Products Liability and Injury Lawyer Blog

Daniels v. Sunrise Senior Living, Inc., (Fourth District, January 4, 2013) 212 Cal.App.4th 674, 151 Cal.Rptr.3d 273, 13 Cal. Daily Op. Serv. 250, 2013 Daily Journal D.A.R. 185

A woman whose 93-year-old mother died following her stay at a residential care facility for the elderly filed an action against the owners and operators of the facility, asserting elder abuse and survivor claims as her mother’s successor in interest, and a wrongful death claim on behalf of herself as an individual. The Plaintiff alleged that her mother, who had been suffering from dementia with psychosis, had received inadequate treatment at the facility, resulting in injuries which ultimately led to her death.

The defendants petitioned the trial court to compel arbitration of the claims pursuant to an arbitration clause in a “residency agreement” which had been signed by the plaintiff as her mother’s attorney in fact. Although it had not been signed by the plaintiff in her personal capacity, the agreement nevertheless purported to cover all claims regarding the mother’s care, and to bind all of her heirs and representatives. The trial court denied the petition to arbitrate, finding that as a third party to the arbitration agreement in her capacity as an individual, the plaintiff could not be compelled to arbitrate her wrongful death claim, and that there was a possibility of conflicting rulings on common issues if the survivor claims were arbitrated but not the wrongful death claim. The court of appeal affirmed, holding that there was no basis to infer that the plaintiff had agreed to arbitrate the wrongful death claim:

Continue reading "ELDER ABUSE—ARBITRATION AGREEMENTS " »

Fortman v. Förvaltningsbolaget Insulan AB, (Second District, January 10, 2013) 212 Cal.App.4th 830, 151 Cal.Rptr.3d 320, 13 Cal. Daily Op. Serv. 437, 2013 Daily Journal D.A.R. 441

A woman who suffered severe emotional distress when she witnessed her brother drown while they were scuba diving together, filed a products liability action against the manufacturer of a component in the scuba gear known as a flow restriction insert. Asserting a claim for negligent infliction of emotional distress, the plaintiff alleged that the plastic component had become lodged in the decedent’s regulator during the dive, and had prevented him from getting enough air to breathe while underwater.

The defendant moved for summary judgment, contending that because the plaintiff believed at the time of the accident that her brother was having a heart attack, and that she was unaware that his injury was being caused by a defective product until after a subsequent investigation, her claim did not meet the requirement of Thing v. LaChusa (1989) 48 Cal.3d 644 that she be contemporaneously aware of what caused the injury. The trial court granted summary judgment and the court of appeal affirmed, holding that in a products liability action asserting a claim for negligent infliction of emotional distress “the plaintiff must have a contemporaneous awareness of the causal connection between the defendant’s product as causing harm and the resulting injury”:

Continue reading "PRODUCTS LIABILITY—NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS " »

Gregory v. Cott, (Second District, January 28, 2013) --- Cal.Rptr.3d ----, 13 Cal. Daily Op. Serv. 1027, 2013 Daily Journal D.A.R. 1217

An employee of a home care agency who was working as an in-home caregiver for an 85-year-old woman suffering from Alzheimer’s, was seriously injured when the woman attempted to reach for a knife that she was holding. The caregiver then brought an action for damages against the woman and her husband, asserting theories of battery, negligence and premises liability. The defendants moved for summary judgment, arguing that the plaintiff had assumed the risk, in that the plaintiff had been trained in dealing with Alzheimer’s patients, was aware that they could become violent, and had been the woman’s caretaker for several years.

The trial court granted summary judgment and the court of appeal affirmed, holding that the trial court had properly determined that the causes of action as to both negligence and intentional torts were barred by the doctrine of primary assumption of risk, and that the plaintiff “could not have been under any illusions concerning the [patient’s] condition or the premises”:

Continue reading "PRIMARY ASSUMPTION OF THE RISK—IN-HOME CAREGIVERS " »

In the first entry of our Product Safety blog series, the legal team at Robinson Calcagnie Robinson Shapiro Davis, Inc. discussed general issues related to defective products. While any product may potentially be defective, drugs and medical devices often pose the greatest danger.

Millions of medications and medical devices are used on a daily basis. Consumers and patients look to these products to protect them against health risks, but many of these products can cause serious injury, illness, or death due to defects. Because of the length of time it takes to get approval from the U.S. Food and Drug Administration (FDA), the public may incorrectly assume that these products are safe.

