Jury Finds in favor of Hand Surgeon and rejects patient’s claims of Malpractice leading to Ray Amputation.

On August 24, 2018 Clark Hudson (Neil, Dymott et. al. San Diego, CA)  obtained a defense verdict on behalf of a Plastic/Hand and Microvascular Surgeon.  The case involved a 60 year old female who experienced a dislocation/avulsion fracture of her left ring finger.  After unsuccessful conservative treatment, the plaintiff was referred to the defendant physician for surgery to restore mobility in the ring finger.

The defendant physician performed an arthroplasty of the ring finger using a dorsal approach. The surgery appeared to be successful. The patient was discharged home with instructions to follow up in one week. The patient developed severe pain in the finger overnight, and presented to the emergency room the next day. The patient had placed a call to the defendant physician, but he was unavailable as he was in surgery with another trauma patient.

The plaintiff was evaluated in the emergency department, with adjustments made to her surgical dressings and pain medications. She was discharged from the emergency room, only to return the following morning with similar pain complaints. The plaintiff was again evaluated in the Emergency Department, and found to have normal postoperative findings.  Additional changes were made to the plaintiff's medications, and the plaintiff was instructed to follow up with the defendant physician the following morning.

The defendant physician saw the patient the following morning, and determined there was vascular compromise to the incision on the dorsal aspect of the ring finger. The defendant physician initially attempted to treat the vascular compromise on an outpatient basis, however, the plaintiff soon required hospitalization for dehydration, IV pain medication and hyperbaric oxygen treatment. Following this hospitalization the plaintiff elected to switch her care to a different hand surgeon. The new hand surgeon eventually elect to perform a Ray Amputation of the ring finger. The plaintiff claimed permanent disability following the Ray Amputation, complex regional pain syndrome and phantom limb pain.

Following a three-week trial, a Riverside California jury returned a defense verdict on behalf of the hand surgeon -  rejecting the plaintiff’s claims of malpractice leading to the Ray Amputation.

Dan D. Kohane, senior member at Hurwitz & Fine, P.C., has been elected vice president of the National Foundation for Judicial Excellence. Dan is a nationally recognized insurance coverage counselor and also serves as an adjunct professor of insurance law at the University at Buffalo Law School.

Terence Ridley wins reversal of a $3 million property appraisal award and disqualification of the appraiser and umpire.

American Family v. Copper Oaks (D. Colo. 2018) 

Terence Ridley of Wheeler Trigg O’Donnell obtained vacatur of a $3 million property damage appraisal award against client American Family related to a 2013 hail damage claim. The appraisal award amount was approximately five times greater than the amount estimated by American Family. In the opinion, the Chief Judge for the United States District Court for the District of Colorado disqualified the plaintiff’s national property appraiser on the grounds that he was not impartial and had direct financial interests in the amount of the appraisal award. The Court also disqualified the umpire for partiality, due in part to his prior work with the plaintiff’s appraiser.

Ellis & Winters partner Leslie Packer has been published in the July edition of Who’s Who Legal – Product Liability Defence magazine.  Her article, “Manufacturing Uncertainty: Plaintiffs’ Strategies to Avoid Their Burden of Proof,”  highlights the ways in which plaintiffs are making use of Doubt Is Their Product:  How Industry’s Assault on Science Threatens Your Health, by David Michaels.   Leslie Packer has been honored by The International Who’s Who of Product Liability Defence Lawyers for 2018.

To read the full article, please go to Who’s Who Legal – Manufacturing Uncertainty

About Leslie Packer         

Leslie C. Packer is the managing partner of Ellis & Winters LLP.  She concentrates her practice on product liability, medical malpractice and commercial litigation.  As well as being a member of the FDCC, Ms. Packer is a fellow of the American College of Trial Lawyers and the International Society of Barristers, and is President-Elect of the Eastern North Carolina Chapter of the American Board of Trial Advocates.  As part of her trial practice, Ms. Packer maintains a focus on current strategies used with experts and at trial.  She has given numerous presentations on cross examination, best practices in evidentiary motions, technology in the courtroom, and trial skills.

