Archive for the 'Lawsuit' Category

Can a Miscarriage Be a Wrongful Death Claim?

A recent decision from the Alabama Supreme Court allows a woman to proceed forward with a wrongful death suit against her obstetrician after suffering a miscarriage.  While the decision has rocked a few boats, the Court only affirmed existing laws that allow a person to sue for the wrongful death of an unborn child.

Miscarriage Wrongful DeathLet’s Check the Facts

Two days after finding out she was pregnant, Kimberly Stinnett experienced abdominal cramping and fever.  After an evaluation that included ultrasound, an obstetrician determined that Stinnett, based on the findings from the evaluation and Stinnett’s prior medical history, was experiencing an ectopic pregnancy.  An ectopic pregnancy occurs when a fertilized egg attaches itself in a place other than inside the uterus, which makes it impossible for a fetus to develop.

The obstetrician performed a dilation and curettage, commonly referred to as a “D&C”, which is a surgical procedure used to determine whether a pregnancy is intrauterine (within the uterus) or ectopic. Stinnett testified that the obstetrician told her, as a result of that surgical procedure, the pregnancy wasn’t ectopic, but that she believed a miscarriage had taken place.  The obstetrician, however, testified that she still had a strong suspicion that the pregnancy was ectopic and therefore ordered a drug commonly used to treat ectopic pregnancy.  The drug is intended to cause the end of pregnancy and was administered to Stinnett.

Stinnett attended a follow up appointment, in which she saw her original doctor.  A follow-up ultrasound showed that Stinnett was having a failing intrauterine pregnancy, possibly as a result of the drug the previous obstetrician had given her.  Several weeks later, Stinnett suffered a miscarriage.

Stinnett brought suit against the obstetrician and claimed:

  • Medical negligence for performing the D&C and administering the drug,
  • That because her pregnancy was not ectopic, the D&C should not have been performed nor should the drug should have been administered, and
  • That the obstetrician’s actions violated the applicable standards of care and proximately caused the loss of her baby.

In addition to her medical malpractice claims, Stinnett claimed wrongful death of her unborn fetus under Alabama’s wrongful death of a minor statute.  The personal injury claims stemming from the medical malpractice suit were allowed to go forward, but the lower court dismissed the wrongful death portion of the suit.  Stinnett appealed.

Why Did the Alabama Supreme Court Allow the Wrongful Death Claim to Move Forward?

Among other arguments, the obstetrician’s main argument rested on the idea that the wrongful death of a minor statute didn’t apply to her due to an exemption within another Alabama statute limiting criminal liability for licensed physicians who, through mistake or unintentional error, caused the death of a previable fetus.  The argument rested on the idea that if criminal liability was exempted, so too should civil liability.

The lower court agreed, but the Alabama Supreme Court ruled otherwise, stating, “[I]t simply does not follow that a person not subject to criminal punishment under the Homicide Act should not face tort liability under the Wrongful Death Act”.  The high court found doing so would, essentially, defeat the purpose (to prevent homicides) of allowing wrongful-death claims based on negligence in the first place.

The court remanded the wrongful death claim back down to the lower court, which means Stinnett has a chance to argue it in front of a jury.

Will She Win?

This case can appear a bit convoluted because it involves both wrongful death, as well as medical malpractice, but they essentially coincide with each other.  Wrongful death suits are brought when a person dies due to the negligence or misconduct of another.  In order to bring a successful wrongful death cause of action, Stinnett will need to prove:

  • The death of a human being,
  • Was caused by the obstetrician’s negligence (or intent to cause harm), and
  • That Stinnett is suffering monetary injury as a result of the death of her fetus (think losing future income from a spouse).

Alabama law allows wrongful death suits on behalf of previable fetuses, so Stinnett will have no problem proving the first element; it’s the other two elements that will be harder to prove.

Medical malpractice is one circumstance a plaintiff can use to prove a wrongful death claim.  If Stinnett can prove that the obstetrician acted negligently in a way that another competent obstetrician in similar circumstances would not have acted, then she’d have a good argument for medical malpractice.

