Washington DC Injury Lawyer Blog

Plaintiff’s Failure to Strictly Comply with Notice Requirement Results in Dismissal of Case

May 16, 2016 | Lebowitz & Mzhen

Earlier this month, the Wisconsin Supreme Court issued an opinion dismissing a plaintiff’s case against a state employee, based on the plaintiff’s failure to strictly comply with the notice requirements outlined in the state’s statute governing cases against governments and government employees. In the case, Sorenson v. Batchelder, the issue was whether personal notice of the lawsuit provided to the state’s attorney general complied with the requirement that notice be provided through certified mail.

The Facts of the Case

In October 2010, a state employee rear-ended a vehicle that was pushed into the plaintiff’s vehicle, causing property damage and personal injury to the plaintiff. Three months later, the plaintiff served notice of the claim to the attorney general in the state’s capitol. After investigating the claim, the state government issued a check to the plaintiff in the amount of $241. Not satisfied with the compensation, the plaintiff then filed a negligence lawsuit against the state employee, seeking a fuller award.

Before the case reached trial, the defendant asked the court to dismiss the case because the plaintiff failed to strictly comply with the state’s notice requirement, which required that notice of a claim be delivered by certified mail. The lower courts determined that service was proper, but the state employee appealed to the highest state court.

Motions for Summary Judgment in Washington, D.C. Courts

May 9, 2016 | Lebowitz & Mzhen

In many personal injury and medical malpractice cases, the bulk of the litigation actually occurs before a case reaches the trial phase. Much of this pre-trial litigation occurs over discovery-related matters, when the parties essentially argue over which evidence will be considered at trial and which evidence should be kept out. After the evidentiary issues have been resolved, either party is free to move for summary judgment based on the evidence presented to the court thus far in the proceeding.

In Washington, D.C., the Rules of Civil Procedure explain that summary judgment is appropriate when “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Simply put, this means that the party filing for summary judgment is claiming that the other party cannot win the case, even if the court resolves all issues in their favor. The credibility of a witness or document is not at issue in a summary judgment proceeding.

Of course, if the evidence does present an issue of material fact, the moving party cannot legally be entitled to summary judgment, since that issue must be resolved by a fact-finder (either by a judge or jury) at a trial. A recent medical malpractice case out of Indiana illustrates the point well.

Plaintiff’s Medical Malpractice Damages Limited by State Statute

May 2, 2016 | Lebowitz & Mzhen

Earlier this month, an appellate court in Missouri issued a written opinion illustrating how a state’s statute limiting non-economic damages in medical malpractice cases can act to significantly limit a plaintiff’s recovery amount. In the case, Dodson v. Ferrara, the plaintiffs were initially awarded approximately $1.8 million in economic damages and $9 million in non-economic damages after the loss of their loved one. However, due to the state’s cap on non-economic damages in medical malpractice cases, the court reduced the non-economic portion of the award from $9 million to just $350,000.

The Facts of the Case

Ms. Dodson went to the hospital complaining of shortness of breath. Upon arrival, she was initially diagnosed with bronchitis, and a stress echocardiogram was ordered. The results of that test indicated that there might be an abnormality with her heart, so the attending physician ordered a heart catheterization to further investigate.

The defendant, Dr. Ferrara, performed the catheterization. However, during the process, Ms. Dodson’s left main coronary artery was severed, cutting off blood flow to vital portions of her body. The doctor called for assistance. However, it was not until 30 minutes had passed that doctors arrived. They then unsuccessfully attempted to put a stent in the artery. From there, Ms. Dodson was transported to the operating room for emergency surgery. However, once there, the surgery to repair the damaged artery was unsuccessful, and she died as a result.

Government Admits to Liability in Car Accident Case, Damages Determined by Judge

April 22, 2016 | Lebowitz & Mzhen

Earlier this month, the Nebraska Supreme Court issued a written opinion in a case filed against a government that elucidates one issue of sovereign immunity that is not often seen in personal injury cases. In the case, Moreno v. City of Gering, the court only had to determine the amount of damages that was appropriate because the City of Gering admitted liability for the accident.

