Washington DC Injury Lawyer Blog

Families of Virginia Tech Shooting Victims Win Trial but Face Cap on Damages

April 6, 2012 | Lebowitz & Mzhen

The families of two women killed during a 2007 shooting rampage on the Virginia Tech campus received a jury award of $4 million each in their claims against the university for negligence. The jury found that the university negligently delayed warnings about Seung-Hui Cho, who had shot and killed two people in a campus dormitory two-and-a-half hours before embarking on the deadliest shooting spree in modern American history. Cho ultimately killed thirty-two people before turning a gun on himself. The university, backed by the Commonwealth of Virginia, is now asserting a state law that caps damage awards against the state at $100,000, as the families fight back.

Cho was a 23 year-old undergraduate student at Virginia Tech with a history of mental illness and “abnormal behavior.” His shooting spree began at about 7:15 a.m. on April 16, 2007, when he killed two students on the fourth floor of a high-rise dormitory. Cho then reportedly spent approximately two-and-a-half hours re-arming himself and mailing a package a photographs and documents to NBC News. At about 9:45 a.m., he went to a classroom building across the campus where he shot dozens of people, killing thirty, over the course of nine minutes. Cho then committed suicide when police breached the building.

Virginia Tech soon faced accusations that it negligently failed to warn students and staff after the first two murders, which allowed Cho’s rampage to proceed almost unimpeded. Police initially thought the first two deaths resulted from a “romantic dispute.” The university sent an e-mail to students and staff advising them to be cautious more than two hours later, roughly twenty minutes before Cho’s second attack began. Multiple negligence and wrongful death lawsuits followed.

The families of twenty-four of Cho’s victims, as well as eighteen people injured by the shootings, settled with the state in 2008 for $11 million. Several families refused to settle, and two of them recently went to trial.

In March 2012, a trial took place in a courtroom in Christiansburg, Virginia for the families of two victims, Erin Peterson and Julia Pryde. The university repeated many of its defenses, maintaining that officials believed Cho had fled the campus after the first two shootings, and that they did not connect the two series of shootings until later. The jury, after deliberating for just over three hours, returned a verdict finding that Virginia Tech officials were negligent in delaying warnings about the first two shootings, and that this delay directly contributed to the victims’ deaths. It awarded $4 million to each family .

FDA Wants to Investigate “Inhalable Caffeine” Further

March 30, 2012 | Lebowitz & Mzhen

A new product, described as “inhalable” or “breathable” caffeine, has drawn the attention of the U.S. Food and Drug Administration (FDA) due to questions about its safety and suitability for the marketplace. This is due partly to recent incidents involving injuries and deaths allegedly caused by high-caffeine energy drinks, as well as the mixture of caffeine-containing energy drinks with alcohol. The apparent popularity of these products among college students and other young people is also a cause for concern.

“Breathable caffeine,” currently marketed as the AeroShot, reportedly contains 100 milligrams of caffeine in a single “shot.” This is roughly the same amount of caffeine contained in a large cup of coffee. The device resembles an asthma inhaler. The owners of the company that produces the AeroShot state in interviews that the product is not intended for anyone under the age of 18, nor should it be mixed with alcohol.

The FDA’s concerns primarily involve the labeling of the product in regards to whether consumers should inhale, drink, or eat it. In a letter sent to the company on March 5, the FDA notes that product labels and the website prominently describe the product as “breathable.” At the same time, other statements and materials describe it as “ingestible,” and refer to it as a “dietary supplement.” FDA regulations require clear labeling of a product as either “breathable” or “ingestible.” A “breathable” product cannot be described as a “dietary supplement.”

The FDA also expresses concerns about consumer safety in the absence of clear instructions about inhalation versus ingestion. If the product is intended for inhalation, ingestion could be dangerous, and vice versa. Very little research exists on the safety of inhaled caffeine products, which also worries the FDA.

Finally, the FDA notes concerns about the intended age of the product’s consumers and warnings about its use in combination with alcohol. While the company states that no one under 18 should use the product, some materials allegedly state the minimum age as 12. Marketing materials describe using the product when, for example, “study[ing] in the library,” an activity the FDA notes is most common among children and young adults. Publicity around the product featured on its website describes its use with alcohol as a “party drug.” This, according to the FDA, contradicts the company’s message that it should not be mixed with alcohol.

