Justia Injury Law Opinion Summaries

The Ninth Circuit affirmed in part and reversed in part the district court's dismissal of a third amended complaint (TAC) brought by plaintiffs, a putative class of former NFL players, alleging that the NFL negligently facilitated the hand-out of controlled substances to dull players' pain and to return them to the game in order to maximize profits. The NFL allegedly conducted studies and promulgated rules regarding how Clubs should handle distribution of the medications at issue, but failed to ensure compliance with them, with medical ethics, or with federal laws such as the Controlled Substances Act and the Food, Drug, and Cosmetic Act.The panel agreed with the district court that two of plaintiffs' theories of negligence, negligence per se and special relationship, were insufficiently pled. However, the panel held that plaintiff's voluntary undertaking theory survives dismissal, given sufficient allegations in the TAC of the NFL's failure to "use its authority to provide routine and important safety measures" regarding distribution of medications and returning athletes to play after injury. Furthermore, if proven, a voluntary undertaking theory could establish a duty owed by the NFL to protect player safety after injury, breach of that duty by incentivizing premature return to play, and liability for resulting damages. View "Dent v. National Football League" on Justia Law

The Ninth Circuit reversed the district court's dismissal of civil Racketeer Influenced and Corrupt Organizations Act (RICO) claims based on lack of RICO standing in a putative class action brought against pharmaceutical companies. Plaintiffs filed suit alleging that the companies refused to change the warning label of their drug Actos or otherwise inform the public after they learned that the drug increased a patient’s risk of developing bladder cancer.The panel held that patients and health insurance companies who reimbursed patients adequately alleged the required element of proximate cause where they alleged that, but for defendant's omitted mention of a drug's known safety risk, they would not have paid for the drug. The panel agreed with the First and Third Circuits that plaintiffs' damages were not too far removed from defendants' alleged omissions and misrepresentations to satisfy RICO's proximate cause requirement. In this case, plaintiffs sufficiently alleged a direct relationship, and the Holmes factors weighed in favor of permitting their RICO claims to proceed. The panel explained that, although prescribing physicians served as intermediaries between defendants' fraudulent omission of Actos's risk of causing bladder cancer and plaintiffs' payments for the drug, prescribing physicians did not constitute an intervening cause to cut off the chain of proximate causation. The panel also held that plaintiffs have adequately alleged the reliance necessary to satisfy RICO's proximate cause requirement. View "Painters and Allied Trades District Council 82 Health Care Fund v. Takeda Pharmaceuticals Co." on Justia Law

The Ninth Circuit affirmed the district court's grant of summary judgment to Allergan in an action under state law alleging that plaintiff suffered injuries when her breast implants bled silicone into her body. Through the Medical Device Amendments (MDA) to the Food, Drug, and Cosmetic Act (FDCA), Congress permitted FDA oversight of medical devices; the MDA expressly preempts state law regulation of medical devices; and for a state law claim regarding a Class III medical device to survive express preemption by the MDA, a plaintiff must establish that the defendant violated an FDA requirement.In this case, the panel held that plaintiff failed to show that Allergan violated a federal requirement for its Style 20 breast implant. The panel held that plaintiff failed to raise a genuine dispute of material fact that Allergan violated the FDA's pre-market approval and Current Good Manufacturing Practices. Therefore, plaintiff has now shown a violation of an FDA requirement, which she must for her state law claims to fit through the narrow exception to MDA preemption. View "Weber v. Allergan, Inc." on Justia Law

Plaintiffs filed suit under the Federal Tort Claims Act (FTCA) after two boys were killed when a tree limb fell onto their tent in Yosemite National Park. The Ninth Circuit affirmed the dismissal of the fraudulent concealment claim, and reversed the dismissal of the negligence-based claims.The panel held that, regardless of whether the FTCA's discretionary function exception might apply to some hypothetical decision not to inspect the campground, the panel must decide whether park officials are shielded from liability for their conduct in actually inspecting that area once they undertook to do so; once they undertook to inspect trees in the campground, park officials were required to do so in accordance with their established policies; and while it was unclear whether the families will succeed in showing that officials were actually negligent in evaluating the tree under the park's Seven-Point system, such evaluation was not exempt from the scope of the FTCA.The panel also held that the discretionary function exception did not bar plaintiffs' claim that the government negligently failed to give park visitors any warning about the tree. In regard to the fraudulent concealment claim, the panel held that the district court did not err in dismissing the claim under the FTCA's misrepresentation exception. View "Kim v. United States" on Justia Law

In the context of asbestos claims, the substantial-factor test requires demonstrating that the injured person had substantial exposure to the relevant asbestos for a substantial period of time. The Ninth Circuit affirmed the district court's grant of summary judgment for Union Pacific in an action brought by plaintiff, alleging that secondary exposure to asbestos exposure caused his mesothelioma. Plaintiff alleged negligence and related claims under Idaho law, stemming from his father's work at a Union Pacific roadhouse where he was exposed to asbestos and then carried the asbestos home to expose plaintiff.The panel held that plaintiff failed to establish that he was regularly exposed to asbestos attributable to Union Pacific, and rejected plaintiff's contentions of error regarding expert testimony. Therefore, plaintiff failed to create a genuine issue of material fact on whether his secondary exposure was a substantial factor in causing his disease, and he could not prevail on his negligence claims. View "Stephens v. Union Pacific Railroad Co." on Justia Law

