Law Reporter and Trial News
Selected news from Trial News, the Products Liability Law Reporter, and Professional Negligence Law Reporter
Supreme Court tackles standing and predatory lending under the Fair Housing Act
DECEMBER 1, 2016, Trial News
On Nov. 8, the U.S. Supreme Court heard oral arguments in two related cases about whether a city has standing to bring an action under the Fair Housing Act. The city of Miami argued that both Wells Fargo and Bank of America engaged in discriminatory housing practices by targeting minorities with predatory loans in violation of the statute. At oral arguments, justices seemed divided, and with only eight members on the Court, a 4-4 split is possible.
Negligent removal of PICC line
NOVEMEMBER 22, 2016, PNLR E-Newsletter
The patient suffered an air embolism and stroke shortly after a hospital nurse removed her PICC line. The patient and her husband sued the hospital, alleging liability for its nurse’s negligence. Among other things, suit alleged that the nurse should have removed the line while the patient was lying down in a sterile environment and applied pressure to the insertion site. The jury awarded about $3.85 million. Herrett v. St. Luke’s Magic Valley Med. Ctr.
NHTSA issues vehicle cybersecurity guidance
NOVEMEMBER 17, 2016, Trial News
The National Highway Traffic Safety Administration (NHTSA) has issued nonbinding best practices for cybersecurity in vehicles for all designers and manufacturers of vehicles and software to help combat and respond to hacking of vehicle technology systems. The agency is urging the automotive industry to be proactive and prioritize vehicle cybersecurity.
Crane’s lack of adequate warnings leads to worker’s catastrophic injuries
NOVEMEMBER 8, 2016, PLLR E-Newsletter
The plaintiffs sued the crane’s manufacturer, alleging that the crane was defectively designed in that there was no mechanism for preventing counterweights from striking the cab. Suit also alleged failure to warn of the known dangers of falling counterweights. Williams v. Manitowoc Cranes, LLC.
Arkansas court blocks tort reform ballot initiative
NOVEMBER 3, 2016, Trial News
The Supreme Court of Arkansas has blocked Issue 4—a cap on noneconomic damages and contingent fees in “medical-injury” lawsuits—from the general election ballot, holding that its ballot title and amendment text would not sufficiently inform voters of its effect.
Improper restraint during water birth
OCTOBER 25, 2016, PNLR E-Newsletter
The plaintiffs charged that the hospital’s advertisements falsely emphasized that women could choose their own individualized birthing plans and could maintain freedom of movement during labor. Suit alleged that hospital nurses had grabbed the woman’s wrists and pressed her knee back during the delivery, resulting in a nerve injury. The jury awarded $16 million, including $5 million in punitive damages. Malatesta v. Brookwood Med. Ctr.
CMS bans pre-dispute forced arbitration in nursing home contracts
OCTOBER 20, 2016, Trial News
On Sept. 28, the Centers for Medicare and Medicaid Services (CMS) issued a final rule prohibiting nursing homes from using pre-dispute arbitration agreements in admissions contracts dated on or after Nov. 28, 2016. The rule applies to all skilled nursing facilities that receive money from Medicare and Medicaid—the vast majority of all facilities in the United States.
Jury holds John Crane accountable for mill worker’s fatal mesothelioma
OCTOBER 11, 2016, PLLR E-Newsletter
Suit alleged that the company failed to test its products to determine whether they were safe and failed to warn of their asbestos dangers. The parties ultimately settled for a confidential amount. Adams v. John Crane, Inc.
Class alleges Michigan public schools denied students their right to privacy
OCTOBER 6, 2016, Trial News
Seven Detroit public school students have filed a class action against Gov. Richard Snyder and state education officials, alleging that the state denied them their constitutional right to literacy. The complaint alleges that decades of state disinvestment in and deliberate indifference toward Detroit schools—which it describes as having "slum-like conditions and lacking the most basic educational opportunities—violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment, as well as Title VI of the Civil Rights of 1964.
Failure to discontinue labor
SEPTEMBER 27, 2016, PNLR E-Newsletter
Suit against an obstetrician and hospital alleged that failure to discontinue a woman’s active labor and timely deliver her baby via cesarean section caused her to suffer a fourth-degree vaginal tear that developed into a fistula. The jury awarded $11 million. Khankari v. Pombar.
State may exercise specific jurisdiction over nonresidents’ claims against drugmaker
SEPTEMBER 22, 2016, Trial News
California courts may exercise specific jurisdiction over nonresidents’ claims against a pharmaceutical company because of its significant business activities there, the state high court has ruled. Bristol-Myers Squibb Co. challenged a California appellate court’s ruling that the state had jurisdiction over several hundred claims nonresidents filed against the company for injuries allegedly resulting from its blood thinner Plavix.
TCE contamination from ball bearing plant caused plaintiff’s autoimmune hepatitis
SEPTEMBER 13, 2016, PLLR E-Newsletter
Suit alleged that—in addition to toxic dumping—the defendants thwarted federal and state investigations into the contamination and denied responsibility. The jury awarded $20.6 million, including $13 million in punitive damages. Kirk v. Schaeffler Group USA, Inc.
Class action alleges Minnesota engaged in disability-based segregation
SEPTEMBER 8, 2016, Trial News
A group of disabled people have filed a class action seeking injunctive relief against Minnesota’s Department of Human Services, alleging that the department maintained a discriminatory residential system that funneled them into segregated housing. The plaintiffs allege that they are isolated from their families—who may be hundreds of miles away—and have little to no control over their daily lives.
