Hundreds of Mass Tort Cases Filed Against Maker of IVC Filter

Cook IVC

What if a pulmonary device intended to help prevent blood clots in your lungs suddenly tilted, broke, or migrated throughout your body? The industry of mass tort litigation continues to rise with new multidistrict litigation (“MDL”) on retrievable Inferior Vena Cava filters (“IVC”).

Early Stages of Litigation

IVCs are small filter devices designed to prevent blood clots from traveling from the lower body to the lungs, causing a pulmonary embolism. IVCs are intended to be temporary, but when left in place, the struts of these filters break loose. This breakage within the body can be life-threatening and has been known to cause serious injury and death.

IVC litigation is still in the early stages now, but a new MDL approved in the U.S. District Court of Arizona means now is an opportune time for plaintiff firms to start signing clients. The current IVC filter lawsuits were filed against Cook Medical Inc.’s Celect IVC filters and Günther Tulip IVC filters.  IVC filter lawsuits have also been filed in the U.S. District Court, Southern District of Indiana, including a large increase of filings over the summer months.

120 filings had been made against Cook, the Bloomington, Indiana-based IVC company, as of August 27, 2015.

The IVC lawsuits also allege that Cook’s medical devices are defectively designed, are sometimes difficult to remove, and cause serious patient complications. Additionally, filings contend that Cook failed to provide sufficient warnings and instructions to physicians and their patients about the dangers and adverse effects caused by its filters.

The most commonly-claimed side-effects of the Cook IVCs are:

  • Perforation of the heart, lung or other organs
  • Punctured vena cava
  • Perforated aorta and fractured IVCs
  • Migration of filters from original position
  • Detached components of the device
  • Difficulty removing the IVC
  • Death


The Food and Drug Administration (“FDA”) is currently encouraging all doctors to remove IVC filters as soon as the risk of a pulmonary embolism is no longer necessary. The FDA issued warnings about the risk associate with the use of IVC filters in 2010 and again in 2014.

IVCs and Multidistrict Litigation

Multidistrict litigation is helpful in mass tort cases like this because it allows attorneys to litigate common factual issues efficiently and effectively for their respective clients. There is currently no data available on settlement values because these cases are still new and are currently developing. The current marketing cost to acquire an IVC client ranges from $300 to $600.

Mass tort attorneys, particularly MDL hopefuls, realize that there is a cost to bring in this unique type of clientele. Money spent by MDL and mass tort attorneys on the front-end helps these attorneys grow their cases and – ideally – eventually reap the rewards of larger verdicts for their clients.

Pulmonary embolisms, or blood clots in the lungs, can be deadly. IVC filters are used by patients who are at risk of experiencing a pulmonary embolism, especially those patients who cannot take anticoagulants, or for those for whom blood thinners were ineffective.

The cases are: In Re: Bard IVC Fliters Products Liability Litigation, MDL No. 2641 and In Re: Cook Medical, Inc., IVC Filters Marketing, Sales, Practices and Products Liability Litigation, MDL No. 2570.

Connecticut Recognizes Parental Consortium Claims

parentalconsortiumThe Connecticut Supreme Court agreed that children of an injured parent should be allowed to bring a claim for loss of parental consortium. Connecticut was one in five states that previously declined to recognize children’s claims.

Jose Campos was killed after a car struck him while he was riding his bicycle. The vehicle was operated by the defendant, Robert Coleman and owned by his employer LQ Management. The family was awarded $2.9 million for the wrongful death claim and $1 million for spousal loss of consortium.

The Campos family’s primary argument was to overrule Mendillo v. Board of Education, which declined to recognize a parental consortium claim. 717 A.2d 1177 (1998).   In Mendillo, the court declined to allow the claim for the following reasons:

  • The additional economic affects on the public;
  • The uncertainty of whether recognition would produce social benefits;
  • The risk of double recovery; and
  • The weight of judicial authority.


The state supreme court believed, however, that a failure to recognize this type of claim would be “inconsistent with the fundamental policy purposes of the tort compensation system. . .”

Parent-Child Relationships

The state supreme court favored recognition of the claims because the factors surrounding the claim outweighed those disfavoring the claim. Specifically, the unique emotional attachment in a parent-child relationship was distinguishable from other familial relationships. While the parent is no longer with the child, it is necessary for the child to have continued development and for innocent parties to be compensated.

