Law Reporter and Trial News
Selected news from Trial News, the Products Liability Law Reporter, and Professional Negligence Law Reporter
‘Vague’ terms and conditions sink Samsung’s forced arbitration clause
OCTOBER 17, 2019, Trial News
Insufficient notice of a forced arbitration clause contained in a smartphone’s packaging and safety and warranty guide upends Samsung’s motion to compel arbitration in a personal injury case, the Ninth Circuit has ruled. The court found that language on the Galaxy S7 Edge’s packaging and inside a booklet sold with the device did not provide adequate notice to the plaintiff of the company’s forced arbitration provision.
Defective breathing hose
OCTOBER 8, 2019, PLLR News
The estate of a firefighter who suffocated when a hose ruptured in her self-contained breathing apparatus during a fire sued the device’s manufacturer, alleging a design defect led to the hose’s rupture. The parties settled for $7 million. Johnson v. Scott Health & Safety.
College assumed duty of care for injured student-athletes, Pennsylvania Supreme Court rules
OCTOBER 3, 2019, Trial News
A landmark bill to end forced arbitration of employment, civil rights, consumer, and antitrust disputes passed the U.S. House of Representatives on Sept. 20 in a bipartisan 225-186 vote. The “Forced Arbitration Injustice Repeal (FAIR) Act” (H.R. 1423), which applies to individual actions as well as joint, class, or collective actions, would restore access to the courts for millions of workers and consumers.
College assumed duty of care for injured student-athletes, Pennsylvania Supreme Court rules
SEPTEMBER 19, 2019, Trial News
College assumed duty of care for injured student-athletes, Pennsylvania Supreme Court rules
A college athletics program and its employees assumed a duty of care to two students who tried out for their football team when it required them to sign a consent to medical treatment form before playing with the team, the Pennsylvania Supreme Court has ruled. The court also found that a liability waiver the student-athletes signed was unenforceable for their gross negligence claims against the defendants—an issue of first impression for the court.
Failure to warn of lead paint hazards
SEPTEMBER 10, 2019, PLLR News
Three people who suffered lead poisoning from childhood exposure to lead-based paint sued Sherwin-Williams Co. and others, alleging the defendants had acted unreasonably in marketing lead pigment and paint and in failing to warn of the danger to children. The jury awarded $6 million. Burton v. American Cyanamid.
Displaying QR code on debt collection envelope violates privacy, Third Circuit rules
SEPTEMBER 6, 2019, Trial News
Using a scannable QR code containing a debtor’s account number on the outside of a debt collection envelope violates the Fair Debt Collection Practices Act, the Third Circuit has ruled. The QR code, which anyone who downloads a scanning app can read, disclosed confidential information and violated the plaintiff’s privacy. Even though there was no evidence that anyone tried to access the code or use the information, the court also found that the plaintiff had Article III standing because the invasion of privacy is a cognizable injury in and of itself.
Failure to timely respond to fetal distress
AUGUST 27, 2019, PNLR News
Suit on behalf of a child who suffered a hypoxic-ischemic event before birth alleged that a hospital was liable for failing to timely diagnose and respond to fetal distress and perform a timely cesarean section. The jury awarded $23.5 million. Whiten v. Presence St. Joseph Hosp.-Chi.
Eleventh Circuit says cruise lines have duty to warn of sexual assault risk
AUGUST 22, 2019, Trial News
The Eleventh Circuit has revived a suit against Royal Caribbean Cruises, ruling that the complaint sufficiently pleaded that the defendant negligently failed to help prevent the rape of a passenger. Attorneys say that the decision confirms that cruise lines have a duty to act to prevent foreseeable sexual assaults committed by passengers and sets new circuit precedent that cruise lines must warn passengers of the known risk of these attacks.
Utah’s hurdle to filing medical negligence suits is unconstitutional
AUGUST 8, 2019, Trial News
A unanimous Utah Supreme Court has ruled that sections of the state’s medical negligence law violate the judicial power provision of the Utah constitution. The language in question required medical negligence suits to be dismissed unless a prelitigation panel had issued a certificate of compliance or approved an expert “affidavit of merit.” The court found that this improperly vested the panel “with the power to hear and determine the final disposition of controversies,” an unconstitutional exercise of “core judicial functions.” Attorneys expect this decision to improve court access for medical negligence victims in Utah.
Failure to timely treat bowel obstruction
JULY 30, 2019, PNLR News
A 12-year-old girl sued a pediatric hospitalist and a surgeon, alleging failure to timely come to the hospital and diagnose her bowel obstruction and failure to treat the obstruction the night of her diagnosis. Had the surgery been timely, the plaintiff claimed, she would not have suffered sepsis and other complications. The parties settled for more than $2 million. Doe v. Roe Physicians.
SCOTUS overturns murder conviction and censures racially biased jury selection
JULY 25, 2019, Trial News
The U.S. Supreme Court has overturned the conviction of Curtis Flowers, a black man from Mississippi who has been tried six separate times by the same district attorney for the 1996 murders of four people. In an opinion by Justice Brett Kavanaugh, the Court ruled 7-2 that the “trial court committed clear error” by not finding that the prosecution’s peremptory strike of a black prospective juror was unconstitutionally “motivated in substantial part by discriminatory intent.”
Injured seamen not entitled to punitive damages for unseaworthiness claims, SCOTUS rules
JULY 11, 2019, Trial News
Punitive damages are not available in maritime unseaworthiness claims, the U.S. Supreme Court has ruled. The Court held that punitive damages were not traditionally available in common law for unseaworthiness claims and that it could not extend such damages to unseaworthiness claims since they also are not available under the Jones Act.
Failure to train employees on safe use of transport van’s wheelchair lift
JUNE 25, 2019, PNLR News
The wife and estate of a nursing home resident who died of injuries he suffered when his wheelchair tipped over while on a transport van’s wheelchair lift sued the nursing home and others. Suit alleged the defendants failed to train employees on the safe use of the lift, failed to timely summon emergency medical help, and failed to immobilize the man’s neck and take precautions before moving him. The jury awarded $6.75 million. Folder v. Christian Homes, Inc.
Kansas Supreme Court declares noneconomic damages cap unconstitutional
JUNE 20, 2019, Trial News
A cap on noneconomic damages violates the Kansas Constitution’s right to a jury trial, the state’s highest court has ruled. The court also rejected the quid pro quo test it had previously used to analyze challenges to the right to a jury trial, finding that the proper test for questions involving a fundamental constitutional interest is whether the statute interferes with that interest.
