Engle Progeny Review for the Week of October 20

October 24th, 2014  |  Published in Engle Progeny

Each Friday we highlight the week’s Engle progeny cases and look ahead to next week.

Russo v. Philip Morris

After more than six days of voir dire, Judge Abby Cynamon declared a mistrial Wednesday upon the agreement of both parties.

This was the third scheduled trial for the case. The first attempt, in May 2010, also led to a mistrial during jury selection. A trial in September 2010 resulted in a defense verdict after the jury found the Engle claim barred by the statute of limitations. That decision was set aside on appeal and the case remanded for this proceeding.

A new trial is expected sometime next year. Meanwhile, the Florida Supreme Court continues to weigh an open issue in the previous trial’s appeal, concerning the effect of Florida’s statute of repose on Engle progeny claims.

Taylor v. R.J. Reynolds

Helen Taylor’s addiction to smoking led to the chronic obstructive pulmonary disease, according to an expert on tobacco and addiction in testimony as trial opened Thursday.

Dr. David Burns, an expert on the tobacco industry and addiction, said Taylor’s “nicotine addiction was the principle driving force to her continued smoking” from the 1950s until she quit this year. Burns told jurors that Taylor’s decades of smoking, fueled by her nicotine addiction, ultimately caused her COPD. “It’s the need for that nicotine, every half-hour or so in (Taylor’s) case… that leads to the regular, all-day long repetitive exposure” that damaged Taylor’s lungs.

R.J. Reynolds is the sole defendant in the suit, and the case looks to turn on its role in Taylor’s smoking history. In opening statements Thursday, the defense focused on their contention that Taylor only smoked R.J. Reynolds brand cigarettes for 10 years, from 1962 to 1972, which they contended was insufficient to cause her COPD.

Next week: Plaintiff’s counsel will delve into the heart of their case in chief, with Helen Taylor expected to testify.

Delaware Supreme Court Rules Mistake in Termination of $1.5B J.P. Morgan Loan Stands Under UCC

October 23rd, 2014  |  Published in UCC, Uncategorized

The Delaware Supreme Court has found that a mistake in a UCC-3 termination statement does not invalidate the document under the state’s Uniform Commercial Code. The decision, on a certified question from the United States Court of Appeals for the Second Circuit, and after oral arguments broadcast by CVN, affects a nearly $1.5 billion loan by J.P. Morgan to the former General Motors. In re Motors Liquidation Co.

The Delaware high court’s decision stems from a bankruptcy dispute involving the Motors Liquidation Co., known as General Motors before its bankruptcy.  Prior to the bankruptcy, J.P. Morgan filed a UCC-3 termination statement through a representative, believing it was releasing its security interest in one loan to GM, but mistakenly listing a much larger, $1.5 billion loan. The mistake was not discovered until after GM filed for bankruptcy. Plaintiff, the creditors committee for Motor Liquidation Co., contended that the UCC-3 statement terminated J.P. Morgan’s security interest in the loan listed, while JP Morgan argued that the mistake rendered the termination statement invalid. The federal appellate court found no direct precedent and certified the question of whether the review and knowing approval of a UCC-3 statement’s filing effectively extinguished the financing statement for whatever loan was listed on the document.

In concluding that the party filing the termination statement must be held accountable for any mistake in the document, Chief Justice Leo Strine wrote “It is fair for sophisticated transacting parties to bear the burden of ensuring that a termination statement is accurate when filed.” He noted that “(a) secured party is the master of its own termination statement; it works no unfairness to expect the secured party to review a termination statement carefully and only file the statement once it is sure that the statement is correct.”

The Delaware Supreme Court’s answer now sends the dispute back the the federal appellate court, which had reserved for itself the question of whether JP Morgan’s representative was empowered under agency principles to terminate the loan.

Related information.

Watch oral arguments In re Motors Liquidation Co.

Read the Delaware Supreme Court’s opinion here.



