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

Mealey's Personal Injury

January 26, 2024
Wrongful Death Suit Over Deadly Alligator Filed Against Florida 55-Plus Community

FORT PIERCE, Fla. — The personal representative of the estate of a resident of a Florida retirement community on Jan. 25 filed a wrongful death suit against the company operating the community in a Florida state court, asserting that the woman’s death from an alligator attack near her home resulted from the company’s negligence in failing to warn of the danger caused by alligators or to remove them.
January 24, 2024
Appeals Court: No Error In Medical Expert Exclusion In Nursing Home Care Case

CINCINNATI — The Sixth Circuit U.S. Court of Appeals said it’s “not a close call” that an expert retained to testify in medical malpractice suit against a nursing home failed to establish a “familiarity with the standard of medical care in Memphis” and found no error in a district court excluding his testimony.
January 23, 2024
1st Circuit: Expert Did Not Opine On Standard Of Care, Was Properly Excluded

BOSTON — After finding that an expert retained by the children of a woman who died after a surgery was properly excluded, the First Circuit U.S. Court of Appeals affirmed a summary judgment grant to a group of doctors and a hospital in Puerto Rico in a negligence case.
January 23, 2024
Louisiana Federal Judge Allows Safety Expert’s Testimony In Maritime Injury Suit

NEW ORLEANS — A Louisiana federal judge denied a motion to exclude a maritime safety expert retained by a man who alleges that he was injured while disembarking from a dredging vessel, finding that the testimony is admissible under Federal Rule of Evidence 702.
January 22, 2024
Part Of Expert Testimony Improperly Excluded But Court Finds No Reversible Error

LOS ANGELES — A trial court erred in excluding portions of an expert’s testimony for a woman who says she was injured in a slip-and-fall inside a Panda Express restaurant, but that error was harmless, a California appeals court said Jan. 19 in affirming summary judgment for the restaurant.
January 19, 2024
Federal Magistrate: Trucking Expert Can Testify To Cause Of Multivehicle Crash

PENDLETON, Ore. — An expert retained by a man injured in car accident involving multiple vehicles is not required to consider every piece of evidence in formulating his opinions, and his failure to so does not render his testimony unreliable under Federal Rule of Evidence 702, a federal magistrate judge in Oregon ruled in denying a motion to exclude filed by two other drivers.
January 19, 2024
Prison Officials Seek High Court Review Of COVID-Related Qualified Immunity Rulings

WASHINGTON, D.C. — California corrections officials have filed a petition for a writ of certiorari with the U.S. Supreme Court, seeking review of four panel opinions from the Ninth Circuit U.S. Court of Appeals affirming lower federal court decisions denying the officials qualified immunity for their conduct in responding to the COVID-19 pandemic after 26 inmates and a prison employee died from COVID-19.
January 19, 2024
Settlement Reached In Class Alleging Injuries From Ankle Monitoring Device

DENVER — A man seeking to represent a class of individuals who allege that they were injured by an alcohol tracking ankle monitor and the device’s manufacturer notified a Colorado federal court that the parties have reached a confidential settlement to resolve all claims.
January 17, 2024
High Court Told ‘Chaos’ Will Ensue ‘In A World Without Chevron’ Deference

WASHINGTON, D.C. — The U.S. Supreme Court was told Jan. 17 that “chaos” will ensue “in a world without Chevron” deference by government attorneys, who urged it to apply stare decisis and uphold Chevron, which is being challenged in two cases arising out of federal fishing regulations.
January 18, 2024
Judge Says Flint Trial Against Engineering Firm Will Consider Nonparties At Fault

ANN ARBOR, Mich. — A federal judge in Michigan has denied a request by plaintiffs in the Flint water crisis litigation and ruled that a forthcoming trial against an engineering firm that was involved in switching the city’s water supply will consider the issue of nonparties at fault, such as the state and city officials who participated in that decision.
January 17, 2024
N.Y. Panel Affirms Order Denying Judgment In Row Over Wrongful Hospice Admission

NEW YORK — A New York state appellate court affirmed a lower court’s order denying a medical practice, hospital and physician’s summary judgment motion in a medical malpractice suit related to a man’s purported wrongful admission into hospice for stage IV pancreatic cancer when he actually did not have pancreatic cancer, finding that the hospital and related parties failed to show that they did not depart from accepted standards of care or that any purported departure did not cause the man’s injuries.
January 17, 2024
New Mexico Supreme Court: State Courts Lack Jurisdiction To Hear Casino Tort Cases

SANTA FE, N.M. — Two previous federal court opinions triggered a termination clause within New Mexico’s tribal gaming compact regarding waiver of sovereign immunity because the opinions held that jurisdictional shifting of tort claims that arose at tribal casinos from tribal to state court is not authorized by the Indian Gaming Regulatory Act (IGRA), the New Mexico Supreme Court found Jan. 16 in holding that the state’s courts lacked jurisdiction to hear a tort casing brought against the Pueblo of Pojoaque for injuries suffered by a worker at the tribe’s casino.
January 11, 2024
California Judge Won’t Tax Some Asbestos Costs, Lets Juror Prejudice Ruling Stand