The court acknowledged that its reasons in Mendillo were overstated. Previously, the court believed that recognizing the parental consortium claim would open the door to an unlimited class of plaintiffs who could “present equally strong claims of loss of consortium.“

The court further explained that minor children are the only ones who have a legal entitlement to the claims because adult children are presumed independent of their parent’s care. Minor children suffer the most by an injury to the parent.

Additionally, there is no distinction between the loss suffered by natural children versus an adopted or stepchildren, because the deprivation is the same.

Undue Societal Impact & Large Families

The parent-child relationship is distinguishable from other familial relationships. The impact of the injury to the parent is foreseeable and the only workable way to compensate for the loss is a monetary award.

The court stated that if a monetary award was not available the effects of the loss may have a broader societal impact such as the child’s future development as a contributing member of society.

Mendillo was concerned with the number of potential claims if there are multiple children. With larger families there will be additional claims made, however the number of potential claims is not a sufficient reason to deny the action, the court stated. The larger the family the greater the scope of injury.

Double Recovery

If the claim for parent consortium were recognized, previous courts believed the surviving spouse and the children would both recover by filing separate claims. However, the court quickly dispensed with the issue by suggesting the parent’s claim and the child’s claim would be joined to the same proceeding and specific jury instructions should be provided on damages.

The court concluded its opinion by providing some guidelines for parental consortium claims in the state:

  • The parental consortium claims must be joined with parent’s negligence claim whenever possible;
  • Jury must be instructed that only the child raising the claim can recover the pecuniary value of the parent’s services;
  • The consortium claim will be barred when surviving parent’s claim has been terminated by settlement or by adverse judgment on the merits
  • The claim may be raised only by a person who was a minor on the date of the parent’s injury and damages are limited to the period between the injury and date the child reaches the age of majority.


This case is Gregoria Campos, Administratix (Estate of Jose Mauricio Campos), Et Al v. Robert E. Coleman Et Al., Case No. SC 19195, Supreme Court of Connecticut.

Idaho Supreme Court Revives Pilot Wrongful Death Claim Against State

pilot wrongful deathThe Idaho Supreme Court revived a wrongful death case against the Idaho Department of Fish and Game brought by the father of a pilot who died in a helicopter crash with two coworkers. One of the employee’s clipboards fell out of the helicopter, striking its tail rotor.

The district court granted the Idaho Department of Fish and Game’s motion for summary judgement to dismiss the case.  The decision was overturned on appeal by the state supreme court, which found there to be genuine issues of material fact regarding the liability of the department for the crash.

Helicopter contracted for research

The department contracted a helicopter to fly two of its employees, Larry Barrett and Danielle Schiff, over the Selway River in Idaho to collect data on salmon spawning.  Prior to the flight the pilot, Perry J. Krinitt, Jr., briefed Barrett and Schiff, informing them they must at all times maintain control of any items they had with them.

During the flight, pilot Krinitt sat at the center seat where the flight instrument pedestal was located. Barrett sat on the left and made observations of the salmon spawning beds, while Schiff sat on the right and recorded Barrett’s observations on paper that she held with a metal clipboard.

Krinitt intended to land and refuel in Kamiah, Idaho.  While descending, a man installing a sprinkler system in Kamiah noticed the helicopter flying toward him.  After hearing a loud bang, he saw something come off the tail rotor.

The helicopter then rotated back and forth while descending. The man saw the right door open and stated that it appeared someone was in the doorway contemplating jumping.  The helicopter continued to rotate until it fell straight down and crashed. Krinitt, Schiff and Barrett died in the crash.

Wrongful death claim dismissed, revived

Krinitt’s father, Perry Krinitt Sr. of Laguna Niguel, California, brought a wrongful death lawsuit against the department, contending that the negligence of the department or its employees caused the accident when Schiff’s clipboard fell out of the helicopter.

The district court dismissed Krinitt Sr.’s claim, finding that the evidence did not show who had possession of the clipboard when it left the helicopter cabin, and that it hitting the tail rotor was an unforeseeable accident.

