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Beginning in March 2007, NovaCare, LLC and Impulsaria, L.L.C., designed, manufactured, marketed, and/or sold "Stiff Nights" to the public, through a nationwide advertising campaign promoting "Stiff Nights" as a convenient, scientific, and medically safe way to treat erectile dysfunction and enhance male sexual performance. On or about Dec. 28, 2010, the Food and Drug Administration (FDA) informed NovaCare that Stiff Nights could not be sold to the public without FDA-approval, which it did not have.
On Sept. 22, 2012, Enlightened Reading, Inc., doing business as Erotic City, sold Stiff Nights to David McElwee, a 37-year old single father. On or about Sept. 24, 2012, Mr. McElwee used the product and, on Sept. 25, 2012, he went into cardiac arrest and died, leaving behind children including minors C.M. and A.M., and Layne Batistello.
Trisha Hale, as next friend of her children, C.M. and A.M., filed a wrongful death petition against Erotic City, Novacare, and Impulsaria in the Circuit Court of Jackson County, Missouri. On or about Sept. 22, 2015, plaintiffs filed an amended petition, alleging negligence, failure to warn, marketing defect, design defect, and breach of warranty. Plaintiffs reached a settlement with Erotic City and, on May 20, 2016, Judge Charles McKenzie signed a judgment approving the settlement, pursuant to which Erotic City agreed to pay a total of $ 1 million, comprised of $ 400,000 for attorney's fees, $ 31,294.92 for expenses, $ 184,568.36 each to fund annuities for C.M. and A.M., $ 184,568.36 for Layne Batistello, and $ 7,500 each for Mr. McElwee's surviving parents. On June 22, 2016, plaintiffs filed a satisfaction of judgment as to their settlement with Erotic City, and on July 13, 2016, Judge McKenzie signed an order dismissing Erotic City as a defendant in the action. An article for PRNewswire dated Oct. 6, 2016, indicated that Erotic City had settled for its insurance policy limits.
Plaintiff was represented by Brandon L. Corl, Timothy L. Sifers, and Patricia L. Campbell of The Potts Law Firm, L.L.P in Westwood, KS, as well as by Michael T. Yonke and Charles R.C. Regan of Yonke Law, LLC in Kansas City, MO. Defendant was represented by John M. Waldeck of Waldeck & Patterson, P.A. in Prairie Village, KS.
Lexis Advance subscribers may view the complete summary here: C.M. and A.M., Minors, b/n/f Trisha Hale v. Enlightened Reading, Inc., d/b/a Erotic City, et al; 2016 Jury Verdicts LEXIS 7939
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