Elk & Elk attorneys to present at upcoming National Business Institute seminar

national business instituteElk & Elk attorneys Amy L. Papesh and William J. Price will share their extensive experience in the area of wrongful death litigation at an upcoming National Business Institute live seminar in Cleveland.

NBI’s “Wrongful Death Litigation: Start-to-Finish” takes place on Thursday, November 30, from 9 a.m. to 4:30 p.m. at the CMBA Conference Center. The program is approved for 6 Continuing Legal Education (CLE) credit hours, including one hour of attorney ethics instruction. Continue reading “Elk & Elk attorneys to present at upcoming National Business Institute seminar”

Ohio Supreme Court declines appeal of $2.7M verdict for fatal motorcycle accident

On February 22, the Ohio Supreme Court declined to hear the appeal of a $2.7 million verdict awarded to victims of a fatal trike motorcycle crash. Elk & Elk attorneys Gary Cowan and Kimberly Young represented the family of the Ohio man killed in the accident and his surviving spouse, who suffered severe injuries. Continue reading “Ohio Supreme Court declines appeal of $2.7M verdict for fatal motorcycle accident”

Loss of consortium claims for same-sex couples: Equal protection under the law?

In some states, married same-sex couples cannot receive benefits from personal injury claims that are afforded to married opposite-sex couples.

On April 28, 2015, the U.S. Supreme Court heard oral arguments in the matter of Obergefell v. Hodges, one of four state cases[1] related to same-sex marriage scheduled before the nation’s high court this session. The petitioners in Obergefell asked the justices to decide whether the Fourteenth Amendment requires a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state.

Why does it matter?

You may wonder what same-sex marriage has to do with a personal injury claim. Under Ohio law, marriage provides couples with a myriad of legal rights such as favorable tax treatment, presumed parentage, and the right not to testify against a spouse in criminal proceedings. Also included among rights afforded to married couples is the right to make a legal claim in certain cases, specifically, where a spouse has been injured or killed.

In 2004, the people of the State of Ohio adopted Ohio Issue 1, an amendment to the Ohio Constitution, which provided that Ohio would refuse to recognize the validity of same-sex marriages even if they were valid in the state where the marriage was performed.

Loss of Consortium and Wrongful Death Claims

In a personal injury claim, damages for loss of consortium cover the losses one spouse experiences when the other is injured as a result of the defendant’s negligence or other wrongful acts. Loss of consortium damages may include damages for loss of services, damages for loss of support, and damages for loss of quality in the “marital relationship,” which includes things like providing affection and emotional support.

If the injured spouse dies from his or her injuries, the surviving spouse may also file a claim for wrongful death and seek monetary compensation for loss of support that roughly equals what the injured person would likely have made, had he or she not died prematurely.

Can I file a same-sex Loss of Consortium claim in Ohio?

Each state has its own limitations on the availability of loss of consortium and wrongful death claims. In most jurisdictions, for example, in order to bring a claim for loss of consortium, you will need to show that a valid marriage exists. Under current Ohio laws, same-sex couples are unable to benefit from a loss of consortium claim or wrongful death action.

While no one knows how the Supreme Court will rule, many same-sex couples are hopeful the state cases will follow the Court’s decision in United States v. Windsor[2], which ordered the federal government to recognize the validity of same-sex marriages entered into in the states that allow them.

The audio recording and written transcripts of the oral arguments for Obergefell v. Hodges and consolidated cases can be accessed directly through links on the homepage of the Court’s Website: www.supremecourt.gov.”

Same-sex marriage laws by state

Click a state for details. (Data current as of April. 2, 2015.)

Same-sex marriage legalized
Civil unions or domestic partnerships
Constitutional or statutory provisions prohibiting same-sex marriage

Resources:

[1] The Court will rule on four cases, focusing its review on two key issues: (1) the power of the states to ban same-sex marriages and (2) to refuse to recognize such marriages performed in another state. The Kentucky case (Bourke v. Beshear) raises both of the issues that the Court will be deciding, the Michigan case (DeBoer v. Snyder) deals only with marriage, and the Ohio (Obergefell v. Hodges) and Tennessee cases (Tanco v. Haslam) deal only with the recognition question.

[2] United States v. Windsor, 133 S. Ct. 2675, 570 U.S. 12, 186 L. Ed. 2d 808 (2013)

Jury Awards $39M in Wrongful Death Case

Elk & Elk personal injury attorney Phillip Kuri obtains justice for client

CLEVELAND, April 4, 2014 /PRNewswire/

Phillip Kuri
Phillip A. Kuri, Partner at Elk & Elk Co., Ltd., obtained a $39 million dollar jury verdict for his client.

The Ohio personal injury law firm of Elk & Elk Co., Ltd. is pleased to announce a $39 million verdict on behalf of a deceased Ohio construction worker who lost his life in a fatal motor vehicle accident in 2010 on Interstate 271, near Richfield, Ohio.