At the Annual Board Meeting of the National Foundation for Judicial Excellence, L. Gino Marchetti, Managing Partner of of the Nashville law firm of Taylor, Pigue, Marchetti & Blair was elected as President, and Dan D. Kohane, Senior Partner of the Buffalo firm of Hurwitz & Fine, P.C. was elected Vice-President.

The NFJE is an independent, 501(c)(3) charitable foundation that provides state appellate judges with educational programming and other tools to enhance the rule of law and administration of justice. At its 14th Annual Judicial Symposium being held in Chicago, some 150 appellate judges from 39 states are attending.

The Lieutenant Governor in Council appoints FDCC Member and CDL Past President Sandra Corbett Q.C. as a judge of The Provincial Court of Alberta. Congratulations!

Michael Aylward has been named to serve as President-Elect of the American College of Coverage and Extracontractual Counsel at the ACCEC’s recent annual meeting in Chicago.

The ACCEC focuses on educating all sectors involved in the field of insurance law – including the judiciary, legal and insurance professionals, law students and businesses; a prestigious association that represents the interests of insurers and policyholders.  

Along with holding leading roles in many major bar associations (DRI, FDCC and IADC), Aylward was a member of the original group that launched the idea of forming an American College for insurance coverage lawyers.  As a founding member, he has served on the ACCEC’s Board of Regents since the College’s creation in 2012, organized the CLE programming for the first Annual Meeting in April 2013, co-organized an insurance litigation symposium at the Boston College Law School in January 2016, and has spoken on many of the panels at Annual Meetings.

“My hopes and goals for 2019 are to find new ways to harness and share the vast pool of experience and expertise that our Fellows have,” states Aylward.  “While there are other insurance bar associations that have a select membership, our College is unique both with respect to the elite quality of our Fellow and in that its members reflect the ‘best of the best’ of the elite lawyers representing insurers and policyholders in coverage disputes and bad faith cases around the country.  My hope is that we can find new ways to make this College a rewarding (and fun) experience for them, while also raising the profile of the College within the legal and insurance communities so that the College is understood and appreciated as the objective resource that it truly is.”

Aylward is a partner in the Boston office of Morrison Mahoney LLP, one of the northeast region’s leading litigation firms, where he chairs the firm's complex insurance claims resolution group.  His new appointment as President-Elect of the ACCEC is added to a strong portfolio of Aylward’s well established involvement in the industry.

Chambers USA has ranked FDCC members Leslie Packer and Stephen Feldman, of Ellis & Winters LLP, for 2018.

Leslie Packer:  Band 1, Litigation: Healthcare & Medical Malpractice, North Carolina

Stephen Feldman:  Band 2, Antitrust, North Carolina

Ellis & Winters is a boutique firm concentrating in complex litigation and commercial real estate.  With offices in Raleigh and Greensboro, the firm provides legal services to more than 30 members of the Fortune 500 and business entities across the United States and numerous other countries

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Luke P. Sbarra, Hedrick Gardner Kincheloe & Garofalo LLP, in Charlotte, North Carolina obtained a defense arbitration award following a five day arbitration of a wrongful death action arising out of allegations of nursing home neglect.  Plaintiff, the son of the deceased resident, claimed his mother died from sepsis secondary to a decubitus ulcer.  Plaintiff’s civil action asserted claims for corporate and administrative negligence, medical malpractice, and punitive damages.  Defendant denied it breached the standard of care or caused the decedent’s death.  The Arbitration Panel ruled 2-1 in favor of the defense on all claims.

Kelley J. Barnett, Frantz Ward, LLP in Cleveland, Ohio, received the Women of Professional Excellence Award from the YWCA of Greater Cleveland. This award is presented by the YWCA each year to recognize the contributions of exceptional women throughout Northeast Ohio, especially those who dedicate their efforts to empowering women and eliminating racism. Kelley has demonstrated her commitment to the mission of the YWCA by providing pro bono legal representation to sex trafficking victims in Ohio. Kelley is also a former sex crimes prosecutor and is currently on the Board of Directors of the nationally recognized Cleveland Rape Crisis Center. Kelley joined the FDCC in 2017.

