PHILADELPHIA – Former employees of a Bucks County landscaping business allege that they were not paid for all hours worked.

Hector Ayala Herrera and Ovidio Menendez Perez filed a complaint on behalf of all persons similarly situated on July 17 in the U.S. District Court for the Eastern District of Pennsylvania against Rolling Green Landscape and Design Inc. and Dominic J. Varalla Jr. citing the Fair Labor Standards Act and the Civil Rights Act.

According to the complaint, Herrera was employed by the defendants from 2013 to March 2016 and Perez was employed from 2011 to May 2017 as landscape laborers.

The plaintiffs holds Rolling Green Landscape and Design Inc. and Varalla Jr. responsible because the defendants allegedly failed to pay overtime wages to the plaintiffs at the rate of one-and-one-half times of their regular rate for hours worked that exceeds 40 hours per week. They also allege that they were discriminated against as non-white, Latino employees and were sexually harassed and assaulted by Varalla Jr.

The plaintiffs request a trial by jury and seek back pay damages, unpaid overtime compensation, unpaid wages, interest, liquidated damages, statutory damages, court costs and any further relief the court grants. They are represented by Liz Maria Chacko of Friends of Farmworkers Inc. in Philadelphia.

U.S. District Court for the Eastern District of Pennsylvania case number 2:17-cv-03176-NIQA

PHILADELPHIA – A New York employer is alleged to have failed to pay contributions to several labor union funds.

Bricklayers & Allied Craftworkers Local 1 of PA/DE and Trustees of Bricklayers & Allied Craftworkers Local 1 of PA/DE Joint Apprentice and Training Fund, et al. filed a complaint on July 17 in the U.S. District Court for the Eastern District of Pennsylvania against American Flooring Concepts and Dominick Calarco citing the Employee Retirement Income Security Act.

According to the complaint, the plaintiffs allege that the defendants have failed to pay or report any contributions from June 1, 2016, to the present.

The plaintiffs hold American Flooring Concepts and Calarco responsible because the defendants allegedly breached the bargaining agreement between them and the plaintiffs.

The plaintiffs seek for the defendants to submit to a complete examination of financial records, all unpaid contributions, interest, liquidated damages, court costs and any further relief this court grants. They are represented by Robert P. Curley of O'Donoghue & O'Donoghue LLP in Philadelphia.

U.S. District Court for the Eastern District of Pennsylvania case number 2:17-cv-03184-GEKP

PITTSBURGH – Children of a woman who resided at two long-term nursing facilities before her death have filed a wrongful death suit over her care.

Mark Geoffrey Carrai, Marcy Lynn Carrai and Marlene Joy Carrai Petro, individually and as co-administrators of the estate of Jean Louise Carrai, filed a complaint in the Court of Common Pleas of Allegheny County against Presbyterian Seniorcare and West Haven Manor LP alleging negligence and wrongful death.

According to the complaint, Jean Louise Carrai was admitted to West Haven Manor's facility for the purpose of physical and occupational therapy in December 2014 and she was later transferred to Presbyterian Seniorcare's facility The Willows in January 2015. The suit states she died in July 2015.

The plaintiffs holds Presbyterian Seniorcare and West Haven Manor LP responsible because the defendants allegedly failed to ensure that skin breakdown interventions were developed, failed to transfer their decedent to a higher level of care, failed to modify their decedent's care plan, and failed to prevent the pressure ulcers from worsening.

The plaintiffs seek judgment against the defendant in an amount that exceeds the jurisdictional limits of the court plus interest and court costs. They are represented by Robert F. Daley and Scott M. Simon of Robert Peirce & Associates, P.C. in Pittsburgh.

Court of Common Pleas of Allegheny County Case number GD-16-025178

PITTSBURGH – An Allegheny County couple allege the husband required extensive hospitalization because of negligent treatment.

John R. Orie Jr. and Christine T. Orie filed a complaint in the Court of Common Pleas of Allegheny County against UPMC Presbyterian Shadyside Hospital; University of Pittsburgh  Physicians, Lawrence Wei, M.D.; Vinay Badhwar, M.D.; Serrie Lico, M.D.;  and Penny Sappington, M.D. alleging professional negligence.

According to the complaint, John R. Orie Jr. was admitted to UPMC Passavant Hospital for shortness of breath, was given heparin, and transferred on Jan. 3, 2015, to UPMC Presbyterian Shadyside Hospital. The suit states that while in the defendants' care, the plaintiff needed treatment for heparin-induced thrombocytopenia, ischemic bowel, kidney failure and other ailments.