Engle Trading Card Tuesday: Todd McPharlin

October 21st, 2014  |  Published in Engle Litigation Trading Cards, Engle Progeny

Each Tuesday we issue a new Engle trading card featuring an attorney, trial, or firm from Florida’s Engle progeny tobacco cases. Our exclusive cards provide a light-hearted way to track important statistics throughout this landmark tobacco litigation.

Card # 6: Todd McPharlin


Kelley Uustal’s Todd McPharlin, a veteran of six CVN Engle progeny trials over the last five years, is the subject of this week’s trading card. Click here for a larger version.

Although he hasn’t tried as many CVN-brodacast Engle cases as some of our other card subjects, Todd McPharlin is  an Engle progeny veteran, representing plaintiffs on CVN since 2009. McPharlin, from Fort Lauderdale’s Kelley Uustal, is dominant on his “home court” in Florida’s 17th Judicial Circuit, going undefeated in four Engle progeny appearances (3-0 and 1 mistrial) there.

Come back next Tuesday to see who will be on our next Engle trading card.

Related information

Visit Todd McPharlin’s Attorney Page and watch on-demand video of his trials.

Opening Statement of the Week: Robert Eglet in Meyer v. Health Plan of Nevada

October 20th, 2014  |  Published in Opening Statement of the Week, Trial Techniques

Robert Eglet details for jurors the illegal cost-cutting procedures used by a clinic he says infected Helen Meyer with hepatitis C. Meyer sued her HMO, Health Plan of Nevada, claiming it breached its duty of care by referring her to the clinic. Helen Meyer v. Health Plan of Nevada Inc., et al.  Click here if you’re unable to view the video above.

As we highlighted last week, ensuring a jury understands a suit’s narrative is one of the key goals of a trial’s opening statement and is a critical component to building a winning case. However, when the events and relationships underlying a suit are particularly complex, as is often the case with lawsuits against insurers, breaking down the narrative into a clear, cogent storyline can be difficult. In openings of Meyer v. Health Plan of Nevada, Robert Eglet representing Helen Meyer in a suit against her HMO, combines a descriptive timeline and eye-popping details in  illustrate his claim that the HMO was responsible for Meyer contracting hepatitis C.

Eglet spends much of his opening statement walking the jury through a sophisticated time line, weaving the stories of both the illegal cost-cutting measures of the clinic that he claimed infected Meyer with hepatitis C and that clinic’s relationship with Meyer’s HMO, Health Plan of Nevada, which referred her to that clinic. The events underlying the suit extend across years and involve multiple parties, but Eglet’s opening statement, assisted by a bullet pointed timeline, introduces jurors to the complex interrelationships integral to the case. Eglet then wraps up his opening statement by contrasting an HMO’s duty to its clients with the clinic’s practices that that he says infected Meyer.

Theories of liability in cases like Meyer can be difficult to clearly communicate to a jury. However, Eglet’s opening statement effectively set the framework for a $524 million verdict for his client.

Related information

Watch Robert Eglet’s full opening statement of Meyer v. Health Plan of Nevada, et al.

Jury selection begins in a similar case, Bernard Paul v. Health Plan of Nevada, Inc., et al., with trial expected to begin in early November. Watch the case live and on-demand on CVN.

Engle Progeny Review for the Week of October 13

October 17th, 2014  |  Published in Engle Progeny, Tobacco Litigation

Each Friday we highlight the week’s Engle progeny cases, examine their importance in the larger scope of the litigation, and look ahead to next week.


Philip Gerson, representing plaintiff Tina Russo, speaks during pre-trial motions of Russo v. Philip Morris. Retrial of the case is underway while the Florida Supreme Court weighs an appeal from the first trial regarding the state’s law of repose.


Russo v. Philip Morris, et al.–Jury selection still underway.

