Mealey's Personal Injury : Mealey's : Legal News & Analysis

Mealey's Personal Injury

June 15, 2023
Veteran Asks Supreme Court To Decide Class Cert Dispute In Plutonium Exposure Case

WASHINGTON, D.C. — A veteran who alleges that his leukopenia was caused by exposure to radioactive plutonium while he was serving in the Air Force in the mid-1960s filed a reply brief in the U.S. Supreme Court arguing that his petition should be granted so the justices can correct an error by the Federal Circuit U.S. Court of Appeals when it held that the Veterans Court lacked the jurisdiction to certify in a single class veterans with both exhausted and unexhausted claims.
June 14, 2023
Death, Injury Suit Over Washout On Reservation Correctly Dismissed, Panel Says

ST. PAUL, Minn. — A North Dakota federal court lacked jurisdiction under the discretionary function exception of the Federal Tort Claims Act (FTCA) to hear a suit filed against the United States for the deaths of two people and injuries to two others after a road culvert on an Indian reservation was washed away in heavy rains and they unknowingly drove off the road and into the floodwaters below, the Eighth Circuit U.S. Court of Appeals held in affirming dismissal of the action.
June 14, 2023
Judge Releases Reasoning For Causation Expert Exclusion In Therapy Device Case

TAMPA, Fla. — A Florida federal judge released an order to explain his earlier ruling that an expert retained by a man who alleged that an electro-convulsive therapy (ECT) device caused permanent neurological injury is inadmissible, days after a jury entered a verdict finding that the manufacturer’s inadequate instruction was not a proximate cause of damage.
June 13, 2023
Florida Panel: Tribe Not Shown To Have Waived Immunity From COVID-Related Tort Claim

WEST PALM BEACH, Fla. — A Florida appellate court granted the Seminole Tribe’s petition to prohibit a trial court from proceeding with a negligence claim brought by a patron who said he contracted COVID-19 at the tribe’s casino, finding that the patron failed to demonstrate that the tribe waived sovereign immunity because the patron failed to follow the pre-suit procedures laid out in the compact in which the tribe waived its sovereign immunity for tort claims committed at its gaming facilities.
June 13, 2023
Class Certified In Case Accusing JP Morgan Of Facilitating Epstein Sex Crimes

NEW YORK — A class of women allegedly abused or trafficked by Jeffrey Epstein was certified by a federal judge in New York on June 12 in a case accusing JPMorgan Chase Bank N.A. (JPMC) of being liable for facilitating those crimes by maintaining Epstein’s accounts.
June 13, 2023
Texas Panel Says Record Lacks Evidence Showing Agency In Care Home Arbitration Row

DALLAS — A Texas appellate court reversed and remanded a lower court order compelling arbitration in a wrongful death suit filed against a nursing home by a deceased former resident’s husband, finding that though the husband signed an arbitration agreement stating that he was acting as his wife’s agent, there is no evidence showing the existence of an agency relationship.
June 12, 2023
Virgin Islands Judge Dismisses Tobacco Company From Smoker’s Lawsuit

CHRISTIANSTED, St. Croix — A U.S. Virgin Islands judge dismissed one tobacco company from a smoker’s pending lawsuit against it, another tobacco company, a wholesaler and two retailers for selling him cigarettes that caused him to develop bladder cancer and heart disease, two weeks after denying the wholesaler’s motion for summary judgment.
June 12, 2023
Dead Smoker Claimed ‘Right’ To Smoke Despite Risks, Tobacco Company Tells Jurors

TAMPA, Fla. — An attorney for a tobacco company told a Florida state court jury during opening arguments that it should reject claims brought in an Engle trial by the three children of a smoker who died at 46 from lung cancer, arguing that the smoker ignored advice to quit and said she had a “right” to smoke, while her adult children’s attorney says the smoker was deceived into smoking filtered cigarettes. VIDEO FROM THE TRIAL IS AVAILABLE.
June 09, 2023
Punitive Damages, Post-Trial Motions Briefed After $20M Asbestos Verdict

BRIDGEPORT, Conn. — A plaintiff awarded $20 million in an asbestos action urged a Connecticut judge in a June 8 reply to impose $40 million in punitive damages and said a successor talc company can be held liable because after it purchased its predecessor, it continued with the same reckless conduct.
June 09, 2023
Majority Affirms Ruling In Favor Of Golf Club, Insurer In Premises Liability Suit

GRETNA, La. — A majority of a Louisiana appeals court panel affirmed a lower court’s summary judgment ruling in favor of a golf club and its insurer in a premises liability lawsuit brought by a guest of the golf club, finding that the guest failed to submit any evidence or expert testimony to demonstrate that the alleged uneven surface of the golf club’s parking lot combined with a purported lack of lighting was unreasonably dangerous.
June 09, 2023
Assault Victims Deny Circuit Split Exists In Title IX Statute Of Limitations Cases

WASHINGTON, D.C. — Sexual assault victims who sued an Ohio university based on the conduct of a university employee that occurred more than 20 years before the victims filed suit tell the U.S. Supreme Court that the Sixth Circuit U.S. Court of Appeals correctly ruled that the cases were not barred by the applicable statute of limitations and that no circuit split existed on the proper interpretation as to when a Title IX claim accrues that warrants review by the court.
June 08, 2023
Judge: Expert Allowed In Case Alleging Injuries From Exploding Candle

CHATTANOOGA, Tenn. — Testimony from an expert retained from a woman who alleges that she was injured by a defective candle is relevant and reliable, a Tennessee federal judge ruled June 7 in denying Walmart’s motion to exclude the testimony.
June 08, 2023
Split Supreme Court Says FNHRA Grants Private Rights For Nursing Home Residents

