A federal judge in Philadelphia has denied a motion by out-of-state plaintiffs in a products liability case to remand the matter to a Pennsylvania state court.

Ohio residents Glenn and Lauren Boyer had filed a civil action against Pennsylvania-based Wyeth Pharmaceuticals back on Feb. 9, 2012 at the Philadelphia Court of Common Pleas.

The plaintiffs allege their infant daughter was born with birth defects and subsequently died as a result of her mother’s ingestion of the anti-depressant drug Effexor, which is manufactured by the defendant.

Wyeth legal counsel petitioned the federal court on Feb. 13 to remove the matter to the federal venue, citing diversity jurisdiction.

The removal occurred before the defendant had been officially served, court papers state.

The plaintiffs moved for remand to the Philadelphia Court of Common Pleas on the grounds that forum defendant rule precludes removal based on diversity jurisdiction where a defendant, such as Wyeth in this case, is a citizen of the state in which the civil action was filed.

In his April 25 ruling, however, U.S. District Judge Edmund V. Ludwig disagreed, ruling instead in favor of the defendant, which sought to keep the case at the federal venue.

Ludwig denied the plaintiffs’ motion for remand and request for oral argument, writing that the pre-service removal of the action by a non-forum defendant where the forum defendant had not been served prior to removal was proper under the “unambiguous language” of the Federal Rules of Civil Procedure.

The judge’s memorandum states that despite the plaintiff’s claim of Wyeth’s Pennsylvania citizenship, the drug company is actually incorporated in the State of Delaware and has headquarters in New York.

Ludwig wrote in his memorandum that “no challenge is made as to complete diversity of citizenship or the adequacy of the amount in controversy. The question is procedural, not jurisdictional.”

The memorandum shows that the plaintiffs contended remand to state court was proper because the defendant is a citizen of the state in which the original civil action was filed.

The defendant, however, responded by saying that the forum defendant rule only applies where a forum defendant has already been “properly joined and served.”

The judge wrote that in the past, courts within this district have recognized the “propriety of removal by a non-forum defendant where a forum defendant has not yet been served.”

Citing case law, Ludwig wrote that the presence of an un-served forum defendant does not prohibit removal by a non-forum defendant in cases where complete diversity exists.

“The propriety of removal is determined as of the date of removal,” the judge wrote. “Plaintiffs’ argument as to post-removal service is incorrect.”

Ludwig also cited case law in which it has been shown that the propriety of pre-service removal has been recognized.

In Wyeth’s Feb. 13 removal notice, attorneys Robert A. Limbacher and Brandon L. Goodman, of the Philadelphia firm Goodell, Devries, Leech & Dann, wrote that venue was proper in federal court because the amount in controversy likely exceeds the $50,000 jurisdictional limit in state court.

“It is apparent from the face of the complaint, and the serious injuries alleged, including the alleged wrongful death of the minor child, that the amount in controversy exceed $75,000,” attorneys for Wyeth wrote.

The plaintiffs’ complaint, which was filed by Philadelphia attorneys Thomas R. Anapol and Gregory S. Spizer, of the firm Anapol Schwartz, alleges that Lauren Boyer had taken Effexor with the assurance of her physician, who informed her that any birth defects or serious pregnancy issues associated with the use of the drug would have been “listed or emphasized” on the drug information.

“Despite the exercise of reasonable diligence in investigating the cause of the injuries, including consultations with her medical care providers, the Parent Plaintiffs were not told that Effexor could have caused the Infant Plaintiff’s injuries,” the complaint states. “Had Mrs. Boyer had been adequately warned that Effexor could cause birth defects if ingested during pregnancy, she would not have taken the drug.”

The lawsuit states that the couple’s child, Adelaide, was born suffering from life-threatening defects that quickly led to her early death.

The complaint contains counts of strict product liability for design defect, failure to warn and defective design; negligence; negligent design; fraud, misrepresentation and suppression; constructive fraud; breach of express and implied warranties; and gross negligence and malice.

The lawsuit also contains a loss of consortium count.

The plaintiffs, who reside in Lewis Center, Ohio, seek compensatory and punitive damages, as well as damages for wrongful death.

The additional defendants named in the suit are Wolters Kluwer Health Inc. and Pfizer Inc.

Trial is scheduled to begin next week in the wrongful death case arising out of the deadly duck boat accident that occurred in the waters of the Delaware River back in July 2010.

The collision, which occurred after a barge struck the amphibious tourist vessel in the river’s navigational channel on the Philadelphia side, resulted in the deaths of a teenager and a young adult visiting from Eastern Europe.

The parents of the visiting Hungarian students who drowned, 16-year-old Dora Schwendtner and 20-year-old Szabolcs Prem, are expected to be in court for opening arguments, according to a statement by plaintiff’s firm Saltz Mongeluzzi Barrett & Bendesky.

The high-power Philadelphia law firm is representing the plaintiffs alongside lawyers from Ronai and Ronai.

The plaintiffs’ attorneys filed suit on behalf of the deceased students’ parents on Aug. 10, 2010 at Philadelphia’s Common Pleas Court.

Defense attorneys removed the case to federal court the following month because of jurisdictional issues.

The complaint alleges that the defendants, Ride The Ducks of Philadelphia LLC, which operates the amphibious tourist vehicles, and K-Sea Transportation Partners, which was in charge of the tugboat that was pushing the empty sludge barge that struck the duck boat on that fateful day, were equally negligent and should share the responsibility in the deaths of the two young people.

A third defendant named in the lawsuit is Ride the Ducks International LLC, a Georgia-based company and subsidiary of Herschend Family Entertainment, which owned, maintained and operated the 33-foot amphibious tour boat, which can operate on land and in water.

