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VERDICTS,
SETTLEMENTS
& TACTICS ·
A PERSONAL INJURY LITIGATION REPORTER
Volume 30, Number 4, April 2010
MEDICAL LIABILITY
Anesthesiology/Pain Management
1.
$19.2 Million Verdict In Suit Arising From Epidural
Catheter For Post-Operation Pain Control Of Patient
On Prior Anticoagulant Therapy ........................................ 163
16.
Defense Verdict In Su it Alleg ing Failure To Monitor
Post-Surgical Morphine .................................................... 174
17.
$11.1 Million Verdict In Suit Alleging Failure To
Diagnose Infant's Dehydration ................................. ........ 175
18.
$1,694,000 Verdict In Suit Arising From Hospita l Lab's
Failure To Transmit Positive Strep Test Result ................. 176
2.
Defense Verdict In Suit Arising From Cervical Block
Injection .............................................................................. 164
19.
$4 Million Verdict In Suit Alleging Failure To Properly
Treat Diabetic Patient .. ...... .... .............................................177
3.
$1 Milli on Verdict In Suit Alleging Negligence In Filling
Implanted Pain Pump ...................... .................................. 165
20.
Bench Verdict Finding Hospital Liable For Patient's
Lisfranc Fracture ......... ........................................................177
21.
Settlement In Sui t Alleging Failure To Respond To
Signs Of Stroke Following Cervical Decompression .. ..... 178
22.
$23.2 Million Verdict In Suit Arising From Birth Injury ..... 179
23.
Defense Verdict/Settlement In Suit Arising From Birth
Injury ................................................................................... 179
24.
Bench Verdict For Defendan t In Suit Arising From
Birth Injury ..........................................................................180
Dermatology
Neurosurgery
4.
$175,000 Verdict In Suit Al leging Delay In Diagnosing
Melanoma ........................................................................... 165
5.
Defense Verdict In Suit Alleging Failure to Diagnose
Impending Stroke .... ........................................................... 166
6.
$450,000 Verdict In Suit Alleging Failure to Diag nose
Impending Stroke ............................................................... 166
7.
Defense Verdict In Suit Alleging Failure to Diagnose
Endocarditis ..................................................... .. ... ........ ...... 167
8.
Defense Verdict In Suit Alleg ing Fail ure to Diag nose
Cauda Equina Syndrome ........................ .... .... .... ............... 167
25.
Verdict In Suit Alleging Negligence In Discharging
Psych iatric Patient. ................................ ... ..... ... .. ................ 167
Defense Verdict In Suit Alleg ing Neg ligence In
Treating Valgus Deformity ... ....... ........................................ 181
26.
Defense Verdict In Suit Alleging Failure To Diagnose
Sarcoma ........................................ .................................... 182
27.
Defense Verdict In Suit Arising From Complications
From Orthopedic Surgery ........................................ .... .... .. 183
28.
Defense Verdict In Suit Arising From Infant's Death
From Abdominal Aortic Clot ........................... ............... .. 183
29.
Defense Verdict In Suit Arising From Bunion
Procedure ........................................................................... 184
30.
$1,340,927 Verdict In Suit Alleging Negligence In
Diagnosing Bipolar Disorder and In Prescribing
Lamictal ............................. ...... ..... .... .................................. 184
Emergency Medicine
9.
Family Practice/Primary Care
10.
Family Practice Doctor Not Liable For Alleged
Incorrect Therapy Provided To Cancer Pa tient ....... .........168
11.
Defense Verdict In Suit Alleging Failure To Diag nose
Fractured Wrist .................. .... .... .... .. .... .. ........................... 170
12.
$7.4 Million Settlement In Suit Alleging Failure To
Diag nose Cervical Epidura l Abscess .. ................................ 171
Gastroen terology
13.
Defense Verd ict In Suit Alleging Failure To Properly
Diagnose And Treat Fecal lmpaction ................................ 172
14.
Defense Verdict In Suit Arising From Colonoscopy for
Patient with Crohn's Disease ....................................... ...... 173
15.
$8 Million Verdict In Suit Alleging Delay In
Responding To Signs Of Shunt Malfunction ....... . .......... 174
Hospitals
40831887
Ob/Gyn
Orthopedics
Pediatrics
Podiatry
Psychiatric Care
continued on inside
VERDICTS, SETTLEMENTS & TACTICS
tool was stuck so he applied slight pressure to remove the
tool from its spot. The tool dislodged quicker than he had
anticipated, and, in an attempt to balance himself, plaintiff
put his right hand on the pipe, and inadvertently in the jaws
of the tool. In the process of regaining his balance, plaintiff
pressed the button that engages the crimping motion of the
tool he was holding in his left hand.
The crimping tool requires a single push of a button
to engage the crimping jaws, rather than a double trigger mechanism. Once the crimping starts, the jaw clamps
down with over 7,000 pounds of force for seven seconds.
