South Florida Injury Law Blog

In the ring, quick and heavy hands can earn a prize fighter fame and fortune. In a public place, they can earn you a personal injury lawsuit. In Fernandez v. Estate of Arturo Gatti, the District Court for the Southern District of Florida recently considered claims against a former pro boxer allegedly involved in a South Florida brawl.

The case stems from a brawl that occurred in downtown Ft. Lauderdale in the overnight hours of April 11, 2009. Former welterweight boxing champion Arturo "Thunder" Gatti was allegedly involved in the fight, after which Plaintiff Nestor Fernandez was hospitalized for five days. Gatti died roughly three months later in an unrelated homicide. Fernandez filed suit against Gatti's estate in November 2011, alleging negligence as well as assault and battery.

In order to prove negligence, according to the court, a plaintiff must establish:

(1) a legal duty on the defendant to protect the plaintiff from particular injuries;
(2) the defendant's breach of that duty;
(3) the plaintiff's injury being actually and proximately caused by the breach; and
(4) the plaintiff suffering actual harm from the injury.

Defendant filed a motion for summary judgment on the negligence claim, arguing that Gatti could not be held liable because he was the victim, not the aggressor, in the altercation. In so doing, Defendant pointed to statements by Gatti that he had been "jumped," which was included a police report compiled after the altercation.

The court denied Defendant's summary judgment motion, finding that Gatti's statements, if admissible, "merely show that a genuine issue of material fact exists concerning Mr. Gatti's role in the brawl." Furthermore, the court noted that one witness to the fight gave sworn testimony stating that Gatti was "running around beating people up" and another specifically identified Gatti as the person who punched Plaintiff.

For the same reason, the court denied Defendant's summary judgment motion with respect to the battery claim, which requires proof of both the intent to cause harm to another person and physical contact with the person. The ourt found that Plaintiff had presented sufficient evidence to create an issue of fact as to whether Gatti punched him and therefore Defendant was not entitled to summary judgment.

Continue reading "Court Allows Negligence Claim to Move Forward in Ft. Lauderdale Brawl Case Involving Former Pro Boxer - Fernandez v. Estate of Arturo Gatti" »

In Johnson v. Royal Caribbean Cruises, the District Court for the Southern District of Florida ruled against a person who was injured while partaking in one of the ship's on-board activities.

Plaintiff Charlene Johnson was injured in Jan. 2010 while a passenger aboard a Royal Caribbean cruise ship, "Oasis of the Sea." She fractured her right ankle during a FlowRider simulated surfing machine lesson provided on the boat when the instructor let go of the board on which she was standing and Plaintiff subsequently fell. Plaintiff filed a personal injury action for damages against Royal Caribbean in federal court.

Prior to trial, Royal Caribbean filed a motion for summary judgment, arguing that Plaintiff's suit was barred by a waiver agreement that she signed before the FlowRider lesson. According to the court, the electronic "Onboard Activity Waiver" she signed required Plaintiff to "fully release and forever discharge" Defendant from "any and all actions" arising from "any accident or injury" in any way connected to Plaintiff's use of the FlowRider. The three-page agreement further stated that "rider/participant can, intentionally or inadvertently, move quickly and unexpectedly from side to side or any direction, which will necessarily result in falls or wipeouts from the bodyboard and which may cause serious injury."

The court agreed with Royal Caribbean, finding that the waiver agreement was valid and enforceable and barred Plaintiff's suit for injury resulting from her use of the FlowRider machine.

Although 6 U.S.C. Section 30509 prevents the owner of a ship transporting people between U.S. ports from relying on a waiver clause to limit its liability for injury or death caused by the owner or its employees, the court found that the matter was not subject to general maritime law. "In order for admiralty jurisdiction to exist, two tests must be satisfied: the location test and the connection test," the court ruled. The location test considers whether the incident at issue occurred in navigable waters. Under the connection test, on the other hand,"(1) the incident causing the alleged harm must have a potentially disruptive impact on maritime commerce; and (2) the activity giving rise to the incident must bear a substantial relationship to traditional maritime activity."

Continue reading "Florida Court Upholds Waiver in Cruise Ship Activity Injury Case - Johnson v. Royal Caribbean Cruises" »

Proximate cause is the legal term referring to an act that causes an injury as a natural, direct, uninterrupted consequence and without which the injury would not have occurred. It's an important issue in any Florida personal injury case. In Sunbelt Environmental v. Gulf Coast Truck and Equipment Company, the First District Court of Appeal explains that a court can't determine whether or not a particular defendant is liable for an injury sustained in an accident without first establishing the injury's proximate cause.

