South Florida Personal Injury Lawyers Blog

Florida Court of Appeals Allows Condominium Resident to Sue Condominium Association

Published on: March 22, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s Third District Court of Appeals handed down a ruling against a condominium association who failed to repair a buckled section of carpet in a common area of the condominium. The injured plaintiff and other condominium owners had repeatedly complained to the Board of Directors of the Association about the carpet, but the Association did nothing to remedy it. It was known that the carpet buckled especially after a cleaning while still wet.

The injured owner sued the Miami-based Association for failing to repair the carpet. She suffered injuries to arm, hand, and neck. The Association moved for summary judgment, alleging that there was no valid claim as the buckled carpet was an “open and obvious” hazard. The trial court agreed with the Association, dismissing the injured owner’s claim. The injured owner appealed, arguing that Association was under a duty to maintain the premises in a reasonably safe and serviceable condition for the residents, thus still responsible for repairing the carpet in the common area.

The Florida Court of Appeals looked to a previous decision, Kopf v. City of Miami Beach, 653 So. 2d 1046 (Fla. 3d DCA 1995). This case had similar facts, where the injured sued the City of Miami Beach after she tripped on a portion of sidewalk that was cracked and deteriorated. The City, like the condominium association, claimed that the danger was open and obvious, and the trial court precluded the plaintiff from suit. The Court of Appeals reversed the trial court’s ruling, stating that there were issues of negligence, comparative negligence, and causation which can only be resolved by the jury. The court did not feel that a landlord should be shielded from their duty and liability for their negligence, simply because the hazard could be seen.

In another case, Lotto v. Point East Two Condominium Corporation, Inc., 702 So. 2d 1361 (Fla. 3d DCA 1997), the injured tripped on a cracked sidewalk attached to the condominium complex. The injured sued, alleging that the association failed to warn of the dangerous condition and neglected to maintain the premises in a safe condition. The Court of Appeals thought the obvious danger did not merit a duty to warn, but the association was still under a duty to repair the sidewalk.

Ultimately, the Court of Appeals ruled that the condominium association had a duty to maintain the premises, but questions of comparative negligence by the injured remained. The court determined that the question of whether the injured plaintiff was also negligent should be given to a jury since she chose to repeatedly frequent an area that had an open and obvious danger. While the appellate court believed that the condominium association had a duty to repair, the court suggested that the injured plaintiff may also be found negligent, thus potentially reducing the association’s liability and obligation to make the injured plaintiff whole. In Florida, if a plaintiff is found comparatively negligent, but the defendant mostly negligent, the plaintiff may still recover, but the amount of recovery is reduced by the percentage of the plaintiff’s negligence.

Supreme Court Assesses Liability of Generic Drug Makers

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

The U.S. Supreme Court recently heard arguments regarding whether or not federal law regulating generic drugs preempts New Hampshire’s design-defect law. The case may determine whether or not the injured plaintiff is able to recover from the generic manufacturer. The trial court and lower appellate court found that federal law did not preempt New Hampshire’s strict product liability law. However, other recent Supreme Court decisions barring recovery may guide the result of this case, depending on whether there’s enough of a distinction between a state law requiring a duty to warn and a state law allowing recovery under strict liability.

Florida also allows recovery under the theory of strict liability for defective products, where negligence and intent to cause harm does not have to be shown in order for an injured plaintiff to recover. The design has to be defective, and injury or other damage shown to be caused as a result of the defect. Florida’s law includes both consumers and bystanders and does not require that the product be shown to be “unreasonably dangerous”.

The injured plaintiff in the current Supreme Court case took a prescribed, generic anti-inflammatory medicine for shoulder pain. As a result, she suffered from two painful syndromes, Stevens-Johnsons Syndrome and toxic epidermal necrolysis which caused her skin to slough off, esophageal burns, near-blindness, and lung injuries. She sued the manufacturer of the generic drug, claiming the medication was “unreasonably dangerous”, and that the risks outweighed the potential benefits.

The Food and Drug Administration had previously deemed the brand-named version of the drug as “safe and effective”. That not only allowed the brand-named drug to sell its product on the market, but the generic versions to sell with that designation as well, including the drug that harmed the plaintiff in this case before the Court. The F.D.A. says that a generic drug, by law, must contain the same active ingredients in identical amounts as the brand named product. It should also be the same in dosage, safety, strength, how it is taken, quality, performance, and intended use. These are supposed to be seen as the “therapeutic equivalent” to brand-named drugs. They are also required to have the same warning labels as their brand-named counterpart.

