Concussion Class Action Suit Proceeds Against the NHL

hockeyplayerThe National Hockey League will face similar allegations from players as the NFL. A U.S. District judge in Minnesota allowed the case filed by former players to proceed. The players alleged the league failed to protect them from injuries that caused concussions.

More than 100 players filed a class action against the NHL, many who suffer from traumatic brain injuries. The league attempted to dismiss the lawsuits by arguing protection from any injuries should be addressed in the players contracts and collective bargaining agreements rather than in court.

Judge Susan Nelson, disagreed by saying the CBA’s vary and the league is aware of the differences. She believed that additional evidence should be uncovered before preventing the case from proceeding.

The NHL also argued the players were aware or should have been aware of risk of playing professional hockey.

The Washington Post reported the story of Larry Zeidel a player for the Philadelphia Flyers. HE was among the first hockey players to have a diagnosis for the degenerative brain condition known as CTE or Chronic Traumatic Encephalopathy.

Zeidel had over 100 concussions, and the trauma manifested itself after his retirement from the league. Gary Leeman, once a high profile player for the Maple Leafs also joined the lawsuit. Leeman sustained a cracked skull after being hit by a hockey puck.

Leeman was out for 15 games following the incident and he complained of memory loss, fatigue, and depression. Leeman joined the lawsuit in 2014.

In this lawsuit, the players allege the NHL withheld information about research and science linking brain injuries to lifelong neurological issues. The players allege the league failed to take any precautions to improve protection for the players.

The U.S. District judge did not rule out the case being dismissed at a later stage, just not at this stage of the proceedings.

 

Association Dues have “Super Priority” over Bank Mortgages

ForeclosureThe Rhode Island Supreme Court ruled that a condo association’s lien extinguishes a bank mortgage lien.

Michael J. Botelho purchased a condo in Rhode Island in 2004. Some time after the purchase, Botelho defaulted on his condominium dues and his mortgage. The condominium association placed a lien on the property and sold it at an auction for $21,000 to the plaintiff, Twenty Eleven.

Botelho had a mortgage with PNC; two years after Twenty Eleven purchased the property, PNC sent a letter stating the bank would proceed with a foreclosure sale.

In an effort to stop the sale, Twenty Eleven filed suit to quiet title to the condo and permanently prevent the bank having any interest in the property.

HOA Lien Takes Priority

Twenty Eleven relied on the Rhode Island Condominium Act § 34-36.1-3.21 (c) which states an association’s lien takes priority over first mortgages, and that when the association foreclosed on the lien and sold the property at auction the mortgage was extinguished.

Twenty Eleven also argued that the bank failed to exercise its right to redeem within 30 days of the sale and that the plaintiff received the property free and clear of the mortgage.

No Payment Priority

PNC argued the act only created payment priority and that the mortgage obligation would remain. PNC believed that if the bank instituted a foreclosure proceeding, as a secured creditor the association would receive money to satisfy the lien.

During a bench trial, the judge decided against the plaintiff, stating there was no language in the statute supporting the argument and granted the defendant’s motion to dismiss.

The specific provision at issue is officially called the “lien assessment” or unofficially the “super priority lien.” The act allows a homeowner association to institute two liens–one that takes higher priority over the mortgage or other encumbrances, and the other that is of lower priority to mortgages and the deed of trust.

The state supreme court concluded that “prior to” has a special meaning in the mortgage and lien context.  Additionally, the foreclosure principles provide that a “lien with lower priority are extinguished if a valid foreclosure sale yields proceeds to satisfy the higher priority lien.”

Missed Opportunities to Preserve Interest

A review of other statutory provisions including the split-lien concept and the court’s interpretation of this statute also concluded that an association lien took true priority over a mortgage.

The judge believed the defendant had several options at its disposal to retain their interest in the property but failed to do either. The bank could have paid the outstanding dues and added increased the mortgage amount or required association dues to be paid into an escrow account.

The bank ultimately stated the defendant could have avoided losing its interest, if it had availed itself to one of those options.

The court agreed that the conclusion was “draconian in nature” but says “we are also reminded of the ancient maxim “dura lex sed lex,” meaning the law may be harsh, it is still the law.

This case is Twenty Eleven, LLC v. Michael J. Botelho et al., Case No 2014-10-Appeal, Rhode Island Supreme Court.

$10.9 Million Verdict Revived Against Topamax Maker Janssen Pharmaceutical

A Pennsylvania appeals court affirmed the $10.9 million verdict against Johnson & Johnson’s Janssen Pharmaceuticals involving the anti-seizure drug Topamax that caused birth defects.

