Category Archives: Cases in the News

Some Asiana Crash Injuries Linked to Seat Belts

Investigators continue to piece together the cause of the accident involving Asiana Airlines Flight 214, which crashed just short of a bay-adjacent runway at San Francisco International Airport on July 6th. In addition to two fatalities, there were over 150 passenger and crewmember injuries linked to the crash, and a pattern seems to be emerging when it comes to the cause of some of those injuries.

According to the Wall Street Journal, “[w]hen passengers began streaming into emergency rooms, hospital staffers said they saw many injuries associated with using seat belts that fasten around the lap,” the kinds of in-seat restraints that are used by the vast majority of airlines in all seating areas of their passenger aircraft.

WSJ notes that the design of these restraints — notably the absence of any chest or shoulder harness — is a practical one: “Seats where lap belts are used are now designed so that in a crash, passengers are cushioned by the seats in front of them. The seat back is designed to fall forward, absorbing the blow. [Installation of chest harnesses] would add to seats’ weight and require a heavier mounting system and floor frame, experts said.”

Over at CNBC, they’re opining that the absence of a safer seat belt system on planes comes down to questions of cost and comfort.

Learn more about injuries caused by seat belts and legal issues in airplane accident cases.

Hockey Player’s Family Files Wrongful Death Suit Against NHL

The family of professional hockey player Derek Boogaard has filed a wrongful death lawsuit against the National Hockey League, claiming the organization is to blame for his brain damage and the addiction that played a role in his 2011 death from an overdose of alcohol and painkillers.

Boogaard played for the Minnesota Wild and New York Rangers over the course of six NHL seasons, and was widely considered an “enforcer”-type player who would aggressively protect teammates and strong-arm opponents. For NHL enforcers, fights are practically part of the job description, and according to the lawsuit, Boogaard engaged in at least 66 fights on the ice, leading to numerous concussions and other injuries. A postumous medical examination revealed that Boogaard suffered from chronic traumatic encephalopathy (CTE), which can be caused by repeated head trauma.

The complaint tries to put liability for Boogaard’s death on the shoulders of the NHL by arguing that team doctors and dentists prescribed oxcodone and other powerful drugs to Boogaard — more than 1,000 pills in the course of the 2008-09 season alone, according to the lawsuit — and then didn’t do nearly enough to help him with his ensuing addiction and health complications.

The Chicago Tribune quotes William T. Gibbs, an attorney representing Boogaard’s family, opining on the league’s culpability: “The NHL drafted Derek Boogaard because it wanted his massive body to fight in order to enhance ratings, earnings and exposure.  Fighting night after night took its expected toll on Derek’s body and mind. To deal with the pain, he turned to the team doctors who dispensed pain pills like candy. Then, once he became addicted to these narcotics, the NHL promised his family that it would take care of him.  It failed.  He died.  Today, his family seeks justice for the NHL’s egregious failures.”

Learn more about Wrongful Death Claims.

Defective Artificial Hip Verdict: Jury Awards $8M

Johnson & Johnson has been ordered to pay $8 million in damages to a retired prison guard who received a defective artificial hip that was manufactured (and later recalled) by the health care giant.

A Los Angeles jury sided with plaintiff Loren Kransky and placed Johnson & Johnson on the legal hook for marketing a defective product and failing to warn consumers about the health risks associated with the all-metal artificial hip device, 93,000 of which were recalled in 2010.

According to the Los Angeles Times, the financial hit that Johnson &  Johnson took today could have been a lot worse: the plaintiff’s attorney asked the jury to order the company to pay another $179 million in punitive damages. When the jury declined that request, you could probably hear the sigh of relief coming all the way from J&J headquarters in New Brunswick, New Jersey.

Learn more about Product Liability Claims Involving Medical Devices.

Appeals Court OKs Graphic Cigarette Warnings

Graphic images of diseased lungs and other visual warnings on the dangers of smoking don’t violate tobacco companies’ free speech rights, a federal appeals court has ruled, upholding an FDA regulation that would require placement of the new amped-up warnings on all cigarette packs sold in the U.S.