A unanimous jury in Cuyahoga County, Ohio returned the $39 million verdict against The Shelly Company on April 3, 2014 in the case of Lynette A. Roginski v. Shelly Co., et al. The jury ruled that the Thornville, Ohio paving company was negligent and caused the fatal accident, according to official court documents. (Case no. CV-11-760490).

“When corporations put profits ahead of safety, as was the case in Mr. Roginski’s tragic death, families suffer the very real consequences,” said Phillip A. Kuri, a prominent Cleveland attorney and one of two lawyers who represented the plaintiff. “It is our wish that this verdict will put companies on notice and help prevent similar accidents in the future.”

The fatal accident on July 27, 2010 resulted in the death of Randy Roginski, a husband, son, and father of three. Mr. Roginski, a 41-year-old resident of North Royalton was in an active construction zone working for Solar Testing Labs Inc. at the time of the accident, which occurred at 11:58 p.m. just north of Interstate 77, according to the Ohio State Highway Patrol. He was standing on the berm on the right side of the highway when he was struck by a passing motorist. Roginski was pronounced dead at the scene.

The case was brought in 2011 by Mr. Roginski’s widow, represented by Phillip A. Kuri of Elk & Elk Co., Ltd. and Christian R. Patno of McCarthy, Lebit, Crystal & Lifftman Co., LPA. The plaintiff’s attorneys presented evidence that the paving company cut corners and failed to follow the approved safety plan. The jury determined The Shelly Company was negligent and awarded Mr. Roginski’s widow $19 million in compensatory damages, according to court documents. The Shelley Company was also found liable for $20 million in punitive damages and ordered to pay the plaintiff’s attorney fees.

“Sadly, many workplace injuries and deaths such as Mr. Roginski’s are preventable,” said Kuri. “We hope this sizeable verdict will serve as a reminder to corporate America that if someone dies due to a company’s negligent actions, that business will be held accountable.”

About Phillip A. Kuri

Attorney Phillip A. Kuri, a partner at Elk & Elk Co., Ltd., practices in the areas of personal injury, medical malpractice and general tort law, among others. Attorney Kuri has been selected as an Ohio “Super Lawyer,” recognized by the Million Dollar and Multi-Million Dollar Advocates Forums and is a member of the American Association for Justice Top 100 Trial Lawyers.

About Elk & Elk

The Elk & Elk® personal injury law firm represents clients in cases throughout Ohio. The firm has 18 trial attorneys with experience in motor vehicle collisions, medical malpractice, nursing home neglect, defective products, work place accidents, and premises liability. Elk & Elk Co., Ltd. has offices located at 6105 Parkland Boulevard, Suite 200, Mayfield Heights, Ohio 44124 and locations throughout Ohio, including Cleveland, Columbus, Cincinnati, Akron, Canton, Dayton, Toledo, and Youngstown. For more information, visit www.elkandelk.com.

Contact:

Ken Perdue, Marketing Director
Elk & Elk Co., Ltd.
kperdue@elkandelk.com
(440) 442-6677

Medical Mistake Leads to Infant Death

      

 

The birth of a baby should be a joyous occasion. However, sometimes things do not go as planned.

Each pregnancy has its own challenges, such as health risks and the possibility of complications. Ideally, doctors and nurses should provide competent care, addressing issues as they arise and bringing the baby safely into the world. Unfortunately, health care professionals can make mistakes, placing mothers and their vulnerable infants at risk.

Such was the case for one of our clients. In her ninth month, she was brought to the hospital after going into labor but was told by her doctor that she wasn’t ready yet. He assured her everything would be okay and sent her home with a fetal monitor in place. Yet, when the doctor went home, he inexplicably ordered the fetal monitor to be turned off and the baby died that very night. Had the fetal monitor been turned on, it would have alerted medical staff to the situation.

Birth injury cases

Through the use of expert testimony and diligent preparation, we were able to prove that the doctor failed to provide an acceptable standard of care, not only for the baby, but also for the mother. He put them both at risk and in the end, this family lost their child due to the doctor’s negligence and carelessness. While no amount of money can fully compensate a family for the loss of their child, we were able to help this young couple achieve financial security so they can focus on recovering. Aside from restitution, jury awards and settlements serve another purpose: they put doctors and hospitals on notice, allowing them to learn from their mistakes in order to spare other families the same heartache.

In addition to inadequate fetal monitoring, causes of birth injuries may also include inadequate prenatal or postnatal care, mistakes made during birth, or reactions to drugs taken during pregnancy. Injuries to the mother or baby may be caused by the medical mistakes of physicians, nurses, health care facilities, or other medical care service providers.

