Personal Injury And Med Mal Cases To Watch In 2021

By Y. Peter Kang
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Law360 (January 3, 2021, 12:02 PM EST) -- The batches of lawsuits lodged against cruise ship companies and nursing homes related to coronavirus injuries and deaths, and a Florida high court case over medical expert pay disclosure, are among the cases personal injury and medical malpractice attorneys will be following in 2021.

Here, Law360 takes a look at a handful of cases that could shape the future of personal injury and medical malpractice law.

Cruise Ship Companies Face COVID-19 Quandary

There have been a slew of injury lawsuits hurled against Royal Caribbean Cruises Ltd., Carnival Corp. and its subsidiary Princess Cruise Lines, and other cruise ship companies related to coronavirus exposure, infections and deaths.

Out of the 173 tort cases spurred by COVID-19 filed through the third quarter of 2020, most bring negligence claims against cruise lines, according to Lex Machina's Torts Litigation Report.

Dozens of others are being litigated in state and federal court, including a proposed class action alleging Princess Cruise Lines allowed more than 2,400 passengers aboard a ship while knowing people on a previous voyage had COVID-19 symptoms.

Because of the unprecedented nature of the pandemic, litigants are in somewhat uncharted waters that could result in a handful of novel legal decisions, according to Forrest Booth, a San Francisco-based partner at Kennedys Law LLP who specializes in maritime law.

The defense-side attorney said the federal Death on the High Seas Act could be invoked to limit a plaintiff's payout to pecuniary damages, or damages that can be measured in financial terms.

"The fact is, a lot of the [passengers] are elderly and retired or not employed, so their loss-of-wage claims are either nonexistent or very small," Booth said. "If it is ruled to be a DOHSA case, then the quantum of damages recoverable will be quite a bit lower."

Booth noted that proposed class actions lodged by well-heeled plaintiffs' firms could prove challenging for the cruise ship companies.

"There are going to be some real battles in some of the class actions with very good firms on both sides," he said. "The class action firms that do this kind of work have the resources to fight the fight. I think those cases will be tried after many motions and go up on appeal and there will be a lot of jurisprudence on that eventually."

The case is Archer et al. v. Carnival Corp. and PLC et al., case number 2:20-cv-04203, in the U.S. District Court for the Central District of California.

Legal Roadblocks Loom for Nursing Home Coronavirus Suits

Unlike the numerous suits targeting the cruise line industry, there have been significantly fewer coronavirus-related suits lodged against nursing homes. Plaintiffs' attorneys said they are wary of filing suits since numerous states have enacted liability shields for health care providers, not to mention the challenge of establishing causation given the novel and unprecedented nature of the virus and how it spreads.

Nevertheless, attorneys will be closely watching the handful of suits filed against nursing homes in Illinois, Florida, Pennsylvania and New Jersey. Levin & Perconti partner Michael Bonamarte in Chicago said the more than half-dozen nursing home cases filed by his firm are likely the most filed in the state by one firm.

One of those cases alleges that Westchester Health and Rehabilitation Center, a long-term care facility that had 47 confirmed cases of COVID-19 and at least 12 deaths, failed to implement proper infection control protocols and negligently allowed symptomatic workers to treat patients without wearing personal protective equipment, in violation of federal health guidelines.

Westchester's parent company removed the case to federal court and lobbed a Nov. 10 motion to dismiss, arguing that it's shielded by Gov. J.B. Pritzker's April 1 executive order granting civil immunity to health care providers providing medical treatment in support of the COVID-19 outbreak, absent gross negligence or willful misconduct.

"The major issue will be the constitutionality of the governor's executive order, whether there needs to be a heightened standard and whether he has the authority to set it," Bonamarte said. "Even if the order is upheld, that's not necessarily going to deter us from continuing. It just means our burden is higher. And I think we will be able to meet that burden."

"We'll just have to see what the courts decide, because that's going to affect the cases we have not yet filed," he added.

The case is Walsh v. SSC Westchester Operating Co. LLC, case number 1:20-cv-04505, in the U.S. District Court for the Northern District of Illinois.

Florida Justices to Decide Medical Expert Pay Disclosure Issue

The Florida Supreme Court will decide whether the state's existing precedent has unfairly resulted in defendants being treated differently than plaintiffs regarding information they must disclose about their attorneys' or insurers' financial relationships with medical expert witnesses.

Counsel for defendants in two automotive personal injury cases said during oral arguments in September that the state high court's 2017 decision in Worley v. Central Florida Young Men's Christian Association , which shields details of the financial relationship between a plaintiff's law firm and treating physicians, has "upended" the law in personal injury litigation.

Defense counsel argued that the decision has not been applied evenly to both sides, resulting in plaintiffs essentially using it "as a sword and a shield" — refusing to respond to discovery requests about their expert witnesses while seeking "a ton" of information on the financial relationships between defendants' counsel or insurer and their expert witnesses.

