South Florida Personal Injury Lawyers Blog

The Effect of a Product Recall on a Florida Product Liability Lawsuit

Published on: June 29, 2020 | by Friedman, Rodman & Frank, P.A.

Every year thousands of individuals in Florida suffer serious injuries or death because of a defective product, food, or device. In some cases, manufacturers catch faulty products before they cause serious injuries; however, in the vast majority of cases, defective products are recalled after a significant amount of damage has occurred. Florida product recalls usually happen after a manufacturer or a government agency discovers that the product is inherently or unreasonably dangerous to consumers. Although some manufacturers voluntarily recall their products, some prolong the recall for as long as possible. However, manufacturers who issue recalls are not automatically held liable for the injuries that their product causes. Floridians who suffer injuries because of a defective product should contact an attorney to discuss their rights and remedies in these cases.

Typically, Florida product liability lawsuits are complex and require a thorough and comprehensive understanding of evidentiary and procedural rules. However, at their most basic level, these cases require a plaintiff to establish that the product was defectively designed, manufactured, or lacked appropriate warnings. Then a plaintiff must prove that they used the product as intended, but that the product was the proximate cause of their injuries. Finally, the plaintiff must show that they suffered an actual, compensable loss because of the defective product.

These cases often stem from defective medical devices, car parts, infant products, children’s toys, boats, pool equipment, and recreational vehicles. For example, recently, the United States Consumer Product Safety Commission issued a recall of a recreational off-highway vehicle (ROV). The recall involves certain Honda Pioneer side-by-side vehicles. According to the recall notice, the ROV poses crash and injury hazards because it can move or roll when it is parked. Currently, the company has not received notification that anyone has suffered injuries; however, they received notice that the ROV began moving while parked. They advised consumers to immediately stop using the product and contact an authorized dealer for their next steps.

The Implication of Voluntary Intoxication in Florida Third-Party Personal Injury Claims

Published on: June 25, 2020 | by Friedman, Rodman & Frank, P.A.

The First District Court of Appeal in the State of Florida recently reviewed a trial court’s order denying a manufacturer a directed verdict in a Florida wrongful death claim. According to the court’s opinion, the company manufactured products containing a synthetic marijuana product, commonly known as “spice.” A warning was contained in the product that indicated it was unsafe for consumption by humans. A man purchased the product voluntarily consumed it, subsequently became impaired, and then drove his car into another vehicle. The man was sentenced to prison for his criminal conduct. The decedent’s representatives filed a wrongful death lawsuit against the manufacturer, arguing that the company was liable for their family member’s death.

At trial, the company filed a directed verdict motion and argued that they were not proximately liable for the death because the man’s intoxication was the sole cause of the decedent’s death. The trial court denied the motion, and the jury found in favor of the plaintiffs, attributing 65% of the fault to the company and 35% fault to the intoxicated driver. The company appealed the ruling arguing, again, that the impaired man’s criminal conduct was the sole proximate cause of the plaintiff’s injuries.

Proximate cause is a legal theory that imputes liability on a party when their actions set forth a sequence of events that led to an injury. Under Florida law, questions regarding proximate cause are left to the fact-finder; however, in some situations, a judge may address the issue where evidence suggests there is no more than one inference. Moreover, the Florida Supreme Court has found that when an actor’s behavior creates a dangerous situation, the law does not permit a jury to find a proximate cause where an unforeseeable, intervening act is responsible for the injuries. In some cases, plaintiffs may argue that third parties that create a dangerous situation could reasonably foresee that their negligence could set a chain of events in a motion that may result in injuries. However, Florida does not allow a jury to consider proximate cause in cases where the person responsible for the injuries is voluntarily impaired or purposely misuses a product.

Florida Court Addresses Whether Plaintiff’s Claim Arises from Ordinary Negligence or Medical Negligence

Published on: June 23, 2020 | by Friedman, Rodman & Frank, P.A.

