RIVERA V. WOODWARD RESOURCE CENTER
The second lawsuit filed by plaintiff satisfied the savings clause of the statute of limitations under the Iowa Torts Claim Act (“Act”).
Supreme Court of Iowa
A former employee who was terminated from her employment as a residential treatment worker at state resource center brought action against the resource center alleging wrongful discharge in violation of public policy. The employee contended that she Submitted by: Marc H. Harwell and Martin D. Trimiew of Leitner, Williams, Dooley & Napolitan, PLLC - Posted: 05/13/2013
Kesick v. New York Central Mutual Fire Insurance Company
Emergency first responder injured during rescue could seek uninsured/underinsured motorist coverage.
New York Supreme Court
Plaintiff, a State Trooper, licensed Registered Nurse, and paramedic responded to a 911 call for assistance following a two (2) vehicle accident. Plaintiff was injured helping an injured victim from his vehicle. Plaintiff was able to recover from tSubmitted by: Marc H. Harwell and James S. Hildebrand, Jr. of Leitner, Williams, Dooley & Napolitan, PLLC - Posted: 05/14/2013
310 East 74, LLC v. Fireman’s Fund Insurance Company
Plaintiff seven (7) month delay in notifying Defendant insurer of the subject accident was unreasonable as a matter of law.
New York Supreme Court
A construction worker who was a Plaintiff in the lawsuit was injured when he fell off a ladder while removing insulation from the chimney of a building that he owned. So the Plaintiff/construction worker was also the owner of the premises. The PlaintSubmitted by: Marc H. Harwell and James S. Hildebrand, Jr. of Leitner, Williams, Dooley & Napolitan, PLLC - Posted: 05/14/2013
Cunningham v. Williamson County Hospital District
The Tennessee Supreme Court held that the one hundred twenty (120) day extension to file a medical malpractice claim under the Tennessee Medical Malpractice Act did not also provide the same extension to claims brought under the Government Tort Liability Act.
Supreme Court of Tennessee
The Plaintiffs filed a claim against Defendant claiming that the Defendant negligently caused the death of their son. The claim was filed approximately fifteen (15) months after their son’s death which was within the limitation period for claims filSubmitted by: Marc H. Harwell and James S. Hildebrand, Jr. of Leitner, Williams, Dooley & Napolitan, PLLC - Posted: 05/14/2013
AINSWORTH V. MOFFETT ENGINEERING, LTD.
Fifth Circuit Clarifies “Stream of Commerce” Test after Nicastro
United States Court of Appeals for the Fifth Circuit
Mary P. Ainsworth’s husband was killed in Mississippi by a forklift designed and manufactured in Ireland. Mrs. Ainsworth filed a products liability and wrongful death suit against the manufacturer (and its US distributor) in the U.S. District Court fSubmitted by: Jeffrey R. Pilkington and Geoffrey C. Klingsporn - Posted: 05/14/2013
Basden v. Professional Transport Incorporated
The court dismissed Plaintiff’s Americans with Disabilities Act claim because Plaintiff failed to present evidence sufficient to establish a prima facie right to the protection under the statute.
7th Circuit Court of Appeals
The plaintiff alleged that she was wrongfully terminated for absences from work which she claimed were based on complications due to a medical illness. The Court found that under the ADA, an individual is not a qualified individual for ADA purposes iSubmitted by: Marc H. Harwell and James S. Hildebrand, Jr. of Leitner, Williams, Dooley & Napolitan, PLLC - Posted: 05/13/2013
Balestrieri v. Washington
Summary Judgment affirmed under the principle that a contractual obligation standing alone will generally not give rise to tort liability in favor of a third party.