The outcome of this case will guide whether or not an injured plaintiff will be able to sue in state court for injuries caused by generic drugs. The manufacturers of the drug argue that the strict liability imposed by the state adds duties to the drug manufacturers that are not congruent with federal laws requiring “sameness” between generic and brand-named drugs. Other recent Supreme Court decisions have held that federal law preempted a state failure-to-warn action. The injured plaintiff’s attorney, however, is arguing that there is a distinction between her action, centered around strict liability, and the ruling of the prior Supreme Court decision.

Florida Appellate Court Grants Mistrial to Injured Plaintiff

Published on: March 14, 2013 | by Friedman Rodman Frank & Estrada, P.A.

The Florida District Court of Appeal issued an opinion in Howard v. Palmer, granting a new trial to the plaintiff. Defense counsel repeatedly made improper statements during the trial implying the plaintiff’s actions were all centered around suing the defendant. Florida case law has established precedent against statements made during trial that can lead a jury to believe that the plaintiff is very litigious and seeking deep pockets. The defense attorney in this case flagrantly ignored the plaintiff’s motion, granted by the judge, to refrain from any references to the plaintiff speaking to an attorney immediately after the accident.

In Florida you have a right to contact an attorney at any time on any matter. The defense attorney in Howard, made other inappropriate remarks in the midst of the jury trial, using commentary buried in his questions that referred to photographs being taken for the purpose of a lawsuit and that Comcast was attached to the defendant company. Implying that the plaintiff is “litigious” is irrelevant to whether or not the defendant was negligent and can cause the jury to be biased against the injured party.

In personal injury cases, whether they are caused by car accidents or slip and fall conditions, an injured party must show that the other party was negligent and that their negligence was the cause of their injury. Proof of negligence is shown through eye witness testimony, photographs, and related documents that reveal the conditions of the scene where the injury occurred or the objects involved, like a car or spilled item. Photographs and witness statements taken closer to the time of the injury better reflect what happened. The burden of proof falls on the plaintiff to show that it was more likely than not that the defendant’s negligence caused the injury, so the injured party needs all evidence available to meet that burden. The Florida Court of Appeals has repeatedly found that statements inferring a tortious plaintiff are not relevant to prove negligence or defend against a negligence claim.

In addition to the proof of the injury, the injured party must also prove the monetary damages incurred as a result of the injury. The injured party is able to recover compensation for lost wages, medical expenses, property damage, mental distress, loss of consortium, and emotional distress. It is essential to keep track of expenses and provide documents to your retained counsel like wage statements, hospital bills, and repair receipts. Mental distress, loss of consortium, and emotional distress do not require a calculation. Proof of future lost earnings and medical bills are harder to estimate and may require expert testimony to show what those amounts may look like.

Florida Governor Declares March as Developmental Disabilities Month

Published on: March 8, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Gov. Rick Scott declared March 7th to be Developmental Disabilities Day and March as Developmental Disabilities Month. The declaration of honorary titles highlighted the announcement that 36 million dollars of much needed funding would be budgeted in the 2013-2014 fiscal year to the Agency for Persons with Disabilities. More people will be able to enroll in home and community based services. The Florida Families First Budget will also provide 2.5 million dollars to approximately 1000 people who want to work so they may participate in job internships or see employment coaches.

Florida has been proactive in helping those with disabilities, using demonstration programs like the Florida Freedom Initiative. The Initiative focuses on aiding Medicaid beneficiaries with developmental disabilities who use long-term care and services. The goal is to use an alternative system of services where cash is allocated to the recipient instead of agency-based services. The beneficiary recipient is given the opportunity to choose the type of long-term support services themselves. The goal is to promote work, savings, and development of personally earned income.

Florida’s Agency for Persons with Disabilities and the Federal Social Security Administration both provide excellent opportunities for citizens who qualify. However, obtaining Supplemental Security Income or Disability Benefits can be a daunting process. To receive an SSI benefit you must be over 65 years of age, legally blind, or meet the definition of permanent disability. You are considered disabled by the Social Security Administration if 1) you are unable to perform work you performed before, 2) convince SSA that you cannot adjust to other work because of your medical condition, and 3) your disability is expected to last a year or result in death. If you seek benefits, you may apply online or in person at a Social Security Office. Data collected by SSA shows that only 34.8% of applications were awarded at all levels of adjudication in 2010, so the chance of the SSA denying your application is high. If you are denied, there are four levels of appeal you may need to utilize: reconsideration, hearing by an administrative law judge, review by the appeals council; and federal court review.