Remember when I said Stinnett filed suit for medical negligence and wrongful death?  Even though the wrongful death suit was originally dismissed, the personal injury claims proceeded forward and a jury found in favor of the obstetrician.  What does that mean?  That the doctor wasn’t liable, which implies she followed the appropriate standard of care.  If that’s the case, then Stinnett won’t have much luck proving a wrongful death claim.

The Alabama Supreme Court noted in their decision that it wasn’t clear whether the jury’s decision rested on the obstetrician’s standard of care or whether it rested on the theory that Stinnett didn’t suffer any damages.  For those reasons, Stinnett has the option to proceed forward and, if she chooses to, she’ll need to prove both negligence with respect to the standard of care and that she suffered monetary injury.

Bieber and Usher “Usher” Out Copyright Claims

Many of the most famous musicians have faced high-profile copyright cases accusing them of stealing their music from another artist. From Led Zeppelin to the Beatles to Skrillex to the guy who wrote the Ghostbusters theme song, the list of musicians who’ve stared down a copyright infringement claim is a long on indeed,  In the last few years, Usher and Justin Bieber have been dealing with their own copyright infringement lawsuit.  The two were accused of stealing parts of their collaborative song “Somebody to Love” from an identically titled song written by two Virginia artists–Devin Copeland and Mareio Overton.

Understanding the Claim

Mr. Copeland and Mr. Overton wrote their own “Somebody to Love” back in 2008, two years before Usher and Bieber came out with their song in 2010 which then went on to peak at No. 15 on the Billboard Hot 100.  Copeland and Overton argued that Bieber’s song’s chorus
was incredibly similar to their own work and demanded $10M from the two artists.  However, the courts disagreed.  The case was dismissed, sent back down for reconsideration after appeal and Bieber and Usher finally succeeded in having the copyright lawsuit against them dismissed once and for all just a few weeks ago. 

The court’s decision revolved around the inability of the plaintiffs to show that Justin Bieber had access to their song before he wrote his own version–a fundamental element of proving copying in a copyright infringement case.  However, in order to truly understand the ruling it is necessary to understand exactly how copying is shown when somebody is accused of infringement.

Justin Bieber Copyright Claims

How to Put the “Copy” in Copyright Infringement

In order to succeed in a copyright infringement case you have to establish that the person you’ve accused of infringement, lo and behold, copied your protected work.  This makes sense, if you can’t show that a defendant copied from you, then why are you in court?  However, the evidence required to show copying has two parts.  First, you need to show that the accused work is similar to yours.  If it isn’t, that’s not exactly a copy is it?  Second, you need to show that your defendant had access to your work.  Once again, if they never saw your work how could they have ripped you off?

So we have our two elements but, like most things in law, it’s more complicated than that.  The two elements, similarity and access, are analyzed on a sliding scale.  The more proof of similarity, the less evidence you need of access and vice versa.  To add one more wrinkle, it was established in a case against the late Michael Jackson (and reaffirmed when the Isley Boys later sued Michael Bolton) that if the two works are similar enough you don’t actually need any evidence of access because the court is willing to presume that a defendant copied your work if it’s similar enough to what you made originally.  This is a concept known in law as striking similarity, courts look to a number of things to decide if two works are this similar but common examples would be where your work had particularly unique qualities that were copied nearly verbatim or that you messed something up in your work and they were dumb enough to copy your error.

In Bieber’s case, Mr. Copeland and Mr. Overton tried to establish striking similarity–arguing that the chorus of their version of “Somebody to Love” had a near identical chorus to the one put out by Bieber and Usher.  Unfortunately for them, their judge didn’t agree.  Thus, while they could show some level of similarity, they were required to produce evidence that Bieber or Usher had actually listened to or been exposed to their 2008 song before they wrote their own version in 2010.

