Recently in Injury & Tort Law Category

In plaintiff's civil rights case against the state of Rhode Island and a State Police representative and other police officers who had executed a search warrant of his workplace at the Narrangansett Indian Tribe "smoke shop", jury's verdict in favor of the defendant in the second trial is affirmed as: 1) there was no abuse of discretion in the district court's grant of a new trial based on the second ground, that even if the jury verdict had unambiguously rested on the increased force theory, that theory would have been contrary to the weight of the evidence; and 2) plaintiff's argument that the district court erred in granting a new trial because defendant failed to press the district court for a ruling on this motion after it initially and erroneously ruled the motion was moot is rejected.   

Read Jennings v. Jones, No. 08-2117

Appellate Information

Appeal from the United States District Court for the District of Rhode Island

Decided November 19, 2009

Judges

Before:  Lynch, Chief Judge, and Gajarsa and Lipez, Circuit Judges

Opinion by Lynch, Chief Judge

Counsel

For Appellant:     Charles M. Bradley

For Appellee:   Rebecca Tedford Partington, Deputy Chief, Civil Division, John Moreira, Special Assistant Attorney General

In an appeal arising from an underlying action brought by a nurse practitioner claiming that defendant-sheriff barred plaintiff from a County House of Correction (HOC) for informing the FBI of alleged prisoner abuse at the HOC, denial of defendants' motions for a new trial and for remittur is affirmed where: 1) there is nothing in the record indicating that the district court abused its discretion in making its pre-trial evidentiary and disclosure rulings; 2) district court's dismissal of defendants' action under the Administrative Procedure Act (APA) was proper as there was nothing in the record indicating that agency's denial of the defendants' Touhy requests was arbitrary and capricious; 3) the evidence was sufficient to establish that the sheriff engaged in the callous and reckless conduct necessary to support an award of punitive damages; and 4) the award of punitive damages of $250,000 against sheriff was not excessive. 

Read Cabral v. US Dep't of Justice, No. 07-1633

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided November 12, 2009

Judges

Before:  Torruella, Seyla and Dyk, Circuit Judges

Opinion by Torruella, Circuit Judge

Counsel

For Appellant:  Ellen M. Caulo, Deputy General Counsel

For Appellee:  Lowell V. Sturgill, Jr., Attorney, Appellate Staff, Civil Division, Tony West, Assistant Attorney General, Michael K. Loucks, Acting United States Attorney, and Michael S. Raab, Attorney. 

In plaintiff's case against its competitor, involved in the life sciences equipment market, for unfair competition arising from hiring of plaintiff's employee, district court's judgment is affirmed where: 1) district court had proper jurisdiction over plaintiff's claims; 2) court did not err in refusing to dismiss the claims against defendants in Rhode Island for improper venue, nor did the court abuse its discretion in denying defendant's motion for transfer of venue; 3) defendants have failed to demonstrate that the non-competition provision in the Employee Agreement is unenforceable, and as such, defendant's argument that they could not have interfered with the Employment Agreement fails; 4) defendant need not have shown that either the employee nor defendant used plaintiff's trade secrets, as disclosure or acquisition is sufficient to constitute misappropriation, subjecting defendant to liability for actual loss and unjust enrichment; 5) viewed in the light most favorable to the verdict, the evidence supports the damage award; and 6) district court did not err in its evidentiary rulings as defendant failed to preserve some of its claims and failed to adequately develop others. 

Read Nihon Kohden America, Inc. v. Astro-Med, Inc., No. 08-2334

Appeal from the United States District Court for the District of Rhode Island

Decided October 22, 2009

Judges

Before: Howard, and Lipez, Circuit Judges, and Woodcock, District Judge

Opinion by Woodcock, District Judge

Counsel

For Appellant:  E.P. Michael Karcis, Mark A. McLean, McLean & McLean LLP, Bruce W. Gladstone, and Cameron & Mittleman LLP

For Appellee:  Stacey P. Nakasian, Duffy & Sweeney, Ltd., Craig M. Scott

In a class action lawsuit against pharmaceutical companies claiming that they unfairly and deceptively inflate the drugs' average wholesale prices (AWPs), district court's judgment dismissing Class 1 plainitffs' claims is vacated and remanded as there is a lack of clear understanding of both the scope of the district court's judgment and the reasons for the judgment.   

