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The Researching Paralegal

Category Archives: Torts

Will Football Litigation Change How The Game Is Played?

06 Saturday Feb 2016

Posted by Celia C. Elwell, RP in Brain Damage, Damages, Football Helmets, Litigation, NFL, Sports Law, Torts

≈ Comments Off on Will Football Litigation Change How The Game Is Played?

Tags

Abnormal Use Blog, Brain Injury, Concussions, Football, Helmet-First Contact, NFL, Nick Farr

NFL Litigation May Forever Change Football, by Nick Farr, Abnormal Use Blog

http://abnormaluse.com/2013/08/nfl-litigation-may-ruin-football.html

If you are a football fan, you have probably heard about the concussion/brain injury litigation against the NFL. The litigation has been going on for quite some time and seems to be growing with every passing week. We here at Abnormal Use first wrote about it way, way back in 2011. Two years later, there appears to be no end in sight. While we have no idea when the litigation will end, we have a pretty good idea of how it might do so. More than likely, the numerous current and former player plaintiffs will find themselves the recipients of a hefty settlement. But the financial and legal ramifications of this suit should be the least of the NFL’s concern. We here at Abnormal Use fear that this litigation may put a nail in the coffin of football as we know it. . . .

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If You Sign A Waiver To Play Sports, Have You Agreed To Assume The Risk If You Get Hurt?

06 Saturday Feb 2016

Posted by Celia C. Elwell, RP in Litigation, Recent Links and Articles, Sports Law, Summary judgment, Torts

≈ Comments Off on If You Sign A Waiver To Play Sports, Have You Agreed To Assume The Risk If You Get Hurt?

Tags

Assumption of the Risk, Daniel E. Cummins, Football, Tort, TORT TALK, Waiver

Judge Gibbons Grants Summary Judgment Based on Waiver Form and Assumption of Risk in Football Injury Case, by Daniel E. Cummins, Tort Talk

http://www.torttalk.com/2016/02/judge-gibbons-grants-summary-judgment.html

With the Super Bowl on the horizon comes the case of first impression of Feleccia v. Lackawanna Coll., No. 12-CV-1960, 2016 WL 409711 (C.P. Lacka. Co. Feb. 2, 2016 Gibbons, J.), in which Judge James A. Gibbons of the Lackawanna County Court of Common Pleas was faced with the issue whether two junior college students who were injured at a preseason football practice were barred from recovering against the college because both signed waivers of liability prior to their injuries. . . .

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Seventh Circuit Rules On The Weight Of Scientific Evidence.

02 Monday Nov 2015

Posted by Celia C. Elwell, RP in 7th Circuit Court of Appeals, Evidence, Insurance Defense, Litigation, Personal Injury, Product Liability, Torts

≈ Comments Off on Seventh Circuit Rules On The Weight Of Scientific Evidence.

Tags

Brian O'Connor Watson, Causation, Neil Loyd, Personal Injury, Product Liability, Product Liability & Mass Torts Blog, Robert H. Riley, Scientific Evidence, Toxic Torts

Seventh Circuit Ruling On Scientific Evidence Closes Some Doors But Opens Others, by Robert H. Riley, Neil Loyd, and Brian O’Connor Watson, Product Liability & Mass Torts Blog

http://tinyurl.com/nmjffed

Exposure to potentially harmful substances at some level is a fact of modern life. These substances are everywhere — in the air we breathe, in the food we eat, and in the water we drink — and many of these substances are naturally occurring. It is impossible to have zero exposure to all of them.

For both science and law, however, the issue is not whether someone has some detectable exposure. Rather, it is whether the dose was sufficient (in quantity and duration) to cause harm.

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A Different Perspective On Mass Torts.

02 Monday Nov 2015

Posted by Celia C. Elwell, RP in Class Actions, Litigation, Torts

≈ Comments Off on A Different Perspective On Mass Torts.

