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Last month, a Mississippi court issued an opinion in a truck accident case brought by a man who was injured in a chain-reaction accident when he rear-ended another vehicle that was stopped in a traffic jam caused by the original accident. In the case, Ready v. RWI Transportation, the court held that the second accident was too far removed from the first to establish liability against the truck driver. The court based its opinion not on a causation analysis, as one might expect, but instead on the holding that the truck driver did not owe the plaintiff a duty of care.

Semi-TruckThe Facts of the Case

The defendant truck driver caused an accident on a Mississippi highway when he changed lanes and collided with another vehicle. The accident significantly slowed passing traffic, causing a back-up leading up to the scene of the accident.

The plaintiff was driving on the highway toward the accident at approximately 65-70 miles per hour. As he approached the line of stopped vehicles, he was unable to stop and crashed into the rear of another vehicle. The plaintiff sustained injuries as a result of the crash and filed a personal injury lawsuit against the truck driver. He also named the truck driver’s employer under the theory of “negligent entrustment.”

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Many personal injury cases require the testimony of at least one expert witness. Expert witnesses are used to establish certain facts that are beyond the common knowledge of lay witnesses. For example, in medical malpractice cases, expert witnesses are commonly used to explain to the jury what the standard procedures are in certain medical situations.

GavelThe selection of an expert witness is critical for several reasons. First, a selected expert should appear credible to both the judge and the jury, rather than looking like a “hired gun.” After all, many personal injury cases come down to a “battle of the experts,” in which each side has competing experts offering diametrically opposed opinions on the same subject. Second, an attorney should have a fairly good idea of what an expert’s opinion will be before retaining that expert. A party’s failure to know what an expert’s opinion will likely be can result in wasted time and expense. Furthermore, as a recent case indicates, careless expert selection can potentially provide favorable evidence to the opposing party.

Malashock v. Jamison:  The Defendant Seeks to Depose the Plaintiff’s Unused Expert

Malashock was injured in an accident involving the utility vehicle he was operating. He filed a personal injury lawsuit against the company that sold him the vehicle. Before the trial began, Malashock identified several expert witnesses by name and indicated the subject of their testimony. At no point was any of the experts’ reports provided to the defense.

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Earlier this month, an appellate court in Kentucky issued an opinion in a premises liability case brought by a man who slipped and fell while staying as a guest in the defendant hotel. In the case, Goodwin v. Al J. Schneider, the court had the opportunity to discuss the duty of care hotels owe to their guests, ultimately holding that the hotel did owe Goodwin a duty to keep him safe from both known and unknown hazards.

Hotel RoomThe Facts of the Case

Goodwin and his wife were staying at the defendant hotel during a conference. On the second night of their stay, Goodwin attempted to get into the shower but slipped and fell, injuring his leg. Goodwin brought a premises liability lawsuit against the hotel, arguing that the hotel was negligent in failing to take sufficient measures to prevent slip-and-fall accidents while getting into the shower.

Specifically, Goodwin pointed to the fact that there was not a bathmat in the shower, and other rooms in the hotel did have bathmats. He acknowledged that the shower had a hand rail to assist guests in getting into the shower, but he argued that the failure to place a bathmat in the shower was a violation of the duty of care the hotel owed him, and this breach of duty resulted in his fall.

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Earlier last month, an appellate court in Louisiana issued a written opinion invalidating an arbitration clause in a case brought by the parents of a young child who was injured while at the defendant’s trampoline park. In the case, Alicea v. Activelaf, the court held that although the plaintiff voluntarily signed a contract containing a clause agreeing to arbitration, the clause was invalid, and therefore the defendant cannot demand arbitration.

Kids on TrampolineA Young Boy Is Injured While at the Defendant’s Trampoline Park

The Aliceas planned on taking their two young boys to the defendant’s trampoline park. However, prior to allowing anyone access to the park, the defendant required that guests sign a “Participant Agreement, Release and Assumption of Risk.” This is common among pay-to-play activities, such as bungee jumping, water parks, and ski resorts. Essentially, these forms, if signed, give up certain rights the guest would otherwise have. Specific to this case, the contract contained a clause waiving the plaintiffs’ right to use the court system if any personal injury claims should arise during their visit. Instead of proceeding through court, the contract stated that the claims would be settled through arbitration.

Arbitration is an alternative to the court system, in which a single arbitrator or panel of arbitrators will make a decision on a plaintiff’s personal injury claim. Arbitration is usually binding, is much cheaper for sophisticated litigants, and tends to favor the companies that seek to compel it. Whenever possible, it is usually in a plaintiff’s interest to have a case filed in a court of law rather than through arbitration.

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All personal injury cases are subject to a statute of limitations. Statutes of limitations lay out the time frame in which a plaintiff needs to file their case. If a case is filed after the statute of limitations, it will be dismissed by the court as untimely unless an exception applies. Medical malpractice cases in particular are subject to generally shortened and extremely strict statutes of limitations.

GurneySince medical malpractice cases are subject to stricter requirements, parties will often litigate whether a claim is one of medical malpractice or ordinary negligence. This is especially the case when the plaintiff’s case was filed after the relevant statute of limitations for a medical malpractice case but before the statute of limitations for ordinary negligence. A recent case in front of a California appellate court illustrates one plaintiff’s battle to classify his injury case as one of ordinary negligence.

Nava v. Saddleback Memorial Medical Center

Nava was a patient at Saddleback, the defendant medical center. One day during his stay at Saddleback, Nava was being transported in the hospital on a gurney when the gurney tipped over, causing Nava to fall to the ground. Nava suffered several fractures to his clavicle and patella as a result of the fall.

