Filed under: Medical

The Challenge of Presenting Treating Physicians

 

By: E. Drew Britcher and Armand Leone,  of the New Jersey Law Journal, an ALM publication.

Lawyers from both sides of the litigation aisle have long battled over the presentation of opinions by treating physicians, not only with each other but with the physicians themselves and with the strategic and practical considerations of producing them. This should not be a surprise to anyone who has tried more than a few cases, but jurors tend to be more suspicious of the opinions of doctors who have been retained for litigation purposes. This was effectively confirmed by the New Jersey Supreme Court in Stigliano v. Connaught Labs , 140 N.J. 305 (1995), when the court stated:

Without impugning the expert witnesses who may testify for either plaintiffs or defendants, the treating doctors may be the only medical witnesses who have not been retained in anticipation of trial. A jury could find the treating doctors’ testimony to be more impartial and credible than that of retained experts.

However, despite that credibility, the AMA’s position in section 9.07 of their Principles of Medical Ethics that physicians must reasonably cooperate with their patient’s litigation support, and the decision in Spaulding v. Hussain , 229 N.J. Super. 430, 440 (App. Div. 1988), noting that “unless otherwise agreed, a physician treating an accident victim ‘impliedly agrees to appear and testify on behalf of his patient on issues such as the nature, extent and causality of his patient’s injuries,” many doctors are less than cooperative in a patient’s litigation.

Following the Stigliano decision, where neither of the involved doctors had prepared any reports of their opinions, it became accepted that doctors could testify to any opinion on causation that they had arrived at, during the course of their medical treatment. Subsequently, the Rules of Court were amended to reflect a requirement that the identity of experts and treating physicians, who would testify at trial, and their reports, be produced in discovery. While this represented no change as to experts or treating physicians offering certain opinions arrived at for the purpose of the litigation, such as an opinion on permanency, to many, this is a departure from what the court said in Stigliano.

 

Enter the court’s decision in the matter of Delvecchio v. Township of Bridgewater , 224 N.J. 559 (2016), a LAD case where the testimony of a treating physician regarding a plaintiff’s disability was sought to be introduced. The court, citing to past precedent, cited with the Stigliano matter, stated:

The testimony of a treating physician is subject to an important limitation. Unless the treating physician is retained and designated as an expert witness, his or her testimony is limited to the diagnosis and treatment of the individual patient. Given that distinction, if a particular claim requires testimony beyond the plaintiff’s own diagnosis and treatment, the plaintiff may require the testimony of an expert, conforming to NJRE 702 and 703.

Delvecchio, 224 N.J.at 579.

This requirement places the attorney that is seeking that doctor’s testimony at conflict with the doctor, who takes the position that they did not bargain for being involved and inconvenienced by the plaintiff’s litigation or who demands an outrageous fee for meeting their ethical obligations to their patient. Plaintiff’s counsel sought to have the court conclude that the report required by the combination of Rules 4:17-4(a), (e) and 4:10-2(d)(1) is only an obligation that exists if one is prepared—a contention the court specifically rejected. “Under the court rules, a party seeking to present physician testimony at trial must disclose the substance of the witness’s anticipated testimony, and the basis for that testimony, if requested to do that in discovery.”

So, what is a lawyer supposed to do when a doctor refuses to prepare a report? On the plaintiff’s side, one alternative is to have all the plaintiff’s medical records reviewed by a separate physician and have that doctor examine the patient and testify to the whole of the opinions needed about care, treatment, causation, disability and permanency. This would lose the innate credibility that a truly coincidental treating physician’s would potentially hold. So, the alternative is that an attorney should contact the physician and his/her staff and arrange to speak to the physician at a time convenient to the doctor and determine what opinions are not reflected by the doctor’s records and prepare a summary of the treating physician’s anticipated testimony. Should the doctor remain recalcitrant to writing a report or agreeing to an interview, one can always serve the doctor with a subpoena for a deposition. While this may not enamor one to the doctor, it will often get their attention sufficiently to get them to agree to one or the other. Not only is this something that practitioners have done in such situations before Delvecchio, the use of a summary of opinions is an authorized approach in our Rules regarding criminal procedures, as well as being what the court suggested that the Civil Practice Committee consider as an amendment to the rules at issue.

