South Florida Personal Injury Lawyers Blog

Plaintiff in Personal Injury Lawsuit Successfully Uses Work Product Doctrine to Suppress Presumably Unfavorable Expert Report

Published on: November 14, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The Supreme Court of Missouri recently released an opinion reversing a trial court’s preliminary ruling to grant a personal injury defendant’s request to further question an expert witness. The expert had been formerly proposed by the plaintiff as an expert witness, but the plaintiff later “de-endorsed” the expert witness weeks into the proceedings without disclosing a report.The defendant requested a copy of the report and to depose the expert, while the plaintiff claimed that the expert report was protected by the “work product doctrine,” which protects materials prepared by or for an attorney from pretrial discovery by the opposing side. Although the opinion does not explicitly reference the expected opinion of the expert or what his conclusions may be, the plaintiff’s attempts to remove the expert from the case suggested that his conclusions were not favorable to the plaintiff.

With the most recent ruling, the defendant will be prohibited from deposing the witness or accessing any report he may have prepared, and the case will proceed toward trial.

$7 Million Verdict Awarded to Cancer Victim in Baby Powder Lawsuit

Published on: November 10, 2016 | by Friedman Rodman Frank & Estrada, P.A.

A Missouri jury recently found that the manufacturer of a baby powder product containing talc and marketed for personal hygiene was liable for negligence and product liability after the plaintiff developed a case of ovarian cancer as a result of using the product as it was marketed. According to a news report discussing the verdict, the woman was awarded over $7 million from the defendant Johnson & Johnson, a major manufacturer and marketer of baby powder products containing talc. Similar claims have shown that manufacturers have allegedly known about the increase in cancer risk for women who use talc products on their genital area, but they have continued to market the product despite the evidence that such use may be dangerous.

About 2,000 Cases Alleging a Link Between Talc and Ovarian Cancer Have Been Filed

According to the report, over 2,000 cases have been filed in courts nationwide against the manufacturers of baby powders and other hygiene products containing talc. Research cited in the report notes that there is a significant link between using talc products for feminine hygiene and the increased risk of developing cancer. Courts across the country have addressed the cases differently, with some judges throwing the claims out and others allowing the cases to go to the jury. Similar cases alleging ovarian cancer development as a result of talc use have resulted in verdicts of up to $127 million.

Court Determines Negligence Lawsuit Against Ambulance Company Was Time-Barred

Published on: November 7, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The California Court of Appeals recently released an opinion affirming a lower court’s decision to dismiss a lawsuit filed against an ambulance company and hospital by a man who was injured while under the care of the defendants. The appellate court agreed with the district court’s finding that the claim was subject to the one-year statute of limitations for medical malpractice claims and was time-barred by the statute of limitations.

The Plaintiff’s Injuries Resulted in a Personal Injury Lawsuit

The plaintiff in Nava v. Saddleback was dropped from a gurney while being transported into the hospital from an ambulance and suffered from broken bones and severe pain as a result of his fall. He contacted an attorney and filed a personal injury and negligence lawsuit against the defendants 23 months after the fall occurred. The defendants asked the court to dismiss the case, arguing that the plaintiff’s claim was for medical malpractice and needed to be filed less than one year after the plaintiff was injured under the state’s statute of limitations for medical malpractice cases. The district court agreed with the defendants and entered judgment in their favor, and the plaintiff appealed.

The Court of Appeals Defines the Claim as One of Medical Malpractice

On appeal, the high court accepted the ruling of the district court, noting that any personal injury claim “related to” medical care that alleges the professional negligence of a health care provider is subject to the shorter, one-year statute of limitations. Since the plaintiff was receiving professional medical care from the defendants when his injuries occurred, the court ruled that his case was time-barred because the one-year statute of limitations applied. As a result of the recent appellate ruling, the plaintiff will not receive compensation for his injuries.

State Supreme Court Refuses to Enforce Arbitration Clause Against Young Injury Victim

Published on: November 3, 2016 | by Friedman Rodman Frank & Estrada, P.A.

An appellate court recently published an opinion affirming a lower district court’s ruling refusing to compel arbitration to address a personal injury claim alleging that actionable negligence caused a child to be injured at a trampoline park operated by the defendant. Both courts agreed that the clause within the liability release and waiver form that compelled any claims to be addressed through arbitration was a legally invalid contract of adhesion. Although the specifics of the plaintiffs’ claim have yet to be addressed by the court, the most recent ruling will prevent the plaintiffs from being forced to pursue compensation in arbitration, which is generally a more favorable forum for defendants.

The Plaintiffs’ Son Suffers a Serious Leg Injury, and the Defendant Seeks to Compel Arbitration

The plaintiffs in the case of Alicea v. Activelaf, LLC are the parents of a young boy who was injured in February 2015 while playing at a trampoline park that was operated by the defendant. According to the facts discussed in the appellate opinion, the plaintiffs alleged that the defendant’s negligence was the cause of the boy’s injuries, and they filed a personal injury claim in state court, seeking damages as compensation.

