Recently in Injury & Tort Law Category

Tort Action Against Pharmaceutical Company

In LeFaivre v. KV Pharm. Co., No. 10-1326, an action alleging that a pharmaceutical company breached its implied warranty of merchantability and violated the Missouri Merchantability Practices Act (MMPA) by failing to manufacture a medication in compliance with federal regulations, the court reversed the dismissal of the action where federal law did not preempt plaintiff's MMPA claims.

 

Wrongful Death Action Against Bureau of Indian Affairs

In Hart v. US, No. 10-1604, a wrongful death action under the Federal Tort Claims Act (FTCA), asserting that a Bureau of Indian Affairs law enforcement officer failed adequately to supervise, secure, and detain plaintiff's son after his arrest for federal sex crimes, resulting in his suicide, the court affirmed the dismissal of the complaint where a federal law enforcement officer's on-the-spot decisions concerning how to effectuate an arrest -- including how best to restrain, supervise, control or trust an arrestee -- fell within the discretionary function exception to the FTCA absent a specific mandatory directive to the contrary.

 

Action Concerning Insurance Coverage

In Council Tower Assn. v. Axis Specialty Ins. Co., No. 09-3900, an action against an insurer, asserting insurance coverage and related claims for losses incurred when a portion of the brick veneer covering the east wall of plaintiff's apartment building fell to the ground, the court affirmed summary judgment for defendant where the falling of less than one-third of plaintiff's decorative brick veneer was not a collapse of a part of the building within the meaning of the Additional Coverage for Collapse provision of the policy.

Challenge to Denial of Disability Benefits

In Johnson v. Astrue, No. 09-3685, a challenge to the Social Security Commissioner's denial of disability benefits to plaintiff, the court affirmed judgment for plaintiff where the administrative record as a whole provided substantial evidence to support the ALJ's finding that plaintiff retained the residual functional capacity to perform her past relevant work and therefore was not disabled.

 

Action Under Commercial Liability Policy

In Lexicon, Inc. v. ACE Am. Ins. Co., No. 10-1100, an action claiming that defendant-insurers were obligated under commercial general liability policies to cover certain property damage, the court affirmed in part summary judgment for defendants where the district court correctly held the insurers were not obligated to reimburse plaintiff for its reconstruction of its collapsed silo.  However, the court reversed in part where it was foreseeable that faulty subcontractor work would damage the silo, but not foreseeable that faulty subcontractor work would cause millions of dollars in collateral damage.

Denial of Disability Benefits Affirmed

In Gates v. Astrue, No. 10-1269, plaintiff's appeal from the decision of the district court upholding the Social Security Commissioner's denial of her application for disability insurance benefits and supplemental security income, the court affirmed where 1) the medical record supported the conclusion that any depression experienced by plaintiff was situational in nature, related to marital issues, and improved with a regimen of medication and counseling; and 2) the ALJ did not err in not fully crediting plaintiff's testimony about her mental and physical limitations on her ability to do work-related activities.

Personal Injury Action Involving Allegedy Defective Rifle

In Katzenmeier v. Blackpowder Prods., Inc., No. 09-1146, a personal injury action arising out of an alleged defect in a muzzleloader rifle manufactured and distributed by defendants, the court affirmed judgment for defendants where 1) certain prior incidents of which plaintiff sought to introduce evidence were not "substantially similar" to plaintiff's accident, and the district court did not abuse its discretion by refusing to admit the evidence; 2) defendant did not offer certain alleged hearsay testimony for the truth of what a proof house said, but rather to demonstrate the reasons for the company's marking procedures; and 3) certain witnesses' testimony was not so fundamentally unsupported that it could offer no assistance to the jury.

 

Insecticide Exposure Suit

In Junk v. Terminix Int'l. Co., No. 08-3811, an action alleging that plaintiff's son's multiple medical conditions were caused by exposure to Dursban, an insecticide manufactured by Dow Chemical Co., summary judgment for defendant is affirmed in part where the district court determined that plaintiff's expert had not used a "scientifically valid" method to estimate that plaintiff's son's exposure exceeded a safe level.  However, the court reversed in part where there was arguably a reasonable basis for predicting that the state law might impose liability based upon the facts involved against an allegedly fraudulently joined individual defendant.

Wrongful Death Action Against Power Company

In Eubank v. Kansas City Power & Light Co., No. 09-2038, a wrongful death action against Kansas City Power and Light Company (KCPL), the company that supplied electricity to a U.S. General Services Administration facility where the decedent was killed, the court affirmed the dismissal of KCPL's third-party complaint, holding that the U.S. had not assumed a duty to KCPL to protect government employees from hazardous electrical equipment simply by choosing KCPL as an electrical provider.

In Zebley v. Heartland Indus. of Dawson, Inc., No. 09-2453, an action against a licensed non-profit day training, habilitation, and employment services provider, based on the suicide of plaintiff's daughter, the court affirmed judgment for defendant where 1) the district court did not abuse its discretion in giving a sudden emergency instruction, because the instruction was relevant to one of the issues in the case--defendant's response to at least the final part of the decedent's conduct--and correctly stated the law; and 2) the hindsight instruction echoed the district court's general negligence instruction, by stressing that the hallmark of ordinary care in this circumstance was what a reasonable and prudent person, while exercising ordinary care, would have done under the same or similar circumstances.