Topamax is an antiepileptic medication used to treat epilepsy and migraines. Janssen Pharmaceuticals attempt to upset the plaintiff’s jury verdict failed after the appeals court affirmed the lower court’s ruling.PA Topamax

Topamax was prescribed to plaintiff Hayley Powell after she had an epileptic episode. Hayley took Topamax from 2005 to 2007, and discontinued use of the drug two months into her pregnancy. The record showed that Hayley nor her physician knew Topamax would cause defects such as cleft lip.

Hayley’s son was born with a cleft lip and a gum line defect that required surgery; he receives speech therapy and has regular visits with plastic surgeons.

Inadequate Warnings

On appeal, Janssen argued the plaintiff’s failure to warn claim was pre-empted by federal law because Janseen could not change warning labels without FDA approval.

But pre-trial the defendants requested any mention of their ability to change labels be excluded from trial; the plaintiffs abided by this exclusion.

Following Supreme Court precedent, this court agreed that a drug manufacturer may unilaterally “strengthen its warning labels” without FDA approval under the FDA’s Changes Bring Effected regulation.

This was the holding in Wyeth v. Levine, where a patient developed gangrene and her right hand was amputated after receiving an injection of Phenegram. 555 U.S. 555 (2009). Further, the defendants argued because the company was unsuccessful with changes to a package insert with the FDA for Topamax, this label change would yield the same result.

The judges rejected both arguments for a lack of evidentiary support.

Challenge Causation Element

Janssen continued to challenge the suit by attacking the plaintiff’s evidence supporting proximate cause element. Janssen attempted to argue there was insufficient evidence to show the physician would not have prescribed Topamax if the labels were different.

Janssen’s argument also failed under this point. The plaintiff’s and the physician’s testimony clearly showed that both parties were unaware of the potential birth defects. The physician believed that Hayley would have continued taking the drug on a daily basis had he not instructed her to discontinue the prescription.

The family’s jury award was affirmed and the court believed there were no errors sufficient to overturn the lower courts ruling.

This case is Brayden & Michael Gurley and Hayley Powell v. Janssen Pharmaceuticals, Case No 239 EDA 2014, Pennsylvania Superior Court.

Child May Bring Parental Consortium Claim in Iowa

The Iowa Supreme Court decided a child whose father died while she was in utero, may bring a parental consortium claim but her mother’s spousal consortium claim was untimely.

The late Paul Gray, former Slipknot bassist, died from an overdose or lethal combination of medications. Before his death he was being treated by Dr. Daniel Baldi, an addiction medicine and pain management specialists.

Paul died on May 24, 2010. Breena Gray, then pregnant with their daughter filed suit a wrongful death action against Dr. Baldi, and others involved with Gray’s treatment. The lawsuit was filed on February 14, 2014.

The statute of limitations for a medical malpractice case in Iowa is 2 years from the time the claimant knew of the death. In response to the lawsuit Dr. Baldi filed a motion for summary judgment because both claims (wrongful death and spousal consortium) were out of the statute of limitations.

Gray argued the claims were not time barred because she did not discover the actual injury and cause of Paul’s death until two years later.

Parental Consortium

Generally, under Iowa law a child has until age 10 to file a wrongful death action. Baldi asserted the child was not a minor under the statute and therefore could not bring a claim.

Despite Baldi’s plead for strict reading of the rule, the court believed an unborn child’s deprivation occurs when they are born, not immediately at the parents death.

The court declined to address any philosophical arguments about unborn children as beyond the scope of a parental consortium claim and a “fools errand.”

The court held that a child conceived but not yet born at the time of their parent’s death can bring a parental consortium claim after the child is born. The court reversed the district courts summary judgment.

 

This case is Estate of Paul Gray by Brenna Gray v. Daniel J. Baldi, et al. Case No. 14-1547, Iowa Supreme Court

Minnesota Court of Appeals Affirms $9M Verdict for Stray Voltage

shutterstock_363887660The Minnesota Court of Appeals affirmed a $9 million verdict against Crow Wing Cooperative Power and Light for dairy cows that were seriously injured from stray voltage.

The plaintiff, Randall Norman and his family operated a dairy farm from 1983 to 2012. The farm was located on 800 acres of land and employed nine people.

Liquidate business

In 1994, Norman started noticing his cows were experiencing various health issues. The cows’ weight decreased, eating habits changed, and milk production dropped.

The issues continued over the next 18 years, which caused Norman to liquidate his business.

The electricity travelled underground, back and forth to substations scattered across the area. The stray voltage carried via the lines grounding rods.