Recently, a Florida appellate court issued an opinion in a consolidated case against a hospital and behavioral health company. The defendants petitioned the court to review a trial court’s orders denying their motions to dismiss a plaintiff’s claim against them. The defendants argued that the court should dismiss the claims because the plaintiff did not comply with Florida’s medical malpractice presuit requirements.

According to the court’s opinion, the case arose after a personal representative of the deceased filed a negligence lawsuit against the defendant. The family claimed that the plaintiff was transferred from a hospital to a residential treatment facility (RTF) operated by the behavioral health company. During her hospital stay, the woman received several medications; however, at transfer, the hospital provided the RTF with prescriptions but not the actual medications. The RTF did not administer the medicines, and the plaintiff died as a result of medical withdrawal.

The plaintiff’s lawsuit claimed that both entities were negligent because they knew or should have known that the failure to administer medication would likely result in life-threatening injuries. The defendants argued that the case was not sound in ordinary negligence, but rather medical malpractice. As such, because the plaintiff’s claim did not comply with Florida’s requirements, the trial judge should dismiss the complaint. The trial judge denied the motions; however, they noted that the case was a “close call.”

Appellate Court Addresses Causation Defense in Florida Medical Malpractice Lawsuit

Published on: June 18, 2020 | by Friedman, Rodman & Frank, P.A.

Recently, the Board of Trustees of the University of South Florida (USF), appealed a final judgment in favor of a plaintiff in a medical malpractice lawsuit. According to the court’s opinion, the plaintiff underwent abdominal surgery at Tampa General Hospital. USF employed the surgeon that performed the plaintiff’s surgery. Post-surgery, the woman’s condition quickly deteriorated, and she was transferred to the intensive care unit (ICU). The plaintiff alleged that during this time, her surgeon and a critical care team oversaw her care. After some time, the critical care team determined that her condition was likely an infection. The critical care team administered antibiotics, and the woman underwent a second surgery. The surgeon who performed the surgery discovered that there was a perforation in the woman’s bowel. The woman suffered severe life-altering injuries, which required several surgeries and long-term hospitalization and rehab.

The plaintiff filed a medical malpractice claim against her original surgeon, the hospital, and USF. The critical care team settled with the woman before trial. At trial against USF and the hospital, the plaintiff claimed that the surgeon perforated her bowel, and her injuries were the result of the failure of everyone involved in her treatment. The woman presented an expert who testified that she would not have suffered long-term injuries if the woman received timely antibiotic treatment.

USF countered that their surgeon was not negligent, and even if he was, the woman’s injuries were not the result of his negligence. Instead, they claimed that the plaintiff’s injuries were the result of the critical care team’s failure to administer antibiotics at the appropriate time. Further, the surgeon denied perforating the woman’s bowel and argued that the injury occurred after surgery. Moreover, both parties’ experts opined that even if the bowel injury occurred during an operation, that was not a departure from a standard of care. At the close of the evidence, the trial court dismissed the hospital from the case. USF argued that if the jury found them liable, the jury should consider apportioning liability to the critical care team.

Court Addresses Defendant’s Duty to Warn Visitors of Hazardous Conditions in Recent Florida Slip and Fall Case

Published on: June 15, 2020 | by Friedman, Rodman & Frank, P.A.

Recently, a plaintiff appealed a court’s order granting summary judgment in favor of Dollar General in a Florida slip and fall case. The plaintiff’s complaint alleged the defendant was liable for injuries that he suffered after falling on a patch of laundry detergent in the store. The plaintiff appealed after the trial court’s judgment in favor of the defendant, arguing that the defendant failed to maintain the premises in a safe condition. Further, the plaintiff argued that genuine issues of material fact remained as to whether the defendant was negligent in its failure to warn of the danger.

According to the opinion, a customer dropped a detergent bottle near the checkout counter at the store. A manager and employee were working behind the counter when the spill occurred. In response, the manager left the employee to continue checking out customers, while he went to get supplies to clean up the spill. Neither party notified any other employee of the spill. Less than a minute after the spill, the plaintiff entered the store and slipped on the detergent. About thirty seconds later, the manager returned with materials to clean up the spill.

