Mealey's Personal Injury

  • May 14, 2021

    4 More Nursing Home COVID-19 Suits Remanded To State Courts

    Federal judges in California, New York and Florida recently joined the growing number of their colleagues in remanding COVID-19-related negligence, wrongful death, elder neglect and nursing home residents rights suits against long-term care facilities to state court, finding no federal jurisdiction under the Public Readiness and Emergency Preparedness (PREP) Act.

  • May 13, 2021

    9th Circuit Asked To Overturn Garcia Dismissal, Find PREP Act Doesn’t Apply

    SAN FRANCISCO — Saying that a federal judge in California’s ruling that the Public Readiness and Emergency Preparedness (PREP) Act completely preempts state law claims and immunizes a senior living facility from liability in the COVID-19-related death of a resident “is the only one among more than 25 similar district court cases around the country to misconstrue the PREP Act in this manner,” the resident’s family in a May 11 appellant brief asks the Ninth Circuit U.S. Court of Appeals to reverse the dismissal and remand their suit, arguing that the act is not a complete preemption statute because it does not provide an exclusive federal cause of action for their claims.

  • May 13, 2021

    Slip-And-Fall Case Moves Forward After Federal Judge Denies Motion To Exclude

    FORT MYERS, Fla. — Efforts by Walmart to exclude an expert witness in a slip-and-fall case failed May 3 after a Florida federal judge found that a man’s treating physician is a nonretained expert and meets the admissibility standard set in Daubert v. Merrell Dow Pharmaceuticals Inc.

  • May 13, 2021

    Federal Judge Opens Testimony For Automatic Door Expert In Injury Case

    NEW ORLEANS — A federal judge in Louisiana on April 30 denied two motions to exclude an expert witness on automatic doors retained by a woman who alleges that a malfunctioning door at a Lowe’s store caused serious injuries.

  • May 13, 2021

    9th Circuit Asked To Overturn Garcia Dismissal, Find PREP Act Doesn’t Apply

    SAN FRANCISCO — Saying that a federal judge in California’s ruling that the Public Readiness and Emergency Preparedness (PREP) Act completely preempts state law claims and immunizes a senior living facility from liability in the COVID-19-related death of a resident “is the only one among more than 25 similar district court cases around the country to misconstrue the PREP Act in this manner,” the resident’s family in a May 11 appellant brief asks the Ninth Circuit U.S. Court of Appeals to reverse the dismissal and remand their suit, arguing that the act is not a complete preemption statute because it does not provide an exclusive federal cause of action for their claims.

  • May 12, 2021

    1 Expert May Testify, Other Excluded On Reliability Grounds, Judge Rules

    TAMPA, Fla. — Proposed testimony from dueling expert witnesses on whether a woman’s motorcycle helmet came off during a crash met different fates on May 7 when a Florida federal judge ruled that the woman’s expert did not use reliable methodology when concluding that her helmet fell off during the crash but that the defendants’ expert met the reliability standard set under Daubert v. Merrell Dow Pharmaceuticals Inc.

  • May 10, 2021

    Michigan Appeals Court Affirms Expert Witness Did Not Establish Causation

    TROY, Mich. — The Michigan Court of Appeals on May 6 affirmed summary judgment for a doctor in a medical malpractice lawsuit, agreeing with the trial court that the expert witness offered by a woman claiming an injury during a surgery failed to establish that his standard of care testimony was based on reliable methods.

  • May 10, 2021

    City, Police Lose Bid To Exclude Dog Handling Experts In Bite Case

    INDIANAPOLIS — Experts on dog handling can testify in a suit in which a man accuses a city police force of violating his rights after he was attacked by a police dog, a Indiana federal magistrate judge ruled April 20 after finding that the two experts meet the relevance and reliability standards set in Daubert v. Merrell Dow Pharmaceuticals Inc.

  • May 06, 2021

    Nursing Home Defendants Appeal Remand Of COVID Negligence Suit To 5th Circuit

    FORT WORTH, Texas —  The owners and operators of a nursing home on May 5 informed a federal district court that they are appealing to the Fifth Circuit U.S. Court of Appeals the court’s April 5 opinion and order remanding a COVID-19-related negligence suit against them to Texas state court.

  • May 06, 2021

    Finding No Health Care Liability Claim, Split Texas Court Vacates Dismissal

    DALLAS — A negligence action arising from the death of an assisted living facility resident who was injured in a fall while a facility employee pushed her along a public sidewalk sounds in premises liability and does not constitute a health care liability claim (HCLC) under the Texas Medical Liability Act (TMLA), the Fifth District Texas Court of Appeals ruled May 3 in a split en banc decision, vacating the trial court’s judgment dismissing the claims pursuant to the TMLA and remanding for further proceedings.