State law claims preempted only when FDA formally rejects drug label change, SCOTUS holds
JUNE 6, 2019, Trial News
In a unanimous decision, the U.S. Supreme Court held that a judge, not a jury, must decide whether there is clear evidence that the FDA would have rejected a drugmaker’s label change when there is a conflict between the plaintiffs’ state law claims and federal law requirements that would preempt the state law claims. The Court further explained that clear evidence requires that the drugmaker “fully informed the FDA” of why it proposed a label change and that the FDA then informed the drugmaker that it would not approve such a change.
Negligent performance of colorectal surgery leads to fatal sepsis
MAY 28, 2019, PNLR News
The husband and children of a woman who died of sepsis after colorectal surgery sued the surgeon who treated her, alleging he burned part of the patient’s small bowel during the procedure. Suit also alleged the defendant provided negligent postoperative care by failing to order a timely CT scan. The jury awarded $13 million. Raefski v. Hirsch.
‘ABC’ employment test applies retroactively in California, Ninth Circuit rules
MAY 23, 2019, Trial News
The so-called ABC test for whether a worker is an employee or independent contractor as decided by the California Supreme Court in Dynamex Operations West, Inc. v. Superior Court of Los Angeles applies retroactively, the Ninth Circuit has held. In a case involving a cleaning company and its franchisees, the court determined that applying a judicial decision retroactively aligned with established practices and did not violate the defendant’s due process rights.
Oklahoma noneconomic damages cap is held unconstitutional
MAY 9, 2019, Trial News
The Oklahoma Supreme Court has ruled that a $350,000 statutory cap on noneconomic damages for bodily injuries violates the state’s constitution. The court concluded that the cap treats similarly affected people differently without a reasonable explanation. Accordingly, the court reversed a district court ruling that slashed a verdict for a man’s injuries stemming from a crane boom fall based on the cap.
Failure to prevent pressure sores
APRIL 30, 2019, PNLR News
The estate of a woman who developed a stage IV pressure sore on her heel sued the skilled nursing facility that had treated her, alleging failure to provide adequate care, ensure adequate staffing, and prevent her pressure sores. The jury awarded $11 million, including $6 million in punitive damages. Collado v. Fiesta Park Healthcare, L.L.C.
Walmart cannot skirt OSHA regs for vaccinating employees who render first aid
APRIL 25, 2019, Trial News
The Centers for Disease Control and Prevention (CDC) guidelines for vaccinating employees who respond to medical incidents at work are not simply “recommendations” but are mandatory requirements under OSHA regulations, the Eighth Circuit has ruled. In an appeal of OSHA fines assessed against Walmart for its handling of hepatitis B vaccinations for employees who render first aid, the court found that the CDC’s recommendations for how those vaccinations should be administered had been incorporated into OSHA regulations and therefore were binding on the employer.
Platform abutting movie theater display board collapses, injuring patron
APRIL 16, 2019, PLLR News
The plaintiff, who fractured her hip in a fall from the platform of a face cutout display board at a movie theater, sued the platform manufacturer for defective design. Suit alleged that the platform was not strong enough to support the weight of an average person. The parties settled for $2.3 million. Doe v. Roe Mfr.
Maritime manufacturers have duty to warn sailors of known, dangerous risks, SCOTUS rules
APRIL 11, 2019, Trial News
Ruling in favor of sailors who developed cancer due to asbestos exposure aboard Navy ships, the U.S. Supreme Court has held, 6-3, that a maritime manufacturer has a duty to warn of known, dangerous risks. The Court said the duty is triggered when the manufacturer’s product requires a part to be incorporated to function; when it “knows or has reason to know that the integrated product is likely to be dangerous for its intended uses”; and when “the manufacturer has no reason to believe that the product’s users will realize that danger.” With this middle-of-the-road approach, the Court affirmed the Third Circuit’s decision in favor of the plaintiffs.
Congress announces new bills to end forced arbitration
MARCH 14, 2019, Trial News
At a Feb. 28 press briefing, members of Congress announced a package of bills being introduced to end forced arbitration and restore access to the courts for workers, nursing home residents, servicemembers, and others. Joined by members of the U.S. Senate and House of Representatives, 12 people from across the country shared stories of how forced arbitration impacted them and called on Congress to ensure that everyone’s Seventh Amendment rights are protected.
Defective tire leads to tread separation
MARCH 5, 2019, PLLR News
Suit alleged that a tire manufacturer and tire service company, among others, were liable for a concrete mixing truck’s tire tread failure. The plaintiffs charged that tread in the roadway led to a minivan rollover that caused their severe injuries. Some of the defendants settled confidentially, and the jury awarded $10.6 million plus $1.1 million in delay damages. The parties later reached an undisclosed settlement. Doe v. Silvi Concrete Prods.
Federal Circuit overturns precedent in favor of vets seeking disability benefits
FEBRUARY 28, 2019, Trial News
The Court of Appeals for the Federal Circuit has ruled that veterans who served in Vietnam’s territorial seas without setting foot on land—known as “Blue Water” Navy veterans—should be considered to have “served in the Republic of Vietnam” and thus entitled to the benefit of 38 U.S.C. §1116. The en banc decision entitles these veterans to §1116’s “presumption of service connection” if and when they develop certain health conditions—a significant shift that attorneys said should make it easier for thousands of injured veterans to receive disability benefits.
Failure to investigate, prevent sexual abuse
FEBRUARY 19, 2019, PNLR News
Suit against the state of New Hampshire and its department of children, youth, and families, among other defendants, alleged failure to investigate the abuse of two children by their parents, prevent the abuse, and ensure that the defendants’ agents were trained to identify situations that posed an unreasonable risk to the children’s safety. The state settled for $6.75 million. Roe v. State of New Hampshire.
Pfizer ‘training module’ inadequate to waive employees’ right to jury trial, New Jersey appellate court rules
FEBRUARY 14, 2019, Trial News
A New Jersey appellate court has ruled that the design of an online training course about Pfizer, Inc.’s employee arbitration policy violated state contract law and was not a legally binding waiver of the right to a jury trial. The court found that the “oblique procedure” the company used did not constitute a valid and knowing waiver of the employees’ legal rights.
