Personal Injury

Lawsuits Being Filed Following Texas Fertilizer Plant Explosion

May 22, 2013 | Lebowitz & Mzhen

Following the catastrophic explosion at a fertilizer distribution and storage plant in Texas last month, in which the building caught fire and then exploded as firefighters were attempting to douse the flames, several individuals have begun to file personal injury lawsuits. The total extent of damage done remains unknown, though it is estimated that at least 150 buildings were damaged or destroyed, at least 15 people were killed, and many more were injured or reported missing.

Of the two lawsuits recently filed, one was brought by insurance companies on behalf of various individuals and businesses accusing the plant’s parent company of negligent operation of the location, which allegedly led to the accident.

The second suit was filed by a woman who lived in a neighboring apartment, which was destroyed by the blast. She is seeking up to $1 million due to loss of her possessions, and the physical and emotional injuries she suffered as a result of the explosion.

Further lawsuits are expected against the above named and other defendants. For example, the manufacturers of the fertilizers that were being stored at the facility are other potential defendants.

The last inspection performed by the Occupational Safety and Health Administration (OSHA) reportedly occurred 28 years ago, and uncovered at least five “serious” violations. One of these violations dealt with the way in which anhydrous ammonia was allegedly improperly handled and stored. According to a report released by the plant in late 2012, it was then storing 110,000 pounds of the chemical,in addition to 540,000 pounds of ammonium nitrate.

Federal Court Hears Oral Argument on NFL Concussion Litigation Motion to Dismiss

April 30, 2013 | Lebowitz & Mzhen

Oral arguments were heard in a federal district court in Pennsylvania earlier this month over the motion to dismiss filed by the National Football League regarding concussion injury litigation.

Plaintiffs contend that for many decades, the National Football League has withheld information on purpose and misstated the potential harm and safety risks that result from concussions and miscellaneous other injuries sustained by football players in the course of play. The legal filings include fraud and negligence claims.

The plaintiffs’ attorney summarized the NFL’s responsibilities to the players by stating at oral argument that the NFL was holding itself out to be the “guarantor of safety”.

Counsel for the defense claimed that the players’ collective bargaining agreement (“CBA”) preempts the athletes’ legal claims, and that the parties should engage in arbitration in lieu of the tort litigation process. He further noted the defendant’s position that the NFL, the players, and the teams each have involvement and share responsibility in regards to players’ well being and safety.

There are now over 4,000 individual plaintiffs participating in this and related litigation, and this figure is continuing to increase. These plaintiffs make up over 200 separate lawsuits that the court has consolidated and transferred to the Eastern District of Pennsylvania.

The National Football League Players’ Concussion Injury Litigation, has resulted in increased scrutiny from legal and sports circles. The plaintiffs in these cases include several former NFL players and/or their family members, who have suffered a variety of degenerative brain diseases or other related conditions due to incurring repeated concussions during the course of their NFL careers.

Following this hearing, the judge will decide if the case should survive the defendant’s assertions that the CBA preempts the injury claims, or whether it should be dismissed.

D.C. Considering Requirement for Gun Owners to Purchase Liability Insurance

March 6, 2013 | Lebowitz & Mzhen

D.C. Lawmakers introduced legislation earlier this week which would require gun owners to maintain insurance policies of at least$250,000. The policies would be in place for gunshot victims, in order to help pay for any potential medical costs, and also to promote gun safety.

The bill is intended to cover, “any damages resulting from negligent acts, or willful acts that are not undertaken in self-defense.” So far, at least six states have introduced similar gun liability insurance laws, but as of mid-February, none of the states have actually passed such measures.

Gun owner liability policies are already offered through organizations such as the National Rifle Association. The only difference that would occur as a result of this bill, and those similar to it, is that in addition to creating a potential fund, the decision to carry coverage would no longer be voluntary. It is estimated that medical care for those killed or injured by gunfire in 2010 cost an estimated $3.2 billion.

Gun owners are already criminally and civilly liable for their conduct, as well as potentially liable for any damage or injuries caused by their guns. The act of requiring an insurance policy merely ensures that there is an accessible fund available for victims and their families to make claims against.

City Argues the Police Had No Affirmative Duty to Assist Civilian Who Stopped Spree Killer, Suffered Injury in the Process

February 12, 2013 | Lebowitz & Mzhen

Police had no duty to assist or protect a civilian who risked his life to stop a killer on a New York subway car, according to the defendant’s arguments in Lozito v. City of New York. The plaintiff sued the city and the NYPD after a suspect wanted for several murders attacked him in view of two officers. Unfortunately, caselaw going up to the U.S. Supreme Court may support the city’s argument, as it pertains to civil liability for failure to prevent or investigate individual crimes. In the absence of a specific duty established by statute, law enforcement is generally not liable to crime victims for such omissions.