Access Hollywood: A Star-Studded History of How to Prove Access

Unlike similarity, no matter how evidence of access you have you always need to show at least a little bit of similarity.  Otherwise if enough people see your work, anything they made would be copyright infringement.  However, just like in the Bieber case, it is frequently a crucial sticking point in copyright cases as it can be hard to prove at times.  Over time, exactly what is acceptable as evidence of access has been refined–often in cases featuring some particularly famous names.

First and foremost, the evidence required is a sliding scale.  The more similar the works, the weaker the evidence of access that is required.  For instance, there have been cases where evidence as weak as the fact that a work was published to the internet–and the defendant had internet access–was enough.  Where a work is particularly famous and widely distributed, that can also be evidence enough to show access.  However, just a few years ago a case dealing with the script to the Matt Damon’s Sci-Fi movie Elysium established that, just because something is posted to the internet once, that doesn’t by itself show that a work was widely distributed and won’t always be enough evidence to establish access.  This served as a counter point to a lawsuit brought by the developers of Angry Birds, where being posted online and subsequently downloaded approximately a billion times was enough to show widespread distribution.

In the internet age, availability online is often central to establishing access.  However, the cases above leave you with the helpful understanding that a single post is generally not enough to show access but content posted and then downloaded a billion times is.  Just to fill in the small gaps in the middle there, a couple factors to think about are how often something is viewed or shared, how publicly available the internet content is, how popular the site the content was posted on is, and how high the content appears in search results.

Also important in understanding access is the fact that copying does not need to be done consciously.  This was established in a case brought against George Harrison of Beatles fame.  His song “My Sweet Lord” led to a lawsuit as it was nearly identical to another song called “He’s So Fine.”  Harrison admitted that he knew of the song and had heard of it, but said he just wasn’t thinking about it when he wrote his own song.  The court, in a nearly apologetic ruling against the rock star, said that just because you weren’t intentionally copying or thinking about the work at the time, the subconscious knowledge of the work through previous access is sufficient to show copying.  This was highlighted more recently when Marvin Gaye’s children sued Robin Thicke.  Thicke testified that he was so high while the song was written that he could not have possibly recalled Gaye’s work–although he did admit Gaye was an inspiration to him.  This was irrelevant to access. however, as the actual access itself was all the evidence needed. 

Finally, a particularly common type of confusion in access cases dealing with music deals with cases where an artist gave their song to music industry executive who works with an artist who later makes a similar song.  Unless there is actual evidence that the executive showed that song to the artist accused of infringement, a devilishly tricky thing to find, there’s generally not enough there to establish access.

Ultimately, Why the Case Failed

Mr. Overton and Mr. Copeland were trying to argue just that, saying that they had given their songs to music executives working alongside Bieber and Usher.  However, they couldn’t produce any evidence of those executives passing on anything to Usher or Bieber.  What’s more, their song wasn’t particularly widely distributed–either over radio, the internet, or other methods.  They were left in a situation where they couldn’t show that either singer had ever even heard of their work–and that killed their case.  Bieber and Usher claimed that their song was based on a November 2009 song by a woman named Heather Bright with which they had previously reached an agreement to use her work.  Overton and Copeland simply couldn’t prove otherwise.

Driving With FaceTime: Apple Faces Lawsuit from Grieving Family

Talking on a hand-held cell phone while driving. Texting while driving. Both of these activities are major causes of accidents that have now been banned in most states. However, with the development of technology, a new problematic activity has emerged: engaging in FaceTime while driving. FaceTime is Apple’s video-chatting program, and it is a standard part of the latest versions of the iPhone. Not only does the program require hand interaction in the form of holding the device and interacting with the device’s interface to commence and end a FaceTime session, but it also requires visual attention because of the video aspect of the program. Since using FaceTime requires a person to both continuously look at the device and hold/physically interact with the device, using FaceTime while driving is arguably more dangerous than texting while driving and talking on a hand-held cell phone. However, using Facetime while driving is currently not a crime in any state, nor has Apple, the company behind FaceTime, taken any steps to discourage users from using it while driving. That may all change soon now that a family in Texas is suing Apple over a car accident that was caused by a driving using FaceTime.