Ride the Ducks, the complaint states, has been operational in Philadelphia since 2003. It is the nation’s largest amphibious tour operator and amphibious vehicle maker.

According to a statement from Saltz Mongeluzzi, two of the defendants are claiming that under an “archaic” 1851 maritime limitation of liability law, their total liability should be capped at the value of the vessels involved in the accident.

K-Sea estimates the value of the tugboat at $1.65 million while Ride the Ducks asserts $150,000 in total liability based on the value of the salvaged duck boat.

Plaintiffs’ attorneys are prepared to argue at trial that the accident could have been avoided if it wasn’t for the irresponsible actions of tugboat First Mate Matt Devlin, who was using his cell phone at the time the barge struck the tourist vessel, according to Saltz Mongeluzzi’s statement.

“The evidence to be presented at trial will conclusively establish that this accident was not a freak unpredictable occurrence, but occurred because of multiple egregious failures of K-Sea and Ride the Ducks to properly train their employees and to have adequate policies and procedures in place,” the statement reads.

Devlin, of Catskill, N.Y., pleaded guilty to involuntary manslaughter in August 2011 and was sentenced that November to one year and one day in federal prison, according to news reports.

At his sentencing, local media reported at the time, Devlin said he wished he could “take it all back,” and admitted to having been distracted at the time of the crash by a phone call he had received concerning his 5-year-old son who went eight minutes without oxygen during a routine eye surgery.

Devlin was on his cell phone trying to ascertain his son’s condition at the time the barge collided with the duck boat.

Saltz Mongeluzzi’s statement said that evidence at trial would establish that “every person on the tugboat routinely and consistently violated K-Sea’s cell phone policies and that management knew of such violations and did nothing to deter them.”

The plaintiffs’ attorneys will also attempt to show that Ride the Ducks employed an “incompetent” mechanic who, during his first time performing a post-trip inspection alone, which occurred the night before the accident, left the radiator cap off of the duck boat’s engine, a failure that led to engine overheating, which, in turn, caused the vehicle to be stranded in the Delaware River at the time it was struck by the sludge barge.

The duck boat’s captain, Gary Fox, believed there was a fire onboard and shut down the vessel in the middle of the river’s shipping channel.

The complaint faults Fox for dropping anchor in the middle of a busy commercial shipping channel, and also blames him for not instructing the passengers aboard the vessel to strap on their floatation devices earlier.

While Fox is faulted for not contacting the U.S. Coast Guard on the duck boat’s emergency channel, the captain did try to alert other vessels in the area of the duck boat’s predicament; Devlin, the tugboat’s first mate, hadn’t heard the distress call because he was on his cell phone with the tugboat’s radio turned down at the time.

“Dora Schwendtner and Szabolcs Prem died a horrific agonizing death by drowning, alone in a foreign country without their parents in the murky dark waters of the river after fighting for and losing their lives,” the complaint states.

The lawsuit contains counts of negligence, strict product liability, violation of general maritime law, violation of inland navigation rules, outrageous conduct, and wrongful death.

The suit also contains a negligence count against the City of Philadelphia.

The plaintiffs seek compensatory damages in excess of $50,000 as well as punitive damages and delay damages.

The trial, which will take place before U.S. District Judge Thomas N. O’Neill, is expected to last about four weeks. The first day of trial will be May 7.

A Philadelphia judge is asking a state appellate court to affirm a First Judicial District ruling from last summer that granted summary judgment to the state and the Pennsylvania Department of Transportation in a case where the defendants were being sued over a deadly 1997 motor vehicle accident.

In a May 4 opinion filed at the Philadelphia Court of Common Pleas, Judge Allan L. Tereshko requests that Pennsylvania Commonwealth Court uphold his Aug. 17, 2011 ruling in favor of the defendants in a case initiated by Vince E. Oaks on behalf of his late wife, Rhonda Bronson.

According to background information in the case, Bronson was killed in the early morning hours of Dec. 23, 1997, after her vehicle, which was traveling southbound along the Roosevelt Expressway, skidded across the roadway and into a raised median barrier curb.

The vehicle then went airborne, vaulted over the barrier into the northbound lanes of the expressway, and struck a vehicle occupied by Mark and Tyra Brooks.

Bronson and both Mark and Tyra Brooks died as a result of injuries sustained in the crash.

Oaks, Bronson’s common law husband, filed suit against the defendants on March 8, 2010.

In July 2011, the defendants filed a motion for summary judgment, which a Philadelphia Common Pleas Court judge granted the following month.

The plaintiff appealed the decision to the Pennsylvania Superior Court in September 2011, and the following month the trial court ordered Oaks to file a Concise Statement of Errors Complained of on Appeal, which the plaintiff did in late October 2011, the background information on the case states.

In late November 2011, the Superior Court transferred the appeal to Commonwealth Court, which is Pennsylvania’s lower-tier appellate court.

The issues being raised on appeal involve whether the plaintiff’s claims are barred by a statute of limitations and whether the claims are barred by the doctrine of sovereign immunity.

In this case, the Philadelphia trial court ruled that Oaks’ claim was, in fact, barred by a statute of limitations.

Bronson’s fatal injuries occurred in late December 1997, meaning Oaks would have had to file his complaint by Dec. 24, 1999.

He didn’t file his complaint until March 8, 2010.

Oaks had argued that his claim could proceed under the state’s Minority Tolling Statute, which allows complaints being brought on behalf of those who were minor children at the time a cause of action arose to have the same window of opportunity in which to file a claim after the minor becomes an adult.

