Parker Waichman Alonso LLP News

Judge Grants Parker Waichman LLP Motion to Remand Marlboro Lights Cigarette Lawsuit

Tue, 13 Dec 2011 00:00:00 -0800

A federal judge has granted Parker Waichman LLP's motion to suggest that a light cigarette class action lawsuit it filed on behalf of a New York man be remanded back to U.S. District Court for the Eastern District of New York. The lawsuit, Bryant Tang vs. Philip Morris, USA, alleges purchasers of Marlboro Lights suffered economic damages as a result of misrepresentations made by Philip Morris and Altria Group about the cigarettes.

The Tang lawsuit was one of several consolidated in a multidistrict litigation before John A. Woodcock, Jr., Chief District Judge for the U.S. District Court, District of Maine. On November 24, 2010, Judge Woodcock denied class certification to four test cases submitted in the multidistrict litigation, finding non-commonality. Defendants then sought to apply Judge Woodcock's ruling to dismiss complaints remaining in the multidistrict litigation, including the Tang lawsuit.

Parker Waichman LLP opposed the dismissal and moved to have the Tang lawsuit remanded back to the Eastern District of New York, asserting that Section 349 of New York State's General Business Law provides a common element of damages applicable to all New York class members.

In an order issued yesterday, Judge Woodcock refused to dismiss any of the remaining lawsuits. He also granted the Parker Waichman LLP’s Motion to Suggest Remand of the Tang lawsuit to the Eastern District of New York. The final decision on whether to remand the complaint will be made by the U.S. Judicial Panel on Multidistrict Litigation.

PW Maytag Oven Class Action Lawsuit to Proceed

Fri, 02 Sep 2011 00:00:00 -0700

A class lawsuit claiming Maytag sold defective gas ovens filed by Parker Waichman LLP on behalf of New York man will go forward, after a federal judge partially denied a defense motion to dismiss the suit.

The lawsuit stems from a Maytag gas oven purchased by Gary Woods in 2005 from Plesser's M.S.H. Inc., a Babylon, New York, department store. According to the original complaint, which was filed on December 10, 2009, a malfunction occurred in February 2008 that caused the oven to explode. Woods alleged that the oven's igniter was defective and that Maytag knew of and intentionally concealed the oven's defect.

In an order dated November 2, 2010, Judge Arthur D. Spatt of the U.S. District Court, Eastern District of New York, granted a defense motion to dismiss the original complaint. He dismissed the plaintiff's claims of breach of implied warranty with prejudice, finding they were time barred. However, Judge Spratt dismissed the lawsuit's fraudulent inducement and fraudulent concealment claims with leave to amend.

On November 10, 2010, Woods did file an amended complaint, this time charging Maytag Co., Maytag Sales Co. and Plesser's with fraudulent concealment and fraudulent misrepresentation, as well as violation of Section 349 of the New York General Business Law (GBL), which declares that "deceptive acts or practices in the conduct of any business, trade, or commerce, or in the furnishing of any service" are unlawful in New York.

In December the defendants gain filed a motion with the Eastern District of New York to dismiss the amended claim in its entirety. In an order dated August 31, 2011, did dismiss, with prejudice, the lawsuit's fraudulent misrepresentation claims against the Maytag defendants, as well as the fraudulent concealment and GBL Section 349 claims against Plesser's.

Judge Spatt denied the defense motion to dismiss a claim of fraudulent concealment against Maytag Co. and Maytag Sales Co, writing that he disagreed with the defense contention that Woods "had not sufficiently alleged that (1) Maytag had knowledge of the alleged defects; and (2) any failure to disclose was done with the requisite intent to defraud." Judge Spatt also allowed the plaintiff to proceed with his GBL claim against the Maytag defendants, writing that Woods plausibly alleged that they "had knowledge of the purported defect and failed to disclose that information for the purposes of fraudulent concealment," thus satisfying the pleading requirement for a claim under Section 349 of the GBL.

Finally, he allowed the fraudulent misrepresentation claim against Plesser's to go forward, writing the amended complaint "sufficiently alleged facts that meet the heightened pleading requirements for fraudulent misrepresentation, made with the requisite scienter, which the Plaintiff reasonably relied upon to his detriment."

Parker Waichman LLP Files Actos Bladder Cancer Lawsuit on Behalf of New York Man

Fri, 02 Sep 2011 00:00:00 -0700

Parker Waichman LLP has filed suit against the makers of Actos on behalf of a man who was diagnosed with bladder cancer following long-term use of the type II diabetes medication. The Actos bladder cancer lawsuit was filed yesterday in U.S. District Court, Northern District of New York.