Let this not suggest that this is only the plaintiff’s counsel’s headache. The decision would seem to place a similar onus on defense counsel who might want to elicit testimony from treating physicians that is damaging to the plaintiff, akin to what the defense obtained in Stigliano. So how do they comply? The answer lies in the use of the interview process under Stempler v. Speidell , 100 N.J. 368 (1985). The defense attorney should send the plaintiff’s counsel an authorization to be signed by their client permitting an interview of the treating physician, arrange for the same, and then likewise prepare and serve a summary of the physician’s anticipated testimony. The failure to do so would seem to place defendants in a similar position of possibly being barred from calling the treater.

This approach by each side should not only satisfy the adversary and the court, it should let the practitioner sleep more soundly at night.•

 

Britcher and Leone and are founding partners of Britcher Leone LLC (www.medmalnj.com) based in Glen Rock.

Leave a Comment May 12, 2017

MICHELLE DILORENZO vs JOHN ZASO

Originally published in The New York Law Journal , an ALM Media publication, on March 31, 2017.

  • SUPREME COURT, APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT
  • Mar 29 2017 (Date Decided)
  • Mastro, J.P.; Chambers, Miller and Maltese, JJ.

MICHELLE DILORENZO, res, v. JOHN ZASO, ETC., ET AL, ap — (INDEX NO. 13297/11)In an action to recover damages for medical malpractice, the defendant John Zaso appeals, and the defendants Beth Gottlieb and North Shore-Long Island Jewish Health Systems, doing business as Schneider Children’s Hospital, separately appeal, as limited by their respective briefs, from so much of an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered January 6, 2015, as denied their separate motions for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is reversed, on the law, with one bill of costs payable to the appellants appearing separately and filing separate briefs, and the motion of the defendant John Zaso and the separate motion of the defendants Beth Gottlieb and North Shore-Long Island Jewish Health Systems, doing business as Schneider Children’s Hospital, for summary judgment dismissing the complaint insofar as asserted against each of them are granted.

The plaintiff commenced this action against John Zaso, her former pediatrician, Beth Gottlieb, a pediatric rheumatologist, and North Shore-Long Island Jewish Health Systems, doing business as Schneider Children’s Hospital (hereinafter North Shore), alleging medical malpractice with respect to treatment she received from the defendants in June 2003. The plaintiff further alleged that as a result of the defendants’ medical malpractice, she developed acute rheumatic fever, which was manifested by Sydenham’s chorea and mitral valve regurgitation. Zaso moved for summary judgment dismissing the complaint insofar as asserted against him, and Gottlieb and North Shore separately moved for the same relief as to them. The Supreme Court denied both motions on the basis that the plaintiff had raised triable issues of fact. Zaso appeals, and Gottlieb and North Shore separately appeal.

The elements of a medical malpractice cause of action are a deviation or departure “from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff’s injuries” (Stukas v. Streiter, 83 AD3d 18, 23). A defendant moving for summary judgment in a medical malpractice case must “demonstrate the absence of any material issues of fact” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324), with respect to at least one of these elements (see Cham v. St. Mary’s Hosp. of Brooklyn, 72 AD3d 1003, 1004). “In pursuance of its prima facie burden of proof, the moving defendant is required to address the factual allegations set forth in the plaintiffs’ bill of particulars with reference to the moving defendant’s alleged acts of negligence and the injuries suffered with competent medical proof” (id. at 1005). “[B]are conclusory assertions” by “defendants that they did not deviate from good and accepted medical practices, with no factual relationship to the alleged injury, do not establish that the cause of action has no merit so as to entitle defendants to summary judgment” (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853). In opposing a motion for summary judgment in a medical malpractice case, a plaintiff needs “only to rebut the moving defendant’s prima facie showing” (Stukas v. Streiter, 83 AD3d at 23).

 

“Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions” (Feinberg v. Feit, 23 AD3d 517, 519). “General and conclusory allegations of medical malpractice, however, unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat a defendant physician’s summary judgment motion” (Myers v. Ferrara, 56 AD3d 78, 84; see Shashi v. South Nassau Communities Hosp., 104 AD3d 838, 839; Goldsmith v. Taverni, 90 AD3d 704, 705). Rather, the plaintiff’s expert must specifically address the defense expert’s allegations (see Feuer v. Ng, 136 AD3d 704, 707; Berthen v. Bania, 121 AD3d 732, 733; Swanson v. Raju, 95 AD3d 1105, 1107; Geffner v. North Shore Univ. Hosp., 57 AD3d 839, 842).

