Relevant Personal Injury Case Law

Verdicts Against Johnson & Johnson Raise Questions about the Risks of Baby Powder Use

November 7, 2016 | Lebowitz & Mzhen

Recent cases in the past year have resulted in several significant awards for plaintiffs who have developed ovarian cancer after using baby powder, increasing the question of risks surrounding the use of the product. Many baby powders are made with talcum powder, which is created from crushed talc, a mineral. Talcum powder absorbs moisture and is used in baby powder for that reason.

Generally, litigation has arisen from women who regularly used talcum powder in their genital area and developed ovarian cancer. Studies have shown different results, and there is no consensus on whether talc increases the risk of ovarian cancer. However, different studies over the years have raised serious concerns for consumers. One study found particles of talc embedded in ovarian and cervical tumors, leading to questions of a connection. One more recent study found a 44 percent increased risk of ovarian cancer among African-American women. The International Agency for Research on Cancer says that genital use of talc-based body powder is “possibly carcinogenic to humans.” Two lawsuits earlier this year resulted in high jury verdicts against the company. One woman was awarded $55 million, and the other was awarded $72 million. And in a recent case, another woman was awarded over $70 million.

Woman’s Photographic Evidence of Uneven Sidewalk Taken 30 Days after Accident Insufficient to Survive Summary Judgment Challenge

July 26, 2016 | Lebowitz & Mzhen

Earlier this month, an appellate court in Michigan decided an interesting case involving the type of evidence that is sufficient to survive a summary judgment challenge by the defense in a slip-and-fall case arising from an allegedly uneven sidewalk. In the case, Bernardoni v. City of Saginaw, the court held that photos taken 30 days after the woman’s injuries were insufficient to prove the dangerous condition of the sidewalk on the day of her injury.

The Facts of the Case

Ms. Bernardoni was walking on the sidewalk in Saginaw, Michigan when she tripped and fell. Upon inspecting the sidewalk when she got up, she noticed that there was a 2.5-inch differential in the height between two adjacent slabs on concrete, creating the “lip” on which she had tripped. She filed a premises liability lawsuit against the local government, seeking monetary compensation.

In response, the government asked the court to dismiss the case based on the immunity it possesses under state law. Specifically, the government pointed to the state statute that requires anyone suing based on a dangerous sidewalk to prove that the government knew of the dangerous condition for at least 30 days prior to the accident.

Court Finds “Public Duty” Doctrine Applies, Preventing Government Liability in Boating Accident

July 12, 2016 | Lebowitz & Mzhen

Earlier this month, a state appellate court issued a written opinion discussing how the “public duty” doctrine can act to prevent a plaintiff from suing a government agency for alleged acts of negligence stemming from a breach of a duty owed to the general public. In the case, McFarlin v. State, the court determined that the state owed a general duty to maintain the lake where the accident occurred in a safe condition. Because there was no evidence that there was some additional duty owed to the plaintiff, the public duty doctrine prevented government liability.

The Facts of the Case

Ms. McFarlin’s young son was on a boat being operated by her boyfriend on a lake that was owned and operated by the state. Shortly after embarking, McFarlin’s boyfriend drove the boat near two “danger” buoys that were marking a shallow dredge pipe. The boat came too close to the pipe, struck it, and flipped over. As a result, McFarlin’s young son died.

McFarlin sued the state, alleging that it was negligent in the placement of the buoys, the placement of the pipe, and that the pipe was not adequately marked. The state took the position that it was not liable because it did not violate any duty owed to the plaintiff. Specifically, the state claimed that the duty to keep the lake safe was owed to the general public, and that there was nothing establishing that it owed the plaintiff a duty above and beyond that which was owed to the public. Because of that, the public duty doctrine prevented the state from being found liable.