Plaintiff Clement Dabiere claims Takeda Pharmaceuticals America, Inc.; Takeda Pharmaceutical North America, Inc.; Takeda Pharmaceutical Company Limited; and Eli Lilly and Company concealed and continue to conceal that they were aware that Actos can cause bladder cancer. He further alleges the defendants have never appropriately informed consumers and the medical community about bladder cancer risks when taking Actos for over 12 months.

According to his complaint, Mr. Dabiere began taking Actos in 2006, and was diagnosed with bladder cancer in September 2010. His lawsuit points to a number of studies that demonstrated a possible bladder cancer risk associated with Actos, including five-year data from an ongoing, 10-yeara Kaiser Permanente study that demonstrated the risk of bladder cancer increases with increasing dose and duration of Actos use, reaching statistical significance after 24 months.

While that study prompted the U.S. Food & Drug Administration (FDA) to announce in September 2010 that it was launching a safety review of Actos, Mr. Dabiere's lawsuit alleges that Robert Spanheimer, Vice President of Medical and Scientific Affairs for Takeda, told Reuters that the Kaiser Permanente study has not shown a risk to patient's of bladder cancer or other cancers from Actos.

On June 15, 2011, the FDA issued another safety communication stating that use of Actos for more than one year may be associated with an increased risk of bladder cancer. This was followed just days later by announcements that regulators in France and Germany suspended sales of Actos after a French-commissioned study also demonstrated a higher risk of bladder cancer in Actos patients who took the drug at the highest cumulative doses and for the longest time.

Mr. Dabiere alleges that his years of Actos use caused him to suffer severe, permanent and life-threatening personal injuries, pain, suffering, emotional distress, and lifelong fear of premature death. He further alleges that because of his use of Actos, he will require continued lifelong monitoring, treatment and medications. The lawsuit charges Takeda and Eli Lilly with, among other things, negligence; three counts of strict products liability, including failure to warn; breach of express warranty; breach of implied warranties; and fraud and deceit.

Parker Waichman LLP Files Second Imprelis Class Action Lawsuit

Thu, 28 Jul 2011 00:00:00 -0700

Parker Waichman LLP and its partner firms have filed a second class action lawsuit claiming DuPont's Imprelis herbicide caused damage to landscape trees. The Imprelis lawsuit was filed in U.S. District Court for the Northern District of Iowa, Cedar Rapids Division, and seeks damages from DuPont on behalf of any property owner who sustained damage as a result of Imprelis.

The lead plaintiffs in the Imprelis class action lawsuit are Daryl and Mary Ann Haley. They are seeking injunctive relief barring DuPont from continued sale of Imprelis, and compensatory and other damages including the cost of replacing trees damaged by Imprelis.

The Haley's lawsuit alleges that Imprelis is a "frighteningly effective tree killer," and that "thousands of trees have been reported as being infected by Imprelis, and tens of thousands more reports are expected in the future.” The Haley's lawsuit charges DuPont with, among other things, negligence and breach of implied warranty.

Just yesterday, DuPont issued a letter to turf management professionals acknowledging its own investigation had found tree injuries associated with Imprelis, primarily on Norway spruce and white pine trees. The problems are concentrated in Minnesota, Michigan, Indiana, Ohio, Pennsylvania, New Jersey and Wisconsin, the letter said. The letter promised to work with recipients to "promptly and fairly resolve problems associated with our product," and announced the launch of the Imprelis-Facts website, as well as a toll-free number for information that will go online next week.

Imprelis, which is sold exclusively to licensed landscapers, was only brought to market last October. It is used to eliminate broadleaf weeds, and was touted by DuPont as being environmentally safe and an "innovative solution to control a wide spectrum of broadleaf weeds." However, by Memorial Day, turf professionals around the country began reporting damaged and dying trees on lawns were Imprelis was sprayed. By June, extension services in Pennsylvania, Ohio, Indiana and Michigan had issued alerts about Imprelis, and the U.S. Environmental Protection Agency (EPA) was preparing to launch an "expedited" review of Imprelis.

Just last week, Parker Waichman LLP and it partner firms filed their first Imprelis lawsuit in U.S. District Court for the Northern District of Ohio, Eastern Division on behalf of an Ohio property owner. The group expects to file additional Imprelis tree poisoning claims in the near future.

Cancer-Stricken World Trade Center First Responders Denied Zadroga Act Benefits

Wed, 27 Jul 2011 00:00:00 -0700

August 2, 2011: Newsday.com reports the latest anger on Long Island over the Zadroga decision to not compensate cancer-stricken 9/11 first responders stating that scientific evidence is insufficient to support the connection between Ground Zero workers and the disease.