“[A] medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field” (Behar v. Cohen, 21 AD3d 1045, 1046-1047 [internal quotation marks omitted]). However, the witness must “be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable” (id. at 1047 [internal quotation marks omitted]). “Thus, where a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” (id.). Where no such foundation is laid, the expert’s opinion is “of no probative value” (Feuer v. Ng, 136 AD3d at 707; see Tsimbler v. Fell, 123 AD3d 1009, 1009-1010; Shashi v. South Nassau Communities Hosp., 104 AD3d at 839; Geffner v. North Shore Univ. Hosp., 57 AD3d at 842; Mustello v. Berg, 44 AD3d 1018, 1018-1019).

Here, Zaso correctly contends that he demonstrated his prima facie entitlement to judgment as a matter of law and that the plaintiff did not raise a triable issue of fact in opposition (see Alvarez v. Prospect Hosp., 68 NY2d at 324). The plaintiff alleged that Zaso committed malpractice by: (1) failing to test, diagnose, and treat her for strep throat on June 6, 2003, and (2) failing to consider her history of strep infections and include rheumatic fever in the differential diagnosis on June 6, 2003. As to the failure to test, diagnose, and treat strep throat, Zaso did not meet his prima facie burden on the departure element, as his moving papers demonstrated the existence of a triable issue of fact as to whether the plaintiff complained of a sore throat to him in June 2003 (see id.Stukas v. Streiter, 83 AD3d at 23; Cham v. St. Mary’s Hosp. of Brooklyn, 72 AD3d at 1004). Zaso met his prima facie burden with respect to causation, however, as his experts both opined in their affirmations that the strep infection that triggered the plaintiff’s rheumatic fever predated June 6, 2003, as shown by the fact that the plaintiff was already experiencing joint pain by that time. Thus, even if Zaso departed from the accepted standard of care in failing to test the plaintiff for strep throat on June 6, 2003, that failure did not proximately cause the injuries that she has alleged in this action, namely, rheumatic fever manifested by Sydenham’s chorea and mitral valve regurgitation (see Stukas v. Streiter, 83 AD3d at 23). As to the failure to consider the plaintiff’s history of strep infections and include rheumatic fever in the differential diagnosis, Zaso’s experts opined that there was no departure from the standard of care in light of the fact that the plaintiff did not meet the diagnostic criteria for rheumatic fever, and Zaso thus met his prima facie burden with respect to the departure element (see id.Cham v. St. Mary’s Hosp. of Brooklyn, 72 AD3d at 1004).

In response to the foregoing prima facie showing on the causation element with respect to the failure to test, diagnose, and treat strep throat and the departure element with respect to a failure to consider the history of strep infections and include rheumatic fever in the differential diagnosis, the plaintiff failed to raise any triable issues of fact (see Alvarez v. Prospect Hosp., 68 NY2d at 324). First, as to the issue of causation with respect to Zaso’s failure to test, diagnose, and treat strep throat, the plaintiff’s expert did not address Zaso’s experts’ opinions that such failure did not proximately cause the plaintiff’s injuries because the strep infection that triggered the plaintiff’s rheumatic fever predated June 6, 2003 (see Feuer v. Ng, 136 AD3d at 707; Berthen v. Bania, 121 AD3d at 733; Swanson v. Raju, 95 AD3d at 1107; Geffner v. North Shore Univ. Hosp., 57 AD3d at 842). As to the failure to consider the plaintiff’s history of strep infections and include rheumatic fever in the differential diagnosis, the plaintiff’s expert relied on different diagnostic criteria from those relied on by Zaso’s experts and failed specifically to address the diagnostic criteria cited by Zaso’s experts or to opine that such criteria were inapplicable (see Feuer v. Ng, 136 AD3d at 707; Berthen v. Bania, 121 AD3d at 733; Swanson v. Raju, 95 AD3d at 1107; Geffner v. North Shore Univ. Hosp., 57 AD3d at 842). Contrary to the plaintiff’s contention, her expert did not implicitly address the diagnostic criteria cited by Zaso’s experts. The plaintiff’s expert also opined that Zaso should have ordered an anti-strep titer to rule out rheumatic fever, but failed to explain why, if the plaintiff did not meet the diagnostic criteria for rheumatic fever as Zaso’s experts contended, an anti-strep titer to rule out rheumatic fever would have been necessary (see Feuer v. Ng, 136 AD3d at 707; Berthen v. Bania, 121 AD3d at 733; Swanson v. Raju, 95 AD3d at 1107; Geffner v North Shore Univ.