WASHINGTON, D.C. — A split U.S. Supreme Court on June 8 ruled that the Federal Nursing Home Reform Act (FNHRA) confers a private right of action to nursing home residents, finding that there is no incompatibility between enforcement of civil rights claims under Section 1983 and the right to be free from chemical restraints under the FNHRA.
June 06, 2023
Widow, Tobacco Companies Answer Smoker’s Kids’ Claims Before Florida Supreme Court

TALLAHASSEE, Fla. — The widow of a smoker filed a jurisdictional brief in Florida Supreme Court opposing an appellate panel’s ruling dismissing the smoker’s children’s claims for damages as part of the wrongful death lawsuit she filed as personal representative of the smoker’s estate, while the two tobacco companies she sued in a brief filed the same day write that the panel decision dismissing the children’s claim for damages was nonfinal and unappealable.
June 06, 2023
Panel Reverses Dismissal Of Insurer’s Coverage Suit Over Spa’s Alleged Negligence

ATLANTA — A Georgia appeals panel on June 5 concluded that a lower court erred in dismissing an insurer’s declaratory judgment lawsuit disputing coverage for an underlying action alleging that a spa insured’s employee injured a customer during a Brazilian bikini wax, finding that, based on the underlying allegations, it is possible that the insurer could show that the insured violated the relevant statutes and regulations as to esthetician licensing.
June 06, 2023
Ford Says Expert, Settlements Warrant Directed Verdict, Amended Judgment

GREENSBORO, N.C. — A woman essentially concedes that her expert’s opinion was based on nothing more than his belief that asbestos friction products were dangerous unless proven otherwise, and settlements more than offset the jury’s entire $275,000 award and any fees, Ford Motor Co. argues in reply briefs in support of motions to amend the judgment and for directed verdict.
June 06, 2023
Missouri Jury Awards $9.7M For 39-Year-Old Woman’s Household Asbestos Exposures

ST. LOUIS — A Missouri jury awarded a widower and an estate $9.7 million for a woman’s take-home exposure to asbestos and resulting death from mesothelioma after the judge in the case said the plaintiff was entitled to sanctions for discovery violations.
June 05, 2023
Medical Malpractice Award OK’d By Ga. Appeals Court, Expert Testimony Permissible

ATLANTA — A Georgia appeals court affirmed an $8.5 million verdict in favor of a man suing for medical malpractice related to the death of his wife after finding that the medical professionals “have not met their burden of showing that the trial court abused its broad discretion in admitting” expert testimony.
June 02, 2023
Panel Remands For Malpractice Determination In Negligence Suit Against Care Home

NEW ORLEANS — A Louisiana appellate court affirmed in part, vacated in part and remanded a negligence suit filed on behalf of a deceased former resident against the nursing home where she lived, finding that while the trial court correctly determined the alleged failure to provide medical care after the decedent fell constituted medical malpractice allegations that were premature absent a medical panel review, the court is unable to determine whether the decedent’s “fall occurred within the course of medical treatment.”
June 01, 2023
Panel Vacates Half Of $20M Judgment Against RJR For Smoker’s Cancer Death

BOSTON — A Massachusetts appellate court vacated a jury’s $11,275,000 punitive damages award against R.J. Reynolds Tobacco Co. (RJR) from a $21 million judgment against it for causing a smoker’s addiction to cigarettes and death from cancer and remanded the case for a new trial after finding that the trial court should have entered a directed verdict on the estate’s negligent marketing claim.
May 31, 2023
Seattle Jury Issues Verdict For Nursing Home In Negligence Suit Over COVID Deaths

SEATTLE — A Washington federal court jury issued a verdict in favor of a nursing home sued by two estates representing decedents who died in 2020 after contracting COVID-19 at the facility, finding that while the nursing home acted negligently regarding its care of one of the decedents, neither estate representative proved that its negligence caused injuries to the estate representatives or decedents.
May 30, 2023
Expert Cannot Testify On Who Was Driving Personal Watercraft At Time Of Accident

BIRMINGHAM, Ala. — An expert retained by the estate of a woman who was killed in a personal watercraft accident cannot testify as to who was driving because his testimony is unreliable under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals Inc., an Alabama federal judge ruled May 27.
May 26, 2023
Michigan Panel Remands Medical Malpractice Suit For Testimony Exclusion Error

DETROIT — Michigan evidentiary law requires a trial court to filter out expert testimony that is unreliable, not to determine if the testimony is “unassailable,” a state appeals court held May 25, reversing an award of summary judgment in favor of a hospital and its employees in a medical malpractice suit.
May 23, 2023
Denial Of Care Home’s Motion To Compel Arbitration Affirmed Absent POA Signature

FRANKFORT, Ky. — A Kentucky appeals court affirmed a lower court order denying a nursing home’s motion to compel arbitration in an executor’s negligence and wrongful death suit filed against it on behalf of a deceased former resident, finding that the home failed to establish the arbitration agreement’s validity because it was signed by the decedent’s spouse in her capacity as his wife rather than power of attorney (POA) and was not a condition for admission.
May 23, 2023
Texas Supreme Court Affirms Jurisdiction Over Battery Maker In Exploding Vape Case

AUSTIN, Texas — The Texas Supreme Court affirmed a trial court’s finding of personal jurisdiction over a Korean battery-maker and its U.S. subsidiary in a personal injury lawsuit brought against them by a man who was burned after a battery they manufactured exploded in his e-cigarette device, rejecting their defense that they did not intend for their batteries to be sold for standalone use in e-cigarettes.