In this case, however, the trial court ruled that the Minority Tolling Statute is not applicable because Oaks, in his amended complaint, brought the action on behalf of Bronson, and not his then-minor son.

“Therefore, because the action was brought by Plaintiff as the personal representative of the estate, the statute of limitations was not tolled, and Plaintiff’s claims are barred,” the trial court ruled.

The trial court had also ruled that the defendants were protected under sovereign immunity due to their status as government entities.

The ruling stated that courts have held there can be no liability premised on the negligent installation of a safety fixture the government had no duty to provide.

“Therefore, Plaintiff’s contentions that the accident could have been avoided if the median was six inches higher or the barrier curb was placed closer to the median are insufficient to establish liability of the Defendants,” the ruling stated.

The trial court ruled that the defendants did not waive sovereign immunity in this case because the plaintiff’s claim does not arise from a dangerous condition of commonwealth real estate.

A Commonwealth Court panel now must either affirm or strike down the trial court’s decision.

Mongeluzzi

The federal wrongful death trial stemming from the deadly 2010 duck boat accident on the Delaware River in Philadelphia got under way Monday with opening arguments by the attorneys involved in the civil litigation.

The lengthiest opening statement came from plaintiff’s attorney Robert Mongeluzzi, of the Philadelphia law firm of Saltz Mongeluzzi Barrett & Bendesky, who said he plans to prove at trial that the defendants, K-Sea Transportation, Ride the Ducks of Philadelphia and Ride the Ducks International, were equally responsible for the deaths of 16-year-old Dora Schwendtner and 20-year-old Szabolcs Prem, two Hungarian students who were in Philadelphia on a cultural visit when they met their demise.

The two lost their lives July 7, 2010 when the amphibious duck boat in which they were riding was capsized by a barge in the shipping lanes of the Delaware River on the Philadelphia side.

The tourist vessel had been broken down and stranded in the river when it was struck by the sludge barge; it was later determined that the first mate on the tugboat that was pushing the barge was using his cell phone at the time of the accident.

The first mate, New York resident Matt Devlin, was subsequently found guilty of the maritime equivalent of involuntary manslaughter and sentenced to a year in federal prison.

He is currently serving his sentence.

On Monday, Mongeluzzi said he intends to prove at trial that the negligence on the part of both K-Sea Transportation and Ride the Ducks led to the two deaths.

K-Sea had a policy against the use of cell phones dating back to 2002, Mongeluzzi said, but management failed to enforce the ban.

This much was admitted to during Devlin’s deposition, he said.

“K-Sea accepted that people were going to use their cell phones while on watch,” Mongeluzzi said. “They accepted that crew members were going to violate their policies, and they did so.”

Following the deadly accident, National Transportation Safety Board investigators determined that Devlin had been distracted by disturbing news involving his young son, who Devlin learned had been deprived of oxygen for eight minutes during a routine surgery.

Devlin was on his cell phone frantically trying to ascertain his son’s condition at the time of the crash.

The record shows that Devlin had left his position in the tugboat’s upper deck and descended down below to take the cell call.

The first mate never heard the distress calls sent out by the duck boat’s captain, Gary Fox, in the moments before the tourist vessel was struck and capsized.

“There’s clear evidence in this case that management knew their cell phone policies weren’t working,” Mongeluzzi said of K-Sea.

During depositions, Mongeluzzi said, all five crewmembers who were on the tugboat that day admitted cell phone use.

When deposed, Devlin himself testified that during the 1,700 or so times he was in the water, he had often used his cell phone, according to Mongeluzzi.

“That is the definition of a failed policy,” he said. “The cell phone use was rampant, routine, continuous and an utter [distraction] to its employees.”

Mongeluzzi didn’t lay blame solely with K-Sea, saying in court that Ride the Ducks had its own policy failures that led to the deaths.

The tourist company, which has operated in Philadelphia since 2003, also failed to follow proper policy with regard to personal floatation device usage, it failed to display a federally required “anchor ball” at the time the vessel became stranded in the river, and it failed to contact the U.S. Coast Guard upon discovering that it was stuck in the middle of the river’s commercial shipping channel, Mongeluzzi said.

Mongeluzzi also blamed the incident on a “rookie mechanic,” whose failure to replace the radiator cap on the duck boat during a pre-tour inspection the night before led to the vehicle’s overheating, which duck boat Cpt. Gary Fox mistook for a fire.

The smoke filling the duck boat that was caused by the overheating is what led Fox to turn off the vehicle and call for a tow.

Fox also attempted to sound an air horn on the duck boat, but the device malfunctioned and never sounded, Mongeluzzi said, “because it was defectively designed.”

Attorney Wayne Meehan, who represents K-Sea Transportation, conceded during open arguments that Devlin, the tugboat first mate, was negligent because of his distracted cell phone use.

The attorney said Devlin had “lost his faculties” at the time he got the unnerving cell phone call involving his young son’s health condition.

But Meehan argued that as captain of the duck boat, Fox should also shoulder some responsibility for the accident because of some of his alleged failures, such as the decision not to call the Coast Guard.

Jack Snyder, an attorney representing Ride the Ducks and Kyle Burkhardt, an 18-year-old trainee who was at the helm of the duck boat at the time of the crash, said nothing his clients did “in any way caused injuries or death to these children.”

Snyder referenced documents showing that the duck boat was up to par as far as safety standards go, and that the Coast Guard certified the vehicle as being safe as recent as four months prior to the deadly accident.

As for the mechanic leaving the radiator cap off of the duck boat during a pre-trip inspection, Snyder blamed this on “human error,” and not some lack of training on the part of the mechanic, whom Mongeluzzi referred to as a “rookie.”