Failure to timely diagnose optic nerve stroke
AUGUST 23, 2016, PNLR E-Newsletter
The plaintiff became blind after suffering an anterior ischemic stroke of the optic nerves after open heart surgery and sued the heart surgeon, the physician, and the hospital, alleging failure to timely diagnose and treat the stroke. The surgeon settled for an undisclosed amount, and a jury awarded $6.84 million. Fortner v. Tex. Heart Hosp. of the S.W.
Federal courts strike down four states’ voting restrictions
AUGUST 18, 2016, Trial News
Federal courts recently blocked or overturned voting restrictions in four states: North Carolina, North Dakota, Texas, and Wisconsin. Each challenged law restricts people’s ability to vote in elections and requires voters to show certain forms of ID at the polls. The courts relied on the plaintiffs’ stories and on statistics demonstrating how hard it is to obtain the type of ID required to vote.
Asbestos in brake products contributed to man’s mesothelioma
AUGUST 9, 2016, PLLR E-Newsletter
The plaintiff alleged that various manufacturers and suppliers of asbestos-containing products failed to warn of their products’ asbestos dangers. Conda v. 3M Co.
Maryland adults will face civil liability for serving alcohol to underage individuals
AUGUST 4, 2016, Trial News
The Maryland Court of Appeals has held that adults who serve underage drinkers at their homes may face civil liability if a third party or underage drinker gets hurt. The decision arose from two individual cases: Dankos v. Stapf, in which an underage drinker was ejected from a truck driven by an intoxicated friend and killed, and Kiriakos v. Phillips, in which a third-party pedestrian was struck by a car that an underage drinker was driving.
Negligent chemotherapy treatment
JULY 26, 2016, PNLR E-Newsletter
The plaintiff, who needs a heart transplant as a result of heart failure brought on by an overdose of chemotherapy drugs, alleged a doctor, his practice, and a hospital were liable for negligent administration of her chemotherapy. The parties settled for $12 million. Rogers v. Mathey.
California Supreme Court to review ‘innovator liability’ generic drug case
JULY 21, 2016, Trial News
The California Supreme Court has agreed to review whether a brand-name drug manufacturer can be held liable for injuries caused by its generic equivalent. The plaintiffs in the case before the court have alleged that a brand-name drugmaker is liable for failure to warn and negligent misrepresentation even if the patient took a generic version manufactured by a different company—known as “innovator liability”—because generic drug labels follow the brand-name drug’s label.
Valve maker’s failure to warn of asbestos dangers led to veteran’s mesothelioma
JULY 12, 2016, PLLR E-Newsletter
The plaintiff alleged that the defendant’s valves were defective in that they contained asbestos and the defendant knew or should have known of the danger but failed to warn. The jury awarded $3.2 million. Shays v. Jenkins Bros.
Rental cars with open recalls must be repaired under new law
JULY 7, 2016, Trial News
On June 1, a new law went into effect requiring rental cars with open recalls to be repaired before renting or selling them to customers. The law—which applies to companies with more than 35 rental vehicles—is part of the Fixing America’s Surface Transportation Act of 2015 that was enacted last December.
Failure to timely diagnose, treat postsurgical infection
JUNE 21, 2016, PNLR E-Newsletter
The plaintiff, who ultimately required an arm amputation, sued the orthopedic surgeon who performed her carpal tunnel release, alleging failure to properly evaluate, diagnose, monitor, and supervise her condition, among other claims. The jury awarded about $1.5 million. Danko v. Conyers.
DOL expands overtime eligibility to millions of workers
JUNE 16, 2016, Trial News
On May 18, the U.S. Department of Labor (DOL) announced a new overtime rule that will require employers to pay salaried workers earning up to $47,476 annually time-and-a-half for every hour they work over 40 in a week. The previous salary threshold, set in 2004, was $23,660. The new rule will take effect Dec. 1, 2016.
ATV steering malfunctions, throwing and injuring rider
JUNE 7, 2016, PLLR E-Newsletter
The plaintiff sued the Chinese manufacturer of the vehicle and several U.S.-based companies that imported and sold it, alleging the ATV was defective and unreasonably dangerous. Bynum v. Zhejiang Peace Indus. & Trade Co., Ltd.
Oregon Supreme Court upholds damages cap
JUNE 2, 2016, Trial News
Oregon’s highest court has overturned a $12 million jury verdict against a public hospital, upholding a $3 million cap on damages in lawsuits brought against the state or its employees. In a lengthy opinion, Judge Rives Kistler held that the Oregon Tort Claims Act (OTCA)—which imposes a $3 million limit on damages payable by public entities—does not violate Oregon’s constitution.
Failure to timely detect compartment syndrome
MAY 24, 2016, PNLR E-Newsletter
The plaintiff underwent surgery following a leg injury and soon developed compartment syndrome, which led to an above-the-knee amputation. Suit alleged the hospital failed to implement an adequate surveillance system for detecting and monitoring acute compartment syndrome. The jury awarded $2.85 million. Gray v. Mlsna.
CFPB proposes limit on mandatory arbitration clauses that prohibit class actions
MAY 19, 2016, Trial News
The Consumer Financial Protection Bureau (CFPB) has announced a proposed rule to limit mandatory arbitration clauses prohibiting class actions in consumer financial products and services contracts, including credit cards, bank accounts, and loans. The proposed rule is the result of a study that the bureau conducted at Congress’s behest, and it will prevent companies from inserting in new contracts mandatory arbitration clauses that stop consumers from pursuing class actions. There will be a 90-day comment period on the proposed rule.
