Justia Injury Law Opinion Summaries

Drago and Blaga Kostadinovski brought a medical malpractice action against Steven Harrington, M.D. and Advanced Cardiothoracic Surgeons, PLLC, asserting six specific theories with respect to how the doctor breached the standard of care throughout the course of Drago’s mitral-valve-repair surgery in December 2011, during which Drago suffered a stroke. Plaintiffs timely served defendants with a notice of intent (NOI) to file suit, timely served the complaint, and timely served the affidavit of merit. Following the close of discovery, defendants moved for summary judgment, arguing that plaintiffs’ experts were unable to validate or support the six theories asserted by plaintiffs in the NOI, affidavit of merit, and complaint. Plaintiffs agreed to the dismissal of their existing, unsupported negligence allegations and complaint but moved to amend the complaint to assert a new theory. The court denied the motion to amend the complaint, reasoning that amendment would be futile given that the existing NOI would be rendered obsolete because it did not include the new theory. Plaintiffs appealed and defendants cross-appealed. The Court of Appeals reversed and remanded to the trial court for it to apply MCL 600.2301 in considering whether plaintiffs should be allowed to amend the NOI. In a footnote to the opinion, the Court of Appeals rejected plaintiffs’ argument that MCL 600.2912b simply required the service of an NOI before suit was filed and that once a compliant and timely NOI is served, as judged at the time suit is filed and by the language in the original complaint, the requirements of the statute have been satisfied. On remand, the trial court denied plaintiffs’ motion to amend, concluding that amendment would be futile and that amending the complaint would contravene MCL 600.2912b. Plaintiffs appealed. In an unpublished per curiam opinion, the Court of Appeals affirmed. The Michigan Supreme Court concluded MCL 600.2912b did not apply where a plaintiff seeks to amend their complaint against an already-named defendant after suit has already commenced. Accordingly, the judgment of the Court of Appeals was reversed and the case remanded for further proceedings. View "Kostadinovski v. Harrington" on Justia Law

Plaintiff used Roundup on his lawn for thirty years until 2016, when he was diagnosed with malignant fibrous histiocytoma, a form of cancer. He sued Monsanto, Roundup’s manufacturer, in the district court. He alleged that Monsanto knew or should have known that Roundup was carcinogenic but did not warn users of that danger. The question on appeal is whether, under an express preemption provision, a federal agency action that otherwise lacks the force of law preempts the requirements of state law. The district court ruled that a provision of the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. Section 136v(b), expressly preempts some of Plaintiff’s claims under Georgia law because the Environmental Protection Agency had approved a label for Roundup that lacked a cancer warning and the Agency classifies Roundup’s main ingredient—glyphosate—as “not likely to be carcinogenic.” Plaintiff argued that his suit is not preempted.   The Eleventh Circuit concluded that the question at issue must be answered by recourse to ordinary principles of statutory interpretation, and the court remanded this appeal to the panel to decide whether Plaintiff’s suit is preempted. The court explained that a conflict between a state-law rule that has the force of law and a federal agency rule that does not have the force of law is not the type of conflict between state and federal legal obligations that the Supremacy Clause addresses. But this reasoning does not extend to express-preemption cases the meaning of the express-preemption provision—not conflicting federal and state legal obligations—triggers preemption. View "John D. Carson v. Monsanto Company" on Justia Law

Plaintiffs are practitioners of Falun Gong, a religion originating in China in the 1990s. They allege that they or family members are victims of human rights abuses committed by the Chinese Communist Party and Chinese government officials. The alleged abuses, Plaintiffs contend, were enabled by the technological assistance of Defendants, U.S. corporation Cisco Systems, Inc., and two Cisco executives (collectively, “Cisco”). Plaintiffs initiated this lawsuit more than a decade ago, alleging that Cisco aided and abetted or conspired with Chinese officials in violation of the Alien Tort Statute (“ATS”), the Torture Victim Protection Act of 1991 (“TVPA”), and other federal and state laws. The district court dismissed Plaintiffs’ claims under the ATS, ruling that Plaintiffs did not allege conduct sufficient to satisfy the standard for aiding and abetting liability.   The Ninth Circuit affirmed the district court’s dismissal of Plaintiffs’ claims under the Alien Tort Statute against the Cisco executives; reversed the dismissal of Plaintiffs’ Alien Tort Statute claims against corporate defendant Cisco; reversed the dismissal of one Plaintiff’s claims under the Torture Victim Protection Act against the Cisco executives; and remanded for further proceedings. The panel held that under Nestle USA, Inc. v. Doe, 141 S. Ct. 1931 (2021), corporations may be held liable under the ATS. The panel held that Plaintiffs’ allegations against Cisco were sufficient to meet the applicable aiding and abetting standard. Recognizing that the ATS does not apply extraterritorially, the panel held that this case involved a permissible domestic application of the ATS against Cisco because much of the corporation’s alleged conduct constituting aiding and abetting occurred in the United States. View "DOE I, ET AL V. CISCO SYSTEMS, INC., ET AL" on Justia Law