Apple iPhone FaceTime

On Christmas Eve of 2014, Garrett Wilhelm crashed into the Modisette family’s car while engaged in a conversation using FaceTime on his iPhone 6 Plus rather than paying attention to traffic. All four members of the Modisette family suffered from serious injuries, and one for the two young daughters ended up dying from her injuries. At the scene of the accident, Mr. Wilhelm admitted to the police that he was using FaceTime when he crashed into the Modisette family’s car and the police noticed that FaceTime was still running on Mr. Wilhelm’s iPhone 6 Plus after the accident, which suggests that the use of FaceTime helped cause the accident.

Holding Apple Responsible for FaceTime’s Role

The Modisettes filed a lawsuit against Apple for the role that FaceTime played in causing the accident. They have accused Apple of being negligent in the design of FaceTime by failing to include either a warning to users alerting them to the dangers of using FaceTime while driving or a mechanism that would allow for FaceTime to become disabled when the device containing FaceTime is in a moving vehicle. What makes Apple’s failure to include either a warning or disabling mechanism even more noticeable is the fact that prior to the release of the iPhone 6 Plus, Apple was granted a patent for a electronic device mechanism that would disable certain distracting features within the electronic device, such as texting and video chatting, if the mechanism sensed that the device was traveling at or beyond a certain speed that would indicate that the device was in a vehicle.

How Can Manufacturers Be Held Responsible?

Manufacturers owe a duty to consumers to create safe products. If a product can be made safer without sacrificing any of its essential aspects, then the manufacturer is obligated to change the way that it makes the product to include the new additional safety measures. If a manufacturer keeps making the product in the same manner as before without implementing the changes to make it safer, then the manufacturer has used a defective design and is liable for any harm that may result from the product with the defective design when that product is being used in a way that is either intended by the manufacturer or reasonably foreseeable by the manufacturer.

Apple knew that iPhone owners used their iPhones while driving, including for texting and chatting purposes. In fact, that knowledge is why Apple created the mechanism for which they sought the patent, according to the background information in the company’s patent application. Since the patent application was granted in April 2014 and the iPhone 6 Plus was initially released in September 2014, Apple was in possession of a patent for a mechanism that would have disabled iPhone owners from being able to use their iPhones in a distracting manner while driving months before Mr. Wilhelm could have purchased his iPhone 6 Plus. Thus, not only was Apple aware of the current dangerous design of the iPhone in lacking a mechanism to disable certain features of the iPhone while the owner is driving, it was also aware of a way to make the iPhone with a mechanism that would disable certain features in the iPhone while the owner is driving. Despite this knowledge, Apple did not implement the safer design that would have included the mechanism when manufacturing the iPhone 6 Plus. Thus, Apple’s iPhone 6 Plus contained a design defect for which Apple is liable.

But Can Apple Really Be Liable for a Car Accident?

Since Apple is liable for the defective design of the iPhone 6 Plus, they are then liable for any harm that may result from a reasonably foreseeable use of the iPhone 6 Plus that may have been avoided if the safer design was implemented. Apple should have reasonably foreseen that Mr. Wilhelm would have been using FaceTime on his iPhone 6 Plus while driving because the company stated its awareness of drivers using cell phones while driving in the patent application. Mr. Wilhelm would likely have been unable to use FaceTime on his iPhone 6 Plus if Apple had manufactured the device with the disabling mechanism. However, since that safety mechanism was not present in Mr. Wilhelm’s iPhone 6 Plus, Mr. Wilhelm engaged in distracted driving and crashed into the Modisettes’ car. Thus, it is likely that Apple is liable for Mr. Wilhelm crashing into the Modisette’s car and the subsequent damage that resulted from the crash.