In Florida, slip and fall plaintiffs must establish that the defendant owed them duty and that their breach resulted in the plaintiff’s damages. Defendants who move for summary judgment must prove that they did not owe a duty or that they did not breach a duty. Florida business owners owe their customers the duty to maintain their premises in a reasonably safe condition. They must warn the customer of concealed dangers that the business knows or should have known about, which the customer could not have discovered.

Court Rules Claim Based on Florida Hospital’s Failure to Transfer Patient Was Based on a Theory of Medical Malpractice

Published on: June 11, 2020 | by Friedman, Rodman & Frank, P.A.

A Florida appellate court recently issued an opinion in a consolidated petition addressing whether a claim stemming from an emergency room physician’s failure to transfer a patient for financial gain is sound in medical malpractice. According to the record, the decedent visited an emergency room for treatment for several medical conditions. While she was there, the emergency room physicians determined that she needed to be admitted to the intensive care unit (ICU). However, the hospital’s ICU was at capacity, so instead of transferring the woman, they left her in the hallway for several hours, where she eventually died.

The family filed a lawsuit against the hospital, alleging that the only reason they admitted the decedent was to generate hospital revenue. Further, they contended that this decision led to her treatment by the physician who caused her death. The plaintiffs filed the lawsuit before engaging in the pre-suit investigation process, required by Florida law.

Under Florida law, medical malpractice plaintiffs must abide by specific filing deadlines and procedural requirements. Florida statute of limitations imposes a deadline by which a plaintiff must file a lawsuit against a negligent health care provider. Typically, plaintiffs must file their lawsuits within two years of discovering the injury or when they should have reasonably discovered the injury. Still, the lawsuit cannot be filed more than four years from when the negligent conduct occurred. There are some exceptions when the health care provider engages in fraud to conceal their malpractice. Additionally, there are certain exceptions for minors or those who lack capacity.

Florida Court Sides with Man Who Was Injured in Shower Slip and Fall Accident

Published on: June 8, 2020 | by Friedman, Rodman & Frank, P.A.

In a recent ruling, a Florida court upheld a verdict in favor of a man who was injured when he slipped and fell in his shower. The plaintiff’s claim was based on the landlord’s failure to properly fix the shower drain. Evidently, the defendant landlord had been notified about the issue on multiple occasions, but maintenance workers were unable to fix the problem. One day, the plaintiff slipped in the shower and landed on a ceramic soap tray. His injury required 30 stitches, and continuous therapy. The man later sued his landlord claiming that his injury was the result of the landlord’s negligence.

Florida law states that residential landlords have a general duty to repair dangerous, defective conditions when the landlord becomes aware of their existence. If the landlord fails to correct a known hazard, they may be held liable for injuries that occur as a result of the dangerous or defective condition. In this appeal, the defendant landlord asked the court to reverse the trial court’s decision in favor of the plaintiff. However, the court refused to disturb the trial court’s decision because it found enough evidence to support the verdict.

The key issue here was proximate cause. Proximate cause is the legal concept used to determine whether a harm caused to the plaintiff was the reasonably foreseeable result of the defendant’s actions. In order to find that a defendant’s negligence was the proximate cause of an injury, the judge or jury must conclude that the injury was a natural and ordinary consequence of the defendant’s negligence. Therefore, a plaintiff must present facts that would lead a reasonable person to conclude that their injury was the foreseeable result of the defendant’s wrongful actions in order to successfully recover on a negligence claim.

Court Dismisses Plaintiff’s Case, Finding It Stemmed from Medical Malpractice Rather Than Ordinary Negligence.

Published on: June 4, 2020 | by Friedman, Rodman & Frank, P.A.

Late last month, a Florida appellate court issued an opinion in a consolidated medical malpractice case against a behavioral health agency and hospital. The case involved the question of whether the plaintiff’s claim was based in medical malpractice. If so, the plaintiffs did not comply with the procedural requirements, so the case would be dismissed. However, if the court determined that the claim was one of ordinary negligence, the additional requirements of a Florida medical malpractice case would not apply.

