Personal Injury

Supreme Court Rules for Baseball Player in Sports Injury Case on Issue of Litigation Costs

June 28, 2012 | Lebowitz & Mzhen

A professional baseball player, Kouichi Taniguchi, brought an unusual claim to the U.S. Supreme Court. Taniguchi sued a hotel over an injury he sustained falling through a deck. The hotel won the case, and obtained a judgment against Taniguchi for “interpretation costs,” per a provision in federal law. Taniguchi fought this all the way to the Supreme Court, which ruled in his favor in May. The case demonstrates the complex nature of expenses in litigation, and how far some parties will go to get a non-prevailing party to pay, or how far a party will go not to have to pay. The amount in dispute was just over $5,000, which makes the case even more remarkable when one considers the cost of taking a case to trial, let alone to the Supreme Court.

Taniguchi is a professional baseball player from Japan. He reportedly played for Tokyo’s Yomiuri Giants, but left after only seven games due to an injured shoulder. He also played minor league ball in the United States for a time. In November 2006, he visited the Marianas Resort and Spa in Saipan. Saipan is an island in the Northern Marianas Islands, an unincorporated, organized territory of the United States in the Pacific Ocean. During a tour of the hotel, Taniguchi fell through a deck, sustaining injuries.

Washington DC Injury Prevention Ranks High in National Survey

June 14, 2012 | Lebowitz & Mzhen

A study of injury-related deaths conducted by a national healthcare advocacy group, the Trust for America’s Health (TFAH), ranks the fifty states and the District of Columbia based on ten “key indicators.” These key indicators relate to laws, regulations, and initiatives undertaken by state governments. According to TFAH, they represent the effectiveness of state efforts to prevent fatalities due to injuries.

Washington DC scored highly in the study, with seven of the ten key factors. In terms of total number of injury-related deaths per 100,000 population, the District of Columbia did not fare as well compared to many states, with a rate slightly above the national average. The study’s authors stress that they cannot say with certainty why any one state has a lower rate of injury-related fatalities than any other state, but their key factor analysis offers a good set of guidelines for assessing state efforts to promote injury prevention.

TFAH’s study, prepared with the assistance of the Robert Wood Johnson Foundation, a philanthropic organization that supports health care, examined statistics for injury-related deaths over the past twelve or more years. It drew a distinction between injury-related deaths and deaths from both communicable and noncommunicable disease, calling injury-related deaths a serious but largely hidden public health crisis. The study divided injuries into several categories based on the type and cause of the injury, including vehicular accidents, falls, blunt-force impacts, cutting or piercing wounds, burns, poisoning, drowning or suffocation, gunshot wounds, and “unclassified.” TFAH developed its list of key factors based largely on the cause of injury, such as accident or intentional violence.

The Death of a Young Baseball Player and the Lack of Statistics on Youth Sports Injuries

May 10, 2012 | Lebowitz & Mzhen

The tragic death of a 12 year-old Chicago-area boy in a baseball-related accident has brought attention to a lack of data tracking regarding sports injuries in children. Although researchers have extensively catalogued injuries in athletes at the high school level and up, no one is collecting information on injuries to younger athletes. Sports can be a cause of serious injuries in children, so having access to information and statistics could help not only parents, but equipment manufacturers assess risks and develop safer products.

A 12 year-old boy from Oswego, Illinois, Eric Lederman, died in April from an injury caused by a baseball hitting him in the neck. Lederman was playing catch with a teammate on the side of the field while warming up for a game on Thursday, April 12. The ball struck him in the neck, reportedly hitting his carotid artery. He immediately collapsed and was taken to the hospital. He was pronounced dead at the hospital just after 8:00 p.m. The cause of death was determined to be a cerebral hemorrhage caused by blunt-force trauma, and was declared an accident.

BP Settles Lawsuit Related to 2010 Oil Platform Explosion

March 15, 2012 | Lebowitz & Mzhen

BP, Transocean, and several other companies have settled lawsuits with some of the individuals injured in the April 2010 explosion in the Gulf of Mexico that killed eleven people and caused one of the worst oil spills in history. The companies have also settled some of the claims pending between the various businesses involved with the drilling operation. Still, the situation is a mess of competing claims and lawsuits that may take years to unravel, as injured plaintiffs seek to separate their claims from several thousand consolidated claims for damages.

The Deepwater Horizon drilling rig, owned by Transocean and operated by BP, was a deep water rig positioned in the Gulf about 48 miles south of the Louisiana coast. It had drilled the deepest oil well in history, at more than 35,000 feet, in late 2009, and at the time of the explosion was drilling in an area called Mississippi Canyon Block 252. The explosion occurred on April 20, 2010, when a blowout, typically the result of a failure in pressure control systems, killed eleven workers on the rig and created a fireball visible for miles. The rig sank, while the well, located over 4,000 feet underwater, continued gushing and caused the massive oil spill.