To learn more about personal injury law, I encourage you to watch the video above, read our blog, or explore our educational website at www.elkandelk.com. If you have legal questions, please call us at 1-800-ELK-OHIO. I welcome your call.

David J. Elk

Six Flags Sued in Roller Coaster Death

“Heartbroken” park president wants to be first in line when the deadly ride reopens this weekend.

The family of the woman who plummeted to her death while riding a roller coaster filed a lawsuit  on Tuesday against Six Flags.  Just hours after the lawsuit was filed, Six Flags officials announced the ride would reopen this weekend.

Upgraded Safety Restraints Needed

Earlier this summer, Rosa Esparza was killed while riding the Texas Giant at Six Flags over Texas. The ride was only equipped with a single safety bar, designed to be lowered all the way to a passenger’s lap. The family’s attorney, Frank L. Branson, said that such a bar would most likely only reach the abdomen of a larger person, such as Esparza. According to the complaint, Esparza’s daughter watched in horror as her mother “came out from behind the safety bar in her seat,” struggled to hang on as she dangled upside down, and was ultimately ejected from the car, falling 75 feet to her death.

The Esparza family’s wrongful death lawsuit claims that Six Flags was negligent because they (as well as the entire amusement park industry) have “known for decades the real risks and extreme dangers posed by roller coasters and other amusement rides.” Specifically, the suit alleges that a number of “previous incidents” involving lap bars at Six Flags parks across the country put the defendants “on notice of the dangers of rider-ejection posed by the Texas Giant.”

The Texas Giant has been shut down since the incident, pending an investigation by the park’s engineers, outside experts and the ride’s manufacturer. Six Flags issued a news release this week stating that the coaster will reopen with “redesigned restraint bar pads and seat belts.”

Damage Control

“We are heartbroken and will forever feel the pain and sadness of this tragic accident,” said park president Steve Martindale in the prepared statement. “Our sincerest condolences go out to the family and friends of Ms. Esparza. The safety of our guests and employees is our company’s absolute highest priority and we try to take every reasonable precaution to eliminate the risk of accidents.”

However, apparently “forever” ends this weekend. “The Texas Giant is one of my favorite rides in the park,” added Martindale.” My staff, family and I are pleased to be among the first riders as we prepare to re-open the Texas Giant for our guests.”

The callousness of Mr. Martingale’s glib remark only underscores what many of us worry about: For many business owners, assuaging stockholders’ fears and increasing the bottom line are more important than safety concerns or showing compassion for those they have harmed.

Source:

Family sues Six Flags; Texas Giant to reopen this weekend” by Jeff Mosier, Dallas News, September 10, 2013.

Zimmerman May Face Civil Suit

aug_article2The criminal trial of George Zimmerman is over, but he may find himself in a courtroom again. The family of shooting victim Trayvon Martin could file a civil suit against Zimmerman for the wrongful-death of Trayvon. Although the Fifth Amendment of the U.S. Constitution prevents a defendant from being tried for the same crime twice, a concept known as double jeopardy, it does not prevent an additional civil action. A lawyer for the Martin family said that while not a certainty, such a trial remains an option for them to seek justice – something the family felt was denied in criminal court.

Wrongful Death

The standards for proving wrongful death vary from state to state. In Florida, the controversial “stand-your-ground” statute requires a pretrial hearing to determine if the defendant used deadly force only because he was in reasonable fear of death or serious injury. If Zimmerman is successful in his “stand-your-ground” hearing, the civil suit would be dismissed. This could leave the Martin family responsible for paying Zimmerman’s attorneys’ fees, expenses, as well as compensating him for any loss of income or other costs he may have incurred during the proceedings.

However, if Zimmerman does not win his “stand-your-ground” hearing, the civil trial would commence. In order to be successful, the Martin family would only need to prove by a preponderance of the evidence that Zimmerman’s negligence caused Trayvon’s death. The civil suit would have a new judge, jury, and possibly new evidence. That is because some protections afforded in a criminal trial do not apply in a civil case. For example, while Zimmerman elected not to testify during his criminal trial, he could be compelled to testify in a wrongful-death suit.

Stand-your-ground Law Introduced in Ohio

Ohio currently has what’s known as the “castle doctrine.” It gives people the right to defend themselves with force in their homes, their vehicles or the vehicles of immediate family members. If a person feels threatened somewhere other than those locations, he or she currently has a “duty to retreat”— however, that may change. State Rep. Terry Johnson proposed new legislation similar to Florida’s “stand-your-ground” law in June. If passed, it would allow for the use of deadly force without the duty to retreat and ease restrictions on carrying concealed weapons.

Sources:

A Civil Suit Could Make Zimmerman Pay — or Could Backfire” by Adam Cohen, Time, July 16, 2013.

Ohio House resurrects ‘stand your ground’ bid” by Jennifer Feehan and Jim Provance, Toledo Blade, July 21, 2013.