In 2014, decedent Aaron Martineau, age 28, arrived at the McKenzie-Willamette Hospital emergency room, complaining of sudden onset chest pain, shortness of breath, and other symptoms. He was seen by a physician assistant and by a physician, defendant Gary Josephsen, M.D.; both worked for defendant Doctor’s Emergency Room Corporation, P.C. (collectively, the ER defendants). Defendants did not adequately review the x-ray or refer decedent for further imaging or other tests to rule out or confirm the presence of serious cardiovascular or cardiopulmonary conditions. Instead, they diagnosed him with noncardiac chest pain and discharged him from the hospital. Approximately 24 hours after being discharged, decedent died from an aortic dissection in his heart. In this wrongful death action, two issues were presented for the Oregon Supreme Court's review: (1) whether the trial court erred when it instructed the jury that physicians “are not negligent merely because their efforts were unsuccessful” and that a physician “does not guarantee a good result by undertaking to perform a service;” and (2) whether plaintiff had alleged a lost chance claim under Oregon’s survival statute, ORS 30.075, that was separately cognizable from her wrongful death claim under ORS 30.020. The trial court dismissed plaintiff’s lost chance claim before trial. Later, when submitting the wrongful death claim to the jury at the close of trial, the court included the challenged instruction—which was taken from Uniform Civil Jury Instruction (UCJI) 44.03 at defendants’ request—in its instructions to the jury. After the jury returned a verdict in defendants’ favor, plaintiff appealed, and the Court of Appeals reversed, concluding the trial court had erred in dismissing plaintiff’s lost chance claim and by including UCJI 44.03 in the jury instructions. After its review, the Supreme Court concluded plaintiff did not allege a lost chance claim that was cognizable under Oregon law, and, further, the trial court did not err when it included UCJI 44.03 in the jury instructions. The Court therefore reversed the Court of Appeals and affirmed the trial court. View "Martineau v. McKenzie-Willamette Medical Center" on Justia Law

At issue in this case was whether the Oregon legislature intended to create an exception to ORS 656.018, the so-called “exclusive remedy” provision of the Workers’ Compensation Law, for injured workers whose claims have been deemed noncompensable on “major contributing cause” grounds. While employed by defendant Shore Terminals, LLC as a terminal operator, plaintiff Danny Bundy was assigned to stay and monitor the air quality from malfunctioning machinery without being given safety equipment, and he was exposed to dangerous levels of diesel, gasoline and ethanol fumes. After that incident, defendant initially accepted a workers’ compensation claim for "non-disabling exposure to gasoline vapors." Later, plaintiff asked defendant to accept and pay compensation for additional conditions arising out of the same incident, including "somatization disorder" and "undifferentiated somatoform disorder." Defendant specified that it was treating each of plaintiff’s subsequent requests as a "consequential condition claim" and was denying those claims on the basis that plaintiff’s work exposure was not the major contributing cause of the subsequent conditions. Plaintiff challenged those denials through the workers’ compensation system, but he was unable to establish that the work incident was the major contributing cause of his somatoform disorders. The Workers’ Compensation Board ultimately issued a final order determining that the disorders were not compensable conditions because plaintiff failed to establish that his work-related incident was the major contributing cause. Plaintiff acknowledged that the Workers’ Compensation Law generally immunized covered employers against civil liability for injuries arising out of a worker’s employment. Plaintiff argued, however, that his case fell within a statutory exception to that rule and that the trial court and Court of Appeals, both of which ruled in defendant’s favor on that legal question, erred in concluding otherwise. The Oregon Supreme Court concluded that plaintiff’s statutory argument failed, and that the trial court and Court of Appeals therefore did not err. View "Bundy v. NuStar GP LLC, et al." on Justia Law

