Washington DC Injury Lawyer Blog

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.

Supreme Court Rules that Federal Law Preempts State Wrongful Death Lawsuit Over Asbestos Exposure: Kurns v. Railroad Friction Products Corp.

October 12, 2012 | Lebowitz & Mzhen

The U.S. Supreme Court recently considered an appeal of a products liability and wrongful death claim arising from alleged asbestos exposure in railroad equipment. The decedent worked in locomotive repair for decades and died of cancer years later. The defendants argued that the federal Locomotive Inspection Act (LIA) preempted the plaintiffs’ state tort claims, and the trial court and appellate court agreed. The Supreme Court affirmed the lower courts in a 6-3 decision in Kurns v. Railroad Friction Products Corp., 132 S. Ct. 1261 (2012).

The decedent, George Corson, worked for the Chicago, Milwaukee, St. Paul & Pacific Railroad for about twenty-seven years, from 1947 to 1974. His job as a welder and machinist involved locomotive brakeshoe installation and insulation stripping on locomotive boilers. He allegedly came into contact with asbestos during this time. He was diagnosed with malignant mesothelioma in 2005.

Corson and his wife sued fifty-nine defendants, including Railroad Friction Products Corporation (RFPC) and Viad Corp in a Pennsylvania state court in 2007. The lawsuit alleged that RFCP distributed brakeshoes, that Viad was the successor-in-interest to a manufacturer and distributor of locomotives and locomotive engine parts, and that all the products in question contained asbestos. The plaintiffs asserted products liability causes of action for defective design and failure to warn. When Corson died, his executor, Gloria Kurns, joined as a plaintiff with Corson’s wife.

Washington DC Ranks Last in Annual Ranking of “Best Drivers;” Surrounding Areas Also Fare Poorly

October 5, 2012 | Lebowitz & Mzhen

Allstate Insurance Company released its eighth annual “Allstate America’s Best Drivers Report,” and Washington DC again ranked last among two hundred American cities. The survey examined its own data on accident claims to determine each city’s auto collision frequency. The cities with the lowest frequencies were deemed to have the “safest” drivers. Arlington and Alexandria, Virginia, along with Baltimore, also ranked very low on Allstate’s list. In general, smaller cities, such as the top-ranking Sioux Falls, South Dakota, have a lower incidence of car collisions, and Allstate discusses the factors that contribute to that trend.

According to Allstate, fatalities due to automobile crashes are currently at the lowest rate, nationwide, since 1949. Car accidents still account for about 32,000 deaths per year. To compile the “Best Drivers” report, Allstate reviewed actuarial data for the 200 largest U.S. cities for a two-year period, in this case 2009 and 2010, to estimate the likelihood of collisions for drivers in each city. The study calculated the average number of years a driver in a particular city may go without experiencing a collision, as well as the difference between a city’s likelihood of collisions and the national average. All of the data came from Allstate’s own claims data, so it may not present a truly accurate picture of national driver safety. Allstate claims that it provides roughly ten percent of all auto insurance policies in the country, and calls its report a “realistic snapshot” of the situation on American roads.

The top-ranking city in the study, Sioux Falls, South Dakota, has an average of 13.8 years between collisions for its drivers. Its likelihood of an accident is 27.6% below the national average. Drivers in the bottom-ranking city, Washington, DC, go an average of 4.7 years between accidents. The likelihood of an accident is 112.1% greater than, or more than double, the national average. Alexandria, Virginia has an average of 6.2 years between accidents and a collision likelihood 62.6% above the national average. For Arlington, the numbers are 6.5 years and 53.0%. Baltimore’s numbers are 5.3 years and 87.9%. These four cities in the greater DC area all ranked in the bottom ten in Allstate’s report.

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.

Federal Court Orders Arbitration Between Defendant and Third-Party Defendant in Premises Liability Lawsuit

September 20, 2012 | Lebowitz & Mzhen

A lawsuit arising from a slip-and-fall accident in a grocery store parking lot, Kindig v. Whole Foods Market Group, has taken an unusual journey from a Washington, DC Superior Court to a federal U.S. District Court. After the defendant grocery store company sued the parking lot manager as a third-party defendant, the court ordered the two into arbitration. The court then allowed the plaintiff’s case to proceed.

Marion Kindig allegedly slipped and fell in water in the parking lot of the Whole Foods Market (WFM) in the Georgetown neighborhood of Washington, DC on November 26, 2007. She landed on concrete and reportedly sustained serious lower-body injuries. She filed a premises liability lawsuit against WFM in the Superior Court of the District of Columbia. WFM removed the case to federal court based on diversity jurisdiction. It also filed a third-party complaint for indemnification and/or contribution against the company contracted to manage the parking lot, U.S.A. Parking, and its owner, Solomon Arega.

U.S.A. Parking and Arega filed a motion to dismiss. Arega argued that WFM had no legal basis for holding him individually liable for any obligations of the corporation he owned. The court found that WFM had not pleaded any allegations that would compel the court to disregard the corporate entity, such as allegations that Arega was using the U.S.A. Parking corporation as an “alter ego” or as a means to perpetrate a fraud. It therefore granted Arega’s motion and dismissed him as a third-party defendant.

Cars Collide with Washington DC-Area Fire Engines; Police Remind Drivers of State “Move-Over” Laws

September 13, 2012 | Lebowitz & Mzhen

The city of Greenbelt, Maryland has found itself with no working fire engines as the result of two accidents in recent weeks. One accident involved a driver who failed to yield the right of way and collided with a fire engine. The other accident occurred when two cars struck the city’s remaining engine while it was blocking part of the Capital Beltway to shield emergency workers. The county fire chief, in speaking about the accidents, reminded drivers in the Maryland portion of the Washington DC area of the state’s “move-over” law, which aims to protect emergency responders helping people after automobile accidents and other crises.

