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M's Pub fire legal battle ramps up: 100 depositions, 7-figure legal bills already

As the M’s Pub fire approaches its fourth anniversary, one thing is more clear than ever: The legal battles will be complex and expensive.

Roughly two dozen lawyers filled a Douglas County District courtroom last week for a hearing on a procedural matter in several of the cases. The lawyers represented people whose property was damaged in the fire, contractors, insurance companies and the Metropolitan Utilities District.

There have been about 100 depositions in the case; one attorney estimated that the fees for the attorneys in the room reached $10,000 per deposition.

A total of 15 cases were filed and have been consolidated with Judge Timothy Burns. (One case, from the City of Omaha, has been dismissed, and the city has been dismissed as a party in all cases.) Burns and possibly a jury will be tasked with determining who was at fault for the fire, who is owed money from those at fault and how much they are owed.

A key question to be sorted out is whether ratepayer-owned MUD is to blame for not marking or improperly marking underground natural gas lines. The fire started as a fiber-optic contractor was drilling beneath the streets and sidewalks.

The utility’s attorney says MUD “looks forward to the opportunity to present our story and set the facts straight.”

The January 2016 fire started in the basement of M’s Pub, an Old Market fixture that dates to the early 1970s.

The fire did not cause any deaths or serious injuries, but it destroyed the historic building that housed M’s, the next-door retail shop Nouvelle Eve and upstairs condos. The result gutted the heart of Omaha’s Old Market district and left the area cordoned off for months as workers investigated the fire and rebuilt the building.

M’s reopened in 2017, and Nouvelle Eve reopened last year.

Because MUD is a public entity, state law says the utility will be liable for at most $5 million for the whole incident, with a cap of $1 million to any one party.

Also because of state law regarding public entities, the judge will decide the portion of the cases that involve MUD while a jury could make the decision on the lawsuits against the private companies.

Some but not all of the parties have settled, meaning that all plaintiffs may not always be aligned against all defendants on every point.

That means at the trial there will be dozens of parties trying to show different things about one another, in some cases, to a different decision-maker.

“It’s going to be a three-ring circus,” said Tom White, an attorney for M’s Pub.

White told the court that a central question for his clients will be whether gas was coming in to M’s for more than an hour as MUD workers tried to shut a gas line off and whether or not the fire could have been contained had the gas been shut off faster.

He said the damages could total as much as $30 million.

Some, including the state fire marshal, have suggested that MUD improperly marked the gas line that was hit.

Mark Mendenhall, the general counsel for MUD, said the entity so far has spent roughly $1.2 million on legal fees and other expenses for the case.

He said the utility will show that the gas line was appropriately marked and that after the line was struck, the gas vented away from the building.

Plaintiffs in the other cases include Nouvelle Eve, condo owners and the late Mark Mercer along with his wife and management company, which owns the building.

Other than MUD, defendants include North Central Service, which was hired to install fiber-optic cable; Kansas City company Unite Private Networks, which hired them; and telecom giant Verizon, which hired Unite.

Several insurance companies that cover various parties have their own lawsuits or are part of others’ cases.

The hearing Thursday centered on a procedural issue: what information from workers at the scene needs to be provided to each of the parties in order for the case to proceed.

Burns also scheduled a tentative date for the trial to start: May 4, 2020. He set aside the whole month.

Historic buildings in and around the Old Market

Livewellnebraska
Elkhorn mom fighting for sons with rare disease helps researchers win $1 million grant

From the excitement in her voice, a listener would think Neena Nizar had just won a lottery jackpot big enough to buy two her young sons almost anything they wanted.

Instead, the prize is a pending research agreement between the National Institutes of Health and Harvard Medical School. If finalized in the coming weeks, it would help further development of a possible treatment for the ultra-rare genetic condition the Elkhorn-area mom and her boys share.

The “win” isn’t as much about what her boys and other children with the condition would get as what it could help them avoid — the pain, corrective surgeries and wheelchairs that were so much a part of Nizar’s own childhood.

“I’m beyond thrilled,” Nizar said. “I can’t stop smiling since we got the award.”