The state supreme court overturned the district court’s decision:

  • It found that the trial court erred in granting the department summary judgement and erred in failing to apply the doctrine of res ipsa loquitur.  The court found that the district court, however, did not err in ruling that Krinitt Sr. failed to establish a claim of negligence per se.
  • The supreme court found that the lower court erred because it did not draw all reasonable inferences from the record in favor of the moving party. The court found that it was undisputed that Schiff was in possession of the clipboard and retained control of it until she lost it on the flight.
  • The supreme court also found that based on the record and testimony, there was evidence that the clipboard could not have left the helicopter unless Schiff opened the door and failed to maintain control of the clipboard


District court mischaracterization

The court further stated that the district court mischaracterized the helicopter owner’s deposition statements. The lower court said the owner testified that he did not foresee that a clipboard falling out of the door could damage the helicopter.

However, the supreme court said he stated that he did not fathom someone would fail to keep control of the clipboard. The clipboard was found in the wreckage near the fractured tail rotor blades, with “creasing, tearing and red paint transfer marks…consistent with the clipboard being struck by the tail rotor.”

The supreme court found that the district court further erred when it had no basis to conclude that it was unknown how the clipboard got from the cockpit to the rear rotor. The court wrote that on “the contrary it is ‘obvious and undisputed” how the clipboard fell.

Even in oral arguments, the department acknowledged that no one disputed that the metal clipboard struck one of the blades, which led to a succession of events that caused the tail rotor disassembly to disengage.

Circumstantial evidence was sufficient

The supreme court also ruled that the lower court failed to recognize that “circumstantial evidence is competent to establish negligence and proximate cause, and the circumstantial evidence in this case indicated that Schiff failed to maintain control of the clipboard.

The district court erred further when it held that the doctrine of res ipsa loquitur (meaning “it speaks for itself”) was inapplicable to this case.  The supreme court, finding the district court’s reasoning “unavailing.” found that the “evidence was sufficient to show that the clipboard was under the exclusive control and management of the [department’s] employee.  Further, a jury could conclude that the accident would not have happened but for Schiff’s negligence.

The supreme court vacated the judgement and reversed the order granting the department’s summary judgement from the district court.  The court awarded the plaintiff costs on appeal.

The case is Krinitt v. Idaho Department of Fish and Game, case number 41417-2014 in the Supreme Court of The State of Idaho.


Sender Has No Privacy In Text Messages Used To Convict Him of Homicide

text messageA Wisconsin Court of Appeals upheld a ruling that a man who sent text messages to a man found dead from painkiller overdose, did not have a reasonable expectation of privacy in those messages.

Information contained in the text messages was used to convict the man who pled guilty to second-degree reckless homicide.

Pain patch caused overdose

A Delafield, Wisconsin, police officer responded to a call and found the body of Wayne Wilson. He had a fentanyl narcotic painkiller patch in his mouth. The police officer found Wilson’s phone and read text messages between Wilson and Ryan Tentoni discussing Tentoni providing Wilson with fentanyl patches.

Wilson texted Tentoni that some patches were “like duds” to him and he did not feel the effects. Tentoni suggested that Wilson fold and suck on the patch. The police officer testified that the folding method described in the text message from Tentoni matched the position of the patch in Wilson’s mouth.

The Waukesha County Medical Examiner testified that the cause of death was acute fentanyl intoxication.

Phone search leads to warrant

The police officer, relying on the text messages found in Wilson’s phone from Tentoni, obtained a warrant for Tentoni’s phone. The warrant produced 350 messages between Tentoni and Wilson in the month prior to Wilson’s death, and around 4,000 text messages between the two men in total.

Tentoni attempted to have the text messages suppressed, arguing that he had a privacy interest in the messages discovered through a warrantless search of Wilson’s phone.

He also argued the additional text messages produced under the warrant were the fruit of the “government’s illegal search of his text messages stored in Wilson’s phone.”

No reasonable expectation of privacy

The circuit court denied Tentoni’s motion to suppress.  He pled guilty to an amended charge of second-degree reckless homicide, then appealed.

The Appeals court affirmed the circuit court’s finding, writing that Tentoni did not have an “objectively reasonable expectation of privacy” in the text messages because he had no property interest in Wilson’s phone.

Tentoni did not have control over Wilson’s phone and did not have the right to exclude others from the messages on Wilson’s phone.  The court further wrote that Tentoni did not claim he attempted to keep the privacy of his text messages by telling Wilson to keep the messages private.