The Ninth Circuit affirmed the district court's dismissal of plaintiff's claims against Ultimate Software, operator of the Experience Project website, for its alleged role in the death of her son. Her son purchased heroin from another user through the site and died of fentanyl toxicity from the heroin.The panel held that Ultimate Software, as the operator of Experience Project, is immune from liability under section 230 of the Communications Decency Act (CDA) because its functions, including recommendations and notifications, were content-neutral tools used to facilitate communications. The panel also held that plaintiff failed to plead sufficient facts to show that Ultimate Software colluded with drug dealers on the Experience Project, and Ultimate Software did not owe a duty to plaintiff's son. View "Dyroff v. The Ultimate Software Group" on Justia Law

The Ninth Circuit affirmed the district court's dismissal of claims brought in 2010 against the Republic of Turkey and two Turkish national banks, seeking compensation for property taken from plaintiffs' ancestors during the Armenian Genocide.The panel affirmed the judgment of the district court, because plaintiffs' claims, filed almost a century after the Armenian Genocide, were time-barred. California previously adopted a statute in 2006 to provide that any limitations period for suits arising out of the Armenian Genocide would not expire until December 31, 2016. Under this statute, plaintiffs' claims were timely filed. However, the panel subsequently held that the California law was unconstitutional. Therefore, plaintiffs' claims were facially time-barred in the absence of the statute. View "Bakalian v. Central Bank of the Republic of Turkey" on Justia Law

The Ninth Circuit held that the parents of a U.S. citizen killed during a military operation conducted by a foreign nation abroad may not sue the foreign official responsible for the operation in federal court on different theories of wrongful death claims under the Torture Victim Protection Act. The panel affirmed the district court's dismissal of the action and held that defendant was entitled to foreign official immunity where his acts were performed in his official capacity, where the sovereign government has ratified his conduct, and where the U.S. Department of State has asked the judiciary to grant him foreign official immunity.The panel need not decide the level of deference owed to the State Department's suggestion of immunity in this case, because even if the suggestion of immunity is afforded "substantial weight" rather than "absolute deference," defendant would still be entitled to immunity. The panel explained that exercising jurisdiction over defendant would be to enforce a rule of law against the sovereign state of Israel, and that defendant would therefore be entitled to common-law foreign sovereign immunity. Even if defendant was entitled to common law immunity, the panel held that Congress has abrogated common law foreign official immunity via the TVPA. View "Dogan v. Barak" on Justia Law

Plaintiff's petition for panel rehearing was granted an this superseding opinion was filed.This case related to tort claims brought by the tribe against a nonmember employed by the tribe. At issue was whether the tribal court has jurisdiction to adjudicate tribal claims against its nonmember employee, where the tribe's personnel policies and procedures manual regulated the nonmember's conduct at issue and provided that the tribal council would address violations by the nonmember during the course of her employment, and the tribal court and tribal judicial code were established and enacted after the nonmember left her employment with the tribe.The Ninth Circuit held that, under the circumstances presented here, the tribe has authority to regulate the nonmember employee's conduct at issue pursuant to its inherent power to exclude nonmembers from tribal lands. The panel also held that, in the alternative, the tribe has regulatory authority over the nonmember employee's conduct under both exceptions under Montana v. United States, 450 U.S. 544 (1981). Therefore, given the existence of regulatory authority, the sovereign interests at stake, and the congressional interest in promoting tribal self-government, the panel held that the tribal court had jurisdiction over the tribe's claims. View "Knighton v. Cedarville Rancheria of Northern Paiute Indians" on Justia Law

In 2015, the San Francisco Sheriff issued a Memo establishing protocols and parameters for communications between Sheriff's Department employees and ICE. In this case, plaintiffs filed suit after an undocumented alien shot and killed plaintiffs' daughter after he was released from custody by the Sheriff's Department. After the shooting, ICE stated: "If the local authorities had merely notified [U.S. Immigration and Customs Enforcement] that they were about to release this individual into the community, ICE could have taken custody of him and had him removed from the country—thus preventing this terrible tragedy."The Ninth Circuit affirmed the district court's dismissal of plaintiffs' general negligence claim against the City defendants. The panel held that, while it deeply sympathized with plaintiffs, the question of discretionary immunity raised in this case was controlled by California law. The panel agreed with the district court that the issuance of the Memo was a discretionary act that was entitled to immunity under section 820.2 of the California Government Code. Therefore, the panel held that California law barred plaintiffs' negligence claim.The panel also held that the district court did not err in determining immunity on a motion to dismiss; the district court appropriately considered the Memo under the incorporation by reference doctrine; although 8 U.S.C. 1373(a) and 1644 prohibit restrictions on providing certain types of information to ICE, they plainly and unambiguously did not prohibit the restriction at issue in this case regarding release-date information; and, assuming the Sheriff's actions adversely affected ICE's ability to do its job, this did not without more strip him of the discretionary authority under California law to institute the policy that he did. The panel rejected plaintiffs' claims that the Memo was a legislative act; failure to provide ICE with the alien's release date violated the California Public Records Act; and the Memo violated California Health and Safety Code section 11369. Finally, the panel rejected plaintiffs' claims under local laws and held that plaintiffs waived their request for leave to amend. View "Steinle v. City and County of San Francisco" on Justia Law