Concealment of Pradaxa’s risks
FEBRUARY 5, 2019, PLLR News
The family and estate of a woman who died from bleeding sued the maker of Pradaxa, alleging that the defendant misrepresented and concealed the bleeding risk that the drug posed. Suit also alleged that there was no way to reverse the drug’s anticoagulant effect. The jury awarded $1.25 million, including $1 million in punitive damages. Knight v. Boehringer Ingelheim Pharms., Inc.,
SCOTUS rejects forced arbitration of independent contractor’s claims against trucking company
JANUARY 31, 2019, Trial News
In a unanimous 8-0 decision, the U.S. Supreme Court has ruled that an interstate trucking company may not compel arbitration of a truck driver’s claims because they constitute a dispute involving a transportation worker’s “contract of employment” and thus are exempted under §1 of the Federal Arbitration Act. Attorneys described this decision, which affects a large segment of transportation workers, as an important victory for workers seeking to protect their rights in the courts.
Failure to diagnose aortic dissection
JANUARY 22, 2019, PNLR News
The estate of a woman who died of a dissecting aorta sued an urgent care facility and a family physician for failure to diagnose the woman’s condition. The plaintiff claimed that, in light of the patient’s symptoms and history, the physician should have sent her to the hospital for a CT scan. The jury awarded $860,000. Tedder v. Carrieri.
District court stresses jurors’ importance to civil justice system when denying defendants summary judgment
JANUARY 17, 2019, Trial News
A federal judge has denied defense motions for summary judgment in a case involving a farm worker whose arm was crushed by a harvesting machine. The court found that material issues of fact remained and repeatedly declined to remove these questions from the jury, saying that to do so would be “. . . an unabashed retreat from the vision of the Founders.”
Failure to perform physical examination leads to sepsis
DECEMBER 26, 2018, PNLR News
The estate of a woman who died of sepsis caused by a small bowel obstruction and perforated diverticulum sued a gastroenterology practice, alleging that the defendant’s nurse practitioner failed to examine her when she presented with stomach pain and other symptoms. The plaintiff claimed that a physical examination would have led to a timely diagnosis of diverticulitis. The jury awarded $1.65 million, including $500,000 in punitive damages. White v. Cumberland Gastroenterology, PSC.
AAJ report details 2018’s ‘Worst Corporate Conduct’
DECEMBER 20, 2018, Trial News
AAJ has released a research report on the “Worst Corporate Conduct of 2018,” highlighting recent misconduct that has threatened and injured the public. The report details harmful practices—from predatory student lending to climate change denial to investor deception—and follows up on companies that appeared in AAJ’s 2017 corporate misconduct report, describing the empty “non-apologies” many CEOs have offered to try to escape accountability.
More companies reject forced arbitration of sexual harassment claims
DECEMBER 6, 2018, Trial News
In November, Google, Facebook, eBay, and Airbnb announced that they would no longer require employees to submit to forced arbitration when bringing workplace sexual harassment claims. The companies joined Microsoft, Uber, and Lyft, which have already ended forced arbitration of these claims. As the public continues to call for change in how sexual harassment cases are handled, it remains to be seen whether other employers—and Congress—will take similar actions to protect survivors and employees.
Late diagnosis of kidney cancer
NOVEMBER 20, 2018, PNLR News
A man who was diagnosed with renal cell carcinoma more than two and a half years after a CT scan showed a lesion on his kidney sued his treating urologist, alleging failure to order further evaluation. An earlier diagnosis would have meant a smaller risk of recurrence, the plaintiff claimed. The parties settled for $150,000. Doe v. Roe.
Florida Supreme Court rejects Daubert
NOVEMBER 15, 2018, Trial News
A 2013 amendment to Florida’s evidence code making Daubert the standard for scientific testimony is unconstitutional, the Supreme Court of Florida has ruled. The court determined that by enacting the statute—contrary to years of case law affirming the Frye standard—the legislature infringed on the court’s rulemaking authority as the changes were procedural not substantive.
Trampoline’s defective design leads to teen’s dislocated ankle
NOVEMBER 6, 2018, PLLR News
Suit against an indoor trampoline park and the companies that designed and manufactured the trampolines alleged that the equipment—which consisted of 30 trampolines tied together on a metal frame—was defectively designed in that the whole apparatus moved when jumped on, making it unsafe when multiple people were jumping. The parties settled for an undisclosed amount. Kelly v. Queen Jump, LLC.
SCOTUS debates negligence, duty to warn in sailors’ asbestos cancer cases
NOVEMBER 1, 2018, Trial News
Oral arguments in Air & Liquid Systems Corp. v. DeVries presented the U.S. Supreme Court with the question of whether “bare-metal” manufacturers can be held liable under maritime law for injuries caused by asbestos-containing materials added to their equipment after the point of sale. The justices tried to delineate a standard for when these manufacturers have a duty to warn, especially if the dangerous component must be added.
Failure to diagnose, treat anaphylaxis
OCTOBER 23, 2018, PNLR News
The husband of a woman who died of anaphylaxis after being administered contrast dye for a CT scan sued a hospital, alleging its ER physician failed to administer epinephrine as soon as he observed the patient’s reaction. The jury awarded $29.5 million. DeJongh v. Sioux Ctr. Health.
SCOTUS questions whether transportation workers must arbitrate claims
OCTOBER 18, 2018, Trial News
In oral arguments before the U.S. Supreme Court regarding whether §1 of the Federal Arbitration Act—which exempts transportation workers’ “contracts of employment” from the statute—applies to independent contractors, the justices challenged a trucking company’s argument that the §1 exemption applies only to contracts with employees. With most of today’s transportation workers classified as independent contractors, the case could significantly impact the transportation industry.
Failure to timely identify pelvic mass
SEPTEMBER 25, 2018, PNLR News
The patient’s estate sued an obstetrician and his practice, alleging failure to diagnose the patient’s teratoma and obtain informed consent from her about removing the mass before advising her to continue with her plans to undergo IVF and become pregnant. The woman died of metastatic cancer shortly after giving birth to twins. Perez v. St. Alexius Med. Ctr.
Veterans appeals court will hear class action, certification question for first time
SEPTEMBER 20, 2018, Trial News
For the first time, the U.S. Court of Appeals for Veterans Claims has determined that it may decide class action certification in petitions for writ of mandamus and that Federal Rule of Civil Procedure 23 will govern its analysis. In a case involving a petition for writ of mandamus against the Department of Veterans Affairs for unreasonable delays in replying to appeals of disability benefits denials, the court concluded that it has the authority to conduct limited fact-finding to answer the question of whether to certify a proposed class under Rule 23. The court’s chief judge called the decision a “seismic shift.”