Snyder said since Ride the Ducks came to Philadelphia in 2003, more than 12 million passengers never experienced any injuries and had safe and gratifying experiences.

Finally, counter-arguing Mongeluzzi’s contention that the canopy on the duck boat helped lead to the deaths because the material pulled people underneath the water, Snyder said evidence shows the canopy actually helped save lives, since some of the duck boat’s passengers were able to use the material as a floatation device once they resurfaced after the boat capsized.

Part of the issue to be decided by U.S. District Judge Thomas N. O’Neill at the non-jury trial is the apparent limit of liability due to what Mongeluzzi is calling an “archaic” 19^th Century maritime law that caps a defendant’s liability at the value of the vessels involved in the accident.

K-Sea has estimated the value of the tugboat at $1.65 million while Ride the Ducks asserts $150,000 in total liability based on the value of the salvaged duck boat.

Mongeluzzi’s law firm along with lawyers from the firm Ronai and Ronai, filed suit in August 2010 at Philadelphia’s Common Pleas Court on behalf of the parents of Schwendtner and Prem.

The parents were in court Monday and are expected to attend at least the first week of the proceedings, their lawyers have said.

The trial is expected to last about a month.

Rosen

The parents of a 25-year-old Philadelphia firefighter who was killed during a warehouse blaze last month are intending to sue the owners of the derelict property.

Attorney Joel S. Rosen, of the Philadelphia law firm Cohen Placitella & Roth, filed what is known as a writ of summons at Philadelphia’s Common Pleas Court May 4.

The legal paperwork is the last step prior to filing a civil action in state court.

No official complaint had been filed as of Tuesday, and in a brief telephone interview, Rosen said he couldn’t say how long it would take to file a formal complaint, or even if one will be filed.

Under state law, he has a two-year statute of limitations in which to bring a civil action, he said.

“Right now this is just done for discovery purposes,” Rosen said.

The move, however, signals that David and Marian Sweeney intend to recover damages relating to the death of their son, Daniel Sweeney, who was killed alongside Lt. Robert P. Neary, 60, a firefighter who was close to retiring.

Sweeney and Neary lost their lives battling the five-alarm fire that broke out in the abandoned Thomas W. Buck Hosiery building in the city’s Kensington section on April 9.

Sweeney had been on the job for five years, according to local news reports.

The defendants who have been named in the pending litigation are York Street Property Development LP, York Street Property Development GP, LLC, YML Realty Inc., and Michael and Mahman Lichtenstein.

The Lichtensteins are the Brooklyn, NY-based owners of the old warehouse building where the firefighters were killed in what news reports stated was the Philadelphia Fire Department’s most tragic day in seven years.

The property owners have gotten flack for their apparent nonchalance relating to the abandoned building; they were informed by Philadelphia officials on numerous occasions that the warehouse presented a danger given its deteriorated condition, but they never took the steps to remedy the situation, news reports have stated.

The Lichtensteins also allegedly owe more than $60,000 in back taxes and $12,000 in water and sewer bills on the property, the Philadelphia Inquirer reported last month.

On the same day that the Sweeney writ of summons was filed, similar court papers were filed by Rosen on behalf of Francis Chaney and Pat Nally, two Philadelphia firefighters who were injured in the warehouse blaze but survived.

The same defendants were named in the Chaney and Nally court filings.

The family of a Philadelphia woman who died four days after being admitted to the emergency room at Chestnut Hill Hospital in the northwestern part of the city has filed a medical malpractice lawsuit against the agency and the doctors involved with the deceased woman’s care.

Attorney Wayne A. Schaible, of the Philadelphia firm McCann, Schaible & Wall, filed the civil action May 7 at the Philadelphia Court of Common Pleas on behalf of Sheila Kelly-Parker, who is suing in her capacity as the administrator of the estate of her late mother, Alma M. Kelly.

The defendants named in the lawsuit is Tri-County Emergency Physicians LLC, the Chestnut Hill Hospital Health System, and doctors Mark Bruno and Michael J. Carnathan.

According to the complaint, Kelly was taken to the hospital’s emergency room on April 20, 2011 after complaining of increasing swelling to her tongue, throat and face.

Kelly had taken cardiac medication earlier in the evening, and it is not clear whether that had caused her condition.

The lawsuit claims that hospital staff caused Kelly to sit in the waiting room for a while instead of receiving the treatment she required, namely a securing of her airway.

The suit claims that it should have been evident to any medical provider that Kelly was suffering from angioedema, but nobody diagnosed Kelly’s ailment.

While hospital documentation is incomplete, the emergency room records show that Kelly’s vital signs weren’t taken for quite some time, and that it took equally as long for Kelly to get in to see a physician, the suit states.

By this time, the complaint alleges, Kelly’s symptoms had progressed to the point that she was unable to speak or sign medical authorizations.

“Despite the fact that it was apparent that she was in the midst of a life-threatening situation requiring the immediate securement of an airway so that she did not suffocate, the nurses and physicians simply moved her to a room and failed to promptly prescribe appropriate steroids … to either slow or reverse the airway swelling which was life-threatening,” the lawsuit states.

The complaint faults Bruno and Carnathan for not making the appropriate diagnoses and take immediate steps to reduce Kelly’s swelling.

Staff did eventually attempt to intubate Kelly, the suit states, but to no avail.

The hospital soon summoned a surgeon who lived nearby, and he performed a tracheostomy on Kelly, but the woman ended up suffering an anoxic brain injury that ultimately led to her death in the hospital four days later, the lawsuit claims.

The lawsuit accuses the defendants of negligence for not doing enough to assist Kelly.