Some sick Ground Zero workers are being left out again. This time they are being excluded from benefits under the James Zadroga 9/11 Health and Compensation Act because they have cancer, after a federal agency determined that there is not enough scientific evidence to prove a link between toxic dust at Ground Zero and cancer.

Many of these cancer-stricken Ground Zero workers were also left out of the World Trade Center Toxic Dust Settlement that was approved last year. About 325 first responders were deemed not eligible for that settlement because they missed the deadline to file a lawsuit in the litigation - in some cases by just days. The early April 2010 deadline was not announced until June of that year, exempting some who were impacted by rescue and recovery activities and who had filed cases as negotiations for the cut-off were ongoing.

Advocates for these workers, including Parker Waichman LLP, which represents 13 first responders in this position, had believed the Zadroga Act would provide them much needed health care. But while it will cover asthma, interstitial lung disease and mental illnesses such as post-traumatic stress disorder, cancer is being excluded for now. Yesterday, the National Institute for Occupational Safety and Health (NIOSH) announced that WTC Administrator John Howard, M.D., had determined that cancers will not yet be considered covered conditions under the Zadroga Act.

“These limitations in the exposure assessment literature make scientific analysis of a causal association between exposure and health effects, such as cancer, quite challenging,” the report said.

NIOSH will revisit the decision next year, when it conducts its next review. But for then, Ground Zero cancer victims who lack health insurance, and/or are not eligible for the World Trade Center Toxic Dust Settlement will have to go without.

“This is not just about compensation, this is also about healthcare,” Matthew McCauley, an attorney with Parker Waichman LLP said. “All of the people who are now barred from obtaining any compensation from the settlement are also barred from getting healthcare from Zadroga. It’s a triple whammy. Not only can’t you work, but now you have developed cancer and you have no access to healthcare to treat that cancer.”

McCauley also found it ironic that the NIOSH report cited a lack off scientific evidence.

"The decision essentially said there is not enough scientific data to analyze these cases and this is due to the Bush administration's refusal to fund these studies,” McCauley said. "The Obama administration reversed this and I'm cautiously optimistic that in time, when additional studies can be conducted, that we can overturn this decision."

Parker Waichman LLP Files Imprelis Class Action Lawsuit on Behalf of Ohio Property Owner

Mon, 25 Jul 2011 00:00:00 -0700

Parker Waichman LLP is one of several firms representing plaintiffs in an Imprelis class action lawsuit. The lawsuit, filed in U.S. District Court of the Northern District of Ohio, Eastern Division, seeks to represent anyone who has sustained significant damage to mature landscape trees, especially Norway spruce and others with shallow roots systems, including willows, poplars and conifers.

Luanne Miller, a property owner in Seven Hills, Ohio, is lead plaintiff in the Imprelis class action lawsuit. The complaint accuses DuPont, the maker of Imprelis, of fraud and negligence.

According to the lawsuit, Imprelis was applied to Miller’s property on several separate occasions in accordance with directions and instructions supplied by DuPont. The complaint alleges that as a result of the Imprelis applications, Miller suffered significant damage and harm to trees, and will continue to suffer even further damage to her lawn and garden because of Imprelis. The lawsuit further alleges that rather than being isolated incidents, thousands of trees have been reported as being infected by Imprelis, and tens of thousands more reports are expected in the future.

Imprelis, brought to market by DuPont in 2010, is designed to kill broadleaf weeds, including dandelion, clover and wild violet. Imprelis is only available to landscapers and professional gardeners, and is touted by DuPont as an environmentally-friendly herbicide and an "innovative solution to control a wide spectrum of broadleaf weeds."

Property owners and landscapers from around the country began reporting Imprelis tree damage around Memorial Day. By June, extension services in Pennsylvania, Michigan, Ohio, and Indiana issued alerts about tree damage and death possibly linked with Imprelis. Now, the U.S. Environmental Protection Agency (EPA) is investigating, and has promised an expedited review of Imprelis. According to the EPA, it has received complaints about Imprelis from Minnesota, Indiana, Illinois, Ohio, Michigan, Pennsylvania, Maryland, Virginia, Delaware, Wisconsin and West Virginia.

DuPont Professional Products acknowledged receiving reports of tree deaths and damage possibly associated with Imprelis in a letter to turf management professionals dated June 17. The company said it is investigating the reports, and has cautioned that Imprelis not be sprayed near Norway spruce or white pine, or in places where the product might drift toward such trees or run off toward their roots.

Parker Waichman LLP continues to receive reports regarding Imprelis tree death and damage. The firm is investigating these complaints, and expects to file other Imprelis lawsuits in the near future.