Da Vinci manufacturer settles claim alleging botched hysterectomy
MAY 10, 2016, PLLR E-Newsletter
The plaintiffs alleged that the robotic system was defectively designed and manufactured in that microscopic cracks in the insulation could permit electricity to leak out and damage the patient’s surrounding tissue. The parties settled confidentially. Zarick v. Intuitive Surgical, Inc.
Equal pay fights take center stage
MAY 5, 2016, Trial News
Farmers Insurance Group, Inc., has agreed to pay about $4 million to hundreds of female attorneys who claimed they were paid less than their male counterparts during their time at the company. The settlement is one example of recent, high-profile lawsuits filed by women demanding equal pay. This past March, the U.S. women’s national soccer team filed a complaint with the Equal Employment Opportunity Commission, accusing the U.S. Soccer Federation of gender-based wage discrimination.
Failure to identify, repair intraoperative injury
APRIL 26, 2016, PNLR E-Newsletter
The plaintiff alleged that the gynecologist who removed her ovarian cyst failed to timely identify and repair a torn sigmoid colon that occurred during the procedure, resulting in a colostomy and further treatment. The jury awarded $1.52 million. Frith v. Bassett Healthcare Network.
Third Circuit affirms NFL concussion settlement
APRIL 21, 2016, Trial News
The Third Circuit has affirmed the April 2015 concussion litigation settlement that requires the NFL to pay up to $5 million each to thousands of retired players suffering from certain neurological disorders. In 2013, hundreds of former players joined in a class action against the NFL, alleging that it concealed the dangers of chronic traumatic encephalopathy and its link to professional football.
Deli’s improper food safety procedures caused young patron’s salmonella poisoning
APRIL 12, 2016, PLLR E-Newsletter
The girl and her parents sued the deli, alleging strict liability for selling contaminated food. The parties settled before trial for $150,000. Gagnon v. Brent’s Delicatessen & Rest.
Supreme Court allows statistical sampling in unpaid overtime case
APRIL 7, 2016, Trial News
Employees at a food processing plant bringing a class action for unpaid overtime wages may rely on a statistical sample to show the number of overtime hours worked, the U.S. Supreme Court has ruled. The employees of Tyson Foods, Inc., claimed that they were owed overtime pay under the Fair Labor Standards Act (FLSA) for the time they took to put on and remove required protective gear—known as “donning and doffing.”
Excessive administration of antiarrhythmic
MARCH 22, 2016, PNLR E-Newsletter
The plaintiff alleged that an excessive dose of the antiarrhythmic Amiodarone during aortic valve surgery caused the patient’s heart to stop pumping adequate blood, leading to anoxic brain damage and partial paralysis. The jury awarded about $12.2 million. Friedenberg v. Peacehealth.
Jury finds for plaintiff in first Johnson & Johnson talc powder lawsuit
MARCH 17, 2016, Trial News
In the first verdict out of more than one thousand lawsuits alleging a link between Johnson & Johnson’s talc-based powders and an increased risk of ovarian cancer, a St. Louis jury has awarded the family of Jacqueline Fox $72 million, including $62 million in punitive damages.
Jury holds Crane Co. accountable for millwright’s fatal mesothelioma
MARCH 8, 2016, PLLR E-Newsletter
The man’s estate argued that Crane and others were negligent in placing asbestos-containing products into the stream of commerce and in failing to warn of their products’ dangers when they knew or should have known the health hazards of asbestos. Dobrick v. Air & Liquid Sys. Corp.
First Amendment protects Michigan attorney’s blog post
MARCH 3, 2016, Trial News
The Michigan Attorney Grievance Commission has ruled that an attorney’s blog post is constitutionally protected speech, dismissing a grievance filed against the attorney by a doctor who performed a defense medical exam (DME) on his client.
Failure to summon emergency care for infant
FEBRUARY 23, 2016, PNLR E-Newsletter
The plaintiff alleged that her foster mother failed to timely bring her to the hospital and that a family physician failed to summon emergency care or accompany her to the hospital when she stopped breathing and required resuscitation. The parties settled for $1.2 million. Doe v. Cook.
Second Circuit rules bullied student was denied right to a free public education
FEBRUARY 18, 2016, Trial News
The Second Circuit has ruled that a New York City public school denied a student with learning disabilities access to a free appropriate public education and must pay her tuition at a private school. The student’s parents claimed that the school refused to discuss repeated, severe bullying against their daughter in violation of the Individuals with Disabilities Education Act.
Bus’s side-view mirror blocked view of pedestrian, leading to collision
FEBRUARY 9, 2016, PLLR E-Newsletter
The plaintiff sued a transit authority, alleging that its driver was negligent in failing to keep a proper lookout and yield to a pedestrian. Suit against the bus manufacturer alleged that the bus’s mirror needlessly obstructed the driver’s view. Chin v. Southeastern Pa. Transp. Auth.
Oklahoma residents file class action over fracking-related earthquake damage
FEBRUARY 4, 2016, Trial News
Residents of Logan County, just north of Oklahoma City, have filed a class action lawsuit against four energy companies—Chesapeake Operating, New Dominion, Devon Energy Production, and SandRidge Exploration and Production. The suit, filed on Jan. 12, alleges that the companies’ fracking-related wastewater disposal has caused an increase in earthquakes, damaging residents’ homes.