Tire explosion leads to cement truck driver’s catastrophic injuries
SEPTEMBER 11, 2018, PLLR News
The plaintiff, whose injuries led to quadriplegia, sued the tire manufacturer, alleging that the tire was defective in that it lacked adequate component adhesion and had a thin inner liner that was far below the industry standard, which allowed air to migrate. The jury awarded more than $37.8 million. Benedict v. Hankook Tire Co.
ADA case may proceed alleging excessive slope in restaurant parking facilities
AUGUST 23, 2018, Trial News
Two plaintiffs suing a restaurant chain for violations of the Americans with Disabilities Act have Article III standing to proceed, but their proposed class does not meet Federal Rule of Civil Procedure 23’s requirements, the Third Circuit has ruled. The court noted that the plaintiffs alleged a novel interpretation of the statute that would require businesses to cure access barriers and also to proactively investigate their facilities for barriers and institute company-wide policies about this ongoing duty.
Report highlights NHTSA auto recall deficiencies
AUGUST 9, 2018, Trial News
The National Highway Traffic Safety Administration (NHTSA)’s management of auto recalls is inadequate, according to an audit conducted by the U.S. Department of Transportation’s Office of Inspector General (OIG).
Negligent preoperative assessment
JULY 31, 2018, PNLR News
The plaintiff, whose husband died after suffering a massive pulmonary embolism during knee surgery, alleged that the physician who conducted his preoperative assessment failed to follow up on an abnormal EKG and take a more complete medical history. The jury awarded $5.51 million. Johnson-Young v. Northshore Univ. Health Sys.
First Circuit rules unauthorized fees claims against Uber not subject to arbitration
JULY 26, 2018, Trial News
The First Circuit has ruled that Uber may not compel arbitration of claims that the rideshare company charged unauthorized fees in violation of a Massachusetts consumer protection statute. The court found that the plaintiffs could not have agreed to the Uber user agreement, which included a forced arbitration clause, because they were not reasonably notified of its terms. Attorneys have called the court’s decision to reverse and deny the defendant’s motion an important victory for consumers. (Cullinane v. Uber Tech., Inc., 2018 WL 3099388 (1st Cir. June 25, 2018).)
Bard IVC filter lodges in patient’s heart
JULY 17, 2018, PLLR News
Sherr-Una Booker, 37, was implanted with a C.R. Bard G2 IVC filter before undergoing cancer surgery. After the operation, seven of the eight struts on the filter perforated Booker’s vena cava. Two of the struts broke off, lodging into her heart and inferior vena cava. Although she underwent surgery to remove one of the metal struts, a piece of the filter remains in her inferior vena cava. This has restricted her activities of daily living and affected her quality of life.
False representation voids forced arbitration agreement, Nebraska high court holds
JULY 12, 2018, Trial News
The Nebraska Supreme Court has held that a forced arbitration agreement is invalid when a party’s signature is obtained through fraudulent misrepresentation. Attorneys who handle nursing home cases expect the decision will have a significant impact, especially following the U.S. Supreme Court’s decision in Epic Systems Corp. v. Lewis.
Failure to discontinue antibiotic leads to Stevens-Johnson syndrome
JUNE 26, 2018, PNLR News
The plaintiff alleged that her physician negligently failed to discontinue Bactrim for a urinary tract infection when she developed a severe skin rash. Additional dosages of the antibiotic led to the development of Stevens-Johnson syndrome. The jury awarded $1.5 million. Lall v. Rivera.
Tesla settles class action over Autopilot claims
JUNE 12, 2018, PLLR News
A preliminary settlement has been reached in one of the first lawsuits against Tesla Motors, Inc., for claims involving its Autopilot feature. A putative class of consumers in the Northern District of California alleged unfair and deceptive practices, fraudulent concealment, and other claims against Tesla for representations it made about its semiautonomous driving system, which it called “Autopilot.” The plaintiffs claimed that some of the Autopilot features were nonfunctioning and that there were defects in advertised safety features that made the Autopilot system dangerous.
SCOTUS upholds forced arbitration clauses, class action waivers in employment contracts
JUNE 7, 2018, Trial News
Dealing a massive blow to more than 60 million private sector, non-union workers who have signed employment contracts containing forced arbitration clauses—and the nearly 25 million who have signed class action waivers—the U.S. Supreme Court ruled, 5-4, in three consolidated cases that the Federal Arbitration Act (FAA) mandates that contracts containing these provisions must be enforced as written. The Court held that neither Section 2 of the FAA nor the National Labor Relations Act negates this mandate.
Failure to diagnose postoperative infection
MAY 22, 2018, PNLR News
Suit against an orthopedist and a hospital alleged failure to adequately investigate a child’s postsurgical complaints, monitor him closely, and review his lab tests and MRI. Had the physician done so, the plaintiff claimed, he would have received timely treatment for his wound infection and would not have developed complications. The jury awarded $2.75 million. Humphries v. Wood.
Defective design of dryer outlet contributed to fire, child’s death
MAY 8, 2018, PLLR News
The child’s estate sued the manufacturer of the dryer receptacle, alleging that the outlet’s design was defective and should have contained a warning that instructed users where to place wiring upon moving the outlet. Suit also named the person who had installed the receptacle. The jury awarded $650,000. Arner v. Leviton Mfg. Co.
Employers cannot use salary history to justify gender wage gap, Ninth Circuit holds
MAY 3, 2018, Trial News
The Ninth Circuit has ruled en banc that an employer cannot justify a wage difference between male and female employees by relying on the employees’ prior salary history, either alone or in combination with several other factors. Examining the “text, history, and purpose” of the Equal Pay Act of 1963, the court ruled that the answer to whether prior salary could ever be considered in setting present salary—a previously unresolved question of law—was a “clear” no.
APRIL 24, 2018, PNLR News
A patient alleged that a surgeon failed to send the left thyroid lobe—which was suspected to be malignant—to pathology before removing the right thyroid lobe during the same surgery. Testing later revealed neither lobe was cancerous. The jury awarded $8.5 million. Dancyger v. Kocsis.
