Articles Posted in Personal Injury

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The Eleventh Circuit affirmed the district court's dismissal of plaintiff's complaint for failure to state a claim. Plaintiff's claim arose out of an agreement she entered into with a non-party FBI confidential informant. Plaintiff filed suit under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b)(1), alleging that the United States caused her losses under a lease arrangement with the informant through negligence, deliberate indifference, and conversion. The court held that none of plaintiff's claims stated a cause of action under Georgia law and agreed that the district court correctly dismissed all three counts of the second amendment. In this case, because plaintiff's negligence claim would not support a cause of action against a private person under Georgia law, it likewise does not support an FTCA claim against the United States; plaintiff alleged no authority supporting the existence of a Georgia cause of action for deliberate indifference; and, because plaintiff did not allege that the United States ever had actual possession of the vehicles, the district court correctly dismissed the conversion claim. View "Smith v. United States" on Justia Law

Posted in: Personal Injury

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BSC appealed from various orders and a final judgment in favor of plaintiff, who alleged substantial injuries caused by the Pinnacle Pelvic Floor Repair Kit that was manufactured and sold by BSC. The Eleventh Circuit affirmed the district court's judgment for plaintiff, holding that the district court acted well within its discretion in consolidating four lawsuits and BSC could not establish that it was prejudiced by the consolidation of the suits; the district court did not abuse its discretion when it excluded BSC's 510(k) review process evidence; the district court did not err by declining to overturn the jury's verdict where plaintiff provided sufficient evidence in her favor, so her claims were properly reserved for the jury; the district court did not err by denying judgment as a matter of law to BSC on plaintiff's failure to warn claims; and the district court did not err by denying judgment as a matter of law to BSC on its argument that plaintiff's claims were time barred. View "Eghnayem v. Boston Scientific Corp." on Justia Law

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Plaintiff and his wife filed suit against TVA, alleging negligence involving a tragic accident on the Tennessee River where he was seriously injured when his boat passed through an area of the river that the TVA was attempting to raise a downed power line partially submerged in the river. The Eighth Circuit affirmed the district court's dismissal of the complaint based on lack of subject matter jurisdiction. The court held that the discretionary function exception applied to this case where plaintiff failed to point to a specific regulation that TVA allegedly transgressed and the conduct at issue involved public policy considerations. In this case, the challenged actions and decisions could require TVA to consider, among other things, its allocation of resources (such as personnel and time), public safety, cost concerns, benefits, and environmental impact. View "Thacker v. Tennessee Valley Authority" on Justia Law

Posted in: Personal Injury

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Plaintiffs are current and former federal law enforcement employees and their spouses who were deceived into investing in a Ponzi scheme presenting as the Federal Employee Benefits Group (FEBG). Plaintiffs filed suit against the Government under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b)(1), for negligent conduct and aiding and abetting the scheme. The Eleventh Circuit affirmed the district court's grant of the Government's motion to dismiss based on lack of subject matter jurisdiction and held that the misrepresentation exception applied to bar plaintiffs' claim. In this case, plaintiffs' claims arose out of Kenneth Wayne McLeod's misrepresentations about his bond fund. McLeod founded and ran the FEBG Bond Fund. View "Alvarez v. United States" on Justia Law

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Plaintiffs filed suit against defendants for harms allegedly suffered by plaintiffs when plaintiffs were enrolled in a clinical study while being treated for health issues accompanying their premature births. The Eleventh Circuit held that plaintiffs' negligence, negligence per se, breach of fiduciary duty, and products liability claims were not viable under Alabama law, and the district court correctly dismissed them. The Eleventh Circuit certified to the Alabama Supreme Court: Must a patient whose particular medical treatment is dictated by the parameters of a clinical study, and who has not received adequate warnings of the risks of that particular protocol, prove that an injury actually resulted from the medical treatment in order to succeed on a claim that his consent to the procedure was not informed? View "Lewis v. Moore" on Justia Law

Posted in: Personal Injury

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Plaintiff filed suit against S&N for negligence, product liability, breach of contract, and misrepresentation. Plaintiff's claims stemmed from his decision to get S&N's metal-on-metal hip replacement system and the injuries he says it caused him. The Eleventh Circuit affirmed the district court's dismissal of the negligence claim to the extent it relies on an improper training or failure to warn theory of liability; affirmed the dismissal of the breach of contract claim; and reversed the dismissal of the negligence claim and strict product liability claims premised on manufacturing defect, as well as his misrepresentation claim. The court explained that these surviving claims were cognizable Florida common law causes of action and were not preempted by federal law. View "Mink v. Smith & Nephew, Inc." on Justia Law