The decision was handed down yesterday by the U.S. Court of Appeals for the Sixth Circuit. You can read the full text of the decision here. In upholding the legality of the new warning labels, the court ruled that they “do not impose any restriction on Plaintiffs’ dissemination of speech, nor do they touch upon Plaintiffs’ core speech. Instead, the labels serve as disclaimers to the public regarding the incontestable health consequences of using tobacco.”

Yesterday’s decision upholding the constitutionality of the graphic warnings comes a month after a federal district judge struck down the FDA regulations (we blogged about an earlier preliminary injunction that was granted in that case). It would come as no surprise if the Supreme Court has the final say on the controversial warnings.

Hands Off Those Cell Phones at Red Lights in California

The problem of distracted driving has the attention of lawmakers in every state these days. California laws on driver use of cell phones and other devices are already some of the toughest in the country. And now you can add to that set of rules yesterday’s decision from a California appeals court: Next time you grab your cell phone to make a quick call or send a brief text message while you’re waiting out a red light, you can still get ticketed for a $103 traffic violation, even though your vehicle isn’t moving. The three-judge appellate panel in yesterday’s decision held that a driver who is stopped at a red light is still “driving” under California’s Vehicle Code — specifically, the driver is merely “pausing momentarily” at the light, in compliance with the rules of the road. So, use of a hand-held device while stopped at a red light is still a violation of California’s distracted driving laws.    

Read a PDF of yesterday’s decision: People v. Nelson, from the California Courts website.  

With iPhones and Blackberries becoming more and more pervasive — and drivers increasingly unwilling to go unplugged even on a trip to the dry cleaners — distracted driving has become a leading cause of car accidents. In 2009, 20 percent of all injury-causing car accidents involved distracted driving, according to the National Highway Traffic Safety Administration (NHTSA). And a driver who is using a hand-held device is four times as likely to get into a serious-injury car accident, says the Insurance Institute for Highway Safety (IIHS). This is all on top of numerous studies showing that drivers who use a cell phone while driving (even those who go hands-free) have their reaction time and judgment impaired to the same level as a driver who is legally intoxicated.

Learn more about Car Accidents Caused by Cell Phone Use from Nolo. And visit Distraction.gov, the federal government’s new web portal on distracted driving.

Graphic Images on Cigarette Packs May Go Up in Smoke

A federal judge has blocked the implementation of a new FDA rule requiring the display of graphic images on cigarette packaging. The nine controversial photos are set to appear (along with accompanying text) on all cigarettes sold in the U.S. beginning in September of 2012. There’s no subtlety here. It’s a rotating gallery of unpleasant images meant to convey the dangers of smoking — everything from a set of diseased lungs to a man smoking through a hole in his throat. There’s even a post-autopsy sutured chest thrown in for good measure. Under the FDA rule, the warnings and the images must cover the top half of every pack of cigarettes, front and back. (More on Cigarette Health Warnings from the FDA.)    

This week’s granting of a preliminary injunction by U.S. District Judge Richard Leon does not amount to the overturning of the FDA rule itself. What the injunction does do is block the rule from taking effect until the lawsuit over the requirement is resolved; specifically, in Judge Leon’s words, until “the constitutionality of the commercial speech that these graphic images compel” can be evaluated.

Judge Leon’s granting of the preliminary injunction means that, here in the early stages of the lawsuit, the tobacco companies have made a strong argument that the FDA rule violates free speech. That argument goes like this: by requiring the display of these new graphic anti-smoking images on all cigarette packaging, the federal government is essentially — and unconstitutionally — forcing commercial speech on the part of the tobacco companies. The granting of the tobacco companies’ request for a preliminary injunction is obviously a win for R.J. Reynolds and friends. At the very least, it’s an early indication of which way Judge Leon is leaning on the larger issue of the rule’s constitutionality; an injunction like this is only issued when the party requesting it shows a “likelihood of success” on the merits of the lawsuit.

For now, when it comes to scaring smokers straight, it looks like the old standby Surgeon General’s Warning will just have to do.

Feds Declare BP the Winner in Gulf Oil Spill Blame Game

Before the April 2010 Deepwater Horizon explosion that killed 11 people and triggered the largest oil spill in history, BP’s main priority was cost-cutting, and the company let little things — like, say, effective risk assessment and minimization — fall by the wayside. That’s the conclusion reached after a federal investigation into the Gulf Oil spill. Findings are detailed in a comprehensive report issued earlier this week.