Continue reading "Issues of Product Safety: Facts of Medical Devices and Medications " »

Greyhound Lines, Inc. v. Department of the California Highway Patrol, (Fifth District, January 23, 2013) --- Cal.Rptr.3d ----, 13 Cal. Daily Op. Serv. 1839

Six people were killed when a Greyhound bus struck a disabled SUV which had been involved in a single vehicle collision. In the resulting actions for damages, the defendant bus company cross-complained against the California Highway Patrol, contending that CHP 911 operators were negligent in failing to properly report calls from motorists regarding the first accident to highway patrol officers. The cross-complaint alleged that CHP 911 operators had negligently failed to include lane blockage information in their description of the accident, despite the fact that lane blockage is one of the CHP’s highest priorities, and that their error resulted in an unreasonable delay in the CHP’s response. The defendant further alleged that a special relationship existed in that the 911 operators’ assurances that help was on its way lulled the callers into a false sense of security and dissuaded them from rendering further assistance, which could have prevented the second accident.

Continue reading "911 OPERATORS – DUTY OF CARE" »

On Friday, April 26, 2013, a Los Angeles jury awarded $6.5 million to the plaintiff, finalizing the suit filed against Japanese pharmaceutical company, Takeda Pharmaceuticals, for hiding the link between Actos and the high risk of bladder cancer. The action was brought by 79-year-old Jack Cooper, who was diagnosed with bladder cancer after taking Actos for five years.

This verdict is a strong first step in the pursuit of justice for the many Actos users who have been harmed by the drug. Our attorneys at Robinson Calcagnie Robinson Shapiro Davis, Inc. have represented many clients in pharmaceutical litigation and hope that the lawsuits that follow this verdict in the ongoing Actos matter are equally successful.

Continue reading "Jury Awards Jack Cooper and Wife $6.5 Million in Actos Bladder Cancer Suit against Takeda Pharmaceuticals" »

As a consumer, there is usually no question as to whether the product being purchased is safe. Many products are, in fact, safe, but this should not discount the dangers posed by defective products. In this three-part blog series, our legal team will discuss issues surrounding general product safety, medication and medical device defects, and the key components in automobile safety.

A product may be considered defective for a number of reasons, including design and manufacturing flaws and failure to warn of potential hazards. If the current design of a particular product makes it dangerous to use as intended, it is considered defective. Additionally, if a product malfunctions due to a manufacturing error or poses safety hazards that could have been avoided with appropriate warning or instruction, it is also considered defective.

Continue reading "Issues of Product Safety: Defective Product Basics" »

On Friday, March 8, 2013, a Los Angeles County jury awarded $8.3 million to the plaintiff in a lawsuit alleging personal injuries resulting from defects in DePuy hip implants. The case was brought against Johnson & Johnson’s DePuy Orthopaedics unit by a 65-year-old former prison guard who alleged that he had suffered from a wide range of health problems caused by a defectively designed DePuy ASR XL hip implant he received in 2007.

Of the approximately 11,000 similar lawsuits filed against Johnson & Johnson since the metal-on-metal hip replacement systems were recalled two years ago, this was the first such case to go to trial. Many of the plaintiffs claim that the failure of their hip implants has resulted in crippling injuries or replacement surgeries, and that Johnson & Johnson knew of problems with the implants in 2008.

Despite the outcome of the trial, DePuy plans to appeal the decision, and maintains that the ASR XL hip replacement system was properly designed and that the company’s actions were responsible and appropriate.

United States Senator Mary L. Landrieu has drawn attention to and taken a stand for consumer protection in regards to the safety of generic drugs through proper labeling and labeling changes for making side effect risks known. The American Association for Justice (AAJ) worked with Sen. Landrieu’s office to complete the letter, which was given to Dr. Margaret Hamburg, the Commissioner of the U.S. Food and Drug Administration (FDA), on February 15, 2013. As consumer advocates, the mass tort lawyers at Robinson Calcagnie Robinson Shapiro Davis, Inc., are pleased with and support Sen. Landrieu’s efforts.

One of the main points of the letter highlights that as the regulatory framework exists now per the recent decision by the United States Supreme Court in Pliva, Inc. v. Mensing, consumers are not being offered appropriate protection. The letter urges the FDA to call for new regulations that will concentrate on the problematic aspects of the Mensing decision. Overall, Sen. Landrieu is asking the FDA to allow for generic drug manufacturers to initiate alterations to a drug’s approved labeling through the Changes Being Affected process and Prior Approval Supplement process.