If the court does find Apple liable for the car crash involving Mr. Wilhelm and the Modisettes, then the court will likely require Apple to provide financial compensation to the Modisette family and order Apple begin implementing the safer design featuring the disabling mechanism. The compensation that the Modisettes may receive from Apple will likely include quantifiable damages such as incurred medical costs and the cost of repairing or replacing their car, as well as more speculative damages such as money for the loss of companionship due to the daughter’s death and pain and suffering. Additionally, Apple may be required to pay punitive damages, which are damages designed to punish defendants for terrible behavior, because Apple was already in possession of a patented way to make the iPhone 6 Plus safer before it was manufactured and yet chose to still manufacture the iPhone 6 Plus with the less safe design.

What Can Consumers Do to Protect Themselves?

Manufacturers should always make their products as safe as is feasible. If they fail to make products that are safe to be used as is foreseeable, then they should be held liable for causing harm to consumers. You should contact a defective products lawyer if you have been harmed by a defective product. A lawyer can assist you in talking to the maker of the defective product about compensating you for your injuries and filing a lawsuit if necessary.

Can the Police Shoot Your Dog For Barking?

A federal court recently issued a ruling that has got the media in a frenzy.  Can police officers now shoot an animal for moving or barking when entering a home?  While the court ruling did order a police shooting of 2 in-home pets as justified, it doesn’t give the police a sweeping authority to shoot your dog.

Let’s Break It Down

The facts of this case are important to the ruling because the decision is based on the totality of the circumstances.  A warrant was issued out of a Michigan court that gave the Battle Creek Police Department (BCPD) permission to search a local residence, the owner a known gang affiliate, for drugs.

According to court documents, as officers began to execute the search warrant, officers noticed dogs “…barking aggressively, ‘digging and pawing,’ and ‘jumping’ at the window.”  An officer testified that upon entering the home, a 97-pound pit bull lunged at him and it was then that the officer fired his gun at the dog, only injuring it.   The dog retreated to the basement.

Police Shoots Barking DogThe officer further testified that he could not safely clear the resident’s basement because the already injured pit bull was standing at the bottom of the steps.  It was then the officer fired two fatal shots into the already injured dog.

The same officer additionally testified that the second pit bull was standing across the room and barking at the officers, so he fired shots at the second dog.  The dog ran to the corner of the room and caught the eye of a second officer, who then fired shots at the second dog.  An officer then testified that because the dog had several wounds, he “…‘didn’t want to see it suffer’ so he put her out of her misery and fired the last shot”.

Killing a Pet Constitutes a Seizure under 4th Amendment

Many courts have widely agreed that deadly force against a household pet constitutes a seizure.  We know that seizures are unconstitutional under the 4th Amendment if they’re unreasonable.  It’s also been established that killing a pet is reasonable only if the pet poses an imminent danger and force is unavoidable.

Hindsight is 20/20

Ever heard the expression “hindsight is 20/20”?  It’s easy for a person to see things that seem obvious after-the-fact, but it’s the circumstances before-the-fact that matter most when answering these kinds of questions.  Courts focus on the perspective of the officer on the scene and not the perspective of the perfect vision that hindsight offers.  It all comes down to whether or not the pet poses an imminent threat from the perspective of the officer.

This is important because anyone reading those facts above after-the-fact could easily argue the officers acted unreasonably against the two dogs.  Shooting the first dog when the dog lunged at the officer is one thing, but shooting an injured animal that’s simply barking is another story.  But, again, the courts don’t get the pleasure of making those judgments based on hindsight and they must consider the perspective of the officers in the moment of the situation.

Court Says Fear of Imminent Threat from Dogs Was Reasonable

There’s no argument that executing a search warrant lends to stressed circumstances for police officers and those officers are often forced to make split-second judgements based on unknowns.  The court found that due to the already high nature of the threat against the officers executing the warrant in a home of known gang affiliates, the officers were understandably on high alert.