The plaintiffs holds UPMC Presbyterian Shadyside Hospital, University of Pittsburgh Physicians, Wei, Badhwar, Lico and Sappington responsible because the defendants allegedly failed to timely take appropriate action to response to positive lab tests indicating heparin-induced thrombocytopenia and failed to timely and properly recognize heparin-induced thrombocytopenia.

The plaintiffs request a trial by jury and seek judgment against the defendants in an amount that exceeds $35,000 plus court costs. They are represented by James E. DePasquale and Jonathan A. Orie of Orie & Zivic in Pittsburgh, Pennsylvania.

Court of Common Pleas of Allegheny County case number GD-17-000246

PITTSBURGH – In recently filed litigation, a rhinoplasty patient alleges photos of her in a pre-operative and operative state were taken and published publicly without her consent by her doctor and his medical office.

Nicolette S. Lepresti of Westmoreland County filed suit in the Allegheny County Court of Common Pleas on July 11 versus James L. Fernau M.D. and Accent on Body Cosmetic Surgery, both of Pittsburgh.

On or about Oct. 17, 2016, plaintiff came to Fernau’s office complaining of difficulty breathing through her nose. Fernau diagnosed Lepresti with a deviated septum, hypertrophy of her nasal turbinates, several nasal obstruction and nasal vestibular stenosis – and recommended a rhinoplasty operation to correct these issues.

During this consultation, Fernau and/or a member of his staff took pre-operative photographs of Lepresti. Further, the plaintiff signed a document titled “Consent for Purposes of Treatment, Payment and Healthcare Operations”, which included the phrase: “I agree for my image to be used for my medical record, but NOT FOR medical publication.”

On Nov. 11, Lepresti signed a consent form to undergo the rhinoplasty procedure. Before the operation, Fernau repeatedly asked Lepresti to give consent for the defendants to create and distribute photographs and video of her procedure for the medical community and the public, pressuring her to sign a document to that effect.

Lepresti refused, and declined to sign the release form.

The rhinoplasty procedure took place on Nov. 17 and photos were taken of Lepresti and posted to various social media accounts belonging to the defendants, including Facebook, Twitter and Instagram, both individually and as part of a collage of other procedures performed by Fernau.

“The photographs were not taken for any medical purpose and were not included in plaintiff’s medical chart. Rather, the photographs were taken to promote and/or publicize the medical practice of defendant Fernau and/or defendant AOB and for the defendants’ own economic gain,” the lawsuit states.

The photographs and social media postings were public and seen by thousands of individuals, the suit says.

On Jan. 25, plaintiff requested her medical records from Fernau’s office and then discovered that the social media postings containing said photos were deleted. Lepresti received no compensation for the photos in question.

For counts of invasion of privacy/appropriation of likeness, wrongful disclosure of confidential medical information, intentional infliction of emotional distress, negligent infliction of emotional distress, the plaintiff is seeking damages that exceed the arbitration limits of the Court, and a jury trial in this matter.

The plaintiff is represented by Neil R. Rosen and Andrew G. Rothey of Rosen Louik & Perry, in Pittsburgh.

Allegheny County Court of Common Pleas case GD-17-7654

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

PHILADELPHIA – A Pennsylvania property owner has filed legal action against a pair of insurance companies who she claims have not reimbursed her for what she believes was a covered loss sustained against one of her properties.

Sandra Concors (doing business as “KSJ Group, LLC”) of Feasterville filed suit in the Philadelphia County Court of Common Pleas on July 20 versus Tadas Brusokas Insurance Agency, Inc. of Huntington Valley and Farmers Insurance Group, of Los Angeles, Calif.

Concors owns a property on the 3300 block of Rand Street in Philadelphia and obtained an insurance policy from Tadas on Dec. 5, 2016. Concors went to the company’s office on Feb. 14 this year to verify each of her properties were properly insured and there was no outstanding balance on any of her policies.

Concors was led to believe her policies were in proper order by Tadas employee Galyna Dumalska, who further completed a name change procedure listing Concors’ properties under the name “KSJ Group, LLC” as opposed to her real name.

On Feb. 22, the plaintiff suffered sudden and accidental loss to the property, through causes covered under the Tadas policy, resulting in loss of the use of premises and damages in excess of $50,000.00.

Two days later, Dumalska telephoned Concors to relay she had been informed by a Farmers Insurance Group adjuster named Wendy that Concors could not recover from the Feb. 22 loss, because her policy had been cancelled before said loss; a claim Concors believes is untrue.

Concors immediately went to the company office to speak with Dumalska and the company owner, Tadas Brusokas – who assured Concors the situation was a mistake and they were going to fix the problem. With Concors still present, Dumalska called Wendy back to learn why the policy was cancelled, to which Wendy replied it was due to an outstanding balance.