Over the course of the next few weeks, two panels at opposite ends of the state will consider Tina Russo’s suit claiming that cigarettes and tobacco industry secrets caused her mother’s respiratory disease. While jurors in Miami decide the facts in the case’s retrial, the Florida Supreme Court considers a question from the first trial that will impact hundreds of similar suits: How much fraud must an Engle smoker believe?

The Background: Fraud, Repose, and Engle

Fraud is a common claim in an Engle progeny complaint. It’s usually predicated on allegations that tobacco industry defendants conspired to hide the dangers of smoking for decades.

In suing for fraud under Florida law, a plaintiff must typically show both fraud and a reliance on the defendants’ fraudulent conduct. In addition, under Florida’s statute of repose, a plaintiff suing for fraud must show that the fraud occurred within 12 years of the date the complaint is filed. Since Engle progeny plaintiffs are all deemed to have filed suit when the original Engle class action complaint was filed, May 5, 1994, the Engle progeny repose cutoff date is May 5, 1982.

However, when the Florida Supreme Court decertified the original Engle class action suit on appeal, it ruled that Engle progeny members could nonetheless rely on certain jury findings in that original verdict. Among those is the finding that tobacco companies committed fraud both before and after May 5, 1982.

Engle plaintiffs’ attorneys argue that this finding is enough to defeat the statute of repose if a smoker ever relied on what the original Engle jury found to be fraud. Under this argument, for example, a smoker who proves she believed tobacco industry statements about cigarettes when she began smoking in 1960 doesn’t need to prove she believed those statements after May 5, 1982.

However, tobacco companies argue that the statute of repose requires each individual smoker prove reliance after the 1982 repose date. Thus, in our example above, if a smoker who believed tobacco company marketing in the 1960s concludes by the 1970s that cigarettes are dangerous, that smoker’s fraud claims wouldn’t survive the statute of repose.

The State is Split

The state’s district courts of appeal have fallen on different sides of the argument. In 2013, the Third District Court of Appeal set aside a defense verdict in the original Russo trial. However, it also found that the trial judge correctly refused to instruct the jury on the repose issue. The Third District concluded that Phyllis Frazier, the smoker at the heart of the Russo suit (and the original plaintiff prior to her death), did not need to prove reliance on fraud after the repose date.

By contrast, the Fourth District Court of Appeal, in Hess v. R.J. Reynolds, concluded that Engle progeny plaintiffs are required to prove specific reliance after the repose date to win a fraud claim.

The Florida Supreme Court certified both cases for review, and in oral arguments on the issue in April, grilled attorneys on the intent of the repose statute, its relation to a cause of action, and how that applies to Engle progeny cases.

A Retrial in Russo

Nearly six months after arguments, the high court still hasn’t issued a decision. The retrial in Russo will go ahead, with opening statements expected sometime early next week. If the state’s supreme court hasn’t ruled by the time the case goes to the jury, the judge will likely instruct the jury to render two sets of findings on the repose issue. The jury’s verdict in Tina Russo’s suit will help settle the matter for her and her family.

And, at the other end of the state, the supreme court’s eventual decision in Russo will settle the matter of fraud and repose for the hundreds of Engle suits to come.

Next Week: Jury selection continues Monday with opening statements expected to begin before the middle of next week.

CVN to Air Possible Half-Billion Dollar Nevada Suit Against HMOs

October 15th, 2014  |  Published in Insurance

Las Vegas—UnitedHealth Group HMOs could face more than a half-billion dollars in damages for their alleged role in the hepatitis infection of one of their clients, as jury selection is scheduled to begin in a Nevada negligence suit October 20. Bernard Paul v. Health Plan of Nevada Inc., et al.

Bernard Paul claims the insurers, including Sierra Health Services, Inc. and Health Plan of Nevada, Inc., referred him under his coverage plan to an endoscopy clinic they should have known used dangerous medical practices that ultimately infected him with hepatitis C, a life-threatening liver disease.