Hosp., 57 AD3d at 842). Accordingly, the plaintiff failed to raise a triable issue of fact in response to Zaso’s prima facie showing that he was entitled to summary judgment, and the Supreme Court should have granted Zaso’s motion for summary judgment dismissing the complaint insofar as asserted against him.

As to Gottlieb and North Shore, the plaintiff alleged that these defendants committed malpractice by failing to obtain a full medical history and failing to test for strep throat, misdiagnosing the plaintiff with benign joint pains, and providing misleading follow-up instructions. Gottlieb and North Shore demonstrated, prima facie, that they did not depart from the accepted standard of care with respect to these allegations (see Stukas v. Streiter, 83 AD3d at 23; Cham v. St. Mary’s Hosp. of Brooklyn, 72 AD3d at 1004). Specifically, their expert, a pediatric rheumatologist, opined that because strep and other infections were common in children, Gottlieb and the staff at North Shore were not required, under the accepted standard of care, to obtain information about the plaintiff’s history of strep infections or to test the plaintiff for strep. This expert further opined that the diagnostic criteria for rheumatic fever included both a prior strep infection and at least one major manifestation. Since the plaintiff had no major manifestations of rheumatic fever on June 13, 2003, according to Gottlieb’s and North Shore’s expert, she could not have been diagnosed with rheumatic fever at that time. Thus, according to their expert, Gottlieb did not deviate from the accepted standard of care in diagnosing the plaintiff with probable benign joint pain and in providing corresponding follow-up instructions. This evidence demonstrated, prima facie, that Gottlieb and North Shore did not depart from the accepted standard of care as alleged by the plaintiff (see Cham v. St. Mary’s Hosp. of Brooklyn, 72 AD3d at 1005). However, Gottlieb’s and North Shore’s showing with respect to the causation element of medical malpractice was conclusory and insufficient to meet their prima facie burden on that element (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d at 853; Stukas v. Streiter, 83 AD3d at 23).

In opposition, the plaintiff failed to raise a triable issue of fact, as her expert’s opinion “was of no probative value” (Feuer v. Ng, 136 AD3d at 707). Gottlieb and North Shore correctly contend that the plaintiff’s expert, a pediatrician and neonatologist, did not lay the requisite foundation to render an opinion on Gottlieb’s actions as a rheumatologist (see Behar v. Cohen, 21 AD3d at 1047). Contrary to the plaintiff’s contention, her allegations against these defendants were based not on Gottlieb having improperly treated strep throat, but on his alleged failure to conduct a proper rheumatological exam, failure to diagnose rheumatic fever, and improper follow-up instructions in light of the misdiagnosis. The plaintiff’s expert did not specify in his affirmation whether he had any specific training or expertise in rheumatology or state that he had familiarized himself with the relevant literature or otherwise set forth how he was, or became, familiar with the applicable standards of care in this specialized area of practice (see id. at 1046). Accordingly, the plaintiff’s expert’s opinion was of no probative value and was insufficient to defeat Gottlieb’s and North Shore’s prima facie showing, and the Supreme Court should have granted their motion for summary judgment dismissing the complaint insofar as asserted against them (see Feuer v. Ng, 136 AD3d at 707).

MASTRO, J.P., CHAMBERS, MILLER and MALTESE, JJ., concur.