"If the jury is only hearing that the defense's doctors are the ones being paid and have a financial interest, that always starts the defense behind the eight ball," said Kansas R. Gooden of Boyd & Jenerette PA, who is representing petitioners Steven Younkin and Brent A. Dodgen.

Gooden suggested the high court has three options: overturn Worley, hold that Worley applies to both sides' medical experts, or limit financial bias impeachment to what is laid out in Florida Rules of Civil Procedure 1.280.

The third option would allow parties to obtain discovery on experts regarding their employment and payment in the pending case; the percentage of work performed for the party; other cases in which they have testified within a certain timeframe; and the approximate portion of their work that consists of serving as expert witnesses.

Gooden noted the third option was favored by doctors who filed a friend-of-the-court brief in the case.

Mark Nation, an attorney for respondent Nathan Blackwelder, urged the justices to keep Worley intact.

"[Court precedent] makes clear that the discovery of the financial connection between a law firm and its specially retained expert for trial is relevant and it is not privileged," he said. "The trial court did not depart from the central requirements of the law."

The cases are Younkin v. Blackwelder, case number SC19-385, and Dodgen v. Grijalva, case number SC19-1118, in the Supreme Court of Florida.

Texas High Court to Decide Suit Over Mass Shooting

The Texas Supreme Court will decide whether to reverse lower court rulings that allowed four lawsuits to proceed against a sporting goods store in connection with the Sutherland Springs 2017 mass shooting, in which 26 people were killed.

During oral arguments in October, Academy Sports & Outdoors contended that the federal Protection of Lawful Commerce in Arms Act requires dismissal of the lawsuits that allege negligence in its sale of a rifle and magazines to gunman Devin Kelley.

Kelley killed 26 people and wounded 20 others in Sutherland Springs First Baptist Church in November 2017, using a rifle and two 30-round magazines purchased from Academy in April 2016. He crashed his vehicle and then killed himself after leaving the church.

Academy argued that the lawsuits are expressly barred by the PLCAA, which gives it complete immunity from being sued for the lawful sale of firearms.

"[The PLCAA] provides protection against a certain category of civil actions against licensed [firearms] retailers and manufacturers," Dale Wainwright of Greenberg Traurig LLP, an attorney for Academy, told the justices. "It's an absolute bar."

At issue is whether the families are entitled to a "predicate exception," which states that the PLCAA cannot be invoked when a firearms retailer violates state or federal law. The families assert that the sale was illegal and violated the federal Gun Control Act of 1968 because Kelley, a Colorado resident, should not have been allowed to buy the retail package because of his home state's ban on high-capacity magazines.

An attorney for the families, Stephen I. Vladeck of the University of Texas School of Law, told the justices that they were not arguing that stand-alone high-capacity magazines should be considered firearms. Vladeck said the entire package, which included the rifle and a high-capacity magazine, was illegally sold to Kelley.

"Our position is that Academy's predicate offense, for purposes of PLCAA, was selling the Ruger model 8500 to Mr. Kelley after he presented as a resident of Colorado, a state in which that gun is not and cannot be sold," he said. "We know that another Texas retailer refused to sell Kelley that exact same weapon only after he presented his Colorado ID. Like everyone else in this case except Academy, it understood that the model 8500 could not be sold to a Coloradan."

The case is In re: Academy Ltd. dba Academy Sports & Outdoors, case number 19-0497, in the Supreme Court of Texas.

Investigation Ongoing in Kobe Bryant's Helicopter Crash Death

The results of a pending investigation by the National Transportation Safety Board loom large in the closely watched suit over the death of basketball legend Kobe Bryant, who was killed last year in a helicopter crash in Southern California.

Kobe Bryant was escorting his daughter, Gianna, and others to a youth basketball game at his Mamba Sports Academy in Thousand Oaks on Jan. 26 when the helicopter crashed in foggy weather. Along with the Bryants, Gianna's two basketball teammates, their parents and a basketball coach were also killed.

Kobe Bryant's widow, Vanessa Bryant, filed the suit in Los Angeles Superior Court in February, accusing Island Express Helicopters Inc. and deceased pilot Ara Zobayan of causing her husband and daughter's wrongful deaths.

The pilot's brother, Berge Zobayan, argued in a May court filing that Bryant and the other passengers knowingly assumed the risks of flying on the foggy day that claimed their lives. Meanwhile, the helicopter company lodged cross-claims in August, alleging that two Federal Aviation Administration air traffic controllers negligently handled a shift change that occurred during the flight.

An NTSB investigation is ongoing, and no preliminary findings have been released.

After the case was removed to federal court in September, the federal government said Island Express' cross-claims should have been filed as a separate suit under the Federal Tort Claims Act, which governs injury claims against federal employees acting within the scope of their employment, and asked the judge to toss the cross-claims. A ruling on the government's motion to dismiss is pending.

The case is Bryant et al. v. Island Express Helicopters Inc. et al., case number 2:20-cv-08953, in the U.S. District Court for the Central District of California.

--Additional reporting by Nathan Hale. Editing by Breda Lund.

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