A crew of 126 people was on the rig at the time, including a visiting group of Transocean and BP executives. Nearly all the survivors suffered injury. The person with the worst injuries, according to Bloomberg, is Buddy Trahan, a Transocean executive who suffered twelve broken bones when the explosion threw him thirty feet through a wall and buried him under rubble. A crew member freed him from the wreckage and found that a door hinge had nearly pierced his carotid artery. Trahan and numerous other individuals sued BP and other companies for negligence. Businesses and individuals affected by the explosion, including fishermen and tour companies, also have claims pending. State and federal governments have claims against various companies for damages and regulatory infractions.

The injury and wrongful death lawsuits have been delayed by disputes between BP, Transocean, and other companies over liability for the explosion itself and various property damage claims. Transocean recovered for the total loss of the rig, but other companies lost equipment as well. BP has made claims against manufacturers whose equipment may have caused or contributed to the explosion. The court consolidated several thousand claims for property damages and other economic injuries with the personal injury claims in order to facilitate pretrial processes. Around twelve personal injury claims are still pending.

One worker injured in the explosion, Oleander Benton, settled her federal lawsuit against BP, Transocean, and others. Benton asked a U.S. district judge in New Orleans to dismiss the suit in February. She had sought $5.5 million in compensation for her injuries, but the exact details of the settlement have not been disclosed.

Families of Blackwater Contractors Killed in Fallujah Settle Lawsuit

February 10, 2012 | Lebowitz & Mzhen

Four American civilians employed by security contractor Blackwater were killed in Fallujah, Iraq in March 2004 after gunmen opened fire on their vehicles. When the vehicles stopped, a crowd of people converged, throwing rocks and setting the vehicles on fire. The four men were shot and killed and, in a scene that would haunt American headlines, their bodies were pulled from the burned vehicles and dragged through the city. Pictures shown on television depicted people mutilating the bodies and hanging two of them from a bridge over the Euphrates River. Media around the world showed these images. The U.S. launched an assault on the city in response to the incident, which occurred at the beginning of the second year of American involvement in Iraq.

The four men worked as guards for Blackwater, now known as Academi. Blackwater was contracted by the U.S. military to provide various security services for American forces. One of the men was a former Navy SEAL, and the other three were former Army Rangers. At the time of the attack, they were traveling in two Mitsubishi SUV’s escorting a convoy of trucks to an American base to pick up some kitchen equipment. They had reportedly bypassed a Marine checkpoint when they entered Fallujah.

In January 2005, about eight months after the attack, the families of the four men filed a lawsuit in U.S. federal court against Blackwater. The lawsuit accused Blackwater of violating its contractual obligations to the men by putting them in harm’s way without adequate armor or weapons. The SUV’s were not armored, and they did not have sufficient personnel to operate rear guns that might have offered protection from gunmen in the city.

Blackwater argued that it should have immunity from lawsuits under the principle of sovereign immunity. This principle typically applies to government entities and officials. Blackwater, being a private business, argued that the military’s widespread use of private contractors gave them the benefit of sovereign immunity. The company took this argument as far as the U.S. Supreme Court, who declined to hear the case. Then Blackwater invoked a mandatory arbitration clause in the men’s employment contracts.

A federal judge ordered the parties to arbitration in 2007, and they spent more than three years fighting over payment of arbitrators’ fees. The families filed an appeal of the judge’s order with the Fourth Circuit Court of Appeals, and the parties entered into a settlement agreement before the appeal could be heard. The terms of the settlement remain confidential.

Washington DC Dentist Warns of Dangers of Sports Injuries

December 14, 2011 | Lebowitz & Mzhen

A Washington, DC-area dentist recently warned about the importance of protecting children’s teeth and jaws from injury as they participate in fall and winter sports, noting the potential for serious damage and complications from fairly common sports injuries. The dentist, of course, recommends obtaining a custom-made mouth guard with the assistance of a dental professional. His advice demonstrates the importance of ensuring safe and reliable protection for children (and adults) who participate in sports, whether the protective device is store-bought or professionally-made.

Sporting goods stores and other retailers sell a variety of protective equipment, including mouth guards, pads, and braces. Almost any of these types of equipment are also available custom-made from medical professionals. The recent article focuses on mouth protection, but its advice applies to protection for the head, limbs, back, and more. Manufacturers of products offered for sale to the public have a duty to take reasonable steps to ensure that their products are fit for their advertised use.