Dumalska told Wendy that Concors had never had outstanding balances and Brusokas chalked up the matter to a mistake from Farmers, and that it was their duty to assist Concors in resolving the situation.

Wendy represented she was going to open an investigation into the matter and someone would contact Concors on Feb. 27 or 28, however, on Feb. 27, Wendy telephoned Concors and denied the claim, saying there was nothing she or the agency could do about it.

Therefore, Concors believes the defendants collectively erred in assuring her that she had valid insurance coverage at the time she incurred the loss, Feb. 22 of this year.

For counts of negligence, bad faith and reformation of contract, the plaintiff is seeking damages in excess of $50,000.00, plus interest, court costs, counsel fees and delay damages.

The plaintiff is represented by Mario Barnabei of the Law Offices of Jonathan Wheeler, in Philadelphia.

Philadelphia County Court of Common Pleas case 170701948

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

PHILADELPHIA – A South Philadelphia woman alleges her residence’s former owner failed to disclose problems with the sewage system on the premises, before completing the sale to the plaintiff.

Katherine Heisler of Philadelphia filed suit in the Philadelphia County Court of Common Pleas on July 17 versus Sunny Realty, LLC of Bala Cynwyd and ValueGuard USA, Inc.

On Aug. 23, 2016, plaintiff purchased a property at 1928 South 21st Street from the seller for $195,000.00. Prior to the sale, the defendant represented they were not aware of any defects to the sewage system in the subject premises.

During an inspection conducted prior to the sale on July 18, 2016, the defendant did not inspect the sewage system. But after the sale, the plaintiff says she became aware of the sewage system’s non-functioning condition and no visible sewage vent because it had recently been covered in concrete.

As a result of the faulty sewer line, the plaintiff says the property’s basement flooded multiple times over the course of several months. This caused the plaintiff to be unable to use the basement as a workspace, plus $10,000 worth of damage to various items, including a mattress box spring, Mayline light table, sectional sofa, family heirloom dresser and a piece of art by Andy Warhol.

This further led to the plaintiff being unable to use certain water sources simultaneously, and to stop using appliances or water sources completely during periods of flooding.

In order to repair the sewer line and restore the basement, the plaintiff had to incur the following expenses: Initial clearing of the main sewer line - $75.00; Removal of concrete and video inspection - $1,950.00; Installation of new sewer pipe - $5,400.00 and Basement restoration - $3,201.18.  

During the July 18, 2016 inspection, the plaintiff alleges the defendant/home inspector made an inspection and found water damage and rot to the right support post of the porch.

One month later, on Aug. 18, 2016, the defendant/home inspector conducted a follow-up inspection and claimed the right support post had been repaired. After the follow-up inspection, the plaintiff discovered the repair post had not been fixed, and was still water-damaged and rotted. The repair costs of the right support post will be in excess of $5,000.00.

For counts of misrepresentation, violation of the Real Estate Seller’s Disclosure Act, violation of the Unfair Trade Practices and Consumer Protection Law, negligence, negligent misrepresentation, fraudulent misrepresentation and punitive damages, the plaintiff is seeking damages in an amount in excess of $25,626.18, plus interest and attorney’s fees in this matter.

The plaintiff is represented by Kelsey M. Catania of Michael F.X. Gillin & Associates, in Media.

Philadelphia County Court of Common Pleas case 170701425

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

PHILADELPHIA – A consultant injured at a Hatboro construction site has filed litigation against the firm responsible for maintaining the site, claiming they were negligent in their duties to do so and were the cause of his serious injuries, which included a traumatic brain injury.

Stephen M. Cassidy Jr. and Margaret Cassidy of Warminster filed suit in the Philadelphia County Court of Common Pleas on July 19 versus Paselo Logistics, LLC, of Philadelphia.

Stephen says he was hired to provide consulting services for the defendant at a mixed-use construction site in Hatboro called “The Jacksonville Green.” Before Aug. 28, 2015, the plaintiff alleges the defendant performed “unsafe, hazardous demolition, excavation and/or removal work” at the site.

Stephen says on Aug. 28, 2015, he fell nine feet into a caved-in pit on the construction site, in the process suffering injuries to his neck, back and spine; head trauma and a closed-head injury; traumatic brain injury with mental impairments, memory loss, cognitive deficits, difficulty hearing and word-finding difficulties; aphasia; pain and suffering; mental anguish and other injuries.