NHTSA Delays Decision on Backup Cameras in Cars

March 22, 2012 | Lebowitz & Mzhen

The National Highway Transportation Safety Administration (NHTSA), an office within the U.S. Department of Transportation, has delayed a final rule regarding rear visibility requirements in cars. This is the second delay of the rule since the agency began working on it. The purpose of the rule would be to prevent “backover” accidents due to a driver’s inability to see people or objects behind the vehicle. The Secretary of Transportation has said that they expect to have final standards ready by the end of 2012.

The rule is required by the Cameron Gulbransen Kids Transportation Safety Act of 2007, passed by the U.S. Congress in early 2008. This law addresses several child safety concerns, including the risk to children of vehicles moving in reverse where the driver cannot see the child. It is named for a two year-old child who died when his father accidentally backed his car over him in their driveway. According to the NHTSA, 292 deaths and 18,000 injuries result each year from “blind zones” behind vehicles. The majority of the fatalities involve light vehicles, meaning those weighing 10,000 pounds or less. Those most vulnerable to these kinds of accidents are children and the elderly. In addition to addressing visibility issues, the law requires rules for auto-reverse in power windows and transmission systems that prevent cars from easily shifting out of “park.”

The proposed rule would require additional mirrors or even camera devices to enable drivers to see the area behind the vehicle while driving in reverse. In December 2010, the NHTSA announced that it expected to require new passenger cars, minivans, pickup trucks, and other vehicles to have “rear mounted video cameras and in-vehicle displays” to allow an expanded field of vision for drivers.

The New York Times reportedly found that backup cameras are already standard issue in forty-five percent of new vehicles, and that they are available as an option in twenty-three percent. For all other vehicles, owners would have to purchase cameras. The NHTSA reportedly estimates that, for vehicles without an embedded navigational screen, the cost to a vehicle owner would be between $159 and $203, and between $58 and $88 for cars with a screen already installed. The total annual cost for the country would be between $1.9 and $2.7 billion.

Secretary of Transportation Ray LaHood announced in February that the NHTSA would need to do further research before formally issuing the new rules. The rule has also proven to be controversial politically, considering the large price tag attached to it. The controversy persists even though it was actually President Bush who signed it into law in 2008. Bloomberg Businessweek says that it is among the five most expensive regulations still pending in the Obama administration, and it is one of many facing delays.

BP Settles Lawsuit Related to 2010 Oil Platform Explosion

March 15, 2012 | Lebowitz & Mzhen

BP, Transocean, and several other companies have settled lawsuits with some of the individuals injured in the April 2010 explosion in the Gulf of Mexico that killed eleven people and caused one of the worst oil spills in history. The companies have also settled some of the claims pending between the various businesses involved with the drilling operation. Still, the situation is a mess of competing claims and lawsuits that may take years to unravel, as injured plaintiffs seek to separate their claims from several thousand consolidated claims for damages.

The Deepwater Horizon drilling rig, owned by Transocean and operated by BP, was a deep water rig positioned in the Gulf about 48 miles south of the Louisiana coast. It had drilled the deepest oil well in history, at more than 35,000 feet, in late 2009, and at the time of the explosion was drilling in an area called Mississippi Canyon Block 252. The explosion occurred on April 20, 2010, when a blowout, typically the result of a failure in pressure control systems, killed eleven workers on the rig and created a fireball visible for miles. The rig sank, while the well, located over 4,000 feet underwater, continued gushing and caused the massive oil spill.

A crew of 126 people was on the rig at the time, including a visiting group of Transocean and BP executives. Nearly all the survivors suffered injury. The person with the worst injuries, according to Bloomberg, is Buddy Trahan, a Transocean executive who suffered twelve broken bones when the explosion threw him thirty feet through a wall and buried him under rubble. A crew member freed him from the wreckage and found that a door hinge had nearly pierced his carotid artery. Trahan and numerous other individuals sued BP and other companies for negligence. Businesses and individuals affected by the explosion, including fishermen and tour companies, also have claims pending. State and federal governments have claims against various companies for damages and regulatory infractions.

The injury and wrongful death lawsuits have been delayed by disputes between BP, Transocean, and other companies over liability for the explosion itself and various property damage claims. Transocean recovered for the total loss of the rig, but other companies lost equipment as well. BP has made claims against manufacturers whose equipment may have caused or contributed to the explosion. The court consolidated several thousand claims for property damages and other economic injuries with the personal injury claims in order to facilitate pretrial processes. Around twelve personal injury claims are still pending.