Factors to determine privacy expectation

The court examined the right against unreasonable searches and seizures under the Fourth Amendment and discussed that they are “personal and may not be asserted vicariously.”  In order for Tentoni to have had a privacy right in the messages, he had to show a “legitimate expectation of privacy” in Wilson’s phone by meeting two criteria:

  • He had an actual, subjective expectation of privacy in the area searched and item seized
  • Society is willing to recognize the defendant’s expectation of privacy as reasonable


To determine the reasonableness of his expectation, the court considered six factors in the totality of the circumstances, which are:

  1. Whether the person had a property interest in the premises;
  2. Whether the person was legitimately on the premises;
  3. Whether the person had complete dominion and control and the right to exclude others;
  4. Whether the person took precautions customarily taken by those seeking privacy;
  5. Whether the person put the property to some private use; and
  6. Whether the claim of privacy is consistent with historical notions of privacy.


Looking to other circuits, the appeals court reiterated that a sender of a communication, including letters, e-mails and texts, “has no privacy interest in the contents” of the communication once it reaches the recipient.

The ruling in the case follows some circuit courts that have ruled that information provided from electronic devices are not protected by privacy rights or the Fourth Amendment.

No control over sent messages

Focusing on the issue of control, the court found that Tentoni had not control over the messages he sent to Wilson once Wilson received them.

Once it reaches the recipient, the sender has no control over the message, whether it be “saved, destroyed or deleted, shared, or disclosed to others.”

The lack of control exemplifies the absence of a right to exclude others, and no reasonable expectation of privacy in the text messages.

The case is State of Wisconsin v. Tentoni, Appeal No. 2014AP2387-CRll in the Wisconsin Court of Appeals District II.

$8 Million Award Upheld Against Trucking Companies and Driver

Illinois truckingAn Illinois appeals court upheld an $8 million damages award against two trucking companies and the driver who struck and killed the plaintiff’s wife.

There were four defendants in the case:

  • Transfreight, a trucking company contracted with Toyota to make parts deliveries.
  • Kiswani Trucking, which was responsible for delivering the goods from a particular warehouse.
  • WD Trucking, which was subcontracted by Kiswani Trucking.
  • Robert Kleppe, the tractor-trailer driver hired by WD Trucking, who hit plaintiff Stephen McHale’s wife.


The plaintiff later dropped his suit against WD Trucking. The opinion consolidated three appeals: two appeals from the wrongful death action and one from an indemnity action.

The Master Agreement

Transfreight had a master agreement with Toyota to deliver parts to various locations. It was allowed to subcontract as needed in compliance with the master agreement.

Transfreight contracted with Kiswani, which was assigned to transport the goods pursuant to the specific routes outlined by Toyota. The Kiswani-Transfreight agreement allowed Kiswani to subcontract as necessary, in addition to carrying $5 million in comprehensive and vehicle liability insurance.

However, Transfreight orally modified the insurance requirement to $1 million.

Robert Kleppe, the tractor-trailer driver for WD Trucking, veered off course and made a stop not listed in the route specifications. During his detour, Kleppe struck and killed Stacey McHale who was standing next to her broken down vehicle.

Who is responsible?

Prior to trial, the plaintiff filed a third amended complaint alleging Kleppe and Kiswani had an employee/agent relationship and the Kiswani was responsible for the negligence of Kleppe. Kiswani admitted fault and the case proceeded to a jury on the issue of damages.

The defendants argued the trial court erred because on three occasions, details about the plaintiff’s financial status was admitted as evidence.  The court believed the instances where McHale’s economic status was presented did not rise to the level of a reversible error. The court believed any error was cured when the jury instructions were provided.

Transfreight contended Kleppe and Kiswani were not their agents. The panel noted there was overwhelming evidence that supported a finding contrary.

Transfreight also took issue with the jury form submitted during trial, which allowed the jurors to apportion damages. The appeals court agreed that the jury should not have been able to apportion damages but that fact alone did not warrant a new trial as requested by Transfreight.

On the final issue on indemnification, the court ruled that both parties agreed to the insurance coverage reduction and this change did not limit Kiswani’s potential liability. Based on the contract, Kiswani agreed to indemnify Transfreight without limitations.

This case is Steven McCale v. W.D. Trucking, Kiswani Trucking, and Transfreight LLC, Case No. 10 L 2934 F, Appellate Court of Illinois First Judicial District.