Tags

Class Action, Litigation and Trial Blog, Mass Torts, Max Kennerly, Quantum Meruit, Tort Reform, Transvaginal Mesh Lawsuits

The Lucrative Mass Torts Scam That Wasn’t, by Max Kennerly, Esq., Litigation and Trial, The Law Blog of Plaintiff’s Lawyer Max Kennerly

http://tinyurl.com/pn9oy5z

The lawsuit brought by financier Amir Shenaq against mass-torts law firm AkinMears has made the rounds of the tort reform blogs (e.g., SETexas Record, Daniel Fisher at Forbes, and Paul Barrett at Bloomberg), so I figured some plaintiff-side commentary was in order. The details of the lawsuit confirm what I’ve been saying for years: ‘Mass torts is not an area in which you want to dabble and start throwing around discounts. It’s work, it’s risky, and it can be very, very expensive.’

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Seat Belt Use Evidence Now Admissible In Texas.

19 Thursday Feb 2015

Posted by Celia C. Elwell, RP in Admissibility, Authentication, Damages, Discovery, Evidence, Motor Vehicle, Negligence, Personal Injury, Product Liability, Relevance, Torts, Wrongful Death

≈ Comments Off on Seat Belt Use Evidence Now Admissible In Texas.

Tags

Comparative Negligence, Contributory Negligence, Damages, Personal Injury, Product Liability, Seat Belts, Texas

TX: Evidence of Seat Belt Non-Use is Admissible to Apportion Responsibility, by Christopher J. Robinette, Torts Prof Blog (with hat tip to Jill Lens (Baylor)!)

http://tinyurl.com/kmbeph9

For years, evidence of seat belt use was prohibited at trial. The Texas Supreme Court changed that rule of law with this case. This ruling will have a major impact on this area of the law. -CCE

The Texas Supreme Court case, which was announced on Friday, is Nabors Wells Services, Ltd. v. Romero. The case (pdf) is here:  Download TX Sup Ct = Seat Belt Admiss  From the opinion:

We hold relevant evidence of use or nonuse of seat belts, and relevant evidence of a plaintiff’s pre-occurrence, injury-causing conduct generally, is admissible for the purpose of apportioning responsibility under our proportionate-responsibility statute, provided that the plaintiff’s conduct caused or was a cause of his damages.

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Pennsylvania’s New Standards for Strict Liability Claims.

10 Tuesday Feb 2015

Posted by Celia C. Elwell, RP in Damages, Litigation, Negligence, Product Liability, Torts

≈ Comments Off on Pennsylvania’s New Standards for Strict Liability Claims.

Tags

Duane Morris LLP & Affiliates®, Negligence, Pennsylvania, Product Liability, Second Restatement of Torts, Strict Liability, Torts

Pennsylvania Supreme Court Adopts New Standards for Strict Liability Claims, by Duane Morris LLP & Affiliates®

http://tinyurl.com/q49j9jx

While the Tincher decision clarifies some issues regarding strict liability cases, there are many issues left to be determined by future case law.

On November 19, 2014, the Pennsylvania Supreme Court issued its much-anticipated decision in Tincher v. Omega Flex, Inc. (No. 17 MAP 2013), in which it addresses the proper standard under Pennsylvania law for strict liability claims relating to allegedly defective products. Although the court declined to adopt the Restatement (Third) of Torts, it overruled its prior holding in Azzarello v. Black Brothers Company, 391 A.2d 1020 (Pa. 1978), which created roadblocks to the introduction by defendants of the reasonableness of their actions in designing products.

Strict liability for defective products developed from the social policy determination that the cost of injuries resulting from defective products should be borne by the manufacturers of the products rather than by the injured persons.[1] For almost 50 years, strict liability under Pennsylvania law has been governed by Section 402A of the Second Restatement of Torts, which provides that ‘one who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability [for the harm caused] . . . .’

The term ‘unreasonably dangerous’ naturally involves a balancing between what is reasonable and what is not, which is similar to the fault-based notions encompassed by negligence claims. However, in Azzarello, the Pennsylvania Supreme Court drew a bright line between strict liability and negligence causes of action. . . .

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Why Is Workers’ Compensation An Exclusive Remedy In Employee’s Death Case?

25 Sunday Jan 2015

Posted by Celia C. Elwell, RP in Damages, Employment Law, Litigation, Torts, Workers' Compensation

≈ Comments Off on Why Is Workers’ Compensation An Exclusive Remedy In Employee’s Death Case?

