Maryland Accident Law Blog

Federal Court Denies Class Certification in Medical Products Liability Claim

July 25, 2012 | Lebowitz & Mzhen

A U.S. District Judge in Pittsburgh has denied a plaintiff’s motion to certify a class in a products liability lawsuit. In Haggart v. Endogastric Solutions, Inc., the plaintiff claimed that a medical device manufacturer failed to warn of certain risks associated with a device used to treat his gastroesophageal condition. The court ruled that he failed to demonstrate the prerequisites for class certification, finding that the potential class members did not have the common experiences or interests that would make a class action an efficient way to resolve their claims.

The plaintiff, Daniel Haggard, suffers from gastroesophageal reflux disease (GERD), a condition where stomach contents, including stomach acid, flow back into the esophagus. It causes irritation to the esophagus and conditions like heartburn. He declined a common device used to treat GERD, known as a Nissen Fundoplication, because it required permanent implantation. He opted for a device known a an EsophyX, allegedly based on representations from the manufacturer, defendant Endogastric Solutions, that the procedure is “reversible.”
He had the device implanted in June 2009, but he learned three months later that the device had failed to properly implant. On his doctor’s advice, he went ahead with the Nissen Fundoplication, and he learned that the EsophyX was not “reversible,” but rather “revisable.” The fasteners for the EsophyX were not removable, because tissue had grown around them. This allegedly foreclosed other medical options that might have otherwise been available. After the Nissen Fundoplication, he alleged that his GERD symptoms grew worse.

Woman Sues Police Department and Town Over Shooting of Armed Assailant

July 19, 2012 | Lebowitz & Mzhen

A standoff involving a suspected criminal, his hostage, and a police officer in March 2012 ended with the suspect dead, the hostage rescued, and the officer hailed as a hero. In an unusual twist, the woman who was held hostage that evening has indicated that she plans to sue the New Jersey township where the incident occurred. In a tort claim notice filed in June, she stated that she intends to claim negligence and various breaches of duty against both the township and the police officer involved in the shooting, and to seek monetary damages for injuries she allegedly sustained as a result. Because the township is a government entity, she is legally required to submit a notice of claim to the township before she may file a lawsuit.

During the early evening of Thursday, March 8, 2012, mall security guards and an off-duty police officer working security approached 44 year-old Andres Garcia in the Woodbridge Center shopping mall in Woodbridge, New Jersey. They suspected Garcia of shoplifting. Garcia was also wanted for violating his parole on a robbery conviction. He reportedly fled from the security guards through the mall. At the entrance of the Sears store, Garcia grabbed 62 year-old Ellen Shane, who was shopping with her husband, Ronald Shane. Holding a knife to her throat, Garcia dragged Shane into the store while her husband tried to hold onto her. According to the county prosecutor, the police officer, Edward Barrett, Jr., warned Garcia several times to drop the knife. Garcia reportedly told Barrett he would hurt Shane if Barrett did not allow him to leave. Barrett fired a single shot that struck Garcia in the head. Garcia was pronounced dead at 5:32 p.m. at the scene, with the gunshot later ruled as the cause of death.

Maryland Appeals Court Rules on Issue Preclusion and Contributory Negligence in Auto Accident Case

July 12, 2012 | Lebowitz & Mzhen

An interesting decision by the Maryland Court of Special Appeals addressed the applicability of an out-of-state jury verdict in a Maryland lawsuit concerning issue preclusion. In Bryan v. State Farm Mutual Automobile Insurance Co., the court found that a New York verdict finding a driver negligent precluded the driver from claiming on his insurance policy in Maryland. The court applied the doctrine of contributory negligence, which is still on the books in only a handful of states, including Maryland.

Brenton Bryan was driving in Freeport, New York on May 29, 2006, with his wife and two children in the car. According to Bryan, a “phantom vehicle” cut him off by changing lanes unexpectedly. This caused Bryan’s car to strike two other vehicles. The driver of one of those cars was Juan Chevez. Chevez and his wife, Ines Chevez, who was a passenger in the vehicle, sued Bryan in Queens County, New York, alleging that he was negligent and therefore responsible for the accident.

A jury trial in December 2010 focused exclusively on the question of Bryan’s liability. The jury found that Bryan operated his vehicle negligently that night, and that this was a “substantial factor in bringing about the accident.” Bryan and the Chevezes subsequently agreed to settle the matter for $30,000 in exchange for a general release.