7th Circuit Rules Ineffective Counsel in Sexual Strangulation Case

Credit: Master Herald

The Seventh Circuit Court of Appeals granted a writ of habeas corpus for a man who is arguing that his counsel was ineffective in failing to consult a pathology expert in his trial for the strangulation death of his ex-wife during sex.

Joyce Oliver-Thomas died of manual strangulation caused by consistent pressure on her neck.  Oliver-Thomas and her ex-husband, Oscar, lived together as roommates who occasionally had sex with one another after their divorce in 1999.

Ex believes he caused death accidentally

Oscar Thomas called the police to report that Joyce was unconscious at 3:24 am on December 27, 2006.  Police found her unresponsive and she was later pronounced dead in the hospital.

In a police interview, Thomas said he had his “left arm around Joyce’s neck” and his right arm “underneath her” while having sex. He further stated, “I didn’t think I was squeezing hard but Joyce was struggling, yelling to stop.” He stopped when Oliver-Thomas threatened to bite him. Thomas said he came back later to find her laying face down on the floor and believed he was “accidentally responsible” for her death.

Thomas was convicted of intentionally committing her murder, first degree sexual assault and false imprisonment. The state medical examiner testified that there was no evidence of external bruising on Oliver-Thomas’s neck and no signs of a struggle or fight between the former spouses.

However, the autopsy revealed hemorrhages inside her neck and bruises to her thyroid and larynx, showing that the application of intentional pressure by an arm or forearm caused Oliver-Thomas’s strangulation death.

Ex-husband appeals conviction

In his post-conviction hearing, Thomas’s new attorney argued that his trial counsel denied effective assistance because he did not use a pathologist to review the state medical examiner’s findings.  A forensic pathologist used by Thomas in the post-conviction hearing reported that there was no physical evidence showing that “intentional” pressure was applied to the neck and there was “actually no evidence of manual strangulation.”

The post-conviction court denied relief, finding no prejudicial deficient performance by the trial attorney. The state appellate court affirmed, but did not address whether trial counsel’s performance was deficient.

The district court found that trial counsel had no reason to question the cause of death and did not prejudice Thomas because the expert pathologist could not rule out strangulation as a cause of death.

Court of Appeals finds deficient representation

The Court of Appeals determined that Thomas’s right to effective counsel was violated, allowing him to move forward on his habeas petition.

The court found that Thomas’s trial attorney was deficient in failing to consider and consult with a pathologist expert.  Trial counsel testified that he did not “consider retaining a forensic pathologist to at least review” the state medical examiner’s report.

For another interesting article, see the case where two chimpanzees sought a habeas corpus ruling.

The court explained that it typically would give deference to counsel’s strategic decision to “forgo a certain trial strategy,” such as consulting an expert, but in this case the trial attorney admitted that his failure to reach out to an expert was not a conscious decision, rather “he just did not think to do so.”

The court reasoned that trial attorney should have known that an expert witness pathologist should have questioned the autopsy finding of intentional homicide, especially because there were no external marks or signs of a struggle on Oliver-Thomas.

Furthermore, the appeals court stated that reasonable counsel would have at least consulted a “pathologist to see if the medical findings could be reconciled with Thomas’s version” of Oliver-Thomas’s unintentional death.

Attorney’s performance prejudiced Thomas

The Appeals court reviewed and determined that the trial attorney’s performance prejudiced Thomas in not using a pathology expert.

It wrote that the “state’s case was not ironclad by any stretch of the imagination,” and that “Thomas’s intent was one of the lynchpin of the case.”  However, Thomas’ trial counsel did not use an expert witness, such as the one used during the post-conviction hearings.

That expert provided reconciliation of the facts of the case with Thomas’s statement to the police that he did not intentionally kill Oliver-Thomas, but instead had his arm around her neck during consensual sex.  The court found that there was a reasonable probability that with the use of an expert pathologist, such as the one used in the post-conviction hearing, the “outcome of the trial would have been different had counsel provided adequate representation.”

The court reversed and remanded to allow Thomas to continue his case.

The case is Thomas v. Clements, case number 14-2539 in the United States Court of Appeals for the Seventh Circuit.

$16 Million Verdict Upheld in Grain Elevator Death Lawsuit

Grain AccidentAn Illinois appellate court upheld a $16 million verdict award against a northwestern Illinois company for the families of two people who died in a grain elevator accident.

The defendant Consolidated Grain and Barge, argued unsuccessfully on appeal they were not responsible for the incident because Haasbach hired the employees; Haasbach also owned the facility where the teenagers were employed.