Gathering the correct paperwork is important to overcome any technical or medical denials. Technical denials include mistakes in paperwork or missing documents. Proper documentation of one’s medical condition is absolutely essential for a determination of disabled under SSA’s rules. You may be denied if the medical evidence does not adequately reflect the extent of your disability, if the evidence presented isn’t relevant to the claim, if you have the type of disability that is difficult to prove in medical records, or you simply do not meet the guidelines for approval.

Florida Court of Appeals Allows Construction Worker to Sue Fellow Subcontractor for Gross Negligence

Published on: March 7, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s First District Court of Appeals recently issued two opinions in one case, Villalta v. Cornn Intl., that assessed whether workers’ compensation statutory immunity applied to a contractor and subcontractor. A construction worker was finishing drywall when his ladder slipped into a cutout left by other subcontractors. He fell through the cutout and died from his injuries, and the personal representative of his estate brought suit against the contractor and all subcontractors tied to the project.

A Florida construction contractor hired two subcontractors, one for drywall installation, and one for HVAC installation. The drywall subcontractor hired their own subcontractor to do the finishing. The sub-subcontractor employed the deceased plaintiff. The cutout that caused the plaintiff to fall was made by the HVAC subcontractors, who did not warn the other subcontractors of its presence or use the proper guidelines to ensure safety of the area. Workers’ compensation was available to the deceased’s workers family, but they elected to also pursue a personal injury action against all liable parties.

Florida’s workers’ compensation is a state-mandated insurance fund designed to provide injured workers or their families with the compensation they need when an employee is injured or killed at work. Because compensation is ensured, Florida also grants immunity to employers unless they committed an intentional tort, and to fellow subcontractors unless there was gross negligence. When the injury or death occurs on a construction site, the relationships are assessed to determine which statutory immunity applies, if at all.

The Court decided that the contractor was immune from a personal injury suit because they were in a vertical relationship, defined in Mena v. J.I.L. Construction Group, Latite Roofing & Sheet Metal Co. v. Barker, and also Dempsey v. G & E 3Construction Co. The only exception to immunity is when an intentional tort (when someone has been hurt purposefully) has occurred, and the Court ruled that it didn’t exist in this case. The HVAC subcontractor is also granted immunity, however the exception is merely gross negligence (willful and wanton misconduct) instead of an intentional tort.

After litigation began, the HVAC subcontractor moved for summary judgment, arguing that they are entitled to immunity. The trial court initially agreed, but the Florida Court of Appeals looked at the facts and ruled that it was for a jury to decide whether or not the events that led to the employee’s death were gross negligence or standard negligence. The deceased employee and his representative now get to move forward in the personal injury suit against the HVAC contractor.

Fatal Allergic Reactions Leads to Anemia Drug Omontys Recall

Published on: February 28, 2013 | by Friedman Rodman Frank & Estrada, P.A.

The Food and Drug Administration (F.D.A.) has posted a notice that Affymax and Takeda Pharmaceuticals have recalled their drug, Omontys, or peginesatide, designed to treat anemia. It has received 19 reports of a severe allergic reaction, where three patients died and others required medical intervention. The pharmaceutical companies have explained that hypersensitivity to the drug has been shown for 2 of every 1000 patients, and that the reactions have occurred upon the first dose. Those patients who have had more than one dose have not had an allergic reaction.

Prescription pharmaceuticals must undergo a development and approval process by the F.D.A. Before a drug goes on the market for sale, the company must test the product and provide the results of the test to F.D.A.’s Center for Drug Evaluation and Research. The drug must be shown to be safe and effective for its intended use. Benefits must outweigh the possible risks. The F.D.A. does not test the drug itself, it only looks at the data provided by the company. However, as discussed recently on this blog, some companies, like Celebrex, have withheld information from the public and the F.D.A regarding the effectiveness of their drug.

A patient who was harmed by a medical device or drug can find legal relief in Florida for the injuries suffered from a defective product. Knowledge of the testing practices and the science behind the creation of the drugs is essential in a successful civil action. Witnesses providing testimony in such a specialized field must have a background that shows they can competently testify about the subject matter. An experienced litigation attorney is needed to deftly challenge a drug company witness’s ability to testify about the testing method and what is considered safe in the industry.