Leave a Comment March 31, 2017

Video Laryngoscopy Emergency Medicine Expert Witness Discusses Difficult Airway Secured with Video Laryngoscopy and an Endotracheal Tube Introducer

by: Seth Womack, MD, FAAEM , an ALM Listing Expert

CASE:  43-year-old male presents to the ER with chief complaint of vomiting blood and epigastric (upper stomach) pain.   Approximately 1 hour prior to presenting to the ER, he finished dinner with his family of 5; became nauseated and sweaty; and vomited his meal mixed with a large amount of dark red blood.  His wife states that it seemed “like a gallon!”  Pertinent past history included weekly ibuprofen use for chronic knee pain and alcohol use consisting of beer only on the weekends when he is not working.  He injured his knee due to playing frequently with his children.  On exam, he is afebrile (no fever); has blood pressure of 82/44; heart rate of 122; respiratory rate of 28; and oxygen saturation of 96% when breathing room air.  The patient appears pale, sweaty, and has some mild tenderness to palpation over his upper abdominal area.

Immediately, the patient is placed on nasal cannula oxygen with continuous pulse oximetry and telemetry.  This allows him to breath pure oxygen through his nose while the doctor can monitor the oxygen level in his blood and his heart rate and rhythm on a screen similar to a small flat screen TV.  Two 18 gauge peripheral IVs are placed and O negative blood is ordered, stat, from the laboratory to be given through the rapid transfusion warming unit.  Pantoprazole and octreotide boluses and drips are ordered.  Pantoprazole is a medicine given through an IV that reduces acid in the stomach.  Octreotide is a medicine also given through an IV that reduces pressure in the veins of the esophagus.

This patient is in hemorrhagic shock (low blood pressure due to bleeding somewhere in the body).

His blood pressure is 95/54 after two units of packed red blood cells.  His wife brings his children in the room to see him briefly, and the ER doctor walks out to call the gastroenterologist.  The ER doctor has a strong suspicion that the patient has upper GI bleeding from ruptured esophageal varices (veins in the esophagus have burst and are bleeding).

This condition often requires emergent intubation (patient placed on a ventilator or breathing machine) by emergency room physicians in order to protect the patient’s airway from the rapid upper GI bleeding that could be aspirated or sucked into the patient’s lungs.

Minutes later, the ER doctor goes back into the room to report to the patient that the gastroenterologist is on his way in only to find the patient has begun to vomit a copious amount of dark red blood.

The ER doctor decides to secure the patient’s airway to prevent aspiration of blood.  He suspects this will be a difficult airway due to the patient’s obesity and active bleeding into the patient’s airway.  He calls for drugs to sedate and paralyze the patient as well as the video laryngoscope (VL).  After the patient is sedated and paralyzed, the VL is inserted into the patient’s oropharynx (upper airway).  The VL provides a sufficient view of the vocal cords and trachea but only for approximately a 4 second window.  The oropharynx fills up with blood, and the VL has to be removed quickly to be wiped free of the blood that obscures the small camera.  To make the airway even more difficult, the patient has a short neck and jaw with vocal cords in a high, anterior position.  The endotracheal tube (tube through which the patient will have oxygen delivered) stylet that is made specifically for the VL is insufficient to direct the endotracheal tube between the patient’s vocal cords into his trachea in order to secure his airway.  Meanwhile, the patient’s oxygen saturations are falling.  He cannot be ventilated (oxygen being pushed manually into the lungs) and oxygenated back up to life sustaining levels due to blood obscuring his airway and potentially being pushed into the patient’s lung with bag valve mask ventilation (mask and oxygen bag placed over the patient’s face to manually breath for him).  The ER doctor knows he has one last chance and seconds before having to perform an emergent cricothyrotomy (cutting a hole in the patient’s neck and trachea to insert a tube by which to breath for the patient), which is not best for the patient.  With one last chance, the doctor secures the patient’s airway with video laryngoscopy and an ETI (endotracheal tube introducer).

This rigid piece of elongated blue plastic has more likely than not saved this patient’s life.  The ETI has prevented an emergent cricothyrotomy from occurring.

ER doctors would benefit to be familiar with the process of securing a difficult emergent airway by using video laryngoscopy with ETI assistance.

Terminology: 

  • ETI: endotracheal tube introducer, also commonly named “bougie” or “gum elastic bougie” in the emergency room.  Calling the ETI a “bougie” is a misnomer when using it to secure an airway.  Stedman’s defines bougie as a cylindrical instrument, usually somewhat flexible and yielding, used for calibrating or dilating constricted areas in tubular organs, such as the urethra or esophagus; sometimes containing a medication for local application.  Basically, the ETI goes where the endotracheal tube cannot and then provides a pathway for the endotracheal tube to follow.