The Normans sued Crow Wing Cooperative Power and Light for negligent delivery of electricity and nuisance that interfered with the quiet enjoyment of their property and loss of use.

After a three week trial, a jury awarded the Normans $1.5 million in nuisance damages and $4.86 million on the negligence claim.

On appeal, Crow Wing Cooperative argued six issues including that the evidence failed to establish the cows’ illness accrued in 1994 and the negligence award was calculated incorrectly.

Accumulated Injuries

Crow Wing argued the negligence damages was based on “impermissible conjecture and speculation” because no one could testify to the existence of stray voltage before 2011. Contrary to Crow Wing’s argument, there was a voltage checklist dating back to 1991, that indicated stray voltage was present on the property.

Additionally, the jury heard multiple experts who testified that the cows’ health issues were consistent with voltage exposure.

Alternatively, Crow Wing argued that there was insufficient evidence to show the cows’ production decreased during the 18 years. To the contrary, the Normans presented experts and personal testimony showing production rates throughout the damage period.

In 1994 the herd was producing at 27 percent above the state average. At closing in 2012, the milk production fell 20 percent below the state average.

Viewing the evidence favorable to the jury’s verdict, the court believed the jury is entitled to make inferences based on the evidence presented.

Double Damages

Crow Wing argued Norman received double recovery for lost profits. It is true damages should not exceed the total loss, but a jury has “wide deference to decide how much money will adequately compensate the plaintiff.” Koehler v. Kline, 185 N.W.2d 539, 541(1971).

There were experts who testified extensively about the difference between milk loss and reduced feed efficiency. With the experts’ testimony, the court believed the jury was presented with calculations sufficient to show the lost milk sales, increased feed cost, and overall increase in operations costs.

The court also agreed there was sufficient evidence to support the nuisance award. The Normans testified about how they cared for sick cows, which increased their labor cost. The Normans refrained from using a river on the farm for swimming and fishing for a fear of being electrocuted.

Crow Wing’s remaining claims were inadequate and the court affirmed the lower court’s award.

This case is: Randall Norman et al. v. Crow Wing Cooperative Power & Light Company, Minnesota Court of Appeals, Case No A15-0983.

11th Cir. Reverses Class Denial for Exorbitant Charges by Florida Hospitals

Florida HospitalThe Eleventh Circuit revived a class action against three Florida hospitals. Area hospitals that grossly overcharged auto accident victims for X-rays, ultrasounds, CT scans, and MRIs.

The defendant, HCA Holdings Inc, owns and operates the medical facilities in question, JFK Medical Center, Memorial Healthcare Group,and  North Florida Regional Medical.

The plaintiffs claimed the charges were unreasonable as a matter of law because the patients covered by personal injury protection (PIP) plans were charged more than the non-PIP insured on all services.

PIP Coverage Exhausted

Under Florida law, all cars registered in the state must include a PIP or personal injury protection coverage of $10,000. Medical providers are allowed to charge a reasonable amount for services and supplies.

Under the PIP plan, a patients medical bills are 80% covered. The claimants alleged they were charged up to 65 times higher than usual and left patients covering medical expenses out of pocket.

One plaintiff was charged $3,359 for a spine x-ray but the Florida Medicare rate for the same x-ray is $50. Each plaintiff claimed that their PIP was prematurely exhausted by the increased rates.

Highly Individualized Claims

A Florida federal district judge denied the class action because the claims were highly individualized and failed to represent a common question of law. Each patient received different services and the court believed whether the charges were reasonable would vary from case to case.

However, on appeal the class argued that the dismissal was premature because entering discovery would have provided the court a better idea of which claims were individualized and what charges were unreasonable.

The circuit court agreed that discovery would uncover the unreasonableness of the charges and the court erred by dismissing the claims solely on the face of the complaint.

The Eleventh Circuit reversed and remanded the case to the lower court for further proceedings.

 

This case is Marisela Herrera et al. v. JFK Medical Center, HCA Holdling, et al. Case No 15-13253, U.S. Court of Appeals for the Eleventh Circuit

Home Mortgage Servicer Liable for Severe Emotional Distress

shutterstock_395553637The Eleventh Circuit appeals court affirmed that American Home Mortgage was liable for severe emotional distress after harassing a landlord for fees and interest she did not owe.

Jane McGinnis, the plaintiff and a retiree, owned several rental properties in Georgia. American Home Mortgage serviced the loans on seven of the rental properties. When American took over the loans, McGinnis’ payment increased more than $200 over her original payment.