Supreme Court of New York
Plaintiff alleged an injury from a slip and fall while at work in a warehouse leased by his employer. Plaintiff brought suit against the cleaning company which provided cleaning services to Plaintiff’s employer. The cleaning services company moved foSubmitted by: Marc H. Harwell and James S. Hildebrand, Jr. of Leitner, Williams, Dooley & Napolitan, PLLC - Posted: 05/13/2013
OLSEN V. CAPITAL REGION MEDICAL CENTER
The 8th Circuit Places Patients’ Safety Before the Rights of a Disabled Employee
8th Circuit U.S. Court of Appeals
The plaintiff Olsen was a mammography technician at the Capital Region Medical Center in Missouri. Ms. Olsen suffered from epileptic seizures which occurred frequently while she was working as a technician. Part of her responsibilities as a technicSubmitted by: Marc H. Harwell and James F. Exum, III of Leitner, Williams, Dooley & Napolitan, PLLC - Posted: 05/09/2013
SQUIRES V. BRECKENRIDGE OUTDOOR EDUCATION CENTER
A Parent May Waive All Negligence Claims of their Child When they Sign a Release Permitting the Child to Participate in a Dangerous Activity
10th Circuit U.S. Court of Appeals
The plaintiff, Kimberly Squires was the parent of a disabled child who was permitted to go on a trip to Colorado for a ski trip. The sponsor organization allows disabled children to participate in activities which might otherwise be dangerous to chiSubmitted by: Marc H. Harwell and James F. Exum, III of Leitner, Williams, Dooley & Napolitan, PLLC - Posted: 05/09/2013
BARON SERVICES, INC. V. MEDIA WEATHER INNOVATIONS, LLC
Federal Circuit Court of Appeals Reaffirms That Delay of a Summary Judgment Ruling is Proper When a Party Requests Further Discovery
U.S. Court of Appeals for the Federal Circuit
This case is largely a procedural matter regarding a patent owned by Baron Services, Inc. which it claims was misappropriated for use by defendant Media Weather Innovations. During the litigation, Baron Services repeatedly requested from both the deSubmitted by: Marc H. Harwell and James F. Exum, III of Leitner, Williams, Dooley & Napolitan, PLLC - Posted: 05/09/2013
NATIONAL ASSOCIATION OF MANUFACTURERS V. NATIONAL LABOR RELATIONS BOARD NATIONAL ASSOCIATION OF MANUFACTURERS V. NATIONAL LABOR RELATIONS BOARD NATIONAL ASSOCIATION OF MANUFACTURERS V. NATIONAL LABOR RELATIONS BOARD
The National Labor Relations Board Cannot Conclude an Unfair Labor Practice Based on an Employer Not Posting a Mandated Poster
District of Columbia Circuit of the U.S. Court of Appeals
At the center of this case is a poster produced by the NLRB advising employees of their rights under the NLRA to join or assist in forming a union, to bargain collectively, or to take actions to improve working conditions. The enforcement aspect of Submitted by: Marc H. Harwell and James F. Exum, III of Leitner, Williams, Dooley & Napolitan, PLLC - Posted: 05/09/2013
ROMAN CATHOLIC DIOCESE OF BROOKLYN V. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA
The Appeals Court of New York Applies the “Unfortunate Event Test” to Catholic Church Sexual Abuse When the Catholic Church Seeks Reimbursement of Settlement Funds from Its Insurance Carrier
Appeals Court of New York
The Catholic Diocese of Brooklyn settled a case with a minor parishioner for sexual abuse that occurred between August 1996 and May 2002. The molestation occurred in several different places around New York over the six-year period. The Diocese setSubmitted by: Marc H. Harwell and James F. Exum, III of Leitner, Williams, Dooley & Napolitan, PLLC - Posted: 05/09/2013
FINK V. TIME WARNER CABLE
Plaintiffs appealed the district court’s dismissal of their class action complaint, which raised claims related to deceptive advertising by the defendants. Judgment affirmed.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Plaintiffs brought a class action challeging the veracity of advertisements in which Time Warner described its Road Runner internet service as always-on and operating at a fast speed. Plaintiffs alleged these advertisements were deceptive and gave rSubmitted by: Marc H. Harwell, Leitner, Williams, Dooley & Napolitan, PLLC - Posted: 05/09/2013
BALDWIN V. CITY OF GREENSBORO
Plaintiff appealed the district court’s grant of summary judgment in favor of the defendant, arguing that his claims under the USERRA were not barred by the statute of limitations set forth in 28 U.S.C. § 1658(a) or that, in the alternative, the statute of limitations was tolled. Judgment affirmed.
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Baldwin brought suit alleging that the City of Greensboro’s failure to retain and re-employ him was motivated by his membership in the United States Coast Guard Reserves, which was a violation of Sections 4311 and 4312 of USERRA. The City of GreensbSubmitted by: Marc H. Harwell, Leitner, Williams, Dooley & Napolitan, PLLC - Posted: 05/09/2013
SHULER V. GARRETT ET. AL.
