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At 3:35 a.m. on the San Mateo Bridge, Ong’s vehicle collided with the Gonzalez vehicle. Gonzalez's passenger, Morales, was killed. At the accident scene, Ong said that he worked the night shift at Genentech was driving his personal vehicle to Genentech on his night off to collect resumes for “upcoming interviews.” Before the accident, Ong told a friend that he was going to Genentech to do something important for work. During his deposition, Ong gave various reasons for his trip, including picking up personal items from work, visiting his grandmother, and picking up the resume of his unemployed friend, Alvarez. Ong’s testimony with respect to Alvarez’s resume was impeached. Genentech presented evidence that all of Ong’s technician duties were performed at Genentech during work hours. Genentech did not require Ong to drive or own a vehicle and did not compensate Ong for travel time or expenses. The Morales family sued, asserting negligence. The court of appeal affirmed the dismissal of "respondeat superior" claims against Genentech. The“going and coming” rule precludes Genentech’s liability because Ong was driving for his own convenience and not at Genentech’s request or as part of his regular duties. Plaintiffs failed to establish a triable issue that Genentech was liable under the “special errand” exception to that rule. View "Morales-Simental v. Genentech" on Justia Law

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Lyons sued Colgate, alleging that she developed mesothelioma from the use of Colgate’s Cashmere Bouquet cosmetic talcum powder. Colgate manufactured Cashmere Bouquet from 1871 to 1985 and continued marketing it until 1995 when the Environmental Protection Agency reported that the presence of asbestos in talc makes it a human carcinogen. The talc used in Cashmere Bouquet came from three different sources. Lyons presented evidence that talc from each of the sites contained some form of asbestos. The court of appeal reversed the entry of summary judgment in favor of Colgate. The trial court failed to comply with Code of Civil Procedure section 437c(g), requiring a written order specifying the reasons for its determination and “specifically refer[ring] to the evidence proffered in support of and, if applicable, in opposition to the motion that indicates no triable issue exists.” Its tentative ruling indicated only its view that “Plaintiff failed to submit evidence to create a triable issue whether she was exposed to asbestos-containing products or materials attributable to defendant.” The record contains substantial evidence creating a triable issue as to whether Cashmere Bouquet contained asbestos that may be found to have been a substantial cause of plaintiff’s mesothelioma. View "Lyons v. Colgate-Palmolive Co." on Justia Law

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This products liability lawsuit centered on Risperdal. Louise Taylor began suffering psychotic episodes when she was seventy-one years old, in early 1998. From March 1998 to January 2001, Psychiatrist Richard Rhoden prescribed Risperdal to Taylor for the treatment of her recurrent psychotic manifestations. In February 2001, Taylor developed tardive dyskinesia, a syndrome of potentially irreversible, involuntary, dyskinetic movements in patients treated with antipsychotic drugs. In 2002, Taylor filed a complaint against Ortho-McNeil Janssen Pharmaceuticals, the manufacturer, seller, and distributer of Risperdal, and its parent company Johnson & Johnson (collectively “Janssen”), claiming that Risperdal caused her to develop tardive dyskinesia. Taylor also named her treating physician, Dr. Richard Rhoden, as a defendant in her complaint. Taylor settled her claims against Dr. Rhoden prior to trial. The case went to trial oin 2014. The jury, in a nine to three decision, found that Taylor was harmed by Risperdal due to: (1) Janssen’s “failure to provide adequate warnings/instructions” and (2) Janssen’s “negligent marketing/misrepresentation.” The jury awarded Taylor $650,000 in actual economic damages and $1.3 million in noneconomic damages, for a total damages award of $1,950,000. On review, the Mississippi Supreme Court held that, as a matter of law, the Risperdal in question contained an adequate warning; the Court reversed and rendered the statutory inadequate warning judgment. Furthermore, the Court held that various errors in the jury instructions required reversal of the plaintiff’s verdict that sounded in negligent misrepresentation, and the Court reversed and remanded the negligent misrepresentation claim. View "Johnson & Johnson, Inc. v. Fortenberry" on Justia Law

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BSC appealed from various orders and a final judgment in favor of plaintiff, who alleged substantial injuries caused by the Pinnacle Pelvic Floor Repair Kit that was manufactured and sold by BSC. The Eleventh Circuit affirmed the district court's judgment for plaintiff, holding that the district court acted well within its discretion in consolidating four lawsuits and BSC could not establish that it was prejudiced by the consolidation of the suits; the district court did not abuse its discretion when it excluded BSC's 510(k) review process evidence; the district court did not err by declining to overturn the jury's verdict where plaintiff provided sufficient evidence in her favor, so her claims were properly reserved for the jury; the district court did not err by denying judgment as a matter of law to BSC on plaintiff's failure to warn claims; and the district court did not err by denying judgment as a matter of law to BSC on its argument that plaintiff's claims were time barred. View "Eghnayem v. Boston Scientific Corp." on Justia Law

