Wrongful Death

Father’s Wrongful Death Lawsuit for Daughter Finally Makes It to Trial, but Jury Rules that Defendant Was Not Negligent: Tollenger v. State of Maryland, et al

December 6, 2012 | Lebowitz & Mzhen

A father’s long legal battle over the 2001 death of his daughter in a car accident may have come to an end in November, when a jury ruled that the state of Maryland was not negligent in its maintenance of the Thomas J. Hatem Memorial Bridge, where the accident occurred. The lawsuit, Tollenger v. State of Maryland, et al, alleged that various state transportation agencies negligently failed to place a dividing barrier on the bridge to separate the four lanes of traffic. The state had successfully argued that the Maryland Tort Claims Act (MTCA) contained an implied exception shielding the state from liability for discretionary planning, but the Maryland Court of Special Appeals reversed that judgment in 2011 and remanded the case for trial. The November verdict was on the sole issue of whether the state was legally responsible for the death of the plaintiff’s daughter and other individuals.

The accident occurred during a rainstorm on August 10, 2001, when 12 year-old Ashley Tollenger was riding in a pickup truck driven by her stepfather, 52 year-old Kenneth Connor. The truck reportedly hit a patch of water on the bridge, which extends over the Susquehanna River, and began to hydroplane. The truck veered across the center line and into oncoming traffic, where a Jeep Cherokee collided with it. Ashley Tollenger was pronounced dead at the scene, and Connor was pronounced dead soon after at a nearby hospital.

Garrett Tollenger, Ashley’s father, filed suit in Harford County Circuit Court against the Maryland Transportation Authority, the State Highway Administration, the Maryland Department of Transportation, and other state defendants in August 2004. The lawsuit alleged that the state knew of potential hazards associated with the absence of a center barrier on the bridge, and that it was negligent in failing to place such a barrier. The plaintiff’s witnesses included other individuals who were injured in accidents on the bridge, and a former Harford County executive who had written to the state requesting construction of a barrier on the bridge.

Insurance Companies Ask Court to Declare They Are Not Obligated to Defend Four Loko Manufacturer in Products Liability Lawsuits: Netherlands Ins. Co. v. Phusion Projects, Inc.

November 30, 2012 | Lebowitz & Mzhen

Two insurance companies have brought a declaratory judgment action, Netherlands Ins. Co. v. Phusion Projects, Inc., asking the court to declare that they are not bound to defend or indemnify Phusion in several products liability and wrongful death lawsuits relating to the company’s product, Four Loko. The plaintiffs state that they have obtained similar declaratory judgments in the past, and that the present lawsuits present the same underlying issues. The declaratory judgment case could significantly impact the pending personal injury cases, along with any potential future claimants, by making recovery of damages more difficult.

Four Loko is a beverage marketed as an “energy drink,” containing alcohol and a variety of stimulants like caffeine and guarana. It has been the subject of numerous lawsuits related to injuries and deaths from intoxication allegedly caused by the drink. The declaration sought by the plaintiffs in the present case would affect five pending lawsuits:

– Fiorini v. Phusion Projects, LLC, Superior Court of Fresno County, California. The plaintiff is suing for the wrongful death of his son, who drank two 23.5-ounce cans of Four Loko and allegedly became disoriented and paranoid. He began firing a shotgun, and was subsequently shot and killed by police.

Death of Maryland Family in Auto Accident Leads to First Lawsuit Based on Fetal Death Statute: Baumann et al v. Slezak et al

November 23, 2012 | Lebowitz & Mzhen

An accident on a Nebraska highway took the lives of a Maryland family. The resulting lawsuit, Baumann v. Slezak, et al, is reportedly the first to invoke that state’s law allowing causes of action for the wrongful death of unborn children. Nebraska’s law, enacted in 2003, differs from Maryland’s wrongful death statute, in that it allows causes of action for prenatal deaths “at any stage of gestation.” Maryland only allows causes of action for the death of viable fetuses.

In the early morning of September 9, 2012, the Schmidt family was stuck in a traffic jam on westbound Interstate 80. The family, which consisted of Christopher and Diana Schmidt and their two children, was driving through western Nebraska on their way from Maryland to California. Diana Schmidt was seven-and-a-half months pregnant with a child they had named Ethan. The couple was driving in separate cars: Diana Schmidt and the two children were in a Toyota Corolla, and Christopher Schmidt was directly behind them in a Ford Mustang. The traffic jam was the result of a deadly collision between two semi-trailers about a mile further up the highway. One semi had become disabled, and although the driver pulled the rig to the side of the road, he allegedly left the trailer blocking traffic. Another semi crashed into the trailer at about 4:30 a.m., killing its driver.

