News

Case Summaries

Injury & Tort Law

[09/03] Campbell v. Davol, Inc.
In plaintiff's product liability suit against defendants claiming that a hernia patch that was surgically placed in her abdomen following breast reconstructive surgery was defective, district court's grant of summary judgment in favor of the defendants is affirmed where: 1) district court did not err in granting summary judgment in favor of the defendants with respect to the issue of successor liability; 2) district court did not err in granting summary judgment on the post-sale failure to warn claim as there was no contractual relationship to provide services to customers who purchased the hernia patch from the manufacturer; and 3) there is no err in finding plaintiff's claims against defendant were barred by Texas law.

[09/03] Brooks v. Union Pac. R.R. Co.
In plaintiff's suit against Union Pacific Railroad Company under the Federal Employer's Liability Act (FELA), to recover damages for back injuries that he allegedly suffered while working as a machinist at defendant's locomotive repair shop, district court's grant of summary judgment in favor of the defendant is affirmed where: 1) plaintiff has failed to establish causation, negligence or foreseeability; and 2) the district court properly excluded plaintiff's medical expert's causation opinion for failure to comply with Rule 26(a)(2).

[09/03] Cook v. Rockwell Int'l Corp.
In property owners' class action suit against the facility operators of a former nuclear weapons plant under the Price-Anderson Act (PAA), alleging trespass claims arising from the release of plutonium particles onto their properties, district court's judgment in favor of the plaintiffs in awarding over $926 million is reversed and remanded where: 1) district court clearly had subject matter jurisdiction under 28 U.S.C. section 1331; 2) because the jury was not properly instructed on an essential element of plaintiffs' PAA claims, the verdict must be set aside and the case remanded; 3) the issue of whether federal nuclear safety standards preempt state tort standards of care under the PAA is remanded; 4) the Colorado Supreme Court would not permit recovery premised on a finding that an interference, in the form of anxiety or fear of health risks, is "substantial" and "unreasonable" unless that anxiety is supported by some scientific evidence, and the district court erred in concluding otherwise; 5) defendants failed to establish that any of the state of federal standards referenced in their proposed jury instructions overcome the general rule that the jury must determine whether a given interference is "unreasonable" by weighing the harm against the utility of the interference; 6) on remand, plaintiffs are required to prove the plutonium contamination caused "physical damage to the property" in order to prevail on their trespass claims; and 7) district court did not err in instructing the jury that it could award punitive damages in the case.

[09/02] Lu v. Powell
In an action under the Federal Tort Claims Act against the U.S. and various officials, claiming that an asylum officer demanded sexual favors in return for assisting with plaintiffs' asylum applications, dismissal of the action is affirmed in part where plaintiffs failed to point to any specific duty under the Fifth Amendment or any specific policy to support a claim of unconstitutional policymaking. However, the dismissal is reversed in part where the emotional distress suffered as a result of the demand for sexual favors was an injury distinct from the battery and could be proved by the plaintiffs.

[09/01] Fisher v. Wal-Mart Stores, Inc.
In an action against Wal-Mart Stores, Inc. and two Missouri police officers following an incident involving counterfeit money orders at a Raymore Wal-Mart store, summary judgment for defendants is affirmed where: 1) given these undisputed facts, probable cause supported plaintiff's warrantless arrest; 2) attorney's fees were proper because plaintiff's continued prosecution of her false arrest claim against the officers in the face of the evidence upon discovery was unquestionably groundless and unreasonable; and 3) the record reflected no evidence of racial animus or hostility toward plaintiff.

[09/01] Sprinkles v. Associated Indem. Corp.
In plaintiffs' bad faith action against Fireman's Fund Insurance Company, arising from an underlying suit against defendant and his employer for causing the death of plaintiffs' father in an automobile accident, trial court's judgment sustaining the insurer's demurrer is affirmed as, under the complaint and matters judicially noticed, the defendant-employee was an insured, rendering the automobile exclusion in the GCL policy applicable, and Fireman's Fund had no duty to defend the employer.

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Legal Malpractice

[08/26] Florida Bar v. Hall
In an attorney's disciplinary proceedings, arising from forgery and fraudulent recording of a lease agreement and agreement for sale between the attorney and property owners, a referee's recommendation of a ninety-day suspension is approved in part and disapproved in part where: 1) referee's finding of fact, recommendations of guilt, and award of costs are affirmed; 2) referee's reliance on Standard 7.0 is disapproved and instead Standard 5.0 should be applied; and 3) referee's recommendation of a ninety-day suspension is unsupported, as after considering the factual findings, the totality of misconduct, case law, and the Standards, disbarment is the appropriate sanction.