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Whenever someone is involved in an accident, certain duties are triggered. One of those duties is to preserve any evidence that may become useful to the opposing party in the event that a lawsuit is later filed by the accident victim. A party’s failure to preserve material evidence can result in a variety of sanctions being imposed against that party, including the judge entering judgment in favor of the opposing party. A recent case in front of a federal court of appeals illustrates this concept.

ScaffoldingSchaefer v. Universal Scaffolding:  The Facts

The plaintiff, Schaefer, was a construction worker who routinely worked with scaffolding. On the day in question, a piece of scaffolding came loose and struck Schaefer in the head, causing serious injuries. Schaefer filed a product liability claim against the manufacturer of the scaffolding, as well as related claims against his own employer as well as the company that contracted the work to be done. Relevant to this case was Schaefer’s claim against the manufacturer of the scaffolding.

Before the trial began, Schaefer was informed that the actual piece of scaffolding that struck him in the head was no longer in the possession of the defendant. Believing this evidence to be crucial to his case, Schaefer asked the court to enter judgment in his favor because the evidence had been in the sole control of the defendant, and it was their duty to preserve it. Schaefer claimed that it was reasonably foreseeable that he would have filed a product liability claim against the manufacturer, and that triggered a duty to preserve the evidence.

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Earlier this month, an Ohio woman recovered over $1.3 million after a jury found in her favor in a premises liability lawsuit filed against a supermarket chain. The lawsuit alleged that the supermarket chain failed to provide adequate instruction to customers using motorized shopping carts.

Shopping CartsAccording to one industry news source reporting on the case, the accident occurred back in 2012, when another customer lost control of a motorized grocery cart and struck the plaintiff. After being struck by the cart, the plaintiff was tossed four feet and struck her head on the side of a nearby shelf. As a result, the 71-year-old plaintiff suffered serious head and neck injuries, requiring ongoing treatment.

While no supermarket employees were involved in the accident, the plaintiff proceeded under the theory that the grocery store was negligent in failing to provide adequate instructions for customers using the motorized carts. To help her case, the plaintiff submitted evidence of 119 similar accidents involving motorized grocery carts in the same supermarket chain over a nine-year period. With this evidence, the plaintiff was able to argue that the grocery store chain was aware of the dangers involved in letting customers use the motorized carts without instructions. The jury’s verdict consisted of $125,000 in compensatory damages and $1.2 million in punitive damages.

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Last month, an appellate court in California issued an interesting opinion regarding when a negligent driver’s employer can also be held liable in a personal injury lawsuit. In the case, Jorge v. Culinary Institute of America, the court ultimately determined that since the fatal accident occurred while the defendant’s employee was on his way home from work and was not engaged in any work-related activity, the defendant was not vicariously liable for the employee’s actions.

ChefThe Facts of the Case

Da Fonseca worked for the defendant, the Culinary Institute of America. He was an instructor who worked primarily at one location but occasionally did some consulting for the defendant at various other locations. On the day of the accident, Jorge was his way home from work with his chef’s jacket and knives in the car. At some point on his commute back home, he struck and killed Jorge, a 14-year-old boy, with his car.

Jorge’s family filed a wrongful death lawsuit against both Da Fonseca and the Culinary Institute. Da Fonseca and Jorge’s family reached a mutually acceptable settlement agreement, so the case proceeded only against the Culinary Institute. The Institute’s request to dismiss the case based on a lack of vicarious liability was denied, and after a jury trial, a verdict of roughly $885,000 was awarded to Jorge’s family.

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Earlier this month, a court found that pharmacists have a duty to retain medication returned to the pharmacy by a patient if the medication was returned as a result of a potential pharmacy error. The court in the case of Burton v. Walgreen Corporation held that the pharmacy should keep the returned medication because it may be relevant to an upcoming civil lawsuit, and a failure to preserve the potential evidence may result in court sanctions for the spoliation of evidence.

White PillsThe Facts Giving Rise to the Lawsuit

According to a summary of the court’s opinion, Walters was prescribed blood pressure medication by his physician. Upon taking the prescription to a local Walgreen’s pharmacy, he was provided a single vial of medication. He didn’t realize it at the time, but there were two types of pills in the vial, his prescribed blood pressure medication as well as lithium pills.

Walters took the medication as directed when he got home. As it turns out, he took five doses of the lithium pills before his wife noticed that there were two different types of pills in the vial. She took the medication back to the pharmacy to confirm that this was a mistake. The pharmacist on duty told her that the lithium pills were given to her husband in error, and he kept the medication. The pharmacist followed the company’s written protocol, quarantining the medication and then eventually destroying it.

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Earlier this month, one state’s appellate court discussed and adopted the “continuing course of treatment” doctrine in the context of a medical malpractice case. In the case, Parr v. Rosenthal, the court determined that it would adopt the doctrine, but it held that the specifics of the case at issue prevented the doctrine from being applied to extend the statute of limitations.

Doctor at ComputerParr v. Rosenthal:  The Facts

The plaintiffs were the parents of a young boy who was treated for a rare desmoid tumor by the defendant. At birth, their son had a large bump behind his right calf. For several years, the bump was undiagnosed, but eventually a team of doctors diagnosed the bump as a desmoid tumor.

The defendant was among the practice group of doctors treating the boy, but he was not initially involved. After diagnosing the boy, the treating doctors referred the parents to the defendant, who was a pioneer in the use of radio frequency ablation to treat tumors. However, the defendant had never used the technique on a desmoid tumor. After discussing the procedure with the plaintiffs, it was agreed that the defendant would perform the procedure on their son.

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