Maryland Accident Law Blog

Drowning Death During Tough Mudder Competition Leads to Wrongful Death Lawsuit

June 5, 2014 | Lebowitz & Mzhen

The Brooklyn, New York-based company, Tough Mudder, is facing a law suit filed by a Maryland woman who lost her son after he drowned in a Tough Mudder competition. Tough Mudder is an 11-mile race with obstacles throughout the entire course. The obstacles tend to be extreme in nature, and often involve climbing, swimming, balancing, and sprinting.

According to a report by CBS Baltimore, the man died during the 2013 Tough Mudder event in West Virginia. Specifically, he died on the “Walk the Plank” obstacle, which involved climbing up a wall and then jumping off a platform 15 feet into the water. Evidently, the man jumped off the platform, and another woman jumped right after him, landing on top of him and preventing him from surfacing.

According to the lawsuit, Tough Mudder was experiencing a particularly large crowd that day and took shortcuts on safety. For example, the plaintiff claims that there was only one volunteer stationed at the obstacle and that the volunteer had his or her back turned when they were telling racers to jump. Thus, the volunteer could have no idea if the path was clear for the next racer.

Recall in the Midwest Results in 1.8 Million Pounds of Ground Beef Being Recalled; Hummus Recalled as Well

May 28, 2014 | Lebowitz & Mzhen

Earlier this week, and just in time for Memorial Day barbeques, Wolverine Packing Company in Detroit, Michigan, announced a recall of its ground beef, recalling 1.8 million pounds of meat. According to a report by Parade, the company announced that there was possible E. Coli contamination in the meat and recalled it because there had been reports that consumers had been getting sick after consuming the meat.

Thus far, there have been 11 instances of people getting sick from the contaminated meat. The reports of illness have come from Michigan, Ohio, Massachusetts, and Rhode Island. So far, no one from Maryland, Virginia, or DC has been reported ill.

Another Contaminated Batch of Food

In the same article by Parade, a recall of hummus sold by Trader Joe’s stores and Target stores was also mentioned. The 15,000 pounds of hummus were recalled due to the presence of listeria in some of the tested product. Evidently, the Texas Department of Health found the contaminated hummus while conducting a routine check on chick peas, the primary ingredient in hummus. Once the contaminated batch was located, both Trader Joe’s and Target voluntarily recalled all the products that came from that plant around that time. In total, 10 products were removed from the shelves.

General Motors Recalls Another 2.42 Million Vehicles

May 21, 2014 | Lebowitz & Mzhen

General Motors has not had a good year. Earlier this year, it came to light that the ignition switch in several of the company’s more popular models was faulty, causing drivers to lose control of the car at full speed. At least 13 deaths have been attributed to the faulty mechanism, and countless accidents are suspected to have been caused as well. To make matters worse, evidence has shown that GM may have known about the problems and decided to continue selling the cars anyhow.

The Most Recent Round of Recalls

Earlier this week, GM announced yet another round of recalls, this time covering an additional 2.42 million vehicles. Evidently, that figure covers four different problems in various models, including:

Airbag problems in certain Cadillac models;
Shift cable problems in the Chevy Malibu and the Pontiac G6;
Seat belt problems in the Buick Enclave, Chevy Traverse, and GMC Acadia; and
A problem with the GMC Sierra HD that can cause the car to catch fire.

These vehicles join the over 2 million others that have been recalled by the car manufacturing giant earlier this year.

Family of Navy Yard Shooting Victim Re-Files Wrongful Death Suit in Florida Court

May 14, 2014 | Lebowitz & Mzhen

Earlier this year in April, the family of one of the Navy Yard Shooting victims filed suit in a Florida state court for the wrongful death of their loved one. According to a report by the Washington Post, the lawsuit names the United States government and two government contractors as defendants.

A similar suit was filed last year, but was dismissed for procedural reasons. This time around, the victim’s family added the two government contractors as defendants. The victim’s family is claiming that the government contractors who employed the shooter failed to adequately check his background and didn’t pay attention to the several signs of mental instability.

The suit also relies on the federal government’s own investigation into the shooting, claiming that the government was negligent in failing to secure the Navy Yard and also that the government failed to respond to the signs of mental health issues that the shooter exhibited in the time leading up to the tragic event.