Before the boy was injured, his mother digitally signed a liability release and waiver with the defendant. As part of this waiver, the plaintiffs agreed that any legal claims against the defendant would not be brought in state or federal court and would be subject to mandatory arbitration. Arbitration is a private court-like proceeding that can be used to address several types of legal disputes. Technically, the parties in an arbitration accept the ruling of the arbiter as a binding settlement of their legal dispute.

State Appellate Court Reverses Judgment for Defendant in Bus Accident Case

Published on: November 1, 2016 | by Friedman Rodman Frank & Estrada, P.A.

A panel of the California Court of Appeals recently published an opinion reversing a trial court’s entry of a judgment favoring the defendant in a case filed by a woman who was injured while boarding a shuttle bus operated by the defendant. The appellate court found that the lower court’s decision not to impose at least a duty of ordinary care on the defendant was not justifiable under the circumstances. Since the previous judgment in favor of the defendant has been reversed, the plaintiff’s claim will return to the trial court to proceed toward a settlement, trial, or other disposition.

Plaintiff Is Injured Boarding a Shuttle Bus to the Defendant’s Casino

The plaintiff in the case of Huang v. The Bicycle Casino was injured in a fall when she was pushed to the ground by other passengers as they all attempted to board a shuttle bus that was operated by the defendant as part of a promotion to attract customers to a casino. According to the facts discussed in the opinion, it was relatively common for there to be more passengers attempting to board the shuttle buses than there were seats available, which resulted in a chaotic boarding situation that the plaintiff alleged was the cause of her broken hip that she suffered when she was pushed to the ground. The plaintiff later filed a personal injury lawsuit against the defendant, seeking damages as compensation for her injuries.

The Trial Court Grants Summary Judgment to the Defendant on All Claims

After the plaintiff’s case was filed, the parties disputed the plaintiff’s claim that the defendant was providing transportation to the public as a “common carrier,” a designation that triggers a heightened duty to ensure passengers’ safety. The defendant successfully argued to the trial court that since the shuttle buses do not collect a fare, they should not be treated as a common carrier. The trial court found under the circumstances that the defendant only had a duty to provide ordinary care and that the plaintiff’s injuries were outside the realm of that duty. As a result of these findings, the trial court entered judgment for the defendant on all of the plaintiff’s claims, forcing her to file an appeal to continue her case.

Smart Phone Use by Teens While Driving Indicates an Increased Risk of Other Dangerous Behaviors

Published on: October 27, 2016 | by Friedman Rodman Frank & Estrada, P.A.

A recently published news report discussing an insurance industry study of teen driving behaviors indicated the unsurprising finding that teen drivers who use their smart phones while driving are more likely to engage in other dangerous driving behaviors as well as be involved in an accident. According to a survey conducted nationwide by State Farm on teens aged 16 to 19 years, over 80% of those surveyed admitted to using their smart phone to make calls, send or read text messages, or even watch videos while behind the wheel. Although a large majority of teen drivers admitted to at least some smart phone use while driving, those who admitted to using their phones the most often also reported being involved in the most accidents.

The Link Between Smart Phone Use and Other Dangerous Driving Behaviors

One interesting finding mentioned in the article is the correlation between teen drivers who use their smart phones while driving and other risky or dangerous driving behaviors that may lead to accidents. Many of the teens who have been involved in an accident and admit to using their phones while driving got into an accident due to causes unrelated to cell phone use.

Notably, the article discusses the results of a self-reported survey, and the respondents may not have been completely forthcoming about their smart phone use while driving or the details of any previous accidents, but a clear and significant pattern remains. Teen drivers who tend to use their smart phones while behind the wheel are also more likely to speed, drive while impaired, and drive without wearing a seatbelt.

Florida Man Dies in Alcohol-Related Boat Accident After Homemade Vessel Capsizes

Published on: October 24, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The death of a man in Key West earlier this month should serve the public as a sad reminder of the dangers of operating any vehicle while impaired by alcohol or drugs. The accident, which was reported by a local news source, occurred on October 14 and resulted in the death of a 69-year-old man who was aboard the vessel that capsized. According to details released by local police, the cause of death was most likely drowning, although all of the occupants on board the craft claimed to be too intoxicated to remember what happened and were unable to report details of what happened to the police.

Intoxication Cannot Be Used as a Defense to Most Civil Accusations of Wrongdoing

Although police have reported that all of the surviving men who were on board the boat when it capsized were too drunk to remember the details of the crash, it is possible that they are using their intoxication as an excuse not to cooperate in the investigation. This may be because the men are fearful of criminal charges being filed based on the incident. In the event a criminal or civil case is pursued against any party involved, the intoxication of whoever was responsible will not serve as an excuse.