State Supreme Court Expands Statute of Limitations in Medical Malpractice Case

July 5, 2016 | Lebowitz & Mzhen

The Connecticut Supreme Court recently released a decision affirming a lower appellate court’s ruling that allowed a plaintiff’s medical malpractice case to proceed despite the fact that the plaintiff’s claim was not filed within the three-year statute of limitations for filing a medical malpractice claim in the state. The appellate rulings applied the “continuing course of treatment doctrine” to expand the statute of limitations and allow the plaintiff to pursue her claim.

As a result of the most recent appellate ruling from the highest state court in Connecticut, the plaintiff’s claim will return to the trial court and proceed toward a settlement or trial regarding her claim for damages.

The Defendant Left a Sponge Inside the Plaintiff’s Body During A Surgery, Causing Serious Pain and Discomfort

The plaintiff in the case of Ceferatti v. Aranow is a woman who had been receiving treatment by the defendants for her morbid obesity, which included a gastric bypass surgery that was performed in December 2003. According to the facts explained in the most recent appellate ruling, the defendant doctor inadvertently left a synthetic sponge inside the plaintiff’s abdominal cavity during the surgery. Although the plaintiff testified that she felt pain from the sponge about one year after the surgery, she did not discover the sponge until undergoing an unrelated CT imaging procedure over five years after the gastric bypass surgery. Approximately one year after discovering that the sponge had been left inside her, she filed a medical malpractice action against the defendants.

Premises Liability Cases and the “Recreational Use” Exception

April 8, 2016 | Lebowitz & Mzhen

Whenever a landowner invites others onto their land, the landowner assumes a duty of care to that person. Most commonly, this duty requires that the landowner take reasonable precautions to ensure that there are no dangerous conditions on their property that could result in injury to their guest. However, as is the case with most laws, there are exceptions when a landowner may be absolved from responsibility when someone injures themselves on the landowner’s property.

The Recreational Use Statute in Maryland

Maryland, like many other states, wants to encourage landowners to open their land for the general public to use and enjoy. In order to encourage this, the law grants landowners immunity from some lawsuits that may arise when someone comes onto their land and hurts themselves.

Generally speaking, the land must be open for free use by any member of the general public in order for the recreational use statute to apply. If it does not apply, the landowner may be held liable for injuries that occur on his or her land, even if the landowner was not aware of the condition himself.

Personal Injury Cases Based on Environmental Contamination

April 1, 2016 | Lebowitz & Mzhen

When a company operates a factory or other operation for a long period of time in the same area, unanticipated consequences can arise from the pollutants expelled from the operation. However, under state and federal laws, companies that operate factories or other facilities in an area have a duty to the residents living in the vicinity to keep harmful environmental toxins out of the water, soil, and air supplies. When people are harmed due to a company’s activity in their area, they may be entitled to monetary compensation for the harms they have suffered. These cases are often referred to as “toxic tort” cases.

Establishing liability in a toxic tort case requires the plaintiff to establish a number of factors. Often, one of the more contested factors is causation, which addresses whether the defendant’s actions in polluting the area were the cause of the plaintiff’s injuries. This often requires the testimony of scientific and medical experts.

Recent Case Against Shell Reversed on Appeal in Favor of Plaintiffs

In a recent case in front of a New Mexico appellate court, the court determined that the plaintiffs’ causation evidence that was excluded at trial should not have been excluded, and it reversed the lower court’s decision. As a result, the plaintiff will be given the opportunity to proceed with their case.

Court Determines City Employee Not Personally Immune from Negligence Lawsuit

March 22, 2016 | Lebowitz & Mzhen

Earlier this month, the Oregon Supreme Court issued an opinion determining that a city employee is not considered an “owner” of city property and thus, may be held liable for his negligent actions that result in another’s injury. In the case, Johnson v. Gibson, the court’s ruling will permit the plaintiff’s lawsuit to proceed against the city employee in his individual capacity.

The Facts of the Case

The plaintiff, who is legally blind, was injured while jogging in a city-owned park. She tripped and fell after stepping in a hole that had been dug to fix a broken sprinkler head. The plaintiff then filed a lawsuit against the individual employee responsible for digging the hole.