The complaint also contains a wrongful death count and a survival action.

The plaintiff demands judgment in excess of $50,000, plus other court relief, for each of the counts listed.

A jury trial has been demanded.

The case ID number is 120500200. 

Mongeluzzi

The parties involved in the federal duck boat wrongful death case have agreed to a $15 million settlement to be shared by the families of the two visiting Hungarians killed after their tourist vessel was capsized in the Delaware River in Philadelphia two years ago.

The settlement, announced on Wednesday, came on what was supposed to be the third day in the non-jury trial at the U.S. District Court in Philadelphia.

The money will be split between the two families of those killed in the accident. An additional $2 million will be set aside for the survivors of the crash.

It was not immediately clear what share of the settlement each defendant would pay.

On Tuesday, the judge overseeing the case, Thomas O’Neill, ordered both sides into settlement talks before fellow U.S. District Judge John R. Padova.

O’Neill had said there would be no disruption while the parties tried to reach an agreement in mid-trial since there was no jury deciding the case.

Dora Schwendtner, 16, and Szabolcs Prem, 20, lost their lives on July 7, 2010 after the Ride the Ducks amphibious tourist craft was struck by an empty sludge barge in the middle of the river’s commercial shipping channel on the Philadelphia side of the waterway that separates Pennsylvania and New Jersey.

The only person to face criminal charges in the case was Matt Devlin, the first mate on the tugboat that was pushing the barge.

Devlin is currently serving a yearlong federal prison sentence for the maritime equivalent of involuntary manslaughter.

Investigators determined that Devlin was distracted by distressing news involving his young son, who had lost oxygen for a period of time while undergoing routine surgery.

Devlin was using his cell phone to try and ascertain his son’s condition at the time the barge struck the duck boat, which has been stranded in the waterway due to mechanical failures.

Video played by the plaintiff’s attorneys during the first day of trial Monday showed the barge striking and overturning the amphibious vessel.

Lead plaintiff’s attorney, Robert Mongeluzzi, of the high-power Philadelphia firm Saltz Mongeluzzi Barrett & Bendesky, had said for the first time in public during opening arguments Monday that Schwendtner threw her life preserver overboard to Kyle Burkhardt, the 18-year-old trainee and first mate on the duck boat during that fateful day.

Schwendtner’s actions likely saved Burkhardt’s life, Mongeluzzi had said in court.

The defendants in the case were K-Sea Transportation Partners, the New Jersey-based company that operates the tugboat, and Ride the Ducks, which owns and maintains the fleet of duck boat vehicles, which can operate on land and in water.

The company has been offering tours in Philadelphia since 2003.

Mongeluzzi had blamed the two deaths on both defendants’ negligence, especially laying blame at K-Sea’s policy regarding cell phone use by employees.

In a statement released following the settlement agreement, Mongeluzzi said the families of those slain were “deeply grateful to the Court for recognizing that their children were important and did not deserve to die in vain.

“While their suffering continues, they have renewed hope in the American justice system and that stricter regulations on cell phone use and tourist-boat operating procedures might avert similar catastrophes on and off the water,” Mongeluzzi continued.

Mongeluzzi’s co-counsel, Andrew Duffy, said in his own statement that the case illustrated “what happens when safety rules and regulations are not enforced.”

The settlement is not only the appropriate remedy for the families involved, Duffy said, but is also “totally consistent with the findings and recommendation following the extensive investigation by the National Transportation Safety Board.”

The revelation that Devlin, the tugboat’s first mate, was using his cell phone below deck at the time of the crash came about through the investigation by the NTSB.

Mongeluzzi’s law firm tried the case along side attorneys with New York-based Ronai & Ronai.

Massiah-Jackson

A Philadelphia Common Pleas Court judge has, for the second time, denied a bid by two city police officers to dismiss a wrongful death lawsuit against them by the family of a homeless man killed by one of the cops three years ago.

In a May 15 order, Judge Frederica A. Massiah-Jackson denied a motion for reconsideration that had been filed by Philadelphia Police Officers Michael Wexler and Clarence Irvine.

The two officers were named as defendants in a civil case initiated back in November 2010 by the family of the late Baron D. Adams, a 22-year-old homeless man who was shot and killed by Irvine in the summer of 2009 after Adams allegedly took the officer’s service pistol.

The incident occurred on the fronts steps of Adams’ parents’ house.

According to the lawsuit, Wexler and Irvine responded to complaints of a wandering homeless man, later identified as Adams, who was meandering around the 6100 block of Marshall Street, which is within the boundaries of the defendant officers’ 35^th Police District.

Upon arrival, the complaint states, the officers discovered Adams laying on the ground masturbating, the suit states.

The officers soon realized Adams had a prior 302 commitment, which is the code for involuntary psychiatric evaluation, and they also learned he was not allowed to be near his parents’ residence.

Philadelphia police had apparently visited the house in the past for alleged complaints.

Adams told the officers he was at the house because he was having trouble breathing and needed to retrieve medication, the suit states.

The complaint states that at this point the officers should have realized they were dealing with a mentally ill individual, and thus should have proceeded as per department policy regarding such individuals.

Namely, the suit claims, the officers should have attempted to de-escalate the situation and not take aggressive action.

However, Wexler attempted to handcuff Adams, the suit states, at which time the man, a diagnosed paranoid schizophrenic, “felt threatened and tried to defend himself.”

It was at this point that Irvine pulled his service weapon on Adams. A struggle soon ensued and Adams ended up being shot to death.

Adams’ estate contends the officers did not properly handle the situation.