Failure to diagnose bacterial infection
JANUARY 26, 2016, PNLR E-Newsletter
The plaintiffs alleged that the patient’s primary care physician, a hospital, and several ER physicians failed to act on a positive blood culture, treat the infection, and follow up with repeat blood tests. The parties settled for $900,000. Doe v. Roe.
Township’s entitlement to FLSA police exemption is jury question
JANUARY 21, 2016, Trial News
A federal court in New Jersey has ruled that a township’s entitlement to the Fair Labor Standards Act’s (FLSA) police exemption is an issue of material fact for a jury. The plaintiffs—six current and former law enforcement officers for the Township of Franklin, N.J.—claim that the township violated the FLSA by failing to compensate them for pre- and post-shift work.
Chinese herbal supplement caused woman’s kidney failure
JANUARY 12, 2016, PLLR E-Newsletter
The plaintiff sued three companies that allegedly distributed and sold the supplement, alleging that the product was defective in that it contained aristolochic acid, a substance commonly used in Chinese manufacturing but banned in the United States. The jury awarded about $3.82 million. Drury v. Life Rising Corp.
AAJ report highlights civil justice efforts to address concussions in athletes
JANUARY 7, 2016, Trial News
AAJ has released a research report, “Concussions and the Courthouse 2015,” discussing the civil justice system’s role in drawing attention to and changing how head injuries are handled in contact sports. The report recounts how litigation against the National Football League (NFL) spurred a nationwide shift in how brain trauma is viewed and tells the stories of injured players, from professional athletes to teenage students.
Failure to diagnose cervical epidural abscess
DECEMBER 22, 2015, PNLR E-Newsletter
The plaintiffs alleged that a hospital, radiologist, and neurologist were liable for failing to diagnose and treat the abscess, which left the patient paralyzed. The jury awarded about $12.52 million. Del Grosso v. Del. Cnty. Mem’l Hosp.
FDA warns of potential injuries from coatings on intravascular medical devices
DECEMBER 17, 2015, Trial News
The FDA has identified a risk to patients from intravascular devices with a coating that may separate from the device and cause injury. On Nov. 23, the agency issued a safety communication to health care providers warning that the hydrophilic and hydrophobic coatings on different types of devices used for various, minimally invasive vascular procedures may “peel, flake, shed, delaminate, [or] slough off.”
Tobacco companies liable for smoker’s laryngeal, lung cancers
DECEMBER 8, 2015, PLLR E-Newsletter
The plaintiff alleged that she was a member of the former Engle class action entitled to that jury’s findings given res judicata effect. The jury found that the plaintiff was addicted to nicotine and that smoking had caused her cancers. Cooper v. R.J. Reynolds Tobacco Co.
Hundreds of state law diabetes drug claims preempted
DECEMBER 3, 2015, Trial News
A federal district court has dismissed failure-to-warn claims in multidistrict litigation involving four drugs for the treatment of Type II diabetes, finding that the plaintiffs’ state law claims are preempted. The plaintiffs alleged that the drugmakers failed to warn about the risks of pancreatic cancer associated with the drugs—Januvia, Janumet, Byetta, and Victoza.
Inadequate postoperative treatment plan
NOVEMBER 24, 2015, PNLR E-Newsletter
The plaintiff alleged that a hospital and ICU physician failed to implement an adequate posteroperative treatment plan for her child, who suffered brain damage after surgery on her skull. The parties settled before trial for $16.3 million. Ayoola v. Advocate Christ Hosp. & Med. Ctr.
NTSB report highlights deficiencies in tire recall process
NOVEMBER 19, 2015, Trial News
The National Transportation Safety Board (NTSB) has released an initial report highlighting deficiencies in the tire recall process and recommending actions the National Highway Traffic Safety Administration and tire manufacturers can take to increase safety. An NTSB investigation revealed that the current system of implementing tire recalls is insufficient and that the rate of recalled tires that are ultimately repaired or replaced is well below that of recalled vehicles.
AMMCO’s failure to warn of brake grinder asbestos risk led to mechanic’s mesothelioma
NOVEMBER 10, 2015, PLLR E-Newsletter
The plaintiff sued AMMCO’s successor-in-interest, alleging that the company knew for decades about the asbestos hazard associated with its grinders but failed to adequately warn of the hazard. The plaintiff also alleged that AMMCO acted with reckless disregard for the safety of others. The jury awarded $25 million. Miller v. BMW of N. Am., LLC.
Data breach case against Coca-Cola moves forward
NOVEMBER 5, 2015, Trial News
A federal court has allowed a data breach action against Coca-Cola involving the theft of 55 laptops that contained 74,000 employees’ personal information to proceed. The Eastern District of Pennsylvania found that the plaintiff had Article III standing and allowed claims of breach of contract and unjust enrichment to proceed, but the court dismissed claims for negligence, fraud, negligent misrepresentation, and violation of the Driver’s Privacy Protection Act, among others. The case is another in a string of data breach suits nationwide in which personally identifiable information was potentially compromised.
Late diagnosis of duodenal ulcer
OCTOBER 20, 2015, PNLR E-Newsletter
Suit alleged that two gastroenterologists failed to timely diagnose the ulcer, resulting in the patient developing short bowel syndrome and other complications. The jury awarded $28.4 million. Stern v. Johnson-Futrell.
