Personal Injury & Product Liability Blog

Maher v. County of Alameda, (First District, February 18, 2014) — Cal.Rptr.3d —-, 2014 WL 605904

A man who suffered severe complications from a temporary biliary stent which had been inadvertently left in his abdomen following surgery, filed suit against the physicians who had performed the surgery and the medical center. The plaintiff alleged that he was unaware of the presence of the stent, which should have been explanted after 3 to 6 months, until 14 years later when it began to disintegrate and migrate.

The defendants demurred to the complaint, contending that the action was barred by Code of Civil Procedure section 340.5, which provides that in an action for injury or death against a health care provider based upon professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, but in no event exceeding three years. The plaintiff opposed the demurrer, arguing that the statute had been tolled by the “foreign body” exception in the statute which provides for a tolling in the event of “the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.”

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Gonzalez v. Seal Methods, Inc., (Second District, January 24, 2014) 223 Cal.App.4th 405,166 Cal.Rptr.3d 895, 14 Cal. Daily Op. Serv. 893, 2014 Daily Journal D.A.R. 985

A woman who was severely injured while loading material onto a die in a power press filed suit against her employer under Labor Code § 4558, which provides an exception to the workers’ compensation exclusive remedy rule. The section allows an employee to “bring an action at law for damages against the employer where the employee’s injury or death is proximately caused by the employer’s knowing removal of, or knowing failure to install, a point of operation guard on a power press, and this removal or failure to install is specifically authorized by the employer under conditions known by the employer to create a probability of serious injury or death.”

The employer moved for summary judgment, contending that the point of operation guard specified by the manufacturer of the press—a two-hand activator system—was properly installed and activated, and the manufacturer had not specified or required any other point of operation guard. The plaintiff opposed the motion, contending that the operation manual for the press required the use of safety blocks, which are small wooden or metal blocks placed in the point of operation to physically prevent the machine from striking whenever the operator’s hands are in the point of operation. Read the rest »

Federal Insurance Company v. Workers’ Compensation Appeals Board, (Second District, December 3, 2013) 221 Cal.App.4th 1116, 165 Cal.Rptr.3d 288, 78 Cal. Comp. Cases 1257, 13 Cal. Daily Op. Serv. 13,054, 2013 Daily Journal D.A.R. 15,727

A retired professional basketball player for the Connecticut Sun filed a workers’ compensation claim against her employer and filed an application for adjudication of the claim with the California Division of Workers’ Compensation/Workers’ Compensation Appeals Board. Although the claimant had played only one professional game in California out of 34 games played during 2003 and had suffered no specific injury in the state, she asserted that the single game had contributed to her cumulative injuries resulting in conditions in her shoulder, spine, hip, and ankle.

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J.J. v. County of San Diego, (Fourth District, February 14, 2014) — Cal.Rptr.3d —-, 14 Cal. Daily Op. Serv. 1575, 2014 WL 563805

A minor who was sexually molested by her foster father filed a claim against the County of San Diego in 2012, alleging that the County was negligent in placing her in the foster home, and negligent in supervision and/or failure to investigate/prevent sexual abuse in the foster home. The County contended that the claimant had failed to file a timely claim within 6 months of the accrual of her cause of action, because in 2010 she had disclosed the molestation to her parents and County social workers, which led to a police investigation. The County further contended that her cause of action accrued when she was molested in 2009, or at the latest, in early March of 2011 when her parents (after reunification) attended and spoke at the sentencing.

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Montague v. AMN Healthcare, Inc., (Fourth District, February 21, 2014) — Cal.Rptr.3d —, 2014 WL 659690

A hospital employee who was injured when a coworker intentionally placed carbolic acid in her water bottle following a dispute at work, filed suit against the coworker and the staffing company which had hired her and assigned her to work at the hospital. The plaintiff alleged causes of action against the staffing company under a theory of respondeat superior for negligence, battery, negligence per se and intentional infliction of emotional distress. She also alleged that the staffing company had negligently hired, retained, supervised and trained the coworker.

