Personal Injury

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.

Plaintiff Loses Case When Judge Keeps Out Police Officer’s Opinion of Who Caused Accident

June 15, 2015 | Lebowitz & Mzhen

Earlier this month, the Supreme Court of Appeals in West Virginia denied a plaintiff’s appeal in a car accident case that requested a new trial based on the lower court’s failure to allow the plaintiff to submit the responding police officer’s opinion as to which party caused the accident into evidence. In the case, Browning v. Hickman, the court had to consider two alleged errors made below and determine if either was sufficient to grant a new trial to the plaintiff.

The Facts of the Case

The case arose when the two parties were involved in an accident at an intersection. The defendant was traveling straight through the intersection and the plaintiff was making a left turn in front of the defendant when the accident occurred. Both parties claimed to have had the right of way. The plaintiff said he had a green arrow at the time, and the defendant claimed he had a green light.

A witness to the accident called 911, explaining that the plaintiff pulled out in front of the defendant’s car. Police arrived at the scene and, after a brief initial investigation concluded that it was the defendant who failed to yield to the plaintiff. However, that officer later told the attorneys that he wasn’t actually aware of whether the plaintiff did, in fact, have a green arrow.

Change of Venue Ordered in Medical Malpractice Case; Impartial Jury Concerns Cited

December 1, 2014 | Lebowitz & Mzhen

Earlier this year, we posted about a Maryland physician who was accused of molesting one of his patients. In a recent development in that case, the presiding judge determined that the case should be moved out of Allegany County—where it was originally filed—and moved to another forum in order to preserve the defendant doctor’s right to an impartial jury.

As it turns out, the defendant doctor is not only facing serious charges that may carry with them inherent bias, but he also has a previous conviction for a gun-point rape from Florida. Notwithstanding this conviction, he was somehow able to obtain a medical license in Maryland.

The judge cited the nature of the charges, the publicity of the case in Allegany County, and the publicity of the defendant doctor’s past criminal record as reasons to move the case outside the county. It is not yet clear which county will hear the case.

Woman Who Lost Husband and Two Sons When Home Depot Collapsed Sues Under Negligence Theory

August 20, 2014 | Lebowitz & Mzhen

Back in 2011, a massive tornado swept through Missouri, ripping apart most buildings and homes in its way. One building that was destroyed was a Home Depot home-improvement store. Tragically, dozens of people were trapped inside as the 100,000-pound walls to the store fell. Eight died. In fact, all but 10 of the 73 walls fell inward as the roof was ripped off the store.

Employees told customers to head towards the store’s training room, where they should remain safe. However, as one woman’s husband and two children made their way to the training room, the walls of the store fell on them, crushing them instantly.

The Missouri woman who lost her family in the storm accident recently filed a claim against Home Depot, the store’s designer, and the property owner, a Maryland-based company. The suit alleges that the building was not up to par back when it was built in 2001 and that, had it been constructed properly, the walls would have fallen to the outside rather than fall in on unsuspecting customers.

Cap on Noneconomic Damages Violates State Equal Protection Clause, According to Florida Supreme Court

March 26, 2014 | Lebowitz & Mzhen

Caps on noneconomic damages, enacted in many states under the banner of “tort reform,” have brought uncertain results. While the stated purpose is to prevent litigation from driving up the cost of medical care, damage caps often lead in practice to injustice for victims of medical malpractice. A family in Florida challenged that state’s damage cap statute in federal court on constitutional grounds, after a court cut their judgment in half. The Eleventh Circuit Court of Appeals found no violation of the U.S. Constitution, but it asked the Florida Supreme Court to rule on the state constitution’s Equal Protection Clause. After nearly two years of review, the Florida court ruled that the state’s damage cap violates equal protection, finding that it “bears no rational relationship” to the goal of alleviating a “medical malpractice insurance crisis.”

More than half of all U.S. states, including Maryland, have laws capping noneconomic damages in medical malpractice and other personal injury cases. “Noneconomic damages” refer to intangible injuries like pain and suffering, mental anguish, loss of consortium, and disfigurement. Under Maryland law, the amount of the cap in medical malpractice cases increases by $15,000 every January 1. In 2014, the amount is $740,000, or $925,000 in wrongful death cases with two or more beneficiaries. Florida’s cap, which does not increase year-to-year, is $500,000 for medical injuries and $1 million for wrongful death.