While the Schmidts were stopped at the rear of the long line of traffic, a semi trailer driven by Josef Slezak collided with the back of the Mustang. Slezak was allegedly driving seventy-five miles per hour, and did not make an effort to slow or stop his rig. The collision caused the Mustang to collide with the Corolla, pushing the Corolla under another trailer. All four members of the Schmidt family, as well as their unborn child, died in the collision.

Maryland Law Requires Medical Malpractice Plaintiff to File the Claim With the State Before Filing Suit – Haskins v. Washington Adventist Hospital, Inc.

October 2, 2012 | Lebowitz & Mzhen

The U.S. District Court for the District of Maryland granted a defendant hospital’s motion to dismiss a medical malpractice lawsuit, Haskins v. Washington Adventist Hospital, Inc. A woman filed suit as administrator of her late husband’s estate, alleging that inadequate care by hospital personnel caused his death. The court held that she did not comply with the Maryland Health Care Claims Act (MHCCA), which requires plaintiffs to file a claim with a state agency as a condition of filing a lawsuit. It dismissed the suit without prejudice, meaning she is permitted to re-file.

The decedent, Virginia resident Ernest Haskins, checked in to Washington Adventist Hospital (the “Hospital”) in Takoma Park, Maryland on April 9, 2010. He was there to receive treatment, including surgery, for a spinal fracture and metastatic multiple myeoloma cancer of the spine. He allegedly contracted a MRSA infection (methicillin-resistant Staphylococcus aureus) due to the nursing staff’s failure to follow standard of care procedures. MRSA is a bacterial infection that is resistant to common antibiotic treatments. It is usually spread by skin-to-skin contact. Because of the infection and its risk of contagion, Haskins was initially unable to find a nursing home willing to accept him.

Haskins also suffered stage II sacral decubitus ulcers, commonly known as bedsores, during his stay at the Hospital, causing him severe pain and discomfort. After several months in the Hospital, a nursing home in Richmond, Virginia agreed to admit Haskins. A third-party ambulance transferred him there, a five-hour trip over 129 miles. The Hospital allegedly failed to provide the ambulance crew with a full account of the severity of Haskins’ condition, including the bedsores. Haskins’ bedsores therefore went untreated until he arrived in Richmond. He required surgery at Virginia Commonwealth University Hospital on July 2, and he died shortly afterwards.

Lawsuit Alleges Prison Nurse Denied Emergency Medical Care to Inmate.

August 7, 2012 | Lebowitz & Mzhen

A woman in Minnesota is suing several registered nurses (RNs) over the death of her son, who died while in the custody of the Minnesota Department of Corrections (MDOC). The lawsuit alleges that a nurse employed by the prison withheld emergency medical care from her son, who had a history of seizures, because of “protocols” established by the private contractor hired to provide medical care for the state’s inmates.

Xavius Scullark-Johnson, age 27, was an inmate at the state prison in Rush City, Minnesota with only three months left on his sentence. According to the Minneapolis Star Tribune, the prison has not had 24-hour medical staff since 2002. Doctors, all of whom are employed by health contractor Corizon, Inc., only work Monday through Friday until 4:00 p.m. Nurses at the prison are state employees who work seven days a week, but their shifts end at 10:30 p.m. Corizon and MDOC closely monitor all medical-related expenses, including ambulance trips.

Scullark-Johnson reportedly suffered multiple seizures during the evening of June 28. An on-duty nurse, Linda Andrews, found him on the floor of his cell, “soaked in urine” and “in an altered state of consciousness.” She covered him and left orders to the guards to check on him regularly. Several hours later, a guard called the on-call doctor, Sharyn Barney, informing her that Scullark-Johnson had a seizure the previous evening, and that his cellmate could not wake him. She reportedly advised the guard to monitor him overnight and report his condition to the medical staff in the morning. No one had access to Scullark-Johnson’s medical records at the time because the prison health center was closed for the night. The guard called Barney again several hours later, and the doctor agreed that the guard should call for an ambulance.

Parents of Students Killed in 2010 Boat Accident Settle Federal Lawsuit

May 15, 2012 | Lebowitz & Mzhen

The parents of two students who died in a July 2010 boat accident settled their wrongful death lawsuit a few days into its trial in a Philadelphia federal court. The lawsuit included eighteen survivors from the accident, which occurred on the Delaware River when a city-owned barge collided with a tour boat. The plaintiffs had faced a possible cap on damages for their claims in the lawsuit based on federal maritime law. The parties reached a settlement at the urging of the judge.