Nizar and her sons, Arshaan and Jahan Adam, now 11 and 9, have Jansen’s metaphyseal chondrodysplasia, a rare, progressive form of dwarfism.

Diagnosed in 2010, they are three of fewer than 30 people around the world confirmed with Jansen’s. The condition, while not deadly, comes with chronic pain and requires corrective surgeries to straighten weakened bones. The disease also can lead to kidney problems caused by the high levels of calcium in the bloodstream.

Nizar launched the Jansen’s Foundation in 2017 to increase awareness about the disease and help raise funds to develop a treatment for Jansen’s children.

Nizar knows how hard it is to develop a new drug. Costs may mount into the billions, leaving patient advocacy groups wondering how they’ll raise the money.

“It takes a toll,” said Nizar, who in recent weeks has served as a panelist at two global orphan drug and rare disease conferences.

Her focus has been a possible therapy discovered by Dr. Harald Jueppner and his colleague at Harvard.

In late 2018, Jueppner and his team secured a $1 million research grant from the NIH that allowed them to conduct studies and gather data on the drug. The drug turns off an overactive receptor for parathyroid hormone and parathyroid-related peptide in Jansen’s patients. The hormone influences bone remodeling, the ongoing process in which bone tissue is alternately absorbed and rebuilt over time. The parathyroid-related peptide affects the maturation of cartilage cells in growth plates.

Although Jueppner, a professor of pediatrics, had studied Jansen’s for more than two decades, he’d never encountered a patient until he met Neena and her boys several years ago. Both Jueppner and colleague Thomas Gardella now serve on the foundation’s board.

“Neena’s just a remarkable person,” said Jueppner, also chief of pediatric nephrology at Massachusetts General Hospital. “Without her, we never would have pursued this line of research.”

NEENA NIZAR  

Neena Nizar with Harvard Medical School researchers, from left, Harald Jueppner, Thomas Gardella and John Potts. A pending research agreement between Harvard Medical School and the National Institutes of Health aims to develop a therapy for the condition that affects Nizar. “We never would have pursued this line of research” without Nizar, Jueppner said.

Then Nizar — who regularly corresponds with researchers, federal officials and pharmaceutical executives — found out that the NIH had a program to stimulate collaborations with researchers to develop therapies for rare and neglected diseases.

“I talked to the research team and said we should apply for it,” she said.

The team was notified earlier this month that they’d received preliminary approval for assistance through the agency’s Therapeutics for Rare and Neglected Diseases program.

The program is designed to combat the challenges that come with developing treatments for rare and neglected diseases. With few patients, scientists often know little about the symptoms and biology of rare conditions. Some private companies may find it difficult to justify the cost of developing drugs for small groups of patients.

Nizar said such agreements are few. Last year, the agency added one. At any given time, the program maintains up to 40 projects.

But Nizar is persuasive. Jueppner said she attended the meeting they had with program officials in early August.

“She made a very passionate statement in front of the whole group that this needs to move forward for her kids and the few other kids in the world who have this disease,” he said.

The drug has been effective in the researchers’ animal models. But Jueppner cautions that there are many reasons it could fail.

“We are very optimistic as well,” he said, “but until you do it, you don’t know.”

Jueppner said the researchers will receive no funds through the agreement. Instead, the agency will help with the next steps in the research. Based on those studies, the researchers would decide whether it’s safe to proceed with studies in humans.

If the studies go well, Nizar is prepared to be the first to try it.

It’s best given before growth plates in bones close, which typically occurs in adolescence.

Arshaan and Jahan each are getting ready for another surgery in January. They’ve had them each year since the family moved from Dubai in the United Arab Emirates to Nebraska in 2015.

They go to school, and they’ve got great support, Nizar said. But they’re still in pain. And surgery means missing school.

“They just don’t want to do that anymore,” she said. “If there is an option, if it’s going to improve their quality of life, definitely we are going to be chasing that down.”