Nexium, Prilosec Lawsuit Claims Heartburn Drugs Caused Foot Fractures

Mon, 11 Jul 2011 00:00:00 -0700

Another woman has filed suit against AstraZeneca claiming its Nexium and Prilosec prescription heartburn medications caused her to suffer painful broken bones. Susan A. Poznanovich is being represented by David B. Krangle and Andres F. Alonso, attorneys with the national law firm of Parker Waichman LLP.

Prilosec and Nexium are part of a class of drugs called proton pump inhibitors. They are AstraZeneca's best selling drugs, while Nexium is the third largest-selling drug in the world. According to Poznanovich's lawsuit, the company sold over $26 billion worth of Prilosec between 1997 and 2002. Nexium sales amounted $5.2 billion in 2008.

The safety labeling for prescription proton pump inhibitors includes a warning - added in May 2010 - that they might be associated with a higher risk of hip, wrist and spine factures. But like similar lawsuits filed before it, this complaint alleges that AstraZeneca knew from earlier studies that Prilosec and Nexium can prevent the absorption of calcium, leading to bone deterioration and eventual fractures. In total, six studies have found that people over 50 who took proton pump inhibitors for more than 1 year were at a significantly higher risk of suffering a fracture.

According to her complaint, Poznanovich was prescribed and took Prilosec and Nexium between 1995 and 2010. In June 2009, she suffered multiple fractures in her right foot. In December, she suffered more fractures in her left foot. As a result of her injuries, Poznanovich continues to suffer excruciating pain. She also requires and will continue to require ongoing medical care, the lawsuit says.

Poznanovich further alleges that safer alternatives to Prilosec and Nexium exist, and had she known of the drugs' risks, she would not have taken the proton pump inhibitors. The suit, which is being brought under New Jersey Product Liability Act, claims the defendants were negligent and showed wrongful conduct in connection with design, development, manufacture, testing, packaging, promoting, marketing, distributing, labeling and sales.

Chinese Drywall Supplier Seeks to Settle Florida Claims

Wed, 15 Jun 2011 00:00:00 -0700

A proposed settlement of hundreds of Florida Chinese drywall claims was announced yesterday. Under the terms of the settlement, Banner Supply, along with its affiliates and insurers, will pay $55 million to fix as many as 3,000 homes in Florida built with tainted Chinese drywall that was distributed by Banner.

A process for distributing proceeds of the $55 million settlement is still in negotiation, according to a partner with the national law firm of Parker Waichman LLP. The firm, which has an office in Bonita Springs, represents about 1,000 homeowners in the Chinese drywall litigation.

“If somebody suspects or has confirmed through their builder that they have Chinese drywall and have not retained an attorney to represent them, it’s imperative that they do that immediately,” Jordan Chaikin of Parker Waichman LLP told the Miami Herald.

During Florida's housing boom earlier this decade, Banner Supply distributed about 1.4 million sheets manufactured by China-based Knauf Plasterboard Tianjin Co. Since late 2008, owners of thousands of homes built with drywall made by Knauf and other Chinese manufactures have filed complaints with the U.S. Consumer Products Safety Commission (CPSC). Sulfurous gases emitted from Chinese drywall are being blamed for significant property damage, including damage to HVAC systems, smoke detectors, electrical wiring, metal plumbing components, and other household appliances. The CPSC has recommended that such homes be gutted, something that costs at least $100,000.

The Banner Supply Chinese drywall settlement still has to be approved by U.S. District Judge Eldon Fallon, who is overseeing the Chinese drywall multidistrict litigation in New Orleans. Those eligible for the settlement will be notified by mail and through the media within 35 days of the settlement once it is approved, the Miami Herald said.

Banner has not admitted liability for the tainted drywall. According to a report from Newsinferno.com, the company said in court papers that when it began receiving complaints about the material in 2006, it informed Knauf Group, the Germany-based parent of Knauf Plasterboard. After testing the material, Banner claims Knauf told it that the drywall was completely safe. But Banner claims Knauf knew that was untrue, and that the tests actually showed the drywall was contaminated.

According to the Miami Herald, Banner says it plans to seek damages against manufacturers that sold defective Chinese drywall.

As seen online at Bradenton.com - Settlement reached in drywall supplier lawsuit

Wed, 15 Jun 2011 00:00:00 -0700

A class action lawsuit against a Chinese drywall supplier reached a tentative settlement Tuesday with $54.5 million pledged to repair tainted Florida homes.

Banner Supply, a Miami company that sold 1.4 million sheets of Chinese drywall to builders in Florida, agreed to pay $54.5 million to homeowners whose properties are tainted with the corrosive material.