[06/25] JUNG v. MUNDY, HOLT & MANCE, P.C.
Plaintiff's malpractice claim was not barred by the statute of limitations, because wrongful litigation brought by attorneys against a client constitutes a continuing tort.

[05/27] ABASSI v. WELKE
The trial court may sua sponte entertain a second summary judgment motion following its denial of a previous summary judgment motion notwithstanding subdivision (e) of Code of Civil Procedure section 1008.

[05/26] ABASSI v. WELKE
The trial court may sua sponte entertain a second summary judgment motion following its denial of a previous summary judgment motion notwithstanding subdivision (e) of Code of Civil Procedure section 1008.

[05/21] KAEMPE v. MYERS
Plaintiff's claim for conversion of patent rights was properly dismissed because no such conveyance occurred. As he neglected to provide expert testimony establishing the applicable standard of care, his legal malpractice claim fails as well.

[04/23] VINER v. SWEET
Damages award is vastly reduced in light of the California Supreme Court's holding that a plaintiff in a transactional malpractice action must show that but for the alleged malpractice, it is more likely than not that the plaintiff would have obtained a more favorable result.

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Professional Malpractice

[08/27] Garcia v. Gomez
In plaintiff's suit against a hospital and a treating physician for the death of plaintiff's mother from a pulmonary embolism following surgery, court of appeals' affirmance of trial court's dismissal of the suit and denial of defendants' motion for attorney's fees is reversed and remanded where: 1) there is some evidence of reasonable attorney's fees and some evidence that the physician incurred attorney's fees; 2) section 74.351(b) mandates an award of attorney's fees and costs, when expert reports are not served timely.

[08/27] In re Columbia Valley Healthcare Sys. , LP
In plaintiffs' medical malpractice suit, defendant's petition for a writ of mandamus, challenging the trial court's denial of defendant's motion to disqualify plaintiffs' counsel because of its employment of a legal assistant, is conditionally granted as, because the legal assistant's employer did not take effective reasonable steps to shield the assistant from working on this case, and the assistant actually worked on the case at her employer's directive, disqualification is required and the trial court is directed to grant the defendant's motion to disqualify and recuse plaintiffs' counsel.

[08/26] Florida Bar v. Hall
In an attorney's disciplinary proceedings, arising from forgery and fraudulent recording of a lease agreement and agreement for sale between the attorney and property owners, a referee's recommendation of a ninety-day suspension is approved in part and disapproved in part where: 1) referee's finding of fact, recommendations of guilt, and award of costs are affirmed; 2) referee's reliance on Standard 7.0 is disapproved and instead Standard 5.0 should be applied; and 3) referee's recommendation of a ninety-day suspension is unsupported, as after considering the factual findings, the totality of misconduct, case law, and the Standards, disbarment is the appropriate sanction.

[08/25] Giacometti v. Aulla, LLC
In employees' suit for professional negligence against an accounting firm, claiming that the firm negligently or fraudulently over-reported income on their W-2 forms by including tip money taken by the restaurant managers as income to the employees, trial court's order sustaining the demurrer to the employees' second amended complaint against the firm for professional negligence without leave to amend is affirmed where: 1) there are no allegations in the charging complaint that the accountants knew that the restaurant's representation of employees' income was wrong at the time they prepared these documents, and there are no allegations that the accountants were hired to calculate, or in fact did calculate, employees' income for purposes of year-end reporting; and 2) the accountants did not owe the employees a duty of care under the negligence theory alleged in the second amended complaint.

[08/23] Ruiz v. Podolsky
In a medical malpractice and wrongful death suit brought by decedent's wife and children against an orthopedic surgeon and other health care providers, judgment of the court of appeal is reversed and remanded as, in accordance with the intent of the Legislature that enacted Code of Civil Procedure section 1295 and related statutes, all wrongful death claimants are bound by arbitration agreements entered into pursuant to section 1295, at least when, as here, the language of the agreement manifests an intent to bind these claimants.

[08/23] Morton v. Thousand Oaks Surgical Hosp.
In plaintiffs' suit against a hospital and physicians alleging a cause of action for negligent infliction of emotional distress (NEID), arising from their mother's surgery for a sigmoid colon resection, trial court's dismissal after sustaining a demurrer to plaintiffs' cause of action for NIED is affirmed as plaintiffs' allegation, that they were "experienced in the medical field and understood and appreciated the dangers faced by their mother" in the event remedial action was not taken, is insufficient to establish that plaintiffs knew and appreciated the medical circumstances affecting their mother.

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