Articles
As butterflies vanish, researchers test road salt as culprit, part of cure

MINNEAPOLIS — A monarch butterfly had just emerged from its chrysalis when Emilie Snell-Rood reached into its cage, grabbed it carefully to take measurements and photographs, then placed it inside a tall and breezy tent. There it would strengthen its wings for a day or two in relative safety before being released in time to begin a 2,000-mile trek to southern Mexico.

This monarch in particular, a female, may have a better chance than most to survive the migration. It might depend on how her body reacts to varying levels of road salt.

In an effort to understand why monarch populations are plummeting, researchers at the University of Minnesota are investigating road salt as both a culprit and an unlikely solution.

Across the country, the butterfly's numbers have fallen by more than 90% since the early 1990s, and now the U.S. Fish and Wildlife Service is considering adding the butterfly to its list of endangered and threatened species.

In Minnesota, the northern end of a key monarch migration route, researchers believe that road salt is playing an outsized role. That's because many of the state's remaining significant concentrations of milkweed — the food source for monarch caterpillars — run alongside roads and highways.

When winter road salt is kicked up and ground into dust by traffic, the sodium seeps into nearby soil.

The milkweed growing in that soil keeps the sodium within its leaves, said Snell-Rood, an ecology professor at the university who is leading the research.

Too much sodium is toxic for butterflies and can delay or hinder their muscle development, she said.

But smaller amounts may prove beneficial.

"Every animal needs sodium for proper growth," Snell-Rood said during a recent interview at her lab on the St. Paul campus. "But the options are fairly limited for herbivores because plants don't like sodium and tend to have very little of it."

In the wild, animals resort to various, often strange, behaviors to get that sodium. It's why deer are so attracted to salt licks, why moose seek out aquatic plants and why butterflies have been known to suck up mud, Snell-Rood said.

"The question is," she said, "is this sodium translating to performance effects in monarchs during migration?"

Monarchs are beginning what is perhaps the greatest annual migration in North America.

Tens of millions of the orange and-black butterflies will spend the next few months fluttering thousands of miles from every corner of the country and parts of Canada to just a handful of locations west of Mexico City, where the tiny creatures will mass in numbers so big that their weight can collapse tree branches.

One of the busiest routes runs down the center of the United States, following Interstate 35 from Duluth, Minnesota, to the Texas border.

To test the role of road salt, Snell-Rood and her team have been raising thousands of monarch caterpillars since the insects first returned north this spring. They've split the bugs into three groups: One is fed milkweed sprayed with high concentrations of sodium, one gets lower levels of sodium and one gets no extra sodium at all.

The higher levels are set to mimic the amount of salt that leaks into the soil along major urban highways, such as the I-35 corridor in Minneapolis. The lower levels roughly equal the amount of sodium kicked up along less-trafficked rural roads.

When each caterpillar emerges as a butterfly, it is measured, tagged with a sticker on its wing and put into a tent for a few days to grow and get used to its surroundings. Then it is released.

The female butterfly SnellRood photographed on a recent afternoon had been treated with lower levels of sodium. Her brain may be a little bigger, eyesight a little better and flight muscles stronger than those of a typical monarch butterfly. Snell-Rood's team has found that those treated with higher levels of sodium take longer to develop. They're expected to be weaker and more vulnerable to frosts, predators and the countless perils they'll face during the great migration.

Researchers will track the butterflies to see how many from each group make it to Mexico, by working with various partners and possibly sending a team south to try to spot the stickers.

Lab studies have already shown that modest levels of sodium supplements can increase muscle growth as well as brain and eye size, all of which are critical for migrating, Snell-Rood said. Higher levels can outright poison monarchs or hinder their muscle development.

This will be the first field test of its kind to see how sodium levels actually affect survival rates outside the lab.

The Minnesota Department of Transportation will be following the results closely. The agency has already begun to design major road projects, such as the reconstruction of I-35W in Minneapolis, with monarch butterflies in mind by adding more diverse plantings of clovers, grasses and milkweed, as long stretches of highway have become one of the butterfly's primary remaining habitats.

The university's monarch study comes amid heightened scrutiny of road salt and the environmental damage it can cause.

In the Twin Cities area, where roads, sidewalks and parking lots are treated with an estimated 349,000 tons of road salt a year, dozens of lakes have already been impaired by chloride contamination, according to the Minnesota Pollution Control Agency.