Other companies involved in the incident don’t escape blame, including Transocean (which owned the Deepwater Horizon rig) and Halliburton (which did cement work on a well that would later explode). But the report puts the majority of fault squarely on BP’s shoulders.

A few of the more scathing findings from the Bureau of Ocean Energy Resource Management and Enforcement (BOERME):

  • In the weeks leading up to the blowout on April 20, the BP team made a series of operational decisions that reduced costs and increased risk.
  • BP personnel in Houston did not transfer critical information to rig personnel…[T]his communication failure, which resulted in the rig crew being unaware of increasing operational risks, may have created a false sense of security among those on the rig.
  • BP personnel were compensated and their performance reviewed, at least in part, based upon their abilities to control or reduce costs.
  • An “operational” performance measure for BP drilling personnel was delivering a well with costs under the authorized expenditure amount. There was no comparable performance measure for occupational safety achievements.
  • In the weeks leading up to April 20, the BP Macondo team made a series of operational decisions that reduced costs and increased risks.
  • A number of BP decisions were not subjected to a formal risk assessment process. In addition, the Panel found no evidence indicating that, at the time of the blowout, BP had in place any policy or practice to assess whether safe operations were being compromised to achieve cost savings.

There’s already talk that the BOERME report — and its fairly damning conclusions as to BP’s liability for the Deepwater disaster — will add tens of billions to BP’s civil liability for the spill. And the federal government’s findings may even trigger federal criminal charges against BP.

Dodgers Try to Limit Lawsuit Over Fan’s Beating

Lawyers for the Los Angeles Dodgers have thrown a brushback pitch in response to a lawsuit filed by the family of a man who suffered severe injuries after an attack at Dodger Stadium.

Bryan Stow, a 42 year-old paramedic from Santa Cruz, attended a Dodgers-Giants game at Dodger Stadium on the night of March 31, 2011. Stow, who was wearing Giants gear, was attacked in the parking lot after the game. He suffered head injuries and has been in a medically-induced coma since shortly after the attack. A recent lawsuit filed on behalf of Stow and his two children alleges nine separate claims against the Dodgers, including charges that the team failed to provide adequate security at the stadium.

But lawyers for the team and owner Frank McCourt argue that Stow’s two children shouldn’t be able to sue the team, in part because they weren’t at the stadium on the night of the incident. So (the team’s argument goes) the kids’ negligence-based claims against the team and their requests for loss of consortium and other damages should be dismissed.

The team is also trying to limit the scope of the lawsuit by asking the judge to reject a claim for punitive damages. And not only that, the Dodgers want the court to throw out the complaint’s references to consumption of alcohol (gasp!) at the stadium, McCourt’s “lavish lifestyle” (McCourt is a named defendant, and no stranger to the L.A. county court system these days), and the lawsuit’s characterization of the incident as “brutal and vicious,” according to a report in the Los Angeles Times.

Gun Maker Pays $600K to Settle Lawsuit Over Shooting

Kahr Arms, a Massachusetts-based firearms manufacturer, has agreed to pay almost $600,000 to the families of two shooting victims, in what’s being billed as the largest-ever settlement in a lawsuit linking a gun maker’s alleged negligence to a shooting incident.

The case is fairly unique (and therefore may not be exactly ripe for precedent-setting) because the company’s wrongdoing came via its failure to provide adequate security against theft at its manufacturing plant. According to the Worcester Telegram & Gazzette, those security lapses allowed a drug-addicted Kahr employee to steal handgun parts, assemble the gun, and then sell the weapon for cocaine. After the gun changed hands a second time in another drugs-for-guns transaction, it was used to shoot two people (one fatally) at a nightclub in Worcester, Massachusetts. Another strike against Kahr: the employee was hired despite the fact that he had a criminal record.

The settlement is significant not just for the high dollar value, but also because it came after enactment of a federal gun law (the Protection of Lawful Commerce in Arms Act) which gun makers have argued shields them from liability in most civil cases — this according to the Brady Campaign for Gun Violence, which was co-counsel in the Kahr lawsuit.