FDA product liability 416
September 21st, 2011 
admin Product liability is anther area of San-Diego-Personal-Injury-attorney.com
McGuan v Endovascular Technologies, Inc. 182 Cal.App.4th 974 (2010) (6) Products liability claim against FDA-approved medical device. [1].San-Diego-Auto-Accident-lawyer.com Claims the device was unsafe or the warnings were inadequate are preempted by federal law. FDA determines the design and labeling (i.e., warnings) and California products law would impose requirements different form or in addition to federal law. [2] A fraudulent concealment claim would also require the jury to find the FDA-approved warnings were inadequate, again imposing an additional or different standard than FDA’s. [3] Fraud on the FDA claim (that D withheld injury and defect reports from FDA) also preempted as it would interfere with FDA’s fraud policing function. Buckman, 531 US 341. [4] State law remedies for violating federal requirements would be permissible, but not where FDA specifically found no violations, To allow state action then would conflict with FDA’s fraud-policing function. San Diego personal injury attorney
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Coito lawsuit 415
September 21st, 2011 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Coito v Superior Court 182 Cal.App.4th 758 (2010) (5) Review granted D’s investigator took recorded statements from four witnesses.San-Diego-Auto-Accident-lawyer.com Neither absolute nor qualified work-product privileges apply to recorded verbatim witness statements orto list of witnesses from whom statements taken. Privilege does apply to notes made by attorney or investigator. Dissent: statements should be protected by qualified work-product privilege, and trial court should balance whether factors favor disclosure. Dissent agrees witness list is discoverable as in Form Rog 12.3. San Diego personal injury attorney
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House destroyed by fire 414
September 21st, 2011 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Abdelhamid v Fire Ins. Exchange 182 Cal.App.4th 990 (2010) (3) Insurance bad faith claim. A’s house destroyed by fire, possible arson.San-Diego-Auto-Accident-lawyer.com FI requested A provide information, including her financial status. A refused to provide some information, and repeatedly refused to answer questions. FI’s denial for failure to cooperate and for breach of condition precedent proper as her breach was material. A later supplied partial information, but still incomplete, thereby prejudicing F’s investigation. San Diego personal injury attorney
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Insurance liability 413
September 21st, 2011 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Selzer v Barnes 182 Cal.App.4th 953 (2010) (1/5) rev denied Anti-SLAPP CCP 425.16. Prior case, HOA sued S on two theories, one covered by insurance the other not. S’s carrier’s attorney settled covered claim.San-Diego-Auto-Accident-lawyer.com Attorney S sued attorney B for fraud and emotional distress, claiming B’s “secret negotiation” was fraudulent and caused emotional distress. Once covered claim dismissed, insurer refused further defense. Anti-SLAPP granted in that B’s conduct wholly w/in litigation, therefore protected activity. Because all conduct privileged CC § 47, no ‘probability of prevailing.’ Court dispatches S’s “several poorly developedarguments” that B’s negotiation violated B&PC § 6128 (deceit), Pen C § 550 (fraudulent ins. claim), CC § 2860 (Cumis codification). San Diego personal injury attorney
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Freedman v Brutzkus lawsuit 412
September 21st, 2011 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Freedman v Brutzkus 182 Cal.App.4th 1065 (2010) (2/4) Prior settlement: lawyers F&B signed “approved as to form & content.”San-Diego-Auto-Accident-lawyer.com This approval only means that the lawyer asserts the settlement is in the proper form and that it embodies the settlement deal struck by the parties. Attorneys are not therefore made liable to the opposing attorneys. Court explicitly does not consider whether lawyer could be liable to other lawyer’s client. San Diego personal injury attorney
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Spinach marketeer lost income 411
September 19th, 2011 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Fresh Express, Inc. v Beazley Syndicate 2623/263 at Lloyd’s 199 Cal.App.4th 1038 (6) (2011) Spinach marketer Fresh lost income and incurred costs in recalling spinach after FDA’s E.coli alert advisory, even though Fresh’s spinach was E.coli-free. San-Diego-Auto-Accident-lawyer.com Insurer denied coverage and Fresh sued. Judgment for plaintiff reversed. [1] Trial court erroneously found insured event to be the FDA’s recall. Insurance covered Fresh’s “accidental contamination,” not someone else’s contamination. Also express exclusion against losses due to governmental actions such as FDA’s advisory. 66 San Diego personal injury attorney
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Conspiracy lawsuit 410
September 19th, 2011 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Central Concrete Supply Co. v Bursak 182 Cal.App.4th 1092 (2010) (1/5) Prior 2003 case: C sued S for fraud (embezzlement); S enjoined from transferring any property. But S sold property in 2006 and brought 2007 motion todissolve injunction, concealing from the court S’s sale.San-Diego-Auto-Accident-lawyer.com C claimed B (S’s lawyer) engaged in conspiracy to evade the injunction, fraudulent transfer, etc. [1] B’s anti-SLAPP denied but motion to strike under Civ C § 1714.10 properly granted (to bring conspiracy action against an attorney, must first file petition to permit action togo forward. Petition not required where exempt actions, including conspiracy to violate legal duty for attorney’s financial gain 1714.10(c)(2)). [2] Permissible for trial court to grant leave to amend after granting motion to strike. Rutter Practice Guide’s assertion that court lacks such power rejected as simply wrong and certainly not supported by case Rutter cites. San Diego personal injury attorney.
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City of Laguna Beach excess insurance policies 409
September 19th, 2011 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
City of Laguna Beach v California Ins. Guarantee Assn. 182 Cal.App.4th 711 (2010) (2/2) City had two excess insurance policies during employee’s cumulative-injury period. Policy #1 excluded risk;only policy #2 applied.San-Diego-Auto-Accident-lawyer.com Ins Co. #2 went insolvent. [1] Detailed statutory analysis, Ins. C § 1603.1(c) (13). CIGA not required to cover where “other insurance” available, here the city’s self-insurance during period #1. [2] Statutes v common law: unless expressly provided , statutes should not be interpreted to alter the common law, and should be construed to avoid conflict with a common law rule. San Diego personal injury attorney.
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Treachery and disloyalty in breaching fiduciary duty 408
September 19th, 2011 admin | Premises Liability is another area of San-Diego-Personal-Injury-attorney.com |
Oasis West Realty, LLC v Goldman 182 Cal.App.4th 688 (2010) (2/5) Anti-SLAPP improperly denied. In earlier case, attorney G represented OW. Two years after ending representation, G took actions (signed a petition, appeared at city council) now opposing OW’s project.San-Diego-Auto-Accident-lawyer.com OW sued G for “treachery and disloyalty” in breaching fiduciary duty, contract and for malpractice. [1] G’s actions are protected activity. [2] Lawyer’ duty of loyalty protects against taking second employment adverse to first client, especially as to confidentiality. Not RPC 3-310 violation where not acting on behalf of second client, nor 3-100 violation, where no confidences revealed. Lawyer does not forever forfeit right to speak on matters of public interest. “A lawyer may take positions adverse to a client, as long as current representation is not compromised [and] confidentiality is not compromised.” San Diego personal injury attorney.
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Graber Medical malpractice under Emergency Medical 407
September 19th, 2011 admin Medical malpractice is another area of San-Diego-Personal-Injury-attorney.com
Hoffman v Tonnemacher 593 F.3d 908 (9Cir2010)San-Diego-Auto-Accident-lawyer.com Graber Medical malpractice under Emergency Medical etc Act 42 USC § 1395, MSJ denied, case went to trial, hung jury, then T moved for MSJ again, granted. No error. Trial court has power to hear successive MSJs. San Diego personal injury attorney.
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