Recently in Injury & Tort Law Category

In an action alleging that plaintiff was the victim of medical malpractice that occurred while he was in federal custody awaiting trial, dismissal of the action on statute of limitations grounds is affirmed where: 1) plaintiff's mental illness did not prevent him from discovering the alleged injury; and 2) the continuous treatment doctrine did not toll the statute.

Read Sell v. US Dep't. of Justice, No. 08-3645

Appellate Information

Submitted: September 21, 2009

Filed: November 6, 2009

Judges

Opinion by Judge Wollman

In a product liability action against hormone therapy manufacturers, partial judgment for plaintiff and for defendants is affirmed in part where: 1) plaintiff's Arkansas law claims were not preempted because there was no evidence that the FDA would not have permitted the strengthening of the labels of the drugs at issue in a manner consistent with Arkansas law; 2) plaintiff's expert testimony on causation was properly admitted because the expert ruled out other possible causes of plaintiff's disease; 3) the district court's instruction on proximate cause was correct; and 4) judgment for defendants on punitive damages was correct because defendants did not act with recklessness or malice.

Read In re: Prempro Prods. Liab. Litig., No. 08-2555

Appellate Information

Submitted: May 13, 2009

Filed: November 2, 2009

Judges

Opinion by Judge Wollman

In an action based on injuries sustained by plaintiff while on defendant's boat, judgment for plaintiff is affirmed in part where: 1) substantial evidence supported the district court's conclusion that defendant breached a duty of reasonable care if plaintiff was seated on the bow cushion when the boat came on plane; and 2) the district court's finding that defendant's negligence was a proximate and substantial cause of plaintiff's injuries was not clearly erroneous.  However, the judgment is reversed in part where federal admiralty law did not allow for recovery of loss of consortium damages in negligence matters occurring outside territorial waters.

Read Doyle v. Graske, No. 08-3144

Appellate Information

Submitted: April 16, 2009

Filed: September 2, 2009

Amended: October 21, 2009

Judges

Opinion by Judge Colloton

In a product liability action based on defective truck engines, the district court's order compelling arbitration is reversed where defendant was a nonparty to the arbitration agreement and Mississippi law did not permit defendant to enforce the agreement on a theory of equitable estoppel.

Read Donaldson Co. v. Burroughs Diesel, Inc., No. 08-2705

Appellate Information

Submitted: August 26, 2009

Filed: September 16, 2009

Judges

Opinion by Judge Benton

In a tort action arising from an airplane crash, summary judgment for defendant is affirmed where defendant federally employed flight service station (FSS) did not negligently provide weather information to plaintiff's decedent because the fact that a specialist must provide "accurate and complete" weather information does not mean that a specialist must provide a pilot with every detail from every relevant weather source.

Read Glorvigen v. Cirrus Design Corp., No. 08-2680

Appellate Information

Submitted: May 14, 2009

Filed: September 16, 2009

Judges

Opinion by Judge Ebel

In a putative consolidated class action against H&R Block, Inc. (Block), and individual corporate officers and directors of Block involving allegations of securities fraud claims under section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5, dismissal of the action is affirmed in part and reversed in part where: 1) district court did not err in dismissing plaintiff's claims against the individual defendants with respect to the false statements as plaintiff has not raised a strong inference that the defendants made any of the statements with the requisite scienter; 2) district court did not err in dismissing the consolidated complaint as plaintiff failed to plead scienter adequately with respect to Block or the individual defendants; 3) because the control-person claims under section 20(a) of the Securities Exchange Act of 1934 are predicated on some underlying primary violation, plaintiff also failed to state a claim under section 20(a); and 4) while district court's consolidation of the nine securities and derivative actions against Block under Federal Rules of Civil Procedure 42(a) was not an abuse of discretion, it was error to appoint plaintiff as the sole lead plaintiff to prosecute a single consolidated complaint, and thus, district court's order designating plaintiff as the lead plaintiff for the derivative claims brought by other parties is reversed and the separate complaints filed by those plaintiffs are reinstated on remand.     

Read Horizon Asset Mgmt. Inc. v. H&R Block Inc., No. 08-1593

Appellate Information

Submitted: October 16, 2008

Filed: September 9, 2009

Judges

Opinion by Colloton, Circuit Judge

In a civil case alleging alienation of affection, district court did not abuse its discretion in excluding evidence that the defendant had affairs with other men, where there was no evidence she had alienated the other men's affections or was aware that their affections had been alienated, as this is an intentional tort and such evidence would only have shown defendant's propensity for affairs in violation of Rule 404(a). 

Read Kebede v. Hilton, No. 08-3326

Appellate Information

Submitted: June 10, 2009

Filed: September 4, 2009

Judges

Opinion by Smith, Circuit Judge

In a personal injury action arising from a boat accident, district court's judgment is affirmed in part and reversed in part where: 1) substantial evidence supported district court's conclusion that defendant breached a duty of reasonable care to plaintiff by bringing the boat to planing speed when plaintiff was seated on the bow cushion; 2) district court did not clearly err in finding that defendant's negligent operation of the boat was a proximate and substantial cause of plaintiff's injuries; and 3) district court erred in awarding plaintiff's spouse damages for loss of consortium as there is no well-settled admiralty rule authorizing such damages for spouses of non-seafarers negligently injured beyond the territorial waters of the United States.   

Read Doyle v. Graske, No. 08-3144

Appellate Information

Submitted: April 16, 2009

Filed: September 2, 2009

Judges

Opinion by Colloton, Circuit Judge

In a product liability action, summary judgment for defendant is affirmed where: 1) plaintiff knew or reasonably may be expected to have known of the specific danger of bagging cotton with excess moisture, and thus its strict liability failure-to-warn claim failed; 2) plaintiff failed to establish reasonably anticipated use, and thus adverse rulings on strict liability defective-product, negligence, and implied warranty claims were proper; 3) the court did not abuse its discretion in considering cured unsworn expert reports; and 4) the court did not abuse its discretion in excluding expert testimony under Daubert.

Read DG&G, Inc. v. FlexSol Packaging Corp., No. 08-3417

Appellate Information

Submitted: June 10, 2009

Filed: August 17, 2009

Judges

Opinion by Judge Benton

In an action for breach of contract and fraudulent misrepresentation, district court's dismissal on forum non conveniens grounds is reversed where: 1) the court lacked the power of dismissal under 28 U.S.C. sec. 1404(a) as there is an alternative federal forum in Nebraska and thus this is not a situation in which the common-law doctrine of forum non conveniens has continuing application in federal court; and 2) even if transfer under 28 U.S.C. sec. 1404(a) were unavailable, the court still erred in its application of traditional forum non conveniens principles. 

Read Bacon v. Liberty Mutual Ins. Co., No. 08-2935

Appellate Information
Appeal from the United States District Court for the Southern District of Iowa.
Submitted: March 11, 2009
Filed: August 6, 2009

Judges
Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.
Opinion by SHEPHERD, Circuit Judge