Wrongful Death

Cloudy Pool Wrongful Death Lawsuit

September 12, 2013 | Lebowitz & Mzhen

It’s the type of situation all the more common during the summer months, but equally as terrifying no matter when it happens. The parents of an 8 year old boy who drowned over the summer in a private residential pool have filed a wrongful death suit against the pool’s owners.

According to the complaint, the young boy and his siblings were invited to swim in the pool where they were attending a baptism celebration with their parents on June 19.

The complaint further states that, “The defendants’ pool was extremely hazy or cloudy due to a chemical” that the homeowners had added to the water, and “As a result, most of the pool, including the bottom area, was not visible to persons looking into the pool.”

Family Files Wrongful Death Suit Against College in Football Player Death Case

August 19, 2013 | Lebowitz & Mzhen

The parents of a Frostburg State University football player filed a lawsuit against the school, claiming that their son died after a second concussion he sustained as a result of what the parents allege were “gladiatorial” high-speed drills, which caused players to suffer repeated blows to the head.

The wrongful death lawsuit alleges that the 22 year old player returned to the field, despite the fact that his forehead was bleeding, for four consecutive practice sessions during August of 2011. Even though he was visibly bleeding, the suit alleges, he was never checked to determine whether his helmet was fitted properly, nor checked for a concussion.

The lawsuit further states that one of the young man’s teammates described the manner in which the practices were run during that period as “out of control.” Additionally, the coaching staff reportedly treated all injuries, whether ankle sprains or potential brain injuries, the same and expected the students to play through them.

No Criminal Charges for Death in Maryland Late Term Abortion Case

May 28, 2013 | Lebowitz & Mzhen

Authorities released their determination regarding the case of a 29 year old New York teacher who was admitted to the hospital after reportedly complaining of chest pain and other discomfort and died just hours later, apparently having suffered massive internal bleeding into her abdominal cavity.

The investigation revealed that some four days before she died, the woman had visited a Germantown, Md., abortion clinic to begin the several day long procedure to terminate her 33 week pregnancy, which she reportedly sought after discovering her unborn child had developed fetal abnormalities.

According to other sources, following an investigation into the matter, Maryland authorities have decided to not bring any criminal charges against the doctor who performed the procedure, and further found “no deficiencies” in the woman’s care at the abortion facility.

Judge Finds National Park Service Negligent in Boy’s Fall Death

March 27, 2013 | Lebowitz & Mzhen

A Sacramento federal magistrate judge handed down his decision last week regarding a summer vacation turned tragedy. A 9-year-old boy was visiting the Lassen Volcanic National Park with his family in July of 2009, when the boy and his sister sat on a retaining wall in order to take some pictures. The wall quickly gave way, throwing both of the children down the mountainside, killing the boy and injuring his sister. The family filed a wrongful death and personal injury lawsuit against the park for its negligence in failing to maintain the wall.

In his ruling, the judge held that negligence on behalf of National Park Service officials caused the boy’s death when the wall gave way. He also reprimanded the park’s superintendent for making several fraudulent statements regarding evidence and interview attempts, and the alleged destruction of critical evidence relevant to the case.

The findings relate to destruction of documents during the discovery (evidence collection) portion of the case, including the shredding of an internal memorandum regarding the potential instability of the wall and other relevant documents. There were also damning statements from a governmental architect, and further evidence that the park superintendent lied about attempts to be interviewed by the park agency’s inspector. The wall was also torn down within weeks following the incident, further disallowing the inspector the opportunity to inspect the wall.

Dialysis Drug Subject of Wrongful Death Suits Countrywide

March 20, 2013 | Lebowitz & Mzhen

A Texas woman has filed a wrongful death suit against the manufacturers of the drug GranuFlo, alleging that the manufacturer is responsible for the death of her husband.

The drug at the center of the lawsuit, called GranuFlo, is used for treatment in dialysis patients who are suffering from kidney failure. The integral chemical component of the drug acts by removing blood impurities which the kidneys can no longer remove on their own.

Her lawsuit claims that Fresenius USA is responsible for the death of her husband, who died two days after he received treatment with the drug. The suit alleges that the plaintiff’s husband began to feel ill immediately following a dialysis treatment which involved the administration of GranuFlo. Two days after the treatment, the plaintiff called an ambulance for her husband who was complaining of pain in his chest and head. However, her husband had died of a heart attack before any help arrived. Her suit alleges that in addition to being responsible for her husband’s death, the manufacturer may have known of the risks of the product as early as 2003, yet no action was taken. The woman seeks damages for her husband’s pain and suffering as well as for the loss of her spouse.

