Civil Procedure Personal Injury

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Missouri Court of Appeals – Western District Upholds Missouri Statute Requiring Plaintiff to Submit a Health Care Affidavit of...

Austin v. Schiro, Slip Opinion, WD78085 (Mo.App. W.D. May 26, 2015) - The Missouri Court of Appeals, Western District, affirmed a trial court decision dismissing a plaintiff’s medical negligence action, without...more

Duty to Cooperate Ruling Narrows Insurers’ Ability to Foreclose Coverage for Settled Class Action Claims

Insurance policies typically include a cooperation clause, which requires the insured to cooperate with the insurer in the defense of a covered claim. Insurers routinely use this clause as a sword against their insureds by...more

7th Circuit – Alleged Injuries Can Confer Standing In Data Breach Suit

In any case involving a data breach of customer or employee information, the first line of defense for the defendant is to assert that the plaintiff(s) lack standing to bring suit. In Remijas v. Neiman Marcus Group, the...more

Appellate Court Restricts Vicarious Liability Of Hospitals

In a decision issued this week, the Connecticut Appellate Court rejected an argument that a hospital has a nondelegable duty to provide emergency care and thus is vicariously liable for the professional negligence of an...more

Georgia Supreme Court Brings Clarity to Non-Party Fault Under The Apportionment Statute

The Georgia law regarding apportionment of liability in tort cases became more clear this month with the Georgia Supreme Court’s decision in Zaldivar v. Prickett, et al. Before the Court was the question of whether a...more

Spoliation: How to Stop Trouble from Brewing

When a business is faced with the potential for litigation, it is imperative that all evidence be preserved to avoid the dreaded “s” word: spoliation. Starbucks Corporation recently learned this lesson the hard way when a...more

No Duty for Device Manufacturer to Provide Separate Warnings to Hospital, According to Washington Court of Appeals

We admit it. We (and “we,” in this instance, should be read in the singular) are fans of certain social media, particularly the one that involves “posting” on a “wall” then sitting back and basking in the “likes.” We tend...more

Deposing the Doctor: Why Do It and How Much Will It Cost?

In cases in which there are medical issues, you’ll need to decide whether to depose the treating physician. Here are some considerations to keep in mind as you make this call....more

Jury Must Decide Whether Facts Exist to Suspend the Accrual of the Statute of Limitations Under The Discovery Rule

Ismael Rosas v. BASF Corporation, et al. - Court of Appeal, Second Appellate District, Division Five (May 21, 2015) - he general rule regarding statutes of limitation is that they do not begin to run until a cause...more

Proper Measure of Medical Damages, Admissibility Of Evidence, and Sufficiency of Evidence in Tort Cases Involving an Uninsured...

Omar Bermudez v. Faith Ciolek - Court of Appeal, Fourth Appellate District (June 22, 2015) - Issues that remained unanswered after the Howell and Corenbaum decisions included: (1) what is the proper measure of...more

Clark v. Viacom - USCA Sixth Circuit, July 8, 2015

Sixth Circuit affirms dismissal of defamation claims brought against Viacom by former American Idol contestants, holding that Tennessee’s “single publication rule” applies to online speech and thus majority of allegedly...more

Saving Fans from Themselves (and Foul Balls): Class Action suit aims to raise nets and take down the Baseball Rule

“The slaughter pen” is the early 1900s term to describe the seating area behind baseball’s home plate before the age of nets or fencing shielded them from wild pitches and foul balls. While the game has come a long way...more

Federal Court of Appeal Expands Scope of Privacy Class Action

The Federal Court of Appeal recently allowed an appeal expanding the scope of a certified privacy class action relating to the loss of personal data of Canada Student Loans recipients. The case, Condon v. Canada (Condon), had...more

11th Circuit: Rule 23 Trumps State Law Limitation on Class Actions

Dealing a blow to defendants facing consumer fraud litigation in the 11th Circuit, the court of appeals for that circuit has reinstated a class action under the Alabama Deceptive Trade Practice Act (ADTPA), despite that the...more

Proposed California Legislation Would Mandate Asbestos Bankruptcy Trust Disclosures Statewide

California Assemblyman Ken Cooley (D-Rancho Cordova) has introduced and sponsored Assembly Bill No. 597, the Asbestos Tort Claim Trust Transparency Act, which if passed would require asbestos plaintiffs to disclose all...more

Inapplicability of the "One Year" Limitations Tolling Period of the N.C. Rules of Civil Procedure

In Murphy v. Hinton, No. COA14-1230 (July 7, 2015), the North Carolina Court of Appeals determined that a complaint dismissed voluntarily cannot benefit from the "one-year refiling" period pursuant to Rule 41(a)(1) of the...more

Inadequate Record Keeping May Result in Gross Negligence For Injuries Caused by Exercise Equipment Malfunction

In Chavez v. 24 Hour Fitness USA, Inc., 2015 No. H040987, the California Court of Appeal, Sixth District, reversed summary judgment in favor of defendant 24 Hour Fitness USA, Inc. (“24 Hour”), holding defendant’s incomplete...more

Supreme Court of Missouri Upholds 10-Year Statute of Repose for Foreign-Object Medical Malpractice Claims

Ambers-Phillips v. SSM DePaul Health Center, 2015 WL 1926012 (Mo.banc. April 28, 2015) - The Supreme Court of Missouri, en banc, affirmed a trial court’s decision to dismiss a plaintiff’s foreign-object medical...more

Jury Awards Ex-Intern $18 million for Attacks by her CEO Boss

In recent headlines, private equity CEO, Benjamin Wey, was found liable for defaming, sexually harassing and retaliating against former New York Global Group Intern Hanna Bouveng. The jury awarded her $2 million in...more

Daubert – and a Mechanical Pencil – Doom the Testimony of “Clinical Engineering” Expert

“If it doesn’t fit, you must acquit.” In the granddaddy of today’s reality TV shows, this buzz-phrase became synonymous with “use your head before you rely on a demonstration.” The plaintiff in Hutson v. Covidien Holdings,...more

"Appellate Court Affirms Ruling Allowing Punitive Damages in New York City Asbestos Cases"

In a unanimous ruling decided July 9, 2015, New York's Appellate Division, First Department declined to overrule an April 2014 order by Justice Sherry Klein Heitler, the then-coordinating justice of the New York City Asbestos...more

Medical Malpractice Damage Caps — A Balance of Justice

In a recent landmark decision for the citizens in the State of Florida, Florida’s Fourth District Court of Appeals, the appellate court for Palm Beach, Broward, and the counties to their north, issued an opinion finding the...more

Right of Publicity Claims by Athletes Nearly Shut Out in 2015

When we published our Sue-per Bowl post, 2015 looked like it would be a good year for right of publicity claims brought by athletes. On January 6, 2015, the Ninth Circuit in Davis v. Electronic Arts held that the First...more

Neighbors’ Noise Complaints Trigger EIR

Keep Our Mountains Quiet v. County of Santa Clara - Why It Matters: The Sixth District Court of Appeal affirmed the trial court’s holding that preparation of an EIR was required for the approval of a use permit to allow...more

Ninth Circuit Revives Tort Claims Initially Dismissed Under Economic Loss Doctrine Where Product Caused Damage to “Other Property”

On June 29, 2015, the Ninth Circuit Court of Appeals, in CHMM LLC v. Freeman Marine Equipment, Case No. 13-35163 (D.C. No. 3:12-cv-01484-ST), reversed the District Court’s judgment in an admiralty case, holding that a vessel...more

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