The Facts of the Case

The plaintiff, Moreno, was riding as a passenger on a county bus when it was struck by a van that was being operated by a volunteer from the city’s fire department. The impact from the collision resulted in Moreno being ejected from the bus, and she landed on the pavement nearby.

Moreno had suffered from back pain in the past, and according to her, the accident aggravated that pain. After her injury, Moreno consulted with a physician, who recommended that she receive surgery to help correct the aggravation of the pre-existing condition caused by the accident. She had the surgery performed.

Hot Air Balloon Operator Not Entitled to Immunity under Recreational Use Statute

April 15, 2016 | Lebowitz & Mzhen

Earlier this month, the state supreme court in Wisconsin issued an opinion holding that a hot air balloon operator was not entitled to immunity under the state’s recreational use statute. In the case, Roberts v. T.H.E. Insurance Co., the court determined that a hot air balloon operator is neither an owner nor an occupier of the land on which it operates, and it is therefore not entitled to immunity.

The Facts of the Case

Ms. Roberts was at a charity event hosted at a local gun club when she was injured while waiting in line to take a tethered hot air balloon ride. According to the court’s written opinion, the defendant hot air balloon operator was providing free rides to help support the charity event. People interested in taking a free ride would line up, and an employee of the hot air balloon company would hand out waivers of release for each person to sign. The wait to get up in a balloon was about 20-30 minutes.

As Ms. Roberts was waiting, a strong wind broke the balloon free of the tethers, and it came swinging into the line of those waiting to ride in the balloon. It struck Ms. Roberts, and she fell to the ground, sustaining injuries as a result. Afterwards, she filed a lawsuit against the defendant, the operator of the hot air balloon.

Court Determines Case Alleging Injury after Improperly Sterilized Surgical Instruments Was Properly Considered a Medical Malpractice Case

April 8, 2016 | Lebowitz & Mzhen

Earlier this month, the Supreme Court of Louisiana issued a written opinion in a case involving a man who developed a serious infection after having a routine back surgery performed at the defendant’s hospital. In the case, Dupuy v. NMC Operating Company, the court ultimately determined that the case was properly considered a medical malpractice case, and it was thus subject to the additional procedural hurdles applicable to all medical malpractice cases.

The Facts of the Case

After his surgery, the plaintiff filed a claim against the defendant hospital, alleging that the hospital failed to properly sterilize the tools used during the surgery. The plaintiff sought damages for medical expenses, pain and suffering, mental anguish, loss of earning capacity, disability, and loss of enjoyment of life, and for his wife’s loss of society, support, and companionship.

In response, the hospital explained that it was a qualified medical provider under the state’s medical malpractice statute, and therefore the plaintiff needed to comply with the statute. Since the plaintiff had not complied with the requirement to submit the case to a medical review panel, the defendant argued that the case was prematurely filed.

Court Holds City Employee Not Entitled to Immunity as a “Land Owner”

April 1, 2016 | Lebowitz & Mzhen

Earlier this month, one state’s highest court issued an opinion interpreting the state’s recreational use statute, determining that a city employee named in his individual capacity is not entitled to governmental immunity as a “land owner” for the land he was in charge of maintaining. In the case, Johnson v. Gibson, the court determined that the plaintiff’s lawsuit should be permitted to move forward against the allegedly negligent employee and his supervisor.

The Facts of the Case

The plaintiff was injured while jogging in a city-owned park when she stepped in a small hole that had been dug to repair a sprinkler. The hole was dug by one of the defendants named in the lawsuit, who was a city employee in charge of park maintenance. The lawsuit also named the employee’s supervisor.

At trial, the defendants asked the court to dismiss the case against them, based on the fact that they were entitled to government immunity as city employees. Generally speaking, governments and private land owners alike are immune from personal injury lawsuits that occur on their land, as long as the land is open for use to the public without a fee. However, in this case the court determined that the city employee was not a “land owner” who had opened his land up for use by the public.