Paul’s suit is one of several Nevada cases stemming from the arrest and conviction of Dr. Dipak Desai, who ran the Desert Shadow Endoscopy Center. Desai was sentenced to life in prison after a state investigation found that his clinic reused biopsy equipment, spreading hepatitis C among his patients. Some of those patients, like Paul, were referred to the clinic by the insurers, which are subsidiaries of healthcare conglomerate UnitedHealth Group.

The Paul case turns in part on the insurers’ duty to their insureds and whether they should have known that Desai’s clinic, as an approved provider under their coverage plans, followed dangerous and illegal medical practices.

Plaintiffs have won earlier CVN-broadcast suits against the insurers for their role in Desai’s spread of hepatitis C. In 2013, a jury awarded Helen Meyer $524 million after finding the insurers liable for sending Meyer to Desai’s clinic, where she contracted hepatitis. Helen Meyer v. Health Plan of Nevada Inc., et al. Last April, Gwendolyn Martin and her husband won more than $1.2 million in a similar suit against the insurers. Gwendolyn Martin v. Pacificare of Nevada, Inc., et al.

CVN will broadcast live and on-demand gavel-to-gavel coverage of this key insurance trial to its subscribers.

Related information

Watch Helen Meyer v. Health Plan of Nevada, Inc., et al. on demand.

Watch Gwendolyn Martin v. Pacificare of Nevada, Inc., et al. on demand.


Engle Trading Card Tuesday: John Walker

October 14th, 2014  |  Published in Engle Litigation Trading Cards

Each Tuesday we issue a new Engle trading card featuring an attorney, trial, or firm from Florida’s Engle progeny tobacco cases. Our exclusive cards provide a light-hearted way to track important statistics through years of  this landmark tobacco litigation.

ETC Walker_5Small

John Walker, of Jones Day’s Atlanta office has represented R.J. Reynolds in the trials since 2010. Click here for a larger version of his card. 

Jones Day’s John Walker is a long-time veteran of CVN’s Engle progeny trials. He’s represented R.J. Reynolds in 9 cases going back to 2010, when trials were bifurcated to first determine requisite class membership issues.  One of those earlier trials was Rohr v. R.J. Reynolds, noteworthy for the jury’s determination that the tobacco maker’s cigarettes caused Arthur Rohr’s death from cancer, but finding him 100% responsible and awarding no damages in the case. Walker’s most recent case, Robert Gore v. R.J. Reynolds, ended in a mistrial when jurors found RJR liable for punitive damages but refused to award compensatories. Fellow Series 2 card member Robert McCarter represented codefendant Philip Morris Tobacco Co. in that trial. Before that, they worked together in 2013’s Dombey v. R.J. Reynolds, a defense win.

Come back every Tuesday to see who’ll be on our newest card.

Opening Statement of the Week: Marc Howard in McCray v. Ming Xuan Inc.

October 13th, 2014  |  Published in CVN Local: Georgia, Negligence, Opening Statement of the Week, Trial Techniques

Latressa McCray’s attorney Marc Howard demonstrates how his client tripped and fell after being scalded by splashback from a tableside hibachi. Click here if you are unable to watch the clip. 


If you’re a plaintiff’s attorney in a personal injury case, it’s critical that your jury understands the circumstances of the accident at the heart of the case from your point of view. Visual aids such as photographs and computer simulations can help highlight the events that caused the accident. But, as Marc Howard showed in his opening statement of McCray v. Ming Xuan Inc, sometimes the most effective way to explain an accident is to reenact it yourself.

In this Georgia personal injury case from CVN Local, plaintiff Latressa McCray claimed that splash back from a tableside hibachi at defendant’s restaurant burned her chest, causing her to trip and fall. In his opening statement, Howard established the accident scene with photos of the restaurant before reenacting the burn and demonstrating how McCray tripped over a tableside chair and fell injuring her wrist, neck, hip, and back. Howard’s demonstration was more powerful than words alone, and it laid the groundwork for the jury to award McCray $20,000.