On the morning of September 1, 2012, one of the Greenbelt Volunteer Fire Department’s engines was hit by a civilian vehicle while responding to a residential fire in Berwyn Heights. According to a spokesperson for the Prince George’s County Fire/EMS Department, the civilian vehicle failed to yield the right of way to the fire engine. Two firefighters sustained minor injuries in the collision. The county described the damage to the fire engine as “significant” and said that it will remain out of service for some time.

Greenbelt’s only remaining fire engine was serving as a barrier for emergency workers, who were clearing a wreck on the inner Beltway in the early morning of September 8. Firefighters sometimes position fire engines across multiple lanes of traffic to protect emergency crews who must work on busy roadways on foot. In this case, the fire engine did its job well. At about 2:45 a.m., a 2005 Lexus passed multiple warning lights and crashed into the side and rear of the parked fire engine. Maryland State Police troopers arrested the Lexus driver for multiple traffic violations. While emergency crews were still clearing the Lexus from the scene, a second vehicle barely missed several firefighters and collided with the Lexus, causing even more damage to the fire engine. That driver reportedly fled the scene, but was stopped further down the road and now faces a similar number charges for traffic offenses. The county estimates that the damage to the fire engine will exceed $30,000.

Federal Circuit Court of Appeals Affirms Dismissal of Claim for Injury Benefits Under Vaccine Act

September 4, 2012 | Lebowitz & Mzhen

The estate of a woman who died from vaccine-related complications may recover death benefits, but not injury benefits, under the federal Vaccine Act, according to a ruling by the Federal Circuit Court of Appeals in Griglock v. Secretary of Health and Human Services. A Special Master found that the woman’s death was attributable to an influenza vaccination, allowing the death benefits claim to proceed, but also found that the statute of limitations for an injury benefits claim had expired. The Court of Federal Claims and the Federal Circuit affirmed that decision.

The decedent, Sophie Griglock, received a vaccination for influenza on October 6, 2005, when she was seventy years old. In late November 2005, a neurologist diagnosed her with Guillian-Barré Syndrome (GBS), a disorder in which the immune system attacks the nervous system. It can cause paralysis and death due to an inability to breathe. Griglock died of GBS-related respiratory failure on May 11, 2007.

Griglock’s estate filed a petition for compensation with the Secretary of Health and Human Services (HHS) in April 2009. HHS did not contest the question of whether the vaccine caused Griglock’s GBS. It recommended death benefits of $250,000, the maximum amount allowed by the Vaccine Act. The estate also requested injury benefits under the Vaccine Act to compensate for Griglock’s medical expenses. The case went before a Special Master, who determined that the vaccine caused Griglock’s GBS and her GBS-related death. While this gave the estate standing to claim injury benefits, the Special Master determined that the claim, filed in 2009, was barred by the statute of limitations.

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.

CPSC Imposes $1.5 Million Fine on Retailer Selling Children’s Clothing with Drawstrings

August 23, 2012 | Lebowitz & Mzhen

The U.S. Consumer Product Safety Commission (CPSC) announced that the retailer Burlington Coat Factory (BCF) has agreed to pay $1.5 million in civil penalties for violating regulations affecting children’s upper outerwear, such as jackets and sweaters. The CPSC regulates, and largely prohibits, the sale of children’s outerwear with drawstrings. This is due to the high risk of serious injury or death when drawstrings have caught on other items. The penalty to BCF is reportedly the largest one ever assessed by the CPSC for this particular regulation.

The CPSC issued its first set of guidelines regarding drawstrings on children’s upper and lower outerwear in 1996, which it included in a set of voluntary standards the following year. According to the CPSC, since the voluntary standards took effect, the number of deaths caused by children’s upper outerwear drawstrings has declined by seventy-five percent, and it has not received reports of any deaths from waist-level drawstrings.

The primary risk of upper outerwear drawstrings comes when a drawstring is caught on another object. The CPSC states that it has received twenty-six reports of cases where children were killed after a drawstring became tangled in an object. These included school bus doors and playground slides, among others. Drawstrings around the neck present a risk of strangulation, and waist drawstrings have resulted in children being dragged by vehicles when they are caught in doors. In the six-month period from November 2011 to May 2012, the CPSC says it issued eight recalls of products involving drawstring hazards. It has recalled a total of 130 drawstring products.

Wrongful Death Lawsuit Alleges Medical Negligence and Intentional Torts Against Doctor

August 16, 2012 | Lebowitz & Mzhen

A husband’s wrongful death lawsuit alleges that his wife’s doctor caused her death last year by prescribing a wide array of psychotropic medications. The suit further claims that the doctor defrauded her of nearly half a million dollars, which she contributed towards his research funding while under the influence of these medications. The two types of claims, brought in a single lawsuit, raise uncomfortable questions about the doctor/patient relationship.

Phyllis Harvey, described as a philanthropist who formed a foundation with her husband, Brian Harvey, to fund scholarships and engage in other charitable activities, died last year at the age of 59. She reportedly had a history of mental illness and alcoholism, and was diagnosed in 1999 with possible bipolar disorder, schizophrenia, or early dementia. She sought treatment from Dr. Alexander Bystritsky, a physician at the University of California, Los Angeles, beginning in 2004. Dr. Bystritsky allegedly put her on a regimen of multiple psychotropic medications, even though the 1999 diagnoses were never fully confirmed. Her prescribed medications included the anti-psychotic drug Seroquel and the anti-anxiety sedative Ativan.