Corporate official sentenced to 28 years in prison for role in salmonella outbreak
OCTOBER 15, 2015, Trial News
The head of a peanut processing company was sentenced on Sept. 21 to an unprecedented 28 years in prison for his role in a 2009 salmonella outbreak that killed nine people and sickened hundreds more nationwide. Stewart Parnell, the former owner, president, and CEO of the Peanut Corporation of America (PCA), was found guilty in Georgia federal district court for violations of federal law, including conspiracy, mail and wire fraud, sale of misbranded food, and introduction of adulterated food into interstate commerce.
Exposure to asbestos in adhesive caused engineer’s mesothelioma
OCTOBER 6, 2015, PLLR E-Newsletter
The plaintiffs sued the adhesive manufacturer’s successor, alleging that the manufacturer was negligent and strictly liable for manufacturing and selling an unreasonably dangerous and defective product. The jury awarded about $804,800. Bagley v. Wyeth Holding Corp.
More cases filed alleging defective Bard IVC filters in wake of MDL centralization
OCTOBER 1, 2015, Trial News
Litigation is ramping up against C.R. Bard as more information comes to light about the company’s allegedly defective IVC blood clot filters. Twenty-two cases pending across the country were centralized into a MDL in the District of Arizona under Judge David G. Campbell on Aug. 17. As of Sept. 24, that number has more than doubled.
SEPTEMBER 22, 2015, PNLR E-Newsletter
Suit alleged that an internist and the management group of a nursing and rehabilitation center were liable for prescribing improper and excessive doses of pain medication to a patient and failing to monitor her, among other claims. Williams v. Advantage Mgmt. Group, Inc.
Alleged design flaw in keyless fob ignition systems leads to 13 deaths
SEPTEMBER 17, 2015, Trial News
Consumers have sued Bentley, BMW, Ford, Honda, Hyundai, Kia, Mercedes-Benz, Nissan, Toyota, and Volkswagen in federal court in California, alleging that a flaw in the design of keyless fob ignition systems has led to 13 deaths from carbon monoxide poisoning. The plaintiffs estimate that at least 5 million cars are affected and have not been recalled.
Failure to warn of known product dangers leads to Navy machinist’s mesothelioma
SEPTEMBER 8, 2015, PLLR E-Newsletter
The plaintiff alleged that various manufacturers and suppliers of asbestos-containing products failed to warn of their products’ known dangers. The jury awarded $11.5 million, including $10 million in punitive damages. Poage v. 3M Co.
FDA cannot prohibit the promotion of truthful, off-label uses
SEPTEMBER 3, 2015, Trial News
A federal district court in New York ruled that the FDA cannot stop a drugmaker from promoting its products for off-label use if those claims are truthful. Plaintiff attorneys are concerned about what this ruling means for consumer safety.
Negligent treatment of testicular cancer
AUGUST 25, 2015, PNLR E-Newsletter
Suit alleged that an oncologist negligently prescribed four courses of BEP chemotherapy when the patient should have had only three courses, resulting in bleomycin toxicity that led to his death. After the jury awarded about $1.3 million, the parties settled confidentially. Peters v. Drosick.
Fiat Chrysler hit with large fine and verdict
AUGUST 20, 2015, Trial News
Following a year of record-breaking recalls and fines for General Motors and Honda, Fiat Chrysler Automobiles now finds itself in a similar situation. The National Highway Traffic Safety Administration has ordered the automaker to pay $70 million—the highest penalty the agency has ever levied &mdsh;for failing to issue 23 recalls for 11 million vehicles with defective suspensions and fire-prone fuel tanks.
Plaintiffs prevail in suit over toy coated with toxic chemical
AUGUST 11, 2015, PLLR E-Newsletter
The plaintiffs alleged that the toy was defective and unreasonably dangerous and that the defendants failed to test it and warn of the danger. The jury awarded $435,000. Monje v. Spin Master, Inc.
Seventh Circuit revives data breach class action
AUGUST 6, 2015, Trial News
The Seventh Circuit has reinstated a class action against Neiman Marcus alleging that thousands of customers incurred fraudulent charges and others had their credit card information exposed due to a cyberattack on the retailer in 2013. The decision marks the first time a federal appellate court has reviewed—and revived—a data breach class action after a lower court dismissed the case because the plaintiffs lacked Article III standing to bring their claims.
Unnecessary brain surgery
JULY 21, 2015, PNLR E-Newsletter
Suit alleged that the defendant hospital performed unnecessary surgery on a patient after it relied on another patient’s CT scan results in recommending emergency surgery. The jury awarded $20 million. Nayyar v. Oakwood Healthcare Inc.
Plaintiffs notch three victories in employment misclassification battle
JULY 16, 2015, Trial News
For several years, there has been an ongoing tug-of-war between companies such as Fed Ex and Uber Technologies, Inc., and their workers, who argue that they are classified improperly as independent contractors instead of employees, depriving them of certain rights and benefits. Several recent cases against these companies indicate that the pendulum may be swinging in the workers’ favor.
Laser orientation mark was burned too deeply, causing hip implant to fail
JULY 7, 2015, PLLR E-Newsletter
The plaintiffs alleged that the device’s orientation mark—lasered into the implant to assist surgeons in positioning it—was burned too deeply, damaging the device’s structure and making it brittle and prone to fracture. The jury awarded $4.5 million. Warner v. Wright Med. Tech., Inc.
