Articles Posted in Injury Law

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From approximately 1953-1999, Frankenberger worked as a pipefitter at various facilities in Illinois and Indiana. In 1996, Frankenberger was diagnosed with a lung condition consistent with asbestos-related pleural disease. He was diagnosed with lung cancer in 2004, and died from the disease in 2005. A medical expert determined Frankenberger’s lung cancer was caused, at least in part, by his exposure to asbestos. Frankenberger’s estate alleged his asbestos exposure occurred as a result of his work in the State Line, Romeoville, and Acme facilities, and his exposure to asbestos-containing: turbines and switchgears. Both pieces of equipment were manufactured and maintained by Westinghouse, a predecessor to CBS. The district court granted CBS summary judgment. The Third Circuit reversed in part, agreeing that Frankenberger’s turbine-related claim failed to demonstrate CBS was a cause of his asbestos exposure, but disagreeing with the conclusion that the switchgear-related claim is deficient. Unlike his turbine-related claim, Frankenberger’s switchgear-related claim relies on specific evidence Westinghouse switchgears were likely to contain asbestos that resulted in respirable dust. View "In Re: Asbestos Prods. Liability Litig." on Justia Law

Posted in: Injury Law

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More than 200 foreign agricultural workers allege they were exposed to the pesticide DBCP on banana farms throughout Central America, in the 1960s through the 1980s, resulting in health problems. Litigation began in 1993 with a putative class against Dole and related companies in Texas state court. Numerous suits were filed (and consolidated) in 2011 in the Eastern District of Louisiana against Dole and others. That court granted Dole summary judgment based on the statute of limitations; the Fifth Circuit affirmed. Meanwhile, in 2012, several actions were filed in the District of Delaware against the same defendants and alleging the same causes of action. That court dismissed, applying the first-filed rule, reasoning that “one fair bite at the apple is sufficient.” The Third Circuit initially affirmed, but on rehearing, en banc, held that the district court abused its discretion under the first-filed rule by dismissing the claims with prejudice and erred by refusing to transfer claims against Chiquita to another forum. The timeliness dismissals entered by the Louisiana District Court did not create a res judicata bar to the Delaware suits. The court stated that it was “untenable” that 20 years after the litigation began, no court had considered the merits. View "Chavez v. Dole Food Co., Inc" on Justia Law

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Masha was adopted from Russia by Mancuso when she was five years old. During the following five years, Mancuso sexually abused Masha and documented the abuse in photographs and videos, which he distributed online in exchange for media documenting the sexual abuse of other children. Mancuso pled guilty to sexual exploitation of a minor, 18 U.S.C. 2251(a); the government dropped a charge of possession of material depicting the sexual exploitation of a minor, 18 U.S.C. 2252(a)(4)(B). Mancuso stipulated that the dismissed count could be considered in imposing sentence and agreed to pay “mandatory restitution” under the Victim-Witness Protection Act, 18 U.S.C. 3663, 3663A and 3664, of $200,000 into a trust for Masha’s benefit. In 2013, 10 years after Mancuso’s conviction, Masha filed suit under 18 U.S.C. 2255 (called Masha’s law) against a purported class of defendants, including Mancuso. The Third Circuit reversed dismissal of the case. A restitution award for a criminal offense does not bar a later-filed civil claim under section 2255 based on that same offense. The interests of Masha and the government were not squarely aligned in the criminal proceeding; she had a limited ability to participate in the determination of her restitution and no right to appeal, so application of collateral estoppel would be inequitable and would offend the “deep-rooted historic tradition that everyone should have his own day in court.” View "Doe v. Hesketh" on Justia Law

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The district court dismissed a consolidated class action in which plaintiffs, children younger than 13, alleged that Viacom and Google unlawfully collected personal information about them on the Internet, including what webpages they visited and what videos they watched on Viacom’s websites. The claims alleged invasion of privacy under New Jersey law and cited the 1988 Video Privacy Protection Act, 18 U.S.C. 2710 which prohibits the disclosure of personally identifying information relating to viewers’ consumption of video-related services. The Third Circuit affirmed in part, holding that the Act permits plaintiffs to sue only a person who discloses such information, not a person who receives such information, and that the prohibition on the disclosure of personally identifiable information applies only to the kind of information that would readily permit an ordinary person to identify a specific individual’s video-watching behavior, so that digital identifiers, like IP addresses, fall outside the Act. The court vacated dismissal of a claim of intrusion upon seclusion that alleged that Viacom explicitly promised not to collect any personal information about children who browsed its websites and then did so. The 1998 Children’s Online Privacy Protection Act, 15 U.S.C. 6501,authorizing the FTC to regulate websites that target children, does not preempt the state-law privacy claim. View "In Re: Nickleodeon Consumer Privacy Litig." on Justia Law

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Whiteside represented the County of Camden in a lawsuit brought by Anderson, which resulted in a jury award paid, in part, by the County’s excess insurer, National. According to National, the County did not notify it of the lawsuit until several months after it was filed. Whiteside initially informed National that the case was meritless and valued it at $50,000. During trial, Whiteside changed her valuation and requested the full $10 million policy limit to settle Anderson’s claims. National conducted an independent review and denied that request. The jury awarded Anderson $31 million, which was remitted to $19 million. Days later, National sought a declaratory judgment that it was not obligated to provide coverage because the County had breached the policy contract by failing to timely notify National of the case and by failing to mount an adequate investigation and defense. National also asserted claims against Whiteside for legal malpractice, breach of fiduciary duty, and breach of contract. The court dismissed those claims because National could not demonstrate that Whiteside’s actions proximately caused it to suffer any damages. The Third Circuit dismissed and appeal for lack of jurisdiction, finding National’s notice of appeal untimely under Federal Rule of Appellate Procedure 4(a)(1), View "State Nat'l Ins. Co v. County of Camden" on Justia Law