The trial court granted the staffing company’s motion for summary judgment, concluding that the claims based on respondeat superior liability failed because the undisputed evidence established that the coworker was a special employee of the hospital. The court also found that the plaintiff could not establish a triable issue of fact regarding negligent hiring, retention or supervision, and that the claim regarding negligent training failed due to lack of causation. The court of appeal affirmed, finding that “the employee acted outside the course and scope of her employment”:

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Coleman v. Medtronic, Inc., (Second District, January 27, 2014, as modified February 3, 2013) 223 Cal.App.4th 413, 167 Cal.Rptr.3d 300.

A man who suffered painful complications following spinal surgery to implant a bone fusion device, filed suit against the manufacturer, asserting, inter alia, causes of action for strict liability failure to warn and negligence. The plaintiff further alleged that the defendant had violated state common law and parallel federal requirements by (1) failing to report adverse information about the product to the FDA after approval and (2) promoting the off-label use of the product while downplaying the risk of complications.

The trial court sustained the defendant’s demurrer without leave to amend, finding that the claims were preempted by the Medical Device Amendments (MDA) to the Food, Drug, and Cosmetic Act, § 2 et seq., 21 U.S.C.A. § 360c et seq.  However the court of appeal reversed. Although the court held that the failure to warn claim was expressly preempted to the extent it was based on the theory that the defendant should have given warnings different than those approved by the FDA, the court held that the failure to warn claim based upon failure to file adverse events reports was not preempted. The court also held that although the claim was preempted to the extent it was based upon promoting off-label uses, the plaintiff could pursue such a claim under a theory of negligence per se:

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Montenegro v. City of Bradbury (2013) 215 Cal.App.4th 924, 155 Cal.Rptr.3d 732

A woman who sustained injuries after falling over a protruding tree trunk while walking along a pathway beside a roadway, filed suit against the city.  The plaintiff alleged that the exposed tree root and inadequate lighting created a dangerous condition of public property. The city moved for summary judgment, contending that the pathway was a “recreational trail” within the meaning of Government Code section 831.4, subdivision (a), which provides that public entities are not liable for injuries caused by the condition of trails used for certain recreational purposes, including “hiking” and “riding, including animal and all types of vehicular riding,” or for access to such recreation. Read the rest »

The Feinberg report, “confirms, tragically, my repeated warnings that the number of deaths caused by GM’s concealed ignition defects is likely to be far higher than the 13 deaths the company acknowledged,” said Sen. Richard Blumenthal (D-Conn.) “This news only emphasizes the severity of the company’s safety lapses and the continuing urgency of rapid repairs to these defective vehicles, many of which remain on the road. – Los Angeles Times, September 15, 2014

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August 29, 2014 – A federal judge rejected a bid by top Japanese drugmaker Takeda Pharmaceutical and Eli Lilly & Co. on August 28 to throw out a $9 billion punitive damage award for hiding the cancer risks of their diabetes drug, Actos®.

The combined $9 billion award stems from a March 8 ruling when jurors found that Takeda and Lilly acted with “wanton and reckless disregard” in their promotion and marketing of Actos. The Court ordered Takeda to pay $6 billion of the award, and Lilly to pay $3 billion. Read the rest »

Spriesterback v. Holland (2013) 215 Cal.App.4th 255, 155 Cal.Rptr.3d 306

A bicyclist who was injured when he was struck on a sidewalk by a car exiting a supermarket parking lot, filed a negligence action against the driver. The plaintiff had been traveling eastbound on a sidewalk on the north side of the street against the flow of vehicular traffic when the car slowly pulled out across his path.  At the request of the defendant, the trial court instructed the jury that riding a bicycle on the sidewalk in the opposite direction of street traffic violated the Vehicle Code and was therefore negligence per se.

Following a jury verdict in favor of the defendant, the plaintiff appealed, contending that the trial court had erred in instructing the jury as to negligence per se.  The court of appeal affirmed the verdict, but agreed that the instruction should not have been given, as it was inconsistent with the language of Vehicle Code § 21650.1: Read the rest »