Craig Marvinney, Walter | Haverfield, in Cleveland, OH, recently prevailed in the United States Sixth Circuit Court of Appeals on a coverage case for his client Evanston Insurance Company.  Evanston wrote a Landlord’s policy of insurance for landlord in eastern Ohio.  The landlord was accused of tenant handicap discrimination, but evidently felt it could handle an Ohio Civil Rights Commission mediation without notifying the insurer.  The mediation failed and the landlord provided late notice to the insurer.  The insurer declined coverage because of the late notice and the landlord sued for breach of contract, coverage and bad faith.  The case went to summary judgment, with the main issue focused on whether under the policy, an ‘administrative proceeding’ could fit in the definition of a ‘legal proceeding’ under the policy and law.  Marvinney prevailed at the district court level and the Sixth Circuit affirmed.  SeeGMS Management, Inc., v. Evanston Insurance Company, 2016 W.L. 3460214 (U.S.D.C. N.D. Oh.), aff’d GMS Management Company Inc., v. Evanston Insurance Company, 689 Fed.Appx. 439 (6^th Cir. 2017).

David Varriale, Kaufman Borgeest and Ryan LLP,  in Valhalla, NY, obtained summary judgment in a medical malpractice case in Kings County Supreme Court on behalf the firm’s client, a New York City-based medical center and health care system. Plaintiff alleged a claim for negligence and loss of services on behalf of her son and infant-plaintiff, claiming that the medical center improperly performed a November 15, 2009, CT scan, failed to diagnose properly the infant-plaintiff’s right ear fracture, improperly discharged him from the emergency room, and failed to prevent complications. David argued that the infant-plaintiff was properly discharged following his emergency room visit and that the hospital’s evaluation was sufficient to rule out emergency trauma.  An expert radiologist reviewed the November 15, 2009, CT scan and opined that the scan was properly interpreted by the hospital staff.   David argued that the CT scan was timely performed, and the hospital did not depart from the standard of care in failing to identify the middle ear bone dislocation.  Additionally, David argued that the type of fracture suffered by infant-plaintiff usually heals on its own.

Vicki M. Smith, of Bodyfelt Mount LLP in Portland, Oregon, has become the President of the Board of Directors for the Oregon Association of Defense Counsel (OADC).  OADC is Oregon’s statewide association for civil defense attorneys. Founded in 1967, the non-profit membership organization provides defense-oriented civil litigators, as well as business and commercial litigators, with excellent continuing legal education and valuable networking opportunities. Before assuming the presidency in 2018, Smith volunteered on OADC’s board of directors for five years, serving as OADC’s president-elect in 2017, and as secretary/treasurer in 2016. She has held additional leadership roles in the organization including co-chairing its 2015 Annual Convention and chairing its New Lawyers Practice Group.  Vicki’s law practice focuses on civil and commercial litigation and insurance coverage matters in Oregon and Washington. She regularly handles cases and trials involving insurance and surety bond coverage, product and warranty claims, and professional liability claims.  Vicki has been an FDCC member since 2015.

Amy Mass, Vice President and Counsel for The Hanover Insurance Group in the Office of General Counsel in Howell, Michigan, was presented with the Mary Massaron Award for the Advancement of Women at the DRI Women in the Law Seminar.  Named for past DRI President Mary Massaron (2012–2013), the award is presented each year during the WitL Seminar’s Awards Luncheon to a DRI member who has demonstrated qualities that include a high regard for, and behavior that illustrates commitment to and inclusion of women within the legal profession, leadership in the development of contemporary measures to fight gender discrimination and prejudice in the profession, and a commitment to fostering women’s initiatives and actively promoting positive mentoring relationships with other women in the legal profession.

Gregory Young of Hinkle Law Firm, LLC, Wichita, Kansas, recently completed a four week jury trial involving the defense of three physicians.  The defendant physicians were resident physicians at the time of the care of the patient in 2013 at Wesley Medical Center, a teaching hospital.  The defendant physicians included a general surgery resident, who performed the majority of a laparoscopic ventral hernia repair and provided the post-operative care, as well as two radiology residents that assisted in the interpretation of a post-operative abdominal series and CT scan.  Plaintiff sued seven physicians alleging that he suffered a bowel perforation that was not timely recognized, diagnosed and repaired, which caused him to develop overwhelming septic shock and nearly 14 months of hospitalization.  The plaintiff asked the jury to award $3.7 million in medical expenses as well as pain and suffering and loss of consortium.  After a four week jury trial, the jury concluded that all seven defendants had met the appropriate standard of care and/or did not cause injury, resulting in a “no fault” verdict. Mark Maloney of Hinkle served as co-lead counsel with Greg in the case.