Read Young v. Johnson & Johnson, No. 08-1002

Appeal from the United States District Court for the District of Massachusetts

Decided September 28, 2009

Judges

Before:  Howard, Circuit Judge, Zobel, and Lisi, District Judges

Opinion by Howard, Circuit Judge

Counsel

For Appellant:  Steve W. Berman, Sean R. Matt, Hagens Berman Sobol Shapiro LLP, Jeffrey Kodroff, John A. Macoretta, Spector, Roseman & Kodroff, P.C., Marc H. Edelson, Hoffman & Edelson, Thomas M. Sobol, Edward Notargiacomo, Kenneth A. Wexler, Jennifer Fountain Connolly

For Appellee:  Andrew D. Schau, William F. Cavanaugh, Jr., Erik Haas, Adeel A. Mangi and Patterson Belknap Webb & Tyler LLP

In plaintiffs' wrongful death lawsuit against the United States under the Federal Tort Claims Act (FTCA) arising from a deadly small plane crash, the district court's judgment in favor of the United States is affirmed where: 1) given the lack of mandatory language in paragraph 5-5-9 of the FAA Air Traffic Control Manual (ATCM) on the issue of when to maintain the separation, the district court correctly understood the question posed by plaintiffs as one of what a reasonable controller would have done on these particular facts; 2) the court's finding that the controller acted as a reasonable controller was not clear error; 3) plaintiffs failed to show clear error in court's finding that, even if the defendant had owed and breached a duty under paragraph 5-5-9, there was no causal connection between any breach by him and the accident, or in the court's finding that the accident was not foreseeable to the controller; and 4) district court did not clearly err in rejecting plaintiffs' argument that the controller should have known the aircraft was in unsafe proximity to the terrain.    

Read Wojciechowicz v. US, No. 08-2454

Appellate Information

Appeal from the United State District Court for the District of Puerto Rico

Decided September 9, 2009

Judges

Before Lynch, Chief Judge, Lipez, Circuit Judge, and Ebel Of the Tenth Circuit, sitting by designation.    
Opinion by Lynch, Chief Judge.

Counsel

For Appellant:  Louis R. Martinez, Richard Ritorto, Martinez & Ritorto, PC, Jaime E. Morales, Morales-Morales Law Offices, Franklin F. Bass, Locke Lord Bissell & Liddell LLP, Doris Quinones Tridas, and Quinones Tridas Law Office, PSC

For Appellee:   Henry B. Goddard, Jr., Trial Attorney, U.S. Department of Justice, Torts Branch, with whom Michael F. Hertz, Acting Assistant Attorney General, Rosa Emilia Rodriguez-Velez, United States Attorney, Andrew M. Eschen, Trial Attorney, and Sarah S. Keast, Trial Attorney

In plaintiff's action against a hospital and several physicians alleging violation of the Emergency Medical Treatment and Active Labor Act (EMTALA), district court's granting of defendants' motion for summary judgment is affirmed where: 1) plaintiffs failed to establish a violation of the EMTALA stabilization provision, as interpreting the provision to apply where transfer occurs is fully consistent with EMTALA's statutory purpose; 2) district court was entitled to dismiss plaintiffs' state law claims against defendants without prejudice which plainly includes state-law claims against the individual physicians; and 3) district court did not err in dismissing state-law claims brought by plaintiff Taveras, a citizen of Germany, on basis of diversity of jurisdiction as several of the plaintiffs and the defendants are citizens pf Puerto Rico. 

Read Alvarez-Torres v. Ryder Mem'l Hosp., Inc., No. 08-2351

Appellate Information

Appeal from the United State District Court for the District of Puerto Rico

Decided September 4, 2009

Judges

Before Howard and Lipez, Circuit Judges, and Woodcock, District Judge.    
Opinion by Lipez, Circuit Judge.

