Veterans suing 3M over earplugs

earplugs bulletsCBS News reports that hundreds of military veterans are expected to file lawsuits against 3M, the manufacturer of earplugs that the veterans say didn’t work as claimed and left them with damaged hearing. The Justice Department settled with 3M last summer over claims that the earplugs had “dangerous design defects” after being used by soldiers to protect their hearing for “more than a decade.” 3M paid $9.1 million in the settlement, but didn’t admit to any liability. A lawsuit filed by the government and one of 3M’s competitors alleged that 3M knew about the design flaw, but continued to sell the earplugs to the military from 2003 to 2015. 3M denies that the earplugs were defective. CBS News has a video interview with two veterans who suffer from hearing loss that they say was caused by the ineffective earplugs.

Lawsuit: apparent mistake leads to a stranger’s death

Hospital treatment causing more harm than healing? Preventable hospital errors cause more than 400,000 deaths per year.A Brooklyn woman says she was misinformed by hospital staff that a man by the same name as her brother was brain dead and she authorized removing him from life support — but her real brother was in jail, and she sent a stranger to his death, according to the New York Post. 48-year-old Shirell Powell has filed a lawsuit in Bronx Supreme Court over the fatal mistake. The incident began July 15 at St. Barnabas Hospital, when Powell was notified that Freddy Clarence Williams had been admitted because of an apparent drug overdose. Her brother had been a patient at St. Barnabas before, according to the Washington Post, and the hospital still had Powell listed as an emergency contact. It was only after Williams’ autopsy that Powell learned the truth: the man who died after being removed from life support was a different Fred Williams. You can read the complaint here. 

Stephon Clark’s family files wrongful death lawsuit

police sirenAttorneys for the family of Stephon Clark have filed a wrongful death lawsuit against Sacramento Police Officers Terrance Mercadal and Jared Robinet as well as the City of Sacramento alleging the officers racially profiled and used excessive force in fatally shooting the unarmed, African-American father of two. The complaint, filed in U.S. District Court Eastern District of California on behalf of Stephon’s two sons, his parents and his grandparents, seeks to hold the officers and the city accountable for violating various civil rights under federal law as well as the California Bane Act that resulted in the execution of decedent, Stephon Clark.

Plaintiffs are represented by Brian Panish of Panish Shea & Boyle LLP, Dale K. Galipo of The Law Offices of Dale K. Galipo, and Ben Crump of Ben Crump Law, PLLC.

As alleged in the complaint, Officers Mercadal and Robinet shot and killed 22-year-old Stephon in the backyard of his family’s home on May 18, 2018 as his grandparents watched in horror. The officers failed to identify themselves as police or issue any verbal warning that deadly force would be used before discharging their firearms approximately 20 times – at least eight (8) bullets struck Stephon, including multiple shots to his back as he made his way to the ground as well as when he was on the ground. Unresponsive and bleeding profusely from his wounds, the officers deprived Stephon of life-saving medical care, causing him extreme mental and physical pain and suffering as his body succumbed to his injuries. At the time of the shooting, Stephon was unarmed, holding only a cell phone, and had not committed a crime or posed a threat to the officers before he was shot and killed.

The actions of Mercadal and Robinet deprived Stephon of his right to be free from unreasonable searches and seizures as guaranteed under the Fourth Amendment of the U.S. Constitution and applied to state actors by the Fourteenth Amendment. Plaintiffs assert that the officers use of deadly force was excessive and unreasonable under the circumstances because Stephon was not armed and “this was not an immediate defense of life situation, the involved officers did not give a verbal warning
that deadly force would be used despite it being feasible to do so, there were no commands given and there were other reasonable options available other than shooting and killing the decedent.

“This family deserves answers and full transparency from the officers, the city and the Sacramento Police Department on the unjustified use of excessive and lethal force that killed Stephon Clark and robbed his children of a future with their father. When the facts are fully disclosed, we are confident that a jury will deliver justice that reflects how grossly the police and city officials failed Stephon, his family and the people of Sacramento,” said Brian Panish, attorney for the children of Stephon Clark.

