$5.5 M verdict upheld for NJ family injured when tire blow out overturned SUV

A $5.5 million award to a family injured when a tire blew out on their SUV has been upheld by the Appellate Division of the New Jersey Superior Court on April 23.  An Essex County, NJ, jury found that Flemington Buick Chevrolet Pontiac GMC in Raritan Township was negligent in servicing the vehicle three days before it overturned on Interstate 95 in Virginia on Easter Sunday, 2009.  Flemington Car and Truck Country appealed the verdict, but the Appellate judges found no errors that would have justified a mistrial.

Roy Allen and his family were driving to Florida for a vacation in Allen’s 2004 Chevrolet TrailBlazer when the right rear tire blew out.  According to the Allen family’s attorney, Chris Hager of Niedweske Barber Hager in Morristown, NJ, Allen had purchased three maintenance agreements from Flemington Chevrolet, including one specifically for the SUV’s tires.  The dealership had serviced the vehicle 17 times prior to the crash.  When Allen brought the TrailBlazer in for service on April 9, 2009, he told service department employees that something wasn’t right with the vehicle’s rear axle.  However, the employees didn’t check the rear tires, even though that’s the first item that should have been checked according to the General Motors service manual.  Furthermore, the right rear tire that blew out was known to have had a bald spot as early as January 2009, when it was rotated from the front to the rear axle by workers in the Flemington service department.

The Allens’ daughter, Carla Ceasar, was driving the SUV when it overturned.  Her son and daughter were also in the vehicle, along with Allen and his wife, Erna.  Hager says Ceasar sustained serious head injuries in the wreck, and still suffers migraines, hearing loss and involuntary hand tremors.  Roy Allen was 82 when the accident happened, and died later from an illness not related to the accident.  His wife Erna was 73 at the time, and sustained neck, shoulder and back injuries that will require treatment for the rest of her life.  One of Ceasar’s children suffered minor injuries and emotional trauma.

Following a 13-day trial before Judge W. Hunt Dumont, the Essex County jury awarded $7.5 million to the family.  However the punitive part of the damages was later reduced from $5 million to $3 million.  Compensatory damages were $2.5 million.

The case is Carla A. Ceasar, Erna D. Allen and the estate of Roy D. Allen, et al v. Flemington Car and Truck Country, et al.  The appeal was heard by the Superior Court of New Jersey Appellate Division, Docket No. A-1464-12T3.  The trial was held in the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7665-09.  Kevin Barber and Christopher W. Hager of Niedweske Barber Hager, LLC represented the plaintiffs/respondents/cross-appellants in the appeal, and Alan White, Alexander Gillespie and Becky Caruso of Bonner Kiernan Trebach & Crociata, LLP represented the defendants/appellants/cross-respondents.

The Arizona Supreme Court ruled that finding trace amounts of marijuana metabolite in a driver’s bloodstream isn’t enough to convict the person of Driving Under the Influence (DUI).  The justices ruled that the state must prove that drivers have actually been impaired by the drug while driving.

According to the on April 22 ruling, police stopped a vehicle driven by Hrach Shilgevorkyan for speeding and making unsafe lane changes.  Shilgevorkyan admitted to smoking pot the night before, and submitted to blood tests, which revealed Carboxy-THC in his bloodstream.  Shilgevorkyan was charged with two counts of DUI.  The charge was dismissed by a trial judge, who argued in a pretrial motion that the blood tests didn’t reveal any THC or its metabolite, Hydroxy-THC.  Prosecutors argued that they didn’t test for Hydroxy-THC because it doesn’t stay in the body long and converts quickly to Carboxy-THC, which can remain in the body for up to 30 days.  The state then appealed the judge’s decision to the Arizona Supreme Court.

The opinion reverses a state appellate court memorandum decision from 2012 which stated that Arizona law prohibits “driving with a proscribed drug or ‘its metabolite’ includes the metabolite Carboxy-THC.”

The Supreme Court’s decision notes that the state’s position could create problems for Arizona residents who smoke marijuana for medicinal purposes.  Arizona legalized medicinal marijuana in 2010.

The case is The State Of Arizona v. Myra Harris, No. CV-13-0056-PR, April 22, 2014.