Two teenagers, Wyatt Whitebread, 14 and Alejandro Pacas, 19, died of asphyxiation after becoming trapped in a grain elevator filled with corn. The teenagers along with a third co-worker, Will Piper, were assigned to break up grain and push it through the bin.

While they were working a full-time employee opened the sump pump, located at the bottom of the bin and Whitebread, fell and began to sink into the mass of corn.

Pacas and Piper attempted to rescue Whitebread, but the grain flowed to quickly to dig or pull Whitebread out. The workers grabbed Whitebread but began to slide into the bin themselves.

Piper was the sole surviver after a six hour rescue mission that involved 300 workers. A doctor noted he also suffered from survivor’s guilt and post-traumatic stress disorder. The accident also impaired his ability to walk until three days after being hospitalized.

A jury found the company liable on three counts of negligence during the 2014 trial.

According to the Chicago Tribune, Haasbach settled with the families prior to trial. OSHA cited the company with 25 safety violations in late January 2011, including violation of child labor laws, and failure to develop an emergency action plan.

The Whitebread and Pacas’s family will receive $8 million each and Piper was awarded $875,000.

Utah Supreme Court Rules Damages Caps Unconstitutional

utah medmalThe Utah Supreme Court ruled that damage caps in medical malpractice cases are unconstitutional and do not apply to wrongful death cases.

Prior to this decision, the Utah legislature amended the Utah Health Care Malpractice Act to impose damage caps in medical malpractice cases. However, the change did not account for wrongful death suits.

Plaintiff Gregory Lynn Smith filed a medical malpractice suit in 2010 against the VA medical center in Utah after his son, Gregory Lee Smith, died of an acute drug intoxication.  

Smith, who had sustained  back injury in the military in 2005, was sent home from the VA hospital after receiving back surgery; the VA medical staff prescribed the medications, which contributed to his death.

Multiple Back Surgeries

Smith had undergone two surgeries before his treatment at the VA Medical Center. The third procedure at the medical center required a permanent electric stimulator, which is used to treat chronic back pain.

According to the Salt Lake Tribune, instead of spending two to three days for recovery, Smith was sent home after one day despite his concerns of being discharged so early. He was sent home with morphine in addition to other prescribed medications.

The following day, Smith experienced some vomiting but refused to go to the ER and elected to go to bed around 9:30 pm. The morning of what would have been his second day home, Smith’s roommate found him dead.

Unconstitutional Damages Cap

The Utah malpractice act capped damages in a malpractice action at $450,000.

The state supreme court stated that recovery for damages includes compensation for the loss of anticipated wages, loss of assistance, care, comfort, and support of the deceased.

Recovery for the economic and noneconomic damages existed at the time that the state constitution was created and thus the damages are protected from legislative caps. However, compensation for mental anguish and suffering of survivors can be limited by the state legislature.

The US argued that because the plaintiff was entitled to compensation up to the cap they are still getting a recovery. The court rejected their argument stating simply because a plaintiff can recover damages does not translate into compensation. The Utah constitution says damages that can be recovered for injuries “shall not be subject to any statutory limitation.”

This case is Gregory Lynn Smith v. United States of America, Case no. 20131030, in the Supreme Court of the State of Utah

Court Affirms $1M Award in Case of Slain Parolee Shot in Back

The Eighth Circuit US appeals court upheld a $1 million award for children of a slain parolee, who was shot by a state fugitive apprehension agent attempting to arrest him.

workshopThe federal court ruled that there was evidence that supported that Steven Julian, the fugitive recovery agent, acted with reckless indifference in causing the death of the 23-year-old Zachary Snyder.

Attorney Steve Walsh stated this was a tragic case involving a “kind, gentle young man who lost his life in a senseless shooting by a remorseless parole officer.”

Snyder was on parole for possession of a controlled substance and automobile theft. In 2008, the state parole board determined Snyder had absconded and issued a warrant for his arrest.

The estate filed the wrongful death claim on the children’s behalf, who were then aged from 4 to 9. The jury deliberated close to five hours before returning a decision to award the young children $1 million for the wrongful death claim. The court cited the incident as an intentional shooting by Steven Julian.

On appeal, Julian argued he was entitled to official immunity under Missouri law and that he was protected by Missouri’s public duty doctrine.

