Articles Posted in Wrongful Death

As the opioid epidemic has swept the country, some doctors and pharmaceutical companies are finding themselves on the defendant’s side of the table in personal injury and wrongful death suits related to abuse of these drugs. pills

Historically, there is some precedent to hold physicians liable for causing addiction by negligently prescribing certain controlled substances. In some cases, doctors have even been found criminally responsible for overdose deaths.

Now, the latest physicians to find themselves accused of wrongdoing are those associated with the National Football League. According to court records contained in a federal lawsuit filed by former players, NFL teams allegedly violated federal statutes regarding prescription drugs, disregarded guidance from the Drug Enforcement Administration on how to store, track and transport these drugs and plied players with highly addictive painkillers during the season. These records are under seal, but were reviewed by The Washington PostContinue reading

In any wrongful death lawsuit, it’s imperative that attorneys adhere to the strict procedural rules of the court. This means filings have to be timely. They have to contain the right information. They have to go to the correct individual or entity. They have to follow a certain order. Dropping the ball on any one of these could have a serious impact on the outcome of a case. truck

In a recent lawsuit before the Nebraska Supreme Court, this was illustrated when, after the judge granted summary judgment to one of three defendants in a fatal truck accident case, the plaintiff entered a joint stipulation to to dismiss the case without prejudice. Thereafter, the plaintiff filed a notice of appeal regarding the earlier summary judgment. However, the state supreme court held that the voluntary dismissal without prejudice didn’t create a final order upon which the plaintiff could base an appeal.

To find that the appellate court had jurisdiction to review the summary judgment in this instance would mean going against long-standing precedent, in which there has to be a final order from which to appeal. That is, the plaintiff can’t move to voluntarily dismiss a case without prejudice, consent to the entry of this order, and then afterward seek appellate review of an earlier pretrial order. The reason for that precedent is that the court wants to avoid piecemeal litigation and a review process that would be substantially weakened.

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Wrongful death actions allow family members to recover losses in the event a person dies as a result of negligence or criminal wrongdoing by a third party. Beginning in about the 1880s, courts in the U.S. began interpreting statutes to exclude the recovery of damages for the death of unborn children. That slowly began to change in the mid-1940s, with some courts reasoning that recovery was allowed if the injury occurred before birth, but the child was born alive and later died.woman

By 2011, there were 36 states that recognized, as a result of either case law or actual statute, a cause of action in a civil lawsuit for the death of an unborn child. Even so, not many courts have specifically broached the issue of whether a cause of action exists if an unborn child dies before his or her viability outside the womb. Courts in North Carolina and South Carolina (see Johnson v. Ruark Obstetrics, a 1990 North Carolina Supreme Court case, and Crosby v. Glasscock Trucking Co., a 2000 case decided by the South Carolina Supreme Court), along with New York, have specifically decided not to allow recovery for the wrongful death of non-viable fetuses. There are other courts, however, that have specifically recognized the right of plaintiffs to file wrongful death lawsuits for nonviable fetuses. Among those are Alabama, Utah, South Dakota, Oklahoma, and Missouri.

Recently, in Alabama, the state supreme court underscored its position on this point in the recent case of Stinnett v. Kennedy, even as it pertained to the alleged medical malpractice of a doctor.

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Every year, more than 400,000 people in America die from sudden cardiac arrest, better known as a heart attack. The key to surviving these attacks, according to medical experts, is a rapid initiation of a “chain of survival,” which includes CPR. Another important tool is an automated external defibrillator, or AED. It can be used by people who aren’t medically trained, and it’s believed to save 20,000 lives a year. It could save up to 50,000 lives if it became more broadly used. But do facilities have a duty to carry these machines?heart attack

The courts have been confronted with this question on more than one occasion, and the results have been varied. Often, it comes down to the type of facility and the duty owed to the person suffering the medical episode. The devices are found in airports, malls, casinos, churches, and schools, as well as in medical settings. There are advocates who say these devices should be required in all public buildings, transportation centers, and even in large apartment and office complexes. Some states have passed laws. South Carolina passed one in 2008, requiring the devices in schools, and North Carolina passed its own measure in 2009, which allows anyone to use the device and provides broad immunity from liability for volunteers who do so.

Still, these matters continue to be tested in the courts. Recently, the Tennessee Supreme Court in Wallis v. Brainerd Baptist Church was asked to consider whether the church could be liable for the wrongful death of a parishioner who died in an exercise class at a fitness center the church owned and operated. Specifically at issue was whether the church was negligent in its failure to use the AED that was on site and to comply with applicable statutes. The church then filed a third-party lawsuit against the company from which it purchased the AED, asserting that if the plaintiff obtained a judgment against the church, the seller should be the only party responsible to pay that judgment. The plaintiff filed a second complaint that named this seller as a defendant.

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A devastating fire in Oakland, California in a decrepit warehouse called the Ghost Ship has left families of 36 people in mourning and a whole community reeling. The incident highlights the imperative nature of fire safety codes, which have done much over the last several decades to improve the well-being of occupants in large, crowded structures, from theaters to apartment buildings. Some of the biggest unanswered questions at this point revolve around whether the building was up-to-date on fire codes and, if not, what was known or done by city fire officials to press for repairs. warehouse

Property owners and managers have a responsibility to make sure their sites are reasonably safe for those who are legally there. The degree of that duty varies depending on the victim’s purpose on the property. For example, paying customers are owed the highest duty of care, while those who are on site to further their own interests are owed a lesser duty. Even those who are trespassing are owed some protection, though exactly how much varies by state and other case-specific facts.