Multiple threats

McGinnis tried to reconcile the errors with American without success. She began receiving multiple collection calls, escrow letters with various charges and fees, and threats of foreclosure on one property. McGinnis said the letters stacked to reach “five feet high.”

McGinnis filed suit against American (now Homeward Residential) after she began experiencing physical and emotional stress from the ordeal. Among other claims were wrongful foreclosure and intentional infliction of emotional distress.

She rightfully believed she did not owe the new amount and continued to make the original payment. About a month later, McGinnis received an escrow letter stating she owed fees and an increased monthly payment.

Homeward admitted there was a miscalculation but insisted McGinnis should pay the past due fees. Shortly after McGinnis received multiple collection calls, letters, inspections, and her escrow payments continued to increase.

Homeward foreclosed on one of the properties in July 2011. For the remaining properties Homeward held all of the payments in a suspense account, returned payments, charged late fees, and threatened foreclosure.

Severe Emotional Distress

McGinnis’ psychologist testified that she experienced severe depression that caused projectile vomiting, and McGinnis viewed the situation as life or death.

The jury found for McGinnis awarding her punitive, compensatory, and emotional distress damages. On review, the district court reduced the punitive damages award from $3 million to $250,000.

On appeal to the Eleventh Circuit, Homeward argued that there was insufficient evidence to support the emotional distress damages.

The court confirmed that wrongful foreclosure is a basis for an intentional infliction of emotional distress claim, but sharp or sloppy business practices were not enough to prove the extreme and outrageous standard.

These tactics continued even after McGinnis inquired for clarification and a resolution to the errors. Despite their own miscalculations and errors, Homeward continued to pressure McGinnis that she was past due on her mortgage.

The court reversed the lower court’s decision to reduce the punitive damages award from $3,000,000 to $250,000 and remanded for further proceedings.  In light of the evidence, Homeward had the specific intent to cause McGinnis emotional distress. The emotional damages award for $500,000 and $6,000 in compensatory damages was affirmed.

This case is Jane McGinnis v. American Home Mortgage Servicing, Inc. Case No 14-13404, U.S. Court of Appeals for the Eleventh Circuit

Wisconsin Court of Appeals Affirms Dying Declaration Identifying Shooter

WI Dying DeclarationThe Wisconsin Court of Appeals affirmed a lower court’s admission of a dying declaration that identified the defendant in a homicide case and deemed the sentence appropriate.

Defendant Anthony Owens was identified as the shooter of a man who later died. In 2013, Owens was charged and found guilty of possession a firearm by a felon as a “repeater” and first-degree reckless homicide.

During the appeal, Owens argued the admission of a victim’s statement under the dying declaration hearsay exception was erroneous, evidence supporting his conviction was insufficient, and his sentence was unduly harsh.

Admission of Dying Declaration Was Proper

A dying declaration is a statement made by a party when death was imminent, concerning the cause or circumstances under the belief of impending death.

Pinkard, the deceased, while gasping for air and while in and out of consciousness, told an officer “Anthony” was the person who shot him. Counsel moved to admit this statement during trial, which was granted.

The appeals court believed this statement was properly admitted under the circumstances. Not only did Pinkard die from the gunshot, the rule only requires the party believe death was imminent.

Owens attempted to argue there were no facts to suggest Pinkard believed he would die. The court disagreed.

Evidence Sufficient for Jury

The court declined to reverse a conviction for lack of sufficient evidence unless the evidence was such that “no trier of fact, acting reasonably could have found guilt beyond a reasonable doubt.”

The victim’s cousin testified at trial about the circumstances of the shooting as well as identifying Owens holding and firing the weapon. Along with other testimony by the deceased family and other witnesses, the court believed there was sufficient evidence for the jury to reach an informed decision.

Sentence Fit the Crime

Owens received a total sentence of 39 years of initial confinement and 14 years of extended supervision. A sentence is unduly harsh only where the sentence is so excessive and unusual that it is disproportionate to the offense committed. On review of the sentencing record, if the court believes all factors were properly weighed, the sentence will remain.

Owens believed the sentences were harsh because no explanation was given about how the sentences would rehabilitate him. Although rehabilitation was considered, it was not required to consider specifics of the sentence and its potential outcomes.

Owens appeal was denied and the lower court’s judgment was affirmed.

 

This case is State of Wisconsin v. Anthony R. Owens, Case No 2015AP1118-CR, Wisconsin Court of Appeals District I

No Recreational Immunity for Hot Air Balloon Operator in Negligence Suit

runaway balloonThe Wisconsin Supreme Court held a hot air balloon operator is not immune from a negligence action filed by a woman injured by a runaway hot air balloon, even though the plaintiff signed a liability waiver.