LOS ANGELES — A California judge said he already largely discounted a juror’s declaration before finding that there was no prejudice from comments made during deliberation in an asbestos case and that he would deny reconsideration, while in a second ruling said a prevailing party is entitled to expert fees are available even when an expert doesn’t testify.
January 11, 2024
Wrestlers’ Attorney Petitions High Court After Sanctions In CTE Class, Mass Cases

WASHINGTON, D.C. — 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) filed a petition for a writ of certiorari in the U.S. Supreme Court asking the justices to consider the appropriateness of attorney fees and costs as sanctions that they have been ordered to pay.
January 09, 2024
Magistrate Partially Grants Motions To Exclude Expert Testimony In Crash Case

AUSTIN, Texas — A federal magistrate judge in Texas agreed to limit the testimony presented by two experts retained by a man suing the federal government for injuries he sustained in a car crash with a federal employee.
January 09, 2024
Ohio Panel Affirms Judgment For Care Home, Says Assisting Patient Is Medical Claim

CLEVELAND — An Ohio appellate court affirmed a lower court’s grant of summary judgment to a skilled nursing facility and related entities in a breach of contract and negligence suit filed against them after a former resident fell and sustained leg and ankle fractures, finding the lower court’s decision correct because the fall, which occurred when aides were helping the resident move from a commode to her wheelchair, constituted a medical claim in the complaint that was filed after the applicable statute of limitations.
January 05, 2024
Causation Experts Out In Suit Alleging Defect Caused Accidental Pistol Discharge

FRANKFORT, Ky. — A Kentucky federal judge on Jan. 4 granted summary judgment to a gun manufacturer after finding the two causation experts retained by a man who alleges that a defective firearm accidentally fired and struck his leg to be inadmissible under Daubert v. Merrell Dow Pharmaceuticals Inc.
January 05, 2024
Expert OK’d In Slip-And-Fall Suit Against Walmart; Rebuttal Witness Excluded

FORT MYERS, Fla. — An expert retained by a man who alleges that he slipped and fell in a Walmart store parking lot based his opinions on a reliable methodology and his conclusions will be helpful to a jury, a Florida federal judge ruled, but also found that the rebuttal witness hired by the retailer failed to meet those requirements and granted a motion to exclude his testimony.
January 05, 2024
Expert Can’t Place Blame On Decedent For Fatal Construction Accident

KNOXVILLE, Tenn. — A Tennessee federal magistrate judge ruled that an expert retained by a construction company cannot say the decedent was partially to blame for a fatal accident.
December 22, 2023
Asbestos Plaintiffs Urge Court To Reject Pipe Maker’s Disparaging Of Jury Foreman

LOS ANGELES — Two companies hit with an $8.8 million asbestos verdict demonize the jury foreperson in a motion for reconsideration after the judge found that there was jury misconduct but that the conduct was not prejudicial, asbestos plaintiffs tell a Los Angeles judge in an opposition.
December 22, 2023
Citing CPAP Recall, Senators Ask For Update On FDA’s Process On Oversight

WASHINGTON, D.C. — Two senators sent a letter to the U.S. Government Accountability Office asking for an update to its 2011 report on “Medical Devices: FDA Should Enhance Its Oversight of Recalls” in light of the rising amount of recalls and adverse event reports, citing the recall of approximately 10.8 million Philips continuous positive air pressure (CPAP) sleep apnea devices and respirators.
December 21, 2023
3rd Circuit: Suit Not ‘Ripe’ In Insurer’s Row With Care Homes Over COVID Coverage

PHILADELPHIA — The Third Circuit U.S. Court of Appeals vacated and remanded a district court’s grant of judgment for an insurer seeking a declaration that a nursing home’s COVID-19-related policies’ provision requiring the nursing home to pay the first $3 million in litigation and claims costs applies to multiple events, one for each facility, finding that the district court lacked jurisdiction to determine “whether COVID-19 constitutes multiple health care events” is “ripe for review.”
December 20, 2023
Amendments To Rule 702 For Expert Witness Testimony Go Into Effect

Amendments to Federal Rule of Evidence 702, Fed. R. Evid. 702, went into effect to clarify how courts should decide the admissibility of expert testimony.
December 15, 2023
Judge Grants Agent’s Motion To Amend, Add Care Home Executive To Negligence Suit

LEXINGTON, Ky. — A Kentucky federal judge on Dec. 14 granted a motion to amend a complaint filed by an agent pursuant to a power of attorney (POA) in a negligence suit alleging that a nursing home failed to provide adequate care for her brother, finding that amending the complaint to include the appropriate administrator is an “excusable” error.
December 15, 2023
California Federal Judge Largely Allows Experts In Inmate Wrongful Death Suit

SAN DIEGO — A California federal judge ruled that experts retained in a wrongful death suit against the county of San Diego, the medical group in charge of inmate care and various employees may testify but said one expert may not make assertions about individual employees.