“The Sacramento police executed Stephon Clark in his grandparents’ backyard, mistaking his cell phone for a gun, assuming he was a criminal threat simply because he was a black man. Then they ignored him for six minutes, failing to render any help to save his life. Stephon’s life had value. In America, a life – even a black life — can’t be arbitrarily extinguished without holding those responsible accountable. To dismiss their behavior is horrendously disrespectful. We are filing a civil action today because nothing will change in America until the wrongful death of a black man is met with requisite justice, because justice equals respect — not only for Stephon, but for all black people, ” said Ben Crump, attorney for the family of Stephon Clark.

As a result of the officers’ actions, Stephon’s children, parents and grandparents have been deprived of his life-long love, companionship, comfort, support, society, care, and sustenance for the remainder of their lives. Plaintiffs further assert that the conduct of the officers was “willful, wanton, malicious, and done with reckless disregard for the rights and safety of decedent and therefore warrants the imposition of exemplary and punitive damages as to Defendants Terrence Mercadal and Jared Robinet.”

“Since district attorneys throughout the state and the country are reluctant to press criminal charges against police officers involved in unjustified shootings, families of the victims of these unjustified shootings are left only with civil remedies in a Civil Rights action. Hopefully, the City of Sacramento will recognize how unjustified the killing of Stephon Clark was and offer an apology and substantial compensation to his family without delay. This is the first step to have the family start the healing process. One of the goals of this lawsuit is to not only get justice for Stephon’s family but to help prevent this type of incident from happening again” said Dale K. Galipo, attorney for the family of Stephon Clark.

The family is seeking treble damages under Civil Code Section 52.1 and compensatory damages – including survival and wrongful death damages in excess of $20,000,000, funeral and burial expenses, loss of financial support, and attorney fees as well as punitive damages against the individual defendants in an amount to be proven at trial.
A criminal investigation into the fatal shooting was concluded by the Sacramento Police Department in October 2018 and sent to the Sacramento County District Attorney to determine if criminal charges should be filed against Mercadal and/or Robinet. To date, City officials have yet to issue their findings as to whether the officers were found to be within policy for their use of deadly force or if they will be disciplined and/or charged for Stephon Clark’s execution.

You can read the full complaint here.

The Cochran Firm Files Lawsuit Against Daycare Center That Created Viral Video of a Small Child Terrified of a Costumed Easter Bunny

National Trial Lawyers member Scott Leeds with The Cochran Firm announced the filing of a lawsuit in Osceola County Circuit Court against Around the World Learning Center after it reportedly violated a parental privacy agreement by videotaping the terrified reaction of two-year-old Surai Williams during a surprise visit by a costumed Easter Bunny earlier this year. The video was posted on social media and was viewed by millions of people all over the world. It also appeared on television programs such as ABC’s “Jimmy Kimmel Live!”

According to the complaint, when Surai’s mother, Cassandra Bryson, enrolled the child at the Learning Center, she signed a Permission to Photograph form, in which she declined permission for the following:
a) Give photographs possibly containing her child to current clients;
b) Display in facility’s scrapbook or bulletin boards, shown to current and prospective clients;
c) Display still photos on child care website;
d) Post photos on child care’s Facebook page;
e) Give video to current parents; and
f) Display on YouTube® promotional videos.               

“The director of the daycare center also guaranteed that she would provide a safe environment for Surai with adequate supervision,” said Leeds during a media conference. “However, the lawsuit asserts that it didn’t happen in the dramatic video that went viral around the world. We can’t help but emphasize that there are no adults comforting Surai, who is clearly hysterical.”

The lawsuit states the caretaker sent the video to a third party via text message without Bryson’s consent, and subsequently placed on social media where it went viral.

The complaint alleges that the Learning Center’s director, Joan Ryan, was negligent in failing to meet licensing standards that includes giving parents a day plan, failing to consult Bryson regarding the Easter Bunny, failing to take further action against the employee who acted inappropriately.

“As a result of these actions, the lawsuit seeks damages against the daycare center for the severe emotional trauma and mental distress Surai suffered,” said Leeds. “This video continues to be viewed across global social media platforms where some people continue to make derogatory and racist comments.”

The lawsuit demands a judgment against Around the World Learning Center for the full value of the damages and costs sustained by plaintiffs in an amount greater than the Court’s minimal jurisdictional limit of $15,000. 

