If you have the time, here are a few opinions of interest from the past few weeks for personal injury attorneys. If you don’t have the time, I have tried to provide a quick summary of the relevant facts and law.
- Rosenfeld v. Oceania Cruises: This is the classic slip and fall case that, honestly, my firm never would have taken. Plaintiff slipped and fell on a wet ceramic surface while walking to the bathroom at the dinner buffet on an Oceania Cruises cruise ship. Worse still, the Plaintiff did not really remember at deposition what type of floor she was on when she fell. Plaintiff brought in an expert from Austria (seriously, Austria) who testified that the tile Plaintiff’s lawyers claimed she slipped on had an inadequately low coefficient of friction. Really, just the worst imaginable case. Still, the 11th Circuit overturned the district court and found that this expert’s opinion should survive a Daubert challenge. So this case goes to the jury in spite of its Swiss cheese holes.
- Fritch v. University of Toledo College of Medicine: This is a brachial plexus medical malpractice case. Plaintiff’s expert testified that there were four possibilities as to what happened: (1) there was some traction on the nerves during surgery; (2) there was bleeding that no one saw (or couldn’t see) and
they pulled traction on the nerve; (3) they stretched the nerve by stretching the arm; and/or (4) a scalene block injection caused the brachial plexus. Plaintiff’s doctor held up on direct examination, testifying that it was more likely than not that the injuries occurred because the surgeon negligently stretched the nerve in surgery from moving the arm or retracting on the retractor. The doctor’s experts testified as to the other possibilities of the harm that were possible but did not say that any of those likely were the cause. Plaintiff appealed to the Ohio Supreme Court, arguing that the doctor’s experts should not be able to testify about possible causes, only those that are more probable than not. The court rejected this claim. A Maryland appellate court would as well because there is no requirement that defendant’s expert witness is required to state an alternative possible cause in terms of probability). Plaintiff also made a res ipsa claim which failed (although there are viable res ipsa malpractice claims in Maryland in very limited circumstances.)
- Hirsch v. CSX Transportation: The Sixth Circuit rejects a medical monitoring claim because of the unlikely possibility of injury. Squire Sanders’ blog does a good job of laying out the case.
- Smith v. Johnson & Johnson: This is a vaginal mesh implant suit against Johnson & Johnson in Mississippi. The Plaintiff underwent a total abdominal hysterectomy and was diagnosed with vaginal vault prolapse. This is a tough condition for women. A portion of Plaintiff’s upper vagina fell, protruding from the vaginal opening. She chose an abdominal sacrocolpopexy which involves a surgical incision in the abdomen and then using mesh to attach the vagina to the front of the backbone. The surgeon used an Ethicon vaginal mesh which is a sterile synthetic nonabsorbable surgical material. But as many women have learned, these vaginal mesh implants do more harm than good. Plaintiff was diagnosed with vaginal mesh erosion and needed surgery to remove it. Plaintiff brought a claim against Ethicon, among others, for the defective vaginal mesh implant. The defendants sought summary judgment arguing one key point: Plaintiff did not show that the Defendants were given an adequate warning that it would have made a difference. In this case, the Mississippi District Court judge found that Plaintiff did not establish that an adequate warning would have convinced the treating physician not to prescribe the product for the plaintiff. (The Southern District of Mississippi apparently does not post its opinions on-line; I linked above to the Drug and Device Law Blog’s gleeful recitation of the facts. If you can ignore the whining – “plaintiffs’ lawyers are always cut all the breaks and we are not,” – and the pandering to Mississippi judges and related tripe, it is a very good post.