Under Florida law, intoxication cannot generally be used to defend against allegations that a person had the required mental state to commit a tort. In most personal injury cases, the plaintiff is required to prove that the defendant was negligent. A defendant cannot claim that they were intoxicated and therefore not negligent. In fact, proving intoxication may actually satisfy one or more elements of the tort the plaintiff is seeking to establish.

Appellate Court Rejects $885,000 Verdict Against Educational Institution in Auto-Pedestrian Accident Case

Published on: October 19, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The California Court of Appeals recently published an opinion reversing a jury’s verdict in favor of a 14-year-old boy who was injured in a 2012 auto-pedestrian accident involving an instructor employed by the defendant who was driving home from work when the accident occurred. The lawsuit, which was originally filed against both the driver and his employer, alleged that the employer was liable for the injuries caused by the driver because he was acting within the course of his employment when the crash occurred. Although the verdict against the employer was reversed, the pretrial settlement that the plaintiff reached with the driver of the vehicle will remain in effect to help compensate him for the injuries that were suffered in the crash.

Teen Plaintiff Is Struck by Culinary Instructor as He Returns From Work

The plaintiff in the case of Jorge v. Culinary Institute of America was a boy who was 14 years old when he was struck by a vehicle while walking with his girlfriend and suffered serious injuries. The driver of the car that hit the boy was employed as an instructor at a culinary institute that was operated by the defendant, and he was returning to his home after his workday when he injured the plaintiff.

The plaintiff filed an auto-pedestrian accident claim against both the driver and his employer, arguing that the driver was returning from work “in service of the employer” when the accident occurred. After the jury found that the driver was negligent in causing the accident, his auto insurance company negotiated a $30,000 settlement with the plaintiff before the jury determined the total amount of damages to which the teen was entitled. After the partial settlement was reached, the Culinary Institute was the only remaining defendant in the case and was unable to have the claim against them dismissed.

Court Applies “Discovery Rule” to Allow Plaintiff’s Wrongful Death Claim to Proceed

Published on: October 17, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The Supreme Court of the State of Illinois recently released a decision reversing two lower court rulings and ultimately preserving a wrongful death plaintiff’s right to recover damages from a defendant against whom he did not file a claim until the state’s statute of limitations had appeared to expire. The court found that the “discovery rule” applies to wrongful death by medical malpractice claims in that state, and the plaintiff’s right to hold medical providers accountable for their negligence would be unfairly taken away if the claim were not permitted to proceed. Since the dismissal of the plaintiff’s claim has been reversed, his claim for compensation will proceed toward a settlement or trial.

The Plaintiff’s Mother Dies While Under the Care of the Defendants

The plaintiff in the case of Moon v. Rhode is the son of a woman who died on May 29, 2009 after she was hospitalized to treat a gastrointestinal issue. After her death, the plaintiff had an investigation performed and was notified by medical experts that two of the attending physicians were likely negligent in failing to diagnose or treat respiratory problems that arose after she was admitted to the hospital, which ultimately led to her death.

The plaintiff filed a medical malpractice and wrongful death lawsuit against the physicians, seeking damages for his mother’s death. During the course of the lawsuit, the plaintiff requested that a different expert review his mother’s diagnostic imagery reports, and he was notified on March 4, 2013 (after the statute of limitations appeared to expire) that the likely cause of his mother’s death was a previously undiagnosed condition that should have been noticed by her radiologist, who was not a party to the ongoing lawsuit.

State Supreme Court Accepts Award of Future Earnings to Injured Plaintiff Who Was Unemployed

Published on: October 12, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The Louisiana Supreme Court recently released a ruling in a negligence lawsuit affirming a district court’s decision to award a plaintiff over $250,000 in damages as compensation for lost future earnings as a result of injuries that she had suffered due to the defendant’s negligence. The defendant appealed the district court’s ruling, claiming that the plaintiff was not employed when she suffered the injuries and that it was inappropriate for the court to award her future earnings as part of the damages award. Based on the high court’s ruling after the plaintiff’s appeal, the defendant will most likely be required to pay the damages awarded to the plaintiff.

The Plaintiff Suffered Serious Injuries While Rock Climbing

The plaintiff in the case of Fecke v. Louisiana State University was injured after she fell from a rock climbing wall that was operated by the defendant. The plaintiff alleged that an employee of the defendant acted negligently, causing her fall. She sought damages from the defendant to compensate her for the expenses and losses related to the injuries she suffered in the fall.

After a jury trial on the plaintiff’s claim, the defendant was found liable for her injuries and ordered to pay a total of approximately $1.44 million in damages to the plaintiff as compensation for their negligence. As part of the final verdict, the plaintiff was awarded $262,500 in compensation for future income that she would be unable to earn as a result of her injuries.