Articles Posted in Personal Injury

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The Ninth Circuit affirmed the dismissal of an action under the Federal Tort Claims Act brought by a surviving spouse, alleging wrongful death and malpractice when a medical center operated by the VA caused Randy Tunac's death. The panel held that, to the extent the complaint alleged negligence by VA healthcare employees, it had jurisdiction under the FTCA. However, the negligence claims regarding VA operations must proceed under the congressionally-mandated pathway set forth in the Veterans' Judicial Review Act (VJRA), and any appeal can be heard only by the United States Court of Appeals for the Federal Circuit. The panel held that, to the extent the court had jurisdiction, the claims were barred by the FTCA's statute of limitations and those claims were not equitably tolled. In this case, the two year statute of limitations had long run when plaintiff filed her administrative claim and any alleged concealment by the VA of a widespread problem regarding delayed treatment did not result in concealment of the operative facts that would merit equitable tolling. View "Tunac v. United States" on Justia Law

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The anti-discrimination prohibition in the Air Carrier Access Act of 1986 (ACAA) is not enforceable through an implied private cause of action. The ACCA prohibits air carriers from discriminating against individuals on the basis of a physical or mental impairment. The Ninth Circuit affirmed the district court's dismissal of plaintiff's claim against Southwest that alleged a violation of the ACCA. The panel joined the Second, Fifth, Tenth, and Eleventh Circuits in concluding that, in light of the ACAA's statutory structure, Congress did not intend to create a private cause of action under the ACAA. Therefore, plaintiff's claim was properly dismissed. View "Segalman v. Southwest Airlines Co." on Justia Law

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The Ninth Circuit affirmed the district court's dismissal based on lack of subject matter jurisdiction of an action alleging claims under the Federal Tort Claims Act (FTCA). The panel held that the USGS's decision not to mark a cable, which allegedly resulted in the crash of a helicopter, was driven by policy considerations and fell within the discretionary function exception to the FTCA. Applying Berkowitz v. United States, 486 U.S. 531 (1988), the panel held that nothing in the USGS's policy created a mandatory and specific directive to mark the Verde River cableway, and the policy left employees with a discretionary choice about which cableways were hazardous and which should be marked. Furthermore, the USGS's decision was susceptible to policy analysis grounded in social, economic and political concerns. View "Morales v. United States" on Justia Law

Posted in: Personal Injury

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The Ninth Circuit affirmed the district court's dismissal of plaintiff's tort action against the United States for the tragic death of his wife. Plaintiff's wife was a lieutenant in the Navy and she died due to a complication following childbirth. The panel held that plaintiff's medical malpractice claims were barred under the Feres doctrine, which provided governmental immunity from tort claims involving injuries to service members that were incident to military service. View "Daniel v. United States" on Justia Law

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The Ninth Circuit reversed the dismissal of a seaman's claims in admiralty against a vessel in rem. The panel held that the district court erred by denying the seaman's maintenance requests in full, staying the action, and dismissing the vessel; the district court obtained jurisdiction over the vessel when the seaman filed a verified complaint and defendants appeared generally and litigated without contesting in rem jurisdiction; the district court did not lose in rem jurisdiction while the vessel remained in its constructive custody; the district court's control over the vessel, once obtained, was exclusive; and the automatic bankruptcy stay did not affect the seaman's lien against the vessel and the bankruptcy court had no authority to dispose of the lien through the application of bankruptcy law. The court explained that when, as in this case, a seaman establishes his entitlement to maintenance and provides some evidence of his actual living expenses, the burden shifts to the vessel's owner to produce evidence that the seaman's actual costs were unreasonable. The panel issued a writ of mandamus to the district court to award the seaman maintenance for his undisputed actual and reasonable expenses subject to a potential increase after trial. View "Barnes v. Sea Hawaii Rafting, LLC" on Justia Law

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The Ninth Circuit affirmed the district court's dismissal of an action against Twitter, seeking civil remedies under the Anti-Terrorism Act. Plaintiffs filed suit against Twitter under 18 U.S.C. 2333(a), the civil remedies provision of the ATA, alleging that they were injured "by reason of" Twitter's knowing provision of material support to ISIS. The panel held that plaintiffs have not pleaded that Twitter's provision of accounts and messaging services to ISIS had any direct relation to the injuries plaintiffs suffered. The panel declined to reach the second question presented: whether Section 230 of Communications Decency Act of 1996 protects Twitter from liability. View "Fields v. Twitter, Inc." on Justia Law

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Plaintiff filed suit under 42 U.S.C. 1983, alleging defendant, an off-duty police officer working as security for a private event, violated his rights under the Due Process Clause of the Fourteenth Amendment by failing to intercede and stop an assault. The Ninth Circuit reversed the district court's grant of summary judgment based on qualified immunity and on the merits. The panel held that defendant may not assert qualified immunity because he was not serving a public, governmental function while being paid by the hotel to provide private security. On the merits, the panel held that a reasonable jury could find that defendant exposed plaintiff to harm he would not otherwise have faced, that this harm was foreseeable, and that defendant acted with deliberate indifference in the presence of the known danger created by his conduct. View "Bracken v. Chung" on Justia Law

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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