Attorneys for the defense were Clark L. Derrick, Rhonda E. Neff, Kimerer & Derrick, P.C., Phoenix; and Michael Alarid, III (argued), Law Offices of David Michael Cantor, P.C., Phoenix, for Hrach Shilgevorkyan. Attorneys for the state were William G. Montgomery, Maricopa County Attorney, Andrea L. Kever, Deputy  County  Attorney, Susan  L. Luder, Deputy County Attorney (argued), Phoenix, for State of Arizona.

A Chicago woman who suffered a severe stroke 13 days after starting the controversial birth control medication Yasmin has been awarded $14 million in a medical malpractice lawsuit against the doctor who prescribed the medication.  Dr. Zbigniew Aniol wrote the prescription for Mariola Zapalski, 37, who is now wheelchair-bound after the stroke paralyzed the left side of her body and caused profound and permanent brain injury.  A four woman, eight man jury reached the verdict April 18 after a two-week trial before Cook County Circuit Judge Edward Washington II.

Dr. Aniol prescribed Yasmin for Zapalski in 2007 to help control irregular bleeding.  Less than two weeks later, she suffered the stroke that left her partially paralyzed.  She now requires 24/7 care by her husband Rafal, who is unable to work.  The Zapalskis immigrated to the US from Poland, and now live in Elmwood Park, a suburb of Chicago.

Yasmin, which is still available, has been criticized by medical professionals for its severe side effects, including causing strokes in young women.  The FDA has issued a safety review update for Yasmin and other birth control drugs containing drospirenone because of an increased risk of blood clots.

National Trial Lawyers Top 40 Under 40 member Bradley Cosgrove of Clifford Law Offices in Chicago represented the Zapalskis.  “We are pleased with the fact the jury understood the seriousness of this case and the severity of Mariola’s injuries,” Cosgrove said following the verdict. “The conduct of the defendant left a young woman’s life forever changed and hopefully this verdict will send a message to other health care providers to be very careful in prescribing this medication that can be very dangerous.”  Cosgrove was assisted by Sarah King, an associate with Clifford Law Offices.

Cosgrove reached a $2.5 million settlement with Resurrection Medical Center about a month ago.  Officials at Resurrection referred the Zapalskis to Dr. Aniol.

The case number is 09 L 4061.  Attorneys for the defendant, Dr. Aniol were Charles Redden and Amy Thompson of Pretzel & Stouffer.

Houston Lawyer Sammy Ford IV was recently selected as one of the 2014 Texas Rising Stars by Texas Monthly magazine. Mr. Ford’s inclusion on this list signifies that he is among the top 2.5 percent of Texas attorneys under the age of 40.

Mr. Ford is an associate attorney at the Houston law firm of Abraham, Watkins, Nichols, Sorrels, Agosto & Friend. He devotes his legal practice to representing plaintiffs in cases involving personal injury, employment, securities and commercial litigation.

This is Mr. Ford’s second year on the Texas Rising Stars list. In 2013, the National Trial Lawyers Association recognized Mr. Ford on its list of Top 100 Trial Lawyers and on its Top 40 Under 40 list of prominent young attorneys.

In addition to his legal practice at Abraham Watkins, Mr. Ford is an active member of local and state bar associations and trial lawyer associations. He serves on the editorial board for Houston Lawyer Magazine and is a member of the State Bar of Texas’ Computer and Technology Section Council.

Mr. Ford is a 2004 graduate of Harvard College and a 2007 graduate of the University of Texas School of Law in Austin, Texas. He was an inaugural member of his law school’s Supreme Court Clinic and helped convince the Supreme Court to review a client’s case during a term in which the court reviewed only 78 out of 8,517 filed cases.

Mr. Ford also clerked with the Honorable Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit prior to joining the legal team at Abraham Watkins.

Medical device manufacturer Neurovision Medical has won a $30 million intellectual property lawsuit in federal court against a rival start-up, NuVasive.  The verdict was reached April 3 after a five-day trial in the US District Court for the Central District of California.

According to court documents, Neurovision Medical claimed that “years ago when NuVasive was a start up, it deliberately appropriated for itself the goodwill associated with Neurovision Medical’s established trademark.”  Attorneys for Neurovision argued that NuVasive infringed upon their trademark for “Neurovision” and defrauded the US Patent and Trademark Office by registering the trademark for itself.  The jury agreed that Neurovision Medical owns the Neurovision trademark throughout the United States.