The shooting of the first dog, according to the court, was warranted because 1) it was aggressively barking, 2) it lunged at the officer, 3) even after the dog had already been shot by the officer, the dog continued to aggressively block the officers entrance into the basement, and 4) the officers could not safely clear the basement while the dog was preventing the officer to do so.  The court found the shooting of the second dog reasonable because both officers testified they could not safely clear the basement with the presence of the barking dog.

Conceptually, I agree with the standard used by the court—if an animal poses an imminent threat, then force is reasonable.  However, I’m not convinced, at least that the second dog, posed an imminent threat to the officers in this situation.  Although the court didn’t actually create a bright line rule giving police the power to shoot any moving or barking animal inside a house, actual application of this ruling could have potential repercussions for abuse.

Can Too Much Caffeine Lead to a DUI?

Has it come to this?  At least 68 million Americans drink coffee every single day.  If those staggering numbers are any indication of the number of people that are consuming caffeine on a daily basis, consider the fact that that number is for coffee consumption and doesn’t even include soda.  Does that mean all of us consuming caffeine need to worry about getting a DUI?

A California man, Joseph Schwab, was pulled over on suspicion of driving under the influence back in 2015.  Schwab was given a breathalyzer test, which he passed with flying colors.  Although the breathalyzer showed 0.00% blood alcohol level, Schwab had his blood taken for a toxicology test after being taken to county jail.  Results, again, came back 100% in favor of Schwab.

Charges weren’t initially filed against Schwab, but ten months later misdemeanor driving under the influence of a drug charges were filed.  A second set of test results sent from an outside testing facility showed caffeine was the sole substance in Schwab’s blood.

Chief Deputy District Attorney, Sharon Henry, for Solano County stated, “the charge of driving under the influence is not based upon the presence of caffeine in his system.”  Schwab’s attorney, Stacey Barrett, however, stated she was not provided with any evidence supporting a theory of any other substance within Schwab’s system.  Barrett subsequently filed a motion to dismiss the charges against Schwabb.

Can Caffeine Consumption Really Get You a DUI?

Maybe, but it’s probably not really very likely.  Under California law, a drug is any substance, illegal or legal, that isn’t alcohol that might “impair, to an appreciable degree” a driver’s capabilities behind the wheel to drive like a sober person.  Were you able to drive with caution?  Was your driving that of a sober person of ordinary prudence under similar circumstances?

Caffeine works by stimulating the central nervous system, the heart, muscles, and the centers that control blood pressure.  Theoretically, if enough caffeine is consumed, then it’s possible it could have effects that could impair a driver’s capabilities to drive safely.  Typically, though, side effects of consuming caffeine have much smaller effects such as stomach aches and insomnia.

How, Then, Can Schwab Be Charged?

According to the District Attorney’s office, the State decided to go ahead & charge Schwab because drug tests don’t catch every drug.  The State was convinced that because Schwab was driving so erratically, he must have been on something.  Remember, though, that since this was a criminal charge brought against Schwab, the State has to prove beyond a reasonable doubt that he was driving under the influence of drugs.

Even though caffeine is a substance that can affect the nervous system, brain, or muscles, all things that define a drug under the applicable law, a prosecutor would be hard-pressed to prove to a jury beyond a reasonable doubt that the consumption of caffeine, alone, inhibited Schwab’s abilities to drive enough to pose any danger.  Observations of an arresting officer can be relied upon heavily, but it’s not necessarily enough.

Under California law, driving erratically isn’t necessarily conclusive enough to prove driving under the influence—it’s only a factor a jury can take into consideration.  An arresting officer can testify to 1) the unsafe manner in which you drove, 2) your physical appearance, and 3) your performance on a field sobriety test.  According to the officer, Schwab cut her off and was driving erratically.  In Schwab’s case, this would have been the only evidence, at least that’s been made public, that the State had to go on since blood tests came back negative.

These are the likely reasons the District Attorney’s office conceded and just filed their own motion to dismiss the charges against Schwab, despite the fact they claimed forensic lab experts stated it was “highly likely the defendant was under the influence of a drug.”

 



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