Here, city fire officials haven’t indicated how often code inspectors visited the site or whether it was ever flagged for violations or for the fact that it was (likely) being used for purposes other than what its zoning allowed. Although this was designated as a warehouse space, witnesses and investigators have indicated it was being used for a myriad of different purposes, including not just storage but art galleries and mini-residences. On the night of the fire, the warehouse was being used for an underground concert. It’s not clear who organized, promoted, or was responsible for that event.  Continue reading

No one throws a party with the intention of a guest being seriously injured or killed. But as we head into the holiday season, it’s important to consider the ways in which a social host can be liable for injuries to those in attendance. beers

The two most common types of liability in these situations will stem from one of two things:

  • Premises liability (a failure to maintain the property in a reasonably safe condition and exercise reasonable care to protect guests); or
  • Social host/dram shop liability (furnishing alcohol to minors or those who are already extremely intoxicated).

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Accidents that result in a serious injury or death are often the result of negligence, or even gross negligence, which is a complete disregard for the safety of others. However, poor outcomes in these cases are generally not, on their own, enough to prove negligence.sandbar

General negligence requires proof that the defendant owed a duty of care to the plaintiff, the defendant breached that duty, and the plaintiff suffered injuries as a result.

In the case of Elliott v. Carter, a boy in Virginia tragically drowned while on a Boy Scout camping trip. His parents sued the troop leader for gross negligence. However, as the Virginia Supreme Court recently decided, the leader’s efforts to save the boy – while ineffectual and inadequate – were enough to overcome the assertion of gross negligence. One justice dissented.

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The state supreme court in Washington has imposed more stringent time limits on certain wrongful death lawsuits. In a 5-4 ruling in the case of Deggs v. Asbestos Corp., the justices ruled a wrongful death lawsuit cannot move forward if the statute of limitations has already run on the decedent’s own cause of action by the time of his or her death. Asbestos Dust Hazard

The majority in this instance rejected the plaintiff’s assertion that the heirs’ cause of action for wrongful death can’t arise until after the decedent dies.

According to court records, the decedent filed a lawsuit in 1999 against nearly 40 defendants for negligence regarding injuries arising from exposure to asbestos. He settled with a number of those defendants, and some others were dismissed. He ultimately went to trial with the last defendant remaining and secured a judgment in excess of $1.5 million. He died nine years later at the age of 84.

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Three teenage sisters were in the car with their parents and 90-year-old grandmother on their way to a family reunion. Their oldest sister, in her 20s, had to work and couldn’t join them. In their Kia Sedona minivan, the family traveled along U.S. 67 in Texas. That’s when a man in a Pontiac Bonneville crossed the center line.

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Instantly, both parents and the grandmother were killed. The girls suffered serious physical injuries, although they did eventually recover. But the emotional scars will likely never heal, they say. Then came the questions. Specifically:  why didn’t the airbags in the van deploy? Numerous lawsuits have been filed due to faulty airbags, but that is not what is being alleged here.

The decedents had purchased the vehicle just a few weeks earlier, according to the Fort Worth Star-Telegram. As they would later learn, that very same vehicle had problems with the airbag. The plaintiffs now believe that the dealership that sold the vehicle may have failed to put in the fuse or reconnect the airbag sensors while troubleshooting a problem with the previous owner’s complaint. That previous owner had made numerous complaints about the airbag light over the three-year period in which she owned the car. Even in spite of these chronic airbag warning light problems, the dealership accepted the vehicle as a trade, later selling it to the decedents.

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Just weeks ago, the River Bluff High School community was left devastating when a 14-year-old football player died just before his 15th birthday after collapsing in the school locker room. He’d just spent two hours and 15 minutes training outside in oppressive heat. The teen, standing 6-foot-2, was a defensive tackle in reportedly great health. Although the sophomore made it through practice, he started to stumble near the end, according to The State. He collapsed in the locker room, where his coaches gave him CPR and used a defibrillator. He was rushed to a nearby hospital and pronounced dead. football

Although the autopsy results were inconclusive, some questioned whether proper safety protocol for outdoor practices were followed. At the least, the coroner opined that external environmental factors – namely heat and humidity – probably contributed to the stress caused by strenuous physical exertion. The school and coaches insist players are encouraged to let them know when they don’t feel well, to constantly drink water and sports drinks – both before and during practices – and to take rest breaks. Coaches, though, need to be mindful of the temperature, safety experts say, and take that into account when determining how hard to push their players.

On the day in question, school officials say coaches were in fact using a wet-bulb device. For those unfamiliar, it’s the same kind used by drill sergeants training U.S. Army recruits outdoors. The devices measure not just the temperature, but the humidity and the radiated heat from the surface and sun. These readings allow the sergeants – or in this case, coaches – to adjust the training schedule, making more allowances for water, shedding heavy equipment or clothing and more frequent rest breaks in the shade. When conditions are too severe, conditioning can be canceled.  Continue reading

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