According to the suit, Stephen accused the defendants of not maintaining a safe environment at the construction site and being directly responsible for the injuries he sustained, among other charges. Fellow plaintiff Margaret also sues for loss of consortium, related to Stephen’s injuries.

For counts of carelessness, negligence and recklessness, breach of contract and third-party beneficiary claims and loss of consortium, the plaintiffs are seeking damages in excess of the jurisdictional arbitration limit, plus punitive damages, interest, costs, attorney’s fees and any other relief deemed just and appropriate by the Court in this matter.

The plaintiffs are represented by Joseph L. Messa Jr., Jenimae Almquist and Angelo M. Theodosopoulos of Messa & Associates, in Philadelphia.

Philadelphia County Court of Common Pleas case 170701826

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

Three years ago, Pennsylvania resident Melody Stoops bought 35 cell phones, acquired Florida area-code phone numbers for them, and waited for them to ring. Knowing “that people had hardships in Florida, that they would be usually defaulting on their loans or their credit cards,” she figured those phone numbers would increase her chances of receiving “unsolicited” calls from debt collectors, giving her a pretext to sue for violations of the 1991 Telephone Consumer Protection Act (TCPA) and recover “damages” as high as $1,500 per call.

Stoops filed suits, sent demand letters and made some easy money, but a federal judge dismissed her complaint against Wells Fargo, agreeing with defense attorneys that the calls she received weren't really unsolicited under the circumstances she described. 

Attorneys representing FDS Bank are now making the same argument in a New Jersey court to defend their client against Polish immigrant Jan Konopca, who over the course of his “career” as a  professional plaintiff has filed 31 lawsuits and collected nearly a million dollars in penalties.

“At the time of its passage, the TCPA was a sensible legislative response to consumers and businesses who were overwhelmed by unwanted calls and faxes,” said U.S. Rep. Steve King of Iowa during a June 13 hearing of the House Subcommittee on the Constitution and Civil Justice, convened to address the problem of plaintiffs and attorneys attempting to weaponize and monetize the TCPA. 

“But, with advances in technology, government regulators have struggled to [adapt] the TCPA’s antiquated language to new situations.”

Testifying at the hearing, Snell & Wilmer defense attorney Becca Wahlquist proposed changes to the TCPA, such as accepting good-faith defenses from companies trying to comply with the law, making only auto-dial calls actionable, and requiring phone owners with reassigned numbers to notify callers that they have reached the wrong person.

Sounds reasonable to us, but maybe someone should give Stoops and  Konopca a call to see what they think.

PITTSBURGH – The way his former firm sees it, prominent Western Pennsylvania plaintiffs attorney R. Bruce Carlson has essentially been working for it for the past 13 years as he litigated a long-running class action – even though he resigned in 2004.

On June 5, the Pittsburgh law firm Specter Specter Evans & Manogue filed a lawsuit against Carlson, who left the firm long ago to create Carlson Lynch in 2004. The Specter firm alleges Carlson owes it nearly all of his $2.45 million in fees gained in a recent $24 million settlement regarding fees imposed on those who took out second mortgages from Community Bank of Northern Virginia.

Carlson’s lawsuits began in 2001 when he was employed by the Specter firm, which now says it is owed more than $1.9 million of Carlson’s fees, per a separation agreement reached when he left the firm.

“The Separation Agreement also provided that it would remain intact irrespective of Carlson’s ongoing responsibilities in the matter and any time that Carlson may devote to the appeal of the settlement’s approval and thereafter,” the Specter firm’s complaint says.

The Specter firm’s actions disregard the language of its arrangements with him, Carlson counters. That’s because the Specter firm was only entitled to a percentage of his fees if the original 2003 settlement was approved, he says.

That settlement was shot down by the U.S. Court of Appeals for the Third Circuit in 2005, and the case went on for another 11 years. Final approval was granted to the new settlement in December.

He calls the Specter firm’s position “legally untenable” and says he never agreed to extend his work on the case to an unlimited amount of time while paying all costs incurred only to turn over 80 percent of any fees.

“Such an ‘interpretation’ of the Separation Agreement is not only absurd but also legally impermissible,” Carlson’s attorney wrote.

The Specter firm is basing its figures on documents available to it. An arbitration panel decided the amount of fees in the case in question, awarding $8.4 million. The firm does not know with certainty what type of fee-sharing agreement Carlson had with other attorneys in the case.

But when attorneys submitted their request, what Carlson asked for would have amounted to 29 percent. And 29 percent of what was actually awarded amounts to $2.4 million.

The Specter firm’s math would leave Carlson with $557,639 for his 15 years working the case.

The complaint gives insight into Carlson’s years at the firm. He did not work the firm’s existing cases, instead originating or continuing his own.