According to the court’s opinion, a woman was transferred from a hospital to a residential treatment facility (RTF), operated by a behavioral health agency. The plaintiffs allege that, before the transfer, the hospital was providing the woman with seven medications. Upon transfer, the hospital provided the facility with prescriptions for the medicines, but failed to provide the medication. The RTF did not provide the woman with her medications, resulting in her death from “severe withdrawal syndrome.” The plaintiff, the estate of the deceased woman, alleged that the agencies were negligent because they knew or should have known that sudden withdrawal from these medications would likely cause a life-threatening danger to the woman.

In response, the defendants moved to dismiss the complaint because the plaintiff failed to comply with Florida’s medical malpractice pre-suit requirements. The plaintiffs argued that their claims arose from ordinary negligence and not medical malpractice, and therefore they did not need to abide by the medical malpractice notice requirements. The trial judge agreed, and dismissed the defendants’ argument, leading them to petition the court for certiorari review.

Florida Bad Faith Insurance Disputes Regarding Homeowner’s Claims

Published on: May 25, 2020 | by Friedman, Rodman & Frank, P.A.

Recently, the United States Court of Appeals for the Eleventh Circuit issued an opinion addressing issues that commonly occur in insurance coverage disputes between Florida homeowners and insurance companies. In this case, a couple in a neighboring state discovered that a home they recently purchased was infested with brown recluse spiders. After attempting to remedy the infestation, the couple bought a homeowners’ policy from an insurance company. The relevant provisions in the policy indicated that the company would provide coverage against the “direct loss to property,” in cases where there was a physical loss to the home. The policy enumerated exceptions to the coverage, including damages that were the result of “birds, vermin, rodents, or insects.” The insurance company cited that provision in their notice denying the homeowner’s claim.

In response to the denial, the homeowner’s filed a breach of contract lawsuit against the insurance company, alleging that the company was engaging in bad faith. They contended that the spiders presented a deadly risk and infested the entire home, rendering it unsafe for occupancy. They claimed that the insurance policy’s exclusionary provision did not apply because brown recluse spiders are not insects or vermin but rather arachnids.

Under Florida law, insurance companies must engage in good faith practices when reviewing a policyholder’s claim. Insurance companies must acknowledge the receipt of a claim, promptly investigate claims, respond to inquiries, not unnecessarily hinder progress, and offer valid and specific reasons for any denials or delays. In many instances, insurance companies cite specific provisions in the policy to support their decision. However, in some cases, this interpretation may be incorrect.

Congress Opens Probe into Carnival Cruise Line, a Popular Line for Florida Vacationers

Published on: May 25, 2020 | by Friedman, Rodman & Frank, P.A.

Going on a cruise should be a fun and relaxing experience. Many Florida residents go on cruise vacations each year, especially since many cruise ships leave from coastal Florida cities. However, the COVID-19 pandemic has seriously harmed the cruise industry, as several ships have had outbreaks of the virus over the past several months. Cruise ships, while typically safe, can be breeding grounds for infectious illnesses, due to the large numbers of people in close proximity to each other all the time.

Recently, Congress opened up a probe into Carnival Corporation which operates Princess Cruises. According to a news report covering the probe, the federal government is concerned with how Carnival handled COVID-19 outbreaks on its ships and is requesting that they turn over all documents and communications about their COVID-19 response. The investigation is led by the U.S. House Committee on Transportation and Infrastructure and is specifically looking into how much Carnival executives knew about the severity of the outbreaks, and whether it took appropriate responsive action. Since the outbreaks began several months ago, there have been over 1,500 confirmed COVID-19 cases from the ships, and dozens of guests and crew members have died from the virus.

The probe comes after a Bloomberg news report was published, shedding light on the company’s response. According to the report, Carnival knew about the threat of COVID-19 but did not take action fast enough to mitigate the harm. Instead, ships allowed guests to continue being together in close proximity, sharing swimming pools and dinner buffets. One House representative, Peter DeFazio from Oregon, wrote that Carnival, with its nine cruise lines and 109 ships, was “trying to sell this cruise line fantasy and ignoring the public health threat.”