Proving what compensation is needed can also be tricky and require specialized medical knowledge. Often, a defective medical product exacerbates an already present medical problem and someone who can pinpoint how an adverse reaction, like anaphylaxis, occurred and why it occurred is crucial. This type of testimony can influence how much compensation is awarded for past and future medical bills, past and future lost wages from missing work or the inability to return to work, loss of enjoyment of life, and past and future pain and suffering.

South Florida a Leader in Recovering Wages for Employees Denied Wages

Published on: February 24, 2013 | by Friedman Rodman Frank & Estrada, P.A.

The “wage theft” Miami-Dade County ordinance, enacted in 2010, has entered the national spotlight as an example of local legislation created to solve a problem that plagues much of Florida and other states around the country. The program was created to help employees recover funds that are owed by employers for a number of reasons. It is designed to especially aid those who exist on the fringes of society, excluded by a language barrier or illegal resident status.

The ordinance requires a minimum amount of $60 of unpaid wages to file a claim. The maximum amount of recovery in a claim for lost wages is three times the amount of unpaid sums plus administrative costs. Often, this recovery is used as a negotiating “stick” to influence the employer to pay the wages owed to the employee without a formal hearing. However, if a hearing is required it can take quite a bit of time to actually be held. Wronged employees may also use other alternatives to pursue their claims through civil action in state or federal court. These claims cannot be filed simultaneously with a local wage theft claim.

Part of the reason the local ordinance exists is because of lax requirements imposed on Florida’s employers at the state level. Florida no longer has a Department of Labor and has very low unemployment benefits. Generally, if wages are to be recovered it would be through a workers’ compensation action for lost wages due to an injury or death on the job.

Workers’ compensation is insurance coverage mandated by the state of Florida, designed to help workers receive much-needed financial assistance for the employee or employee’s family to pay for hospital bills, basic living expenses, education for a new field of employment, or funeral costs. Lost wages are calculated by looking at the average weekly wage the employee was making at the time of the injury or death causing accident. This number is calculated with a few multipliers set by the government, including an impairment rating. An injured employee must be seen by a doctor or therapist in an independent medical examination where an assessment is made determining whether the employee is partially or totally disabled, and whether this is temporary or permanent disability. Consideration is also given for the psychiatric stress caused by an accident.

An injured Florida employee is unable to file a personal injury suit against an employer when there is workers’ compensation since the employee with a qualified injury is guaranteed a type of recovery, dissolving the need for other avenues of legal relief. However, an injury may also be caused by the negligence of a 3rd party who is outside the workers’ compensation immunity or by a defective product made by a negligent company. An injured employee or their family may then file a personal injury or wrongful death action in Florida’s state or federal court.

Florida Apartment Shooting Generates Questions of Landlord Liability

Published on: February 21, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Recently in Florida, three people were shot while walking in an apartment’s public space by an unknown number of suspects. Two of three died from their injuries and one remained wounded. The apartment is in a gated residence. Crime in apartment complexes or other public spaces are common, and accountability and relief does not just come from the perpetrator of the crime, but from the owner of the premises.

A landlord can be held liable for a crime that occurs on his or her property by a third party if the crime is considered foreseeable and if the crime would have been considered preventable, had the owner put certain precautions in place. Much of the liability hinges on the relationship of the owner to the person injured on the property. If the injured party was a tenant or a guest of the tenant, or someone else invited onto the property by the owner, then the landlord has a duty to maintain a reasonably safe condition. They must also warn of any dangers that these same parties may not know themselves. However, if the people on the property were not invited, then the landlord does not have a duty to guard against third party crimes.

Florida courts have considered what is foreseeable. If other prior crimes of a similar nature have occurred on the premises, then that type of crime is considered foreseeable. (See Prieto v. Miami-Dade County, 803 So. 2d 780 (Fla. 3d D.C.A. 2001)). Also, if the area is a “high crime” area, where similar crimes occurred in temporal and geographic proximity to the apartment, then liability for a crime on the premises could be created.

Some Florida courts have extended beyond similar crimes or crimes that have occurred in a specific geographic proximity. The Fourth District Court of Appeals has allowed evidence of dissimilar crimes and the Third District allowed evidence of crimes in an area outside of the premises so long as they weren’t ‘substantial distances away’. (See Holiday Inns, Inc. v. Shelburne, 576 So. 2d 322, 331 (Fla. 4th D.C.A. 1991) and Lomillo v. Howard Johnsons Co., 471 So. 2d 1296, 1297 (Fla. 3d DCA 1985).)