The Intentional Shooting

After receiving a tip of Julian’s location, Julian saw Snyder and announced himself as a parole officer with a warrant for Snyder’s arrest. Snyder did not resist Julian, instead he placed his hands on Julian’s car. According to reports, “Julian stood to Snyder’s left and placed his left hand on Snyder’s shoulder.”

”At that point, Snyder turned to his right and began to run. “Snyder took two steps and Julian fired one shot, the bullet entered Snyder’s back and exited his left chest, through his right lung, killing him.”

Julian argued he made a “split second decision to discharge his service weapon as an immediate reaction” based on the belief that Snyder would have attacked him. Not only did Julian give three different versions of Snyder’s movements according to a retired officer who investigated the scene, but Snyder was unarmed and Julian could not describe how the parolee was attacking him. The court agreed that Julian was not entitled to immunity because there was evidence to support malice.

Alternatively, Julian argued the jury award was excessive and supported his motion for a new trial. Circuit Judge Colloton wrote, “in light of the Snyder’s age, life expectancy, and his relationship with his four children, the court could not say the $1 million award was a plain injustice.”

This case is Estate of Zachary Snyder v. Steven Julian, Case No 13-3012, United States Court of Appeals for the Eighth Circuit


Wisconsin Court Allows Wrongful Death Claims by Third Parties After Statute of Limitations

exxonThe Wisconsin Supreme Court affirmed a lower court decision permitting third parties to file wrongful death and survival claims past the three-year statute of limitation applying the judicially created discovery rule.

The discovery rule provides that the statute of limitations begin when the plaintiff discovers or should have discovered the injury, and that the defendant may have caused the injury.

The rule permits wrongful death and survival claims after the date of the decedent’s death if the third-party discovers, or in the exercising reasonable diligence should have discovered the injury and the identity of the responsible defendant. The three-year statute of limitations then begins to run upon discovery or when the parties should have reasonably discovered the injury.

Benzene exposure caused injury and death

Former employees, estates and beneficiaries of former employees of the Eau Claire Tire Manufacturing plant (Eau Claire) sued Eau Clair and Exxon Mobil Corp (Exxon) for injuries and deaths from their exposure to benzene in the work place.

Exxon attempted to dismiss the lawsuit asserting that the plaintiffs filed claims after the three-year statute of limitations expired because their claims could not have accrued after the deaths of the decedents, some of whom died more than three years before the filing of the lawsuit.   Exxon contended that the discovery rule in wrongful death and survival claims did not extend to parties other than the decedents.

The court sided with the plaintiffs who reasoned that their claims did not accrue until they had reason to believe that Eau Clair and Exxon were responsible for the injuries, even if after the dates of the decedent’s death.

The court explained that following the discovery rule, a cause of action accrues when there is a claim capable of enforcement, a party responsible, and a party with the right to enforce the claim.  A tort claim may accrue when negligence occur causing an injury, or when the injury is discovered.

The court stated that they adopted the discovery rule for public policy purposes to protect plaintiffs who are unaware of injuries when they happen and discover them after the statute of limitations has run out.

Exxon relied on overruled case law

Exxon and Eau Clair attempted to use a case from 1935 to support their claim that a wrongful death claim accrues at death.  The court found the defendants reliance on the law “unavailing” and found that “for all practical purposes” the case was overruled by other case law and “expressly overruled here.”

The court considered the potential effects of their ruling on other defendants.  It reassured that plaintiffs will not receive an advantage in trot cases because they must still make a showing that the delay in their discovery of the claim was reasonable, and they continue to have the burden of proving its case, stating the “burden is not relaxed in older cases kept alive by the discovery rule.”

Defendant’s Constitutional claim

The court outright dismissed Exxon’s claim that the appeals court decision violated their constitutional rights upon their belief that the court of appeals was incorrect in its decision against them.  The court stated that Exxon’s “argument on this point does not seem to be fully developed” so it was only addressed briefly, ruling that Exxon’s constitutional rights were not violated.

The court affirmed that the discovery rule permits plaintiffs to pursue survival claims and wrongful death claims, even after the decedent’s death so long as there is a “claim capable of present enforcement.”  The court remanded the case to the circuit court to determine whether the plaintiffs have satisfied the statute of limitations under the discovery rule.

The case is Christ v. Exxon Mobil, Case number 2012AP1493 in the Supreme Court of Wisconsin