Attorneys for Neurovision Medical were Peter Ross and Keith Wesley of Browne George Ross, LLP of Los Angeles.  William Boggs of DLA Piper in Los Angeles represented NuVasive.  The case is Neurovision Medical Products, Inc. v. NuVasive, Inc., Case Number: 2:09-cv-6988-DSF (JEMx).

A New York County jury has awarded a landscaper and his ex-wife $4,873,703.08 in a medical malpractice lawsuit after a doctor misdiagnosed him with Myasthenia Gravis and treated him aggressively and invasively for nearly four years. Robert Wyble, 51, an Orange County, New York resident, underwent surgery, took medications, and had weekly plasmapharesis for years before he was correctly diagnosed with a different illness. National Trial Lawyers Top 100 attorney Richard Gurfein of Gurfein Douglas, LLP in New York, NY represented Wyble and his wife.

In the spring of 2005, Wyble’s primary care doctor referred him to an upstate neurologist because he had been falling down for unknown reasons. The neurologist then referred Wyble to Dr. Dale J. Lange, a specialist at Mt. Sinai Hospital in New York City. Following an examination and tests, Dr. Lange told Wyble he believed Wyble suffered from Myasthenia Gravis, a neuromuscular autoimmune disease.

Myasthenia Gravis causes antibodies to disrupt the signal sent from the brain to the receptor cells of muscles, causing muscle weakness. There is no definitive diagnostic test for Myasthenia Gravis; only test results that are consistent with the disease and other diseases.

Despite extensive blood testing and CT scans, Dr. Lange never found either antibodies known to disrupt the receptor cells or tumors of the thymus gland that may also cause Myasthenia Gravis. Despite that, Dr. Lange concluded that Wyble had the disease, and that without aggressive treatment, he would become disabled and eventually die.

In July 2005, Dr. Lange prescribed Mestinon for Wyble, a drug intended to eliminate antibodies from the blood. By August 2006, Dr. Lange urged Wyble to undergo a thymectomy to remove his thymus gland, which is believed to play a role in the body’s autoimmune system. Wyble underwent the thymectomy in January 2007. Dr. Lange then prescribed increasing amounts of medication. By May 2007, Wyble was taking four immunosuppressant drugs, and in September of that year he began undergoing biweekly plasmapharesis, a plasma exchange procedure, through a surgically implanted port.

Wyble and his wife went to New York City in April 2009 for a follow-up appointment with Dr. Lange. When they got to Mt. Sinai, they were told he was no longer working at the hospital. They managed to track him down at the Hospital for Special Surgery, and made an appointment to see him there. When they did, Dr. Lange told the Wybles that he could no longer write a prescription for plamapharesis at Mt. Sinai, and he couldn’t write one at New York Hospital until his privileges were approved. So, Dr. Lange tried to arrange for a friend of his at Mt. Sinai to write the prescription, but that person refused because Wyble wasn’t his patient. Five or six weeks after his last plasmapharesis treatment, Wyble grew desperate and arranged to see another neurologist at Mt. Sinai, Dr. Betty Mintz. After examining Wyble, Dr. Mintz questioned the diagnosis of Myasthenia Gravis. But, because of the patient’s insistence and out of respect for Dr. Lange, she agreed to continue his plasmapharesis. She did, however, begin taking Wyble off his immunosuppressant medications.

In November 2009, Wyble’s surgically implanted port for the plasma exchange procedure became infected. He was hospitalized at Mt. Sinai and given intravenous antibiotics. Dr. Mintz noted in his hospital chart that she never believed Wyble had Myasthenia Gravis. She then discontinued all remaining immunosuppressant medications, had the port removed, and discontinued all plamapharesis treatments. The reason he was falling was diagnosed as Cataplexy, and a prescription for Ritalin written by Dr. Lange in 2008 was continued and enhanced by Dr. Mintz. As a result, Wyble no longer has issues with falling down.
When Wyble was told he had Myasthenia Gravis, he went into an emotional tailspin. He became withdrawn, depressed, and stopped taking part in child raising, housekeeping and his marriage. His wife Zaida became sole caregiver to their children as well as to her husband. Every night, she had to clean and flush his plasmapharesis port, making sure it was sterile and didn’t clot. However after Dr. Mintz stopped his treatment for the disease Wyble didn’t have, Wyble didn’t recover from his depression and withdrawal. Over the next two years, Mrs. Wyble could no longer ignore the fact that she was no longer Robert’s wife, but his caregiver. She had hoped that he would bounce back after finding out that he didn’t have Myasthenia Gravis. When he didn’t, Mrs. Wyble moved out of their home in December 2011 and began divorce proceedings.