Samsonite Recalls 250,000 Pieces of Luggage After Positive Carcinogen Tests

July 5, 2012 | Lebowitz & Mzhen

Samsonite, the world’s largest luggage manufacturer, has voluntarily recalled its “Tokyo Chic” line of luggage after tests on several samples found high levels of carcinogenic compounds in the handles. The tests, conducted by the Hong Kong Consumer Council (HKCC), led to a recommendation by the government of Hong Kong to stop selling the allegedly defective luggage models. Samsonite, despite maintaining that the luggage is safe, says that it is recalling the line of luggage to “allay any concerns that consumers may have.” The luggage line is primarily sold in Hong Kong and elsewhere in Asia, but it is not clear if the line is also available in the United States. The recall process is similar to that used in Maryland and elsewhere in the country.

The HKCC tested several samples of the Tokyo Chic luggage. It announced in mid-June that the handles on four of the samples tested positive for high levels of polycyclic aromatic hydrocarbons (PAHs). PAHs are a byproduct of incomplete hydrocarbon combustion, resulting from the burning of oil or coal and found in auto exhaust and other emissions. They may also be found in grilled food. Extended exposure to PAHs has been shown to increase the likelihood of cancer in humans.

Penn State Prepares for Sexual Abuse Lawsuits After Sandusky Verdict

June 28, 2012 | Lebowitz & Mzhen

Penn State University is reportedly seeking to settle the civil lawsuits filed by victims of former assistant football coach Jerry Sandusky after a Pennsylvania jury convicted Sandusky on forty-five counts of sexual abuse. This reported intent includes lawsuits that were already filed against the university, and those that are sure to follow. Penn State proposed a process to “address the victims’ concerns and compensate them for claims” related to allegations of abuse by Sandusky and both inaction and concealment by the university. In all likelihood, the university wants to resolve all potential claims quickly. Several lawsuits are already pending in Pennsylvania courts.

Sandusky worked in the Penn State football program for decades, retiring in 1999 but staying on with an “emeritus” title. He founded The Second Mile, a charity intended to help at-risk youth, in 1977. Prosecutors alleged that he used the charity to find his victims. They also alleged that the university knew about allegations of abuse going back years but failed to follow up on reports and investigations. In addition to the charges against Sandusky, prosecutors charged several Penn State administrators with perjury and obstruction of justice. After a trial lasting about a week, a jury convicted Sandusky on all but three charges of sexual abuse, forty-five in total.

If a Maryland Employees Gets Into A Distracted Driving Accident, When is the Employer Liable?

June 21, 2012 | Lebowitz & Mzhen

The problem of distracted driving, or driving while also trying to use a cell phone or other mobile device, has gained significant attention in recent years. States and cities have passed laws restricting use of mobile devices in an effort to curb distracted driving and improve safety. Distracted driving continues to play a role in thousands of automobile accidents, some of them fatal.

The federal government reports that distracted driving-related accidents killed at least 3,092 people in 2010. Around 416,000 drivers, passengers, and pedestrians were injured in crashes where at least one driver was not paying complete attention while behind the wheel. In claims for personal injuries in distracted driving accidents, the driver who caused the accident is almost always the main liable party, but in some cases a driver’s employer may also be liable. With greater attention being given to distracted driving, many employers are enacting cell phone policies in an effort to limit their own liability for their employees’ distraction-related accidents.

Employers may be liable for the negligent or unlawful actions of their employees in certain circumstances, according to the legal doctrine of respondeat superior. This doctrine holds an employer liable for accidents that occur while an employee is performing ordinary job duties in the regular course of operating their business. Courts have tended to take an expansive view of what activities are related to an employee’s job duties for the purpose of determining liability under a theory of respondeat superior. doctrine. Generally speaking, courts will apply the doctrine in a situation where an employee might engage in work-related activities, or where an observer might reasonably think the person is involved in work-related activities.

Maryland Driver Convicted for Car Accident that Severely Injured a Police Officer

June 15, 2012 | Lebowitz & Mzhen

A district judge in Baltimore convicted a man of three traffic violations over a June 2011 car accident that caused disabling injuries to a police officer. The man, 23 year-old Robert Vanderford, admitted to speeding and also failing to control his speed to prevent a collision, according to the Baltimore Sun. The judge also convicted him for a third offense: driving on a suspended license. The officer injured in the crash filed a civil suit against Vanderford about a month before the criminal trial.

The accident occurred in rainy weather on June 21, 2011. Officer Teresa Rigby, a 28 year-old Baltimore police offers only three years out of the academy, was reportedly assisting a motorist whose car had become disabled in the northbound lane of an elevated portion of Interstate 83. As a tow truck driver was hooking up the motorist’s vehicle, Rigby stood on the shoulder of the highway. Vanderford’s Saab collided with Rigby’s parked police cruiser. The cruiser then hit Rigby, causing her to fall over a barrier to a parking lot at least twenty feet below.

