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

Mealey's Personal Injury

December 21, 2023
3rd Circuit: Suit Not ‘Ripe’ In Insurer’s Row With Care Homes Over COVID Coverage

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

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

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

SAN DIEGO — A California federal judge ruled that experts retained in a wrongful death suit against the county of San Diego, the medical group in charge of inmate care and various employees may testify but said one expert may not make assertions about individual employees.
December 14, 2023
Default Judgment Recommended In Insurance Coverage Row Over Personal Injury Suit

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

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

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

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

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

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

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

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

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

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

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

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

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

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

LIMA, Ohio — An Ohio appellate court on Nov. 27 affirmed a lower court order that denied a motion by a long-term care (LTC) facility to stay a negligence and wrongful death suit filed against it and compel arbitration, finding that the lower court did not abuse its discretion in determining that the arbitration agreement the decedent signed when admitted to the assisted living portion of the facility did not apply to her later admission to the skilled nursing division of the facility.
November 28, 2023
6th Circuit: No Error In Excluding Treating Physician, Summary Judgment Affirmed

CINCINNATI — The Sixth Circuit U.S. Court of Appeals affirmed summary judgment awarded to a truck driver involved in a collision, finding that the man he struck did not prove causation and that his expert was properly excluded.
November 27, 2023
Golf Course Is Arm Of Tribe, Entitled To Tribal Immunity, Washington Panel Finds

SEATTLE — A company that owns and operates a golf course is entitled to sovereign immunity from a personal injury suit brought by a man who was injured on the course because the company is an arm of the Swinomish Indian Tribal Community, a Washington panel found in affirming a trial court’s judgment dismissing the case.
November 21, 2023
Jury Awards More Than $165M Against Monsanto For PCB Injuries At Seattle School

SEATTLE — A Washington state jury on Nov. 20 awarded a combined total of $165,082,000 in compensatory and punitive damages to former teachers and staff at a Seattle area school for injuries stemming from exposure to polychlorinated biphenyls (PCBs), finding that Pharmacia LLC, a successor to Monsanto Co., was negligent when it supplied a product that was not safe and that Monsanto misrepresented facts about the dangers of PCBs.
November 17, 2023
Michigan Court Partially Reverses Expert Exclusion Ruling On Interlocutory Appeal

TROY, Mich. — An expert who is not board-certified in surgical critical care cannot opine on whether doctors who are board-certified breached the applicable standard of care, a Michigan appeals court ruled in an interlocutory appeal, partially reversing a trial court’s ruling in a wrongful death medical malpractice case.
November 17, 2023
5th Circuit Says No Error In Expert Testimony, Upholds $5M Verdict For Crash

NEW ORLEANS — The Fifth Circuit U.S. Court of Appeals affirmed a $5 million verdict for a woman and her brother who were injured in a car crash and allege that a Honda vehicle design defect was at fault, finding that the expert witnesses were properly admitted and rejecting other points on appeal.
November 17, 2023
Pipe Maker Awarded $8.8M Asbestos Verdict Disputes Tainted Jury Narrative

LOS ANGELES — The fact that the jury unanimously voted against imposing punitive damages demonstrates that there was no “serious . . . misconduct” tainting jurors who eventually awarded a nearly $9 million asbestos verdict, a couple argues in California trial court briefs opposing motions for new trial and judgment notwithstanding the verdict (JNOV).