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The First Circuit affirmed the district court’s grant of Bill Cosby’s motion to dismiss this defamation case brought by an actress who earlier accused Cosby of raping her. Kathrine McKee accused Bill Cosby in a 2014 interview published in the New York Daily News of raping her. McKee later sued Bill Cosby for defamation after the contents of an allegedly confidential letter written to the paper by Cosby’s attorney in Cosby’s defense was reported on by news outlets and websites worldwide. The district court dismissed McKee’s complaint for failure to state a claim. The First Circuit affirmed, holding that the challenged statements were not actionable. View "McKee v. Cosby" on Justia Law

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The issue this case presented for the Louisiana Supreme Court's review centered on whether the court of appeal erred in reversing the trial court’s ruling granting plaintiff’s special motion to strike defendant’s reconventional demand for defamation, pursuant to La. Code Civ. Pro. art. 971 (the "anti-SLAPP" statute), where the appellate court found that plaintiff’s petition did not involve a “public issue.” Philip Shelton, M.D. married Judith Shelton in 2001. During their marriage, the couple each owned a life insurance policy that named the other as the beneficiary. At some point, Mrs. Shelton was diagnosed with cirrhosis of the liver and Hepatorenal Syndrome (as a result of alcoholism. In July 2011, Mrs. Shelton was admitted to Ochsner Baptist Medical Center for treatment and was soon discharged to Woldenberg Village, an inpatient assisted living facility. Mrs. Shelton died on December 31, 2011, at the age of 64. After Mrs. Shelton's death, Dr. Shelton learned that she had changed her beneficiary to her personal assistant/paralegal/friend, Nancy Pavon. In November 2013, Dr. Shelton filed a Petition to Nullify Change of Beneficiary, alleging Mrs. Shelton had lacked the capacity to execute a change of beneficiary form due to her poor health, including dementia, confusion, disorientation, and personality changes. Alternatively, he alleged Mrs. Shelton's signature on the change of beneficiary form was a forgery or had been obtained through undue influence by Pavon. In response, Pavon filed an answer and reconventional demand alleging Dr. Shelton's petition constituted defamation per se. Dr. Shelton filed a Special Motion to Strike pursuant to La. Code Civ. Pro. art. 971. Pavon opposed the motion, arguing that it should have been dismissed as a matter of law because Dr. Shelton’s petition to nullify did not involve a public issue. She also argued that a motion to strike was not the proper mechanism to dismiss her defamation claim. The trial court granted Dr. SHelton's special motion to strike. The Supreme Court found the court of appeal was correct in reversing the trial court’s ruling. The Supreme Court held that La. Code Civ. Pro. art. 971(F)(1)(a) required statements had to be "in furtherance of a person’s right of petition or free speech ... in connection with a public issue.” View "Shelton v. Pavon" on Justia Law

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Ron Warren, individually and on behalf of the Estate of Derek Hebert, filed a petition for damages seeking to recover for the wrongful death of his son in a recreational boating accident under general maritime law and products liability. A jury found the defendant, Teleflex, Inc. liable under the plaintiff’s failure to warn theory of the case and awarded compensatory damages of $125,000 and punitive damages of $23,000,000. The court of appeal affirmed. The Louisiana Supreme Court granted certiorari mainly to review whether the trial court properly granted the plaintiff a new trial and whether the award of punitive damages was excessive and resulted in a violation of the defendant’s right to constitutional due process. After reviewing the record and the applicable law in this case, the Supreme Court found no reversible error in the trial court’s rulings; however, the Court did find the award of punitive damages was excessive and resulted in a violation of the defendant’s right to constitutional due process. View "Warren v. Shelter Mutual Ins. Co." on Justia Law