A PDF of the complaint accompanying this announcement is available at http://resource.globenewswire.com/Resource/Download/9cb524dd-5922-4237-8950-c60ce5e2481c

Video: Woman sued for $1M over Yelp review

legal news for consumersNew York woman is facing a $1 million lawsuit from a gynecologist over a poor review she gave him on Yelp. Dr. Joon Song filed the defamation lawsuit against former patient Michelle Levine over reviews she made on Yelp and other online rating services. Levine claims Dr. Song overbilled her and falsely diagnosed a medical issue. CNN has more on the lawsuit in this video.

ACLU Sues Orange County District Attorney and Sheriff over Secret, Illegal Jail Informant Program

The American Civil Liberties Union, the ACLU Foundation of Southern California, and the law firm of Munger, Tolles & Olson LLP today filed a lawsuit against Orange County District Attorney Tony Rackauckas and Orange County Sheriff Sandra Hutchens, whose departments conducted a secret jailhouse informant operation in violation of the U.S. Constitution, California Constitution, and California state laws.

For more than thirty years, the departments have recruited and placed informants in jail cells with defendants, paying and rewarding informants with sentence reductions for extracting incriminating information from the defendants without their lawyers present. Some informants use threats of violence, including threats of murder, to coerce confessions and other information.

“By running this massive, underground jailhouse informant scheme, the district attorney’s office and the sheriff’s department are cheating Orange County out of justice,” said Brendan Hamme, Staff Attorney at the ACLU of Southern California. “They have won countless convictions based on unreliable information — the results of jailhouse informants’ coercion of defendants — that they passed off in court as solid, sound, and legal. Hiding the facts of the coercion from the defense is just one of the many ways they broke the law and endangered justice.”

The scheme has existed at least since the 1980s, and it was first exposed in a criminal case four years ago. Since then, the defendants in at least 18 cases in Orange County have shown that the departments’ jailhouse informants were illegally involved in their cases and won sentence reductions or dismissals. The district attorney’s office and sheriff’s department have consistently denied the existence of the jailhouse operation, sometimes under oath.

“District attorney’s offices and sheriff’s departments have the responsibility to pursue justice and uphold the law. Orange County’s jailhouse informant scam does the opposite, and we’re suing to end it,” said Somil Trivedi, Staff Attorney with the ACLU. “We must hold the departments accountable for more than three decades of secrets and lies that continue to undermine the justice system in Orange County.”

The lawsuit, filed in Orange County Superior Court, details several cases in which illegal jailhouse informants were involved, including that of Luis Vega. Vega was 14 when he was arrested in 2009 for attempted murder. Two jail informants paid by the district attorney’s office and sheriff’s department produced information without coercion that showed Vega was innocent. By law, the departments were required to relay this information to Vega and his attorney, but they did not, due to the risk of exposing the entire illegal program. Vega remained in prison for nearly two years.

A named plaintiff in the lawsuit filed today, People for the Ethical Operation of Prosecutors and Law Enforcement (P.E.O.P.L.E.), is a nonprofit association based in Orange County.

“Both agencies’ misconduct has devastated the Orange County community and led to a complete loss of faith in their ability to deliver justice,” Tina Jackson, a member of P.E.O.P.L.E. who also is a named plaintiff, said. “They claim to represent the people of Orange County, but we are here to say that, as long as they’re breaking the law, they don’t represent us.”

“The scope and duration of Orange County’s illegal informant program is breathtaking,” said Jacob Kreilkamp, a partner with Munger, Tolles & Olson LLP. “The defendants’ efforts to deny its existence — and, when forced to confront reality, to minimize and excuse it — make it clear that this lawsuit is necessary to restore integrity to Orange County’s criminal justice system.”

The ACLU Campaign for Smart Justice — an unprecedented effort to reduce the U.S. jail and prison population by 50% and to combat racial disparities in the criminal justice system — has launched a new multi-year initiative to make sure that prosecutors who break the law are held accountable for fueling mass incarceration and racial disparities in the criminal justice system, through legislative advocacy, voter education, and litigation. Today’s lawsuit joins Singleton v. Cannizzaro, filed in January by the ACLU and co-counsel over misconduct by the Orleans Parish district attorney, such as issuing fake subpoenas to coerce witnesses into submitting to interrogations.