One worker injured in the explosion, Oleander Benton, settled her federal lawsuit against BP, Transocean, and others. Benton asked a U.S. district judge in New Orleans to dismiss the suit in February. She had sought $5.5 million in compensation for her injuries, but the exact details of the settlement have not been disclosed.

Washington DC Metro Settles Seven of the Nine Wrongful Death Lawsuits Brought Over 2009 Red Line Crash

March 7, 2012 | Lebowitz & Mzhen

The Washington Metropolitan Transit Authority (WMATA) settled seven lawsuits brought by the families of people killed in a 2009 crash on the Red Line. The crash remains the deadliest accident in WMATA’s history. The exact terms of the settlement are confidential. Along with three companies that provide equipment for the train system, WMATA has admitted liability for the crash in a court document filed in mid-February. Four remaining lawsuits, two for wrongful death and two for injuries sustained in the crash, are expected to go to trial.

The crash occurred just after 5:00 p.m. on June 22, 2009. A faulty circuit in the automatic train control system failed to detect a train on the track. It directed Car 1079 into the parked train at full speed. Car 1079 was pushed up onto the other train before coming to rest. Nine passengers died in the crash, and dozens were injured.

An investigation by the National Transportation Safety Board (NTSB) scrutinized WMATA and the Tri-State Oversight Committee, which has responsibility for monitoring safety. The NTSB concluded that the control system’s failure directly caused the crash, and that WMATA had “failed to prioritize safety at all levels.” Multiple WMATA officials left or were reassigned. All trains have been operated manually since the crash, while they develop new safeguards.

Families of each of the nine people who died filed wrongful death lawsuits against WMATA and several of its suppliers. People who were injured in the crash also filed lawsuits to recover for their injuries. The recent settlement news resolves all but four of the lawsuits. The remaining suits are pending in the U.S. District Court for the District of Columbia.

The admissions of liability from WMATA and the other companies will make the trials go more smoothly. In a court filing, they say that they are stipulating to liability in order to “avoid the significant risks and costs” involved with a courtroom fight over the issue. The only issue for trial in the remaining cases, therefore, is the amount of compensatory damages each plaintiff should receive.

The day after the announcement of the settlements and the admission of liability, the judge presiding over the cases issued a gag order preventing the parties from discussing it publicly. A pretrial conference was reportedly scheduled for March 1. At least one of the cases, a wrongful death claim brought by the mother of victim Lavonda King, is scheduled for trial in mid-March.

Students File Suit Against University and Police Over Pepper Spray Incident

February 29, 2012 | Lebowitz & Mzhen

Nineteen students and alumni from the University of California at Davis have filed a lawsuit in federal court against various university administrators and police officials, including Chancellor Linda Katehi and Police Lieutenant John Pike. The American Civil Liberties Union (ACLU) is assisting them with the suit, which includes claims of federal civil rights violations and California constitutional and statutory violations. Their claims arise from the now-infamous incident, captured on video and posted across the internet, in which Lieutenant Pike shot pepper spray at point-blank range at people involved in the Occupy protests last November. Although the lawsuit primarily addresses alleged violations of the plaintiffs’ constitutional rights, injuries sustained in the incident are highly relevant to their case.

The incident occurred on November 18, 2011. Although the specific course of events is still a matter of debate, video footage shows Lieutenant Pike and other police officers spraying pepper spray at a group of seated protesters from a distance of only a few feet. The protesters were seated in a close group on the ground and were not armed. Lieutenant Pike and Police Chief Annette Spicuzza were suspended with pay shortly after the incident and reportedly remain on suspension.

The university administration appointed a task force to investigate the matter. We reported in this Washington DC Injury Lawyer Blog last month that the task force had decided not to release its findings until at least February. Now the task force has reportedly announced that it will continue to withhold its findings into March.

The plaintiffs, all of whom were participants in the protest on November 18, filed suit on February 22, 2012. The lawsuit seeks various declarations from the court regarding the plaintiffs’ constitutional rights and the defendants’ violations thereof, as well as compensatory and punitive damages from the police officers involved. Plaintiffs also demand changes to unviersity policies related to responding to protests. They claim injuries related to the pepper spray and arrests, including “burning eyes, faces and skin,” and injuries related to the zip ties used to cuff their hands.