Edward Ruff, III, of Pretzel & Stouffer, Chicago, IL, recently won summary judgment for Walmart Stores, Inc., and clothing manufacturer, Charles Komar & Sons, Inc., in a Flammable Fabrics Act case. Plaintiff sustained third-degree full thickness burns to approximately 40 percent of her body, face, and torso when her clothing became ignited by a gas stovetop. Plaintiff spent six months in a coma and required extensive physical therapy and occupational therapy. Plaintiff’s past medical bills alone were nearly $2,000,000.  At the time of the incident, plaintiff was wearing a jacket purchased at Macy’s, and sleepwear manufactured by Komar and purchased at Walmart. Plaintiff sued Macy’s, Walmart, and Komar, alleging theories of negligence, product liability, and breach of implied warranty. Plaintiff was represented by a national plaintiff product liability firm. The plaintiff produced expert testimony to support her theory that the jacket and sleepwear were unreasonably dangerous. Mr. Ruff and his team argued that plaintiff’s experts’ opinions failed to establish that the sleepwear at issue was any different or more dangerous than other sleepwear on the market. Therefore, the sleepwear was not a proximate cause of plaintiff’s injuries because the jacket caught fire first and ignited the sleepwear.  Chief Judge Ruben Castillo of the Northern District of Illinois agreed and dismissed all counts against Walmart and Komar.  Mr. Ruff was assisted in the case by Michael Turiello. 

Tracy S. Prewitt, O’Bryan, Brown & Toner, PLLC, Louisville, KY, has been selected as one of the top 25 Women attorneys in Kentucky by Kentucky Super Lawyers. Click here to learn more about the award. Tracy’s has been a Partner at her firm since 1999 and her practice is concentrated on civil defense litigation. Her civil practice includes the defense of clients in the areas of professional negligence and tort claims, professional licensure board actions, product liability, general personal injury, and insurance coverage. She joined the FDCC in November, 2017.

Scott Kreamer of Baker Sterchi Cowden & Rice, Kansas City, MO obtained a verdict in favor of client Western Surety Company on a breach of contract action against T&L Zarda, LLC, Tim Zarda and Lisa Zarda. The case arose out of the Zardas’ request that Western Surety Company issue a development bond guaranteeing the payment of excise taxes to the City of Lenexa.  When T&L Zarda failed to pay the excise taxes due, the City made a claim on Western Surety’s guarantee.  Western Surety investigated the claim and subsequently settled the City’s claim.  Western Surety brought a breach of contract action against the Zarda parties seeking reimbursement of the amount paid to the City and for its costs and expenses which totaled $309,311.92, including attorneys’ fees and costs.  The Zardas filed suit against Western Surety claiming breach of contract and negligence arising out of the same transaction and sought damages in excess of $172,000.  The jury returned a unanimous verdict in favor of Western Surety Company on its claims and awarded $309,311.92 plus attorney’s fees and costs.  On the Zardas’ claims against Western Surety, the jury found in favor of Western Surety.

The FDCC congratulates its members who were elected to positions at the DRI Annual Meeting.  Toyja Kelley, Saul Ewing LLP, Baltimore, MD, was elected President Elect.  Phillip Wilman, Brown & James, LLP, St. Louis, MO, was elected First Vice President.  Douglas Burrell, Drew Eckl & Farnham, LLP, Atlanta, GA, was elected Secretary-Treasurer.  R. Jefferey Lowe, Kightlinger & Gray, LLP, New Albany, IN, was elected as a National Director.  Heather Sanderson, Sanderson Law, Calgary, Alberta, was elected Canadian Regional Director.  Melissa Roeder, Foley Mansfield, Seattle, WA, was elected Northwest Regional Director.  They continue the strong defense leadership of the FDCC.

Scott Salter, Starnes Davis Florie, LLP, Birmingham, AL, was named Best Lawyers' 2018 "Lawyer of the Year" for Litigation - Insurance in Birmingham.  Scott has been an FDCC member since 2011 and is currently Chair of the Website/Social Media Committee and Website Revision Project.