The lawsuit challenging the Florida statute involves a woman who died due to complications after giving birth via caesarean section in February 2006. The birth was performed by U.S. Air Force medical personnel at a private hospital. Her parents, individually and on behalf of her estate and her infant son, sued the U.S. government under the Federal Tort Claims Act. A district judge ruled for the plaintiffs after a bench trial, awarding them over $980,000 in economic damages and $2 million in noneconomic damages. The noneconomic damage award was reduced to $1 million because of the damage cap.

Prank Involving Portable Toilet Causes Paralysis, Leads to $5 Million Settlement

March 5, 2014 | Lebowitz & Mzhen

A prank involving a portable toilet led to tragic consequences when the victim of the prank suffered permanent paralysis. His lawsuit named the two pranksters as defendants, as well as the company that provided the portable toilet and its manufacturer. While the claims against the pranksters, who are the plaintiff’s cousins-in-law, are most likely based on general negligence theories, the claims against the portable toilet companies are based on products liability. The plaintiff claimed that the companies failed to provide equipment to secure the unit to the ground, and installed it in an unsafe location. These made it more likely for the toilet to tip over. The defendants recently agreed to settle the claim for $5 million.

The plaintiff was on a fishing and camping trip with his two relatives in the area of Sullivan County, Pennsylvania. While the plaintiff was using a portable toilet, his relatives backed their truck up to its door, intending to lock him in as a prank. However, they accidentally knocked the toilet over by bumping into it with the truck. The toilet tipped over, causing the plaintiff to fall on his head and fracture his cervical spine in several places. He underwent surgery at a hospital in Philadelphia and spent several weeks at a rehabilitation hospital, but is now paralyzed from the shoulders down.

The plaintiff and his wife sued the two cousins-in-law, the company that provided the portable toilet, and the portable toilet manufacturer. They claimed that the two companies were liable for several acts of negligence. The toilet was installed on a slope with only some pieces of wood to keep it upright, making it more prone to tipping over and unsafe for use. They claimed the manufacturer failed to provide metal spikes used to anchor the toilet in the ground, even though that model of toilet had holes in the base specifically for that purpose. The parties reached a settlement in early February 2014, in which the plaintiff will receive $5 million. It is not clear how that amount will be apportioned between the defendants.

Settlement Reached Between Baltimore Households and Exxon in Gas Station Leak Case Involving Claims for Medical Monitoring

January 21, 2014 | Lebowitz & Mzhen

A group of households in Baltimore County, Maryland recently settled their lawsuit against Exxon Mobil Corp. for property damage and other injuries allegedly resulting from a massive gasoline leak near their homes in 2006. Jury verdicts against the oil company totaled more than $1.6 billion, but the Maryland Court of Appeals reversed the awards. In addition to property damage, the plaintiffs asserted causes of action for emotional distress due to fear of developing a disease and “medical monitoring.” This refers to the ongoing costs of monitoring for the onset of illness after exposure to toxic materials. Maryland courts have never recognized medical monitoring as a claim or remedy before, but the orders reversing the verdicts included explicit recognition of such a remedy.

An underground storage tank at a gas station in Jacksonville, Maryland allegedly leaked for about five weeks in 2006, pouring over 26,000 gallons of gasoline into the ground and contaminating the groundwater. Many of the homes in the area rely on wells for their water supply. Maryland’s Department of the Environment commenced monitoring about 248 private wells in the area. Exxon settled with the state for $4 million for cleanup costs in 2008.

Several hundred people and businesses filed suit against Exxon Mobil, claiming more than $1 billion in damages. A jury awarded about $150 million in damages to about ninety households in 2009 for property damage, emotional distress, and medical monitoring. Another jury trial in 2011 resulted in a $1.5 billion award to about 160 households and businesses, including about $495 million in compensatory damages for fraud, property damage, emotional distress, and medical monitoring; and $1 billion in punitive damages.

Lawsuit Accuses Sheriff’s Deputies of Negligently Putting Locksmith in Harm’s Way, Resulting in His Death, During Attempted Eviction of Tenant with Violent History

January 14, 2014 | Lebowitz & Mzhen

A lawsuit alleges that sheriff’s deputies negligently placed a locksmith in an unreasonably dangerous situation by bringing him along on an eviction without warning him of specific known risks, resulting in his death. Engert, et al v. Stanislaus County, et al, No. 1:13-cv-00126, 2nd am. complaint (E.D. Ca., Oct. 23, 2013). The individual subject to eviction was reportedly known to be both heavily armed and violent, but the sheriff’s deputies allegedly did not warn the locksmith of the danger, nor did they provide any safeguards for him. The locksmith’s widow sued the county and various county officials for violations of her late husband’s civil and constitutional rights, negligence, and wrongful death.