Clifford Smith had his arm amputated as the result of an accident in which he was hit by a garbage truck while riding a bicycle. Smith and his wife sued Sunbelt Environmental, Inc. and the parties settled the matter before it went to trial.

Sunbelt then filed a third party complaint against the truck's manufacturer, Gulf Coast Truck and Equipment Company, and Wastequip Manufacturing Company, which installed a tarping device on the truck to prevent debris from leaving the bed. Sunbelt raised claims for negligence and strict liability against both parties as well a breach of implied warranty of merchantability claim against Wastequip. Specifically, Sunbelt alleged that an "arm" connected to the truck to keep the tarp in place - which allegedly caught Smith's clothing, causing the accident - made the truck wider than allowed under state and federal law.

Following discovery, Sunbelt and Wastequip filed a joint motion for summary judgment, arguing that they were not liable because the truck's driver - a Sunbelt employee - acted negligently by "by failing to pass at a safe distance of not less than 3 feet," in violation of Florida law and in failing to decrease his speed as necessary in order to avoid colliding with Smith. Defendants also argued that the truck width was within the legal requirement.

The trial court granted Defendants' motion for summary judgment, ruling that while the truck exceeded the width limits, Sunbelt - as the truck's owner - was required to ensure that it comported with the law. The court further held that because it replaced the tarping unit in 2006 using its own employees, "Sunbelt assumed the risk associated with its own labor." Thus, according to the court, neither Gulf Coast nor Wastequip could be held liable for any illegality as to the width of the truck.

Continue reading "Proximate Cause in Florida Personal Injury Cases - Sunbelt Environmental v. Gulf Coast Truck and Equipment Company" »

There are a number of procedural hoops that a plaintiff in a Florida medical malpractice lawsuit must jump through before bringing suit. As the state's Fourth District Court of Appeal explains in Berry v. Padden, the failure to abide by these pre-suit rules can be fatal to a case.

Plaintiffs Elsie and Carl Berry filed suit against Defendant Dr. David Patten, asserting that he committed medical malpractice during Ms. Berry's knee replacement surgery by improperly installing a tibial component that was too large. In support of their complaint, Plaintiffs attached a letter from an orthopedic surgeon - Dr. Christopher J. Cassels - which was not verified as sworn, notarized or otherwise at the time the complaint was filed. Plaintiffs filed a verified opinion from the orthopedic surgeon roughly six months later.

Florida law requires a person seeking to sue for medical negligence to corroborate the basis for the suit by submitting "a verified written medical expert opinion from a medical expert ... at the time the notice of intent to initiate litigation is mailed." Where a plaintiff fails to meet this requirement, a court is required to dismiss the claim.

The trial court granted Dr. Patten's motion to dismiss the claim finding that the Berrys failed to provide a verified written medical expert opinion within the applicable statute of limitations, which expires two years from the date of the alleged negligence (with an additional 90 days of required pre-suit notice to the defendant and a possible 60-day extension).

The Fourth District affirmed the ruling on appeal. "The law is well-established that a properly verified, corroborating medical expert opinion must be provided by the plaintiff to the defendant prior to expiration of the statute of limitations," the court noted, citing the Second District's 1998 decision in Maguire v. Nichols. Although the defect can be cured by filing a verified opinion before the statute of limitations expires, according to the court, a medical negligence case must be dismissed where the opinion is filed after the expiration date.

Continue reading "In Order to Sue for Medical Malpractice in Florida, You Must First Get a Medical Expert Opinion - Berry v. Padden " »

The District Court for the Middle District of Florida recently considered a grisly Florida defective products case, explaining that state law prevents a person injured by certain unsafe products from suing if the product was used after it's "useful life."

Plaintiff Eduardo Toucet, a St. Cloud resident, sued Future Foam Carpet Cushion Co. (FFCC) for negligence. A former employee of the company, Toucet survived an accident in which a peeler machine sliced through his pelvis, cutting off his penis. In the suit, he alleged that FFCC improperly removed a safety mechanism from the machine and failed to give him any training before he began using the machine.

The Palm Beach Post's Walter Pacheco reports that Toucet "was injured Jan. 13, 2010 at Future Foam Carpet Cushion after he removed a 'foam core' from a machine with a steel blade that is used to cut blocks of carpeting foam..." The complaint asserts that "[t]he surgically sharp steel blade sliced through Toucet's pelvis cutting off his penis and testicles while virtually cutting his body in half."

The court previously denied FFCC 's motion to dismiss the complaint, in which the company argued that it is immune from suit under Florida's workers compensation statute. FFCC then filed a motion for summary judgment, asserting that Toucet's claims are barred under Florida's statute of repose.