Tags

Breach of Contract, Employer Liability, Employment Law, Remedy, Torts, Workers' Compensation, Wrongful Death, Zalma on Insurance Blog

Workers’ Compensation Is Exclusive Remedy, by Barry Zalma, Zalma On Insurance Blog

http://zalma.com/blog/workers-compensation-is-exclusive-remedy/

Tort Judgment Against Employer Is Only Good for Wallpaper

The workers’ compensation system across the United States provides benefits to injured workers without regard to fault. When the injury is serious or results in death the workers’ compensation benefits do not feel sufficient to indemnify the injured worker or his or her estate for the loss incurred. As a result, the injured worker or his estate will attempt a tort action and then try to collect that judgment by means of a suit against the employer’s insurer.

Employers and employees make a bargain: the employer will not require proof of negligence if the employee is injured and the employee agrees that he or his estate will accept the statutory benefits provided by state law and give up the right to sue the employer for tort damages.

In Morales v. Zenith Ins. Co., — F.3d —-, 2015 WL 265445 (C.A.11 (Fla.) 1/22/15) the estate of an injured worker successfully sued an employer and sought to recover by means of a breach of contract claim filed by plaintiff-appellant Leticia Morales, on behalf of herself, the Estate of Santana Morales, Jr., and two minor children against Zenith Insurance Company (‘Zenith’).

FACTS
Santana Morales, Jr. was crushed to death by a palm tree while working as a landscaper for Lawns Nursery and Irrigation Designs, Inc. (‘Lawns’). At the time of Morales’s death, his employer Lawns maintained a ‘Workers’ Compensation and Employers Liability Insurance Policy’ with Zenith. The policy contained two types of coverage: (1) workers’ compensation insurance under Part I and (2) employer liability insurance under Part II. After Morales’s death, Zenith began paying workers’ compensation benefits to the Estate in accordance with its obligation under Part I of the policy.

Under Part II, Zenith was obligated: (1) to ‘pay all sums [Lawns] legally must pay as damages because of bodily injury to [its] employees, provided the bodily injury is covered by this Employers Liability Insurance’; and (2) to defend lawsuits for such damages. In relevant part, Part II contained an exclusion barring employer liability insurance coverage for ‘any obligation imposed by a workers compensation … law’ (the ‘workers’ compensation exclusion’).

On December 3, 1999, the Estate filed a wrongful death action against Lawns in Florida circuit court and obtained a default jury award to the Estate of $9.525 million in damages against Lawns. . . .

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Are Cars Safer Now? Unfortunately, Not So Much.

31 Friday Oct 2014

Posted by Celia C. Elwell, RP in Class Actions, Damages, Litigation, Motor Vehicle, Personal Injury, Product Liability, Torts

≈ Comments Off on Are Cars Safer Now? Unfortunately, Not So Much.

Tags

Air Bags, Auto Safety, Car Accident, Guardrails, Honda, Product Liability, Product Recall, Shrapnel, The Pop Tort.com, Toyota, Trinity Industries

The Latest Innovations in Auto Safety: Shrapnel and Harpoons, The Pop Tort.com

http://tinyurl.com/qglxdom

Since when did cars become war zones?

Of course they used to be. Back in the 1950s and 1960s when, during car crashes, ‘Drivers were impaled on rigid steering wheel columns.… Unpadded dashboards and the sharp edges and ashtrays gouged out eyes’ and cars ‘crumpled like a Japanese lantern’ in rollover accidents.  But all that changed when eventually, the auto industry decided that safety ‘sold’ and cars became safer.

But if we’ve learned one thing over the last few years, it’s that with every new safety innovation comes a new opportunity to cut corners.

First to today’s lead story in the New York Times, a tabloid-sounding article called ‘It Looked Like a Stabbing, but Takata Air Bag Was the Killer.’

Hien Tran lay dying in intensive care this month after a car accident, as detectives searched for clues about the apparent stab wounds in her neck.…

When Ms. Tran crashed her car, the air bag, instead of protecting her, appeared to have exploded and sent shrapnel flying into her neck, the Orange County sheriff’s office said. On Monday, in an unusual warning, federal safety regulators urged the owners of more than five million vehicles to ‘act immediately’ to get the air bags fixed.…

But the urgent request was bound to create confusion among owners. Honda said it did not have enough parts to fix the cars immediately. Toyota said it would in some cases disable the air bags, leaving a note not to ride in the front passenger seat.

