Washington DC Injury Lawyer Blog

Washington DC Car Accident Lawsuit Alleges Direct Negligence and Respondeat Superior: Lewis-Shephard v. Burch, et al

November 9, 2012 | Lebowitz & Mzhen

A lawsuit filed last year alleges two types of liability in a Washington DC automobile accident. The plaintiff in Lewis-Shephard v. Burch, et al filed suit against two defendants: the driver of a vehicle that allegedly struck her when she was on foot, and the owner of said vehicle. The lawsuit alleges that the driver’s negligent operation of the automobile led directly to the accident and her injuries. It also alleges that the automobile owner is liable for the plaintiff’s damages because, under D.C. law, she made the driver her agent by entrusting the vehicle to him.

The accident occurred during the afternoon of September 19, 2008. According to her complaint, the plaintiff, Kathy Lewis-Shephard, was walking east through the crosswalk on 12th Street NW, at the intersection with I Street. The vehicle driven by the defendant, Phillip Burch, Jr., was allegedly traveling west on I Street and turned right to go north on 12th Street. The plaintiff alleges that Burch failed to yield the right of way to her, and his vehicle hit her.

Lewis-Shepard filed suit in the U.S. District Court for the District of Columbia in September 2011, asserting diversity jurisdiction between herself, a Maryland resident, and the two defendants, both New Jersey residents. She named Burch and the owner of the car Burch was allegedly driving, Agnes Dalley, as defendants.

Washington DC Court Reviews Venue and Personal Jurisdiction in a Case Alleging a Defective Medical Device: Marshall v. I-Flow, LLC

October 22, 2012 | Lebowitz & Mzhen

A medical device manufacturer moved for dismissal of a lawsuit, Marshall v. I-Flow, LLC, in a Washington DC court, arguing that the court lacked personal jurisdiction over it or, alternatively, that the venue was not proper. The plaintiff had undergone surgery in upstate New York and alleged injuries caused by the defendant’s device. The court found that it had personal jurisdiction and that venue was proper, but it exercised its authority to transfer the case to New York for purposes of convenience.

The plaintiff, Jennifer L. Marshall, had surgery on her shoulder in 2006 in Syracuse, New York. Marshall was and remains a resident of Ithaca. After the surgery, her doctor implanted a “pain pump” manufactured by the defendant, I-Flow, LLC, in her shoulder joint. The pump delivered a steady stream of painkillers directly to the joint. Marshall alleges that the pump caused extensive damage to the cartilage in the joint, eventually requiring further surgery in Rochester in 2011. As of the date of the court ruling in 2012, Marshall had received a recommendation for “total shoulder replacement.”
Marshall filed suit against I-Flow, a Delaware company based in California, in the U.S. District Court for the District of Columbia in 2012. The lawsuit asserted various causes of action for negligence, product liability, and failure to warn. I-Flow filed a motion asking the court to dismiss the case for lack of personal jurisdiction, or to transfer it to the Northern District of New York.

Washington DC Workers’ Compensation Act Applied in Intentional Tort Case: Fonseca v. Salminen

October 18, 2012 | Lebowitz & Mzhen

A federal district court in Washington DC ruled in Fonseca v. Salminen that the District of Columbia Workers’ Compensation Act (WCA) precludes a lawsuit arising from a workplace assault. While some intentional torts perpetrated by an employer against an employee are not subject to the WCA, the court found that the incident in question did not fall under any exception.

The plaintiff, Luis A. Fonseca, and the defendant, Eric Salminen, were both employees of Asbestos Specialists, Inc. (ASI), also named as a defendant. Salminen acted as Fonseca’s supervisor on an asbestos-removal job. Fonseca alleged that he was working at the job site on July 25, 2011, when Salminen suddenly hit him in the face and left eye. Salminen reportedly told responding law enforcement officers that he remembered speaking with Fonseca, but did not recall hitting him.

Fonseca filed suit against both Salminen and ASI in a District of Columbia court on July 17, 2012, asserting causes of action for assault, battery, and negligent supervision. He also sought punitive damages. Before Fonseca could obtain service on Salminen, ASI removed the case to the U.S. District Court for the District of Columbia on September 4, asserting diversity jurisdiction. It also filed a motion for summary judgment, purportedly on behalf of itself and Salminen, arguing that he WCA precluded Fonseca’s lawsuit.

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 Ranks Last in Annual Ranking of “Best Drivers;” Surrounding Areas Also Fare Poorly

October 5, 2012 | Lebowitz & Mzhen

Allstate Insurance Company released its eighth annual “Allstate America’s Best Drivers Report,” and Washington DC again ranked last among two hundred American cities. The survey examined its own data on accident claims to determine each city’s auto collision frequency. The cities with the lowest frequencies were deemed to have the “safest” drivers. Arlington and Alexandria, Virginia, along with Baltimore, also ranked very low on Allstate’s list. In general, smaller cities, such as the top-ranking Sioux Falls, South Dakota, have a lower incidence of car collisions, and Allstate discusses the factors that contribute to that trend.

According to Allstate, fatalities due to automobile crashes are currently at the lowest rate, nationwide, since 1949. Car accidents still account for about 32,000 deaths per year. To compile the “Best Drivers” report, Allstate reviewed actuarial data for the 200 largest U.S. cities for a two-year period, in this case 2009 and 2010, to estimate the likelihood of collisions for drivers in each city. The study calculated the average number of years a driver in a particular city may go without experiencing a collision, as well as the difference between a city’s likelihood of collisions and the national average. All of the data came from Allstate’s own claims data, so it may not present a truly accurate picture of national driver safety. Allstate claims that it provides roughly ten percent of all auto insurance policies in the country, and calls its report a “realistic snapshot” of the situation on American roads.