The case was filed in federal court, and in order to decide the case the federal court had to apply Oregon law. The federal court then asked the Oregon court to answer one specific question: was the defendant, a city employee, entitled to official immunity as an “owner” of the land?

Plaintiff’s Case Against University Dismissed Based on Improper Venue

March 8, 2016 | Lebowitz & Mzhen

Earlier this month, a Mississippi appellate court dismissed a negligence action against an Alabama university, based on the fact that the case was filed in an inappropriate jurisdiction, and the court did not have the authority to transfer the case to a more appropriate court. In the case, Ramsey v. Auburn University, the plaintiff was a college student who was injured while working out in preparation to join the University’s football team.

The Facts of the Case

The plaintiff was a high school student when he applied to attend Auburn University to play football. He was accepted and offered a scholarship. After his acceptance, the coaching staff at the University sent the plaintiff a workout plan in order to get him into shape for the upcoming season. The next year, the plaintiff moved out to Alabama to attend Auburn University.

During orientation, the plaintiff’s father told the coaching staff that his son was prone to back injuries, and not to make him do “power cleans,” a very specific type of workout. However, during his training, the coaching staff recommended that the plaintiff do “power cleans” as part of his regimen. The plaintiff complied. That year, the plaintiff experienced lingering back pain. Eventually, the condition worsened, and he was unable to play football for the University.

Birth Injury Plaintiff’s Failure to Timely Serve Defendant Nearly Results in Dismissal

February 22, 2016 | Lebowitz & Mzhen

Earlier this month, one state’s supreme court issued a written opinion in a birth injury case that had been dismissed by the lower court because the plaintiff failed to serve the defendant with notice of the lawsuit in a timely manner. In the case, Collins v. Westbrook, the plaintiff was a mother suing the defendant doctor for the wrongful death of her still-born daughter. The court ultimately held that, although the defendant was never served, the plaintiff showed “good cause” justifying the failure, and the case should not be dismissed on that basis.

The Facts of the Case

The defendant was the plaintiff’s treating physician during her pregnancy, which resulted in a still birth. The plaintiff then filed suit against the defendant doctor, alleging that his negligence was the cause of her child’s still birth. As is required by the rules of procedure, the plaintiff set out to serve the defendant with notice of the lawsuit. The applicable rule requires notice to be provided within 120 days.

The plaintiff’s attorney charged his assistant with serving the defendant. However, shortly before the 120 days had elapsed, her attorney realized that the assistant had not effectuated service due to “great personal problems.” The attorney then hired a professional process server to track down and serve the defendant.

Medical Malpractice Case Dismissed for Failure to Comply with Medical Expert Requirements

February 15, 2016 | Lebowitz & Mzhen

Earlier this month, a state supreme court issued an opinion in a medical malpractice case, preventing a plaintiff’s case from moving forward based on the plaintiff’s failure to comply with the state’s medical expert requirement in medical malpractice lawsuits. In the case, Easterling v. Kendall, the court did not allow or consider the plaintiff’s medical expert’s testimony because it was not properly disclosed during pre-trial discovery.

The Facts of the Case

The plaintiff was a young girl who suffered a fall at a local YMCA. When emergency personnel arrived, she was vomiting, had numbness in her left arm, and suffered from a severe headache. She was taken to the hospital, where the defendant doctor determined that the girl had hit her head and that she had suffered a concussion. He provided her with anti-nausea medication and sent her home.

The next day, the girl was re-admitted to the hospital. She complained of a severe headache and uncontrollable twitching. The radiologist on duty performed an MRI and discovered that the girl had actually suffered from a dissection of the right internal carotid artery, rather than a concussion. The attending physician determined that the girl had suffered a stroke in the past six hours. She was transferred to a more specialized hospital, where she remained in the hospital for almost a month. The girl, through her parents, sued the treating physician, arguing that had the physician properly diagnosed the girl with a dissection of the right internal carotid artery in the first place, she would not have suffered the permanent neurological damage she did.