Plaintiffs allege that university police were using “military grade” pepper spray. Manufacturer’s instructions for the type of pepper spray used indicates a minimum safe distance of six feet to avoid serious injury. Plaintiffs allege that the police were standing much closer to the protesters on November 18 when they sprayed them. This amounted to a violation of plaintiffs’ constitutional rights, plaintiffs say in their complaint, but it also caused significant injury and damage.

Elementary School Student Dies from Peanut Allergy

February 24, 2012 | Lebowitz & Mzhen

A seven year-old student died at her Richmond, Virginia elementary school in January after she ate a peanut that a classmate gave to her. The girl, Amarria Denise Johnson, had a severe peanut allergy. She had an immediate allergic reaction and was taken to the school clinic. She then went into cardiac arrest and died.

Although the school was reportedly aware of the child’s allergy, the classmate was not. An investigation by police concluded that the actions of the classmate did not rise to the level of criminal negligence, nor did the actions of the school and the child’s mother. A determination by law enforcement that no crime occurred does not preclude a civil case for wrongful death, although it raises the question of who has a duty to guard against injury from a food allergy.

A Chicago lawsuit deals with a similar situation. On the last day of the fall semester in December 2010, a 13 year-old girl, Katelyn Carson, died after going into anaphylactic shock when she ate some Chinese food at school. The girl had a severe allergy to peanut oil. Her teacher was aware of the allergy, so when he ordered Chinese food for an end-of-semester party, he reportedly requested that the food be prepared without any peanut products. Lab testing on samples of the meal found trace amounts of peanut products.

The girl’s family filed a wrongful death suit against the restaurant, Chinese Inn, in March 2011, claiming $100,000 in damages. The board of Chicago Public Schools, partly in response to Katelyn’s case, voted unanimously in January 2012 to spend nearly $200,000 to stock schools with Epi-pens, which can stop people with certain allergies from going into anaphylaxis.

Maryland Trucking Company Shut Down by Safety Regulators, but It Is No Relief to Accident Victims

February 17, 2012 | Lebowitz & Mzhen

A trucking accident on September 20, 1994 on the Capital Beltway in Prince George’s County, Maryland killed one person and left construction worker Brian Buber paralyzed. The subsequent fight over payment of damages shows how difficult it can be to enforce judgments against corporations and other business entities.

On that day in 1994, a tractor-trailer owned by Gunther’s Leasing Transport crashed into a small rental truck. The two vehicles then hit an asphalt-rolling machine in the construction area where Buber was working. The tractor-trailer jackknifed and caught fire. The truck’s passenger, Keith Briscoe, Jr., died in the crash, while the driver was injured. Buber was thrown through the air and suffered head injuries. He reportedly spent hours in surgery as doctors tried to remove fragments of skull from his brain.

Buber still suffers from brain damage, remains confined to a wheelchair and spends twenty hours a day in bed at a nursing home in Harford County. According to the Baltimore Sun, he cannot speak. He communicates by pointing to letters on a laminated card to spell out words. He relies on Social Security and workers’ compensation for support. His mother took care of him until her death in 2009, and now his sister looks after him when she can. Buber’s medical costs exceeded $1 million, and Gunther’s Leasing Transport reportedly had at least $1 million in liability coverage. Buber never saw any money from Gunther, though.

Buber , the family of Keith Brsicoe, Jr., and others brought a lawsuit against Gunther’s Leasing Transport. A jury rendered a verdict for the plaintiffs in 1997, awarding almost $16 million to the plaintiffs. Of that amount, the jury earmarked $13 million for Buber’s medical expenses and ongoing care. The company’s insurance paid the $1 million policy limits amount, but that was divided between the six plaintiffs and did not offer much help towards Buber’s mounting expenses.

Within weeks, Gunther’s Leasing Transport filed for bankruptcy reorganization. It reportedly listed $9 million in assets and $17.5 million in liabilities, most of which was the court judgment. At the time, it also faced an FBI investigation. Mark David Gunther, owner of Gunther’s Leasing Transport, was sentenced to thirty months in prison by a Baltimore federal jury for forging drivers’ logs. A bankruptcy judge approved a reorganization plan for the company that included payments to Buber and the other plaintiffs, but by 2001 the company was so far behind on payments that the IRS had the case converted to a liquidation.