Product Liability Appeal against Food Manufacturer Dismissed for Failure to Preserve Alleged Error

March 23, 2016 | Lebowitz & Mzhen

Earlier this month, a personal injury plaintiff’s appeal was thrown out for failing to object to the error he alleged occurred at trial. The court in Stults v. International Flavors held that the plaintiff’s failure to object to the curative jury instruction given by the trial judge in response to objectionable testimony by an expert prevented him from raising that issue on appeal. This case illustrates the importance of retaining an attentive and knowledgeable team of attorneys.

The Facts of the Case

This case arose after the plaintiff developed a lung disease. He claimed that he developed the disease because he consumed microwavable popcorn manufactured by the defendant every day for 20 years. He also submitted evidence that showed the chemical used to give the popcorn its buttery flavor can cause the very lung disease he was diagnosed with when people are exposed in high doses.

At trial, both plaintiff and defendant had expert witnesses testify to the cause of plaintiff’s lung disease. At some point in the trial, a defense expert made an improper comment on the evidence and the plaintiff objected. The court sustained the plaintiff’s objection and the jury was told to disregard the defense expert’s testimony on that issue. After the trial, the jury determined that the plaintiff did not prove his case.

Chronic Traumatic Encephalopathy Detected in College Athlete

March 16, 2016 | Lebowitz & Mzhen

Chronic Traumatic Encephalopathy (CTE) has been making headlines for the past year or so, as it was detected that this tragic degenerative brain disease has been affecting professional athletes. CTE has recently begun to be studied in-depth by many doctors and scientific researchers throughout the country. CTE is a progressive degenerative disease that generally affects individuals who have incurred a significant amount of trauma to their head. Although CTE has just recently been garnering national recognition as a serious disease, it has actually been detected in professional boxers as early as the 1920s. However, recent studies focusing on the brains of deceased football players revealed that these players’ brain structures were severely damaged and included a build-up of abnormal proteins.

Unfortunately, individuals experiencing this trauma often suffer significant and life-changing experiences. Some common symptoms that people report are depression, anxiety, aggression, memory and cognition problems, lack of impulse control, and impaired judgment. There have been tragic instances where athletes have committed suicide and it was later discovered that they were suffering with CTE.

The New York Times recently published an article focusing on a college football player who was discovered to be suffering from CTE. The football player was an offensive lineman for the University of North Carolina and was by all accounts a well-adjusted individual. However, after sustaining repeated injuries he ended up homeless, addicted to drugs and alcohol. His family noted that he often complained that he felt that he was different and that “something was wrong with his brain.” The young college athlete ended up riding his bike straight into oncoming traffic and was killed after being hit by a car. His mother argued that she is sure that his actions qualify as suicide.

Jury’s Verdict for Plaintiff in the Amount of Zero Dollars Upheld on Appeal

March 9, 2016 | Lebowitz & Mzhen

Earlier this month, a Nebraska appellate court issued a written opinion regarding an appeal filed by a personal injury plaintiff who was awarded a zero-dollar award after a jury trial. In the case, Lowman v. State Farm Mutual Auto Insurance Company, the court determined that, while a zero-dollar award normally requires clarification from the jury, in this case it was clear what the jury intended, so no clarification was necessary.

The Facts of the Case

Lowman was a passenger in a car being driven by her husband when the car was struck by an uninsured driver. The Lowmans’ uninsured motorist carrier was State Farm, so they filed a claim with the company. State Farm admitted that the uninsured driver was liable but disputed the issues of causation and damages. The case proceeded to trial on these two issues.

During the pendency of the trial, the Lowmans withdrew their claim for lost wages and admitted that all medical bills had been paid. Thus, the only claim remaining was that for her pain and suffering. At trial, Lowman’s attorney told the jury “If you think [Lowman] is exaggerating, there should be no verdict. If you think she’s a liar, a cheat and a fraud, there should be no verdict.”