Off-label Infuse case preempted, Second Circuit says
JULY 2, 2015, Trial News
The Second Circuit has affirmed the dismissal of a plaintiff’s case against Medtronic for the off-label promotion of its Infuse Bone Graft/LT-Cage Lumbar Tapered Fusion device. The court found that the plaintiff’s state law claims were preempted under section 360k(a) of the Medical Device Amendments of the Federal Food, Drug, and Cosmetic Act.
Negligent performance of laparoscopic hysterectomy
JUNE 23, 2015, PNLR E-Newsletter
The plaintiff alleged that a gynecological oncologist and his medical group negligently performed the surgery by using an improper technique and applying undue pressure in advancing an optical trocar, resulting in lacerations to her small bowel and iliac arteries. Weldon v. Jazaeri.
Tenth Circuit rules Feres doctrine bars birth injury claim
JUNE 18, 2015, Trial News
The federal government is immune from liability for the injuries a servicewoman's baby sustained during childbirth due to the negligence of military hospital staff, the Tenth Circuit has held. The court ruled that Feres barred the plaintiff’s claims because the child's in utero injuries were derivative of the mother's injuries.
Fuel tank rupture causes fatal fire
JUNE 9, 2015, PLLR E-Newsletter
The plaintiffs alleged that the location of the Jeep’s fuel tank posed a deadly fire hazard. They claimed Chrysler had known of the danger for decades and failed to warn of the defect. The jury awarded $150 million. Walden v. Chrysler Group LLC.
Deadly Amtrak train derailment leads to litigation
JUNE 4, 2015, Trial News
Eight people were killed and more than 200 were injured when a speeding Amtrak train derailed on May 12. Almost a dozen personal injury lawsuits have been filed since then.
Nursing aide’s negligence leads to refractured hip
MAY 26, 2015, PNLR E-Newsletter
The plaintiff alleged that a rehabilitation facility was liable for its nursing aide’s negligence in forcefully moving the patient’s leg, among other claims. The jury awarded about $1.52 million. Huuskonen v. Pinnacle Healthcare, Inc.
Takeda agrees to landmark Actos settlement
MAY 21, 2015, Trial News
In one of the largest pharmaceutical products liability settlements in U.S. history, Takeda Pharmaceutical Co. has agreed to pay more than $2.3 billion to settle cases brought by plaintiffs who allege they developed bladder cancer after taking the diabetes drug Actos.
Supreme Court rules filing deadlines in FTCA cases can be equitably tolled
MAY 7, 2015, Trial News
The statute of limitations deadline for filing negligence claims against the government under the Federal Tort Claims Act can be equitably tolled if the plaintiffs diligently try to comply with those deadlines but extraordinary circumstances prevent it, the Supreme Court has held.
Improper supervision leads to child’s sexual assault
APRIL 21, 2015, PNLR E-Newsletter
The plaintiff alleged that a day care facility’s operator was negligent in leaving him unsupervised for more than 90 minutes, allowing another child at the facility to beat and sexually assault him. Suit also alleged understaffing. The jury awarded about $13.53 million. Doe v. New Horizon Kids Quest Inc.
Supreme Court creates framework for analyzing accommodations for pregnant workers
APRIL 16, 2015, Trial News
The Supreme Court recently established a burden-shifting framework for a pregnant worker to demonstrate discrimination—it considers whether many nonpregnant employees were given an accommodation while pregnant employees were not.
Plaintiffs claim Ford failed to address skate risk, leading to fatal rollover
APRIL 7, 2015, PLLR E-Newsletter
The plaintiffs sued the automaker, alleging its 2002 Explorer was subject to the dangerous condition known as skate and that the defendant was aware of how to eliminate or compensate for the condition but failed to do so. Yruegas v. Ford Motor Co.
Dozens of class actions filed over potentially toxic wood flooring
APRIL 2, 2015, Trial News
Lumber Liquidators’ Chinese-made wood laminate flooring emits levels of formaldehyde six to seven times higher than emissions standards allow, and the manufacturer lied about the product’s safety, plaintiffs allege. State and federal agencies are investigating.
Negligent prescription of Imitrex
MARCH 24, 2015, PNLR E-Newsletter
The plaintiff, who suffered a hemorrhagic stroke, alleged that her family physician prescribed Imitrex for her migraine headaches without first inquiring whether she had taken another headache medicine that day that is contraindicated for use with Imitrex. The jury awarded about $4.41 million. Stelmack v. Lucio-Reincke.
Report illustrates the extent of harm forced arbitration causes consumers
MARCH 19, 2015, Trial News
Forced arbitration hurts consumers, and consumers rarely realize they’re being stripped of their rights, says a recent report by the Consumer Financial Protection Bureau.
Tobacco companies settle federal cases
MARCH 10, 2015, PLLR E-Newsletter
Plaintiffs and three major cigarette manufacturers—Lorillard Tobacco Co., Philip Morris, and R.J. Reynolds Tobacco Co.—have reached a $100 million settlement for roughly 400 cases pending in federal district court in Florida.
Individualized damages do not bar class certification, Second Circuit holds
MARCH 5, 2015, Trial News
In a collective action that former Applebee’s employees pursued against the restaurant chain, alleging violations of the Fair Labor Standards Act and New York labor law, the Second Circuit held that a court may not deny class certification merely because damages must be calculated on an individual basis.