Vanderford’s attorney said that his client was driving northbound on I-83 in the middle lane when he saw the lights on Rigby’s cruiser. The defense lawyer said that Vanderford sped up to pass another vehicle and merge into the left lane, but that his rear tires began to spin, and he lost control of the car. The skid sent his vehicle into the police cruiser. Vanderford acknowledged that he was driving above the speed limit when he lost control.

Study Scores States on Injury Prevention, Ranking Maryland High

June 7, 2012 | Lebowitz & Mzhen

A study released by the Trust for America’s Health (TFAH), a nonprofit health care policy organization based in Washington, D.C. scores all fifty states and the District of Columbia on their success at implementing recommended programs to prevent injury-related deaths. It also ranks the states and D.C. on the total number of annual deaths from injuries. Maryland scored highly with eight of ten “key indicators” for effective injury prevention. The national average for injury-related deaths is 57.9 per 100,000 people. It ranked Maryland 37th among the states, with 56.1 fatal injuries per 100,000 people.

The study, entitled “The Facts Hurt: A State-By-State Injury Prevention Policy Report,” was conducted by TFAH with the support of the Robert Wood Johnson Foundation, a philanthropic organization that supports health care. TFAH sought to bring attention to injury-related deaths, which it called an overlooked but major problem in American public health. Injuries, according to the study, rank third among causes of death for all Americans, and they are the number one cause among people aged one to forty-four. The study directly contrasts deaths from injuries with deaths due to communicable diseases like influenza and noncommunicable diseases like cancer. The lifetime costs of the injuries that occur in a single year in the U.S. now exceed $406 billion, including both medical expenses and lost productivity.

Maryland Gets Touger on Distracted Driving

May 29, 2012 | Lebowitz & Mzhen

Distracted driving, defined as operating a motor vehicle with one’s attention split between the road and a mobile electronic communication device, is responsible for a significant number of accidents and fatalities on Maryland roads. The Maryland State Highway Administration identified 24,769 automobile accidents in 2008 that involved distracted driving. Those crashes killed thirty-four people and injured 11,578. That year, almost 6,000 people nationwide died in distraction-related crashes, with distraction playing a role in twenty-five percent of all automobile crashes. The total number of fatalities dropped to about 5,500 in 2009 and 3,000 in 2010, but those are still enormous numbers, making distracted driving nearly as big a threat as drunk driving. Recent events and legislative efforts have brought distracted driving into the spotlight again.

An accident in Connecticut demonstrates the danger posed by distracted driving. A jogger, 44 year-old Kenneth Dorsey, died on March 24 after a vehicle driven by a 16 year-old girl struck him. The girl was allegedly talking or texting on a handheld cell phone at the time. Police have not said specifically what she was allegedly doing, except that evidence suggests she had used the phone’s keypad before the accident. Prosecutors in Norwalk, Connecticut charged the girl with negligent homicide with a motor vehicle and with violating the state’s ban on use of a cell phone by novice drivers.

Thirty-one states prohibit use of handheld cell phones while driving for all drivers, including Connecticut and Maryland. Distracted driving laws vary from state to state, but no states have banned use of cell phones entirely. Maryland drivers may use a cell phone with a hands-free device like a headset, although use of a cell phone in any manner by drivers under the age of eighteen will be prohibited beginning October 1, 2012. School bus drivers are currently prohibited from using a handheld cell phone while working. All drivers are prohibited from writing or sending text messages while driving, except for the purpose of contacting a 9-1-1 emergency system.

City of Baltimore Approves $340,000 in Settlements for Traffic Accidents Involving City Vehicles

May 21, 2012 | Lebowitz & Mzhen

The City of Baltimore approved settlements in three civil claims filed against the city, totaling $340,000. The city’s Board of Estimates, a five-member board that includes the mayor, the president of the City Council, and the city comptroller, approved the settlements by a unanimous vote. The three claims all involved traffic accidents with city vehicles, including a 2007 collision between a fire truck and a car that killed three people.

Sovereign immunity, the legal principle that the government cannot be sued unless it consents to the lawsuit, governs claims made for accidents involving public vehicles, and requires that injured persons or their representatives file claims with a designated government agency before attempting to file suit. In Baltimore, for example, claims go through the city’s Law Department.

The fire truck accident occurred early on Sunday, December 9, 2007, when a fire engine ran a red light on Park Heights Avenue and struck a vehicle. The fire truck was reportedly responding to a report of smoke in an apartment building, and had its emergency lights and siren activated at the time. The smoke turned out to be from burning food in an apartment unit. Traveling at forty-seven miles per hour, the fire truck hit a Nissan Murano traveling at twenty-three miles per hour.