Equipment:

  • Video laryngoscope
  • Endotracheal tube of appropriate size
  • ETI (endotracheal tube introducer)

Indication: 

  • Failure at securing airway by traditional video laryngoscopy with ETT (endotracheal tube) and accompanying stylet

Technique: (assuming the patient has been correctly prepared for intubation)

  • Bend the ETI to approximately 45 degrees at a point 8 cm proximal to the distal tip and hold it with dominant hand.
  • Hold the VL with non-dominant hand.
  • Have assistant standing at the side of your dominant hand with the ETT.
  • Insert the VL into the oropharynx and obtain clear view of the vocal cords on the video monitor of the VL system.
  • While holding the VL steady, advance the ETI into the oropharynx until the distal end can be seen on the video monitor.
  • Advance the ETI between the vocal cords and into the trachea until mild resistance is felt, then stop advancing. Resistance is usually met at 24-40cm from the teeth.  Make a mental note of the number at teeth or lip level of the patient.
  • While viewing the ETI between the vocal cords and holding both the VL and the ETI steady, have assistant thread the ETT over the ETI until the ETT is at the level of the intubator’s dominant hand.
  • At this point, have the assistant hold the ETI at the point just proximal to the proximal end of the ETT and grasp the ETT with dominant hand.
  • By looking at the video monitor, confirm that the ETI is between the vocal cords. Also, confirm that the ETI is at the previous noted number at teeth or lip level.
  • Gently advance the ETT while the assistant holds the ETI stationary. The ETT may become lodged on the epiglottis (a thin plate of flexible cartilage that protects the airway when swallowing).  This complication is usually overcome by twisting the ETT along the axis of the ETI while advancing the ETT.
  • When the ETT has been advanced appropriately, hold it in place firmly and have the assistant withdraw the ETI.
  • Inflate the ETT balloon and proceed with traditional ETT placement confirmation.

Over the last decade, video laryngoscopy has become an invaluable tool to emergency physicians.  VL has made the difficult airway as defined by using direct laryngoscopy (viewing a patient’s airway with just the human eye) not so difficult anymore.  However, a clinician can still encounter a failed airway with the use of VL.  The doctor can reduce his or her chances of failing to intubate a patient by adding the use of an ETI to his or her airway algorithm.

Seth Womack, MD, FAAEM is a Board Certified Emergency Medicine Physician in active clinical practice at a level 1 trauma center.  He is licensed in both Louisiana and Texas.  Dr. Womack’s undergraduate degree is in biomedical engineering.  In addition to his busy clinical practice, Dr. Womack serves as an emergency medicine expert witness. He can be contacted at Seth Womack, MD FAAEM; 16623-C FM 2493, PMB #408; Tyler, TX  75703; womackmd@gmail.com; (414) 218-4310 (Cell).

Leave a Comment May 20, 2016

Expert Heavy Plaintiff Wins Against Big Tobacco

*Powered by VerdictSearch*

Plaintiff: Smoking Cigarettes Caused Husband’s Death

Amount: $6,000,000

Type: Verdict-Plaintiff

State: Florida

Venue: Federal

Court: U.S. District Court, Middle District of Florida, Jacksonville

Injury Type(s):

other-death
other-loss of society
cancer-lung
arterial/vascular
pulmonary/respiratory-chronic obstructive pulmonary/respiratory disease

Case Type: Products Liability – Tobacco, Failure to Warn, Manufacturing Defect

Case Name:

Ellen Gray, as personal representative of the Estate of Henry Gray v. R.J. Reynolds Tobacco Company, Philip Morris USA, Inc., Lorillard Tobacco Company, and Liggett Group, LLC, No. 3:09-cv-13603-WGY-HTS

Date: January 29, 2015

Parties

Plaintiff(s):

Ellen Gray (Female),

Estate of Henry(deceased) Gray (Male, 63 Years)

Plaintiff Attorney(s):

Sarah R. London; Lieff, Cabraser, Heimann & Bernstein, LLP; San Francisco, CA, for Ellen Gray,Estate of Henry(deceased) Gray
John Spragens; Lieff, Cabraser, Heimann & Bernstein, LLP; Nashville, TN, for Ellen Gray, Estate of Henry(deceased) Gray

