Washington DC Injury Lawyer Blog

Judge Finds National Park Service Negligent in Boy’s Fall Death

March 27, 2013 | Lebowitz & Mzhen

A Sacramento federal magistrate judge handed down his decision last week regarding a summer vacation turned tragedy. A 9-year-old boy was visiting the Lassen Volcanic National Park with his family in July of 2009, when the boy and his sister sat on a retaining wall in order to take some pictures. The wall quickly gave way, throwing both of the children down the mountainside, killing the boy and injuring his sister. The family filed a wrongful death and personal injury lawsuit against the park for its negligence in failing to maintain the wall.

In his ruling, the judge held that negligence on behalf of National Park Service officials caused the boy’s death when the wall gave way. He also reprimanded the park’s superintendent for making several fraudulent statements regarding evidence and interview attempts, and the alleged destruction of critical evidence relevant to the case.

The findings relate to destruction of documents during the discovery (evidence collection) portion of the case, including the shredding of an internal memorandum regarding the potential instability of the wall and other relevant documents. There were also damning statements from a governmental architect, and further evidence that the park superintendent lied about attempts to be interviewed by the park agency’s inspector. The wall was also torn down within weeks following the incident, further disallowing the inspector the opportunity to inspect the wall.

Dialysis Drug Subject of Wrongful Death Suits Countrywide

March 20, 2013 | Lebowitz & Mzhen

A Texas woman has filed a wrongful death suit against the manufacturers of the drug GranuFlo, alleging that the manufacturer is responsible for the death of her husband.

The drug at the center of the lawsuit, called GranuFlo, is used for treatment in dialysis patients who are suffering from kidney failure. The integral chemical component of the drug acts by removing blood impurities which the kidneys can no longer remove on their own.

Her lawsuit claims that Fresenius USA is responsible for the death of her husband, who died two days after he received treatment with the drug. The suit alleges that the plaintiff’s husband began to feel ill immediately following a dialysis treatment which involved the administration of GranuFlo. Two days after the treatment, the plaintiff called an ambulance for her husband who was complaining of pain in his chest and head. However, her husband had died of a heart attack before any help arrived. Her suit alleges that in addition to being responsible for her husband’s death, the manufacturer may have known of the risks of the product as early as 2003, yet no action was taken. The woman seeks damages for her husband’s pain and suffering as well as for the loss of her spouse.

March 29, 2012 was the date the FDA instituted the initial class 1 recall for Naturalyte and Granuflo Acid Concentrate. A Class 1 recall is the highest priority recall issued by the FDA, and is only issued in cases where there is a significant chance that a drug can cause serious injury or death. These products have been linked to elevated levels of bicarbonate in treated blood, which can potentially cause stroke, heart attack and death. Almost immediately, lawsuits began to be filed nationwide.

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.

3 Pedestrian Deaths in 3 Weeks in Montgomery County

February 27, 2013 | Lebowitz & Mzhen

In what may come as a surprise to some readers, within the past three weeks in Montgomery County, three pedestrians have been killed in three separateincidents. Additionally, in all three instances, it appears, the pedestrians were not only obeying traffic rules, but rather should have had the right of way. Although one of the pedestrians was struck while walking on the sidewalk, one was on a median waiting for a safe cross (the law requires that drivers slow to let a pedestrian standing on the median cross), when he fell and was struck; and the other man was attempting to cross a street where the nearest cross walk was a long way off.

What is troubling about these circumstances, is that authorities are apparently attempting to shift the blame onto the pedestrians. Granted, visibility is certainly a part of pedestrian safety, it can’t be the case that pedestrians have to dress in neon colors and carry large signaling devices in order to merely cross the street.

Authorities could consider measures such as lowering speed limits, installing stop light signals for pedestrians, or lights in the street at busy intersections, such as those used throughout many Californian cities. Additionally, police could enforce the rules protecting pedestrian safety, both through the means of advertising campaigns, and by ticketing drivers who fail to yield. Other measures could include engineering changes to increase visibility, or the installation of speed bumps near common crossways. At the very least, marking crosswalks, by painting the familiar white or yellow lines, could go a long way at helping pedestrians cross safely.

Additionally, the area where one of the men crossed was allegedly a legal crosswalk, but was unmarked. Several of the commenters in the various articles linked to questioned what the public safety benefits were, if any, of having a crosswalk remain unmarked.

Class Action over Alleged Shuddering of Ford F150s

February 20, 2013 | Lebowitz & Mzhen

A class action lawsuit was filed today against Ford Motor Company, alleging that the company’s Ford F150 trucks contain a dangerous safety defect which causes the trucks to shudder or shake violently, and even stall when the driver attempts to accelerate.

The complaint, filed on behalf of at least 20 owners, arises out of frightening situations in which the trucks stall suddenly as the drivers were attempting to change lanes or pass, while driving in dense freeway traffic. It is scary to imagine attempting to navigate dense traffic and having your truck or car’s engine suddenly cut off completely. It’s not immediately clear whether this stalling occurred only at slower speeds, or if it also occurred while drivers were driving at full freeway speeds.

One theory is that the problem is caused by moisture moving into the engine as the drivers attempt to accelerate,causing the vehicle to shudder. In some severe cases, it is alleged, the F150’s computer system senses the change in the engine, and thus forces the vehicle into a so called “limp mode” in order to prevent incurring engine damage. It is believed the problem may lie within the Charge Air Cooler (CAC) system, which regulates cooling and temperature in the engine.

The suit further claims that Ford has been aware of the issue, and not only failed to address the issue, but may have even gone so far as to warn dealers of the potential defects in an internal document, stating that the vehicles may, “stumble and/or misfire on hard acceleration after an extended drive at highway speeds during high humid or damp conditions.”