The accident occurred in July 2010 on a stretch of the Delaware River in view of downtown Philadelphia. Thirty-seven passengers and crew were on board an amphibious duck boat, a vehicle that can drive on land and in water, commonly used for sightseeing tours. The duck boat had overheated due to a misplaced radiator cap. In the 103-degree heat, the duck boat’s captain reportedly thought the steam off the engine was fire. The captain dropped anchor immediately, leaving the boat stranded in a busy channel.

At the same time, an eighty-yard barge pushed by a tug was coming through the channel.The tugboat captain reportedly had a family emergency and was busy on his cellphone. He moved to a part of the tugboat where he could not see the river. He therefore failed to see the barge bearing down on the duck boat. The barge collided with the duck boat, causing it to capsize. Two passengers, 16 year-old Dora Schwendtner and 20 year-old Szabolcs Prem, both students from Hungary, died in the collision. Twenty-six passengers were injured. The tugboat captain is now serving a one-year prison sentence for involuntary manslaughter.

Mother of Murdered UVA Lacrosse Player Files Wrongful Death Lawsuits

May 4, 2012 | Lebowitz & Mzhen

Sharon Love, the mother of Yeardley Love, has filed two lawsuits related to her daughter’s 2010 murder. Yeardley Love was a lacrosse player at the University of Virginia when her ex-boyfriend, George Huguely, killed her in May 2010. Huguely was convicted of second-degree murder in February 2012 and awaits sentencing. Sharon Love sued Huguely for wrongful death, and has now filed a separate lawsuit against the Commonwealth of Virginia, the university, and several athletic officials in connection with Yeardley Love’s death.

Yeardley Love was found unresponsive in her Charlottesville, Virginia apartment in the early morning of May 3, 2010. Emergency responders pronounced her dead at the scene and noted that she had signs of physical injury, particularly blunt-force head trauma. Police arrested Huguely, whom Love had briefly dated, the following day and charged him with murder. Huguely reportedly had a history of domestic violence complaints with Love. Huguely waived his Miranda rights and told police his account of what happened that night. He said that he entered her apartment and kicked her locked bedroom door open. He shook Love, causing her head to hit the wall repeatedly. He took her laptop when he left in order to dispose of it.

Maryland’s Graduated Driver’s License Law Helps Prevent Teen Fatalities in Car Crashes

April 19, 2012 | Lebowitz & Mzhen

Graduated driver licensing laws (GDL) in Maryland contribute to one of the lowest rates of automobile accident fatalities involving teen drivers, according to a recent study. The Children’s Hospital of Philadelphia (CHOP), working with State Farm Insurance, reviewed data on nationwide traffic accidents involving teenagers between 2009 and 2010. The study defined “teens” as people ages 15 to 19. Maryland has one of the lowest rates of teen-driver-related fatalities in the nation, and the rate has substantially declined in the past five years. Robust GDL laws, in which teen drivers initially receive highly-restricted driver’s licenses and gradually earn additional privileges, show a strong correlation with low rates of fatal automobile accidents involving teen drivers.

CHOP’s report, entitled “Miles to Go,” provides a “yearly snapshot of teen driver safety for the nation.” The study found over 55,000 serious injuries among teens due to car accidents in the period from 2009 to 2010. Thirty percent of those injuries involved head trauma, such as skull fractures or traumatic brain injuries. Head trauma is the leading cause of death for teens in traffic accidents.

A total of 3,413 car crash fatalities involving teen drivers occurred in 2010. Fatalities include teen drivers, passengers of teen drivers, people in other vehicles, and people not in a vehicle (e.g. pedestrians). The report notes that three out of ten teen fatalities in 2010 involved people outside the teen’s vehicle. The total number of fatalities involving teen drivers nationwide declined by over thirty-five percent between 2005 and 2010.

Nationwide, the fatality rate for auto accidents involving teen drivers was 9.5 per 100,000 people. Maryland had the fifth-lowest rate in the country, with 5.8 per 100,000 people. This is a decline of more than forty-eight percent from 2005. The study’s authors credit strong GDL laws in the states with the lowest fatality rates.

Maryland’s GDL law, known as the “Rookie Driver” program, issues a driver’s license to teens in three stages: a learner’s permit, a provisional license, and a full driver’s license. A teen can apply for a learner’s permit at age 15 years and 9 months. A learner’s permit holder can only drive with a person age 21 or older, who has had a full license for at least three years (known as a “qualified supervising driver”), in the front passenger seat with them.