Fla. Stat. § 95.031(b) provides that a person cannot sue to recover for injuries allegedly caused by a product with a "useful life" of 10 years or less if the injuries are caused more than 12 years after the product is delivered to the purchaser. Although, Toucet's injury occurred outside of the 12-year statutory period, he argued that the limitation does not apply where the product comes with an express warranty. The court, however, found that there was no evidence in the record to show that such an express warranty exists. Furthermore, Toucet's assertion that FFCC had been "evasive" in responding to discovery requests on this issue and that he therefore needed more time to conduct discovery in order to determine whether a warranty exists was "disingenuous," the court ruled, citing the long gap between Defendant's notice of affirmative defenses and Toucet's discovery requests.

Continue reading ""Useful Life" and Florida Defective Products Cases - Toucet v. Future Foam Carpet Cushion Co." »

One of the many ways that an experienced personal injury attorney can assist a person injured by a defective product is by determining the person or entity responsible for the injury. In Barnes v. Bayside Orthopaedics, Inc., the District Court for the Middle District of Florida explains that liability in a Florida defective products case extends not only to the entity that made the product, but also to others in the distribution chain.

Plaintiffs, Florida residents Janine Barnes and Julie Fournier, sued Bayside Orthopaedics, Inc. (Bayside) in a products liability action filed in St. Petersburg, where Bayside's principal place of business is located. Plaintiffs claim that Bayside supplied a defective prosthetic implant device used in each of their hip replacement surgeries. The Court noted that similar allegations are currently the subject of several suits which have been consolidated by a Multi-District Litigation court.

Seven months after filing the complaint, Plaintiffs added a number of Defendants to the action, all of which reside or have their principal place of business outside of Florida. These defendants removed the action to federal court based on diversity of citizenship (a federal court has jurisdiction over cases in which none of the plaintiffs are from the same state as any of the defendants). In opposing Plaintiffs' request that the case be remanded back to the state court, Bayside argued that it was fraudulently added as a defendant in this case, solely to keep the action out of federal court.

In granting Plaintiffs' remand request, the District Court found that Bayside was properly named as a defendant in the suit. Plaintiffs alleged a strict liability claim against Bayside, which under Florida law incurs liability for injuries caused by the product, regardless of whether the particular defendant was actually negligent. In a Florida defective products case, the court noted, strict liability extends to all parties in the distribution chain, including manufacturers, marketers and sellers. Quoting the Florida Supreme Court's 1995 decision in Porter v. Rosenberg, M.D., FACS, the court explained the basis for this liability as such:

Retailers like manufacturers are engaged in the business of distributing goods to the public. They are an integral part of the overall producing and marketing enterprise that should bear the cost of injuries resulting from defective products.

Thus, according to the court, both DePuy - the maker of the hip implant device - and Bayside, its seller, can be held liable under Florida's strict liability theory.

Noting that Bayside earned commissions and royalties from DePuy for marketing and selling the device, the court held that "[e]ntities that play an active role in promoting a particular product within the chain of distribution to the general public are strictly liable for any defect in the product." Since Bayside marketed an promoted the device, it was part of the distribution chain and therefore subject to suit.

Continue reading "Florida Court on Strict Liability and the Distribution Chain in Defective Products Cases - Barnes v. Bayside Orthopaedics" »

A property owner is generally responsible for keeping the property in a reasonably safe condition, especially for invited guests such as customers. When an invitee is injured on another person's property, Florida courts will typically consider whether the owner knew or should have known that the property was in a dangerous condition and whether the owner properly warned the invitee of any danger. In Dampier v. Morgan Tire & Auto, LLC, Florida's Fifth District Court of Appeal explains that certain conditions, however, are so "open and obvious" that the owner will not be held liable for injuries that result because of them.

Plaintiff Dandal Dampier was injured while at Morgan Tire & Auto (owned by Defendant Tires Plus) for an oil change. Specifically, Plaintiff "tripped on a stump" in a raised planting bed connecting the premises with a public sidewalk "and fell headlong into the parking lot, resulting in various injuries," according to the court. He sued Defendant for negligence, asserting that it failed to properly maintain the walkway and to warn of its dangerous condition. The trial judge granted Defendant's motion for summary judgment, finding that Defendant was not liable for Plaintiff's injuries because the stump over which Plaintiff fell "is so open and obvious as to not constitute a dangerous condition as a matter of law."