Consumers, under the legal theory of products liability, may be able to recover damages from the manufacturer of a product if that product causes them injury in certain circumstances. A manufacturing defect could be any sort of flaw occurring during the production of a product that makes it unsafe. A design defect is a problem inherent in the product that would have occurred before the product was ever produced or assembled. A marketing defect refers to the advertising of a product for some improper use. Any of these defects could cause an injury to a consumer, and could entitle the consumer to compensation for injuries.

Medical professionals, by virtue of their education, training, and unique position of responsibility to their patients, have a very high duty of care. Producing customized protective equipment for athletes places them into a position of responsibility for the design, manufacture, and marketing of these products. They therefore bear some potential liability for customized equipment along with the actual manufacturers.

The Consumer Product Safety Commission (CPSC), an agency of the federal government, monitors the safety of consumer products, issuing recalls for products it deems sufficiently unsafe. It enlists the cooperation of the manufacturers themselves when possible, but it has the legal authority to order a recall when necessary. The CPSC maintains records of recalls it has ordered or requested, organized by market segment. It has issued multiple recalls for sports equipment, including safety equipment for both adults and children, such as:

– Football helmet chin straps due to “laceration hazard,” November 3, 2011
– Ski helmets due to “head injury hazard,” July 21, 2011
– Baseball and softball gloves due to “presence of mold,” July 6, 2011
– Bicycle helmets due to “head injury hazard,” May 31, 2011
– Lacrosse gloves due to “violation of lead paint standard,” July 26, 2010

Players Sue NFL and Helmet Manufacturer over Head Injuries

November 3, 2011 | Lebowitz & Mzhen

Football, as the saying goes, is a contact sport. It may therefore come as a surprise to learn that a number of professional football players have sued the National Football League and helmet manufacturer Riddell over concussions suffered during games. In all, 125 former players have filed suit in at least five separate complaints, alleging that the NFL failed to properly warn players of the risks of head injuries and to provide support for retired players. Concussions in sports, particularly professional football, have received heightened scrutiny recently in both the media and in Congress, with many statistics suggesting that the number of concussions has increased significantly.

A concussion is a common type of brain injury caused by an impact with the head making the brain collide with the inside of the skull. This can lead to both physical and cognitive symptoms, ranging from headache and dizziness to disorientation and attention deficits. A person who suffers from a concussion may not lose consciousness, and many concussions go undiagnosed because the injured person does not realize the injury’s severity. Multiple concussions over time can cause significant brain damage, including memory loss and dementia. The NFL began to pay serious attention to concussions in 2009, and in February 2011 it announced new guidelines to gauge whether an injured player should continue to play.

The lawsuits consist of a class action suit and three personal injury suits in California state court and a case in a federal court in Pennsylvania. The suits essentially allege that the NFL has a duty to inform players of all risks reasonably associated with their job duties and to support players injured in the course of their job duties. In this situation, the players’ “job duties” involve practicing for and playing football. Lawyers for the players say that they hope to use the lawsuits to improve safety standards for all players, to prevent future injuries, and to get compensation for the players’ injuries.

To prevail on their claim, the players would have to prove that the NFL had knowledge of risks inherent in the game not available to an ordinary prudent person, and that the players did not assume the risk of injury by agreeing to play the game. An argument in the players’ favor, perhaps, is that they did not have the ability to refuse to perform certain job functions, since these would occur in the middle of games and players are contractually obligated to play.

Social Media Technology Can Help Establish Liability in Accident Cases

September 15, 2011 | Lebowitz & Mzhen

A bike ride on the San Francisco peninsula during the 4th of July weekend turned disastrous for New York Times writer John Markoff when he crashed on a downhill at over 30 miles per hour. Paramedics took him to the hospital, where he found that he had a 20-minute gap in his memory surrounding the crash. He could not remember the circumstances of the crash at all, despite physical evidence such as road rash on his hands and a deep skid mark on his helmet.

Markoff relates the story of Ryan Sabga, a bike racer, who was hit by a car in Denver in 2010. The driver of the car claimed she did not think she had hit him, and police concluded that there was not enough evidence to issue a citation to the driver. Sabga was able to use data from the GPS device to establish where he was at the time of the accident, and to demonstrate exactly how the car hit him (including a spike in his heart rate at the moment of impact). Although police still did not want to pursue the case, this evidence was enough to get the driver’s insurance company to accept responsibility.

Markoff similarly used his GPS device to reconstruct his bike ride and figure out what had happened to him. Both Sabga and Markoff used a Garmin GPS device that recorded location, speed, and other information, and allowed the option of uploading data to a web service where it could be shared with other users.