Delayed delivery results in brain injury
FEBRUARY 24, 2015, PNLR E-Newsletter
The parents of an infant whose birth was delayed despite evidence of fetal distress sued the hospital and the United States—which employed several of the attending physicians—alleging failure to perform a timely delivery. The parties settled at mediation for $25.25 million. Doe v. U.S.
Air bag defect linked to sixth death as crisis worsens
FEBRUARY 19, 2015, Trial News
A sixth person has been killed and at least 160 people have been injured by Takata Corp.’s exploding air bags. As questions arise over problems with the recall and repair process, attorneys are concerned the injuries and deaths will grow.
Defective tire fails, leading to fatal rollover
FEBRUARY 10, 2015, PLLR E-Newsletter
The plaintiffs sued the tire manufacturer, alleging that the tire was defectively designed and manufactured, rendering it prone to tread separation and failure. Suit also alleged that the tire was defectively designed in that it lacked a full nylon cap ply. Mendoza v. Cooper Tire & Rubber Co.
Fla. court rules right to privacy does not shield Facebook photos from discovery
FEBRUARY 5, 2015, Trial News
A plaintiff has a “limited privacy interest, if any,” in pictures posted on social networking sites, regardless of privacy settings, according to a Florida appellate court. The court held that the plaintiff must produce more than five years’ worth of Facebook photos as part of discovery in a slip-and-fall lawsuit against Target Corp.
New clinical trial rules would expand adverse event disclosures
JANUARY 27, 2015, PNLR E-Newsletter
The U.S. Department of Health and Human Services has issued a notice of proposed rulemaking that would require manufacturers and researchers to publicly disclose more information about clinical drug and device trials, especially concerning adverse events.
Pa. Supreme Court rules Dukes does not apply to wage-and-hour verdict
JANUARY 22, 2015, Trial News
In a group of wage-and-hour class actions against Walmart, the Pennsylvania Supreme Court has upheld a $154 million jury award. The court concluded that the methods the trial court used to determine liability and damages for each class member did not constitute a “trial by formula.”
Plaintiffs seek MDL in Benicar litigation
JANUARY 13, 2015, PLLR E-Newsletter
Lawsuits are mounting over the blood pressure drug Benicar, which has been linked to serious gastrointestinal injuries, including flu-like enteropathy—a condition that causes severe, chronic diarrhea and malnourishment, among other problems.
Guardrail manufacturer faces increased scrutiny
JANUARY 8, 2015, Trial News
A state and two counties have filed suit against Trinity Industries, Inc., over its ET-Plus guardrails. Federal and state regulators are bearing down on the embattled manufacturer as well.
Jury sides with AutoZone employee in pregnancy discrimination case
DECEMBER 18, 2014, Trial News
A California jury found that an AutoZone worker’s supervisor discriminated and retaliated against her because of her pregnancy—and that the corporate office’s legal department perpetrated that behavior. The jury awarded $185 million.
Wyoming Supreme Court strikes down limitations period for minors’ med-mal claims
DECEMBER 14, 2014, PNLR E-Newsletter
The Wyoming Supreme Court held that two state laws restricting the period in which minors may bring medical malpractice claims violate the state constitution’s open courts provision.
Air bag crisis erupts, leading to more recalls, lawsuits
DECEMBER 4, 2014, Trial News
The air bag manufacturer Takata and several automakers have recalled millions of air bags because they may explode—even in low-impact crashes—ejecting shrapnel-like material and turning a crucial safety device into a deadly weapon.
Supreme Court debates proof standard in securities fraud case
NOVEMBER 20, 2014, Trial News
At oral argument, the Supreme Court considered what a plaintiff investor must show in a case involving §11 of the Securities Act of 1933, which provides a remedy for investors who purchase securities pursuant to a registration statement that contains an untrue statement of material fact or omits a material fact.
States ban ET-Plus guardrails after fraud verdict against manufacturer
NOVEMBER 11, 2014, PLLR E-Newsletter
At least 35 states have placed a moratorium on installing Trinity Industries, Inc.’s ET-Plus guardrails after a study concluded the ET-Plus was nearly three times more likely to cause a fatality than its predecessor and after a federal jury found Trinity liable for fraud concerning undisclosed design changes that are potentially fatal. About a dozen personal injury and wrongful death lawsuits have already been filed, and plaintiff attorneys say this is only the tip of the iceberg
Eleventh Circuit upholds Florida med-mal law allowing ex parte communications
OCTOBER 28, 2014, PNLR E-Newsletter
The Eleventh Circuit upheld part of a 2013 Florida medical malpractice law that allows essentially unlimited ex parte communications between all defense-related counsel and witnesses and a plaintiff’s health care providers during the 90-day presuit period. Attorneys worry the law will intimidate treating physicians, discourage plaintiffs from bringing med-mal actions, and encourage other states to pass similar statutes.
FDA panel wants strict label for testosterone therapies, more studies on safety
OCTOBER 21, 2014, PLLR E-Newsletter
Heeding the call from safety advocates and medical experts, an FDA panel has recommended by a 20-1 vote that the agency tighten control over testosterone replacement therapies (TRTs) to ensure they are prescribed only to men with serious medical conditions. The panel also voted to require that drugmakers perform clinical studies to further test the link between TRTs and heart attacks and strokes.