Continue reading "Sen. Mary Landrieu Examines Mensing Decision, Urges FDA to Offer Consumers Proper Protection" »

Nalwa v. Cedar Fair, L.P., (Supreme Court of California, December 31, 2012) --- P.3d----, 2012 WL 6734705

A woman who was injured on a bumper car ride at an amusement park filed suit against the park owner for negligence. The plaintiff alleged that toward the end of the ride her bumper car was bumped from the front and then from behind, and that while bracing herself by putting her hand on the car’s dashboard, her wrist was fractured. The plaintiff also alleged that the defendant owed her a duty to take reasonable measures to eliminate or minimize head-on bumping, which she characterized as beyond the inherent risks of a bumper car ride.

The trial court granted the defendant’s motion for summary judgment, concluding that the doctrine of primary assumption of the risk barred recovery because the injury arose from being bumped, a risk inherent in the activity of riding bumper cars. The Court of Appeal reversed in a divided decision, holding that the public policy of promoting safety at amusement parks precludes application of the primary assumption of risk doctrine, and that the defendant could have reduced the ride’s risks by configuring it to minimize head-on collisions. However, the California Supreme Court reversed the court of appeal, holding that bumper cars are subject to the doctrine of primary assumption of the risk, and that the defendant was not a common carrier with respect to the bumper car ride:

Continue reading "PRIMARY ASSUMPTION OF THE RISK: AMUSEMENT PARK RIDES" »

Monarrez v. Automobile Club of Southern California, (Second District, December 12, 2012) 149 Cal.Rptr.3d 457, 12 Cal. Daily Op. Serv. 12, 895, 2012 Daily Journal D.A.R. 15,745

A man who suffered catastrophic injuries when he was struck by a hit and run driver while receiving roadside assistance for a flat tire, filed an action against the Automobile Club of Southern California. The complaint alleged that the tow truck driver, who was employed by a dba known as AM/PM Towing and Auto Repair, was inadequately trained and had negligently allowed the plaintiff to remain in a dangerous and vulnerable location of the freeway shoulder, contrary to industry practice.

The Automobile Club moved for summary judgment, contending that it had no duty to the plaintiff, in that the driver was an independent contractor and the contract with his employer expressly defined their relationship as such. The trial court granted summary judgment, finding that the Auto Club had no control of the manner or means by which the driver’s employer performed its emergency roadside service. However, the appellate court reversed, holding that the evidence raised triable issues of fact as to both actual and ostensible agency:

Continue reading "RESPONDEAT SUPERIOR: ACTUAL AND OSTENSIBLE AGENCY" »

Chaker v. Mateo, (Fourth District, October 4, 2012) --- Cal.Rptr.3d ----, 12 Cal. Daily Op. Serv. 11,371, 2012 WL 4711885

A man who owned a forensics business filed an action for defamation against his former girlfriend, her mother and others, alleging that they had posted defamatory material about him on a social networking website and on a website where member of the public can comment on the reliability and honesty of various providers of goods and services. The complaint alleged that the defendants had posted accusations that he was, inter alia, a criminal and a “deadbeat dad” and “is into illegal activities.”

The former girlfriend’s mother filed a motion to strike the complaint under Code of Civil Procedure § 425.15, (the Anti-SLAPP law), contending that the plaintiff’s claims arose from her exercise of the right to free speech. The trial court granted the motion and the court of appeal affirmed, holding that the plaintiff had failed to establish that there was a probability of prevailing on his claim, in that it could not be concluded that the comments would be interpreted as anything more than name-calling:

In this context it is difficult to conclude Mateo’s alleged embellishments, to the effect Chaker picks up street walkers and homeless drug addicts and is a dead beat dad, would be interpreted by the average Internet reader as anything more than the insulting name calling—in the vein of “she hires worthless relatives,” “he roughed up patients” or “he’s a crook”—which one would expect from someone who had an unpleasant personal or business experience with Chaker and was angry with him rather than as any provable statement of fact. In this regard, we note the insults are generalized in that they lack any specificity as to the time or place of Chaker’s supposed behavior; the absence of such specificity is a yet a further signal to the reader there is no factual basis for the accusations. Thus, we are unable to distinguish these insults from the nonactionable ones posted in Summit Bank and Krinsky, and like the courts in those cases, we conclude these statements are nonactionable opinions.

The only statement which might arguably fall outside the scope of nonactionable opinion or epithet is the statement Mateo is a criminal. However, that statement is true. As the trial court noted, the fact Chaker’s conviction was later expunged did not prevent others from making true statements about his criminal history.

In sum, Chaker did not meet the minimal burden required to show he was likely to prevail on his defamation claim, as required by the second step of analysis under the Anti–Slapp Law.

Continue reading "DEFAMATION: PUBLIC WEBSITE POSTINGS" »