Brett Preston, Hill Ward & Henderson, Tampa, Florida, was named Best Lawyers' 2018 "Lawyer of the Year" for Legal Malpractice Defense in Tampa. Brett has been an FDCC member since 2004 and is currently a Senior Director for the FDCC.

Clark Hudson, Neil, Dymott, Frank, McFall, Trexler, McCabe & Hudson, APLC, San Diego, CA, recently obtained a defense verdict on behalf of their client,a pulmonologist.  The case concerned a plaintiff who was initially worked up for concerns of lung cancer, but was not informed of her positive diagnosis and, as a result, was not treated for fifteen months.   Plaintiff claimed the pulmonologist negligently ordered a CT guided lung biopsy on the wrong lung, negligently failed to inform her that she had lung cancer, and negligently transferred his care back to her primary care provider.  Plaintiff focused on the pulmonologist’s order for a CT guided lung biopsy on the left lung, though a previous report noted a suspicious mass on the right lung.  Even though the CT guided biopsy was ultimately performed on the right lung, the pulmonologist never received the associated pathology report.  He did receive a radiology report noting there was an initial suspicion of cancer.  Despite not having the pathology report, Plaintiff claimed the pulmonologist told her she did not have cancer.  Plaintiff continued to see her primary care provider, and claimed the pulmonologist transferred her care back to primary care without writing a clear consultation report.  When Plaintiff finally learned of her diagnosis fifteen months later, she was already Stage III, and began treatment immediately.  Even after aggressive treatment, surgery, and a short remission, Plaintiff’s cancer returned, and metastasized to her other lung, bone marrow, and brain.  Plaintiff claimed the pulmonologist’s negligence caused her poor prognosis, and a shortening of her life expectancy by 13 years.

The defense presented evidence the Plaintiff refused to follow up with the pulmonologist, the pulmonologist made repeated attempts to have Plaintiff follow up with him or her primary care provider, and made repeated attempts to speak with Plaintiff’s primary care provider to inform her of Plaintiff’s outstanding test results, preliminary test results, and to ensure Plaintiff followed up with her primary care provider.  The defense proved the primary care provider did in fact receive the radiology report showing Plaintiff’s initial suspicion of cancer, and evidence establishing Plaintiff’s trend of not following medical advice resulting in multiple, long, gaps in her medical care.  The defense maintained it is not below the standard of care for a pulmonologist to arrange for his patient to continue care with a primary care provider, especially at the request of the patient, nor is it below the standard of care for a pulmonologist to transfer her care by sending a brief note, relevant test results, and speaking with the primary care provider about the patient’s status.  The jury ultimately agreed with the defense that the pulmonologist acted at all times within the standard of care.  Danielle Eisner, an associate at Neil Dymott, tried the case with Clark Hudson.

Bradford D. Box, Rainey Kizer Reviere & Bell PLC, recently won his case in front of a Tennessee Federal Judge which found that Philadelphia Indemnity Insurance does not owe FedEx Freight a defense in a $40 million suit from a security guard hit by a truck in a FedEx Facility, saying the policy only covered the guard’s third-party employer.

The full article on the case can be read here.

David Bertschi, Bertschi Orth Solicitors and Barristers LLP/s.r.l., Ottawa, Ontario, recently won his case in the Ontario Superior Court of Justice, a decision which illustrates how counsel, by making strategic and timely “offers to settle,” can recover the costs of trial for an Insurer/Defendant client.

In the decision of Scaffidi-Argentina v. Tega Homes Developments Inc et al. 2016 ONSC 5448, Mr. Bertschi and Stephanie Drisdelle successfully defended a developer, Tega Homes Development, Inc. in a property damage loss reducing the plaintiff’s claim for which they were claiming over $3 million to $658,047.73.

In the second decision, they were successful in reducing the plaintiff’s claim for costs from over $360,000 to a little over $160,000. Moreover, they successfully recovered the client’s partial indemnity costs for the entire trial.

As a result, after four years of litigating the case (with over 12 days of depositions involving 8 represented parties, 2 mediations, 3 pre-trials and a 2 week trial) the plaintiffs recovered less than $26,600 net in costs. Scaffidi-Argentina v. Tega Homes Developments Inc. 2017 ONSC 3427.