He filed lawsuits on behalf of 14 individuals in the CBNV case. When he left in 2004, he took 59 active cases with him.

In Carlson’s lawsuit against Abercrombie & Fitch, the Specter firm recovered more than $350,000. In a lawsuit against The Limited, the firm recovered $236,000.

In the CBNV case, his original agreement had him receiving one-fifth of the fees, with the rest going to the Specter firm. Carlson received a salary plus referral fees while at the Specter firm.

“Indeed, and, first, the Specter firm’s contractual ‘interpretation’ wholly ignores what actually transpired in the litigation: Mr. Carlson expended 13 years of additional time, effort and expense to bring the litigation to a successful conclusion,” his attorney wrote.

It is unclear which judge will decide the issue. U.S. District Judge Arthur Schwab asserted his court’s jurisdiction on June 29 after the Specter firm filed its complaint in the Allegheny County Court of Common Pleas.

Schwab oversaw the CBNV case, which continued against PNC Bank after PNC purchased Mercantile-Safe Deposit and Trust Company in 2007. That company bought CBNV in 2005.

An order was entered staying any proceedings in the Allegheny County Court of Common Pleas on June 30.

“The effect of the two orders staying the state law suit and asserting ancillary jurisdiction over the fee dispute resolution is, among other things, to deprive (the Specter firm) of its constitutional right under Pennsylvania law to a jury trial in a proper forum of its choosing without giving (the Specter firm) the slightest opportunity to be heard,” attorneys for the Specter firm wrote on July 3 in federal court.

“The grant of an ex parte special injunction is a procedure which is frowned upon except in the most dire of emergencies when irreparable harm might occur before an opposing party is able to respond.”

Carlson asked Schwab on July 7 to confirm the costs and fees awarded to him.

From the Pennsylvania Record: Reach editor John O'Brien at jobrienwv@gmail.com.

PHILADELPHIA – A former Cheesecake Factory server alleges she is owed unpaid compensation and has filed a class action suit.

Tia Sharpe filed a complaint on July 18 in the U.S. District Court for the Eastern District of Pennsylvania against The Cheesecake Factory Restaurants Inc. alleging violation of the Fair Labor Standards Act, the Pennsylvania Wage Payment and Collection Law and the Pennsylvania Minimum Wage Act.

According to the complaint, the plaintiff was a former server for the defendant. She alleges that the defendant failed to accurately track and record her hours and that she regularly worked more than 40 hours per week.

The plaintiff holds The Cheesecake Factory Restaurants Inc. responsible because the defendant allegedly failed to pay minimum or overtime wages to the plaintiff.

The plaintiff requests a trial by jury and seeks unpaid compensation, interest, liquidated damages, special damages and any further relief the court grants. She is represented by Michael Murphy of Murphy Law Group LLC in Philadelphia.

U.S. District Court for the Eastern District of Pennsylvania case number 2:17-cv-03205-JCJ

PHILADELPHIA – A Delaware man formerly employed by R.E. Michel Co. alleges his claim for short-term disability benefits was wrongfully denied.

Reuben Killinger filed a complaint on July 18 in the U.S. District Court for the Eastern District of Pennsylvania against Life Insurance Co. of North America alleging breach of disability contract.

According to the complaint, the plaintiff alleges that he became disabled in March 2016, submitted an application for short-term disability benefits to the defendant and that his claim was denied. The suit states the plaintiff appealed the decision three times and was denied.

The plaintiff holds Life Insurance Co. of North America responsible because the defendant allegedly refused to pay plaintiff's claim for benefits despite having sufficient medical records to support his claim.

The plaintiff seeks judgment against the defendant for all benefits due to him, interest, and any further relief the court grants. He is represented by Marc H. Snyder of Rosen, Moss, Snyder & Bleefeld LLP in Jenkintown.

U.S. District Court for the Eastern District of Pennsylvania case number 2:17-cv-03206-MAK

PHILADELPHIA – A Florida man alleges he is owed more than $70,000 for a settlement from three Philadelphia entities.

William Waskey filed a complaint on July 18 in the U.S. District Court for the Eastern District of Pennsylvania against Bain's Deli Corp., Bain's National LLC, Fifth Generation Foods LLC and Jeffrey Jolles alleging failure to pay.

According to the complaint, the plaintiff invested $75,000 with the defendants and they ceased making payments. Following the filing of a complaint in January 2016, the parties entered into a settlement in September. 

The plaintiff holds Bain's Deli Corp., Bain's National LLC, Fifth Generation Foods LLC and Jolles responsible because the defendants allegedly failed to make any payment to the plaintiff based on their settlement agreement.