Sixth Circuit rules Title VII prohibits discrimination based on transgender status
APRIL 5, 2018, Trial News
The Sixth Circuit has held that discrimination based on an employee’s transgender or transitioning status violates Title VII of the Civil Rights Act of 1964. The decision follows a recent opinion from the en banc Second Circuit finding that discrimination on the basis of sexual orientation violates Title VII.
Negligent treatment of arterial injury
MARCH 27, 2018, PNLR News
The patient sued a physician’s assistant who had examined his arm after a knife injury, alleging the defendant negligently failed to stop the bleeding in the plaintiff’s radial artery, consult with a supervising physician, and refer him to a specialist. The jury awarded $1.2 million. Bruhn v. Sioux Valley Mem’l Hosp. Ass’n.
Worker develops mesothelioma after exposure to Calidria-brand asbestos
MARCH 13, 2018, PLLR News
Suit against Union Carbide, Inc., which manufactured the product, alleged strict liability for making a defective product and failing to warn of its dangers. The jury awarded the plaintiffs approximately $6.94 million. Font v. Union Carbide Corp.
Bipartisan budget deal reinstates Ahlborn protections
MARCH 8, 2018, Trial News
On Feb. 9, President Donald Trump signed into law the Bipartisan Budget Act of 2018. The act eliminated the language from the Bipartisan Budget Act of 2013 that had repealed the U.S. Supreme Court’s holding in Arkansas Department of Health and Human Services v. Ahlborn. In that case, the Court held that a state can assert a Medicaid lien only on the portion of a settlement attributable to medical expenses.
Failure to adequately evaluate nursing home resident and timely transfer him to hospital
FEBRUARY 27, 2018, PNLR News
The resident’s son and estate sued the home, alleging it failed to adequately staff the facility with registered nurses during overnight hours and properly assess the resident in light of symptoms indicating a bowel obstruction. The jury awarded more than $7.62 million. Copeland v. Lowndes Cnty. Health Servs., LLC.
Ninth Circuit rules punitive damages available for unseaworthiness claims
FEBRUARY 22, 2018, Trial News
Punitive damages may be awarded to injured parties bringing general maritime unseaworthiness claims, the Ninth Circuit has ruled. While circuits remain split on this issue, the court’s decision resolves a district court divide within the Ninth Circuit. AAJ filed an amicus brief with the Ninth Circuit in support of the plaintiff.
Failure to warn of asbestos hazards
FEBRUARY 13, 2018, PLLR News
Suit against John Crane Inc. and other companies alleged that it sold the asbestos-containing gaskets and packing the plaintiff was exposed to during his time in the Navy and during the course of his employment. The plaintiffs alleged the products were defective, both in their failure to warn of their hazardous nature and in their design. The jury awarded more than $5.6 million. Sprague v. John Crane Inc.
Connecticut high court recognizes claim for unauthorized disclosure of medical information
FEBRUARY 8, 2018, Trial News
Reversing a lower court decision, the Connecticut Supreme Court has ruled that patients have a state tort cause of action against health care providers who disclose patients’ confidential medical information without their consent. The court acknowledged that it was recognizing a new tort cause of action and did so only after carefully considering existing privacy protections for both patients in Connecticut and in other states.
Improper response to fetal distress
JANUARY 30, 2018, PNLR News
Suit against the obstetrician and hospital alleged failure to timely deliver a baby and respond properly to signs of fetal distress. The plaintiff claimed that the physician should have come to the hospital sooner and that the hospital’s nurses failed to appreciate the worrisome nature of the fetal monitoring strips. The plaintiff settled with the hospital for $4.5 million and with the doctor for $1 million. Doe v. Roe Hosp.
Microsoft voids forced arbitration clauses in employee contracts for claims of sex discrimination, harassment
JANUARY 25, 2018, Trial News
Microsoft has announced that it will eliminate forced arbitration clauses in agreements with its employees. A blog post written by the company’s president and chief legal officer, Brad Smith, recounted how the recent #MeToo movement prompted Microsoft to examine its own internal policies, which led the company to discover forced arbitration clauses in employee agreements for a small number of its employees. Those clauses are now void.
Seat, transmission defects led to scraper operator’s paralyzing injury
JANUARY 16, 2018, PLLR News
The plaintiffs alleged that the scraper’s seat lacked adequate shock-absorbing capacity and that a defect in the machine’s transmission caused the scraper to buck up and down, causing the operator to suffer a spinal fracture. The parties settled after mediation for $7 million. French v. Caterpillar, Inc.
SCOTUS weighing free speech, public accommodations protections in Cakeshop case
JANUARY 11, 2018, Trial News
The U.S. Supreme Court has heard oral arguments in the high-profile Masterpiece Cakeshop case to determine whether the First Amendment protects a retail baker with religious objections to same-sex marriage from being required to make a wedding cake for a same-sex couple. The couple’s attorney focused on the state’s right to protect its citizens from discrimination, while the baker’s attorney argued that each of the baker’s custom-made cakes is an “artistic expression” and protected speech.
Failure to diagnose sepsis
DECEMBER 27, 2017, PNLR News
The plaintiff alleged that a nurse practitioner should have admitted a postpartum patient in light of her symptoms and blood work that showed an abnormally low platelet count and an elevated white blood cell count. Suit also claimed the nurse practitioner should have consulted with a physician. The jury awarded $20.6 million. Bermingham v. Eid.
AAJ releases 2017 corporate misconduct report
DECEMBER 21, 2017, Trial News
As the year draws to a close, AAJ has released a new research report detailing the “Worst Corporate Conduct of 2017.” Covering an array of industries—financial, medical, transportation, and more—the report highlights how companies’ misconduct touches all aspects of American life and the potentially deadly consequences, as well as the essential role the civil justice system plays in protecting people from corporate wrongdoing.
Seller deactivated bread slicer’s safety devices, leading to baker’s finger amputations
DECEMBER 12, 2017, PLLR News
The claimants alleged that the defendant had disabled five of the machine’s safety sensors during a product demonstration and failed to re-engage them before delivering the machine to the claimants’ bakery. The parties settled before filing for $2 million. Hansen v. Bakeryequipment.com, Inc.
