South Florida Personal Injury Lawyers Blog

Tampa Federal Court Remands Medical Device Products Liability Case Back to Sarasota County

Published on: October 22, 2014 | by Friedman Rodman Frank & Estrada, P.A.

The Middle District of Florida in Tampa has remanded a products liability case back to state court. In Wier v. DePuy Orthopaedics, Inc., a man was allegedly hurt by a medical device that was surgically implanted in his hip. As a result, he filed a lawsuit against the manufacturer of the device and the distributor in the Twelfth Judicial Circuit in Sarasota County. In the man’s case, he asserted the two companies were negligent, failed to warn him, committed breach of an implied warranty, and should be held strictly liable for his harm. He also claimed that the medical device manufacturer was guilty of breach of express warranty.

Although the device manufacturer hailed from a different state, the defendant distributor was a Florida citizen for purposes of diversity jurisdiction. Under 28 U.S.C. § 1332(a), a lawsuit that was filed in state court may be removed to federal court if the parties are citizens of different states, and the amount in controversy exceeds $75,000. In general, any doubts regarding whether federal jurisdiction is proper should be decided in favor of a lawsuit proceeding in state court. Despite this, the manufacturer successfully removed the case to the Middle District of Florida based on diversity of citizenship.

Appeals Court Says Employer Who Failed to Comply With Florida Workers’ Compensation Laws Must Reimburse Hurt Employee

Published on: October 20, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Fortune v. Gulf Coast Tree Care, Inc., a Florida man’s shoulder became dislocated after he was assaulted while making a work-related delivery to a customer in 2011. Following the incident, the man was treated in an emergency room at a local hospital. After realigning his shoulder, the treating physician reportedly advised the injured man to seek follow-up care. Although the man notified his supervisor regarding the incident, and the supervisor came to both the scene of the assault and the emergency room, the supervisor apparently failed to file a timely notice of injury as required by Florida statute.

Less than two weeks later, the injured worker received follow-up care at a local Veterans Administration facility. About two months after the workplace assault, the injured man also underwent surgery related to the incident. Despite his work-related harm, the man continued his employment throughout his medical treatment.

Appeals Court Overturns $5.9 Million Florida Wrongful Death Verdict Against Tobacco Company

Published on: October 15, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Aycock v. R.J. Reynolds Tobacco Co., a Florida woman filed a wrongful death case in the Middle District of Florida against a tobacco company over her husband’s 1996 lung cancer death. In her complaint, the woman sought both compensatory and punitive damages from the company that manufactured the cigarettes her spouse smoked throughout their marriage. According to the woman, his nicotine addiction caused her husband’s death. Evidence provided to the court suggested that the decedent was also addicted to alcohol.

The man’s cancer was reportedly discovered when he was admitted to a local hospital “complaining of confusion, disorientation, and impairment of equilibrium.” At the time, the man’s treating physicians diagnosed him with lung cancer that spread to his brain. The man’s death certificate listed “lung cancer” as his cause of death, but the man’s family apparently refused a biopsy to confirm his diagnosis.

Florida Appeals Court Overturns Denial of Benefits in Miami-Dade Workers’ Compensation Case

Published on: October 13, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s First District Court of Appeal has reversed a decision denying an advance in workers’ compensation benefits that was rendered by a Judge of Compensation Claims (“JCC”). In Bonner v. Miami Dade Public Schools, an employee who was out of work for about 18 months due to a work-related injury returned to work with a reduced salary. After returning to work, she sought a $2,000 advance from her employer under Florida Statute Section 440.20(12). This law allows an employee to request a workers’ compensation advance of up to $2,000 when the worker has suffered a “substantial loss of earning capacity or a physical impairment” as a result of an injury that took place at work. In addition, the statute also allows a worker to request a larger advance if a JCC deems the request to be reasonable.

After the woman provided uncontroverted testimony demonstrating that she suffered financial harm as a result of her workplace injury and the advance was necessary in order to pay her bills, a JCC denied her request. She then filed a workers’ compensation appeal with Florida’s First District.

Middle District of Florida Refuses to Order Summary Judgment in First-Party Bad Faith Case

Published on: October 8, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Cadle v. GEICO General Insurance Co., a woman was apparently hurt in a 2007 Florida rear-end automobile collision. Immediately following the accident, the woman received medical care at a local hospital. Over the course of the next 28 months, the injured woman was treated for her alleged neck and back harm by a number of doctors. In late 2009, she also underwent surgery related to the vehicle crash.

The injured woman’s automobile insurer was reportedly notified of the accident on the date it occurred. About one year later, the company offered to settle the woman’s underinsured motorist (“UM”) claim for $500, although it was authorized to pay her almost $20,000. Instead of accepting the settlement offer, the woman ,sent a demand letter to her insurance company, seeking the full UM policy limits of $75,000. The insured also provided the company with a copy of her medical records and stated she was considering surgery to treat her accident injuries. The following month, the company offered to settle the woman’s UM claim for $1,000.

Southern District of Florida Orders Trial in Negligence Case Against Cruise Ship

Published on: October 6, 2014 | by Friedman Rodman Frank & Estrada, P.A.

The Southern District of Florida has refused to grant summary judgment in a negligence lawsuit that was filed against a cruise ship company. In Gandhi v. Carnival Corp., a six-year-old girl was allegedly hurt by an elevator while traveling aboard a cruise ship. The child’s arm was apparently trapped in the gap between the elevator doors as they tried to close. The doors were purportedly bent and left bloody after other passengers wedged the door open in order to release the girl’s arm. Although the child was initially treated by physicians on the ship, her parents later sought the advice of another doctor.

