Personal Injury & Product Liability Blog

McDaniel v. Asuncion (2013) 214 Cal.App.4th 1201, 155 Cal.Rptr.3d 71

The wife and daughter of a man who was killed in a multiple vehicle accident brought an action for wrongful death against multiple defendants.  A jury returned a verdict in their favor against one defendant, but returned a defense verdict as to the only remaining defendant. The prevailing defendant filed a memorandum of costs to recover over $40,000 in expert witness fees, based upon the plaintiffs failure to obtain an award more favorable than a pretrial offer to compromise pursuant to C.C.P. § 998.

The trial court awarded the expert fees as requested, and the plaintiffs appealed, contending that the offer was void as a matter of law because it was made jointly as a single offer to two plaintiffs. The court of appeal reversed, holding that “although joint offers may be invalid… there is little, if any, justification for invalidating a joint offer in a wrongful death case”: Read the rest »

Law Offices of Mathew Higbee v. Expungement Assistance Services (2013) 214 Cal.App.4th 544, 153 Cal.Rptr.3d 865

An attorney filed an action against an online legal services provider under California’s Unfair Competition Law (Bus. & Prof.Code, § 17200 et seq.) (the “UCL”), contending that the defendant was engaging in the unauthorized practice of law. The plaintiff alleged that the defendant was undercutting competition by using unlicensed persons to perform legal work, thereby saving on attorney fees, and by employing unbounded and unregistered legal document assistants, thereby saving on the cost of posting statutorily mandated bonds and registration fees. The plaintiff further alleged that as a result of the defendant’s actions he had lost revenue and market share, and had sustained increased advertising costs as well as a loss in the value of his firm. Read the rest »

Garrett v. Howmedica Osteonics Corporation (2013) 214 Cal.App.4th 173, 153 Cal.Rptr.3d 693

A cancer patient whose prosthetic femur fractured less than two years after implantation filed suit against the manufacturers of the device, asserting, inter alia, that the fracture was caused by manufacturing defects. The defendants moved for summary judgment, contending that the device was not defective, that the fracture was caused by forces resulting from normal human activity, and that the force simply exceeded the load the product could bear over time.

In opposition, the plaintiff submitted the declaration of an expert metallurgist, who opined he had determined through destructive testing and other examinations that the fractured area was softer than minimum ASTM specifications for the material, that he had detected “a layer of polymeric-like material” which should not have been present, and that based upon these purported anomalies, “there were ‘strong arguments’ that the purported defect had caused the product to fail.” Read the rest »

Ignat v. Yum! Brands, Inc. (2013) 214 Cal.App.4th 808, 154 Cal.Rptr.3d 275

A woman who suffered from bipolar disorder filed an action against her former employer and her supervisor for invasion of privacy, alleging that while she was absent from work due to side effects of her medication, the supervisor had informed coworkers of her condition. The plaintiff alleged that upon her return to work she was shunned by coworkers, and one had even asked her supervisor if she was likely to “go postal” while at work.

The defendants moved for summary judgment based upon decisions following Melvin v. Reid (1931) 112 Cal. App. 285, holding that the right of privacy can only be violated by writings or other permanent publications, and not by word of mouth.   The trial court granted summary judgment but the court of appeal reversed, holding that disclosure in a writing should not be required to maintain a cause of action for public disclosure of private facts: Read the rest »

A study published in April 2014 in the Journal of American Medical Association Internal Medicine (“JAMA”) linked the popular erectile dysfunction drug, Viagra, to an increased risk of melanoma, a deadly form of skin cancer. The study analyzed data from more than 25,000 men who participated in the Health Professionals Follow-up Study and found that men who had recently used sildenafil had nearly twice the risk of developing melanoma (hazard ratio 1.84, CI 1.04 – 3.22) after adjusting for other risk factors including age, body mass index, smoking history, number of sunburns, mole counts, hair color, family history of melanoma, sun exposure, and use of other erectile dysfunction treatments. The study only found an increased risk of melanoma – it did not find an increased risk for more common, less dangerous types of skin cancer such as basal cell carcinoma and squamous cell carcinoma.

Read the rest »

Webb v. Special Electric Company, Inc. (2013) 214 Cal.App.4th 595, 153 Cal.Rptr.3d 882

A man who allegedly contracted mesothelioma as a result of working for many years around pipe containing asbestos, filed a product liability action against Johns-Manville, the pipe manufacturer, as well as Special Electric, a company which supplied bags of asbestos to Johns-Manville. The plaintiff contended that both defendants were liable for failing to warn of the risk of injury and disease presented by the use and handling of asbestos.