Florida Supreme Court holds amendments to med neg law are unconstitutional
DECEMBER 7, 2017, Trial News
The Florida Supreme Court has struck down amendments to the state’s statutes regarding the filing of medical negligence claims. The amendments required plaintiffs to arrange ex parte interviews with their treating physicians at defendants’ request and other parties and did not require that the plaintiff or the plaintiff’s attorney be present at the interviews. The court determined that the amendments violated constitutional rights to privacy and access to the courts.
Louisiana Supreme Court upholds punitive damages in maritime case
NOVEMBER 16, 2017, Trial News
The Louisiana Supreme Court has affirmed a verdict awarding a plaintiff compensatory and punitive damages for products liability and maritime law claims he brought after his son died in a recreational boating incident. The court reduced the punitive damages award but found that punitive damages are available under general maritime law in Louisiana, a question that remains unsettled in jurisdictions across the country.
Insulation supplier’s failure to warn of asbestos hazards led to worker’s mesothelioma
NOVEMBER 7, 2017, PLLR News
The plaintiffs alleged general negligence against the supplier for its insulation work and breach of express and implied warranties in that the defendant knew or should have known when it sold and installed the insulation that it posed an unreasonable risk of injury. The jury awarded $7.55 million. Sylvestre v. New England Insulation Co.
Ninth Circuit affirms racial discrimination verdict, punitive damages for police officers
NOVEMBER 2, 2017, Trial News
The Ninth Circuit has affirmed a jury verdict in favor of three California police officers who alleged racial discrimination and retaliation against their department and police chiefs. For the first time, the court considered whether California law prohibits public employees from bringing §1981 claims and found that it does not. The court then upheld the verdict holding some of the police chiefs personally liable and assessing punitive damages for their malicious conduct against the officers.
Failure to identify lung abnormality
OCTOBER 24, 2017, PNLR News
The plaintiff alleged that the defendants failed to identify a lung abnormality on her CT angiogram, which, she claimed, would have led to a timely cancer diagnosis. The parties reached a postverdict settlement for $14 million. Skorek v. Edward Hosp.
SCOTUS seems closely divided in trio of employment arbitration cases
OCTOBER 19, 2017, Trial News
In one of the year’s most watched cases, the U.S. Supreme Court started its October 2017 Term with oral arguments in a trio of consolidated decisions about the enforceability of class and collective action waivers contained within forced arbitration agreements in employment contracts. The Seventh and Ninth Circuits have held that such provisions violate the National Labor Relations Act, which makes it illegal for employers to “interfere with, restrain, or coerce employees in the exercise” of their right to “engage in concerted activities.” But the Fifth Circuit has disagreed, ruling that the Federal Arbitration Act overrides the NLRA and requires upholding these agreements.
Jury finds for another patient injured by Ethicon pelvic mesh
OCTOBER 10, 2017, PLLR News
The plaintiff—who suffered injuries resulting in severe and permanent incontinence—alleged that the mesh devices were defectively designed in that the polypropylene material was too stiff and dense and had holes that were too small to properly integrate into the vaginal tissue. The jury awarded $57.1 million, including $50 million in punitive damages. Ebaugh v. Ethicon Inc.
Lawsuits mount against Equifax as judge rules Yahoo must face cybersecurity class action
OCTOBER 5, 2017, Trial News
The fallout from two high-profile security breaches has underscored ongoing concerns over the safety of sensitive consumer information in the hands of large corporations. In early September, Equifax—one of the nation’s largest credit reporting agencies—revealed that it had discovered a massive security breach in July that compromised the Social Security numbers, addresses, birthdays, and driver’s license numbers of nearly 143 million people. And on Aug. 30, a federal district court ruled that Yahoo will have to face a consolidated class action that was filed after the company disclosed a series of security breaches that compromised the accounts of more than 1 billion customers.
Negligent performance of endovascular coiling procedure
SEPTEMBER 26, 2017, PNLR News
The plaintiffs alleged that a neuroradiologist misplaced and overinflated a balloon used in the procedure and was inexperienced with the procedure, leading to the patient’s fatal brain bleed. The jury awarded $7 million. Raznoff v. American Anesthesiology of Va., P.C.
Seventh Circuit holds unaccepted offer letter does not bar suit
SEPTEMBER 21, 2017, Trial News
The Seventh Circuit has held that receiving an unaccepted settlement offer from a corporation before a complaint is filed against it does not deprive a plaintiff of standing. The court applied the standard the U.S. Supreme Court outlined in Spokeo, Inc. v. Robins, which evaluates standing by determining whether a plaintiff suffered an injury in fact that is fairly traceable to the defendant and likely to be redressed by a favorable decision.
Treestand maker failed to warn that polypropylene straps would degrade
SEPTEMBER 12, 2017, PLLR News
The plaintiffs alleged that the treestand’s manufacturer failed to provide an adequate warning that the polypropylene straps sold with the stand would degrade significantly with environmental exposure. The jury awarded approximately $18.49 million. O’Bryan v. Primal Vantage Co.
Ninth Circuit finds Spokeo plaintiff has standing
SEPTEMBER 7, 2017, Trial News
The Ninth Circuit, on remand, has ruled that a plaintiff has Article III standing to bring a claim against Spokeo, Inc., for violating various procedural requirements under the Fair Credit Reporting Act that resulted in inaccurate information about the plaintiff being published online.
Failure to restore heartbeat to normal
AUGUST 22, 2017, PNLR News
The plaintiff alleged that a hospital was liable for its nurse’s failure to adequately monitor a heart patient’s vital signs, connect his external pacemaker, and notify a physician of his bradycardia. The jury awarded approximately $5.8 million. Ashmore v. Hartford Hosp.
Federal district court upholds FDA regulation of e-cigarettes
AUGUST 17, 2017, Trial News
The District Court for the District of Columbia has held that the FDA has the authority to regulate electronic nicotine delivery systems, most commonly known as e-cigarettes. The court found that the agency “unquestionably” has the right to exercise its discretion to deem e-cigarettes as tobacco products requiring regulation.
Shoe manufacturer’s failure to remove tack leads to worker’s toe amputation
AUGUST 8, 2017, PLLR News
The plaintiff required amputation of part of his foot due to a wound caused by a tack in his specialty safety shoes. Suit alleged defective manufacture, breach of implied warranty, and negligent failure to inspect the shoe. The parties settled. Mack v. Lehigh Outfitters, LLC.
