Articles Posted in Personal Injury

In many personal injury and medical malpractice cases, the bulk of the litigation actually occurs before a case reaches the trial phase. Much of this pre-trial litigation occurs over discovery-related matters, when the parties essentially argue over which evidence will be considered at trial and which evidence should be kept out. After the evidentiary issues have been resolved, either party is free to move for summary judgment based on the evidence presented to the court thus far in the proceeding.

Doctor's White CoatIn Washington, D.C., the Rules of Civil Procedure explain that summary judgment is appropriate when “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Simply put, this means that the party filing for summary judgment is claiming that the other party cannot win the case, even if the court resolves all issues in their favor. The credibility of a witness or document is not at issue in a summary judgment proceeding.

Of course, if the evidence does present an issue of material fact, the moving party cannot legally be entitled to summary judgment, since that issue must be resolved by a fact-finder (either by a judge or jury) at a trial. A recent medical malpractice case out of Indiana illustrates the point well.

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Earlier this month in Hagerstown, Maryland, local businessman Leonard B. Robinson died in a fatal car accident. According to a local news report, Robinson was known to many as the “Route 29 Batman” because he drove a tricked-out Lamborghini that was made to look like the Batmobile. Prior to passing, he would dress up as the Dark Knight and visit sick children in area hospitals. He would bring them toys and books, and encourage them to be strong in the face of their illnesses.

batman-close-up-1-1486843Evidently, Robinson was on his way home from a car show when his vehicle broke down on Interstate 70, near Hagerstown, and he was forced to pull off the road. However, according to witness accounts, it seems as though the Lamborghini was not completely off the road, and it may have been partially in the eastbound passing lane. As fate would have it, a passing Toyota Corolla collided with the Batmobile, sending it into Robinson, who was standing a few feet in front of his vehicle. Robinson was pronounced dead at the scene of the accident by emergency responders. Police are still in the middle of an investigation.

Robinson became well known after a police dash-cam video of him getting pulled over in the Batmobile surfaced a few years back. The exchange between the Dark Knight and the police was a unique one, with the officers clearly intrigued and confused by the man whom they pulled over for having an invalid license plate. Apparently, the plate on the Lamborghini only had a bat symbol on it.

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Earlier this month, a former football player for the University of California, Berkeley, has filed suit against the regents of the University, as well as several others, seeking damages for the long-term injuries he sustained as a result of his participation in the school’s football program. According to a local California news report, Bernard Hicks played in the position of safety for the Golden Bears for a period of about four years between 2004 and 2008. In all, Hicks played 32 games with the team.

good-game-1540547Evidently, during his tenure with the team, Hicks suffered numerous concussions during both games and practices. After leaving the team in 2008, Hicks alleges that he suffered from permanent and debilitating injuries, including depression, suicidal thoughts, memory loss, and problems with his vision.

The lawsuit, which also names the school’s head coach and athletic trainer, claims that the school should have been more proactive in educating the players regarding the long-term risks of neurological damage associated with participating in a high-impact sport such as football. Hicks claims that, had he been properly educated about the risks involved, he would have not participated or at least taken off more time in between games to allow himself to heal.

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Earlier last year and throughout this year, the NFL has been involved in a lawsuit brought by a number of former players alleging that the league failed to take adequate precautions to protect the players from concussions and related head injuries. According to one news source, recently a group of NHL players have piggy-backed on that same idea and have filed a lawsuit against the NHL making similar allegations.

goal-saves-2-535933-mThe lawsuit specifically alleges that the NHL withheld information about the long-term effects of the head injuries that can occur from playing in the NHL. Originating back in early 2014, the NHL concussion lawsuit has recently been picking up steam with the publicity surrounding the NFL litigation. In fact, just recently 29 former players joined the lawsuit.

Like many deceased players formerly in the NFL, it is surmised that several NHL players have chronic traumatic encephalopathy (CTE), which is a disease of the brain that can only be diagnosed post-mortem. Consistent with a CTE diagnosis, the lawsuit points to several players who died at young ages from suicide.

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Back in June 2012, a lawsuit was filed against the NFL by a group of almost 2,000 players, alleging that the league failed to inform players of the link between concussions and brain injuries. Back in August of last year, the group of players—that had at that point reached 4,500 in number—came to an agreement with league officials.

football-american-texture-451055-mUnder the terms of that deal, the group of players would receive $765 million to help pay for medical exams, concussion-related compensation, medical research for retired NFL players and their families, and litigation expenses. However, the judge assigned to the case declined to approve the settlement, holding that she didn’t think it was enough money.

According to a recent article by USA Today, the federal judge overseeing the case is again reviewing a potential deal between the players and the league. This time, the proposed settlement would provide for up to $4 million for the families of players who were diagnosed after their death with the brain disease chronic traumatic encephalopathy. In addition, the proposed settlement would provide between $1.5 million and $3 million to players who are alive and suffering from various brain-related disorders, including dementia.

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In Washington DC, the current state of the law prevents any accident victim from recovering for his or her injuries if he or she is found to be at all at fault for the accident resulting in his or her injuries. This means that even if an accident victim is found to be just 1% at fault, the law in Washington DC would prevent him or her from recovering from a defendant who was 99% at fault. This is the law of contributory negligence.