Many lakes are becoming so salty that they will not be able to support native life within the next three decades, according to a 2017 study from the University of Wisconsin.

One solution being considered for the monarchs: consistently mow the strip of land near the highway to remove the milkweed.

Forcing the caterpillars to move even just a few yards away from the salty road could mean the difference between strong monarchs and weak ones because they would take in less sodium.


Momaha
He's 26 years old but still sees a pediatrician: Why some young adults don't move on.

When Joann Alfonzo, a pediatrician in Freehold, N.J., walked into her office recently she mentally rolled her eyes when she saw her next patient: a 26-year-old car salesman in a suit and tie.

"That's no longer a kid. That's a man," she recalls thinking.

Yet, Alfonzo wasn't that surprised. In the past five years, she has seen the age of her patients rise, as more young adults remain at home and, thanks to the Affordable Care Act, on their parents' health insurance until age 26.

"First it was 21, then 23 and now 26," Alfonzo says. "A lot of them can't afford to live on their own and get their own insurance, or even afford the co-pay. And if insurance is offered at work, there's generally a cost share involved, if insurance is provided at all."

The idea of young adults continuing to see their longtime pediatricians has been around for quite some time — it was a laugh line on "Friends" in its last TV season in 2004. Rachel takes her child to a pediatrician, she sees the child's father, Ross, in the waiting room and realizes he's still a patient.

But these days that's pretty realistic, Alfonzo says. "We have people who have had children, and they still see us, so we're seeing the parents and their children, concurrently," she says.

So when is it time to leave your pediatrician? Talon Manfredini, 22, says he only left his pediatrician, who is a woman, this year because he moved from his family home in New Jersey to begin a new job in Miami.

But he didn't think twice about continuing to see her, even though he'd finished college. "She just felt like a regular doctor," he says. "It didn't feel odd at all or different or weird or anything like that."

Debbie Weinberger DeFrancesco, 41, a regional sales manager for Tyson from Marlboro, N.J., says she continued to see her pediatrician until she was about 27.

"The thing I remember very clearly, especially towards the end of my time there, was how the moms were the same age as me — and not thinking that I was too old for the doctor but that they were too young be having babies," she says.

She finally decided it was time to get an "adult" doctor when she got married. "I thought it was a good idea for my husband and me to share the same doctor and have our files under one roof," she says.

Aside from some potentially awkward moments in the waiting room, is there anything wrong with pediatricians continuing to treat their patients once they become adults?

A little, Alfonzo says.

"We're now treating people for adult diseases, things we weren't trained to treat," she says, such as adult hypertension, Type 2 diabetes, high cholesterol, pregnancy, even depression and anxiety. If she encounters something she can't handle, Alfonzo says she will refer the patient to a specialist.

"Actually, I think it impacts them more in a positive manner, because I think pediatricians are very thorough in their assessment," she says.

It's certainly more thorough than an urgent care center, which is where many 20- and 30-somethings wind up when they don't have insurance and are no longer seeing their pediatrician, Alfonzo says.

The American Academy of Pediatrics (AAP) attempted to address the issue of transition from pediatric care into adult care in a policy statement in 2017 and concluded "the age of transition" should be based not on a number but on the patient's individual needs.

The decision "should be made solely by the patient (and family, when appropriate) and the physician and must take into account the physical and psychosocial needs of the patient and the abilities of the pediatric provider to meet those needs," the policy statement said. In addition, it said that 'the establishment of arbitrary age limits on pediatric care by health care providers should be discouraged. Health care insurers and other payers should not place limits that affect the patient's choice of care provider based solely on age."

The statement was written and published because more pediatricians were seeing older and older patients, and because insurers and health-care providers had begun to draw arbitrary lines as to the age at which a patient should no longer be seen by a pediatrician, said Jesse Hackell, the AAP's vice president and a co-author of the statement.

"There are no official, legal rules," Hackell says. "Sometimes the insurance companies will try and make rules. Sometimes the hospitals will make rules. But there's nothing to say we couldn't keep seeing them. We're licensed as physicians, not pediatricians."