Ninth Circuit refuses to reconsider vacated verdict in FTCA birth injury case
August 3, 2017, Trial News
The Ninth Circuit has denied a motion to reconsider its decision to vacate a verdict in a birth injury case involving a U.S. servicemember’s wife and child. The court had affirmed a lower appellate court’s overturning of the verdict because the claim was barred by the Federal Tort Claims Act’s “foreign country exception.”
Failure to read ultrasound
JULY 25, 2017, PNLR News
The plaintiff alleged that a radiologist and imaging center were liable for failing to review an ultrasound of her breast before interpreting a second breast ultrasound as benign. The jury awarded approximately $21.59 million. Lazard v. Signet Diagnostic Imaging Servs.
Wisconsin Court of Appeals finds med mal noneconomic damages cap unconstitutional
JULY 20, 2017, Trial News
A noneconomic damages cap in medical malpractice actions is facially unconstitutional because it denies catastrophically injured plaintiffs equal protection under the law, the Wisconsin Court of Appeals has ruled. The court found that the cap is unfair because it always limits noneconomic damages for severely injured plaintiffs but never for less severely injured plaintiffs.
Guardrail impales driver after defective end unit fails
JULY 11, 2017, PLLR News
Suit against the end unit’s manufacturer and its parent company alleged that the product was defectively designed and manufactured and that it failed to meet the federal specifications for which it was approved. The plaintiff claimed that the defendant made unapproved modifications that prevented the unit from functioning as intended. The parties settled confidentially. Traylor v. Trinity Indus., Inc.
SCOTUS finds no jurisdiction for nonresident plaintiffs in pharma case
JULY 6, 2017, Trial News
A California court cannot exercise personal jurisdiction over a defendant for nonresident plaintiffs’ claims, the U.S. Supreme Court has ruled. In a closely watched case involving claims against drugmaker Bristol-Myers Squibb Co., the Court found that the California Supreme Court’s “sliding scale” approach to specific jurisdiction was not in line with its specific jurisdiction precedents.
Failure to use bedrails
JUNE 27, 2017, PNLR News
Suit against a hospital alleged that a patient suffered a broken hip in a fall from her bed because staff failed to use all four of the bedrails on her bed, maintain enough lighting in her room, and assist her in getting to the bathroom. The jury awarded $909,000. Harrison v. West Boca Med. Ctr.
Seventh Circuit expands protection of transgender students
JUNE 22, 2017, Trial News
The Seventh Circuit has ruled that a Wisconsin school district violated the rights of a transgender student, Ashton Whitaker, under Title IX and the Equal Protection Clause when it refused to let him use the boys’ bathroom. In a significant ruling that could impact the rights of transgender students nationwide, the court held that Ashton had demonstrated a sufficient likelihood of success on the merits of his claims.
Hair product manufacturer settles class action alleging hair loss
JUNE 13, 2017, PLLR News
The plaintiffs contended that defects in the hair conditioner caused significant hair loss and that the defendants had been aware of the danger since around the time the product was released in 2007. Claims included breach of warranty, breach of contract, and violation of the state unfair trade practices act and false advertising act, among others. The parties settled for approximately $26.3 million. Friedman v. Guthy-Renker LLC.
Ninth Circuit revives class action against AARP
JUNE 8, 2017, Trial News
The Ninth Circuit has allowed a class action against AARP to proceed, holding that the plaintiff stated a plausible claim that the association violated California’s Unfair Competition Law by soliciting insurance without a license and misleading the public by withholding the fact that member payments for health insurance included a commission.
Negligent performance of crown procedures
MAY 23, 2017, PNLR News
The plaintiff claimed negligence, common law fraud, and deceptive business practices against her dentist for substandard crown work and for allegedly abandoning her during the course of treatment. The jury awarded about $899,600. Wheeler v. Marsala.
City of Miami has standing to sue under FHA, Supreme Court holds
MAY 18, 2017, Trial News
In a 5-3 decision, the U.S. Supreme Court has held that the city of Miami has standing to sue for alleged injuries caused by two banks’ predatory lending schemes in violation of the Fair Housing Act. The plaintiff argued that discriminatory practices by Wells Fargo and Bank of America resulted in higher default and foreclosure rates in minority neighborhoods and imposed significant burdens on the city, including lower property values and greater costs for police and fire protection. The Court, however, remanded the issue of proximate cause to the Eleventh Circuit, reversing the appellate court’s ruling on that issue and holding that, in determining whether the city can recover damages, it should have applied a more rigorous test than foreseeability.
Auto parts sellers liable for excavator’s mesothelioma
MAY 9, 2017, PLLR News
Suit alleged that the defendants sold defective and unreasonably dangerous brakes, clutches, gaskets, and other automotive parts containing asbestos. The plaintiff also alleged that the companies were negligent in failing to warn of the known dangers of asbestos in their products. The jury awarded $81.5 million. Coogan v. Genuine Parts Co.
Specific jurisdiction over a drugmaker debated at SCOTUS
MAY 4, 2017, Trial News
Last week, the U.S. Supreme Court heard oral arguments about whether a state can exercise specific jurisdiction over a drugmaker for nonresidents’ products liability claims. Hundreds of consumers alleged they suffered adverse health effects from taking Plavix, a blood thinner manufactured by Bristol-Myers Squibb Co. In August, the California Supreme Court ruled that a local court could assert specific jurisdiction over Bristol-Myers for the California residents’ and out-of-state residents’ claims, which the drugmaker appealed.
Misread CT scan
APRIL 25, 2017, PNLR News
The plaintiffs alleged that a radiology contractor and a hospital were liable for a radiologist’s failure to timely diagnose a patient’s intracranial bleeding. Had the radiologist identified a small area of bleeding on the patient’s CT scan, suit alleged, she could have received lifesaving treatment. The jury awarded $425,000. Jorgenson v. Indiana Reg’l Med. Ctr..
No jurisdiction over foreign corporation for design defect claim, Ninth Circuit rules
APRIL 20, 2017, Trial News
California courts cannot exercise jurisdiction over foreign corporation Yamaha Motor Co. Ltd., in a case involving design defect claims against its domestic subsidiary, the Ninth Circuit has ruled. The court held that the plaintiffs’ complaint did not allege sufficient facts to establish general or specific jurisdiction over Yamaha for allegedly defective boat motors.
Silica supplier’s failure to warn caused sandblaster’s fatal lung disease
APRIL 11, 2017, PLLR News
The plaintiffs alleged that the defendants—more than 20 companies that mined and sold silica for use in sandblasting—failed to warn of the health risks of silica exposure. Sampson v. Pangborn Corp.