In addition to the personal injury/wrongful death complaint filed in late 2010 at Philadelphia’s Common Pleas Court, a separate civil rights matter is pending at the U.S. District Court for the Eastern District of Pennsylvania, court records show.

The City of Philadelphia and city police Commissioner Charles H. Ramsey are named as additional defendants in the federal litigation.

Common Pleas Court Judge Massiah-Jackson’s May 15 order denying the two officers’ motion for reconsideration comes about a month after the jurist denied the defendants’ motion for summary judgment in the case.

The prior motion was denied on April 16.

“The Defendants-Police Officers continue to assert that there is a legal basis for a ruling as a matter of law in favor of their Motion,” Massiah-Jackson’s most recent order states. “This Court does not agree.”

The judge said it will be up to a jury to decide whether or not the circumstances of the case give rise to “willful misconduct” and/or “gross negligence.”

Massiah-Jackson further wrote that oral testimony alone of the moving party or the moving party’s witnesses, even if un-contradicted, is insufficient to establish the absence of a genuine issue of material fact.

“It is not the province of the Court to assume that the testimony from the moving party’s witnesses are true,” the order states.

Massiah-Jackson wrote that exceptions to immunity from civil and criminal liability must be “narrowly construed.”

“This Court is unable to conclude that either our statutes or the facts herein mandate a determination that judgment as a matter of law is appropriate,” the judge wrote. “Police Officers Wexler and Irvine have been unable to distinguish this case which involves the interplay between the MHPA and the Political Subdivision Tort Claims Act from well-established precedent involving the interplay between the MHPA and the Sovereign Immunity Act or the interplay between the MHPA and the Mental Health Retardation Act.”

The MHPA is short for the state’s Mental Health Procedures Act.

The civil trial is expected to begin this coming fall, the court docket shows.

The mother of a young man who was struck and killed by a garbage truck in Bucks County earlier this year has filed a wrongful death claim against the driver of the vehicle and his employer.

Philadelphia attorneys Shanin Specter and Jason L. Pearlman, of the firm Kline & Specter, filed the civil action May 15 at Philadelphia’s Court of Common Pleas on behalf of Jean Gilbert.

Gilbert, who currently resides in Washington, D.C., is suing on behalf of her deceased son, Eli Gilbert, who died just five days after his 21^st birthday after Erik Johnson struck the younger Gilbert with his Waste Management trash truck.

Johnson, of Philadelphia, is named as a defendant in the wrongful death complaint, as is Bristol, Pa.-based Waste Management of Pennsylvania Inc. and Houston-based Waste Management Inc.

According to the complaint, Eli Gilbert was walking through the parking lot of the Wawa convenience store at 3230 Bath Road in Bristol at a little after 6:30 the morning of Jan. 7 when Johnson, who was operating his garbage truck, struck Gilbert with the front of the vehicle.

Gilbert ended up suffering “catastrophic” injuries that eventually led to his death, the suit states.

The lawsuit claims Johnson’s operation of his garbage truck was negligent in that he failed to yield to Gilbert, failed to stop his vehicle prior to striking the victim, failed to maintain proper control of  his vehicle, failed to come to an immediate stop after striking Gilbert, operated a vehicle in a careless and unsafe manner and operated a motor vehicle without due regard to the rights, safety and position of Gilbert.

The suit states that Jean Gilbert, as the administratrix of her son’s estate, is entitled to recover damages under Pennsylvania’s Wrongful Death Act.

Jean Gilbert claims all expenses related to medical, funeral and burial expenses, and expenses of administration necessitated by reason of injuries causing plaintiff’s decedent’s death.

Gilbert also claims damages for the loss of companionship, comfort, society guidance, solace and protection of her son, the lawsuit states.

She also seeks damages for emotional and psychological loss.

The lawsuit also contains a Survival Action count.

Gilbert seeks judgment against the defendants in a sum in excess of the arbitrational limits, or $50,000 in state court, plus interest, delay damages and court costs.

A jury trial has been demanded.

The case ID number is 120501322. 

A couple who lost their unborn child in utero when the wife was at full-term pregnancy has filed a wrongful death claim against various healthcare providers, alleging the defendants didn’t do enough to properly protect the fetus.

Attorneys Marc G. Brecher and Susan A. Morgan, of the Philadelphia law firm Wapner, Newman, Wigrizer, Brecher & Miller, filed the civil action May 29 at the Philadelphia Court of Common Pleas on behalf of Philadelphia residents Karean Christian and Lawrence Everett.

The couple, who are husband and wife, are suing on behalf of their deceased son, Khalil Antonio Everett.

The defendants named in the lawsuit are Thomas Jefferson University Hospital, Jefferson University Physicians, Jefferson Family Medicine Associates, Christina N. Hillson and Sara DeBoer.

The latter two are medical doctors who work for the co-defendants.

According to the complaint, Christian, who was 37 weeks pregnant at the time, was taken to Thomas Jefferson University Hospital on Oct. 15, 2011 at about 4:20 in the morning with complaints of abdominal pain.

She was released nearly two hours later.

Later that evening, however, Christian returned to the hospital after experiencing worsening abdominal pain, nausea and vomiting, the lawsuit states. She was discharged the following day at about 4 a.m.

On Oct. 17 of that year, Christian went to the office of her prenatal provider, defendant Jefferson Family Medicine Associates, for evaluation of continued abdominal pain and came under the care of defendants Hillson and DeBoer.

The next day, Hillson phoned Christian to inform her that an ultrasound performed on Oct. 16 at Thomas Jefferson University Hospital demonstrated no gall stones and no evidence of cholecystitis, and that she should return to Jefferson Family Medicine Associates in three days, according to the complaint.

During that phone conversation, Christian told Hillson that she was still experiencing abdominal pain.