  • May 05, 2021

    Panel Affirms Lack Of Agreement To Arbitrate Claims Against Assisted Living Facility

    SACRAMENTO, Calif. — A trial court did not use “improper legal criteria” to conclude that the son of an assisted living facility resident was required to have a power of attorney for health care to sign an arbitration agreement on his mother’s behalf, a California appellate panel ruled April 28 in affirming the lower court’s denial of the facility’s petition to compel arbitration of an elder abuse and wrongful death suit against it.

  • May 04, 2021

    Settlement Notice Filed In COVID-19 Outbreak Suit Against Cruise Line

    MIAMI — The parties in a putative class complaint accusing Celebrity Cruises Inc. of failing to protect passengers from a March 2020 outbreak of COVID-19 on a ship traveling in South America filed a notice of settlement in a federal court in Florida on May 3.

  • May 03, 2021

    9th Circuit To Decide Government, Nursing Home Relationship In COVID-19 Death Suit

    SAN FRANCISCO — The family of a man who died in a nursing home after contracting COVID-19 argues to the Ninth Circuit U.S. Court of Appeals in an April 28 brief that a lower federal court properly remanded its wrongful death suit against a nursing home to a state court because the facility was not performing federal governmental functions.  The nursing home says in its appeal that the federal government and nursing homes have a special relationship in light of the national public health emergency.

  • April 30, 2021

    Texas Magistrate Allows Expert Testimony In Dispute Over Injuries In Car Crash

    AUSTIN, Texas — A federal magistrate judge in Texas on April 29 denied a motion to exclude expert witnesses filed by a man alleging injuries in a car crash, finding that both experts are qualified under Daubert v. Merrell Dow Pharmaceuticals Inc.

  • April 30, 2021

    Journalists’ TRO Request Granted In Minneapolis Police Treatment Suit

    MINNEAPOLIS — A federal judge in Minnesota on April 16 granted a motion for a temporary restraining order (TRO) filed by journalists who brought a putative class complaint against the city of Minneapolis and police officials over their treatment while covering protests in 2020 following the death of George Floyd and now allege mistreatment while covering protests following the police killing of another Black man, Daunte Wright, on April 11.

  • April 29, 2021

    Judge Denies Transfer, Grants Remand In COVID-19 Death, Says PREP Act Doesn’t Apply

    LOS ANGELES — Ruling that the Public Readiness and Emergency Preparedness (PREP) Act doesn’t apply to claims asserted in a residential care facility COVID-19 death case, a California federal judge on April 16 found a lack of federal jurisdiction, denied transfer to the U.S. District Court for the District of Columbia and granted remand to state court.

  • April 27, 2021

    COVID-19 Wrongful Death Case In Which U.S. Filed Statement Of Interest Is Remanded

    NASHVILLE, Tenn. — A Tennessee federal judge on April 21 remanded a COVID-19-related wrongful death case in which the United States filed a statement of interest regarding the preemptive effect of the Public Readiness and Emergency Preparedness (PREP) Act, holding — as all other district courts but one have on similar claims against facilities such as nursing homes — that the act does not completely preempt state law claims and, therefore, there is no federal jurisdiction.

  • April 26, 2021

    In Federal Suit, Pueblo Says It Has Jurisdiction Over Casino Slip-And-Fall Case

    ALBUQUERQUE, N.M. — A casino patron’s slip-and-fall personal injury suit against a New Mexico Indian tribe belongs in tribal court, not state court, under federal law and the tribe’s gaming compact with the state, the tribe says in an April 23 federal complaint seeking a declaration that a state court erred in finding that it has jurisdiction to hear the dispute.

  • April 26, 2021

    U.S. Supreme Court Won’t Hear Appeal Of WWE Concussion Suits

    WASHINGTON, D.C. — The U.S. Supreme Court on April 26 denied a petition for a writ of certiorari filed by former World Wrestling Entertainment Inc. (WWE) wrestlers after the Second Circuit U.S. Court of Appeals ruled that it lacked appellate jurisdiction over consolidated appeals of cases concerning head injuries, some of which were putative class actions.

  • April 26, 2021

    Expert Witness On Forklift Safety Design Properly Excluded, 10th Circuit Says

    DENVER — The 10th Circuit U.S. Court of Appeals on April 22 ruled that a lower court did not abuse its discretion in excluding an expert witness retained by a man who was injured while operating a forklift, affirming summary judgment for the manufacturer.