Veterans exposed to contaminated water at Camp Lejeune entitled to disability benefits
APRIL 6, 2017, Trial News
U.S. servicemembers exposed to contaminated water at Camp Lejeune may now file for disability benefits under a new U.S. Department of Veterans Affairs rule. The rule covers seven types of cancer and Parkinson’s disease, and it applies to veterans who served at the North Carolina base or the nearby Marine Corps Air Station New River between Aug. 1, 1953, and Dec. 31, 1987. The VA estimates that more than $2 billion in benefits will be provided to thousands of servicemembers.
Failure to transfer patient to coronary care unit
MARCH 28, 2017, PNLR News
The plaintiffs alleged that a hospital had breached the standard of care by failing to transfer a patient to the coronary care unit when he experienced chest pain and tachycardia. The jury awarded about $3.6 million. Zuluaga v. Angelopoulos.
Members of Congress introduce bills to combat forced arbitration
MARCH 23, 2017, Trial News
At a March 7 press briefing, several members of Congress announced various bills intended to curb the use of forced arbitration against consumers, employees, students, and servicemembers. The legislators were joined by former Fox News anchor Gretchen Carlson, U.S. Navy reservist Kevin Ziober, and Wells Fargo customer Aaron Brodie, who shared their stories of how forced arbitration has affected their experiences with the civil justice system.
Engine gasket makers’ failure to warn of asbestos danger leads to woman’s peritoneal mesothelioma
MARCH 14, 2017, PLLR News
The plaintiffs alleged that various manufacturers of asbestos-containing products were aware of their products’ dangers but failed to adequately warn of the hazard. The net award totals $52.5 million. Robaey v. Air & Liquid Sys. Corp.
Briefing highlights impact of anti-civil-justice bills on injured people’s rights
MARCH 9, 2017, Trial News
Injured people are at risk of losing their right to hold wrongdoers accountable if several bills currently before the U.S. House of Representatives pass. A March 3 briefing for congressional staff highlighted the negative consequences of enacting the legislation for plaintiffs across the civil justice system. Legal experts and former plaintiffs whose cases have already proceeded through the civil justice system spoke to congressional staff about the real-life impact of these bills—denying millions of injured Americans access to the courts.
Failure to diagnose bronchopneumonia
FEBRUARY 28, 2017, PNLR News
Suit alleged that a hospital was liable for its ER physician’s failure to diagnose an infant’s bilateral bronchopneumonia or include this in her differential diagnosis. The jury awarded the plaintiff $19 million. Nash v. VHS Physicians of Mich.
AAJ releases robot cars research report
FEBRUARY 23, 2017, Trial News
The American Association for Justice’s new research report, Driven to Safety: Robot Cars and the Future of Liability, discusses the benefits of a driverless future, as well as how the civil justice system will evolve in response—especially when autonomous technology injures or kills someone. The report explains how the courts have adjusted to technological advances in the past to develop a robust system for addressing problems and discusses the pros and cons of various liability approaches to robot cars.
E-cigarette battery lacked warning about explosion danger
FEBRUARY 14, 2017, PLLR News
The plaintiff, who was burned when an e-cigarette battery exploded in his shirt pocket, sued the retailer that sold the battery, alleging that it was defective and lacked adequate warnings. In a bench trial, the court awarded about $1.24 million. Heinlein v. Vapormax Inc.
DOJ, Baltimore reach consent decree over police reforms
FEBRUARY 9, 2017, Trial News
On Jan. 12, the city of Baltimore and the U.S. Department of Justice (DOJ) signed a historic consent decree that outlined reforms aimed at restoring residents’ trust in the city’s police department. Among the reforms are increased officer supervision and de-escalation training, as well as the creation of a special citizen task force that will enhance civilian oversight of the Baltimore police department.
Failure to diagnose subarachnoid hemorrhage
JANUARY 31, 2017, PNLR News
Suit alleged that a hospital was liable for its physician and physician assistant’s failure to order a CT to rule out subarachnoid hemorrhage when the patient presented with a severe headache, dizziness, and other symptoms The parties settled during trial for $20 million. Zinski v. CDH-Delnor Health Sys.
Ninth Circuit rejects ascertainability requirement for class actions
JANUARY 26, 2017, Trial News
The Ninth Circuit has upheld certification of 11 statewide consumer classes claiming that ConAgra Foods misrepresented its Wesson oil products as “100% Natural.” In doing so, the panel joined a growing circuit split on the issue of ascertainability—that is, whether class representatives must show that an “administratively feasible” method exists to identify absent class members.
IKEA settles lawsuits over dressers that tipped over, killing three toddlers
JANUARY 17, 2017, PLLR News
The plaintiffs alleged that the restaurant sold the food in a defective condition and negligently permitted a loose wire bristle to enter the area where food was being prepared. The plaintiffs won a verdict of about $1.29 million. Brett v. 44th St. Rest. LLC.
California halts Uber's driverless fleet
JANUARY 12, 2017, Trial News
On Dec. 21, Uber announced that it will pull its driverless cars out of San Francisco after the California DMV revoked the registrations of all 16 vehicles. An experiment that lasted only a week, the ride sharing company defied state officials who warned that it did not have the necessary state permits for testing driverless cars and that its service was illegal.
DECEMBER 20, 2016, PNLR News
The patient’s estate sued a hospital’s operator, alleging it should have timely admitted the woman and prescribed an IV antibiotic. Suit also alleged an assisted living facility failed to promptly administer antibiotics and timely return the patient to the hospital when her condition began to deteriorate. Allen v. Brookdale Senior Living Communities, Inc.
Federal judge issues nationwide injunction against DOL’s new overtime rule
DECEMBER 15, 2016, Trial News
A Texas federal judge has issued a nationwide injunction blocking a U.S. Department of Labor (DOL) rule that would have expanded overtime pay to nearly 4.2 million workers across the country. The new rule was to become effective on Dec. 1, 2016.
Restaurant served food containing wire bristle, leading to patron’s esophageal injury
DECEMBER 6, 2016, PLLR News
The plaintiffs alleged that the restaurant sold the food in a defective condition and negligently permitted a loose wire bristle to enter the area where food was being prepared. The plaintiffs won a verdict of about $1.29 million. Brett v. 44th St. Rest. LLC.
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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 News
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.