Personal Injury

What is Florida Courts’ “Stuart instruction?”

Published on: July 19, 2013 | by Friedman Rodman Frank & Estrada, P.A.

As if getting into a car accident and suffering serious injuries weren’t bad enough, some people in Florida find that they are further injured when they go to the hospital to treat their injuries from a car accident. In some cases, the original person or people who caused the accident and injuries are also held responsible for any harm that results when a physician improperly treats the injuries.

In such cases, an attorney may call for a “Stuart instruction,” so called because it comes from the 1977 case Stuart v. Hertz Corporation. This instruction tells the jury that “a tortfeasor is responsible for additional injuries caused by the medical negligence of a physician treating the plaintiff for the original injuries.”

A recent appellate case illustrates some of the complications that occur with this rule. In that case, a woman’s vehicle was rear-ended by a male driver. She drove to the hospital complaining of neck and back pain and was diagnosed with whiplash. Although she got follow-up care, the woman still had pain four months later and asked an orthopedic surgeon for his opinion. He diagnosed a muscular injury and disc herniation from the accident and recommended she have a surgery.

What is “Forum Non Conveniens” in Florida?

Published on: July 17, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Under Florida common law, a lawsuit that does not have much connection to Florida may be subject to “forum non conveniens,” which is Latin for “inconvenient forum.” It comes up only after a plaintiff is able to effect service of process of a lawsuit on a defendant who is present in Florida or has its principal place of business there or because the defendant has committed a tort in Florida.

Some plaintiffs “shop” for the best jurisdiction in which to sue the defendant–usually they pick the jurisdiction with laws that favor their side of the case. This problem can be fixed through the application of the forum non conveniens.

Forum non conveniens is a doctrine that addresses the problem of a local court having jurisdiction over a suit when the case could be fairly and more conveniently litigated in another jurisdiction. Since Florida tends to have better laws for plaintiffs than some overseas jurisdictions, the plaintiff practice of forum-shopping is particularly notable here.

Proving Wage Loss in Florida Personal Injury Cases

Published on: July 12, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Unfortunately, accidents on the road, whether you’re in a car, scooter, truck or walking around as a pedestrian, are all too common on Florida’s busy streets. One common kind of loss you might experience after a serious accident in which you are injured is lost wages. After an accident you may have to take time off from work to rest and recuperate. In severe accidents, you may be left with a temporary or permanent disability.

In Florida personal injury lawsuits, courts use a standard of reasonable certainty when looking at the facts of injury and causation. This is considered more critical than having reasonable certainty about specific losses arising from the injury.

While you don’t need hard, documentary evidence or file income tax returns to prove every earning with absolute certainty, it’s important to keep records. If you get into an accident, you should file your receipts, tax returns, and doctor’s notes into an earmarked file and turn them over to your personal injury lawyer. Similarly, if you have to see a vocational rehabilitation counselor, save any written notes or information that person gives you, in case it becomes relevant to your case.

In a recent case, an appellate court explained that the jury can make decisions regarding wage loss on the basis of credible testimony. The case arose when a man on his scooter traveled over a part of the pavement that was being resurfaced by a paving contractor and hit a manhole pipe.

Personal Injury Accidents on Florida Cruise Ships

Published on: June 27, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Florida is a popular destination for tourists who wish to go on a cruise. The last thing anyone wants to worry about while on vacation is getting into an accident while on the boat. However, accidents do happen on cruise ships.

Usually cruise ship attorneys are very experienced at defending personal injury actions. They know how to poke holes in a plaintiff’s case, maximize technical or procedural flaws in a plaintiff’s case and minimize their exposure in the lawsuit. Therefore, if you are hurt on a cruise ship because of a condition on the cruise ship that is not your fault it is important to retain an experienced personal injury attorney to prosecute this type of case. An attorney experienced at representing plaintiffs can try to make sure you receive any compensation to which you may be entitled.

Recently, an appellate court considered an argument that the Carnival Cruise Line’s defense attorney made improper comments at a personal injury trial. The case arose when a woman took a Carnival cruise in order to go to her nephew’s wedding. She slipped and fell on something oily on the ship’s floor by the buffet while the ship was docked in Tampa. She was taken to Tampa General Hospital and treated for contusions to her right hip, right knee and back strain.