Counsel

For Appellant: Jose Luis Ubarri

For Appellee:  Teresa M. Garcia-Moll

District court's award of $100 million to the plaintiffs in their action against the United States under the Federal Tort Claims Act (FTCA) for murder related convictions due to FBI's suppression of contrary evidence, is affirmed where, although high, the amount is not so grossly disproportionate to the harm sustained as to either shock the Court's collective conscience or raise the specter of a miscarriage of justice, and the court used a permissible methodology in computing damages and they are not so excessive as to warrant intervention. District court's finding that the government is liable for malicious prosecution is rejected while its finding that the government is liable for intentional infliction of emotional distress is upheld. Lastly, the district court's decision to reject the government's invocation of the discretionary function defense is upheld.     

Read Limone v. US, No. 08-1327

Appellate Information

Appeal from the United State District Court for the District of Massachusetts
Decided August 27, 2009

Judges

Before Torruella and Seyla, Circuit Judges, and Tashima, Of The Ninth Circuit, sitting by designation.    
Opinion by Seyla, Circuit Judge.

Counsel

For Appellants: Joshua Waldman, Appellate Staff, Civil Division, United States Department of Justice, with whom Gregory G. Katsas, Assistant Attorney General, Michael J. Sullivan, United States Attorney, and Michael S. Raab, Appellate Staff, Civil Division, United States Department of Justice

For Appellee:   Michael Avery, Juliane Balliro, Christine M. Griffin, WolfBlock, LLP, Richard D. Bickelman, Catherine J. Savoie, Ian H. Moss, Posternak, Blankstein & Lund, LLP, William T. Koski, Koski & Kearns, LLP, Daniel R. Deutsch, John C. Foskett, Deutsch Williams, Howard Friedman, Jennifer L. Bills, David Milton, Law Offices of Howard Friedman, P.C., Victor J. Garo, Austin J. McGuigan, Glenn E. Coe, Joseph B. Burns, Bridget Ciarlo, Rome McGuigan, P.C., Michael Rachlis, Edwin L. Durham, and Rachlis Durham Duff & Adler, LLC

In a civil action involving sinking of a recreational boat, the district court's judgment is affirmed where the district court did not err: 1) in finding defendant had no obligation to discover defects of the boat; 2) in finding defendant not responsible for the disabled automatic bilge pump; 3) in making various other factual findings; and 4) in ruling that the contract between Picchione and PJM did not provide for indemnification on these facts.     

Read N. Ins. Co. of NY v. Point Judith Marina, No. 08-2156

Appellate Information

Appeal from the United State District Court for the District of Rhode Island
Decided August 27, 2009

Judges

Before Lynch, Chief Judge, Torruella, Circuit Judge, and Ebel, Of The Tenth Circuit, sitting by designation.     
Opinion by Torruella, Circuit Judge.

Counsel

For Appellants: Frederick A. Lovejoy, Lovejoy & Associates

For Appellee:  Michael J. Rauworth, Carl E. Fumarola and Cetrulo & Capone LLP.

In a wrongful death action, district court judgment is affirmed where: 1) plaintiff's employer was a sophisticated user of defendants' products, and defendants owed plaintiff no duty to warn about the dangers of their products; 2) plaintiff's fraud claim fails as the record contains no evidence from which a reasonable jury could conclude that defendants' were responsible for the allegedly false or misleading representations in a safety data sheet; and 3) plaintiff's civil conspiracy claim failed as a reasonable jury could not conclude that conspiring defendants substantially assisted plaintiff's employer in defrauding him.   

Read Taylor v. Airco, Inc., No. 07-2422

Appellate Information
Appeal from the United States District Court for the District of Massachusetts.
Decided August 3, 2009

Judges
Before: Boudin, Lipez, and Howard, Circuit Judges.
Opinion by Lipez, Circuit Judge.

Counsel
For Appellant: Ronald Simon, Simon & Associates, Herschel L. Hobson, The Law Office of Herschel L. Hobson, Peter B. Sessa, and Sessa, Glick & Quiroga LLP.

For Appellee:  Timothy J. Coughlin, Heidi B. Goldstein, Andrea B. Daloia, Thompson Hine LLP, Richard L. Neumeier, Mark S. Granger, and Morrison Mahoney LLP.