Defendants moved to dismiss the plaintiffs’ appeal of the district court’s denial of the plaintiffs’ motion under F.R.E. 59(e) to alter or amend the dismissal as untimely, based on the technical error of listing the wrong docket number on the electronically filed motion.
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
The plaintiffs’ counsel filed their Rule 59 motion on the last day of the 28-day period allowed to file such a motion. In doing so, counsel entered the wrong docket information into the electronic filing system. A correction was filed the following dSubmitted by: Marc H. Harwell, Leitner, Williams, Dooley & Napolitan, PLLC - Posted: 05/09/2013
HOLTON V. PHYSICIAN ONCOLOGY SERVICES, LP
Plaintiff appealed the decision to grant an interlocutory injunction prohibiting him from working in an executive capacity for a particular competitor of his former employer for one year. Judgment affirmed in part and reversed in part, and case dismissed in part.
SUPREME COURT OF GEORGIA
Holton was hired in August 2009 as the vice president and chief operating officer of Physician Oncology Services, LP, which provides radiation therapy services to cancer patients. As part of the hiring process, Holton executed an employment agreementSubmitted by: Marc H. Harwell, Leitner, Williams, Dooley & Napolitan, PLLC - Posted: 05/09/2013
PHILLIPS V. PRUDENTIAL INSURANCE CO. OF AMERICA
Plaintiff, a beneficiary of a life insurance policy, brought a class action against the insurer. The insurer filed a motion to dismiss, which was granted. Judgment affirmed.
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
Phillips was the beneficiary of a life insurance policy taken out by her fiancé, which was issued by a subsidiary of Prudential. Upon the death of Phillips’ fiancé, Prudential informed her that, in lieu of paying out a lump sum, it would pay the claiSubmitted by: Marc H. Harwell, Leitner, Williams, Dooley & Napolitan, PLLC - Posted: 05/09/2013
CLIFTON LAKE, et al. v. THE MEMPHIS LANDSMAN, LLC et al.
Plaintiffs claims that the defendant was liable because the bus did not have seatbelts and the glass on the bus was tempered glass rather than glazed glass were not specifically preempted by the Federal Motor Vehicle Safety Standards 205 and 208.
Supreme Court of Tennessee
On March 18, 1998 a concrete truck collided with a shuttle bus used to transport passengers between the airport and rental car facility. Lake was a passenger on the bus and sustained brain injuries and sued the owner of the bus, manufacturer of the Submitted by: Michael Hurvitz, Morris Polich & Purdy LLP - Posted: 05/14/2013
JOHN CORENBAUM, et al., v. DWIGHT ERIC LAMPKIN
The full amount billed for medical care is not relevant to the amount of damages for past medical services, damages for their future medical care or noneconomic damages; therefore it is not admissible.
Court of Appeal Of The State Of California, Second Appellate District, Division Three
The court examined the admissibility of the full amount of plaintiffs’ medical bills in light of Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal. 4th 541. The medical care providers who treated plaintiffs accepted less than the full amountSubmitted by: Michael Hurvitz, Morris Polich & Purdy LLP - Posted: 05/14/2013
Brown v. Mid-Century Insurance Co.
“Sudden” means sudden for exception to water damage exclusion in property insurance policy
California Court of Appeal, Second Appellate District
Homeowners policy excluding water damage except for that resulting from a sudden and accidental discharge of water from a plumbing system does not cover a leak from a pipe which continued for months. The court also rejected the policyholder’s attempSubmitted by: Andrew B. Downs, Bullivant Houser Bailey PC - Posted: 04/26/2013
Travelers Property Casualty Co. of America v. Superior Court
Vacancy Clause in Property Policy Enforceable
California Court of Appeal, Second Appellate District
Vacancy clause eliminating coverage when insured property has been vacant for more than 60 days is enforceable when loss occurred in first 60 days of policy period because the 60 day period does not start on the date the policy goes into force. The Submitted by: Andrew B. Downs, Bullivant Houser Bailey PC - Posted: 04/24/2013
MISSOURI v. MCNEELY
The Supreme Court, affirming the Missouri Supreme Court decision, held that a drunk-driving suspect’s dissipating blood alcohol does not generally constitute exigent circumstances to justify conducting a blood test without a warrant.