Landlords are liable for accidents and injuries beyond criminal acts that occur on the premises. If an accident occurs because of damaged property or negligently maintained structures, then the landlord is also liable to any occupant or other invited guest. A landlord must maintain safe and healthy premises, and should not leave common spaces in disrepair. Poorly lit hallways or slippery stairs may contribute to a fall which can lead to expensive medical care.

Understanding the Limits of a Cruise Ship Contract

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

News of the now-infamous Carnival cruise ship, Triumph, has filled Twitter accounts, web pages, and air waves with tales of long lines for food and failed toilets. Pictures of disembarked travelers kissing the ground wearing Carnival robes marked the end of five days at sea floating in the Gulf of Mexico, following an engine room fire that knocked out power. Analysts and talking heads assessed the likelihood of success for those who choose to sue Florida-based Carnival for their week-long ordeal, pointing to the signed contract attached to the ticket that limits where you can sue and the liabilities of the cruise ship company owners.A cruise ship ticket contract is generally considered enforceable so long as it is fundamentally fair. In Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1990), the Supreme Court upheld a contract clause that limited all law suits to Florida. However, a cruise line cannot contract away all of its liability, especially when it comes to personal injury. An 11th Circuit Court of Appeals case that originated from the Southern District of Florida, (Johnson v. Royal Caribbean Cruises, Ltd., 802 F. Supp. 2d 1316, (S.D. Fla., 2011)), pointed to 46 U.S.C.S. § 30509, which prohibits the owner or agent of a vessel transporting passengers between a port in the United States and a port in a foreign country from including in a contract a provision limiting the liability of the owner or agent for personal injury or death caused by the negligence or fault of the owner or the owner’s employees or agents.

In that case, Royal heavily relied on contract law as grounds for a summary judgment against a passenger who injured herself participating in an onboard cruise activity. She signed up to use a surf and boogie board simulator and signed an “onboard activity waiver” that released Royal and its employees from any liabilities resulting from injuries. The passenger injured her ankle while attempting to do a maneuver on a boogie board, which was against the safety guidelines for that activity on the ship. The lower courts initially agreed with Royal, but the Court of Appeals reversed, stating that the passenger could still sue the company as the ship clearly met the requirements of a vessel described in 46 U.S.C.S. § 30509 and her injury was the result of Royal’s employee instructing her to perform an unsafe maneuver.

Nationally Available Dietary Supplement with DMAA Under Scrutiny Following Military Deaths and FDA Warning

Published on: February 15, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Jack3d, which is sold at health stores in Florida and across the U.S., has been at the forefront of concern as one of several dietary supplements that contain dimethylamylamine, or DMAA. Several companies use the main ingredient DMAA in dietary supplements advertised to maximize your energy, concentration, and metabolism. Dietary supplements are not regulated by the Food and Drug Administration (F.D.A.) in the same manner as food or medications. Dietary supplements are required to only have “dietary ingredients” and must be shown to be safe before they are marketed.

In April 2012, the F.D.A. issued a warning letter to ten manufacturers and distributors stating that they failed to submit a notification that DMAA is being used in their product as a New Dietary Ingredient. 42 adverse event reports had been submitted to the agency with complaints ranging from cardiac to nervous system disorders. DMAA is known to narrow the blood vessel and arteries, raising blood pressure that causes shortness of breath to tightness in the chest to heart attack. Manufacturers of these dietary supplements still insist that their products are safe.

Following the F.D.A warning letters, Drug Testing and Analysis published the results of a study that showed the DMAA found in the dietary supplements was not from a natural source. On the list of ingredients, it is often listed as sourced from geranium, but the researchers found it was indistinguishable from the synthetic version of drug. This finding highlighted the long-running debate for greater regulatory oversight of supplements
The public spotlight has landed on the DMAA product Jack3d after two men in the armed services died after using their product. The Department of Defense went as far as removing all products containing DMAA for sale in stores on military bases. One soldier’s family has filed suit claiming that the companies deceptively marketed the product as safe for use and not warning consumers about the potential health risks.

The basis of the family’s complaint lines up with Florida’s punitive damages requirements, which can be available in wrongful death suits. In a wrongful death suit, the defendant party is held liable as the cause of the death. Those who qualify to sue may recover compensatory damages ranging from loss of wages to medical bills. To recover punitive damages, the defendant party must be found to have acted with gross negligence or intentional misconduct. A party can sue to recover up to two million dollars if they show that the defendant party was motivated by financial gain, and that the managing director, agent, or officer in charge of decision making was aware of the dangerous nature of the conduct.