The settlement covers 2,000 to 3,000 homes in Florida, after a class action lawsuit claimed that Banner misled consumers about the product’s safety.

“This is a substantial development in Chinese drywall litigation," said Ervin Gonzalez, a Miami attorney representing the plaintiffs in the case, in a statement. "It enables Florida homeowners to get some relief from their ongoing Chinese drywall issues."

Chinese drywall was imported into the United States in large batches after Hurricanes Katrina and Rita in 2005, in response to a need for the reconstruction of homes. In areas in South Florida like Homestead, Miami and Kendall, new single-family homes were being built, occasionally with drywall from China.

That drywall was later discovered to contain toxins that corroded pipes and electrical wiring, emitted foul odors and allegedly caused headaches and breathing problems.

The discovery led to thousands of lawsuits against manufacturers, distributors and installers of Chinese drywall, including Banner.

Banner claims that it bought the drywall from a German-based manufacturer that lied about the quality of the product. "We are settling this matter to bring a resolution for our customers and to allow the homeowners to fix their homes," said Michael Peterson, Banner's counsel, in a statement.

Because Banner Supply Co. provided most of the drywall used in Florida construction, it's likely that many Manatee County residents will be affected by the preliminary settlement reached today, said Jordan Chaikin, a partner with one of the dozen law firms representing plaintiffs in the class action suit.

"Unfortunately, Manatee County and all the way down to where we are, in Lee County, are the epicenter of the Chinese drywall epidemic," said Chaikin, a partner with the law firm Parker, Waichman, Alonso LLP, which is based in New York City but has a Florida office in Bonita Springs.

That's because Southwest Florida had one of the highest appreciating real estate markets between 2004 and 2006, and was also hard-hit by a string of destructive hurricanes. generating lots of construction, Those two factors meant lots of construction -- and lots of contaminated drywall installed in new and renovated homes, Chaikin said. "Domestic manufacturers didn't have the capability to keep up with demand," he said.

The Parker law firm represents more than 1,000 Florida plaintiffs in the class-action suit, which will likely involve more than 10,000 people nationwide. A process for distributing proceeds of the $55 million settlement is still in negotiation, Chaikin said.

"If somebody suspects or has confirmed through their builder that they have Chinese drywall and have not retained an attorney to represent them, it's imperative that they do that immediately," Chaikin said.

Banner expressed plans to seek damages against manufacturers that sold defective drywall, the company said.

The $54.5 million settlement will be paid out by Banner's insurers, and it equals the total amount available to the company for drywall related insurance claims, Tuesday's court filing said.

Those eligible for the most recent settlement will be notified by mail and in various media outlets within 35 days if the settlement is approved by a federal judge in New Orleans.

Bradenton Herald reporter Chris Hawes contributed to this report.

Parker Waichman LLP Attorney Appointed to Leadership Role in Ford Navistar Diesel Engine Litigation

Fri, 27 May 2011 00:00:00 -0700

Peter Cambs, an attorney with the national law firm of Parker Waichman LLP, has been named to the Plaintiffs' Steering Committee (PSC) in the litigation surrounding certain Ford Navistar diesel engines (In re: Navistar Diesel Engine Product Liability Litigation, MDL No. 2223). The Ford Navistar PSC will coordinate the litigation and work together to represent all plaintiffs.

The litigation involves Ford 6.0 L diesel engines made by Navistar that were installed in certain models of Ford heavy duty vehicles between 2003-2007. Plaintiffs allege that the enormous costs associated with Ford 6.0 L diesel engine repairs, loss of use of their vehicles, and loss of resale value has caused them significant financial harm. Return of the purchase price of the vehicles, costs and expenses incurred in attempted repairs, as well as the loss of use of the vehicles are some of the damages being sought by plaintiffs.

Peter Cambs is Senior Litigation Counsel for Parker Waichman LLP. His Area of Practice includes Mass Torts; Toxic Torts; Defective Medical Devices and Pharmaceutical Liability; Personal Injury Litigation and Wrongful Death Claims; Medical Malpractice and Product Liability claims.

An MDL allows lawsuits associated with a particular product to be coordinated under one judge for pretrial litigation to avoid duplicative discovery, inconsistent rulings and to conserve the resources of the parties, witnesses and the court. It is the responsibility of PSC team members to conduct all pretrial discovery, work with Lead Counsel to call meetings of counsel for plaintiffs for any appropriate purpose, prepare and examine witnesses, act as a spokesperson for all plaintiffs at pretrial proceedings, negotiate with defendants on the litigation and perform any other necessary tasks.