Two deputies of the Stanislaus County Sheriff’s Department, Robert Paris and Michael Glinskas, were assigned on April 12, 2012 to perform an eviction at an apartment in Modesto, California. According to the plaintiff’s most recent amended complaint, the apartment’s occupant, James Ferrario, was known to the sheriff’s department as a “dangerous, mentally unstable individual, with weapons in his home,” and with a history of threats and assaults. The deputies brought a locksmith, Glendon Engert, along to open the apartment door.

The deputies allegedly did not warn Engert of the possible threat posed by Ferrario. Engert’s position in front of a doorway, with a possibly armed individual inside, is reportedly known as a “vertical coffin.” Ferrario opened fire from inside the apartment with armor-piercing bullets, killing Engert and Paris. After an eleven-hour standoff, Ferrario committed suicide. A search of his apartment yielded twenty-two firearms, including an M16 and an SKS rifle, and about five hundred rounds of ammunition.

Data Suggest That Noneconomic Damage Caps Do Not Reduce the Cost of Healthcare, While Maryland Courts Continue to Affirm Their Constitutionality

January 7, 2014 | Lebowitz & Mzhen

Maryland state law imposes a cap on noneconomic damages in all personal injury and wrongful death cases. This applies to “nonpecuniary” damages like pain and suffering, mental anguish, disfigurement, physical impairment, and loss of consortium. MD Cts & Jud Pro Code §§ 3-2A-01(h), 11-108(a)(2). Advocates of damage caps, commonly known as “tort reform,” claim that they are necessary to keep insurance costs under control, particularly in the medical field, and therefore to keep costs down for the public. Opponents of tort reform, including advocates for patients’ rights and others, say that after more than a decade, caps on damages in personal injury litigation have not stopped an increase in healthcare and other costs. Maryland courts, meanwhile, have repeatedly affirmed noneconomic damages caps against constitutional challenges.

The law prohibits informing the jury about the noneconomic damage cap in personal injury, wrongful death, or medical malpractice trials. If a jury enters an award that exceeds the cap, the court is directed to reduce the amount accordingly. As of October 1, 2013, noneconomic damages in personal injury and wrongful death claims, other than medical malpractice claims, are capped at $785,000 for all claims arising from a single incident. The only exception to this is a wrongful death claim with multiple beneficiaries, in which case state law increases the maximum amount by fifty percent. The cap increases by $15,000 every October 1. MD Cts & Jud Pro Code § 11-108(b)(2). For medical malpractice claims, the cap is $740,000 as of January 1, 2014, increased by twenty-five percent for a wrongful death claim with more than one beneficiary. This cap also increases by $15,000 every year. MD Cts & Jud Pro Code § 3-2A-09(b). The for medical malpractice.

The advocacy group Public Citizen has criticized the idea that damage caps are necessary to control costs. Its data show that malpractice payouts in 2010 were the lowest at any point in the previous twenty years when adjusting for inflation, and the lowest since 1998 in absolute dollars. Annual malpractice payments reportedly decreased by nearly twelve percent between 2000 and 2010, and accounted for only 0.0013% of total health care costs nationwide in 2010. During the same ten-year period, national spending on health care rose by ninety percent.

Baltimore City Police Officer Convicted in Accidental Training Shooting

November 4, 2013 | Lebowitz & Mzhen

The police officer responsible for the accidental shooting of a police academy trainee during a training exercise was convicted last month for his role in the accident. (For information regarding the civil lawsuit, see this blog post). The accident occurred during a simulation, when the officer drew his live gun, rather than the proper (harmless) simulation weapon.

Although the accident was reportedly unintentional, the verdict apparently hinged on the fact that the defendant should not have had his weapon “out of the field,” and in any event, any weapons used in training exercises are not supposed to be “live” or loaded with ammunition.

In this case, a training exercise in a police academy, the defendant brought his weapon into the simulation, which was conducted in an abandoned hospital. Then, when it was time to draw a weapon, rather than grabbing the simulated weapon, which was loaded with paintballs, he instead mistakenly drew his gun, firing a shot through a glass window, and injured an academy trainee.