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

Mealey's Personal Injury

February 22, 2024
Medical Condition Not Widely Recognized, Testimony Barred In Toxic Exposure Case

SAN JOSE, Calif. — A California federal judge granted in large part three motions to exclude expert testimony in a case in which a woman claims medical injuries from toxic mold exposure, finding that one expert was unqualified to opine on a medical condition and that the testimony from the other witnesses was connected to that expert’s conclusions.
February 21, 2024
New York Panel: Equitable Subrogation Applies In Retrocessional Insurer’s Case

NEW YORK — Saying it had not previously addressed the issue, an appellate panel in New York ruled that a retrocessional insurer that paid a big chunk of the settlement in a personal injury case has standing to assert a legal malpractice claim as an equitable subrogee.
February 21, 2024
Tenn. High Court: Arbitration Agreement With Care Home Not ‘Health Care Decision’

NASHVILLE, Tenn. — The Tennessee Supreme Court reversed and remanded an appellate court ruling affirming an order declining to compel arbitration in a son’s wrongful death suit against a nursing home where his deceased father lived, finding that the durable power of attorney (POA) naming the decedent’s daughter as his attorney-in-fact gave her the authority to act for her father in legal matters, including an optional arbitration agreement, even though the POA did not specifically give her the authority to make a “health care decision.”
February 20, 2024
Petition By Wrestlers’ Attorney Challenging Sanctions Denied By U.S. High Court

WASHINGTON, D.C. — The U.S. Supreme Court on Feb. 20 denied a petition for a writ of certiorari filed by an attorney and his firm who represent allegedly injured wrestlers in a class tort complaint and a mass action against World Wrestling Entertainment Inc. and Vincent K. McMahon (together, WWE) and asking the justices to consider the appropriateness of attorney fees and costs as sanctions that they have been ordered to pay.
February 16, 2024
No Abuse Of Discretion In Finding Experts Unqualified In Railcar Injury Case

PORTLAND, Ore. — The Ninth Circuit U.S. Court of Appeals on Feb. 15 found that experts retained by a man who was injured while working on a railcar were properly excluded and affirmed summary judgment awarded to the manufacturer of the railcar and its parent company.
February 14, 2024
Panel: Wrongful Death Claim Not Subject To Arbitration In Suit Against Care Home

SPRINGFIELD, Ill. — An Illinois appellate court on Feb. 13 reversed and remanded a lower court order compelling arbitration in a wrongful death and negligence suit filed by the estate of a former resident against a nursing home, finding that because the decedent signed an arbitration agreement, the wrongful death claim is not subject to arbitration and the Illinois Nursing Home Care Act invalidates the signed agreement.
February 13, 2024
Amended Master Personal Injury Complaint Filed Under Seal In CPAP MDL

PITTSBURGH — Plaintiffs in the multidistrict litigation involving the recall of approximately 10.8 million Philips continuous positive air pressure (CPAP) sleep apnea devices and respirators on Feb. 12 filed under seal a second amended master long-form complaint for personal injuries after the Pennsylvania federal judge overseeing the case in January adopted in part recommendations from the special master and dismissed certain claims with leave to amend.
February 13, 2024
Panel Vacates Order Dismissing Nursing Home Act Claims In Row With LTC Facility

TRENTON, N.J. — A New Jersey appellate court on Feb. 12 vacated a lower court’s dismissal of claims related to violations of the New Jersey Nursing Home Responsibilities and Residents’ Rights Act (NHA) in an estate’s wrongful death and negligence suit against a long-term care (LTC) facility after a former resident died, finding that additional discovery is needed to determine whether the facility “falls within the definition of the NHA.”
February 13, 2024
Alabama Jury Awards $4.5M For Excessive Force By Police In Post-Chase Shooting

BIRMINGHAM, Ala. — A federal jury in Alabama awarded $4.45 million in compensatory and punitive damages to the estate of a deceased motorist and an injured passenger, who sued a Birmingham police officer and the city alleging that the officer used excessive force in shooting the motorist and passenger after their vehicle crashed as a result of being struck by the officer’s car during a pursuit.
February 12, 2024
Order Compelling Arbitration Reversed For COVID Death Claims Against Care Home

SPRINGFIELD, Ill. — An Illinois appellate court reversed in part and remanded a lower court’s order compelling arbitration in an estate administrator’s suit against a nursing home after a former resident contracted COVID-19 and died, finding that the claims under the Illinois Wrongful Death Act cannot be arbitrated because the beneficiaries of the estate did not consent to arbitration.
February 12, 2024
11th Circuit Tosses Insurer’s Appeal In Direct Action Suit For Lack of Jurisdiction

ATLANTA — The 11th Circuit U.S. Court of Appeals held that it lacks jurisdiction over an insurer’s appeal of a lower court’s contrary ruling in a direct action lawsuit arising from gunshot injuries, finding that the lower court’s order on dueling summary judgment motions is not final or immediately appealable because it is silent as to an award of any prejudgment interest.
February 09, 2024
U.S. Government Appeals 5th Circuit Ruling Invalidating Ghost Gun Regulation

WASHINGTON, D.C. — The U.S. government filed a petition for a writ of certiorari in the U.S. Supreme Court, arguing that the Fifth Circuit U.S. Court of Appeals erred in affirming a Texas federal court decision finding unlawful a rule promulgated by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) that broadened the definition of “firearm” to include parts of “ghost guns,” which can be assembled into weapons but, before the rule, were considered by some manufacturers to not require serial numbers or a firearms background check before sale.
February 09, 2024
No Exception To Expert Report Service Requirement, Texas Appeals Court Says