Florida Supreme Court Clarifies Wrongful Death Act

Published on: June 20, 2013 | by Friedman Rodman Frank & Estrada, P.A.

What happens if a plaintiff’s injuries are so severe, he or she dies during the course of a lawsuit? Does the case get dismissed? Can a spouse or other relative be substituted in as plaintiff? The Florida Supreme Court recently discussed this important issue as it related to a personal injury case filed against a tobacco manufacturer. In 2005, a couple sued the tobacco manufacturers Philip Morris and Brown and Williamson Tobacco Corporation. The basis for the suit was that the tobacco company’s products caused the husband to get lung cancer and other malignancies.

The husband died in 2006. The wife then filed a motion to amend the complaint to name additional defendants. She sought all damages available under the Florida Wrongful Death Act, but also claimed survival damages.

The tobacco manufacturer filed a motion to dismiss on the grounds that the Florida Wrongful Death Act does not allow a personal injury action to be converted into a wrongful death action. The tobacco manufacturer argued that the surviving wife had to file a new wrongful death action, rather than convert the existing lawsuit. Agreeing with the tobacco manufacturer, the circuit court denied the wife’s motion to amend and substitute and dismissed the action.

The wife then filed a motion to reconsider, arguing she was not converting a personal injury into a wrongful death suit. She explained that she was leaving open the possibility of an alternative claim for survival damages and that the different theories of recovery should be presented together in a single lawsuit.

Testifying in a Personal Injury Case in Florida

Published on: June 18, 2013 | by Friedman Rodman Frank & Estrada, P.A.

During trial, it can be difficult for some witnesses to control their emotions, particularly if they believe they’ve been wronged by the other side or their insurer. A recent personal injury case illustrates the importance of controlling one’s emotions in a trial setting, particularly if a judge has expressly ruled that a witness cannot talk about a specific subject.
In the case, the plaintiff was a driver of a car that had gotten rear-ended. She experienced injuries that required surgery. She sued the owners of the other car for damages, as well as her own uninsured motorist insurance carrier, State Farm. Liability was not contested at trial, but damages and causation were.

Before trial, the insurer filed a motion in limine to prevent any evidence from coming in about the insurer’s failure to follow its contractual obligations to the plaintiff. Motions in limine are filed to keep certain information out of the trial and away from the jury.

In this case, the insurer argued its failure to live up to its contractual obligations was irrelevant evidence and it was also inflammatory. The judge granted the motion to exclude the information. However, while testifying, the plaintiff had an outburst regarding the insurer’s failure to pay for her damages.

The insurer moved for a mistrial, arguing that the harm could not be undone. The judge denied the motion and asked the jury to disregard the testimony. The attorney for the other driver asked that the plaintiff’s attorney not be able to make any “bad insurance company” arguments. The plaintiff’s attorney agreed not to do so, but during closing arguments, he made several of these arguments.

Florida School Sued After Student’s Sports Injury

Published on: June 13, 2013 | by Friedman Rodman Frank & Estrada, P.A.

It is tragic when a student is hurt or killed in an athletic event due to a school’s failure to adequately supervise the student. Florida courts recognize that students owe a duty to students because they stand “partially in place of the student’s parents.”

When it comes to sporting events, schools must provide adequate instruction and adequate equipment, exercise reasonable care in matching athletes (in, for example, activities like wrestling), supervise appropriately and offer appropriate post-injury measures to protect a student’s injury from being worsened.

In an appellate case decided this past February, the court considered a tragic situation. A student athlete suffered severe brain damage after collapsing on the field during a soccer game at school. His coach and a nurse tried to revive him with CPR. The coach later claimed he called for an AED, but nobody brought one; there had been an AED on a golf cart nearby.

Florida Personal Injury Case Involving False Testimony

Published on: June 11, 2013 | by Friedman Rodman Frank & Estrada, P.A.