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.”

Court Dismisses Putative Class Action Alleging Defective Tires, in Part for Failing to Allege Injuries or Damages

February 6, 2013 | Lebowitz & Mzhen

A New Jersey federal court dismissed a putative class action against an automobile manufacturer and a tire manufacturer for failing to state claims for which the court could grant relief, ruling separately on motions to dismiss brought by both defendants. Greene v. BMW of North America, et al, No. 2:11-04220 (D.N.J., Nov. 28, 2012). The lawsuit asserted causes of action for breaches of warranty related to allegedly defective tires, although the plaintiff did not allege any personal injury or property damage. While this case involved alleged violations of consumer rights laws, it is similar to some products liability claims alleging damages caused by a dangerous or defective product.

The plaintiff, David Greene, leased a BMW automobile that was equipped with Potenza Run Flat Tires, a product of the tire manufacturer Bridgestone. Greene alleged that he noticed a bubble in the side of the left-rear tire less than six months into the lease, followed by two bubbles in the right-front tire over the next twelve months. He claimed that the bubbles made operation of the car “distractingly loud,” “[un]controlled,” and “dangerous.” Slip opinion on BMW’s motion to dismiss (BMW opinion) at 5, slip opinion on Bridgestone’s motion to dismiss (Bridgestone opinion) at 7. When the mileage on the car reached 13,800, he sought advice regarding the condition of the tires. He claimed that multiple representatives of BMW dealerships informed him that this type of tire often developed bubbles before the vehicle hit 14,000 miles. They also allegedly told him that he should replace the tires immediately. Greene requested the dealership from which he leased the BMW to provide replacement tires, but claims that they refused. He then purchased the same model of tire online.

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.

Medical Malpractice Suit Dismissed by Washington DC Court for Non-Compliance with Notice Requirement

January 26, 2013 | Lebowitz & Mzhen

The U.S. District Court for the District of Columbia dismissed a medical malpractice suit without prejudice for non-compliance with the notice requirement in the DC Official Code. The court held in Carmichael v. West, No. 11-1513, slip op. (D.D.C., Jul. 27, 2012), that the plaintiff’s failure to give notice to the defendant deprived the court of subject matter jurisdiction. It also held that the plaintiff did not prove that she made a good-faith effort to comply with the notice requirement, nor that the “interests of justice” merited a waiver of the requirement.

Sheila Moody was admitted to D.C. General Hospital for obstetric care on August 30, 1998. She received treatment from the defendant, Dr. Threvia West, M.D. According to the plaintiff’s complaint, West knew that Moody was HIV positive, and that a vaginal delivery would expose the unborn fetus to a serious risk of infection. The plaintiff alleged that West still performed a vaginal delivery, resulting in the child, identified as John Doe, becoming infected with HIV. The child has suffered from HIV encephalopathy, a condition that resulted in severe pain and brain damage. Moody later died, and the child came into the care of the plaintiff, Nora Carmichael.

Carmichael filed suit against West for medical malpractice on August 22, 2011. She claimed that three actions by West directly contributed to the child’s injuries: performing a vaginal delivery instead of a caesarean section, delaying delivery until the child was exposed to ruptured membranes in the womb, and using a fetal scalp electrode that broke the skin and exposed the child directly to the HIV virus. The lawsuit claimed $80 million in damages. On September 21, 2011, the plaintiff sent the defendant a “Notice of Intention to File Suit” in accordance with DC Code § 16-2802. The defendant, with representation provided by the District of Columbia, moved to dismiss the lawsuit, or for summary judgment, based on lack of notice. The DC Code requires a plaintiff to send notice to a defendant at least ninety days before filing a lawsuit, unless the plaintiff can show a “good faith effort” to give notice.

Federal Government Reports on Improvements to Approval Process for Medical Devices

January 22, 2013 | Lebowitz & Mzhen

The Center for Devices and Radiological Health (CDRH) issued a report in November 2012 on improvements to its review and approval procedures for new medical devices. As part of the U.S. Food and Drug Administration (FDA), the CDRH is responsible for medical device safety and quality. The FDA defines “medical devices” as any device designed to either diagnose or treat disease or other conditions, or to alter or affect a bodily structure or function. They may range in complexity from Class I devices, such as dental floss, to Class III devices like pacemakers. The CDRH’s recent report builds on a plan the agency developed in 2011 to streamline and improve the premarket review and approval of medical devices.

Section 510(k) of the Food, Drug, and Cosmetic Act (FD&C Act) requires any person or business who intends to market a medical device designed for human use within the U.S. to submit a Premarket Notification, commonly known as a “510(k),” to the CDRH. The purpose of the 510(k) requirement is to allow the CDRH an opportunity to review the device and confirm that it is at least as safe as similar devices already on the market. Certain Class III medical devices that are entirely new, or otherwise not similar to any other device on the market, must submit to a Premarket Approval (PMA) process, which is more comprehensive because of the lack of existing safety data.

According to the CDRH’s report, entitled “Improvements in Device Review Data,” the agency’s premarket review and approval efficiency declined between 2001 and 2010. This was largely due to budget constraints, high staff turnover, limited training resources, and high workload. A lack of federal funding accounted for much of these issues, but the ever-increasing sophistication of medical devices compounded the problem, according to the CDRH, making it even harder for the agency to keep up with the incoming documentation. The effect of this decrease in efficiency was a significant increase in the time required for approval of new medical devices, along with the possibility of older, less effective or less safe devices remaining in use, posing a possible threat to patient safety.