March 29, 2012 was the date the FDA instituted the initial class 1 recall for Naturalyte and Granuflo Acid Concentrate. A Class 1 recall is the highest priority recall issued by the FDA, and is only issued in cases where there is a significant chance that a drug can cause serious injury or death. These products have been linked to elevated levels of bicarbonate in treated blood, which can potentially cause stroke, heart attack and death. Almost immediately, lawsuits began to be filed nationwide.

Energy Drink Maker Faces Lawsuits and Congressional Scrutiny After Multiple Reports of Deaths

December 7, 2012 | Lebowitz & Mzhen

Living Essentials, LLC, the Michigan-based manufacturer of the drink marketed as 5-Hour Energy, currently faces lawsuits around the country blaming the drink’s high caffeine content for multiple injuries and deaths, or alleging that the company makes false statements regarding the drink’s contents or benefits. A nonprofit health organization recently accused the company of misquoting its executive director in an advertisement. The U.S. Food and Drug Administration (FDA) has named the drink in multiple reports based on consumer complaints, including thirteen fatalities, and two U.S. senators have requested to meet with the FDA regarding concerns about regulation of the beverage.

At least ninety-two FDA reports have mentioned 5-Hour Energy since 2004. Thirty-three of those reports involved hospitalizations, and thirteen involved deaths. Common caffeine-containing beverages like Coca-Cola have strict limits on their caffeine content set by the FDA, but “energy drinks” like 5-Hour Energy, Monster, and others are often labeled as “dietary supplements” rather than beverages. While a 12-ounce beverage like Coca-Cola might have an upper limit of 71 milligrams of caffeine, or roughly six milligrams per ounce, a dietary supplement does not face the same regulations. A single serving of 5-Hour Energy, sold in sixty milliliter (approx. two ounce) containers, may contain 207 milligrams of caffeine. The FDA has announced its intention to review its policies on labeling and warnings for drinks with such high caffeine content.

The company has also dealt with complaints from a non-profit science group, the Center for Science in the Public Interest (CSPI). The group accused Living Essentials of running a misleading advertisement online, which implies that the group’s executive director endorses the product’s safety. According to the CSPI, the advertisement includes a quote from the director saying that a fatal overdose is unlikely based solely on caffeine. The company suspended the advertisement in response to the group’s criticism.

Several lawsuits pending around the country are challenging the safety of 5-Hour Energy, either as a result of injury or death, or based on allegedly false or misleading statements regarding the beverage’s ingredients. A Tennessee lawsuit, Hassell v. Innovation Ventures, et al, alleges that consumption of 5-Hour Energy caused the death of the plaintiff’s husband by cardiac arrhythmia in 2009. The plaintiff asserted causes of action for negligence and products liability, but nonsuited the case without prejudice in November 2011.

Statutes Allowing Fetal Wrongful Death Lawsuits Vary from State to State: Baumann et al v. Slezak et al

November 23, 2012 | Lebowitz & Mzhen

A wrongful death lawsuit arising from a Nebraska automobile accident invokes that state’s fetal death statute, reportedly for the first time since the Nebraska Legislature enacted it in 2003. The plaintiffs in Baumann v. Slezak, et al are asserting multiple causes of action in relation to the deaths of a Maryland couple, their two children, and their unborn child. The unborn child was a viable fetus at the time, which is an important distinction in some jurisdictions. The right to recover damages for the wrongful death of a person requires that the law recognize the decedent as a “person.” Nebraska’s statute explicitly applies to unborn children “at any stage of gestation,” while the District of Columbia’s statute does not mention unborn children or fetuses. Case law from DC, however has established that the law may apply to a “viable” fetus.

The accident in Nebraska occurred during the early morning of September 9, 2012. A family of four, consisting of a father, a pregnant mother, and two children, were driving through western Nebraska on their way to California. Each parent was driving a separate vehicle, and the children were riding with the mother. Traffic on westbound Interstate 80 was at a standstill because of an accident between two semi-trailers about one mile further up the road. While the family’s two cars were stopped, one behind the other, at the rear of the line of traffic, another semi-trailer approached from behind at about seventy-five miles per hour. The driver allegedly did not slow before colliding with the father’s car. This caused his car to collide with the mother’s car, propelling it under the trailer in front of her, and killing the four family members and the unborn child.

The legal representatives of the two parents filed suit on behalf of the parents, the children, and the unborn child, asserting causes of action for negligence and violations of federal trucking safety regulations. They sued the truck driver, his employer, and the driver and truck companies allegedly responsible for the accident that caused the traffic jam, asserting causes of action for negligence and violations of federal safety regulations.

Supreme Court Rules that Federal Law Preempts State Wrongful Death Lawsuit Over Asbestos Exposure: Kurns v. Railroad Friction Products Corp.