Plaintiff Expert(s):

Alan Feingold; M.D.; Pulmonology; Miami, FL called by Sarah R. London, John Spragens
Neil Grunberg; Ph.D.; Addiction Behavior; Bethesda, MD called by Sarah R. London, John Spragens
Robert Slaton; M.D.; Internal Medicine; Gainesville, FL called by Sarah R. London, John Spragens
Robert Proctor; Ph.D.; Historian; Stanford, CA called by Sarah R. London,John Spragens

Defendant(s):

Liggett Group, LLC,  Philip Morris USA, Inc.,  Lorillard Tobacco Company,  R.J. Reynolds Tobacco Company

Defense Attorney(s):

Steven N. Geise; Jones Day; San Diego, CA, for R.J. Reynolds Tobacco Company
Aviva L. Wernick; Hughes, Hubbard & Reed, LLP; Miami, FL, for Lorillard Tobacco Company
Kelly Anne Luther; Kasowitz Benson Torres & Friedman LLP; Miami, FL, for Liggett Group, LLC
Joyce D. McKinniss; Jones Day; Cleveland, OH, for R.J. Reynolds Tobacco Company
Jeffrey Wagner; Kaye Scholer, LLP; Chicago, IL, for Philip Morris USA, Inc.

Facts:

In 1995, Henry Gray, 63, died of lung cancer in Gainesville.

Ellen Gray, representing the estate of her husband, sued R.J. Reynolds Tobacco Company, Philp Morris USA, Inc., Lorillard Tobacco Company, and Liggett Group LLC, alleging products liability.

The estate alleged that negligence on the part of the tobacco companies caused Gray’s death, as a result of being addicted to nicotine. The estate further alleged that as a result of using the products of the parties sued, Gray suffered from cancer which caused his death. All of the sued parties with the exception of R.J. Reynolds Tobacco Company were dismissed before trial. It was determined that Gray mainly smoked cigarettes manufactured by R.J. Reynolds Tobacco Company. The case stemmed from the Florida state court class-action case, Engle v. R.J. Reynolds Tobacco Co. In 2000, a jury in Engle rendered a $145 billion punitive damages verdict in favor of a class of Florida smokers allegedly harmed by their addiction to nicotine. In 2006, the Florida Supreme Court reversed that award and decertified the class action, but allowed potentially thousands of lawsuits to be filed.

The estate claimed Gray began smoking at age 16 – before the package warnings of the health hazards and addictive nature of cigarettes were required. The estate’s expert tobacco historian testified that R.J. Reynolds engaged in fraud and conspired to conceal the health effects of cigarettes and their addictive nature. Gray’s treating physician, an internist, testified that, based on his care and treatment, addiction to cigarettes containing nicotine caused Gray’s lung cancer, chronic obstructive pulmonary disease (COPD) and vascular diseases. He further testified that there were no other significant risk factors for any of Gray’s diseases, aside from his 90-pack-per-year smoking history. The estate’s addiction expert testified that Gray was addicted to cigarettes.

Defense counsel denied all of the estate’s claims, contending that Gray was not addicted to smoking. The defense further claimed that Gray chose to smoke knowing the risks and bore personal responsibility for the consequences of that decision.

Injury:

Gray’s wife sought to recover damages for loss of society, companionship and protection, as a result of her husband’s death

Result:

The jury found Henry Gray was addicted to cigarettes containing nicotine. The jury found the addiction to cigarettes containing nicotine was a legal cause of Henry Gray’s injuries, and also found that smoking cigarettes was a legal cause of Henry Gray’s death.

Further, the jury found that Henry Gray did not rely to his detriment on statements made by R.J. Reynolds that concealed or omitted material information concerning the health effects and/or addictive nature of cigarette smoking.

The jury found R.J. Reynolds 50 percent negligent and Henry Gray 50 percent negligent.

Finally, the jury determined that Ellen Gray’s damages totaled $6 million. Because of comparative negligence, the award was reduced to $3 million.

 

Leave a Comment February 12, 2015


Contact

Email: experts@ALM.com
Phone: 888-809-0133

Archives

Expert Witnesses

ALM Experts Blog

Admin