For the complaint filed today and information about P.E.O.P.L.E. v. Rackauckas, go to:https://www.aclu.org/cases/people-v-rackauckas

For a video about the lawsuit: https://youtu.be/mPXEz0WJbRM

For more information: ACLU of Southern California https://www.aclusocal.org/

ACLU Campaign for Smart Justice https://www.aclu.org/issues/mass-incarceration/smart-justice

Munger, Tolles & Olson LLP https://www.mto.com

This press release is available here: https://www.aclu.org/news/aclu-sues-orange-county-district-attorney-and-sheriff-over-secret-illegal-jail-informant

 

NTL member wins flooding lawsuit against Army Corps of Engineers

Dan BoulwareA federal judge in Washington, D.C. ruled on March 13, 2018 that the U.S. Army Corps of Engineers bears responsibility for causing recurrent flooding and damaging farms and property in four Midwest states along the Missouri River: Missouri, Iowa, Nebraska and Kansas. The ruling states that the government must compensate farmers, landowners and business owners for the flood damage, which has been estimated to exceed $300 million.  The case, Ideker Farms et al v. United States of America, was brought by 372 plaintiffs comprised of farmers, landowners and business owners, and has been led by Polsinelli in partnership with Cohen Milstein Sellers & Toll. National Trial Lawyers member and Polsinelli shareholder Dan Boulware served as lead counsel.

The mass action lawsuit was originally filed on Mar. 5, 2014 and alleged that the U.S. Army Corps of Engineers’ actions have violated the takings clause of the Fifth Amendment that bars the Government from taking private property without just compensation. Judge Nancy B. Firestone with the United States Court of Federal Claims found in favor of the plaintiffs in five of the six years that the flooding was claimed dating back to 2007, disallowing the flood claims in 2011. The Court found that the Corps’ deprioritized flood control in 2004.

Judge Firestone stated in her Trial Opinion that the evidence established that the Corps’ changes to the river “had the effect of raising the Missouri River’s water surface elevations (“WSEs”) in periods of high flows.” She found that since 2007, the flooding has been among the worst in the history of the river and the Corps’ changes in the management of the river caused or contributed to the flooding. Citing the testimony of plaintiffs’ experts, the Court acknowledged that “recurrent flooding in the Missouri River Basin . . . will continue into the future,” and that increased blocked drainage of farm lands due to higher river levels is a problem.

“As a farmer and landowner who has experienced substantial losses from these floods, I’m extremely pleased with this outcome,” said lead plaintiff Roger Ideker of Ideker Farms in St. Joseph, Mo. “It rightfully recognizes the Government’s responsibility for changing the River and subjecting us to more flooding than ever before.”

“Today is the day the plaintiffs have patiently waited for and have fought for during the past four years. Although we do not concur with the Court’s conclusions regarding the 2011 flood event, we are very pleased with the Court’s conclusions regarding the Corps changes to the river causing flooding, and we are certainly pleased with an outcome that will provide substantial compensation to plaintiffs living along the river who have suffered significant flood damage and losses throughout the past decade,” said Boulware. “It should now be clear that we have a changed river – one that is flood prone. We hope the Corps of Engineers will now do the right thing for our clients and that Congress will also act soon to restore flood control to a higher priority as it was during the last century.”

The ruling also addressed the critical shift in the management of the river by the Corps in 2004 to restore its ecosystem and benefit and create habitat for threatened and endangered species. The court found that the notching of dikes and revetments, as well as the reopening of the historic chutes, which allows the river to meander and erode the bank, created potential flood impacts. These changes to the river, coupled with increased reservoir storage and threatened and endangered species releases from the dams during high river stages below the dams, served to cause or contribute to cause flooding in 2007, 2008, 2010, 2013, 2014 and since.

“For nearly a decade, these individuals have suffered not only serious flood damage, but more critically, threats to their fundamental livelihood,” said plaintiffs’ attorney Benjamin Brown, Partner and Co-Chair of the Antitrust Practice Group at Cohen Milstein Sellers & Toll. “Today’s decision reflects what we have been saying since the outset of this litigation – all Americans should share the costs of protecting threatened and endangered species and the entirety of this burden should not be foisted on those who happen to live and work on the river.”