Forbes columnist Kashmir Hill notes that an increasing number of people use devices like a Garmin GPS to record data about their daily lives and often share that information through social media. Widespread use of such technology is often known as “the Quantified Self” or “self-tracking.” While such recording and sharing can serve any number of useful purposes such as allowing support for fitness plans or tracking health conditions, it can also be useful for accident victims. This applies to accident victims who may use their own data, much like Markoff and Sabga, to determine what happened, or to those who may obtain data from another party to establish liability or challenge a conflicting description of an accident.

Social media information is the subject of a growing number of discovery requests in litigation. Courts, while often slow to adapt to new and quickly-changing technologies, are beginning to understand the importance and ubiquity of social media, and are allowing discovery of personal social media information that is relevant to the case at hand. Data collected by “self-tracking” technologies, particularly those shared on popular social media sites like Facebook and Twitter, are undoubtedly relevant in establishing the circumstances of an accident. This information can cut both ways. Information that could prove liability in a personal injury matter could also disprove a claimant’s account and clear a defendant of liability. Either way, this segment of social media technology, when used by people involved in accidents, is an invaluable fact-finding tool.

Washington DC Injury Lawsuit Against Sidwell Friends School Alleges Severe Emotional Distress

June 13, 2011 | Lebowitz & Mzhen

The father of a 5-year-old student at Sidwell Friends School has filed a $10 million Washington DC injury lawsuit against the school. Arthur G. Newmyer claims that the defendant was negligent for failing to properly supervise a staff psychologist that was counseling his daughter and who ended up having an affair with her mother. Newmyer claims that as a result of the affair becoming known, he and his daughter, who is a kindergartener at the school, suffered severe emotional distress. Newmyer and his wife are separated.

In his DC personal injury complaint, Newmyer says that the school board fired psychologist James F. “Jack” Huntington after he told them the latter was sending sexually explicit emails to his wife. Tara Newmyer says that she and Arthur Newmyer were separated by the time she and Huntington became involved.

Suing for Emotional Distress

CPSC Offers Tips to Prevent Washington DC Pool Drowning Accidents

May 4, 2011 | Lebowitz & Mzhen

With the swimming season fast approaching, the US Consumer Product Safety Commission is reminding parents and guardians to exercise caution so that tragic drowning accidents are avoided. Already, the CPSC says there have been 38 near-drowning and 37 drowning incidents in the US this year. The government agency, along with the Y and American Red Cross, are launching a Pool Safety campaign this year to reduce the amount of child drowning accidents in spas and swimming pools.

Considering that about 300 kids under the age of 5 drown annually and thousands of others are injured in near drowning accidents, employing the proper safety precautions will hopefully save lives. To help prevent Washington DC drowning accidents:
• Makes sure that there is a fence around the pool so that kids can’t get in when there isn’t an adult around
• Don’t allow children to swim unsupervised
• Make sure there is someone at the pool that knows how to perform CPR in the event of an emergency

A pool or spa owner can be held liable for Washington DC personal injury to a child if he/she did not make sure that the pool or hot tub is safe for swimmers. For example, if someone drowns at a public pool that should have (but didn’t) have a lifeguard on duty or because the wasn’t properly cleared of leaves and other debris so that it would be easy to spot someone in trouble at the bottom of the pool, the victim or his/her family may have grounds for a lawsuit.

Common causes of pool or spa drownings:
• No fence or pool cover
• Inadequate warning signs
• Lack of rescue equipment in the pool area
• Drain entrapment (Could be grounds for a DC products liability case)
• Inadequate pool maintenance
• No lifeguards
• Defective pool or spa equipment

Our Washington DC injury lawyers represent families throughout the DC area and Maryland.

Pool & Spa Safety Educational Video Transcript, Pool Safety.gov
75 Drownings and Near-Drownings in 15 Weeks, CPSC, April 21, 2011
Related Web Resources:
Unintentional Drownings, Centers for Disease Control and Prevention
Drowning Prevention Fact Sheet, Safe Kids USA

More Blog Posts:
Six-Year-Old Girl Dies in Washington DC Drowning Accident at Turkey Thicket Pool, Washington DC Injury Lawyer Blog, July 12, 2010
In Maryland, Accidental Drowning Of Anne Arundel County 5-Year Old Renews Calls For Greater Pool Safety, Maryland Accident Law Blog, October 13, 2006
Family of Baltimore County Woman that Drowned in Apartment Complex Pool Files $100 Million Wrongful Death Lawsuit, Maryland Accident Law Blog, August 15, 2008