Washington DC Injury Lawyer Blog

NFL Announces Tentative $765 Million Settlement in Concussion Class Action

September 5, 2013 | Lebowitz & Mzhen

The NFL announced late last month that it has reached a tentative $765 million settlement regarding a class action lawsuit stemming from concussion-related brain injuries. The case survived a motion to dismiss earlier this spring.

In sum, more than 4,500 former athletes joined as plaintiffs in the suit, some suffering from dementia, depression or Alzheimer’s which they attribute to hits to the head, accusing the league of concealing the true dangers of concussions, rushing injured players back onto the field, and all the while profiting from the glorification of the types of intense hits that caused extensive brain damage and related complications.

The lead plaintiffs’ lawyer said in a statement that if the terms of the settlement are finalized, individual awards will be capped at $5 million for men with Alzheimer’s disease; $4 million for those diagnosed after death with a brain condition called chronic traumatic encephalopathy; and $3 million for players with dementia. Because the lawsuit was a class action, any and all of the 18,000 former NFL players would be eligible, as members of the “class.” Additionally, as a class action, a judge must first approve the settlement, in order to ensure that it is fair for all of the class members, particularly those who are not named, or main plaintiffs to the litigation. Part of the funds will be used to pay for future medical exams, and underwrite related research.

Maryland Public Schools to Conduct Baseline Assessments Aimed at Concussion Identification

August 28, 2013 | Lebowitz & Mzhen

Likely in reaction to the increased awareness surrounding the dangers of concussions and head injuries, for the first time, Maryland public schools will begin to conduct cognitive testing for all high school athletes in Montgomery County before the students can practice or play on any sports team.

The computer based tests, called ImPACT, measure memory of both written words and patterns, in addition to other data, to create a baseline assessment. Then, if a player suffers a concussion during the season, a follow-up test can be given for comparison three to seven days after the injury. The retests are given once the injured individual is recovering, in order to ensure that they are capable of returning to play.

Additionally, some local football coaches are training athletes in the USA Football’s “Heads Up” program, which teaches tackling techniques that protect against head and neck injuries. Furthermore, players will only engage in hitting during two practices a week, aside from game day, in order to decrease the potential number of sub-concussive hits.

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.

West Virginia High Court Dismisses Additional Defendants in Personal Injury Lawsuit

August 12, 2013 | Lebowitz & Mzhen

The West Virginia Supreme Court recently issued a unanimous ruling prohibiting a plaintiff in a personal injury lawsuit from adding additional defendants to a lawsuit after the statute of limitations had expired. The opinion affirmed the dismissal of the suit by the relevant circuit court from June.

The lawsuit, filed against Town of Wayne, was brought on behalf of Deborah Wallace who alleged that she was injured in May 2007 after she stepped on a water meter cover in the parking lot of the Wayne Post Office and the cover flipped over. Wallace and husband Dale filed a complaint in 2009 against the Town of Wayne for negligence, failure to warn and loss of consortium.

Following the complaint, Wayne filed a complaint against the construction company, alleging that it negligently repaved the parking lot. The construction company then filed a complaint against a paving company, claiming it was at least partially responsible for any potential liability to the city, since the paving company had contracted with the construction company.

Volunteer Firefighter Not Entitled to Immunity from Lawsuit

August 5, 2013 | Lebowitz & Mzhen

The Wisconsin Supreme Court issued a ruling last month in the case of a volunteer firefighter who was involved in a car accident in the course of responding to an emergency call.

The man was reportedly driving on his way to answer an emergency call from a local fire department, when he neglected to stop at a red light, which resulted in his vehicle colliding into another vehicle carrying two individuals. Those two individuals then filed suit, claiming that the driver was negligent in causing their injuries.

The trial court granted summary judgment on the grounds that the driver was protected from suit by public officer immunity, and that none of the potential exceptions applied in the case. The state’s Court of Appeals affirmed the circuit court’s ruling.

Responding to the arguments of the plaintiffs, the Wisconsin Supreme Court found that the driver was in fact acting within the scope of his employment when the collision occurred. They discounted the argument that responding to the call was no different than any other individual commuting to work. In the case of firefighters, once the individual is responding to the call, and thus driving their vehicle, they are subject to the orders and commands of their superiors.

Class Action Claims DC Police Officers Target Young Black Motorcyclists

July 30, 2013 | Lebowitz & Mzhen

A recently filed class action lawsuit accuses District of Columbia police officers of intentionally running their squad cars into black motorcyclists, in order to then confiscate the bikes and sell them.

The main plaintiff in the case claims that the Metropolitan Police Department officers intentionally target mostly young, male, African American motorcyclists in poorer areas of the city, without regard for their lives, safety, or constitutional rights.

The suit further claims that the District of Columbia and MPD supervisors not only condone but also tacitly encourage this practice, in order to make money off of the bikes.

The class seeks to represent all young black motorcyclists riding small motorbikes or all terrain vehicles of 250 cubic centimeters or less. They estimate the class size to be in the hundreds, based upon the declarations submitted by victims.

The complaint alleges that riders abandon their bikes after being hit by MPD cruisers, in an attempt to flee. The bikes are then confiscated, and allegedly sold to create a revenue stream. The class claims the officers have caused bodily injuries, pain and suffering, disability, emotional distress and damage to their bikes, among other things. They seek class certification and $100 million in compensatory and punitive damages for alleged constitutional violations, negligence, assault, battery and intentional infliction of emotional distress.