Despite his loss, Wyble is today back working full time, is taking up dancing as a hobby, and rarely falls down.

On March 18, 2014, a three man, three woman jury in Supreme Court/New York County awarded Wyble $373,703.08 for past medical expenses, $2,000,000 for his pain, suffering and loss of enjoyment, as well as $1,500,000 over the next 28 years for future pain, suffering and loss of enjoyment. The jury also awarded Mrs. Wyble $1,000,000 for her claim of loss of service, society and companionship.
The case is Robert Wyble and Zaida Wyble v. Dale J. Lange in the Supreme Court of New York Count, Index No. 114045/10. The case was tried before Justice Geoffrey D. Wright. Craig Fenno of Aaronson Rappaport Feinstein & Deutsch represented the defendant.

For the second year, Attorney Chelsie King Garza has been recognized as a top Texas lawyer through inclusion on the 2014 Texas Rising Stars list. Ms. Garza is an associate attorney at the Houston law firm of Abraham, Watkins, Nichols, Sorrels, Agosto & Friend.

The Texas Rising Stars list is a selection of prominent litigators in the state as compiled by Super Lawyers. The list is published annually by Texas Monthly magazine. Attorneys on the list represent the top 2.5 percent of attorneys in Texas under the age of 40 or who have practiced law for less than a decade.

Ms. Garza is a dedicated advocate for her clients. She’s a successful litigator and negotiator, having recently obtained a jury verdict and settlement in two separate medical malpractice cases that include past and future damages and lifetime support for her client’s family. She obtained what is believed to be the largest medical malpractice verdict in Texas in 2012.

Ms. Garza is also a dedicated community advocate. Outside the courtroom, Ms. Garza is actively involved with many charities and community organizations. She is a founding member of the Executive Moms Society. She has served on the Legal Advisory Committee of the Tahirih Justice Center, which helps protect women and girls from violence such as spousal abuse, honor crimes and trafficking. Ms. Garza was a Campaign Coordinator of the Center’s 2013 Bighearted Attorneys Campaign, which raised more than $28,000 for the Center. In 2014, Ms. Garza co-chaired the Bighearted Attorneys Campaign and raised over $46,000 for the organization.

Ms. Garza has been selected as a Top Lawyer by H Texas magazine (2012), named to Houstonia Magazine’s Top Lawyers list (2013) and recognized as a Top 100 Trial Lawyer by The National Trial Lawyers (2013), in addition to her inclusion on the Super Lawyers’ Rising Stars listing. The Houston law firm of Abraham Watkins congratulates Ms. Garza on her most recent professional accolade, an honor well-earned through her dedication to the practice of law and the rights of her clients.

Since opening in 1951, Abraham, Watkins, Nichols, Sorrels, Agosto & Friend has grown into one of the oldest and most well-respected law firms in Houston. The legal team at Abraham Watkins has helped thousands of injured clients in cases involving traffic accidents, medical malpractice, oil and gas explosions, and countless other types of accidents.

To learn more about Houston lawyer Chelsie King Garza or to contact any of the personal injury attorneys at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend, call 713-587-9668 or contact us online at www.abrahamwatkins.com.

National Trial Lawyers Top 100 Criminal Defense member Robert T. Glickman from McCarthy, Lebit, Crystal & Liffman Co, L.P.A. was recently selected by his peers for inclusion in The Best Lawyers in America 2014© in the fields of Bet-the-Company Litigation, Commercial Litigation, Criminal Defense: Non White-Collar, Litigation – Labor and Employment, and Litigation – Mergers and Acquisitions.
Because Best Lawyers is based on an exhaustive peer-review survey in which this year, more than 50,000 attorneys cast 4.9 million votes on the legal abilities of other lawyers in their practice areas, and because lawyers are not permitted to pay a fee to participate or be listed, inclusion in Best Lawyers in America is considered a singular honor.

In addition, the Firm is pleased to announce that David A. Schaefer has been named the Best Lawyers® 2014 Cleveland Mediation “Lawyer of the Year” (Copyright 2013 by Woodward/White, Inc., of Aiken, SC). Best Lawyers in America is the oldest and most respected peer review guide to the legal profession worldwide. “Lawyer of the Year” honors are presented annually to a single outstanding lawyer in complex, high-profile practice areas and designated metropolitan area.