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Barbara Bobo's husband, who worked for the TVA for more than 22 years, was diagnosed with asbestos-induced lung cancer and in 1997 died from a heart attack. Mrs. Bobo was diagnosed with malignant pleural mesothelioma in 2011 and died from mesothelioma in 2013. Before her death, Mrs. Bobo filed suit claiming that the TVA's negligence resulted in her being exposed to "take-home" asbestos when she washed her husband's work clothes over the years. The district court entered judgment against the TVA. The court concluded that, assuming that the district court erred in considering the state court deposition testimony of Mr. Bobo to support its finding that he had been exposed to asbestos while employed by TVA, the error was harmless because there was plenty of other evidence proving the same fact; the district court did not abuse its discretion in admitting the testimony of plaintiff's expert; under Alabama law, TVA owed a duty to Mrs. Bobo to prevent take-home asbestos exposure and TVA violated that duty; the court rejected TVA's argument that the district court applied the wrong exposure standard, concluding that which standard applies does not matter because the evidence of exposure was enough to satisfy either tests at issue; and TVA is not shielded from liability under the discretionary function exception. The court affirmed as to these issues. The court vacated the award of damages, remanding to the district court for it to recalculate the damages award in order to exclude from it any amounts that were written off by Mrs. Bobo's providers and to correct any other errors that may appear to the court when the parties have a chance to focus exclusively on the medical expenses component of the damages award. View "Bobo v. Tennessee Valley Authority" on Justia Law

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This case concerned the first of over 500 cases regarding the Wright Medical Conserve "metal-on-metal" hip replacement device designed and manufactured by defendant. Plaintiff filed a products liability suit alleging, among other things, that defendant was liable for design defect based on strict liability and negligence. On appeal, defendant challenged the entry of a $2,100,000 judgment. The court rejected defendant's argument that the district court erred in ordering the jury to continue deliberations after the jury had already begun to deliver its verdict. In this case, upon recognizing the inconsistency in the jury verdict, the district court immediately halted publication of the verdict and instructed the jury that an error had been made; the district court acted in a neutral and non-biased manner in acknowledging and addressing the inconsistent verdict; and the district court also recharged the jury. The court also rejected defendant's argument that the district court erred in its instructions on Utah's products liability law with regard to the unavoidably unsafe product defense in Comment k of Section 402A of the Restatement (Second) of Torts. The court explained that any categorical bar to liability for an unavoidably unsafe product was not available to defendant and thus the district court did not err in failing to give such an instruction to the jury. Furthermore, any error by the district court in instructing the jury on the unavoidably unsafe defense did not affect the result in this case because the jury found that defendant had not proven the defense. Therefore, the court concluded that the district court's error was harmless. Accordingly, the court affirmed the judgment. View "Christiansen v. Wright Medical Technology Inc." on Justia Law

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After a jury found CSX solely liable for injuries suffered by an employee of General Mills and awarded the employee damages, CSX filed this action for indemnification from General Mills. The district court dismissed on the ground that the contract between the parties barred indemnification for damages arising from CSX's sole negligence. In reaching this result, the district court applied a federal rule of collateral estoppel to bar relitigation of the relative fault of General Mills for the injury suffered by its employee. The court held, however, that federal common law adopts the state rule of collateral estoppel to determine the preclusive effect of a judgment of a federal court that exercised diversity jurisdiction. Accordingly, the court reversed and remanded for the district court to determine whether collateral estoppel bars the complaint of CSX for indemnification. The court declined to decide the dispute regarding one element of collateral estoppel as defined by Georgia law: the earlier litigation must have been between identical parties. The court also declined to decide the alternative argument raised by CSX, whether the Sidetrack Agreement requires indemnification assuming CSX was solely at fault. View "CSX Transportation, Inc. v. General Mills, Inc." on Justia Law

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Plaintiffs-Appellants James and Karen Feggestad appealed the district court’s order dismissing their complaint against defendants-appellees, Kerzner International Bahamas Limited, Kerzner International Limited, Island Hotel Company Limited, Paradise Island Limited, and Brookfield Asset Management Inc. (collectively, "Kerzner"), on the basis of a valid forum selection clause. The Feggestads made reservations at the Atlantis Resort on Paradise Island, Bahamas (Atlantis) and received a reservation confirmation via their email address. The confirmation contained a section titled "Terms and Conditions" and included a hyperlink advising guests to view the other terms and conditions. This link provided advance notification that any dispute between the guest and the hotel or any affiliated company must be litigated exclusively in the Bahamas and that upon arrival at the Atlantis, the guest would be required to sign a registration form that included a Bahamian forum selection clause. When the Feggestads checked into the hotel, the resort asked them to sign a registration card, which also included an "acknowledgement, agreement and release," which also listed the clause at issue here. Several days after their arrival at the Atlantis, Mr. Feggestad slipped and fell on a wet sidewalk and sustained severe personal injuries. He later sued, and the forum-selection clause became an issue. After reviewing the record, reading the parties briefs and having the benefit of oral argument, the Fifth Circuit affirmed the district court’s dismissal. View "Feggestad v. Kerzner International Bahamas Limited, et al." on Justia Law