On Oct. 19, Christian went back to Thomas Jefferson University Hospital with continued abdominal pain, at which time she was informed by medical personnel that a fetal heart rate could not be found and that the unborn child had died in utero, the lawsuit states.

The lawsuit accuses the defendants of negligence for failing to properly recognize the source of Christian’s abdominal pain, failing to take proper cognizance of nonreactive fetal heart monitor tracings taken from Christian during her evaluation at the labor and delivery unit of the hospital, failing to properly interpret the fetal heart monitor tracings taken from Christian and failing to perform certain tests that could have more accurately assessed Christian’s condition.

The lawsuit contains counts of wrongful death, medical malpractice, bodily injury, and negligent infliction of emotional distress.

The complaint alleges that after being informed that her baby had died in utero, Christian was told that her labor would have to be induced to vaginally deliver the deceased child from her womb.

“Plaintiff, Karean Christian, underwent induction of labor for many hours on October 19, 2011, during which time she was alert and oriented and suffered extreme pain, suffering, fear, anxiety, and emotional distress knowing that she was in the process of delivering her baby dead,” the lawsuit states. “As a result of the aforesaid acts of medical negligence by defendants, plaintiff, Karean Christian, suffered extreme pain, suffering, fear, anxiety, and emotional stress upon observing the traumatic birth of her dead infant son.”

The suit claims that Christian continues to suffer from stress and anxiety, insomnia, crying spells, headaches, forgetfulness, social withdrawal, loss of appetite, flashbacks and nervous system shock.

The plaintiffs seek compensatory damages in excess of $50,000.

The case ID number is 120503241.

Merinar Jr.

The widow of a U.S. Forest Service employee who died back in June 2010 when the small plane he and two other Department of Agriculture workers were in crashed in north-central Pennsylvania has filed a wrongful death claim against those charged with maintaining the aircraft.

West Virginia attorney John R. Merinar, Jr. filed the civil action May 31 in state court on behalf of Elizabeth C. Snider, who is suing on behalf of her deceased husband, Daniel A. Snider, and the couple’s child, Lee W. Snider.

Daniel Snider was one of three Forest Service employees who died June 21, 2010 when the small plane the government had chartered to conduct an aerial pest detection survey crashed in Lock Haven, Pa.

The aerial accident in the Clinton County municipality also claimed the life of New York State resident Patrick Jessup, who was piloting the craft on that day, according to an Associated Press news report.

The third person to die in the crash was Rodney L. Whiteman, another Forest Service employee, according to the lawsuit.

The day after the accident, the AP reported that the small plane went down as it approached Piper Memorial Airport. The aircraft struck a house and ended up in the street. No one else was injured in the accident.

Last week, plaintiff’s attorney Merinar filed the suit at the Philadelphia Court of Common Pleas.

The litigation was removed to the U.S. District Court for the Eastern District of Pennsylvania by Philadelphia attorneys Howard M. Klein and P. Connell McNulty, of the firm Conrad O’Brien.

The two represent defendants Continental Motors Inc., Teledyne Technologies Inc. and Technify Motor USA Inc.

Additional defendants named in the complaint are Pittsburgh, Pa.-based Allegheny Technologies Inc. and TDY Industries, as well as New York-based Sterling Airways Inc.

The removal notice filed by the defendants attorneys state that venue is proper in federal court because a diversity of citizenship exists between the various parties.

The plaintiff resides in West Virginia, as did her deceased husband.

According to the complaint, the Cessna airplane departed from Hornell, N.Y. on the date of the accident and flew to the airport at Clarion, Pa. to pick up Snider and Whiteman.

Jessup was piloting the plane at the time.

The three performed aerial survey operations over Pennsylvania before approaching the airport in Lock Haven, Pa. with the intent to land there.

The plane’s engine, however, suffered a “catastrophic in-flight failure,” and the craft crashed just short of Runway 9 at the Pennsylvania airport.

The lawsuit claims that Daniel Snider survived the actual impact, but died in the post-crash fire.

The contract to perform the aerial survey work was issued by the Forest Service’s Northern Research Station located in Newtown Square, Pa.

The complaint accuses Sterling Airways of negligently and recklessly failing to maintain the aircraft in a “reasonably safe condition.”

Allegations include the accusation that Sterling failed to calibrate instruments used to check compression during annual inspections and failed to use a bore scope to inspect cylinders and their component parts.

“Sterling’s negligent failure to adequately inspect and maintain [the aircraft] was a proximate cause of the wrongful death of Daniel A. Snider,” the suit states.

The suit claims that as a result of the defendants’ negligence, Elizabeth Snider and her son have suffered “anguish and emotional distress, loss of consortium, funeral expenses, the costs of administering Daniel A. Snider’s Estate, and the loss of household services provided by Daniel A. Snider.”

The suit also says Daniel Snider experienced “tremendous” pain and suffering, emotional distress and loss of future income and earning capacity.

The suit accuses TDY and Allegheny of breach of warranty, strict liability, negligence, gross negligence and recklessness.

Those two defendants were in the business of manufacturing and selling aircraft parts and components.

Teledyne Technologies Inc., another defendant, is a successor in interest to defendants TDY and Allegheny.

Continental, another defendant, also engaged in the manufacture and distribution of airplane parts, the suit states.

Technify is a successor in interest to TDY, Allegheny, TTI and Continental.

Elizabeth Snider seeks to recover damages for lost income and earning capacity as a result of her husband’s death. She also seeks damages for pain and suffering as well as punitive damages.

The Common Pleas Court case ID number is 120503753, and the federal case number is 2:12-cv-03054-JCJ.

