Wrongful Death

Mass Torts -CAFA

By on December 29, 2015 - Comments off


Briggs v. Merck Sharp & Dohme (United States Court of Appeals, Ninth Circuit, August 6, 2015)  — F.3d —-, 2015 WL 4645605

Five groups of plaintiffs filed personal injury and wrongful death actions in California state court, asserting various tort claims against manufacturers and a distributor of diabetes drugs. Each of the five cases has fewer than one hundred plaintiffs. However, defendant Merck removed the actions to federal court, asserting jurisdiction based upon the Class Action Fairness Act (“CAFA”), which authorizes the removal to federal court of “mass actions,” civil actions in which “monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact.” 28 U.S.C. § 1332(d)(11)(B)(i).

The defendant contended that because there was already a coordinated state proceeding pending in Los Angeles County involving a second set of cases involving similar drugs, and in an earlier motion to remand the plaintiffs had indicated that “[R]emand will result in these cases joining the Judicial Council Coordinated Proceeding (JCCP), In re Byetta Cases, JCCP No. 4573, in Los Angeles, where coordination with this Court’s MDL is underway,” plaintiffs’ counsel’s expressed intent that the cases be transferred to the JCCP constituted a proposal to try the claims of those plaintiffs jointly.

The district court denied the motion to remand, but the 9th Circuit Court of Appeals reversed, holding that in none of the five cases did the plaintiffs propose that the claims of one hundred or more persons be tried jointly within the meaning of CAFA:  Read the rest »


General Jurisdiction — Continuous and Systematic Affiliation

By on October 19, 2015 - Comments off

train old

BNSF Railway Company v. Superior Court (Second District, March 27, 2015) 235 Cal.App.4th 591, 185 Cal.Rptr.3d 391, 15 Cal. Daily Op. Serv. 3088, 2015 Daily Journal D.A.R. 3506, 2015 Daily Journal 4049

The relatives of a former railway worker who died from malignant pleural mesothelioma filed a wrongful death action against a railway company. The plaintiffs alleged that the decedent developed the disease as a result of exposure to asbestos, asbestos-containing products and/or products designed to be used in association with asbestos products, while working at a dismantling facility and roundhouse owned by the defendant’s predecessor.

The defendant moved to quash service of summons for lack of personal jurisdiction, contending that the trial court lacked specific personal jurisdiction over it because the conduct alleged against it did not arise from it’s in-state activities. The defendant also contended that the trial court lacked general personal jurisdiction because it is a Delaware corporation with its principal place of business in Texas, and therefore not “essentially at home” in California, as required under Daimler AG v. Bauman (2014) ––– U.S. ––––, 134 S.Ct. 746, 751 and Goodyear Dunlop Tires Operations, S.A. v. Brown (2011) ––– U.S. ––––, 131 S.Ct. 2846, 2854.

The trial court denied the motion to quash, concluding that the defendant’s “systematic and continuous business in California,” its status as an American company, and its role as a “perpetrator” of the wrongdoing alleged rendered it amenable to general jurisdiction even after Daimler and Goodyear.  However, the court of appeal issued a writ of mandate directing the trial court to vacate its order denying the motion to quash and to enter a new order granting the motion, holding that even though the defendant conducted continuous and systematic business in California by owning 1,149 miles of track, employing 3,520 people, and generating 6 percent of its overall revenue in the state, those facts were insufficient to impose general jurisdiction: Read the rest »

Posted in: Wrongful Death


Medical Malpractice — Negligent Infliction of Emotional Distress

By on September 28, 2015 - Comments off

hospital bed empty room B cropped

Phyllis Keys v. Alta Bates Summit Medical Center (1st Dist., February 23, 2015/March 25, 2015)    — Cal.Rptr.3d. —-

The sister and daughters of a woman who died following thyroid surgery, filed an action for wrongful death against the medical centerwhere the surgery was performed.  One of the daughters and the decedent’s sister also asserted a cause of action for negligent infliction of emotional distress, alleging that immediately following surgery both had witnessed the decedent having respiratory difficulties and discomfort, and both were upset at what they believed was a lack of urgency in responding to the woman’s distress.

Following a jury verdict in favor of the plaintiffs the defendant appealed, contending there was no evidence to support the jury’s finding that the plaintiffs had meaningfully comprehended the medical negligence that led to the death of their family member at the time the negligence was occurring. Relying on Bird v. Saenz (2002) 28 Cal.4th 910, 123 Cal.Rptr.2d 465, 51 P.3d 324, the defendant argued that the plaintiffs could not meaningfully perceive the defendants’ negligence because except in the most obvious cases, a misdiagnosis is beyond the awareness of lay bystanders.

However, the court of appeal affirmed, holding that the injury producing event was the defendant’s lack of acuity and response to the decedent’s inability to breathe, a condition the plaintiffs observed and were aware was causing her injury: Read the rest »