The tool does not have an emergency off switch. Plaintiff alleged that the tool was defectively designed and that
there were inadequate warnings.
Defendant contended that the tool was not defectively
designed or unreasonably dangerous, and that the warnings were adequate. Defendant disputed plaintiff's claim
that emergency stop switch would have prevented or mitigated plaintiff's injury. The defense argued that no other
press tool on the market uses a double acting switch. The
defense contended that the injury was caused by plaintiff's
negligence in positioning himself on the ladder.
General Injury: Open compound fracture of plaintiff's
right fourth metacarpal with lacerations of the dorsal and
palmar aspect of his right hand.
Plaintiff has returned to work as a plumber, but has residual difficulties with his hand.
M edical expenses: $22,561.05
Lost earnings: $23,000.
Result: Jury verdict in favor of defendant.
Plaintiff's Expert Witness: John Orlowski, P.E., Norwood, Massachusetts
Defendant's Expert Witnesses: James E. Harnm, engineering and crimping tool design, Elyria, Ohio; Erick H .
Knox, engineer, accident reconstruction, Aurora, Illinois
Plaintiff's Attorney: Maureen Counihan, Burlington,
Massachusetts
Defendant's Attorneys: David A. Barry and Ser ena
D. Madar, Sugarman, Rogers, Barshak & Cohen, Boston.
Massachusetts
Barowy v. Ridge Tool Company, No. 08-107 19 (U.S.
District Court, Mass. February 5, 201 0)
Pharmaceutical Products
$9,450,000 Verdict In Suit Arising From Use
Of Prempro
Audrey Singleton, who was born on April 17, 195 1, and
worked as a bus driver, took Prempro from Aug ust 1997
to January 2004 for m enopause symptoms as well as bone
and heart prevention. Before· starting Prempro, she had a
mammogram that was normal. Both Mrs. Singleton and
© 2010 Thom son Reut ers
Volume 30, Number 4, April 2010
her prescribing physician, Dr. Donald, did not believe
there was a significant breast cancer risk associated with
the use of Prempro. In July 2002 , a government-funded
study 's Women's Health Initiative (WHJ) results were released regarding Prempro. Plaintiff's prescribing physician, Dr. Donald, believed that the only new finding from
that study was that Prempro did not provide heart benefit
Because Mrs. Singleton was on the drug for more than just
heart benefit, Dr. Donald recommended that she continue
to take Prempro. Dr. Donald did not appreciate that the
WHT study also showed an increased breast cancer risk associated with Prempro until he saw Wyeth 's updated label,
which was printed for the first time in the PDR book in
February of 2004. However, that was too late for Audrey
Singleton. In January 2004, she was diagnosed with breast
cancer.
She underwent a mastectomy, which confirmed invasive ductal cancer that had spread to the lymph system (s
of 2 SENTINEL lymph nodes positive for metastasis and
1 of 18 AXILLARY lymph nodes positive). She underwent
chemo, radiation and remains on continuous anticancer
drug treatment (Arimidex) today.
Suit was bro ught against Wyeth.
General Injury: Metastatic breast cancer.
Result: Jury verdict awarding plaintiff $3,250,000
in compensatory dam ages, $200,000 in compensatory
dam ages to plaintiff's husband, and $6 million punitive
damages.
Plaintiff's Expert Witnesses: Dr. Elizabeth Naftalis,
breast surgeon on m edical causation, Dallas, Texas; Dr.
Suzanne Parisian, former FDA medical officer, on regulatory and liability issues, Phoenix, Arizona
Defendant's Expert Witnesses: Dr. Lewis Chodosh,
cell biologist, on medical causation, Philadelphia, Pennsylvania; Dr. Susan Allen, FDA regulatory expert, Arlington, Virginia
Plaintiff's Attorneys : Zoe Littlepage and Rainey
Booth of Littlepage Booth, Houston, Texas; SamAbloeser
ofWilliams, Cuker & Berezofsky, Philadelphia, Pennsylvania; Rich Lewis, Washington, D.C.
Defendant's Attorneys: David Dukes of Nelson Mullins, Columbia, South Carolina; Heidi Hubbard of Williams & Connolly, LLP, Washington, D.C .; Barbara Binis
of Reed Smith LLP, Philadelphia, Pennsylvania
Singleton v. Wyeth, No. 002885 January Term (Philadelphia Cty. Ct. of Common Pleas, PA Feb. 22, 20 10)
COMMENTS
Plaintiff's attorneys comment that this was the first hormone therapy case where a substantial amount ofPrempro
use occurred after the WHI study. lt was thus important
for plaintiff to establish that Wyeth downplayed the results
and importance of the WHI study in order to encourage
203
Volume 30, Number 4, April2010
physicians to continue to proscribe its drug, even after the
WHI study showed serious risks for long-term use.
