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

Mealey's Personal Injury

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.
December 14, 2023
Default Judgment Recommended In Insurance Coverage Row Over Personal Injury Suit

BROOKLYN, N.Y. — A New York federal magistrate judge recommended granting default judgment to a commercial liability insurer, finding that default judgment should be granted because the insurer “is not obligated to defend or indemnify” in the underlying personal injury action due to the insured’s material misrepresentations in its policy application.
December 14, 2023
Panel Affirms Order Denying Care Home’s Bid To Compel Arbitration In Fraud Suit

COLUMBIA, S.C. — A South Carolina appellate court on Dec. 13 affirmed a lower court order that denied a skilled nursing facility’s motion to compel arbitration in a negligence and fraud suit against it related to injuries sustained by a former resident after incurring repeated falls, finding, among other things, that the former resident’s wife lacked the authority to sign the arbitration agreement on his behalf.
December 11, 2023
High Court Won’t Hear Appeal In Case Alleging Injury From CoolSculpting Procedure

WASHINGTON, D.C. —The U.S. Supreme Court on Dec. 11 denied a petition for a writ of certiorari filed by a man who argued that an appellate court erred in granting summary judgment to the company that created the CoolSculpting process after finding that he was warned about the risk of paradoxical adipose hyperplasia (PAH) and that his design defect claims failed under the risk-utility or consumer expectations tests.
December 08, 2023
Cancer Patient, Wife Win $20.7M Against Tobacco Company In Massachusetts Trial

WOBURN, Mass. — A Massachusetts state court jury awarded a verdict worth more than $20.7 million in compensatory damages to a smoker with oral cancer and his wife against two tobacco companies and a local retailer after hearing that the smoker got hooked in the early 1960s before cigarette packs had warning labels and was unable to quit smoking until 2020, after his second cancer diagnosis. VIDEO FROM THE TRIAL IS AVAILABLE.
December 04, 2023
Judge Says Settlements Apply To Plaintiff’s Costs, Wipe Out Ford Asbestos Verdict

GREENSBORO, N.C. — Offsets for settlement recoveries apply to costs and leave an asbestos plaintiff originally awarded $275,000 from Ford Motor Co. with nothing, a federal judge in North Carolina said.
December 01, 2023
New York Panel Reverses, Dismisses All Claims In COVID Suit Against Nursing Home

ALBANY, N.Y. — A New York appellate court on Nov. 30 reversed a lower court decision that denied a nursing home’s motion to dismiss all claims against it in an estate executor’s suit after a decedent’s COVID-19-related death at the facility, finding that the nursing home was entitled to immunity pursuant to a since-repealed New York state law that provided protections to health care providers related to their treatment of persons during the COVID-19 public health emergency.
November 30, 2023
BMW Denied Access To Nonparties’ Cell Records, Texts In Product Liability Suit

ORLANDO, Fla. — The cell phone records and communications of three nonparties to a products liability suit against BMW of North America LLC are protected by the attorney-client and spousal privileges, a Florida federal magistrate judge ruled Nov. 29, granting a motion to quash BMW’s subpoenas that sought this information.
November 30, 2023
6th Circuit Vacates Class Certification In Ford Brake Defect Case

CINCINNATI — A Sixth Circuit U.S. Court of Appeals panel vacated a trial court’s certification of a class of owners and lessees of certain Ford trucks in a case over allegedly faulty brake cylinders and remanded “for a more searching consideration” of the commonality.
November 30, 2023
FDA Warns Users Of Reports Of Overheating CPAP Machines

SILVER SPRING, Md. — The U.S. Food and Drug Administration through a safety communication warned users of Philips DreamStation 2 continuous positive airway pressure (CPAP) machines to watch for signs of overheating.
November 29, 2023
J&J, Plaintiff Awarded $18.8M Settle In Wake Of Denial Of Post-Trial Motions

LOS ANGELES — After Johnson & Johnson (J&J) filed a notice indicating that it would appeal denial of post-trial motions rejecting its claim that it could not be liable for an $18.8 million asbestos-talc verdict, the plaintiff told a federal judge in California that the parties reached a settlement completely resolving the case.
November 29, 2023
FELA Asbestos Plaintiff Warns: Georgia Ruling Will Impact Every Daubert Case

ATLANTA — A man tells the Georgia Supreme Court that it must review a divided appellate court ruling excluding his Federal Employers’ Liability Act (FELA) expert’s opinion that exposure to asbestos and other toxins caused lung cancer, saying the divided and “fractured” ruling shows the court rushed its opinion and warning that the confusion the ruling creates could result in it being cited by both parties in every trial court case applying Daubert v. Merrell Dow Pharmaceuticals Inc.
November 29, 2023
Jury Awards $11M To Estate For Smoker’s Lung Cancer Death

JACKSONVILLE, Fla. — A Florida state court jury awarded $10 million in punitive damages against only one tobacco company defendant after awarding $1 million in compensatory damages against it and another tobacco company in favor of the estate of a woman who died from lung cancer after smoking for more than 40 years. VIDEO FROM THE TRIAL IS AVAILABLE.
November 29, 2023
Man Alleging Injuries From Ankle Monitoring Device Says Colorado Law Applies

DENVER — A man suing the manufacturer of an alcohol tracking ankle monitor for injuries to his skin rejected arguments that the laws of the state in which the arrest occurred should apply or that he failed to state a claim and urged a federal court in Colorado to deny a motion to dismiss.
November 29, 2023
Panel Urged To Reverse No Cancer Finding In Engle Case By Smoker’s Widow

MIAMI — A dead smoker’s widow tells a Florida appellate panel in a reply brief that it should reverse a defense judgment against her and remand her case for a new trial, arguing that the jury’s finding that her dead husband did not have lung cancer was likely the result of improperly admitted deposition testimony and the court’s improper jury instructions.
November 28, 2023
Panel Affirms Order Refusing To Compel Arbitration In Death Suit Against Care Home

LIMA, Ohio — An Ohio appellate court on Nov. 27 affirmed a lower court order that denied a motion by a long-term care (LTC) facility to stay a negligence and wrongful death suit filed against it and compel arbitration, finding that the lower court did not abuse its discretion in determining that the arbitration agreement the decedent signed when admitted to the assisted living portion of the facility did not apply to her later admission to the skilled nursing division of the facility.