A former Francis Marion University student who was hazed as part of an initiation ritual to a fraternity was awarded $1.6 million by a Florence Co., SC, jury on April 3.  Daniel McElveen was beaten so badly on October 22, 2011, he had to be hospitalized and suffered renal failure.  The hazing incident happened at the home of Maurice Robinson, a high school teacher and alumnus who was the defendant in the lawsuit.

Robinson, described as a high ranking alumnus of the Phi Beta Sigma fraternity chapter at Francis Marion, hosted the chapter’s “Hell Night” final initiation at his home.  Florence County Sheriff’s Office Captain Michael Nunn says Robinson was among nine suspects who beat McElveen with a paddle as part of the initiation ritual.  The nine suspects, including three FMU students, were arrested and charged with misdemeanor hazing.

At trial, Robinson denied responsibility and claimed that McElveen was responsible for allowing himself to be hazed and beaten.  The jury disagreed and awarded McElveen $600,000 for actual damages and $1,000,000 in punitive damages against Robinson.  McElveen’s attorney Mullins McLeod of the McLeod Law Group said, “The jury rejected the idea that victims are to blame in hazing cases.  I hope their verdict makes college students think twice before they brutally, physically haze innocent students.”

Co-counsel Alan Kennington said, “I knew when we took the case that it would be an uphill battle.  However, we believed in Daniel.  I could not be happier for him and his family.”  Following the verdict, McElveen said, “Hazing is an injustice to all of us and I hope my case raises awareness about hazing and prevents others from being victimized.”

The Arizona Court of Civil Appeals has upheld a $7.3 million verdict for a woman whose multiple knee surgeries and knee replacement left her in chronic pain and unable to walk normally.  Payson Healthcare Management (PHM) appealed the decision by a Gila County Superior Judge who awarded the damages to Lori Sandretto.

Sandretto slipped and fell on a wet floor and injured her right knee in April 2008. This led to surgery to repair a torn meniscus by a surgeon not involved in Sandretto’s lawsuit.  After the first surgery failed to alleviate her pain, Sandretto consulted a second physician, Dr. Charles Calkins, an orthopedic surgeon.  Calkins determined that Sandretto’s meniscus was still torn, so he performed a second knee operation on Sept. 5, 2008.  Calkins also drained fluid from Sandretto’s knee and tested for infection.

At first, Sandretto’s knee improved, but it later grew increasingly painful and swollen.  Calkins’ physician assistant prescribed antibiotics for a skin infection.  Two weeks later, Sandretto was taken to an emergency room, where Calkins also diagnosed a skin infection and changed her antibiotics.  Ten days later, the physician assistant drained more fluid from Sandretto’s knee and sent it out for testing.  The tests revealed she was infected with Staphylococcus aurues (MRSA), which is resistant to methicillin.

Sandretto underwent three subsequent “wash out” surgeries to try to rid her of the drug-resistant bacteria.  Eventually, she had to undergo a knee replacement.  She also developed Complex Regional Pain Syndrome (CRPS), a chronic pain condition.

Sandretto’s attorneys, Arthur Lloyd and Doris Robinson-Wait of Lloyd & Robinson, PLLC of Payson and National Trial Lawyers Top 100 attorney Thomas McGovern of McGovern Law Offices in Phoenix, called expert witnesses to the stand who testified that Sandretto might not have needed the knee replacement or developed the chronic pain condition if Calkins tested for the source of the infection sooner.  They also testified that Calkins should have worked more aggressively to take care of the infection.

Sandretto’s attorneys settled their claims with Calkins on the eve of her trial for $900,000, just under the maximum amount his malpractice insurance would pay.  Attorneys for PHM argued on appeal that they should have had more time to reconsider their strategy after Calkins agreed to settle.  Attorney Don Stevens of Phoenix also argued that the judge in the first trial erred in allowing several expert witnesses testify on behalf of Sandretto.  Stevens further argued that the judge should have allowed the jury to hear that Sandretto had other medical problems involving emotional issues and chronic pain.  The three judge appeals panel rejected all of PHM’s arguments, and upheld the verdict.

The case is Lori Sandretto v. Payson Healthcare Management, Inc. in the Arizona Court of Appeals Division Two,  No. 2 CA-CV 2013-0044.