The widow of a South Jersey man who died from cardiac arrest days after being admitted

Thomas Kline

to the hospital for chest pains has filed a medical malpractice and wrongful death claim against the healthcare agency and doctors whose collective negligence allegedly contributed to the man’s death.

Attorneys with the Philadelphia law firm Kline & Specter filed the civil action June 7 at Philadelphia’s Court of Common Pleas on behalf of Edith Virginia Boggs of Sweetwater, N.J.

Boggs is suing on behalf of her deceased husband, Albert P. Boggs, III, who died on Feb. 25, 2011, at the age of 68 three days after being admitted to the hospital for treatment of chest pains.

According to the complaint, Albert Boggs was taken to AmeriCare Hospital in Hamilton, N.J. on Feb. 22, 2011, after he developed chest pains while shoveling snow.

Doctors there discharged him that same day after diagnosing Boggs with gastritis.

The following day, Boggs was taken to the emergency room at Thomas Jefferson University Hospital, a defendant in the suit, with continued chest pains, the suit states.

On Feb. 25, after a regiment of care that the lawsuit claims was subpar, Boggs died following an episode of cardiac arrest, according to the complaint.

Boggs’ autopsy identified the cause of death to be severe coronary artery disease, most likely from a fatal arrhythmia.

The suit claims that Boggs’ injuries, and subsequent death, were caused by the negligence and recklessness of the defendants, who, in addition to Thomas Jefferson University Hospital, include Jefferson Health System, Thomas Jefferson University Hospitals, and physicians Kendra Keeney and Johanna Tolin.

The complaint contains counts of negligence, corporate negligence and wrongful death.

Edith Boggs seeks damages in excess of $50,000, exclusive of pre-and-post-judgment interest and costs.

The plaintiff is demanding a jury trial.

The case ID number is 120600792. 

What’s believed to be the largest personal injury settlement ever in Pennsylvania was

Alan M. Feldman

reached last week between a cheese products company and the family of man who was killed after the vehicle he was riding in was rear-ended by a tractor-trailer on a central Pennsylvania highway.

Philadelphia personal injury lawyers Alan M. Feldman, Daniel J. Mann and Edward S. Goldis, of the firm Feldman Shepherd Wohlgelernter Tanner Weinstock & Dodig, negotiated the $26.1 million settlement in the case of Sneeringer v. GLC Transportation, according to a statement from the plaintiff’s firm announcing the settlement.  

James R. Melinson of JAMS served as the mediator in the case.

The case was initiated back in June 2011 when Gettysburg, Pa. residents Peter M. Sneeringer II, Kathryn Sneeringer and Dorcas Cook filed suit at Philadelphia’s Court of Common Pleas against GLC Transportation Inc. and Great Lakes Cheese Co. of Ohio, as well as Great Lakes Cheese of New York and Sandy Lake, Pa. resident Spencer Chapman.

According to the complaint, Kathryn Sneeringer was driving her 2004 Toyota Matrix eastbound on Interstate 80 on July 6, 2010, a little after 5 in the evening, when, while stopped in traffic, her vehicle was struck from behind by Chapman, who was operating a tractor-trailer owned by GLC.

David Cook, who was Kathryn Sneeringer’s father, and was riding in his daughter’s vehicle at the time of the crash, was killed instantly, while Peter and Kathryn Sneeringer suffered “catastrophic injuries.”

The Sneeringer family’s two dogs, which were in the plaintiffs’ vehicle at the time, also perished in the crash.

The lawsuit claimed that Chapman was driving at an excessive rate of speed, causing him to “completely and recklessly” lose control of the large vehicle and strike the plaintiff’s car.

Upon seeing traffic stopped up ahead, Chapman quickly changed lanes, at which point he struck the Toyota in the rear, the suit states.

As a result of the accident, Peter Sneeringer was entrapped in the vehicle, and he suffered multiple head injuries, leaving him in a comatose state.

He ended up sustaining permanent brain damage, along with extensive cognitive, physical and emotional consequences that are permanent in nature, the lawsuit claimed.

Kathryn Sneeringer sustained multiple lacerations and contusions, three rib fractures, a liver laceration, multiple vertebral fractures and other physical injuries.

The suit contained wrongful death and loss of consortium counts on the part of Dorcas Cook, who lost her husband in the accident.

Plaintiffs’ attorney Feldman praised the settlement.

“This is a case in which reckless driving caused a family to suffer appalling death and destruction,” the lawyer said in a statement. “Our clients are wonderful people who have endured a terrible loss for which they are still grieving. We are privileged to have had the opportunity to represent Dori, P.J. and Katie and to help achieve some small measures of justice for them.”

The defendants were represented by attorneys Chester A. Dudzinski, Salvatore Vilardi and Judith A. Moses, of the firm Cipriani & Werner, which has offices in Philadelphia and Pittsburgh.

At the time of the accident, traffic was supposedly stopped due to road construction.

The lawsuit had claimed that Chapman, the tractor-trailer operator, told Pennsylvania State Police following the accident that sun glare had affected his view of the roadway, and explained why he was unable to see the stopped vehicles ahead of him.

Chapman went on to say that he was “unaware he had impacted any other vehicles during this accident sequence until he exited his tractor trailer and was informed of same.”

On the sun glare argument, plaintiffs’ attorneys disputed Chapman’s assertion, writing in their suit that Chapman was heading eastbound at the time, making his statement a “complete fabrication,” given that the sun sets in the west.

“Defendant Chapman’s failure to recall the impact, and failure to describe the accident with precision is an indication that he was either not alert, or was asleep at the wheel immediately prior to the accident,” the suit stated.