In Florida, Rule 1.540(b)(3) covers the question of fraud or misconduct of an adverse party during a lawsuit. The rule is modeled on a federal rule of civil procedure. Fraud or misconduct “of an adverse party” can include misconduct by either the other party to the lawsuit or his or her attorney. For example, it occurs if a party asks a witness to testify falsely or where an attorney knowingly presents false testimony. It does not include a witness’ own independent fraud, even when such a fraud helps an adverse party’s case.

One type of motion that can be filed if it is discovered that an adverse party committed fraud or misconduct in a lawsuit is a motion for relief from judgment. If a motion for relief from judgment on the basis of fraud is filed, the judge must hold an evidentiary hearing to assess the credibility of the witnesses. Importantly, it is not enough to show a fraud occurred; the party raising the issue must show the other party or his attorney participated in the fraud or knowingly permitted the fraud to go forward.

In a recent car accident case, a motion for relief from judgment became an issue. The case arose from an accident in which the driver of a car was traveling about 35 miles per hour as a motorcycle was waiting to turn left. According to the motorcycle driver he had already come to a stop in the median and was waiting to turn. According to the car driver, the motorcyclist was still in her lane of travel when she hit him; she saw him trying to cross in front of her and he was still moving when she hit him.

The car driver testified she did not skid, but there were skid marks at the scene. The main issue was whether the car was responsible for the accident or whether, as the car driver testified, the motorcyclist was still moving when she hit him. The location of the motorcycle during the accident, as shown by the skid marks, could prove who was responsible.

Florida Appellate Court Allows Lawsuit to Proceed Against Negligent Coworker

Published on: June 4, 2013 | by Friedman Rodman Frank & Estrada, P.A.

A Florida appellate court recently dealt with the differences between personal injury lawsuits brought against a decedent’s employers versus his coworker who caused his injury/death. In this case, the defendant was a spotter driver who used tractors to move trailers for purposes of loading and unloading merchandise. One morning, he was called to the loading dock and he arrived by tractor. Another worker was next to him in another tractor. The defendant drove to the dock and got out. Meanwhile the other worker also parked in the loading dock area and got out of the tractor.

The defendant assumed the worker was going to talk to another driver, hooked the tractor to a trailer and got back into his tractor. He backed up the trailer and felt a bump. There was no way for the defendant to see what happened behind the trailer and the backup alarm was not working. The defendant later testified he knew the backup alarm wasn’t working. The other worker had walked behind the trailer and had been crushed between the back of the trailer and the warehouse dock pad.

The defendant testified that he had not reported that the backup alarm was not working to the employer’s maintenance group. The employer’s safety protocol would have required the tractor be taken out of service to repair the backup alarm. On routine checks, the maintenance staff had not, apparently, checked the alarm themselves.

The Occupational Safety and Health Administration (OSHA) cited the employer for the inoperative backup alarm. Meanwhile, the decedent’s representative filed a lawsuit against the employer and the driver that caused the death, alleging an intentional tort against the employer and gross negligence against the driver.

Florida Appellate Court Reviews Issue of Privacy in Auto Accident Case

Published on: May 10, 2013 | by Friedman Rodman Frank & Estrada, P.A.

A Florida appellate court recently reviewed the issue of when a driver’s personnel file can be compelled for purposes of providing proof in an auto accident case in Walker v. Ruot. That case arose from a car accident in which an employee of Bright House Networks LLC injured the plaintiff couple by rear-ending their vehicle with a Bright House van.

The couple filed a lawsuit alleging negligence against both employee and employer. In the course of the lawsuit, the couple served on the employer a request to produce the personnel file of the driver. The employer objected that the personnel file included information irrelevant to the lawsuit and that producing the personnel file violated the driver’s right to privacy.

The couple filed a motion to compel the personnel file in the lower court. At the hearing for the motion they argued that the information contained in the file might support their claims against the employer for negligent entrustment, negligent hiring, or negligent retention. They also argued it might help them locate the employee to serve him with the lawsuit. The employer again objected as to the relevance of the personnel file, but agreed it did not have standing to assert its employee’s privacy rights.

The trial court did not conduct an in camera (private) inspection. It simply ordered the employer to produce the personnel file and ruled that the documents were relevant. The employer appealed this decision.