Families of Blackwater Contractors Killed in Fallujah Settle Lawsuit

February 10, 2012 | Lebowitz & Mzhen

Four American civilians employed by security contractor Blackwater were killed in Fallujah, Iraq in March 2004 after gunmen opened fire on their vehicles. When the vehicles stopped, a crowd of people converged, throwing rocks and setting the vehicles on fire. The four men were shot and killed and, in a scene that would haunt American headlines, their bodies were pulled from the burned vehicles and dragged through the city. Pictures shown on television depicted people mutilating the bodies and hanging two of them from a bridge over the Euphrates River. Media around the world showed these images. The U.S. launched an assault on the city in response to the incident, which occurred at the beginning of the second year of American involvement in Iraq.

The four men worked as guards for Blackwater, now known as Academi. Blackwater was contracted by the U.S. military to provide various security services for American forces. One of the men was a former Navy SEAL, and the other three were former Army Rangers. At the time of the attack, they were traveling in two Mitsubishi SUV’s escorting a convoy of trucks to an American base to pick up some kitchen equipment. They had reportedly bypassed a Marine checkpoint when they entered Fallujah.

In January 2005, about eight months after the attack, the families of the four men filed a lawsuit in U.S. federal court against Blackwater. The lawsuit accused Blackwater of violating its contractual obligations to the men by putting them in harm’s way without adequate armor or weapons. The SUV’s were not armored, and they did not have sufficient personnel to operate rear guns that might have offered protection from gunmen in the city.

Blackwater argued that it should have immunity from lawsuits under the principle of sovereign immunity. This principle typically applies to government entities and officials. Blackwater, being a private business, argued that the military’s widespread use of private contractors gave them the benefit of sovereign immunity. The company took this argument as far as the U.S. Supreme Court, who declined to hear the case. Then Blackwater invoked a mandatory arbitration clause in the men’s employment contracts.

A federal judge ordered the parties to arbitration in 2007, and they spent more than three years fighting over payment of arbitrators’ fees. The families filed an appeal of the judge’s order with the Fourth Circuit Court of Appeals, and the parties entered into a settlement agreement before the appeal could be heard. The terms of the settlement remain confidential.

Doctors and Medical Device Companies Square Off on Questions of Liability

January 27, 2012 | Lebowitz & Mzhen

As medical devices grow increasingly sophisticated, disputes have begun to arise between doctors and medical device manufacturers over who bears the responsibility when a patient is injured by a device. In some instances, manufacturers try to hold doctors liable for using a device improperly, and in others doctors try to hold manufacturers liable if the device did not function correctly. Disputes such as these bring two different theories of liability together in unforeseen ways: medical malpractice and products liability. How these disputes are resolved could have an important impact on how courts assess liability in future malpractice cases.

American Medical News, a publication of the American Medical Association, reported last month on an orthopedic surgeon in Kentucky who implanted a pain pump in a patient’s shoulder to administer painkillers after reconstructive surgery. The patient later returned, complaining of shoulder pain. An examination revealed that the patient had developed chondrolysis, a condition that causes significant deterioration of joint cartilage. It can be caused by certain types of anesthetic if they are continuously administered into or near the joint. The pain pump had evidently caused the chondrolysis because of the type of anesthetic administered.

The patient sued the pump manufacturer, alleging that the company failed to warn the doctor of the risks of complications from this particular use of the pain pump. The manufacturer brought the doctor in as a third-party defendant and alleged that the doctor used the pain pump “off-label,” meaning in a way not intended by the manufacturer or approved by the Food and Drug Administration (FDA). The case is still in progress in Kenton County, Kentucky.

Doctors have a duty to their patients to provide diligent care. Because of their special training, they occupy a particular position of trust under the law and have unique responsibilities. They must rely, however, on a wide range of products and equipment in order to provide state-of-the-art care, which means they must rely on various warranties and assurances from third-party companies. These include pharmaceutical companies and medical device manufacturers. Doctors can only provide care to the best of their ability with the knowledge available to them. They are responsible for learning how to use medical devices such as pain pumps, but in the event that something goes wrong, the question becomes whether or not they used a device correctly or if the device was somehow defective.