Hackell, a pediatrician in Pomona, N.Y., says he has patients who definitely don't want to leave, and most of their problems are ones he is equipped to deal with. Often, he'll keep the patients through their college years. Why should they have to find a new physician if they get sick while they're home on break? he asks.

"I won't take on a new patient after about the age of 18 or 20, but I will certainly see my patients who I've seen since they were kids," he says.

Once they graduate, though, he generally tells them it's time to start looking for a general practitioner who treats adults, he says.

"We have to gently nudge them out," he says.

Living at home and remaining on parents' insurance policies aren't the only reasons 20-somethings stay with pediatricians. Medical advancements over the past decade are extending the life expectancy of those with chronic childhood illnesses, such as congenital heart issues, cystic fibrosis, hemophilia and diabetes, and the pediatricians who cared for children with these conditions sometimes remain with them as they get old, says Michelle Hofmann, medical director in pediatric services at NeuroRestorative in Riverton, Utah.

Hofmann says when she was training in a pediatric intensive care unit, she had to resuscitate a 50-year-old man who was in her children's hospital because he'd had congenital heart disease since he was a child. When it was time to do heart surgery, he wanted to have it there.

"One of the things that I think they do really well in pediatrics is establish those lifelong relationships, because your visits are so frequent when you're growing up. If you don't move around a lot, you do tend to stay with the same doctor," Hofmann says.

The care can also be different. Her patients with cerebral palsy, for instance, have neurological issues from birth that may require supportive technologies such as feeding tubes or ventilators, technologies that when used on adults are often not to prolong life but rather in the face of a traumatic accident or a life-ending illness. And who would a patient with cerebral palsy, caused by brain damage that occurred before birth or during a child's first three to five years, see? Hofmann asks.

For those without major issues, though — a college student or graduate about to embark on working life — the transition can be abrupt, sometimes precipitated by a "Sorry, you've aged out" response when they call to make an appointment or by a sign in the waiting room.

Debra Blau Reicher, a school psychologist, says she continued to consult her childhood pediatrician about her health issues well after she began taking her daughter to see him. If her daughter had strep, the pediatrician would do a throat culture on Reicher as well.

"He would see me in his waiting room so he wouldn't have to charge me," she said. "But then one day he had a sign up," she recalls, saying "I can no longer see parents."

She was 30 when the sign was posted.

There are better ways than posting a sign for transitioning patients who need to move on, says Jonathan Trager, a pediatrician in Great Neck, N.Y., whose practice includes adolescent medicine.

"Throughout the teen years into the college years, you let your patients know that you are happy to see them as long as they are comfortable," says Trager, who sees patients until age 30. When a patient is ready to switch to an internist, or is dealing with issues that may require an internist, Trager and the patient will make that transition decision together, he says. It should be a change that they gear up for over the years, he adds.

A pediatrician, Trager says, is the ideal person to guide the young patient through that transition into adult medical care.

"They know the patient," he says. "They know the family, and they're well equipped to handle issues of someone they have been seeing for a long time. Young adults are often extended adolescents. They still could benefit from seeing the pediatrician who knows them well."

For older pediatric patients, it's not the doctor so much as the waiting room, usually geared toward toddlers and young patients, that starts to feel awkward. "While the doctor may be equipped to see them medically and know them well, the patient may feel out of place and doesn't want to come," Trager says.

Jake Ambrosio, 21, is one of those patients. He has been seeing his pediatrician since he was born but has outgrown the office.

"There's a lot of babies in the waiting room, and also all of the rooms have a theme. I'll be getting a checkup and there'll be like, the Candy Land room, this light pink room with these little candies all around, and I'm like, 'Yeah, I think I'm ready to be in just a normal doctor's office.' "

So why has he stayed with his pediatrician this long?

"I like her. And it's a lot of work finding a real doctor. It's just easier to stay," he says. "But I know I have to stop going to the pediatrician eventually. I just feel like since I'm 21, it's time for me to find an adult doctor. Even though I do really like my pediatrician. It's part of growing up, I guess."