A jury rendered a verdict in favor of the plaintiff, finding that Special Electric had failed to adequately warn consumers of its products’ potential risks, and assessed 49% fault to the manufacturer and 18% to Special Electric. The trial court granted judgment notwithstanding the verdict, and entered judgment in favor of Special Electric, relying on the rule that sophisticated users of dangerous products need not be warned about dangers of which they are already aware. The court found that as a matter of law, the supplier had no duty to warn Johns-Manville because it was already aware that asbestos was a dangerous product. However, the court of appeal reversed, holding that the trial court’s finding that the supplier had discharged its duty was unsupported by the record: Read the rest »

Flores v. Presbyterian Intercommunity Hospital (2013) 213 Cal.App.4th 1386, 153 Cal.Rptr.3d 413

A hospital patient who suffered injuries to her left knee and elbow when her bed rail collapsed, causing her to fall to the floor, filed suit against the hospital for general negligence and premises liability. The plaintiff contended that the action was not based upon professional negligence, in that no negligence was committed in assessing the condition of Plaintiff and in failing to raise the bed’s siderails. The plaintiff also alleged that it was only after the rendition of all professional services and after the siderails had been negligently latched, that the rail collapsed.

The hospital demurred to the complaint, arguing that the action was barred by C.C.P. §  340.5, the one year statute of limitations for professional negligence actions against health care providers. The trial court sustained the demurrer without leave to amend, reasoning that ensuring bedrails are properly raised, lowered or latched is a duty that arises from professional services. However, the court of appeal reversed, holding that the facts as alleged sounded in ordinary negligence which did not occur in the rendering of professional services, and that the case was therefore subject to the two year statute of limitations: Read the rest »

Luttrell v. Island Pacific Supermarkets, Inc. (2013) 215 Cal.App.4th 196, 155 Cal.Rptr.3d 273

A supermarket patron who fractured his hip when an automatic door repeatedly struck him while he was leaving the premises, brought an action for personal injuries against the owner of the market. Following a jury verdict in favor of the plaintiff, the trial court determined that the plaintiff’s recovery for medical expenses should be reduced by 50% due to his failure to mitigate his damages.

Appealing from the judgment, the plaintiff contended, inter alia, that the trial court had improperly applied the 50% reduction to the amount of medical bills paid, rather than the amounts billed. However, the court of appeal affirmed, holding that the amounts-paid limitation  for past medical expenses under Howell v. Hamilton Meats (2011) 52 Cal.4th 541 should be imposed before any reduction for failure to mitigate damages: Read the rest »

According to a recent study published in Psychotherapy and Psychosomatics (1/22/14, “Tripartite Conflicts of Interest and High Stakes Patent Extensions in the DSM-5”, http://www.karger.com/Article/FullText/357499#abstract), panel members for the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-V) may have financial conflicts of interest (FCOI) due to financial ties with pharmaceutical companies.

The DSM manual is published by the American Psychiatric Association (APA) and serves as a diagnostic checklist for psychiatric disorders, many of which require pharmacological treatments. The APA instituted a disclosure policy requiring panel members to disclose drug industry ties, a positive step toward transparency. According to the study, “… findings suggest that there may be a risk of industry influence on the DSM revision process. Additionally, our findings of FCOI of PIs running the clinical trials suggests that there also may be a risk of industry influence on the clinical decision-making process for identifying interventions to treat these new ‘disorders’.” Read the rest »

Collins v. Navistar (2013) 214 Cal.App.4th 1486, 155 Cal.Rptr.3d 137

A big rig truck driver who suffered severe brain damage when a 15-year-old boy intentionally threw a 2.5 lb. chunk of concrete through his windshield from the top of a levee, filed an action against the manufacturer of the truck. Asserting various products liability theories, the plaintiff alleged that the windshield of the truck was defective due to its inadequate resistance to penetration, and that the manufacturer had a duty to design its trucks to withstand common road debris, including even intentionally thrown rocks and concrete chunks.

Following a jury verdict in favor of the manufacturer the plaintiff appealed, contending that the trial court had erred in giving jury instructions and a verdict form which required a heightened standard of foreseeability due to the criminal nature of the boy’s actions in throwing the concrete. The court of appeal reversed, holding that the special verdict form had erroneously precluded the jury from considering whether the risk of chunks of concrete hitting the windshield was a reasonably foreseeable road hazard: Read the rest »