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Between 2002-2006, Lucht purchased treated lumber for a deck on his vacation home in the Virgin Islands. The lumber allegedly decayed prematurely and he began replacing boards in 2010; he claims he did not discover the severity of the problem until the fall of 2011. Lucht sued the retailer, wholesaler, and treatment company of the lumber in February 2013, alleging a Uniform Commercial Code contract claim; a common law contract claim; a breach of warranty claim; a negligence claim; a strict liability claim; and a deceptive trade practices claim under the Virgin Islands Deceptive Trade Practices Act. The district court rejected the claims as time-barred. The Third Circuit affirmed, citing the “‘gist of the action doctrine,” which bars plaintiffs from bringing a tort claim that merely replicates a claim for breach of an underlying contract. View "MRL Dev. I, LLC v. Whitecap Inv. Corp" on Justia Law

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Between 1945 and the mid-1970s, Hassell was employed as an electrician by the Railroad, responsible for the maintenance and repair of passenger railcars designed and manufactured by defendants' predecessors. Steam pipes running underneath those railcars were insulated with material containing asbestos. As a consequence of his exposure to asbestos, Hassell contracted asbestosis and mesothelioma. He died in 2009, during the pendency of his lawsuit. Defendants argued that state law claims were preempted by the Locomotive Boiler Inspection Act (LIA), 49 U.S.C. 20701, the Safety Appliance Act, 49 U.S.C. 20301, and the Federal Railroad Safety Act (FRSA), 49 U.S.C. 20101. The district court held that Hassell’s claims were preempted by the LIA. The Third Circuit vacated, noting the lack of evidence supporting defendants’ assertion that the railcar pipes at issued formed an “interconnected system” with the locomotive. Even assuming that evidence for the “interconnected system” could have been gleaned from the record, Hassell produced evidence from a former Railroad supervisor showing that, instead of being connected to locomotives, the pipes were connected to “power cars” that separately supplied steam heat to the passenger coaches. There was a genuine dispute material fact precluding summary judgment. View "In Re: Asbestos Prods. Liability Litig." on Justia Law

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The Textron Lycoming engine, manufactured in 1969, was installed on a Cessna aircraft in 1998. It was overhauled in 2004, with a carburetor in accordance with Lycoming’s type-certificated design. Sikkelee was piloting the aircraft when it crashed shortly after taking off. Sikkelee died. His estate sued, claiming that the aircraft lost power as a result of a malfunction or defect in the carburetor. The court held that Sikkelee’s claims, which were premised on state law standards of care, fell within the preempted “field of air safety.” An amended complaint incorporated federal standards of care by alleging violations of FAA regulations. Before trial, the court concluded that the federal standard of care was established in the type certificate. Reasoning that the FAA issues a type certificate based on its determination of compliance with pertinent regulations, it held that the FAA’s issuance of a type certificate for the engine meant that the federal standard of care had been satisfied as a matter of law. The court granted Lycoming partial summary judgment and certified an immediate appeal. The Third Circuit reversed, concluding that federal statutes and FAA regulations reflect that Congress did not intend to categorically preempt aircraft products liability claims. Subject to traditional principles of conflict preemption, including concerning specifications included in a type certificate, aircraft products liability cases may proceed using a state standard of care. View "Sikkelee v. Precision Airmotive Corp" on Justia Law

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In 2011, former professional football players sued the NFL and Riddell, Inc., claiming that the NFL failed to take reasonable actions to protect them from the chronic risks of head injuries in football, and that Riddell, an equipment manufacturer, should be liable for the defective design of helmets. In 2012, the Judicial Panel on Multidistrict Litigation consolidated the cases in the Eastern District of Pennsylvania, which, in 2014, approved a class action settlement that covered over 20,000 retired players and released all concussion-related claims against the NFL. There were 202 opt-outs. Objectors argued that class certification was improper and that the settlement was unfair. The Third Circuit affirmed, stating: “This settlement will provide nearly $1 billion in value to the class of retired players. It is a testament to the players, researchers, and advocates who have worked to expose the true human costs of a sport so many love. Though not perfect, it is fair.” View "In re: NFL Players Concussion Injury Litig." on Justia Law

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S.B., a minor, was allegedly injured at a daycare center when another child tore a hair braid from her scalp. Her mother, Muwwakkil, filed a negligence complaint against KinderCare in Pennsylvania state court. After removal to federal court, Muwwakkil retained new counsel, who moved for voluntary dismissal without prejudice under FRCP 41, stating the lawsuit was prematurely filed because S.B., a four-year-old, was too young to articulate details about the incident and how it affected her. KinderCare opposed the motion. The court dismissed the case without prejudice, imposing conditions on the right to refile the case: payment of KinderCare's reasonable attorneys’ fees, as determined by the court upon receiving an affidavit of costs and refiling by June 24, 2019, with the possibility of extending that deadline by a showing of good cause. Instead of submitting an objection to KinderCare’s affidavit of costs, and before the district court entered a final order, S.B. and Muwwakkil filed an appeal challenging the imposition of these conditions on their right to refile. The Third Circuit dismissed, stating itsvjurisdiction is limited generally to reviewing the “final decisions” of district courts. 28 U.S.C. 1291. View "S. B. v. Kindercare Learning Ctrs., LLC" on Justia Law