October 12, 2012 | Lebowitz & Mzhen

The U.S. Supreme Court recently considered an appeal of a products liability and wrongful death claim arising from alleged asbestos exposure in railroad equipment. The decedent worked in locomotive repair for decades and died of cancer years later. The defendants argued that the federal Locomotive Inspection Act (LIA) preempted the plaintiffs’ state tort claims, and the trial court and appellate court agreed. The Supreme Court affirmed the lower courts in a 6-3 decision in Kurns v. Railroad Friction Products Corp., 132 S. Ct. 1261 (2012).

The decedent, George Corson, worked for the Chicago, Milwaukee, St. Paul & Pacific Railroad for about twenty-seven years, from 1947 to 1974. His job as a welder and machinist involved locomotive brakeshoe installation and insulation stripping on locomotive boilers. He allegedly came into contact with asbestos during this time. He was diagnosed with malignant mesothelioma in 2005.

Corson and his wife sued fifty-nine defendants, including Railroad Friction Products Corporation (RFPC) and Viad Corp in a Pennsylvania state court in 2007. The lawsuit alleged that RFCP distributed brakeshoes, that Viad was the successor-in-interest to a manufacturer and distributor of locomotives and locomotive engine parts, and that all the products in question contained asbestos. The plaintiffs asserted products liability causes of action for defective design and failure to warn. When Corson died, his executor, Gloria Kurns, joined as a plaintiff with Corson’s wife.

Washington DC District Court Enters Judgments Against Iran in Two Cases Brought Under the Foreign Sovereign Immunity Act

September 28, 2012 | Lebowitz & Mzhen

The U.S. District Court for the District of Columbia recently entered judgments in several lawsuits against the Islamic Republic of Iran and the Iranian Ministry of Information and Security (MOIS). The plaintiffs were victims of the 1983 U.S. Marine barracks bombing in Beirut, Lebanon, in which the government of Iran and the MOIS were implicated. The lawsuits were brought under an amendment to the Foreign Sovereign Immunity Act (FSIA), which provides a federal cause of action for injuries against a foreign state designated as a sponsor of terrorism. The court awarded damages to the plaintiffs in both cases, although the question of recovering damages from the defendants remains highly unsettled.

FSIA, which first became law in 1976, gives federal district courts original jurisdiction over most civil claims against foreign states, but applies many of the principles of sovereign immunity. This is the legal doctrine that a government entity may not be sued unless it has waived immunity. It applies in lawsuits against city, county, or state governments, where a claimant must follow steps set out by statute before filing suit. People claiming damages for injuries caused by foreign states have generally been barred from relief by this doctrine. Federal courts applied FSIA in blocking claims for damages caused by the September 11 terror attacks in In re Terrorist Attacks on September 11, 2001, 538 F.3d 71 (2nd Cir. 2008), and a 2003 terror attack in Riyadh in Heroth v. Kingdom of Saudi Arabia, 565 F.Supp.2d 59 (D.D.C. 2008).

Congress added an exception to FSIA in 1996, with amendments added in 2008, for foreign states designated as “state sponsors of terrorism” either at the time of the alleged injury or as a result of the alleged injury. The foreign state must also remain designated as such at the time a claimant files suit. The exception applies to claims for personal injuries or wrongful death resulting from acts such as hostage taking, torture, sabotage, or the support of such acts by the foreign state.

Federal Circuit Court of Appeals Affirms Dismissal of Claim for Injury Benefits Under Vaccine Act

September 4, 2012 | Lebowitz & Mzhen

The estate of a woman who died from vaccine-related complications may recover death benefits, but not injury benefits, under the federal Vaccine Act, according to a ruling by the Federal Circuit Court of Appeals in Griglock v. Secretary of Health and Human Services. A Special Master found that the woman’s death was attributable to an influenza vaccination, allowing the death benefits claim to proceed, but also found that the statute of limitations for an injury benefits claim had expired. The Court of Federal Claims and the Federal Circuit affirmed that decision.

The decedent, Sophie Griglock, received a vaccination for influenza on October 6, 2005, when she was seventy years old. In late November 2005, a neurologist diagnosed her with Guillian-Barré Syndrome (GBS), a disorder in which the immune system attacks the nervous system. It can cause paralysis and death due to an inability to breathe. Griglock died of GBS-related respiratory failure on May 11, 2007.

Griglock’s estate filed a petition for compensation with the Secretary of Health and Human Services (HHS) in April 2009. HHS did not contest the question of whether the vaccine caused Griglock’s GBS. It recommended death benefits of $250,000, the maximum amount allowed by the Vaccine Act. The estate also requested injury benefits under the Vaccine Act to compensate for Griglock’s medical expenses. The case went before a Special Master, who determined that the vaccine caused Griglock’s GBS and her GBS-related death. While this gave the estate standing to claim injury benefits, the Special Master determined that the claim, filed in 2009, was barred by the statute of limitations.