant, located in Bucks County, Pa.

Appeals court keeps $20.6 million verdict in Polett case

A three-judge panel of Pennsylvania Superior Court has upheld a $20.6 million verdict for a woman injured while taping a promotional video for a knee-replacement procedure. The ruling was the latest in the protracted appellate battle that began following a 2010 jury verdict for Margo Polett, who underwent four surgeries following the incident. The appellate panel this past December found against defendants Public Communications Inc. and Zimmer Inc., an orthopedic medical device manufacturer, which claimed in their appeal that the verdict – even though reduced from a jury’s original $27.6 million award, including $1 million for her husband’s loss of consortium -- was still too much. After a number of appellate rulings, the trial judge had reduced the award but the defendants have continued to argue that an appropriate award is roughly $1.5 million. The Poletts are represented by Shanin Specter and Charles “Chip” Becker, head of the firm’s Appellate Division. In a joint statement published by The Legal Intelligencer they said: “It’s been seven years and it’s enough already. The verdict should not have been cut to begin with, but it was and we have to live with that. We hope today’s decision will close the door on this tragic accident.”

Duquesne Law publication “covers” Tom Kline

Tom Kline was featured on the cover of The Duquesne Lawyer magazine for his lifelong dedication to education and his philanthropic efforts. Kline, who began his professional career as a sixth-grade social studies teacher, last fall announced a $7.5 million gift to Duquesne for the creation of The Thomas R. Kline Center for Judicial Education. Kline told the semi-annual magazine: “In a world where the discourse is coarse, and where incivility tragically appears to become the norm, we all need to use all of our energy to rise up against it and change it. That’s why education from the first day of law school to the last for a judge on the bench is vital.” The magazine praised Kline’s ability to obtain justice for his clients while also bringing positive change for the legal system and society as a whole. “Tom Kline’s story,” it wrote, “reads like a carefully constructed novel with high-Hollywood mini-series potential, and it’s far from over. He has maintained an upward trajectory that has taken him to heights of the sort few in the legal profession can match." (See the entire article)

Specter improves Cambridge debate record to 2-1

Shanin Specter debated in January at The Cambridge Union at Cambridge University, where Specter earned a Masters of Law degree. The topic was driverless cars, yea or nay. Specter anchored the team in favor of autonomous vehicles. Addressing remarks by one opponent, Aston Martin CEO Andrew Palmer, Specter commented: “When he says that the part of the vehicle that breaks down the most is the electrical system, I say to him, ‘No sir! The part that breaks down most often is the driver! It’s the drunk driver. It’s the driver on drugs … ‘ Autonomous cars bring the hope of a safer world.” Specter agreed that the future of the autos is unknown. “But let us have the freedom to be wrong,” he said. “The history of the human experience has been that every technological advance from the printing press to the Internet has made us more efficient and happier.” Specter’s team won, with the audience deciding the outcome. It was Specter’s third appearance at the world’s oldest debating society and his record now stands at 2-1. He lost in his second appearance in 1984 on the topic of whether Ronald Reagan should get a second term as president, a question posed as U.S. missiles were being positioned at two sites in England amid massive protests. But he won his first debate at the union, this one on whether the United States posed a greater threat to world peace than the Soviet Union. Specter spoke on the side of the United States. But he was not the only Specter at that contest. Recruited for his team was a heavy hitter, his father, Sen. Arlen Specter. (Watch the entire debate; Specter's presentation begins at 1:29:04)

Smerconish addresses Temple grads

The important lessons are learned from life’s disappointments, not one’s accomplishments. So said Michael Smerconish, of-counsel at Kline & Specter, as he delivered the December commencement speech to graduates of the Klein College of Media and Communication at Temple University. Smerconish, who hosts a syndicated daily radio program on SiriusXM and a weekly TV show on CNN as well as writing a regular column in The Philadelphia Inquirer, told his audience about how he had previously substituted on various TV shows but was never offered his own program until recently. “After local success but many national rejections, I gave serious consideration to returning to the practice of law. It looked like I’d tapped out on radio and TV, that I would forever be regarded as a dependable backup – the Nick Foles of broadcasting.” Smerconish went on to tell the graduates not to expect that success will come easily. He concluded with these remarks: “My climb has taught me that in order to succeed, having the skill set isn’t enough. You’ll need to request the meeting. To write the email. Better yet, to sign the letter. Make the phone call. Be prepared to introduce yourself. To show up where not invited … Your level of professional success will be determined by your unwillingness to accept rejection and failure.” 