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Madden, suffering from morbid obesity, respiratory acidosis, congestive heart failure, chronic obstructive pulmonary disease, obstructive sleep apnea, obesity hypoventilation syndrome, hypertension, and hyperlipidemia, was admitted to the V.A. Hospital several times before his last admission on December 28, 2007. The Hospital placed Madden in respiratory isolation. On the same day, Madden’s wife described him as “not being himself,” and unsuccessfully requested the presence of a staff member in the room with Madden at all times. The Hospital allowed Madden to sit in a wheelchair because of his difficulty with lying in bed. Madden consistently reported that he was feeling fine, with a few comments about shortness of breath. On January 1, 2008, Madden was found unresponsive in his wheelchair. It took the Hospital 25 minutes to resuscitate him; Madden had suffered a cardiopulmonary arrest. On January 25, Madden was transferred to a long‐term care facility. He never regained consciousness and died on January 8, 2010. Madden’s estate filed a wrongful death suit under the Federal Tort Claims Act. The Seventh Circuit affirmed in favor of the government, agreeing that the government’s expert’s opinions were supported by medical records, relevant literature, data, studies, and medical explanations; while the government successfully impeached the family’s expert, a family friend, for lack of consultation of relevant medical literature and even Madden’s medical records. View "Madden v. United States Department of Veterans Affairs" on Justia Law

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North Dakota, by the North Dakota Department of Corrections and Rehabilitation's Youth Correctional Center, petitioned for a supervisory writ directing a district court to vacate its July 18, 2017 order denying the State's motion for summary judgment on Delmar Markel's negligence claim. Markel cross-petitioned for a supervisory writ directing the district court to vacate its January 21, 2016 order dismissing Markel's claim for constructive and retaliatory discharge. Markel worked at the North Dakota Youth Correctional Center on December 9, 2012, when several inmates broke out of their locked rooms. The inmates injured Markel during their escape. In 2015, Markel brought a complaint against the State alleging one count of negligence for failure to fix faulty locks permitting the inmates to escape and one count of constructive and retaliatory discharge. The State argued that the Workforce Safety and Insurance ("WSI") Act in N.D.C.C. Title 65 barred Markel's negligence claim and that Markel failed to exhaust administrative remedies regarding his discharge claim. On January 21, 2016, the district court dismissed the discharge claim for failure to pursue available administrative remedies. The district court also denied the State's motion to dismiss Markel's negligence claim. The North Dakota Supreme Court exercised its original jurisdiction by granting the State's petition and denying Markel's cross-petition. The district court erred as a matter of law in denying the State's motion to dismiss Markel's negligence claim. Markel failed to allege and support at least an "intentional act done with the conscious purpose of inflicting the injury" to overcome the State's immunity. The State had no adequate remedy to avoid defending a suit from which it has immunity. View "North Dakota v. Haskell" on Justia Law

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Plaintiff John PD Doe was sexually abused by a Boy Scout master beginning in 1998 and continuing for a number of years at a ranch owned and operated by defendants, San Diego-Imperial Council and Boy Scouts of America. In 2013, after Doe obtained psychological therapy, he filed this action against the defendants. Defendants ultimately demurred to Doe's complaint on the ground that he failed to file a certificate of merit, as required by Code of Civil Procedure section 340.1. The trial court sustained defendants' demurrer on this ground, without leave to amend. Doe appealed the trial court's judgment, and the Court of Appeal court affirmed the judgment in favor of defendants. Following the issuance of the remittitur, defendants moved for an award of attorney fees with respect to the fees incurred in defendant Doe's appeal pursuant to subdivision (q) of section 340.1. The trial court awarded defendants the fees that they requested without analyzing the statutory provision or stating the court's reasoning as to why such fees were appropriate. Doe appealed the trial court's award of attorney fees resulting from the prior appeal, contending section 340.1(q) was designed to permit an award of attorney fees only in situations in which there is some indication that the plaintiff's claim of sexual abuse is without merit, such that the conclusion of the litigation may be deemed to constitute a "[']favorable conclusion of the litigation with respect to[']" the defendants for whom a certificate of merit was filed or should have been filed. Doe asserted that in this case, where the trial court acknowledged that Doe's claim was not frivolous, and there was no indication that the claim lacked merit, defendants were not eligible for an award of attorney fees pursuant to section 340.1(q). Defendants argued that because they obtained a dismissal of the action, and, as a result, they were prevailing parties and were entitled to attorney fees. The Court of Appeal concluded that a defendant is eligible for an award of attorney fees pursuant to section 340.1(q) only where the litigation has resulted in a "favorable conclusion" for that defendant, and that a "favorable conclusion" requires a result that is reflective of the merits of the litigation. In this case, the dismissal of Doe's action was procured as a result of a procedural defect that did not reflect on the merits of the action. As a result, there was no "favorable conclusion" with respect to defendants, and they were therefore not eligible to be awarded their attorney fees. View "Doe v. San Diego-Imperial Council" on Justia Law