Weather Report Used By Appellate Judge in Premises Liability Case

May 7, 2014 | Lebowitz & Mzhen

In an interesting case out of New York State, an appellate judge reversed a lower court ruling that found against a slip-and-fall accident victim. The case was brought by Mr. Palazzo after he slipped and fell on some ice outside the defendant’s residence.

According to court documents, Mr. Palazzo was walking down the sidewalk outside the defendant’s residence at approximately 11:15 a.m. on December 15th when he slipped and fell. He testified that he noticed that the sidewalk was went and icy in some parts, but he didn’t notice any specific patches of ice. After he fell, he sued the property owner to cover his medical bills and his pain and suffering.

At Trial

The judge presiding over the trial made note of the fact that Mr. Palazzo didn’t see any specific patch of ice. The judge also looked at weather reports on the day of the accident that indicated that there was warm temperatures in the morning of the accident, and that it was unlikely that there was actually any snow or ice on the sidewalk. The most recent storm was on December 10th, when it snowed five inches.

Opera Singer Sues Over Career-Ending Injury Allegedly Sustained During Childbirth

April 29, 2014 | Lebowitz & Mzhen

An opera singer has filed suit against the U.S. government, alleging medical malpractice at a U.S. Army hospital. Herbst v. United States, No. 1:14-cv-00055, complaint (S.D. Oh., Jan. 16, 2014). She is claiming that a botched surgical procedure during childbirth has left her unable to work in her profession. Since the hospital is operated by the U.S. government, and the medical professionals working there were all government employees at the time, the lawsuit claims that the federal government is liable under the Federal Tort Claims Act (FTCA). 28 U.S.C. §§ 2671, et seq. The doctrine of sovereign immunity generally bars lawsuits against the government, but statutes like the FTCA establish situations in which the government may be sued for injuries.

The plaintiff is a classically-trained opera singer, who was previously with the Nashville Opera Company. Her husband is a Staff Sergeant in the U.S. Army at Fort Campbell, Kentucky. She went to Blanchfield Army Community Hospital (BACH) at Fort Campbell, where she and her husband resided, on February 27, 2012. She was thirty-nine weeks pregnant at the time, and had experienced spontaneous rupture of membranes. This is commonly known as having one’s water break, meaning that labor has started.

She gave birth to a healthy baby boy. During delivery, a certified nurse-midwife (CNM) reportedly performed a midline episiotomy, a procedure that widens the vaginal opening by making an incision in the perineum. The plaintiff states that she did not consent to this procedure, nor was she told about the possible need for it. Risks associated with an episiotomy include further tearing during or after birth.

Investigation Finds Abuse, Neglect of Special-Needs Children in Nursing Homes

April 21, 2014 | Lebowitz & Mzhen

A federal investigation of nursing homes caring for children with disabilities led to a lawsuit against the Florida state government, with the U.S. Department of Justice (DOJ) alleging that the state’s social services department is violating the Americans with Disabilities Act (ADA). United States v. Florida, No. 0:13-cv-61576, complaint (S.D. Fla., Jul. 22, 2013). The DOJ alleges that almost two hundred children, who could be receiving home- or community-based care, are receiving unnecessary treatment in nursing facilities, and that the care is often inadequate to the children’s needs. The case was consolidated in December 2013 with a private putative class action lawsuit against the state, A.R., et al v. Dudek, et al, No. 0:12-cv-60460, which raises similar claims.

Title II of the ADA prohibits state and local governments from discriminating on the basis of disability. The U.S. Supreme Court has ruled that states must make reasonable efforts to eliminate or prevent unnecessary segregation of disabled individuals in institutions. Olmstead v. L.C., 527 U.S. 581 (1999). The DOJ’s Civil Rights Division (CRD) has been rather aggressive in enforcing the ADA as interpreted in Olmstead in recent years. Since 2009, the DOJ has filed lawsuits against at least eleven states regarding alleged discrimination and neglect of disabled individuals, and it has intervened in numerous private lawsuits.