They’re kidding, right? . . .

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Trailer Park Duck Is Repeat Offender With Dangerous Propensities.

02 Friday May 2014

Posted by Celia C. Elwell, RP in Animal Law, Damages, Litigation, Personal Injury, Punitive Damages, Torts

≈ Comments Off on Trailer Park Duck Is Repeat Offender With Dangerous Propensities.

Tags

Kevin Underhill, Lowering the Bar Blog, Negligence, Pain and Suffering, Personal Injury

Lawsuit Alleges Duck Attack, by Kevin Underhill, Lowering The Bar Blog

http://www.loweringthebar.net/2014/04/duck-attack.html

KATU in Portland reports that a woman who says she was attacked by a duck at a trailer park has sued the duck’s owner.

Plaintiff alleges in part that said duck was a repeat offender.

According to the complaint (which KATU was kind enough to post), Cynthia Ruddell alleges that she was just stepping out of her motor home ‘on or about May 7, 2012,’ when she was suddenly attacked by a local duck. . . .

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Keeping Medical Records Costs Down.

16 Wednesday Apr 2014

Posted by Celia C. Elwell, RP in HITECH Act, Litigation, Medical Records, Motor Vehicle, Negligence, Personal Injury, Product Liability, Torts, Wrongful Death

≈ Comments Off on Keeping Medical Records Costs Down.

Tags

Doctors, Health Care Provider, Hospitals, Litigation and Trial Blog, Max Kennerly, Medical Records, Patient's Rights

Defeating The Medical Records Paper Copy Scam, by Max Kennerly, Esq., Litigation and Trial Blog (with hat tip to Evan Schaeffer, The Trial Practice Tips Blog!)

http://tinyurl.com/mmpm4sy

Mr. Kennerly explains why obtaining medical records need not be expensive, and provides a sample letter with citation to legal authority. -CCE

Hardly a day goes by without a letter from my office either requesting medical records or paying for them. Some days, I sign more than a dozen. It’s perhaps the most common thread among all my cases: the vast majority of my clients have been physically injured in one way or another, and at a bare minimum, I need the records from their doctors and hospitals to show the diagnoses they have and the treatment they have received.

Every patient has a right to receive their medical records, and by law should be able to obtain those records promptly at no markup, with no padded fees, and no unnecessary charges from the hospital or the records company. But if there’s money to be made, someone will try to make it, and over the past decade a whole cottage industry has developed around the “business” of trying to cheat patients trying to get their medical records. Sometimes health care providers outsource this ‘business’ to third-party companies, and sometimes the hospitals and health systems play the con game themselves. . . .

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Court Splits on Negligent Infliction of Emotional Distress.

27 Monday Jan 2014

Posted by Celia C. Elwell, RP in Damages, Health Law, Litigation, Massachusetts Supreme Court, Medical Malpractice, Torts, Trial Tips and Techniques

≈ Comments Off on Court Splits on Negligent Infliction of Emotional Distress.

Tags

Bystander Liability, Damages, Emotional Distress, Impact Rule, Medical Malpractice, Neglience, Supreme Court of Pennsylvania, Toney v. Chester County Hospital, Tort, Zone of Impact Liability

Pennsylvania Supreme Court Splits On Extension of Tort of Negligent Infliction of Emotional Distress, by Daniel E. Cummins, TORT TALK Blog

http://tinyurl.com/mr4matq

The recent December 22, 2011 split decision by the Pennsylvania Supreme Court in the long-anticipated Opinion in the case of Toney v. Chester County Hospital, 2011 WL 6413948 (Pa. Dec. 22, 2011)(Baer, Todd, and McCaffery, JJ. join in support of affirmance)(Castille, Saylor, Eakin, JJ. join in support of reversal)(Orie Melvin, J. not participating) serves to fuel an argument in favor of the extension of the tort of negligent infliction of emotional distress (NIED).

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