The defendants argued that plaintiffs’ mother was a resident in their facility for three years and during that time they identified and treated multiple wounds. The final wound was also being properly treated but she ultimately died due to her other comorbidities.
One of the major issues at trial was the type of mattress the resident was on at the time her final pressure ulcer worsened. Defendants presented evidence that all residents are placed on pressure reduction mattresses, but that plaintiff’s mother was upgraded to an even higher level of mattress in 2015. Plaintiff claimed that this mattress was not in place until December 1, 2017, and that by that time it was too late.
Defendant’s experts, Bruce Robinson, MD, and Lisa Gildred, RN, testified that either mattress would have been appropriate in 2017 and that the wound was being properly treated. Defendant’s experts also testified that plaintiffs mother lived a long full life and survived longer than her doctors predicted in January 2015.
Plaintiff requested a total of $900,000 in non-economic damages. On December 9, 2021, the jury deliberated for approximately three hours and returned a unanimous verdict in favor of the defense.
Michael O’Donnell, Edward Stewart, Shawn Neal, and Christopher Daniels
Wheeler Trigg O’Donnell (WTO) lawyers won a defense verdict for Michelin North America, Inc. in a high-profile product liability trial in South Carolina. In closing arguments, the plaintiffs’ counsel asked the jury to award $66 million in damages.
The case arose out of a 2017 motorcycle accident involving Michelin tires. The crash resulted in catastrophic injuries to both occupants, including the driver who sustained permanent paralysis. The plaintiffs alleged that the motorcycle tire was defectively manufactured.
In his opening statement, lead trial counsel Michael O’Donnell acknowledged that this was a tragic accident, and he sympathized with the plaintiffs. However, O’Donnell reminded jurors, “this case is about facts and science, not sympathy.”
In a statement, Michelin said it “respects the work the jury did to reach its decision. While we sincerely regret this tragic accident and the devastating effects it has had on the Nash family, the evidence presented throughout the eight-day trial showed that the accident resulted from severe under-inflation and improper maintenance of the Michelin tire, not a manufacturing defect. Michelin will continue to vigorously defend the world-class quality of its products and the high-level work of its engineers in these types of cases.”
A WTO team including O’Donnell, Edward Stewart, and Shawn Neal represented Michelin at trial, along with Christopher Daniels of Nelson Mullins.
John B. Stewart
In late-2019, John B. Stewart, of Murphy & Manitsas, Springfield, Mass., was brought aboard to assist Travelers’ defense counsel with a possible summary judgment motion. That effort ended with an affirmance for the defense by the U.S. Court of Appeals for the First Circuit on Dec. 28, 2021. Forbes v. BB&S Acquisition Corp., --F.4th--, 2021 WL 6124407, 2021 U.S. App. LEXIS 38375.
The case stemmed from a 2016 fatality, three days after crash involving an interstate motor carrier whose driver had just delivered BB&S's lumber to its customer, and the driver was pulling an empty flatbed trailer on the way to his next pickup. The ad damnum in the suit was $7 million. Plaintiff had filed the case in Federal Court against six defendants on various theories, including against the actual motor carrier and its driver. The driver had been convicted in criminal court of negligent operation causing death and served time in prison.
The Federal Complaint alleged BB&S was liable as a motor carrier, the "statutory employer" of the truck driver operating at the time of the fatal crash, and/or as a shipper who was negligent in the selection of an unfit carrier to deliver its goods under Restatement of Torts (Second) Section 411. Discovery had taken place over a period of years, and a discovery ruling had partially reigned-in plaintiff's broad requests and had established BB&S was acting solely as a "shipper" (and not a motor carrier) in hiring the co-defendant trucking company to deliver its goods.
The District Court allowed BB&S's motion for summary judgment, denied reconsideration, allowed separate and final judgment, then denied a request to postpone the trial against the other defendants pending decision on Plaintiff's appeal against BB&S in the First Circuit, and declined to certify to Supreme Judicial Court a question of law (whether Massachusetts recognized Section 411 as a viable cause of action).
After briefs were filed in the First Circuit, Plaintiff obtained a jury verdict against the motor carrier and its driver for punitive and compensatory damages of approximately $2 million. The issues in Plaintiff's appeal, argued on Dec. 9, were whether BB&S, as shipper, had responsibility for an accident that occurred after its goods had been delivered, either on a lack of duty or lack of causation basis. Additional arguments were that Massachusetts had not adopted Sec. 411, and that it was not the role of the Federal court to "blaze new trails" in state tort law, especially where Plaintiff had chosen the Federal forum. Finally, that BB&S did not control the driver's actions on the delivery trip or lease him any equipment.
The First Circuit held the fact the delivery contract with BB&S had been completed meant that the driver's accident could not have been caused by any tortious conduct on its part, and there was no lease of equipment or control of the driver that would support a "statutory employer" claim. The summary judgment ruling allowed BB&S to avoid the expense and peril of a three week-long trial.
Michael Burgoyne and Louis Long
Michael Burgoyne and Louis Long, both of Thomas, Thomas & Hafer LLP, combined their efforts in a precedent-setting win in the Maryland Court of Special Appeals. Burgoyne, managing partner of the firm’s Baltimore office, successfully moved to dismiss a SLAPP suit brought by a real estate developer against several residents and their community groups that opposed changes in a planned unit development. Long, chair of the firm’s Appellate Practice Group, and a partner in the Pittsburgh office, briefed and argued the appeal. Long is a past president of the Pennsylvania Defense Institute and is the current co-chair of its Appellate and Amicus Committee.
In MCB Woodberry Developer, LLC v. The Council of Unit Owners of the Millrace Condominium, Inc., et al., No. 1187, September Term 2020 (Md. Ct. Spec. App. December 16, 2021), the court construed and applied a statute, Md. Code Ann., Cts. & Jud. Proc. § 5-807, to protect the first amendment rights of the defendants to express their positions and to participate in governmental proceedings that affected matters of public concern. The decision explained that the statute immunized such activity and it barred retaliatory litigation tactics, known as strategic lawsuits against public participation, or SLAPP actions for short. The court ruled that the developer’s suit met the statutory criteria for dismissal because the timing of the action—coupled with the monstrous compensatory and punitive damage claims, intrusive and oppressive discovery, and conclusory and unsubstantiated allegations—demonstrated the developer’s bad faith in commencing the suit that was expressly designed to silence the opposition to its development.
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