The top-ranking city in the study, Sioux Falls, South Dakota, has an average of 13.8 years between collisions for its drivers. Its likelihood of an accident is 27.6% below the national average. Drivers in the bottom-ranking city, Washington, DC, go an average of 4.7 years between accidents. The likelihood of an accident is 112.1% greater than, or more than double, the national average. Alexandria, Virginia has an average of 6.2 years between accidents and a collision likelihood 62.6% above the national average. For Arlington, the numbers are 6.5 years and 53.0%. Baltimore’s numbers are 5.3 years and 87.9%. These four cities in the greater DC area all ranked in the bottom ten in Allstate’s report.

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 Court Orders Arbitration Between Defendant and Third-Party Defendant in Premises Liability Lawsuit

September 20, 2012 | Lebowitz & Mzhen

A lawsuit arising from a slip-and-fall accident in a grocery store parking lot, Kindig v. Whole Foods Market Group, has taken an unusual journey from a Washington, DC Superior Court to a federal U.S. District Court. After the defendant grocery store company sued the parking lot manager as a third-party defendant, the court ordered the two into arbitration. The court then allowed the plaintiff’s case to proceed.

Marion Kindig allegedly slipped and fell in water in the parking lot of the Whole Foods Market (WFM) in the Georgetown neighborhood of Washington, DC on November 26, 2007. She landed on concrete and reportedly sustained serious lower-body injuries. She filed a premises liability lawsuit against WFM in the Superior Court of the District of Columbia. WFM removed the case to federal court based on diversity jurisdiction. It also filed a third-party complaint for indemnification and/or contribution against the company contracted to manage the parking lot, U.S.A. Parking, and its owner, Solomon Arega.

U.S.A. Parking and Arega filed a motion to dismiss. Arega argued that WFM had no legal basis for holding him individually liable for any obligations of the corporation he owned. The court found that WFM had not pleaded any allegations that would compel the court to disregard the corporate entity, such as allegations that Arega was using the U.S.A. Parking corporation as an “alter ego” or as a means to perpetrate a fraud. It therefore granted Arega’s motion and dismissed him as a third-party defendant.

Cars Collide with Washington DC-Area Fire Engines; Police Remind Drivers of State “Move-Over” Laws

September 13, 2012 | Lebowitz & Mzhen

The city of Greenbelt, Maryland has found itself with no working fire engines as the result of two accidents in recent weeks. One accident involved a driver who failed to yield the right of way and collided with a fire engine. The other accident occurred when two cars struck the city’s remaining engine while it was blocking part of the Capital Beltway to shield emergency workers. The county fire chief, in speaking about the accidents, reminded drivers in the Maryland portion of the Washington DC area of the state’s “move-over” law, which aims to protect emergency responders helping people after automobile accidents and other crises.

On the morning of September 1, 2012, one of the Greenbelt Volunteer Fire Department’s engines was hit by a civilian vehicle while responding to a residential fire in Berwyn Heights. According to a spokesperson for the Prince George’s County Fire/EMS Department, the civilian vehicle failed to yield the right of way to the fire engine. Two firefighters sustained minor injuries in the collision. The county described the damage to the fire engine as “significant” and said that it will remain out of service for some time.

Greenbelt’s only remaining fire engine was serving as a barrier for emergency workers, who were clearing a wreck on the inner Beltway in the early morning of September 8. Firefighters sometimes position fire engines across multiple lanes of traffic to protect emergency crews who must work on busy roadways on foot. In this case, the fire engine did its job well. At about 2:45 a.m., a 2005 Lexus passed multiple warning lights and crashed into the side and rear of the parked fire engine. Maryland State Police troopers arrested the Lexus driver for multiple traffic violations. While emergency crews were still clearing the Lexus from the scene, a second vehicle barely missed several firefighters and collided with the Lexus, causing even more damage to the fire engine. That driver reportedly fled the scene, but was stopped further down the road and now faces a similar number charges for traffic offenses. The county estimates that the damage to the fire engine will exceed $30,000.

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.

Washington DC Court of Appeals Affirms Summary Judgment in Favor of Hospital in Medical Malpractice Case, Based on Statute of Limitations

August 30, 2012 | Lebowitz & Mzhen

The District of Columbia Court of Appeals affirmed summary judgment in favor of the defendants in a medical malpractice lawsuit. The court based its decision in Atiba v. Washington Hospital Center, et al on a missed deadline under both DC’s statute of limitations and notice requirements for medical malpractice claims. The issue before the court concerned an alleged conflict between the deadline to file suit under the statute of limitations and the time period in which notice must be given.

The plaintiff, Kwaco Atiba, sought medical treatment from the defendants, Michelle Grant-Ervin, M.D. and Washington Hospital Center, between October 27 and November 2, 2006. Washington DC law requires a plaintiff to give “not less than” ninety days’ notice to a defendant before filing a medical malpractice suit. It also imposes a three-year statute of limitations for most personal injury claims, including medical malpractice. In the event that the required notice is given within the ninety-day period immediately prior to the running of the statute of limitations, the time to file suit is extended ninety days from the date the notice is served. Atiba served notice of the intended suit on the defendants on October 27, 2009, and filed suit on January 26, 2010. The filing date of the lawsuit was the ninety-first day after the date the notice was served.

The hospital moved for summary judgment, alleging that the plaintiff failed to file within the statute of limitations, and the trial court granted the motion. The trial court ruled that the ninety-first day after service of the required notice was “one day too late.” The plaintiff argued on appeal that the notice requirement and the statute of limitations conflicted, making it impossible to provide “not less than” ninety days’ notice and file suit within the ninety-day extended limitations period. The plaintiff interpreted the notice requirement as only permitting suit after ninety days had passed.