Case Summaries

Workers' Comp

[08/31] Hayes Lemmerz Int'l, Inc. v. ACE Am. Ins. Co.
In an employer's suit against its insurer for refusing to tender defense in an underlying suit under its workers' compensation and employer liability policy, judgment of the district court in favor of the insurer is affirmed as, because defendant was, by virtue of Indiana law, a joint employer, insurer was contractually obligated to reimburse the reasonable expense of defendant's getting itself dismissed from the tort suit. However, because the defendant is not claiming that insurer refused to pay that amount, but rather, it is complaining that the insurer breached its duty to defend by failing to advise defendant that it's law firm was not defending the suit properly, the insurer had no duty to provide its insured's lawyers with legal advice.

[08/27] Transcon. Ins. Co. v. Crump
In plaintiff's suit against her deceased husband's insurer for workers' compensation death benefits, the judgment of the court of appeals is reversed and remanded where: 1) the treating physician's opinion was based on a reliable foundation and, therefore, legally sufficient evidence supports the jury's verdict; 2) the trial court's omission of the but-for component in the jury charge constitutes reversible error; and 3) an insurance carrier is entitled to have a jury determine the disputed amount of reasonable and necessary attorney's fees for which it is liable.

[08/19] Milpitas Unified Sch. Dist. v. Workers' Comp. Appeals Bd.
In a School District employee's suit for workers' compensation claims, the decision of the Workers' Compensation Appeals Board is affirmed as, the language of section 4660 permits reliance on the entire American Medical Association's Guides to the Evaluation of Permanent Impairment, including the instructions on the use of clinical judgment, in deriving an impairment rating in a particular case.

[08/12] Alvarez v. Workers' Comp. Appeals Bd.
In a claimant's objection to a panel qualified medical evaluator's ex parte communication with defense counsel, and a request for a new panel qualified medical evaluator under section 4062.3(f), in a workers' compensation proceeding for death benefits, the Workers' Compensation Appeals Board's (WCAB) denial of the petition is annulled and remanded as section 4062.3 expressly prohibits ex parte communications with a panel qualified evaluator, with no exception based on the initiator of the communication or for "administrative" matters. However, because a certain degree of informality in workers' compensation procedures has been recognized, not every conceivable ex parte communication permits a party to obtain a new evaluation from another panel qualified medical evaluator.

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Injury & Tort Law

[09/10] Broekelschen v. Sec'y of Health & Human Serv.
In plaintiff's petition for compensation under the National Childhood Vaccine Injury Act of 1996, the United States Court of Federal Claims' affirmance of a special master's denial of the claim in concluding that plaintiff did not prove by a preponderance of the evidence that the flu vaccine caused his injury is affirmed as the special master's determination was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

[09/10] UFCW Local 1776 v. Eli Lilly & Co.
In a putative class action against Eli Lilly, manufacturer of the drug Zyprexa, asserting a civil RICO violation predicated on mail fraud, conspiracy to violate RICO, violation of state consumer protection laws, common-law fraud, and unjust enrichment based on Lilly's alleged misrepresentations about Zyprexa's efficacy and safety, the certification of a class and denial of summary judgment are vacated where: 1) because plaintiffs' excess price theory was not susceptible to generalized proof with respect to either but-for or proximate causation, class certification based on this theory was an abuse of discretion; and 2) the district court did not consider individual claims under plaintiffs' quantity effect theory when it ruled on Lilly's motion for summary judgment.

[09/10] Bowoto v. Chevron Corp.
In an action by protesters injured on defendant's oil platform in Nigeria, judgment for defendant is affirmed where: 1) the federal Death on the High Seas Act preempted wrongful death and survival claims brought under the Alien Tort Statute; and 2) corporations could not be found liable under the Torture Victim Protection Act.

[09/10] Coons v. Indus. Knife Co., Inc.
In plaintiff's suit under various state law product liability theories, for suffering a serious hand injury while changing an industrial paper-cutting knife at his place of employment, district court's reversal of a $328,000 judgment in plaintiff's favor and award of attorney's fees and expenses to defendant in connection with plaintiff's untimely designation of expert witnesses are affirmed where: 1) plaintiff's claim that defendant waived the statute of limitations defense by failing to raise it through a timely pre-trial motion or a renewed motion for judgment as a matter of law is easily rejected as a party does not waive a properly pleaded defense by failing to raise it by motion before trial; 2) the claims against defendant are time-barred as a matter of law and the amended complaint does not relate back to the original complaint; and 3) district court did not abuse its discretion, either in awarding fees in the first place or in determining the amount of the award.

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