The plaintiff, Joseph Lozito, was on a subway train on the morning of Saturday, February 12, 2011, when Maksim Gelman boarded the train at Manhattan’s Penn Station. Gelman was the subject of a citywide manhunt for a crime spree that left four people dead. Gelman pounded on the door of the motorman’s car, where two NYPD officers were stationed as part of the manhunt. Gelman turned and ran towards Lozito when the officers refused to open the door. Using a move he learned from watching mixed martial arts on television, Lozito knocked Gelman to the ground, and the two fought. By the time police officers intervened, Lozito had at least seven knife wounds. Gelman was later sentenced to two hundred years in prison.

Lozito filed suit against the NYPD for failing to protect him. The NYPD’s account of the incident states that Officer Terrance Howell tackled Gelman, but Lozito claims that Howell locked himself and another officer in the motorman’s car. A grand-jury member allegedly told Lozito that Howell admitted to staying put during the attack because he thought Gelman might have a gun. The city’s argument that the NYPD does not owe a duty of protection to any individual, but rather to the public at large, is fairly well-settled as the “public duty doctrine.”

State “Loser Pays” Laws Could Seriously Impact Rights of Injury Victims

January 30, 2013 | Lebowitz & Mzhen

The campaign by some people, businesses, and organizations to crack down on perceived abuse of the court system, largely in the area of personal injury litigation, is commonly known as “tort reform.” It has resulted in various laws at the state and federal level that set caps on damages for certain claims or make adjustments to the jurisdiction of various courts to hear specific types of cases. One law passed two years ago in Texas, referred to by some as the “loser pays” law, may have a significant impact on people’s ability to seek relief for injuries in state and federal court, both by allowing quick dismissal of purportedly “frivolous” lawsuits and by putting plaintiffs at risk of hefty attorney’s fee judgments.

HB 274, titled “An act relating to the reform of certain remedies and procedures in civil
actions and family law matters,” was signed into law by Texas Governor Rick Perry on May 30, 2011. The bill gives trial courts the expedited authority to dismiss “frivolous lawsuits” if they lack any “basis in law or fact,” and it directs the state supreme court to develop proposed rules on determining what constitutes a “frivolous” lawsuit. Part of the problem with the discussion surrounding this law, of course, is that most defendants, upon receiving notice of a lawsuit against them, respond by calling the suit “frivolous.” This makes it difficult for those of us who advocate for injured plaintiffs to tell if a lawsuit truly lacks merit or is simply inconvenient for a defendant.

Federal Tort Claims Act Requires a Clear Allegation Against a Federal Employee or Agency, DC Court Rules: Moorman v. United States

November 16, 2012 | Lebowitz & Mzhen

A U.S. District Court in Washington DC dismissed a lawsuit brought under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671 et seq., against the federal government and other government entities. The plaintiff in Moorman v. United States asserted causes of action for premises liability, but did not specifically plead facts to show how the federal government, or a federal employee, was liable for her injuries. The court found that the FTCA did not apply in the absence of any allegations to demonstrate the federal government’s liability, and that as a result, it lacked subject matter jurisdiction over the entire case.

The plaintiff, Jacqueline Moorman, attended an event at the D.C. National Guard Armory in March 2009. When she left the event at approximately noon, she descended an exterior stairway. A concrete step crumbled under her feet, causing her to fall and sustain substantial injuries.

Moorman sued the Washington Convention and Sports Authority (WCSA), a government board that owns the Armory. She also named the United States and the District of Columbia as defendants. According to the district court’s opinion, her allegations of premises liability centered on the WCSA, which is part of the city government of Washington, DC. The mayor appoints most of the members of WCSA’s Board of Directors, who must also be confirmed by the Washington City Council. The federal government reportedly has no direct role in the WCSA or the operation of the Armory.

Washington DC Court Reviews Venue and Personal Jurisdiction in a Case Alleging a Defective Medical Device: Marshall v. I-Flow, LLC

October 22, 2012 | Lebowitz & Mzhen

A medical device manufacturer moved for dismissal of a lawsuit, Marshall v. I-Flow, LLC, in a Washington DC court, arguing that the court lacked personal jurisdiction over it or, alternatively, that the venue was not proper. The plaintiff had undergone surgery in upstate New York and alleged injuries caused by the defendant’s device. The court found that it had personal jurisdiction and that venue was proper, but it exercised its authority to transfer the case to New York for purposes of convenience.

The plaintiff, Jennifer L. Marshall, had surgery on her shoulder in 2006 in Syracuse, New York. Marshall was and remains a resident of Ithaca. After the surgery, her doctor implanted a “pain pump” manufactured by the defendant, I-Flow, LLC, in her shoulder joint. The pump delivered a steady stream of painkillers directly to the joint. Marshall alleges that the pump caused extensive damage to the cartilage in the joint, eventually requiring further surgery in Rochester in 2011. As of the date of the court ruling in 2012, Marshall had received a recommendation for “total shoulder replacement.”
Marshall filed suit against I-Flow, a Delaware company based in California, in the U.S. District Court for the District of Columbia in 2012. The lawsuit asserted various causes of action for negligence, product liability, and failure to warn. I-Flow filed a motion asking the court to dismiss the case for lack of personal jurisdiction, or to transfer it to the Northern District of New York.