The plaintiff seeks judgment against the defendant in the amount of $73,720 plus interest, court costs and any further relief the court grants. He is represented by Krishna B. Narine of Lauletta Birnbaum LLC in Philadelphia.

U.S. District Court for the Eastern District of Pennsylvania case number 2:17-cv-03200-LS

PHILADELPHIA – Delaware parents allege that their daughter was injured when a scooter she was using broke and caused her to fall.

Michael Grainger and Latoya Grainger, individually and as parents and natural guardians of Lashae Grainger, filed a complaint on July 17 in the U.S. District Court for the Eastern District of Pennsylvania against Bravo Sports, Kmart Corp., Kmart Holding Corp. and Sears Holding Corp. alleging negligence manufacture and design.

According to the complaint, the plaintiffs purchased a Pulse Performance Products Charger electric scooter for Lashae Grainger from Kmart in December 2014. The suit states that Lashae Grainger was riding the scooter when the assembly that jointed the front wheel to the axle broke and caused her to strike her head and face on the ground. They allege she was wearing a helmet at the time of the incident.

The plaintiffs hold Bravo Sports, Kmart Corp., Kmart Holding Corp. and Sears Holding Corp. responsible because the defendants allegedly failed to warn the plaintiffs regarding the purportedly defective nature of their product.

The plaintiffs request a trial by jury and seek judgment against the defendants in an amount that exceeds $150,000 plus interest and court costs. They are represented by Edward S. Shensky, Jeffrey A. Krawitz and Michael C. Ksiazek of Stark & Stark PC in Yardley.

U.S. District Court for the Eastern District of Pennsylvania case number 2:17-cv-03186-ER

PHILADELPHIA – A woman alleges she was terminated in retaliation for filing a Workers' Compensation claim.

Kimberly Turnbaugh filed a complaint on July 18 in the U.S. District Court for the Eastern District of Pennsylvania against SHK Management Inc., doing business as Korman Communities, alleging violation of the Family and Medical Leave Act and state common law.

According to the complaint, the plaintiff was hired by the defendant as a business development manager in November 2015. The suit states she was injured on the job in a motor vehicle accident and filed a workers' compensation claim. She alleges she was terminated on Dec. 15, 2016.

The plaintiff holds SHK Management Inc. responsible because the defendant allegedly failed to provide notice to the plaintiff for her rights to FMLA and terminated her in retaliation for filing a Workers' Compensation claim.

The plaintiff requests a trial by jury and seeks compensation, punitive damages, damages, court costs and any further relief the court grants. She is represented by Manali Arora and Richard Swartz of Swartz Swidler LLC in Cherry Hill, New Jersey.

U.S. District Court for the Eastern District of Pennsylvania case number 2:17-cv-03187-CDJ

PITTSBURGH – An Ambridge widower alleges his late wife's pressure sores were not properly monitored by two medical facilities.

Theodore S. Polas, as executor of the estate of Georgia A. Polas filed a complaint in the Court of Common Pleas of Allegheny County against UPMC Presbyterian Shadyside, doing business as UPMC Montefiore, and Select Specialty Hospital - Pittsburgh Inc. alleging wrongful death.

According to the complaint, Georgia A. Polas was treated by the defendant in January and February 2015. The suit states she died Feb. 27, 2016, of septic shock and other ailments.

The plaintiff holds UPMC Presbyterian Shadyside and Select Specialty Hospital - Pittsburgh, Inc. responsible because the defendants allegedly failed to properly treat Georgia Ann Polas' pressure ulcers.

The plaintiff seeks judgment against the defendant in an amount of more than $35,000. He is represented by Anthony J. D'Amico and Michael D. D'Amico of D'Amico Law Offices LLC in Pittsburgh.

Court of Common Pleas of Allegheny County case number GD-17-000758

PITTSBURGH – A Pittsburgh corporation in the business of clinical eye tracking alleges its confidential information was unlawfully used.

Neuro Kinetics Inc. filed a complaint on Dec. 9 in the Court of Common Pleas of Allegheny County against Dr. James Z. Cinberg and The Balance Disorder Center of New Jersey LLC alleging breach of contract and misappropriation of trade secrets.

According to the complaint, the plaintiff alleges that it sustained damages to its business as the result of its trade secrets being used. The plaintiff holds Cinberg and The Balance Disorder Center of New Jersey LLC responsible because the defendants allegedly used plaintiff's trade secrets and confidential information without authority.

The plaintiff requests a trial by jury and seeks all damages. It is represented by Blynn L. Shideler of BLK Law Group in Wexford, Pennsylvania.