Proposed rule closes loopholes on predatory lending for servicemembers
OCTOBER 16, 2014, Trial News
The Military Lending Act prohibits certain creditors from forcing servicemembers into arbitration and charging them or their dependents more than 36 percent annual interest rate. Now, the U.S. Department of Defense has issued a proposed rule that would expand these protections.
Missouri Supreme Court invalidates punitive damages caps on common law claims
OCTOBER 2, 2014, Trial News
In a case that arose out of an auto dealer’s alleged fraudulent misrepresentation, the Missouri Supreme Court recently held that limits on punitive damages for common law torts are unlawful under the state constitution.
FedEx drivers improperly classified as independent contractors
SEPTEMBER 18, 2014, Trial News
In two companion decisions, the Ninth Circuit held that FedEx Ground Package System, Inc., improperly labeled its delivery drivers independent contractors rather than employees, illegally depriving them of certain benefits and rights. Plaintiff attorneys said the decisions’ effect may extend to other industries that rely on similar independent contractor business models.
Two schools cited for unnecessary restraint, seclusion of children
SEPTEMBER 16, 2014, PNLR E-Newsletter
Two Virginia schools for students with emotional and behavioral issues restrained or secluded students hundreds of times in nonemergency situations, the Department of Education recently found. A ProPublica analysis released in June found that children were held down, handcuffed, duct-taped, locked in dark rooms, and otherwise restrained more than 267,000 times in the 2012 school year.
Cymbalta users sue over undisclosed withdrawal side effects
SEPTEMBER 9, 2014, PLLR E-Newsletter
Almost two dozen consumers who suffered moderate to severe side effects when they tried to stop using the antidepressant Cymbalta recently sued drugmaker Eli Lilly & Co. The plaintiffs claim the company knew the drug caused withdrawal symptoms in nearly half those who discontinued it but significantly downplayed the risks in warning labels.
Minnesota Supreme Court rejects Twombly and Iqbal pleading standard
SEPTEMBER 4, 2014, Trial News
The Minnesota Supreme Court has expressly rejected the federal pleading standard that the U.S. Supreme Court established in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal and held that Minnesota’s traditional pleading standard applies.
As agencies crack down on mortgage-relief scams, homeowners settle claims against law firm
SEPTEMBER 2, 2014, Class Action Law Reporter
Colorado homeowners who fought foreclosure in the height of the mortgage crisis have settled a class action against a law firm that regularly charged inflated fees to post foreclosure notices. The federal government and states across the country are pursuing law firms that have scammed homeowners out of millions of dollars, including some that promised homeowners could pay to join “mass joinder” lawsuits that would force banks to modify their loans.
Patients infected by tainted saline that nurse substituted for stolen pain meds
AUGUST 19, 2014, PNLR E-Newsletter
A hospital patient who suffered horrific pain and a blood infection necessitating an arm amputation after a nurse took her pain medication and substituted contaminated saline has sued the hospital for medical negligence. At least 25 patients were sickened by the contaminated saline in 2010, including one who died. Several have lawsuits pending against the hospital.
Debt-relief firms scamming student loan borrowers
AUGUST 7, 2014, Trial News
Debt settlement companies have now targeted student loan borrowers, charging them for nonexistent services or free government services. Federal and state regulators have stepped in, and the Illinois Attorney General has filed lawsuits against two companies.
Supreme Court helps ERISA plaintiffs but leaves issues unresolved
AUGUST 5, 2014, Class Action Law Reporter
Following a significant Supreme Court decision eliminating the defense-friendly “presumption of prudence” in Employee Retirement Income Security Act (ERISA) cases, the Fifth Circuit has revived a lawsuit against BP, P.L.C., by employees who suffered financial losses when their BP stock plummeted after the Deepwater Horizon oil spill.
Plaintiff’s experts were improperly excluded in contaminated baby formula case
JULY 8, 2014, PLLR E-Newsletter
The Eighth Circuit has ruled that a trial court abused its discretion in disqualifying the plaintiff experts’ opinions, which blamed an infant’s permanent brain damage on contaminated formula. The case will now go to trial.
Plaintiff attorneys say Halliburton will make defendants’ burden heavier
JULY 1, 2014 Class Action Law Reporter
Despite the defense bar’s comments to the contrary, plaintiff attorneys consider the Supreme Court’s recent ruling in Halliburton Co. v. Erica P. John Fund, Inc., to be a significant victory for investors because the Court not only declined to overrule the fraud-on-the-market doctrine but also said defendants must prove there was no price impact.
Parents of teen killed in car crash claim stores sold alcohol to minor despite notice he was underage
JUNE 24, 2014, Motor Vehicle Law Reporter
The parents of a teenager killed when her intoxicated boyfriend crashed his car have sued two convenience stores, alleging they illegally sold alcohol to a minor despite warnings that he was under 21 on his fake driver’s license and in a database.
Device used in gynecological surgeries could spread cancer
JUNE 19, 2014, Trial News
As many as two dozen products liability cases have been filed against manufacturers of laparoscopic power morcellators, which are used to slice and remove uterine fibroids. Plaintiffs allege the devices can spread a dangerous hidden cancer from the uterus to other parts of the body.
VA has long known of deadly delays for sick and injured veterans
JUNE 17, 2014, PNLR E-Newsletter
Recent revelations about Department of Veterans Affairs (VA) hospitals’ systemic efforts to hide long waiting times for veterans’ health care appointments have shocked the public, but government reports and whistleblower accounts show the VA has known for years that patients are dying as they wait for care.