The Civil Rights Division began investigating Florida’s system for treating disabled children with “medically fragile” conditions in 2011. In a letter to the Florida Attorney General dated September 4, 2012, it reported its findings that the state was in violation of Title II of the ADA. Investigators reportedly visited the six nursing homes that house the majority of Florida’s disabled, institutionalized children. They found that many children who were residing in a nursing home would benefit more if they received care at home or in their own community. Many families stated that they wanted to bring their children home, but that state policies made it difficult or impossible to do so.

Maryland Legislature Overturns Court Ruling Regarding Pit Bulls, Applies Same Standard of Liability to All Dog Owners Regardless of Breed

April 14, 2014 | Lebowitz & Mzhen

Maryland Governor Martin O’Malley signed a bill into law that overturns a controversial 2012 Maryland Court of Appeals decision regarding pit bull-type dogs. In Tracey v. Solesky, 50 A.3d 1075 (Md. App. 2012), the court modified the standard of negligence applied to attacks by pit bulls against humans, applying strict liability to dog owners and landlords who allow the dogs on premises they own or control. The decision met with substantial criticism from animal welfare advocates, landlords and other property owners, and many others. In addition to causing multiple evictions and surrenders of dogs to animal shelters, the decision may have made it more difficult for people to assert claims for damages by dogs that were not pit bulls. The new law applies the same standard of liability to all dog owners, regardless of the dog’s breed.

The Solesky case involved injuries to a young boy by a dog named Clifford. The boy required five hours of surgery and spent seventeen days in the hospital. His family sued the dog’s owner and the landlord, claiming that the landlord knew or had reason to know of the dog’s dangerous tendencies. The landlord presented several questions to the Court of Appeals, including whether harboring American Staffordshire Terriers, or “pit bulls,” is an “inherently dangerous activity” that would support the common law strict liability standard for a landlord. Id. at 1078.

The court ruled that “pit bulls” are “aggressive and vicious” by nature and expressly modified the common law negligence rule to hold landlords strictly liable for injuries caused by such dogs. Id. at 1079-80. A strict liability standard would apply if the plaintiff could prove that the landlord knew of the presence of a pit bull or cross-breed pit bull. A dissenting opinion by Judge Clayton Greene, Jr. noted the lack of expert opinion regarding pit bull temperament. It also noted the lack of a clear definition of “pit bull,” and the opinion of many experts that the term is “a generic category encompassing the American Staffordshire Bull Terrier, the Staffordshire Bull Terrier, and the American Pit Bull Terrier.” Id. at 1096. See also Weigel v. Maryland, 950 F.Supp.2d 811, 822 (D. Md. 2013).

Several Thousand Lawsuits Still Pending Against Manufacturer of Oral Contraceptive Yaz

April 7, 2014 | Lebowitz & Mzhen

The Judicial Panel on Multidistrict Litigation (JPML) began consolidating claims against Bayer and other pharmaceutical companies related to the oral contraceptive Yaz in 2009. Since then, the multidistrict proceeding has grown to include more than 11,000 cases. In re Yasmin and Yaz (Drospirenone) Marketing, Sales Practices and Products Liability Litigation, No. 3:09-md-02100 (S.D. Ill.). According to the JPML, 9,550 cases are still pending as of March 13, 2014, although Bayer has reportedly reached settlement agreements in many of those cases. Controversy over the drug began with claims about inaccurate information and insufficient warnings in television commercials for the drug, followed by products liability lawsuits.

Yaz and Yasmin were brand names for a synthetic hormone-based birth control medication containing a diuretic known as drospirenone,. It was approved by the U.S. Food and Drug Administration (FDA) for use as an oral contraceptive. Drospirenone has been associated with an increased risk of thromboembolism, a dangerous type of blood clot that blocks all blood flow in a vein or artery and can lead to heart attack or stroke.

Television ads for the drug in 2008 claimed that Yaz could treat mild acne and premenstrual dysphoric disorder (PMDD). The FDA and attorneys general in twenty-seven states required Bayer to run new ads beginning in early 2009, based on allegations that the company had overstated Yaz’s ability to treat acne and PMDD, and had understated the risks of the drug. In April 2012, the FDA ordered Bayer to change the label on Yaz and related medications to include warnings about the higher risk of blood clots associated with drugs containing drospirenone.

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.