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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. MISSING

Regular Panel Decision

Burleson v. Glass

Raymond Burleson, a prisoner, filed a 42 U.S.C. § 1983 action, alleging deliberate indifference to his health from exposure to thoriated tungsten welding electrodes, which he claimed caused his lung and throat cancer. The Fifth Circuit had previously reversed a summary judgment in favor of defendants Nolan Glass, Billy West, and Joe White. On remand, the defendants moved to exclude the testimony of plaintiff's expert, Dr. Arch Carson, and filed a second motion for summary judgment. The court granted the motion to exclude Dr. Carson's testimony, finding it unreliable and irrelevant due to a lack of scientific validation and insufficient data on exposure levels. Consequently, the plaintiff could not establish causation, and the court granted the defendants' second motion for summary judgment, dismissing the case with prejudice.

Prisoner RightsEighth AmendmentDeliberate IndifferenceToxic TortOccupational HazardRadiation ExposureLung CancerThroat CancerCausationExpert Witness

References

Case No. MISSING

Regular Panel Decision

Alternative Electrodes, LLC v. Empi, Inc.

Plaintiff Alternative Electrodes, LLC (AEL) sued Empi, Inc. and Encore Medical, L.P. for violations of the Lanham Act, Sherman Act, and various New York state laws, including illegal monopoly, false advertising, and tortious interference. Defendants moved to dismiss all claims except the Lanham Act claim. The court denied dismissal for AEL's Sherman Act, Donnelly Act, and breach of contract claims, finding sufficient allegations of antitrust injury, market definition, and breach of a settlement agreement. However, the state law claims for business disparagement/injurious falsehood and tortious interference were dismissed without prejudice, as AEL failed to adequately plead special damages and 'but for' causation, respectively. The civil conspiracy claim, alleged as an independent tort, was also dismissed.

Antitrust LawSherman ActLanham ActBusiness DisparagementTortious InterferenceCivil ConspiracyBreach of ContractMotion to DismissRule 12(b)(6)Monopoly Power

References

Case No. SAC 0346199

Regular

Jan 22, 2008

RACHEL ELIZONDO vs. STATE OF CALIFORNIA, DEPARTMENT OF MOTOR VEHICLES, STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board granted reconsideration to amend a previous award, primarily deferring the issue of attorney's fees under Labor Code section 4607 pending a Supreme Court decision. The Board affirmed the penalty for the unreasonable delay in authorizing a TENS unit and its supplies, but amended the penalty period for the cost of batteries and electrodes to July 10, 2007, through August 20, 2007, as stipulated by the parties. The case involved the Department of Motor Vehicles' delayed provision of a TENS unit to applicant Rachel Elizondo.

WCABReconsiderationLabor Code section 5814PenaltyUtilization ReviewTENS unitAttorney FeesLabor Code section 4607Medical TreatmentUnreasonable Denial

References

Case No. MISSING

Regular Panel Decision

Burdick v. Afrimet-Indussa Inc.

Plaintiff Donald Burdick, a former employee of Valeron Corporation, sued Afrimet-Indussa Inc. and Kennametal, Inc. for lung disease caused by cobalt exposure. Earlier similar actions were dismissed due to the Statute of Limitations. These current actions were brought under the 1986 toxic torts revival legislation. Defendants sought summary judgment, arguing the claims were barred by res judicata and that the revival statute was unconstitutional. The court denied the motions, determining that "tungsten-carbide" in the revival statute includes cobalt exposure in the hard metals manufacturing process, consistent with legislative intent to revive claims for Valeron employees. The court also held that the dismissal of the prior actions did not bar the current ones under res judicata and that the revival statute is constitutional.

toxic tortsstatute of limitationsrevival statutecobalt exposuretungsten-carbidehard metals diseasesummary judgment motionres judicatadue processlegislative intent

References

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Burleson v. Glass

Prisoner RightsEighth AmendmentDeliberate IndifferenceToxic TortOccupational HazardRadiation ExposureLung CancerThroat CancerCausationExpert Witness

Alternative Electrodes, LLC v. Empi, Inc.

Antitrust LawSherman ActLanham ActBusiness DisparagementTortious InterferenceCivil ConspiracyBreach of ContractMotion to DismissRule 12(b)(6)Monopoly Power

RACHEL ELIZONDO vs. STATE OF CALIFORNIA, DEPARTMENT OF MOTOR VEHICLES, STATE COMPENSATION INSURANCE FUND

WCABReconsiderationLabor Code section 5814PenaltyUtilization ReviewTENS unitAttorney FeesLabor Code section 4607Medical TreatmentUnreasonable Denial

Burdick v. Afrimet-Indussa Inc.

toxic tortsstatute of limitationsrevival statutecobalt exposuretungsten-carbidehard metals diseasesummary judgment motionres judicatadue processlegislative intent