Related Information 

Watch McCray v. Ming Xuan on demand.

Would you like to see in-depth CVN Georgia case coverage? Sign up for a free 7-day trial and receive gavel-to-gavel video of the state’s most interesting cases.


Engle Progeny Review for the Week of October 6

October 10th, 2014  |  Published in Engle Progeny, Negligence, Tobacco Litigation



Judge William Levens polls jurors after their $1.3 million verdict in favor of the family of Barbara Ruth Lourie, who died in 1997 from lung cancer. Jurors found Barbara 63% responsible in the Engle progeny wrongful death case brought by her husband James against three tobacco manufacturers. 

Lourie v. R.J. Reynolds Tobacco Co., et al. 

Tampa, FL—Jurors Friday afternoon awarded the family of Barbara Lourie more than $1.3 million in their wrongful death suit against Phillip Morris USA, R.J. Reynolds Tobacco Co., and Lorillard Tobacco Company.

Jurors received the case yesterday and deliberated about 7 hours before finding the tobacco manufacturers liable to Barbara Lourie’s husband James and son Steven for Barbara’s 1997 death from lung cancer. Jurors awarded James $663, 296 and Steven $708,253, but apportioned 63% of responsibility to Barbara Lourie.

Barbara Lourie had smoked for more than 40 years prior to her death. However, because key medical records had been destroyed and Barbara Lourie had not shown symptoms of lung cancer such as coughing and respiratory bleeding, tobacco manufacturers argued that Lourie’s cancer may have originated elsewhere before metastasizing in her lungs. In closing statements Thursday, Pam Yates argued there was limited documentation to support the claim that Barbara Lourie’s lung cancer was caused by smoking and noted that much of plaintiff’s expert testimony stemmed from reviews of records produced by others. “Is it enough to say ‘We have a smoker here and cancer ended up in the lungs’? Is that the end of the inquiry?” Yates asked. “Not in medicine; not in a court of law.”

However, James Lourie’s attorney Brent Bigger reminded jurors Thursday that medical staff who treated Barbara Lourie testified that she had lung cancer caused by her smoking. While acknowledging that defendants’ expert, Dr. Bryan Peterson concluded that she did not suffer from lung cancer, Bigger added “But actually, Dr. Peterson said, if it was lung cancer, then it definitely was caused by smoking. Even he agreed with that.”

“Of course she had lung cancer,” Bigger emphasized. “All the medical records say lung cancer.”

On the Docket for Next Week

Russo v. Philip Morris

Jury selection begins on Monday in this Dade County case presided over by Judge Abby Cynamon. This will be Judge Cynamon’s first Engle progeny trial broadcast by CVN. However, Shook Hardy’s William Geraghty, representing Philip Morris, is a veteran of seven previous CVN Engle progeny trials. He won his last trial, January’s Gonzalez, et al. v. Philip Morris, et al. 

J.P. Morgan Argues That Mistake in UCC Filing Did Not Terminate Its Interest in $1.5 Billion Loan to GM

October 9th, 2014  |  Published in Bankruptcy, UCC

Delaware Supreme Court Justices question Eric Fisher, representing creditors of Motors Liquidation Co., on whether a creditor bears the consequences of a mistake on an otherwise properly filed statement terminating a security interest under the state’s UCC. Creditor J.P. Morgan filed a UCC-3 security termination statement that mistakenly listed a nearly $1.5 billion loan to GM, which became Motors Liquidation Co. in bankruptcy. Click here if you are unable to watch the video.

J.P. Morgan’s counsel told the Delaware Supreme Court yesterday that a federal judge certified the wrong question when seeking to determine whether the state’s Uniform Commercial Code may have terminated the bank’s security interest in a $1.5 billion loan owed by the former General Motors. In Re Motor Liquidation Co.