Supreme Court of the United States
Tyler McNeely refused to provide a breath sample after being pulled over for erratic driving. The officer transported McNeely to a nearby hospital where he instructed hospital staff to perform a blood draw on McNeely for an alcohol test, which McNeelSubmitted by: Christie Law Group PLLC - Posted: 04/22/2013
S. Wine & Spirits of Nev. v. Mtn. Valley Spring Co. LLC,
The Eight Circuit Court of Appeals affirmed that the district court did not abuse its discretion in denying attorney fees in a case involving breach of contract and implied covenant claims, where both parties obtained substantial jury awards arising out of a bottled-water contract dispute.
United States Court of Appeals for the Eighth Circuit
Plaintiff-Appellant Southern Wine and Spirits of Nevada (“Southern Wine”) filed a breach of contract and other claims against defendant-appellee Mountain Valley Spring Company (“Mountain Valley”), for conduct involving their agreement for the distribSubmitted by: Christie Law Group PLLC - Posted: 04/22/2013
Kaiser Foundation Health Plan v. Pfizer, Inc.
First Circuit Affirms $140 Million Verdicts in Off-label Neurontin Marketing Scheme
U.S. Court of Appeals for the First Circuit
In Kaiser Foundation Health Plan v. Pfizer, Inc.,Nos. 11-1904 (United States Court of Appeals for the First Circuit, April 3, 2013), the Court affirmed the district court’s judgment, awarding over $140 million to Plaintiff,Kaiser Submitted by: Marisa A. Trasatti & Jhanelle A. Graham of Semmes, Bowen & Semmes - Posted: 05/15/2013
Gatto v. United Airlines
The District Court ruled that a party’s deletion of their Facebook account during the discovery process qualified as spoliation of evidence. The court issued an adverse inference jury instruction under the spoliation doctrine for deleting the account during a pending case.
United States District Court for the District of New Jersey
Plaintiff Frank Gatto, a baggage handler at JFK Airport in New York City, sustained injuries after being struck by a set of mobile stairs while unloading baggage. Gatto filed a personal injury action against United Airlines and Allied Aviation, alleSubmitted by: Christie Law Group PLLC - Posted: 04/22/2013
Perez v. Nidek Co., LTD
Ninth Circuit Affirms Dismissal of Complaint Alleging Fraudulent Off-Label Device Use on Grounds of Standing and Preemption
U.S. Court of Appeals for the Ninth Circuit
In Perez v. Nidek Co., LTD, No. 10-55577 (9th Cir., March 25, 2013), the Ninth Circuit affirmed the dismissal of a complaint brought by plaintiff-patients who suffered no injuries but who were subject to the off-label use of Submitted by: Marisa A. Trasatti & Jhanelle A. Graham of Semmes, Bowen & Semmes - Posted: 05/15/2013
SANCHEZ V. SWISSPORT, INC.
The California Court of Appeals, in a matter of first impression, held that an employee who had exhausted all of her permissible leave under the Pregnancy Disability Leave Law, nevertheless has a viable cause of action for discrimination under the Fair Employment and Housing Act, when her employer fired her without the reasonable accommodation of additional leave in the absence of employer hardship.
The Court of Appeals of the State of California, Second Appellate District, Div. Four
Plaintiff Ana G. Fuentes Sanchez suffered complications involving her pregnancy, requiring bedrest beginning around February 27, 2009. Following her diagnosis of a high-risk pregnancy, she requested and received a temporary leave of absence from herSubmitted by: Christie Law Group PLLC - Posted: 04/22/2013
Wyeth v. Weeks
Alabama Supreme Court Determines that Brand-Name Manufacturer May be Held Liable to Consumer of Generic Drug on Basis of Fraud or Misrepresentation
Supreme Court of Alabama
In Wyeth v. Weeks,2013 WL 135753 (Supreme Court of Alabama, January 11, 2013), the Alabama supreme court was asked to determine whether a drug company may be held liable for fraud or misrepresentation (by misstatement or omission), baseSubmitted by: Marisa A. Trasatti & Jhanelle A. Graham of Semmes, Bowen & Semmes - Posted: 05/15/2013