Kline feelin’ groovy in new musical album

Tom Kline put both feet in with a musical album for children (and some happy-go-lucky adults) titled “My ABC’s” and containing 26 songs including Hokey Pokey, Swinging on a Star, Working on the Railroad, Singing in the Rain, Take Me Out to the Ballgame, High Hopes and the 59th Street Bridge Song, a.k.a. Feelin’ Groovy. Kline sings lead vocals and arranger/producer Jerry Bernhardt backs up with vocals, guitar, bass, banjo, mandolin, piano, drums and sound effects. The album was recorded and edited by Professor Cyrille Taillandier at the Westphal College of Media Arts & Design at Drexel University. The album was dedicated to Kline’s grandchildren, Parker, Cole, and Dylan Merson. To hear the album, click here: “My ABC’s.”

Zakeosian addresses conference on opioid litigation 

Gary Zakeosian spoke at a meeting of the American College of Toxicology and Medicine’s two-day conference on opioids at the Chemical Heritage Foundation. Zakeosian, one of the firm’s five doctor/lawyers, addressed the subject of “Opioids in Civil Litigation, the Plaintiff’s Perspective.” Zakeosian gave an overview of the current state of mass tort litigation with respect to opioids and opioid crisis, focusing largely upon actual litigation of one case involving death due to in-hospital opioid overdose. The case involved the death of a 35-year-old man who had been hospitalized for abdominal pain due to negligent administration of the opioid Dilaudid (hydromorphone).  The case resulted in a verdict for the plaintiff against the attending physician and the hospital.  Other presenters at the conference addressed the current opioid epidemic sweeping the nation.

Volunteer chefs to make dinner at Ronald McDonald House 

Legal assistants Angela Fattizzo and Stephanie Hines will be stirring the pots as part of the Guest Chef Program at the Ronald McDonald House in West Philadelphia (39th and Chestnut streets) on Tuesday, March 6. They are part of a 15-member team that will prepare dinner for roughly 80 people. Food donations are welcome. The menu theme will be “Breakfast for Dinner.”

Appointments and honors:

Colin Burke received the Craig M. Perry Service Award from the Young Lawyer Division of the Philadelphia Bar Association. The award is presented annually to a young lawyer who has devoted substantial time and energy to community-oriented activities. Burke worked as a volunteer with the Young Lawyer Expungement Clinic, meeting with clients, drafting petitions and arguing their cases at the Criminal Justice Center. He also works pro-bono for LegalLine P.M., the bar association’s program providing free legal advice to indigent clients. Burke has volunteered as a “lawyer for a day,” speaking with high school students about the life of a lawyer.

Priscilla Jimenez was named Diversity Chair of the Philadelphia Bar Association for 2018. Jimenez, who is fluent in Spanish, is president of the Hispanic Bar Association of Pennsylvania, where she mentors minority law school students, and she is past-president of the Hispanic Bar Association’s Legal Education Fund. In April 2017, she was named to the board of directors of the Council of Spanish Speaking Organizations of Philadelphia, Inc. (Concilio), and in 2016 she was selected as one of the "Delaware Valley's Most Influential Latinos" by the newspaper Impacto.

Michelle Paznokas was named faculty fellow/co-professor at the Thomas R. Kline School of Law. Paznokas graduated sixth and magna cum laude in her class at Kline Law while also serving as notes editor for the Law Review. She was the school’s Criminal Law Dean’s Scholar and as a student she helped first year law students understand criminal law and conducted weekly classes on difficult concepts. Paznokas co-created and presented public workshops and did pro-bono work on estate planning and immigration.
 

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