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However, according to a recent article by the Washington Post, there is a new bill pending in the legislature that would shift the current contributory-negligence scheme to a comparative-fault system. As of right now, Washington DC is one of only a handful of jurisdictions that uses a comparative-fault system. Most other states have moved away from the strict system in recent years.

Under comparative fault, an accident victim’s damages get reduced by the percent that he or she is found to be at fault for the accident. For example, if an accident victim is found to be 5% at fault, and the jury determines that the damages should be $1,000,000, the plaintiff’s total damages would be reduced by 5%, or $50,000. That would leave the plaintiff with a total recovery amount of $950,000 under a comparative-fault system. Under a contributory-negligence system, however, the plaintiff would recover nothing.

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Earlier last year, a New York woman was taking a Segway tour of the National Mall when she sustained a nasty fall, shattering her elbow and requiring her to spend three days at George Washington University Hospital. According to one local news report, the accident occurred last fall while the rider was taking a tour with Bike & Roll D.C.

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Evidently, the woman was riding her Segway when suddenly the handlebar jerked forward “like a propeller,” and the woman was thrown from the Segway, landing on her elbow, which was shattered as a result. Recently, the woman decided to file suit against Bike & Roll D.C., alleging that it did not adequately inform her of the risks involved with the use of a Segway.

Apparently, several Segway models had been recalled, but the woman was not made aware of this. Additionally, she is having a difficult time determining if she was riding a model that was recalled, since Bike & Roll is not answering her requests for the answer. She is seeking monetary damages around $5 million for her injuries, including medical expenses as well as pain and suffering.

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In a city that is occupied by drivers from several surrounding states, the question often arises, “who causes most of the accidents in Washington DC?” An article by the Washington Post takes a look at a recent study released that analyzes some of the traffic and accident data in the nation’s capitol.

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Although Washington DC shares a border with Maryland and Virginia, and is a popular tourist destination, the number one group involved in accidents in DC is, in fact, DC residents. In second place are Marylanders, causing about one-third of the accidents in the nation’s capitol.

Tourists and drivers from Virginia are actually responsible for very few accidents, given the high prevalence of both populations.

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Generally, a personal injury plaintiff must prove four elements to prevail in a negligence claim: duty, breach of duty, causation, and damages. However, in some cases, plaintiffs can take a “short cut” under the legal theory of “negligence per se.” Negligence per se is a Latin term that means negligence in and of itself. Under Washington D.C. law, negligence per se is applicable “where a particular statutory or regulatory standard is enacted to … prevent the type of accident that occurred.” Further, an “unexplained violation of that standard renders the defendant negligent as a matter of law.”
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This means that the plaintiff must prove only that the statute was designed to protect against the type of harm caused in the accident, and that the defendant was the person or entity that engaged in the conduct. Therefore, when the facts of the case allow it, a plaintiff will almost always want to instruct the jury on negligence per se because it makes the plaintiff’s burden that much easier to meet.

For that reason, when a court erroneous instructs a jury on negligence per se, the defendant may have an issue on appeal because of the harm caused by the instruction. However, a recent D.C. Court of Appeals case held that an improper negligence per se instruction can be “redundant” rather than harmful in some cases, and does not always require reversal.

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Defense.gov_photo_essay_100506-N-6436W-023.jpgA federal appellate court approved class certification and a settlement in a class action lawsuit based on the 2010 explosion and oil spill on an oil drilling rig operated by British Petroleum (BP) in the Gulf of Mexico. In re Deepwater Horizon, et al, No. 13-30095, slip op. (5th Cir., Jan. 10, 2014). The spill led to several hundred lawsuits by individuals and businesses claiming property damage, and by individuals claiming personal injury. The recent ruling rejected a request by BP to vacate the district court order approving the settlement. While this ruling specifically involves claims for property damage, BP’s claims and the court’s ruling could also apply to personal injury class actions.

BP operated, Deepwater Horizon, an exploratory oil drilling rig in the Gulf of Mexico, about forty miles south of Louisiana. The rig was drilling a well located at a depth of about 5,100 feet underwater. On April 20, 2010, a pocket of methane gas rose into the rig, ignited, and caused an explosion that killed eleven workers and injured over a dozen. Oil flowed from the well directly into the Gulf for almost three months releasing an estimated 205 to 210 million gallons. Oil washed ashore in Texas, Louisiana, Mississippi, Alabama, and Florida, resulting in widespread reports of injured and dead wildlife, property damage, and health problems among residents of the affected areas.

BP was named as a defendant in hundreds of lawsuits. The Judicial Panel on Multidistrict Litigation (JPML) consolidated many of the claims in In re Oil Spill by the Oil Rig “Deepwater Horizon,” No. 2:10-md-02179 (E.D. La.), in August 2010 in order to address common issues as efficiently as possible. BP established a fund to pay claims known as the Gulf Coast Claims Facility (GCCF), which would eventually pay out over $6 billion. Starting in 2011, the company negotiated with the plaintiffs in the JPML case to transfer claims from the GCCF to a court-supervised fund.

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