Class Action Status Sought in NCAA Concussion Lawsuit

July 22, 2013 | Lebowitz & Mzhen

The long lasting damage and seriousness of concussions have become major concerns in sports in recent years. The NFL is currently involved in a multi-million dollar lawsuit involving more than 4,000 former players related to head injuries and related complications.

The NCAA is now facing a similar lawsuit, and the plaintiffs involved in the case are seeking class action status. The attorneys handling the case are seeking to expand the suit to potentially include thousands of plaintiffs nationwide. The suit was initially filed in 2011 on behalf of a former Eastern Illinois Football player and several other former athletes.Attached to the class-action request itself is a report by a leading authority on concussions, citing an internal NCAA survey from 2010, which found that nearly half of the college trainers who responded to the survey indicated they put athletes showing signs of a concussion back into the same game. The expert stated that it is well established that athletes must never be returned to play on the same day after having suffered a concussion diagnosis.

FDA Sends Letter to Makers of da Vinci Surgical Robot Regarding Safety Concerns

July 11, 2013 | Lebowitz & Mzhen

According to reports, The Food and Drug Administration (FDA) has sent a warning letter to Intuitive Surgical, Inc., the makers of the da Vinci surgical robot, notifying the company that it violated federal procedures by circumventing the requirement of notifying the FDA prior to notifying its customers regarding problems with its product.

The FDA’s “483” letter, which has not yet been published on the agency’s website, reportedly states that during an almost two year period, the company received some 134 complaints and 83 medical device reports related to “tip cover issues” with the product.

Following these complaints, the company then allegedly sent its consumers a letter with suggestions and recommendations regarding the usage of its equipment. The letter was reportedly in response to complaints regarding arcing that was occurring in the case of damaged tip covers, which resulted in patient injury. Arcing occurs when electrical currents transfer inside of someone during the course of a surgery, somewhat like an electrical shock. The company failed to notify FDA prior to sending out the communication to its customers.

Supreme Court Rules Against Patients in Generic Drug Maker Liability Case

July 2, 2013 | Lebowitz & Mzhen

The U.S. Supreme Court ruled recently regarding the liability of a generic drugmaker whose pain reliever left a woman severely disabled.

The lawsuit itself, Mutual Pharmaceutical Co., Inc. v. Bartlett, centered on the fact that the label for the anti-inflammatory did not carry a warning regarding the potential rare side effect of developing Stevens-Johnson syndrome (SJS), which is precisely what happened to the plaintiff in the case. It also accused the maker of producing a dangerous product. The plaintiff’s reaction was so severe, that she developed toxic epidermal necrolysis, spent 10 weeks in the hospital, suffered two incidents of septic shock, suffered burns to 60% of her body, endured a medically induced coma, and required 12 separate eye surgeries.

At the time the plaintiff took the medication, the label did not have a warning regarding the risk of SJS, although the package insert did. Following the ordeal, the FDA recommended that all drugs within this class (non-steroidal anti-inflammatory or NSAID) carry a warning regarding toxic epidermal necrolysis.

The plaintiff in the case sued the drug manufacter, claiming that the drug was defectively designed. A lower court awared her $21 million in damages, including amounts for pain and suffering, loss of enjoyment of life, and past and future medical expenses. The drugmaker appealed, alleging that federal law preempts lawsuits for the defective design of drugs against generic drugmakers; the argument being that the original manufacturer designed and sought approval from the FDA for the chemical makeup of the drug. There were also allegations regarding the label, which the drugmaker challenged on the same grounds.

The Reality of Cruise Line Lawsuits

June 28, 2013 | Lebowitz & Mzhen

Following the several recently publicized cases of cruise ships encountering trouble while at sea, there has been widespread speculation regarding passengers filing lawsuits.

The Carnival Triumph, for example spent several days stranded at sea without any air conditioning, functioning toilets, or hot food. Therefore, several of the Triumph’s passengers have begun to consider their legal options.

In response to the incident, Carnival offered the Triumph passengers a full refund, credit towards a future cruise, reimbursement for specific on board expenses, and an additional payment of $500 per passenger.

While many passengers found the offer to be insulting, considering the conditions that they had to endure, unfortunately due to the relevant laws they may not be entitled to much, if anything, more than what they have already been offered.

The primary obstacle in cruiseship lawsuits is the incredibly limiting terms on the cruise tickets themselves, which form a legally binding contract. Many individuals on vacation do not realize that the ticket in their hand is also densely packed with disfavorable contract terms, and may unknowingly waive many of their rights.

Generally speaking, cruise ship lawsuits are governed by maritime law. This means that cruiseliners may not be held liable for damages related to emotional distress or mental suffering, unless caused by the cruise line’s negligence, and resulting in an actual physical injury. A simplified example of emotional distress leading to physical injury might be if an individual begins vomiting uncontrollably, or has some other directly related physical affliction.

Furthermore, like any other binding corporate contract, sometimes referred to as an adhesion contract (i.e., take it or leave it, in nature), there is a venue selection clause. In the case of the Carnival tickets, all lawsuits must be filed within the federal court located in Miami, Florida. Therefore, individuals wishing to sue would have to hire Florida attorneys, and may face costs flying to the venue for relevant court proceedings, such as depositions. Additionally, cruise ship tickets are reportedly infamous for including class action waivers within their terms, creating further difficulty for passengers wishing to band together.