Court of Common Pleas of Allegheny County case number GD-16-025206

JACKSON, Miss. – The third federal bellwether case revolving around blood-thinning drug Xarelto has begun; one which sees the claims of a Mississippi woman who was prescribed the blood-thinner drug for treatment of a blood clot, then allegedly suffered internal bleeding and anemia, go to trial.

A jury of five men and four women were selected in the U.S. District Court for the Southern District of Mississippi on Monday morning, for the case pitting 69 year-old Dora Mingo of Summit, Miss. against Bayer and Janssen Pharmaceuticals, a subsidiary of Johnson & Johnson.

In previous back-to-back federal bellwether trials, juries have cleared the manufacturers of Xarelto of liability relating to claims that the drug caused internal bleeding, which plaintiff attorneys allege led to severe injuries or deaths in patients who used it.

The Food & Drug Administration (FDA) approved Xarelto in 2011 for prescription to patients suffering from a rhythmic heart disorder called atrial fibrillation and to prevent blood clots which can lead to heart attacks, strokes and pulmonary embolisms.

However, plaintiffs and their counsel charge Xarelto’s manufacturers with failing to properly warn patients that Xarelto use presented increased risks for cranial and gastrointestinal bleeding when taken once daily and not properly monitored.

Plaintiff counsel asserted a Prothrombin Time (PT) test, used to assess a patient for bleeding risks, was something Xarelto’s manufacturers didn’t inform and instruct doctors about. However, counsel for Xarelto’s manufacturers countered that the PT test isn’t scientifically reliable in their view.

Mingo, a grandmother and retired schoolteacher, was prescribed Xarelto in January 2015 for treatment of a blood clot in her leg. After taking Xarelto, Mingo alleges she suffered severe upper gastrointestinal bleeding and acute blood loss anemia.

Andy Birchfield of Beasley Allen in Montgomery, Ala. and Brian Barr of Levin Papantonio of Pensacola, Fla., served as co-lead counsel in the first two federal bellwether cases decided in May and June for Xarelto’s manufacturers, Boudreaux v. Janssen Pharmaceuticals Et.Al and Orr Et.Al v. Janssen Pharmaceuticals Et.Al, in addition to the instant action initiated by Mingo.

A prior mutual statement from the plaintiff lawyers indicated they will continue to pursue Xarelto litigation claims in future trials.

“We will continue to press forward with the legal claims of the thousands of innocent victims of this drug. The makers of Xarelto owe it to physicians and patients to be transparent about the risks posed by this drug. Physicians outside the U.S. knew as early as 2013 that patient monitoring and a simple blood test would be useful in predicting and identifying patients that are most likely to suffer serious bleeding. But, American doctors were told otherwise – an omission that could have saved our client’s life. The next trial – in August – has its own distinctive set of claims and circumstances, and we look forward to having a jury hear that evidence,” Birchfield and Barr said.

Janssen spokesperson Sarah Freeman also previously issued a response to the continuing litigation.

“At Janssen, nothing is more important to us than the health and safety of the patients who use our medicines. The jury’s decision reflects the facts of this case and the appropriateness of Xarelto’s (rivaroxaban) FDA-approved labeling. Xarelto is an innovative medicine used to treat and reduce the risk of life-threatening blood clots. We will continue to defend against the allegations in this litigation,” Freeman said.

Bayer representative Christopher Loder previously added further comment.

“The health and safety of our patients is Bayer’s top priority. With more than five years on the U.S. market and 28 million patients prescribed worldwide in over 130 countries, real-world experience continues to confirm the favorable benefit-risk profile of Xarelto for patients who have a high risk of life-threatening blood clots that may cause strokes and other serious medical complications. Bayer stands behind the safety and efficacy of Xarelto and will continue to vigorously defend it.”

The group of more than 18,000 Xarelto lawsuits have been consolidated through the federal court system’s multi-district litigation (MDL) process, which utilizes bellwether trials to establish evidence and determine any settlement value for similar plaintiff claims.

The federal Xarelto MDL is listed as Case No. 2592, consolidating individual actions filed against Bayer, Janssen and Johnson & Johnson. Judge Eldon E. Fallon of the U.S. District Court for the Eastern District of Louisiana presided over the initial two bellwether trials which took place in New Orleans, in addition to the instant matter in Jackson, Miss.

Another bellwether trial is scheduled to be heard in federal court in Texas this January.

About 1,480 lawsuits – most from out-of-state plaintiffs – will be handled eventually in Philadelphia’s Complex Litigation Center. The CLC has several mass tort programs, including cases over asbestos and Risperdal, and the percentage of claims belonging to out-of-state plaintiffs has traditionally been in the high 80s.