Not long after returning home from the family’s cruise, the girl’s parents filed a lawsuit in the Southern District of Florida seeking damages related to the child’s harm from the cruise line. As part of the case, the child’s parents, cruise ship workers, experts for both sides, and others offered deposition testimony to the federal court. Eventually, the cruise ship filed a motion for summary judgment in the case. A motion for summary judgment may be granted only if no material issue of fact is in dispute, and the moving party is entitled to judgment as a matter of law. When considering such a motion, a court is required to view all facts and evidence offered in the light that is most favorable to the non-moving party.

Fort Myers Federal Court Refuses to Remand Car Accident Case Back to Lee County

Published on: October 1, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Jackson v. St. Jude Medical Neuromodulation Division, a man was injured in a rear-end collision while riding as a passenger in an automobile. About one year later, the man filed a lawsuit in Lee County, Florida seeking damages from both the driver and the owner of the vehicle that rear-ended him. The injured man later amended his complaint to release the named defendants and include the company that insured the allegedly at-fault driver at the time of the crash. In his lawsuit, the man accused the insurer of breach of contract over the company’s purported failure to make timely disability and medical payments related to his traffic wreck injuries.

Several months later, the man again amended his complaint to add a medical device manufacturer to the lawsuit. According to the man, the company manufactured two separate devices that malfunctioned before and after the automobile wreck. About six months later, the medical device manufacturer was served with notice of the case. In response, the company sought removal to federal court. Although both the medical device manufacturer and the automobile insurer consented to removal, the plaintiff claimed the federal court lacked subject matter jurisdiction. After the case was removed to the Middle District of Florida in Fort Myers, the injured man filed a motion for remand.

Orlando Court Refuses to Dismiss Couple’s Negligence Lawsuit Against Cruise Ship Owner

Published on: September 26, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Shore v. Magical Cruise Co., Ltd., a couple set sail on a themed cruise ship. While aboard the vessel, the wife apparently suffered a staphylococcal infection following a treatment in the ship’s spa. In addition, the husband allegedly became ill as well. After the couple returned from their cruise, they filed a negligence, strict liability, and loss of consortium lawsuit in the Middle District of Florida against the owner of the cruise ship and the operator of the spa where the wife was purportedly injured.

In response to the couple’s lawsuit, the defendants argued that the couple failed to plead sufficient facts to support a negligence lawsuit. Specifically, the defendants claimed the couple failed to allege they had a duty to warn the woman or that they breached their duty. Normally, in order to demonstrate negligence, a plaintiff must assert the at-fault party owed the plaintiff a duty, the at-fault party breached that duty, the plaintiff was injured as a result of that breach, and the plaintiff suffered damages. The federal court disagreed with the defendants and stated the allegations included in the couple’s complaint were sufficient to state a negligence claim.

Miami Federal Court Holds Statute of Limitations Expired in Defective Drug Lawsuit

Published on: September 23, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Plascencia v. GlaxoSmithKline, LLC, a Florida woman filed a products liability action against a drug manufacturer on behalf of her minor child and herself in 2012. According to the woman’s complaint, she ingested an anti-depressant medication that was manufactured by the drug company during the first six weeks of her pregnancy. As a result, the woman alleged her child was born in 1996 with numerous heart defects.

In December 1997, the woman’s primary care physician noted in her medical record that the child’s heart condition was “apparently due to” his mother’s use of the pharmaceutical medication. In 2005, the drug manufacturer notified the woman’s doctor and other physicians across the country that a recent study found the drug was associated with an increased likelihood for congenital conditions, including heart defects. A second letter sent by the drug company said another study found that women who ingested the medication during the first trimester of pregnancy increased their risk of delivering a child with a cardiovascular malformation.

Florida’s Third District Refuses to Award Costs and Attorney’s Fees in Bungled Premises Liability Case: Design Home Remodeling Corp. v. Santana

Published on: September 19, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Design Home Remodeling Corp. v. Santana, a man was apparently injured when he fell while visiting a property owned by a condominium association. About 18 months later, the man and his wife filed a premises liability lawsuit against the association. As part of his complaint, the man alleged the association negligently maintained the property. The association responded by arguing a non-party was responsible for any negligent maintenance that existed on the property. The couple then amended their complaint to add the non-party as a defendant in the premises liability lawsuit. The couple also claimed that the newly added defendant failed to warn the injured man about a slippery substance that existed on the floor of the condo association’s property.

Sixty days later, the new defendant served the couple with a proposed settlement offer under Section 768.79 of the Florida Statutes. This section states that a plaintiff may be held liable for a defendant’s attorney’s fees and costs if the plaintiff refuses to accept a settlement offer within 30 days in situations when the final judgment is rendered in favor of the defendant or is valued at least 25 percent below the refused settlement offer. Neither member of the couple accepted the defendant’s settlement offer.

About three years later, a trial court entered summary judgment in favor of the defendant. Summary judgment is only appropriate when no genuine issue of material fact is in dispute and a party to the lawsuit is entitled to judgment as a matter of law. Following the trial court’s order, the defendant asked the court to award the company attorney’s fees and costs. The court denied the defendant’s motion based on Florida Rule of Civil Procedure 1.442(b). Under the rule, a defendant may not make a settlement offer to a plaintiff before 90 days has passed since the lawsuit was commenced. The defendant’s motion for rehearing was denied, and the company appealed the trial court’s refusal to award attorney’s fees and costs to Florida’s Third District Court of Appeals.