The Ideker Farms, Inc. et al v. United States of America case has two phases. This ruling marks the end of phase one, which began on Mar. 6, 2017, focusing on liability and the cause of the flooding. The trial in the Federal Claims Court began in Kansas City, Mo. before moving to Washington, D.C. It involved 44 plaintiff “bellwether” tracts and more than 90 witness testimonies over the course of the 63-day trial. Closing arguments were held in November and concluded in December. In total, over 100 depositions were taken and in excess of 20 million documents were produced throughout phase one.

The case will next proceed to phase two, where the Court will determine the extent of losses due to the taking.

The plaintiffs are represented by Am Law 100 firm Polsinelli, led by Boulware, who is recognized by his peers as among the top 1 percent of all trial attorneys in the country, Edwin Smith, Seth Wright, Todd Ehlert and Sharon Kennedy. Brown and Laura Alexander of Cohen Milstein Sellers & Toll, one of the nation’s leading plaintiffs’ firm based in Washington, D.C., also supported plaintiffs in this case.

For more information, including historical background, on this case, please visit http://www.missouririverflooding.com.

Potential parents prepare legal action against fertility clinics

A wave of would-be parents is heading to court after a Ohio fertility clinic notified 700 patients last week that their frozen eggs or embryos may have been damaged after a storage tank lost liquid nitrogen that was critical to maintaining the correct temperature. The fertility center at University Hospitals Ahuja Medical Center is the second facility in two weeks to inform patients of a freezing failure. Pacific Fertility Center in San Francisco also suffered a malfunction in a storage tank that held hundreds of frozen embryos and eggs. Attorneys told The Washington Post they’ve been inundated with calls from fertility clinic patients and hope the court will certify a class action.

Days in the Dallas Co. Jail raising money for bail

Dallas County, Texas is being sued over the constitutionality of its bail system by the ACLU, Civil Rights Corps, the Texas Fair Defense Project, the Texas Organizing Project, Faith in Texas, and six plaintiffs. The county’s cash bail system is unconstitutional, they claim in Daves vs. Dallas County, because it forces less affluent people to remain in custody while they raise money for bail. D magazine reports that about 70 percent of the 5,000 people in the Dallas County Jail are there because they can’t afford to post bail. This article has more on what’s it like for the people who have to stay in jail because they don’t have bail money.

CA man awarded $5M in disability discrimination lawsuit

disability actA former employee of a cellular company won $5 million in a disability discrimination lawsuit against his former employer in California. Stephen Colucci was a T-Mobile retail store manager for seven years.  In July 2014, Colucci’s new regional manager told him that he was being transferred to another work location – a T-Mobile kiosk located inside the Ontario Mills Mall.  Colucci suffers from agoraphobia, PTSD, and panic disorder based on witnessing a stabbing incident when he was a teenager.  Colucci disclosed his disability to his new supervisor, and to Human Resources and offered to transfer to a different location or to remain in the store he was managing.  He was not transferred to the kiosk but he was thereafter verbally harassed and mocked by the new supervisor.  Colucci lodged a harassment complaint to T-Mobile’s integrity line hotline and confronted his new supervisor about the harassment.  Within hours of learning about Colucci’s complaint, the new supervisor terminated his employment, allegedly based on a violation of the company’s conflict of interest policy.  Colucci established that the stated reason was pretextual and that the real reason he was terminated was based on retaliatory motives. T-Mobile retaliated against Colucci by terminating him within hours of making complaints about his new supervisor.  T-Mobile’s Human Resources Department did not investigate the complaints and supported the new supervisor’s decision to terminate Colucci. T-Mobile’s internal paperwork indicated that “litigation was probable” at the time of termination.   In addition, T-Mobile’s loss prevention team discussed the termination decision on a recorded conference call and a loss prevention manager reported on the call that Colucci was terminated for making complaints. National Trial Lawyers member Pat Barrera of Barrera and Associates in El Segundo represented Colucci. The Superior Court awarded Colucci $5,020,042.00 in damages in October 2017.  The court also denied T-Mobile’s post-trial motions for a new trial and for judgment notwithstanding the verdict in December 2017.  Plaintiff’s motion for fees and costs is pending.