Appellants are survivors and family members of victims of the 1998 U.S. embassy attacks in Kenya and Tanzania. They bring suit against Appellee BNP Paribas, S.A. (“BNPP”), an international bank, alleging the bank acted in support of the terrorists who committed those attacks. The district court granted Appellee’s motion to dismiss under Rule 12(b)(6).   The DC Circuit affirmed the district court’s dismissal of Appellants’ Section 2339A(a) ATA claim using the exact words the court did in Owens: “Plaintiffs’ complaint fails to plausibly allege that any currency processed by BNPP for Sudan was either in fact sent to al Qaeda or necessary for Sudan to fund the embassy bombings. Therefore, Plaintiffs fail to adequately allege that they were injured ‘by reason of’ BNPP’s acts and cannot state a claim for relief based on a theory of primary liability under the ATA.” Here, Appellants do not plausibly allege that any money passed from BNPP’s financial support of Sudan to al-Qaeda in preparation for the embassy bombings. View "Mary Ofisi v. BNP Paribas, S.A." on Justia Law

D.T. and six other Plaintiffs were arrested for violating a citywide temporary curfew in Washington, D.C., in June 2020. At the time of their arrests, Plaintiffs were standing on a public street peacefully protesting police killings of Black Americans. Plaintiffs alleged they were out on the streets four hours after the start of the curfew on June 1, 2020, when they were arrested for violating the mayor’s order. Plaintiffs sued the arresting officers and the city for damages. Their principal claim is that, because they were engaging in peaceful public protests, their arrests for breaking the curfew violated their First Amendment rights. The district court granted the Defendants’ motions to dismiss, holding that the June 1 curfew order was a constitutionally valid time, place, and manner restriction. The court held that the remaining claims also failed because they were contingent on the order’s asserted invalidity under the First Amendment.   The DC Circuit affirmed. The court explained that Plaintiffs included an allegation that their overnight detention in handcuffs injured their wrists, but they sued the arresting officers, not persons responsible for the conditions of their detention. That allegation thus does not support an excessive force claim against these Defendants. Further, Plaintiffs argued that the June 1 Order violated their fundamental right to travel, but that claim is forfeited. Plaintiffs neither pleaded nor pressed a right-to-travel claim in the district court. View "Devon Tinius v. Luke Choi" on Justia Law

The Supreme Judicial Court held that in the instant cases, where the decedents had no right to bring a cause of action for the injuries that caused their deaths at the time that they died as a result of the running of the statute of limitations on the decedents' underlying tort and breach of warranty claims, Plaintiffs, as personal representatives of the decedents' estates, had no right to bring wrongful death actions based on those injuries.The Supreme Judicial Court affirmed the judgments of the lower courts dismissing these separate actions for wrongful death under Mass. Gen. Laws ch. 229, 2. Both superior court judges ruled that, because wrongful death recovery is derivative of a decedent's own cause of action, the underlying wrongful death claims were precluded, as each decedent could not have brought claims based on the injuries that caused his death had he survived. The Supreme Judicial Court affirmed, thus following the majority approach precluding recovery for wrongful death where the statute of limitations on the decedent's underlying claims ran before the decedent's death. View "Fabiano v. Philip Morris USA Inc." on Justia Law

The Supreme Court affirmed the order of the district court, certified as final under Nev. R. Civ. P. 54(b), partially dismissing a medical malpractice action for failure to meet the affidavit-of-merit requirement set forth in Nev. Rev. Stat. 41A.071 as to three of the named defendants, holding that there was no error.Appellant, as special administrator of the estate of Sharon Monk, sued University Medical Center and Sharon's other healthcare providers, including the three physicians who were the respondents to this appeal, alleging negligence. Monk supported the complaint with a declaration from Nurse Jamescia Hambrick. The district court granted Respondents' motion to dismiss on the grounds that Nurse Hambrick lacked the qualifications necessary to establish Nev. Rev. Stat. 41A.071 as to Respondents. The Supreme Court affirmed, holding that Appellant's claims against Respondents was not exempted from section 41A.071's affidavit-of-merit requirement. View "Monk v. Ching" on Justia Law

The Supreme Court held that the exclusivity provisions of the California Workers' Compensation Act (WCA), Cal. Lab. Code 3200 et seq., do not bar an employee's spouse's negligence claim against the employer when the spouse is injured by transmission of the COVID-19 virus but that an employer does not owe a duty of care under California law to prevent the spread of COVID-19 to employees' household members.The Supreme Court answered two questions of California law certified from the United States Court of Appeals for the Ninth Circuit regarding the scope of an employer's liability when an employee's spouse is injured by transmission of the COVID-19 virus as follows: (1) the exclusivity provisions of the WCA do not bar a non-employee's recovery for injuries that are not legally dependent upon an injury suffered by the employee; and (2) employers do not owe a tort-based duty to non-employees to prevent the spread of COVID-19. View "Kuciemba v. Victory Woodworks, Inc." on Justia Law