Sundog Ballooning, one of three defendants, argued it was entitled to recreational immunity under a Wisconsin statute. However, the court held that the operator did not fit the definition of an owner or occupier as required by statute.

Sundog also argued that the injured plaintiff Patti Robert was barred from filing because she signed a liability waiver prior to participating in the balloon activities.

Robert appealed the district courts’ summary judgment ruling. On appeal she argued that the operator was not entitled to immunity because:

  • Sundog was not an owner under the statute.
  • Sundog was not an occupier.
  • The balloon was not a structure.
  • The hot air balloon was not property.

Runaway Balloon

Patti Roberts attended a charity event where Sundog Ballooning was the owner and operator of the tethered hot air balloon rides. The balloons, also owned by Sundog, were attached to two trees and a pick-up truck. Patti and her family watched the tethering for a few turns and joined the line to ride the hot air balloon.

The issue arose when strong winds caused one of the tethered lines to snap. According to the opinion, Roberts was “struck by the balloon’s basket and knocked to the ground.”

During a deposition, the balloon operator Kerry Hanson stated she had limited experience with tethering balloons and did not check weather reports prior to the rides for the charity event.

FAA regulations require operators to make sure patrons were far away from balloons and prepare for failure of tethered lines.

Recreational Immunity

Wisconsin recreational immunity statute provides that an owner owes:

  • No duty to persons who enter the property for a recreational activity;
  • No duty owed to keep the property safe;
  • No duty to inspect the property; or
  • No duty to give warning of an unsafe condition.

By statute an owner is someone who owns, leases, or occupies the property. Sundog adamantly argued it was a landowner because previous cases found in favor of activity providers. However, the court stated in other cases the plaintiff had filed suit against the event host or owner of the property.

Roberts only filed suit against Sundog, its owner, and Sundog’s insurance company. Sundog was a third party, and was not responsible for allowing public access to the charity event. Thus, Sundog was not entitled to immunity because it was not an occupier or owner and there was no case law to support granting immunity to a third party.

Balloons Aren’t Structures

Wisconsin courts do not define the meaning of structures. In its plain meaning, a structure is an item that is constructed, or put together, or made up of multiple parts joined together. Sundog presented a creative argument based on a previous case involving a tree stand which was affixed to the property.

The court rejected the argument because of the balloon’s ability to move to multiple places. When a hot air balloon is erected it is not intended to remain in the same spot forever.

In addressing the liability waiver, the court stated that as a matter of public policy the liability waiver should not bar the plaintiff’s claims. The waiver at issue was never returned to Sundog; the waiver was found on the event grounds after the accident.

Additionally, the court held the liability waiver was overbroad and all-inclusive. The waiver did not specify whether a person waiting to participate would expect to be injured while waiting to participate. The waiver was found void as a matter of law.

 

This case is Roberts v. Sundog Ballooning, et al. Case no 2014AP1508

$20M Settlement San Diego Infant Permanently Injured by Negligent NICU Staff

Photo courtesy of Michael Bombarder

Photo courtesy of Michael Bomberger

A Southern California family settled a medical malpractice case for $20 million after their premature newborn daughter suffered brain damage from negligent operation of a feeding machine.

Sophia, the plaintiff, was born five weeks premature in January 2013. Her mother Connie was told by doctors that Sophia was healthy and feisty. Sophia stayed in the neonatal intensive care unit, as most premature newborns do.

Machine improperly calibrated

Michael Bomberger

Michael Bomberger

Four days later Connie went to check on her daughter and feed her, only to find she was pale and lifeless. According to a local news report, Connie stated “[Sophia’s] diaper was soaked, as if a pitcher of water had been poured in it.”

Connie later discovered that Sophia’s feeding bag had leaked. Doctors told Connie that the leaky feeding tube was human error.

The family’s attorney Michael Bomberger, stated Sophia “was overloaded with food” and her feeding machine was improperly calibrated to dispense the proper amounts of food into the child.”

Bomberger is an attorney with Estey Bomberger LLP in San Diego, CA. He is also a member of the National Trial Lawyers.

Bomberger also explained that Sophia was overloaded with glucose, which caused an electrolyte imbalance and let to a decreased level of oxygen to the brain.

Bomberger worked on the case for three years before reaching the settlement. Sophia is now three years old and struggles to walk and speak; she suffers from cerebral palsy and will need constant care for the remainder of her life.

Bomberger and his litigation team used a number of medical experts to develop a life care plan for Sophia that will ensure she received the appropriate level of care.