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Law360's Tort Report: Record $205M Birth Injury Award Nixed

By Y. Peter Kang · February 5, 2021, 6:58 PM EST

A client-poaching suit filed by a leading Massachusetts injury firm and the overturning of a record $205 million jury verdict in a suit accusing a Johns Hopkins hospital of causing a baby's brain damage lead Law360's Tort Report, which compiles recent personal injury and medical malpractice news that may have flown under the radar.

Maryland Court Overturns $205M Birth Injury Verdict

A Baltimore jury's record-setting $205 million award in a suit accusing a Johns Hopkins Health System hospital of causing an infant's permanent brain damage was overturned by a state appeals court, which said the infant's mother failed to adhere to medical advice.

A three-judge Court of Special Appeals panel on Feb. 1 said Johns Hopkins Bayview Medical Center Inc. should have been granted a directed verdict in a suit accusing medical staff of providing negligent treatment to Erica Byrom, causing her baby Zubida Byrom to suffer a catastrophic brain injury and other ailments that resulted in permanent neurological disabilities and a seizure disorder requiring around-the-clock care.

The suit also alleged the hospital breached her right to informed consent by inducing vaginal labor instead of performing an emergency cesarean section.

But the panel said the hospital properly informed the patient of her treatment options and that she made the conscious decision to forgo the C-section.

"Against Bayview's clear advice, Ms. Byrom refused to consent to a cesarean section unless her own life was in danger," the panel said in an unpublished opinion. "She chose to induce vaginal delivery despite Bayview's warnings. The consequences were tragic. The injuries to the baby were just as Bayview warned. But the record clearly shows that Ms. Byrom received all of the material information necessary to make an informed decision about her care."

The jury had originally awarded $229.6 million — with $200 million earmarked for future medical expenses — but a $25 million award for noneconomic damages such as pain and suffering was slashed due to Maryland's cap on such damages. An attorney for the plaintiff told Law360 the July 2019 verdict was the largest medical malpractice award in U.S. history.

The appellate panel additionally found the hospital can't be held liable for negligent medical treatment because that duty of care only encompasses what is consented to by the patient. Since Byrom didn't consent to an emergency C-section, the hospital can't be held liable for not performing one, the court said.

The case is Johns Hopkins Bayview Medical Center Inc. v. Erica Byrom et al., case number 1585, September Term 2019, in the Court of Special Appeals of Maryland.

Massachusetts Injury Firm Accuses Rival of Poaching Clients

Lubin & Meyer PC has lobbed a suit accusing management at competitor Keches Law Group PC of conspiring with two new hires — former Lubin associates — to access confidential client files in order to "secretly solicit" the firm's clients to go with them to the new firm.

The suit was filed on Jan. 20 in Suffolk Superior Court and states that Keches has had a "long-established history of animosity" toward Lubin, which "has long held the market share of medical malpractice claims in Massachusetts" and started when the firm fired the wife of Keches' founder George Keches in 1995.

"Since that time, George Keches, Sean Flaherty and Keches have sought to gain information about Lubin & Meyer's business in an effort to try to unfairly compete with the firm," the suit said.

"This has included soliciting its employees," it added. "By way of limited example, Keches has hired over five former employees of Lubin & Meyer for the purpose of gaining information about the firm, its clients and its practices. Keches has also sought to solicit other employees to leave Lubin & Meyer, including secretaries and nurses."

The suit is the second lodged by Lubin against Keches in two years and is the result of information that was gleaned during discovery in the first suit, according to the complaint. The former associate had admitted in a sworn affidavit that "she had, indeed, secretly solicited at least 12 of Lubin & Meyer's clients prior to leaving Lubin & Meyer," the instant suit said.

Lubin asserts claims of unfair and deceptive trade practices, civil conspiracy and breach of fiduciary duty, among other claims.

The case is Lubin & Meyer PC v. Keches Law Group PC et al., case number 2184CV00120, in the Superior Court of Suffolk County, Commonwealth of Massachusetts.

Actor Sues Netflix Over COVID-19 Working Conditions

An actor has lodged a suit accusing Netflix Inc. and others of wrongfully firing him after he complained about working conditions and voiced coronavirus safety concerns on the set of a live-action drive-thru theater experience adapted from the popular show "Stranger Things."

The actor, Timothy Hearl, filed the wrongful termination suit in Los Angeles Superior Court on Jan. 15 accusing Netflix, Empyrean Production Services and others of whistleblower retaliation, claiming he was fired for complaining about being exposed to carbon monoxide while performing in an enclosed parking area.

"Plaintiff and the other performers were forced to inhale car exhaust and other toxins for up to five or more hours during a shift," the suit said. "The actors had difficulty breathing, headaches, low blood pressure and were feeling faint."

Hearl said he asked management whether a proper ventilation system would be provided along with carbon monoxide detection equipment.

"Plaintiff also complained about and voiced concerns over the safety hazards associated with cars moving while the actors were performing, in addition to concerns about COVID-19 exposure in light of the indoor rehearsals the performers were required to partake in," the suit said. "Defendants did not address plaintiff's concerns other than to express that they '[would] get back to [plaintiff].'"

About three weeks later, Hearl voiced other concerns and about a week later, he was fired under the pretext that he was "making women uncomfortable," according to the complaint.

"In an attempt to refute this baseless accusation, plaintiff was forced to come out as a gay man to his employer and colleagues," the suit said. "Given this new information, defendants backtracked on its accusation and listed the reason for plaintiff's termination as 'due to client's request' on his written notice."

The case is Timothy Hearl v. Empyrean Production Services et al., case number 21STCV01716, in the Superior Court of the State of California, County of Los Angeles.

Suit Blames Student's Suicide on Illinois Gov.'s Sports Ban

Illinois Gov. J.B. Pritzker and the Illinois High School Association were hit with a suit alleging a high school student's suicide was prompted by the state's ban on high school sports amid the coronavirus pandemic.

Lisa Moore claims that her son Trevor Till was so distraught over the cancellation of the track and field season during his senior year of high school that he took his own life, according to a suit filed in LaSalle County Circuit Court in late December.

"After COVID-19 hit and restrictions on school sports and activities were put in place, Trevor was devastated that he didn't have his senior year track and pole vaulting season," the complaint states. "The final blow was when winter sports were canceled. Trevor committed suicide on Oct. 21, 2020, a proximate cause of which was the Governor Pritzker's restrictions on high school sports programs."

Moore claims that it is unfair that high school student-athletes are prohibited from playing sports while college and professional athletes are allowed to compete during the pandemic. The suit does not allege wrongful death but instead seeks a preliminary and permanent injunction barring the state from enforcing the sports ban.

The suit is backed by a conservative nonprofit organization, Remember America Action.

The case is Lisa Mara Moore v. Jay Robert "J.B." Pritzker et al., case number 2020MR000426, in the Circuit Court of the 13th Judicial Circuit, LaSalle County, Illinois.

--Editing by Philip Shea.

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