Washington DC Workers’ Compensation Act Applied in Intentional Tort Case: Fonseca v. Salminen

October 18, 2012 | Lebowitz & Mzhen

A federal district court in Washington DC ruled in Fonseca v. Salminen that the District of Columbia Workers’ Compensation Act (WCA) precludes a lawsuit arising from a workplace assault. While some intentional torts perpetrated by an employer against an employee are not subject to the WCA, the court found that the incident in question did not fall under any exception.

The plaintiff, Luis A. Fonseca, and the defendant, Eric Salminen, were both employees of Asbestos Specialists, Inc. (ASI), also named as a defendant. Salminen acted as Fonseca’s supervisor on an asbestos-removal job. Fonseca alleged that he was working at the job site on July 25, 2011, when Salminen suddenly hit him in the face and left eye. Salminen reportedly told responding law enforcement officers that he remembered speaking with Fonseca, but did not recall hitting him.

Fonseca filed suit against both Salminen and ASI in a District of Columbia court on July 17, 2012, asserting causes of action for assault, battery, and negligent supervision. He also sought punitive damages. Before Fonseca could obtain service on Salminen, ASI removed the case to the U.S. District Court for the District of Columbia on September 4, asserting diversity jurisdiction. It also filed a motion for summary judgment, purportedly on behalf of itself and Salminen, arguing that he WCA precluded Fonseca’s lawsuit.

Washington DC District Court Enters Judgments Against Iran in Two Cases Brought Under the Foreign Sovereign Immunity Act

September 28, 2012 | Lebowitz & Mzhen

The U.S. District Court for the District of Columbia recently entered judgments in several lawsuits against the Islamic Republic of Iran and the Iranian Ministry of Information and Security (MOIS). The plaintiffs were victims of the 1983 U.S. Marine barracks bombing in Beirut, Lebanon, in which the government of Iran and the MOIS were implicated. The lawsuits were brought under an amendment to the Foreign Sovereign Immunity Act (FSIA), which provides a federal cause of action for injuries against a foreign state designated as a sponsor of terrorism. The court awarded damages to the plaintiffs in both cases, although the question of recovering damages from the defendants remains highly unsettled.

FSIA, which first became law in 1976, gives federal district courts original jurisdiction over most civil claims against foreign states, but applies many of the principles of sovereign immunity. This is the legal doctrine that a government entity may not be sued unless it has waived immunity. It applies in lawsuits against city, county, or state governments, where a claimant must follow steps set out by statute before filing suit. People claiming damages for injuries caused by foreign states have generally been barred from relief by this doctrine. Federal courts applied FSIA in blocking claims for damages caused by the September 11 terror attacks in In re Terrorist Attacks on September 11, 2001, 538 F.3d 71 (2nd Cir. 2008), and a 2003 terror attack in Riyadh in Heroth v. Kingdom of Saudi Arabia, 565 F.Supp.2d 59 (D.D.C. 2008).

Congress added an exception to FSIA in 1996, with amendments added in 2008, for foreign states designated as “state sponsors of terrorism” either at the time of the alleged injury or as a result of the alleged injury. The foreign state must also remain designated as such at the time a claimant files suit. The exception applies to claims for personal injuries or wrongful death resulting from acts such as hostage taking, torture, sabotage, or the support of such acts by the foreign state.

Washington DC Court of Appeals Affirms Summary Judgment in Favor of Hospital in Medical Malpractice Case, Based on Statute of Limitations

August 30, 2012 | Lebowitz & Mzhen

The District of Columbia Court of Appeals affirmed summary judgment in favor of the defendants in a medical malpractice lawsuit. The court based its decision in Atiba v. Washington Hospital Center, et al on a missed deadline under both DC’s statute of limitations and notice requirements for medical malpractice claims. The issue before the court concerned an alleged conflict between the deadline to file suit under the statute of limitations and the time period in which notice must be given.

The plaintiff, Kwaco Atiba, sought medical treatment from the defendants, Michelle Grant-Ervin, M.D. and Washington Hospital Center, between October 27 and November 2, 2006. Washington DC law requires a plaintiff to give “not less than” ninety days’ notice to a defendant before filing a medical malpractice suit. It also imposes a three-year statute of limitations for most personal injury claims, including medical malpractice. In the event that the required notice is given within the ninety-day period immediately prior to the running of the statute of limitations, the time to file suit is extended ninety days from the date the notice is served. Atiba served notice of the intended suit on the defendants on October 27, 2009, and filed suit on January 26, 2010. The filing date of the lawsuit was the ninety-first day after the date the notice was served.

The hospital moved for summary judgment, alleging that the plaintiff failed to file within the statute of limitations, and the trial court granted the motion. The trial court ruled that the ninety-first day after service of the required notice was “one day too late.” The plaintiff argued on appeal that the notice requirement and the statute of limitations conflicted, making it impossible to provide “not less than” ninety days’ notice and file suit within the ninety-day extended limitations period. The plaintiff interpreted the notice requirement as only permitting suit after ninety days had passed.