In 2016, the percentage for pharmaceutical lawsuits dropped to 74 percent. 

However, in 2017, the most recent CLC stats show that figure has jumped to an unprecedented 94 percent.

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

SCRANTON – A local credit union believes its attorney and his firm failed to advise it of an arrangement which could have prevented it from losing over $100,000.00, in connection with a mortgage agreement which it says went into default.

Incol Credit Union (doing business as “Community Regional Credit Union”) of Kingston filed suit in the Lackawanna County Court of Common Pleas on July 17 versus Gene M. Molino and Skibitsky & Molino, of Pittston.

On June 1, 2007, Sean Frick and Amy Frick (now known as Amy Schoonover) executed a mortgage on the 600 block of Maple Street in Scranton, knowing they had to pay taxes on the property and any failure to assume responsibility for costs would constitute default, and thus make any owed sums due to the plaintiff.

According to the litigation, the value of the property exceeded the amount of money owed to Incol Credit Union. Without the credit union’s knowledge, the property was sold at a judicial sale, without liens or other financial obligations on March 23, 2015 to Bendex Properties, a Taylor-based company.

The suit says Frick Schoonover’s failure to pay taxes on the property breached the mortgage agreement and constituted default, thereby making any owed sums due immediately to the plaintiff.

Therefore, Incol Credit Union retained the services of the defendant in that situation, whereas Frick Schoonover retained the services of the Law Offices of Raymond W. Ferrario, who objected to the sale.

Molino also filed an objection to the sale and a petition to vacate it. On Sept. 16, 2015, Molino gave Frick Schoonover 30 days to pay costs in order to upset the tax sale. On the same day, Judge Peter O’Brien entered an order in accordance with the stipulation of counsel.

Though relying on Molino’s representation, in a letter dated Sept. 23, 2015, Molino is said to have told the plaintiff that O’Brien’s order did not divest its secured interest in the subject property. Further, the judicial order did not provide relief to the plaintiff in the event of Frick Schoonover not providing payment.

That circumstance is what transpired, and the plaintiff states the tax sale was approved to its detriment, who lost its security interest in the subject property in an amount of $100,000.00.

The balance currently owed is $139,854.03, one which Frick Schoonover refuses to pay and is the amount the plaintiff has lost due to not being able to repossess the subject property.

The plaintiff believes the defendants failed to provide it the opportunity to pay Bendex Properties if Frick Schoonover did not make the required payments, failed to monitor whether Frick Schoonover made payments and failed to advise the plaintiff that the tax sale could have been cancelled by reimbursing Bendex Properties for the amount of $9,100.00.

For counts of negligence and negligent representation, the plaintiff is seeking damages in excess of $50,000.00 in this matter.

The plaintiff is represented by Richard H. Wix of Wix Wenger & Weidner, in Harrisburg.

Lackawanna County Court of Common Pleas case 17-CV-2995

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

SCRANTON – A Scranton family is asking for judicial approval of a settlement with Target, based on one of its store pharmacies allegedly dispensing more of its plaintiff daughter’s anti-anxiety medication than was necessary.

David Lavelle and Justine Lavelle (parents and natural guardians of Mackenzie Lavelle) of Scranton filed a settlement distribution petition in the Lackawanna County Court of Common Pleas on April 24 versus Target Corporation, of Minneapolis.

The Lavelles sued Target based on an incident involving their Dickson City store’s pharmacy, in Oct. 23, 2014. According to the complaint, the plaintiffs’ daughter Mackenzie, then twelve years old, was prescribed 10 times the proper amount of Haloperidol, an anti-anxiety medication.

Mackenzie fully recovered from the resulting overdose and its severe side effects, and Target agreed to compensate her for her pain and suffering, in the amount of $12,000.00. The plaintiffs entered in a contingent fee agreement with Haggerty Hinton & Cosgrove, in which the firm would receive 25 percent of any settlement proceeds, and the firm’s costs totaled $67.00 for the case’s filing fee.

Further, the plaintiffs agreed that the $8,933.00 to be paid to Mackenzie will be deposited into a money market account, CD or other interest-bearing savings account, along with a provision that no withdrawal can be made from the account until Mackenzie reaches the age of 18.

Therefore, the plaintiffs are requesting an order be entered by the Court approving the settlement of $12,000.00 and the requested allocation of funds.

The plaintiffs are represented by Michael F. Cosgrove and J. Timothy Hinton, Jr. of Haggerty Hinton & Cosgrove, in Scranton.

Lackawanna County Court of Common Pleas case 17-CV-2575

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com