Sheriff’s Deputy Not Liable in Maryland Stun Gun Death, Jury Says

April 4, 2012 | Lebowitz & Mzhen

A federal jury in Baltimore returned a verdict in late January in favor of former Sheriff’s Deputy Rudy Torres, finding that he was not liable in the 2007 death of 20 year-old Jarrel Gray. While responding to a report of a fight, Torres used his electric stun gun on Gray twice. Gray died while waiting for an ambulance at the scene.

In the early morning of November 18, 2007, multiple people in a neighborhood just south of Frederick called police to report a fight. Torres responded to the call. One witness said he heard someone say “Get on the ground” and then heard a “pop noise” he recognized as a stun gun. Another witness at trial said that Gray was complying with Torres’ instructions when he used the stun gun the first time. A witness testified that he heard Gray say that his hands were on the ground.

After the first shock from the stun gun, Gray reportedly fell to the ground and did not move. He reportedly had his hands on the ground in front of him. Torres used the stun gun on Gray a second time, which Gray’s family’s attorney called “sadistic.” All parties agree that Gray was already dead by the time the ambulance arrived. The medical examiner reported that Gray died from “sudden death associated with restraint and alcohol intoxication.” According to Baltimore’s CBS affiliate WJZ, the medical examiner did not specifically identify the stun gun as the cause of death, but the stun gun was the only means of restraint included in the report.

Gray’s parents sued Torres, the Sheriff’s Department, and Frederick County for wrongful death. They alleged that Torres used excessive and unnecessary force. The suit demanded $145 million in damages.

A trial occurred in January that only addressed the Grays’ claims against Torres. Another trial against the sheriff’s office and the county may proceed at a later date. Torres argued that the use of force was reasonable and necessary under the circumstances. He testified that Gray had his hands in his pants and was behaving erratically, although other witnesses reportedly contradicted that account. Torres said that the second use of the stun gun was necessary because Gray refused to show his hands.

A “law enforcement expert” retained by Torres’ defense team testified that Torres was reasonable in viewing Gray as a threat both times he used the stun gun. The expert reportedly told jurors that Gray’s lack of response after the first shock could have been an act.

The jury returned a verdict in favor of Torres on January 25, 2012. According to CBS News, the jury concluded that although Torres assaulted Gray, his use of the stun gun was a reasonable use of force to defend himself or others. Because they concluded that Torres used a reasonable amount of force, he was shielded from liability.

Energy Drinks Allegedly Cause Maryland Teen’s Death from Caffeine Toxicity

March 21, 2012 | Lebowitz & Mzhen

Fourteen year-old Anais Fournier, of Hagerstown, was at the mall with friends on December 16, 2011. Her friends told the Record Herald that Fournier drank one 24-ounce energy drink that day, and that she drank another one less than twenty-four hours later. On December 17, she went into cardiac arrest. Doctors at a Baltimore hospital induced a coma to prevent her brain from swelling, but six days later, she died, having never regained consciousness.

Fournier’s death certificate lists “cardiac arrhythmia due to caffeine toxicity” as her official cause of death. She reportedly suffered a complete lack of oxygen to her brain when she lost consciousness. Fournier had a heart condition that can cause heart valve malfunctions. Doctors did not directly connect her heart condition to the arrhythmia that caused her death, but heart conditions are among the risk factors in scientific studies of energy drinks.

The forty-eight ounces consumed by Fournier reportedly contained 480 milligrams of caffeine, which according to TODAY Health is almost five times the limit that the American Academy of Pediatrics recommends, and roughly equal to the amount of fourteen 12-ounce cans of Coca-Cola. Many beverages marketed as “energy drinks” contain ingredients like guarana and taurine that themselves contain caffeine, as well as high levels of sodium and sugar. The Record Herald reports that doctors advise parents to keep such energy drinks away from children, citing potential side effects like high blood pressure, seizures, and even death. Energy drinks can be especially dangerous for people with diabetes, high or low blood sugar, or heart conditions.

Fournier’s death has led her family, friends, and others to call for regulation of energy drinks by the U.S. Food and Drug Administration (FDA). Energy drinks are reportedly categorized as “nutritional supplements,” and so are not subject to the FDA’s limit of 71 milligrams of caffeine per 12 ounces in soda. They are also not subject to the FDA’s safety testing and labeling requirements. A press release from the American Beverage Association, issued about a month before Fournier’s death and quoted by the Record Herald, alleged that energy drinks have FDA approval, and that they contain less caffeine than a typical cup of coffee. While an 8-ounce energy drink contains between 60 and 100 milligrams of caffeine, according to the press release, a similar amount of coffee contains between 104 and 192 milligrams.