Defense Verdict In Suit Against Manufacturer
Of Botox
Kristen Spears, a 7-year-old with juvenile cerebral
palsy, allegedly died as a result ofBotox injections on November 24, 2007, in Amarillo, Texas. Plaintiff alleged that
Kristen's BOTOX® injections caused Kristen to suffer seizures that contributed to her death.
Kristen Spears received Botox injections for limb spasticity, an off-label use. Plaintiff alleged that Allergan promoted the off-label use of Botox by Kristen Spears' doctor. Plaintiff alleged that Allergan encouraged this doctor
to inject cerebral palsy children with a Botox dosage approximately 50 times stronger than the approved cosmetic
dosage. Allergan sales representatives allegedly made
dozens of sales calls on Kristen's doctor-a pediatricianeven though there are no approved pediatric uses of Botox. After receiving a series of Botox injections in 2006
and 2007, Kristen Spears developed pneumonia, and her
seizures worsened dramatically, plaintiff alleged. Plaintiff
further alleged that Allergan had information that Botox
caused or exacerbated seizures as early as 2004, but intentionally withheld this information from the medical
community and the public, including Kristen Spears' family and physician. She also developed muscle weakness
in her neck, which left her unable to hold her head up.
Kristen Spears died on November 24, 2007, as an alleged
result of her Botox injections. Her mother, Dee Spears, is
her surviving heir and successor-in-interest. Dee Spears
would not have consented to the Botox injections if she
had been informed of the risks of symptoms of botulism
and seizures.
Defendant disputed plaintiff's allegations, and defendant argued that plaintiff failed to establish that BOTOX®
injections can cause seizures and that Kristen's BOTOX®
injections actually caused Kristen's seizures. Defendant
further contended that plaintiff failed to show that Allergan failed to disclose any information about BOTOX® to
Kristen's pediatrician that Allergan had a duty to disclose
and that would have caused Kristen's pediatrician to do
anything differently.
General Injury: Death.
Result: Jury verdict in favor of Allergan.
With respect to the strict liability claim for failure to
warn, the jury found that the potential risks or side effects
present a substantial danger to users of Botox, but the jury
found that at the times that Botox was administered to
Kristen Spears, ordinary consumers would not have recognized the potential risks or side effects. The jury further found that at the times that Botox was administered
204
VERDICTS, SETILEMENTS & TACTICS
to Kristen Spears, Allergan, Inc. did not fail to adequately
warn of the potential risks or side effects.
With respect to the claim for negligent' failure to warn,
the jury found that at the times that Botox was administered to Kristen Spears, Allergan, Inc. did not know or
should reasonably have known that users would not realize
the d~J:!ger.
Plaintiff's Expert Witnesses: Michael (Rusty) J. Nicar,
Ph.D. , toxicologist; Jeftrey J. Barnard, M.D., Dr. Shayne
Gad, toxicologist
Defendant's Expert Witnesses: Dr. Hank Chambers,
expert witness on the use of Botox in cerebral palsy children; Dr. Mauricio Montal, molecular biophysicist with the
University of California, San Diego
Plaintiff's Attorneys: Ray Chester, Patton G. Lochridge, Jessica Palvino of Robinson, Calcagnie & Robinson, Inc.
Defendant's Attorneys: Ellen L. Darling, Saleem K.
Erakat and Caitlin C. Blanche Snell & Wilmer L.L.P.
Spears v. Allergan, Inc., No. 30-2008-00180033-CUMT-CXC (Orange County Superior Court of California
March 2, 2010)
Recreational Products
Settlement In Suit Alleging Defective Paintball
Goggles
On March 19, 2006, plaintiff Jorge Martinez played
paintball at Skirmish's facility in Jim Thorpe, Pennsylvania, as part of a group that had traveled to Jim Thorpe
from New York. Paintball is an activity in which two or
more teams, or separate individuals, engage in mock war
games. Participants shoot their opponents with paintballs,
which are gelatin encased balls of dye that are propelled
from paintball guns by the use of carbon dioxide gas or
compressed air.
Skirmish sells and rents paintball equipment to participants who do not have their own, including paintball guns,
goggles and paintballs. Martinez did not own his own
paintball equipment. Consequently, when Martinez arrived
at Skirmish's Jim Thorpe paintball facility, he rented a
paintball gun, paintball goggles and a camouflage suit and
purchased paintballs from Skirmish. A referee provided by
Skirmish rode the bus with Martinez's group and reviewed
the rules of play. Martinez was not supposed to take his
goggles off during paintball games.
The pair of goggles that Martinez rented from Skirmish
on March 19, 2006, were returned to Skirmish's general
inventory after his injury and have not been located. Martinez has, however, identified the goggles he rented from
Skirmish on March 19, 2006, as VForce Armor Rental
Field Black Goggles. The word "Vforce" was printed on
the top of the goggles.
© 2010 Thomson Reuters