Articles Posted in Personal Injury

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The zone of special danger doctrine can apply to local nationals working in their home countries under employment contracts covered by the Longshore and Harbor Workers' Compensation Act, as extended by the Defense Base Act (DBA). The Ninth Circuit denied a petition for review of a decision of the United States Department of Labor's Benefits Review Board (BRB) awarding disability benefits, pursuant to the DBA, to Edwin Jentil. Jentil was employed by a U.S. government contractor when he was injured. The panel held that the ALJ and BRB did not commit legal error by applying the zone of special danger doctrine to Jetnil. In this case, substantial evidence supported the ALJ and BRB's decision that Jetnil was entitled to disability benefits because his injury arose out of the zone of special danger associated with his employment. View "Chugach Management Services v. Jetnil" on Justia Law

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The Convention on Supplementary Compensation for Nuclear Damage's (CSC) text, structure, and ratification history dictate that Article XIII’s jurisdiction-stripping provision applies only to claims arising out of nuclear incidents occurring after the CSC’s entry into force. Plaintiffs, members of the United States Navy, filed a putative class action against TEPCO, alleging that they were exposed to radiation when deployed near the Fukushima Daiichi Nuclear Power Plant (FNPP) as part of Operation Tomodachi. The Ninth Circuit affirmed the denial of TEPCO's motion to dismiss and held that the CSC did not strip it of jurisdiction over plaintiffs' claims; the district court did not err by dismissing plaintiffs' claims on comity grounds and did not abuse its discretion in deciding to maintain jurisdiction; the district court did not abuse its discretion in declining to dismiss this case on forum non conveniens grounds; the panel was unable to undertake the "discriminating inquiry" necessary to determine if this case presented a political question; and the panel provided no opinion as to whether the firefighter's rule applies to military servicemembers and, if so, whether it barred plaintiffs' claims. View "Cooper v. Tokyo Electric Power Co." on Justia Law

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The district court erred in dismissing for lack of subject-matter jurisdiction plaintiff's administratively exhausted Federal Tort Claims Act (FTCA), 28 U.S.C. 1346, claim following the United States' second removal. In this case, plaintiff filed a medical malpractice suit against his medical providers, alleging that his mother had died of postpartum hemmorhage shortly after giving birth to him. The district court concluded that it lacked subject-matter jurisdiction over plaintiff's claims arising from Dr. Bencomo's actions, dismissed those claims without prejudice, and once again remanded the state claims against the individual defendants. The Ninth Circuit held that plaintiff's initial failure to exhaust his administrative remedies as to Dr. Bencomo whom plaintiff reasonably did not know was covered by the FTCA deprived the federal courts of subject-matter jurisdiction over plaintiff's FTCA claim even after plaintiff dismissed his initial suit against Dr. Bencomo, and then exhausted his administrative remedies before amending his complaint in state court to add Dr. Bencomo again. View "D. L. V. United States" on Justia Law

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After plaintiff's son died of Hepatosplenic T-cell lymphoma (HSTCL), an exceedingly rare and aggressive form of cancer, they filed suit alleging negligence and strict liability concerning the manufacture and distribution of drugs used to treat inflammatory bowel disease (IBD). The Ninth Circuit reversed the grant of summary judgment to Teva, holding that the district court erred by excluding plaintiffs' causation experts' testimony. In this case, the district court looked too narrowly at each individual consideration under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993), without taking into account the broader picture of the experts' overall methodology. The district court improperly ignored the experts' experience, reliance on a variety of literature and studies, and review of the son's medical records and history, as well as the fundamental importance of differential diagnosis by experienced doctors treating troubled outpatients. Furthermore, the district court overemphasized the fact that the experts did not develop their opinions based on independent research and the experts did not cite epidemiological studies. The panel reversed the district court's grant of summary judgment to Teva in regard to the duty to warn claim because there was a genuine dispute of material fact as to whether the prescribing physician's conduct would have changed with warnings from Teva and GSK. The panel declined to affirm the district court on four alternative grounds and reversed the district court's denial of plaintiffs' motion for reconsideration. View "Wendell v. GlaxoSmithKline" on Justia Law

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S.H., the daughter of William and Chantal Holt, was born prematurely while the family was stationed at a United States Air Force (USAF) base in Spain. As a result of her premature birth, S.H. was diagnosed with cerebral palsy after the family returned to the United States. The Holts filed suit against the United States, alleging that officials at a USAF base in California negligently approved the family's request for command sponsored travel to a base in Spain ill-equipped to deal with Mrs. Holt's medical needs. The Holts also argued that S.H.'s injury first occurred upon their return to the United States. The district court awarded damages to the Holts. The court applied the foreign country exception of the Federal Tort Claims Act (FTCA), 28 U.S.C. 2680(k), and held that an injury is suffered where the harm first impinges upon the body, even if it is later diagnosed elsewhere. Here, the undisputed facts of this case indicate that the force—the brain injury S.H. suffered at or near the time of her birth—impinged upon her body in Spain. Consequently, Spain is where the Holts' claims arose. The court concluded that S.H.'s cerebral palsy is derivative of the harm she sustained at birth. Accordingly, the court vacated and remanded with instructions to dismiss for lack of subject matter jurisdiction. View "S. H. V. United States" on Justia Law