EASTLAND, Texas — A woman’s failure to properly serve a copy of her experts’ reports on the defendants in her medical malpractice suit as required under the Texas Medical Liability Act (TMLA) warrants the dismissal of her case, a Texas state appeals court ruled Feb. 8 in reversing a trial court.
February 08, 2024
Panel Deems Arbitration Agreement Unenforceable In Nursing Home Neglect Suit

LITTLE ROCK, Ark. — An Arkansas appellate court on Feb. 7 affirmed a lower court order denying a nursing home’s motion to compel arbitration in a medical negligence suit against it by the estate of a woman who died after sustaining injuries at the nursing home, finding that the lower court correctly held that the arbitration agreement lacked “mutuality of contract” because the facility could sue for unpaid fees in court while claims for medical negligence are subject to arbitration.
February 08, 2024
No Abuse Of Discretion In Excluding Expert In Crash Case, 2nd Circuit Rules

NEW YORK — The Second Circuit U.S. Court of Appeals on Feb. 7 affirmed the dismissal of a man’s claim for negligence against United Parcel Service Inc. and one of its employees after a jury returned a defense verdict, finding no error in the court’s decision to exclude an expert witness.
February 06, 2024
Expert On Forklift Safety Design Excluded; Manufacturer Wins Summary Judgment

KANSAS CITY, Kan. — A Kansas federal judge granted summary judgment to a forklift manufacturer in a personal injury suit after finding that the expert retained by the injured man failed to provide reliable alternative designs that would have prevented the accident.
February 06, 2024
9th Circuit Panel Rules PREP Act Immunity Extends To State Vaccine Prioritization

SAN FRANCISCO — A panel of the Ninth Circuit U.S. Court of Appeals in related appeals reversed an Oregon federal court decision denying the motions to dismiss of Oregon’s governor and other state officials in a class action by prison inmates seeking damages for alleged constitutional violations resulting from the officials’ decision to prioritize COVID-19 vaccination for prison workers over the inmates.
February 05, 2024
Online Marketplace Operator Not Liable For Users’ Murder, 10th Circuit Finds

DENVER — The operator of the Letgo online marketplace platform is not liable for the murder of a Colorado couple at the hands of a purported seller they met through the website, a 10th Circuit U.S. Court of Appeals panel ruled, affirming a trial court’s finding that Letgo did not act negligently or cause the couple’s murder.
February 02, 2024
Judge: Expert Out In Use Of Force Case, Testimony Unreliable And Prejudicial

ORLANDO, Fla. — Allowing a correctional expert retained by defendants in an excessive force case “to testify will infuse the trial with prejudice,” a Florida federal judge ruled, finding that the expert’s testimony is unreliable and unhelpful.
February 02, 2024
University Must Provide Past Incident Info To Student Claiming Sexual Assault

HUNTINGTON, W.Va. — Police reports, communications and other information about previously reported incidents of off-campus sexual assaults and harassment are relevant to a university student’s claims of sexual discrimination over the school’s response to her claimed assault, a West Virginia federal magistrate judge found, ordering Marshall University to supplement its discovery responses.
February 02, 2024
Judge Says Experts Admissible Under Rule 403 But Orders Briefing Under Daubert

WEST PALM BEACH, Fla. — A Florida federal judge said experts in a personal injury suit opining on whether injuries from an accident caused a woman to fail an exam should not be excluded under Federal Rule of Evidence 403 but ordered that a new motion be filed before trial addressing whether the testimony is admissible under Daubert v. Merrell Dow Pharmaceuticals Inc.
February 02, 2024
Massachusetts Panel Vacates Judgment For Rehab Facility In Wrongful Death Suit

BOSTON — A Massachusetts appeals court on Feb. 1 vacated a lower court’s judgment for a rehabilitation facility and reversed the lower court’s order allowing the facility’s motion for judgment notwithstanding the jury verdict and granting a new trial in a wrongful death suit, finding that the lower court incorrectly determined “that the erroneous admission” of the issuance of a statement of deficiency against the facility was prejudicial without determining whether the admission merited a new trial.
February 01, 2024
Flint Plaintiffs Seek Final Approval Of $8M Settlement With 3 Engineering Firms

ANN ARBOR, Mich. — The plaintiffs in the Flint water crisis litigation have filed a brief in Michigan federal court seeking final approval of an $8 million class settlement with three firms that provided engineering and consulting services to the city of Flint in its decision to switch its water supply to the Flint River, a move that precipitated the lead contamination of the city’s drinking water.
January 31, 2024
HIV Expert Excluded In Cruise Ship Infection Case, Florida Federal Judge Rules

MIAMI — An HIV expert retained by a cruise company is barred from testifying in a suit brought by a woman who alleges that she contracted the virus during an emergency blood transfusion while aboard the vessel, a Florida federal judge ruled.
January 29, 2024
Pa. Jury Awards $2.25B To Man With Cancer In Roundup Trial Against Monsanto

PHILADELPHIA — A jury in Pennsylvania state court on Jan. 26 awarded $2.25 billion in combined damages to a man who said exposure to Monsanto Co.’s herbicide Roundup caused his cancer.