J.P. Morgan attorney Gregory Williams said that the U.S. Second Circuit Court of Appeals erred in certifying to the Delaware Supreme Court the question of whether simply filing a UCC-3 termination statement was enough to terminate a security interest, while reserving for itself the question of whether the termination statement, which listed the wrong loan, was actually authorized. “I think the Second Circuit… is creating two questions where there is one,” Williams told the Delaware court. “The question is, was there authority to file the amendment?”

Williams argued that, under agency principles, a representative for J.P. Morgan lacked the authority to file a termination statement that contained the wrong loan number and that the filing should be considered “unauthorized” and ineffective under Delaware’s UCC.

The proceedings before the Delaware Supreme Court stemmed from a bankruptcy dispute involving the assets of the Motors Liquidation Co., known as General Motors before its bankruptcy. Prior to the bankruptcy proceedings, J.P. Morgan  filed a UCC-3 termination statement through a representative, believing it was releasing its security interest in one loan to GM, but mistakenly listing a much larger, $1.5 billion loan. The mistake was not discovered until after GM’s bankruptcy. Plaintiff, the creditors committee for Motor Liquidation Works, contended that the UCC-3 statement terminated J.P. Morgan’s security interest in the loan it listed, while the defendant bank argued that the termination statement was considered “unauthorized” and ineffective because of the mistake.

Finding no direct precedent for the issue, the Second Circuit Court of Appeals asked the Delaware Supreme Court specifically what was required to terminate a security under the state’s UCC.

During Williams’s argument Wednesday, Chief Justice Leo Strine, Jr. appeared reluctant to move beyond that specific question. When Williams began to argue agency principles of authority, Strine noted that the federal court had reserved that issue for its own judgment. “Are you asking us to give something (to the federal appellate court) that is more polenta and less cornbread?” Strine asked.

“Sometimes, Your Honor, the answer doesn’t easily fit into boxes that the questioner sets forth. And that’s this case,” Williams responded.

The statute at issue, Del. UCC Code sec. 9-509(d)(1), provides that the termination of a financing statement is allowable only if “the secured party of record authorizes the filing.” Vice Chancellor J. Travis Laster, emphasizing that the provision is part of a notice statute, appeared more amenable to Williams’s argument.  “It seems to me what you perceive the Second Circuit to have done is split two inextricably linked concepts, Laster said. “By splitting these two things, the Second Circuit created a filing concept that has greater dignity than the act contemplated.”

However, Eric Fisher, representing the creditors’ committee, argued that, under the statute’s plain language, J.P. Morgan’s filing of the UCC-3 statement was sufficient to terminate the security interest of whatever loan was listed on that document, regardless of its intent. Fisher said the UCC’s language and analogous case law were clear as to the statute’s effect: “When it comes to authorized filings, if you’re the secured lender and you authorize your filing, you’re stuck with the mistakes,” Fisher said.

Vice Chancellor Laster appeared concerned that Fisher’s interpretation would inappropriately expand the powers of the statute and diminish a prospective creditor’s responsibility to perform due diligence during the loan approval process. “Doesn’t (Fisher’s argument) turn the statute, which is a notice statute, that’s supposed to trigger a due diligence obligation, into the equivalent of a real property recording statute where the recordation has these effects?”

However, Chief Justice Strine appeared more sympathetic to Fisher’s plain-language interpretation. After asking what it means to “really mean something,” when filing the document, Strine said, “I’m being only a little bit flippant to say that there’s a lot of debate out there about linguistics and what people really meant,” Strine explained. “I think your point is the UCC wasn’t intended for that. The point is be careful about your filings. Yes, you’ve got to inquire to make sure that the party whose interests were at stake actually authorized the filing, but you’re allowed to rely on them to be the master of their own document.”

Because of the sheer number of UCC security filings within Delaware, the court’s decision will likely impact creditors’ procedures in filing UCC amendments as well as due diligence prior to subsequent credit decisions.

Related Information

Watch arguments in In Re Motors Liquidation Co. on demand.