In affirming the trial court's decision, the Fifth District stated that "a property owner owes two duties to an invitee: (1) the duty to use reasonable care in maintaining the property in a reasonably safe condition; and (2) the duty to warn of latent or concealed dangers which are or should be known to the owner and which are unknown to the invitee and cannot be discovered through the exercise of due care." While the property owner has no duty to warn an invitee about "open and obvious" dangers, it nevertheless retains the duty to repair such conditions unless the condition is "so obvious and not inherently dangerous that they can be said... not to constitute a dangerous condition."

Citing its 1987 decision in K.G. v. Winter Springs Cmty. Evangelical Congregational Church, the court noted that landscaping features are typically not considered to create a dangerous condition invoking a property owner's duties to invitees. Similarly, the court concluded that the stump at issue in this case did not constitute a dangerous condition creating liability for failure to maintain the premises in a safe condition or warn invitees of the danger associated with walking the planting bed. As a result, Defendant was not liable for any injuries sustained by Plaintiff in the fall.

Continue reading "Florida Court on Accident Injuries and the "Open and Obvious" Requirement - Dampier v. Morgan Tire & Auto, LLC" »

One of a score of ongoing Florida personal injury cases against cigarette makers won't be reviewed by the nation's highest court.

The U.S. Supreme Court rejected a request by R.J. Reynolds Tobacco Co. to hear its appeal of a $28.3 million jury verdict in a lawsuit against the company by the family of a smoker who died from lung cancer.

Benny Martin, formerly of Pensacola, died in 1995 following a bout with lung cancer allegedly caused by smoking R.J. Reynolds' Lucky Strike cigarettes for decades. Following a 2009 state court trial, a jury ordered the company to pay more than $3.3 million in compensatory damages as well as a $25 million punitive damages award to Martin's wife. It found that although Mr. Martin was partially at fault for his death, the majority of the blame rested with the Winston-Salem, North Carolina tobacco company.

According to Reuters, "[t]he lawsuit stemmed from the so-called "Engle progeny" cases filed against tobacco companies by sick Florida smokers or their relatives. A class-action lawsuit filed in 1994 by...the late Dr. Howard Engle, produced a $145 billion judgment against cigarette makers six years later." Although the state supreme court ultimately overturned the ruling, finding that a class action was inappropriate, it allowed the various plaintiffs to file individual lawsuits against the tobacco companies. The court also upheld the jury's conclusions that nicotine is addictive, smoking can cause disease such as lung cancer and tobacco giants like R. J. Reynolds attempted to hide this information from consumers.

Reynolds appealed the jury award in the Martin case, arguing that the trial court had prohibited the company from arguing certain points although they had not been covered in the Engle case. Specifically, the Associated Press reports, "R.J. Reynolds lawyers argued that the case should be overturned because Florida judges aren't making plaintiffs prove cigarette makers knowingly sold dangerous and defective products. People suing cigarette companies only have to prove addiction, and that their illnesses, or deaths of family members, were caused by cigarettes."

Continue reading "High Court Declines to Review Florida Cigarette Verdict" »

With its beautiful beaches and welcoming climate, Florida attracts a wide array of visitors each year. It also attracts scores of companies from elsewhere in the U.S. and around the world looking to do business in the Sunshine State. In Kitroser v. Hurt, the Florida Supreme Court explains the rules for suing an employee of such a company whose negligence causes injury.

According to the court, Rhina Castro Lara was killed when Dale Dickey, an Airgas Carbonic, Inc. (Airgas) employee, "negligently operated a commercial truck which struck her automobile on Highway 27 south of Lake Okeechobee in Palm Beach County." Plaintiffs, as personal representative of the estate of the deceased and other individuals, filed an action against Airgas, Dickey and five other Airgas employees. Airgas is a foreign company. The employee defendants trained and/or supervised Dickey in Florida. Plaintiffs asserted that the employees were personally responsible for the accident because they knew or should have known that he was a careless driver.

The trial court ruled that it had personal jurisdiction over the employee defendants under Florida's long-arm statute - section 48.193, Florida Statutes (2011) - which provides that any person who personally or through an agent operates, conducts or carries on a business in Florida or commits a tortious act within the state is subject to state court jurisdiction. The Fourth District Court of Appeal, however, reversed the decision. In so doing, it certified the following question for the state supreme court:

Where an individual, non-resident defendant commits negligent acts in Florida on behalf of his corporate employer, does the corporate shield doctrine operate as a bar to personal jurisdiction in Florida over the individual defendant?

In answering this question, the supreme court explained that Florida's corporate shield doctrine "provides that acts performed by a person exclusively in his corporate capacity not in Florida but in a foreign state may not form the predicate for the exercise of personal jurisdiction over the employee in the forum state." The idea behind the doctrine, according to the court, is that "it may be unfair to force an individual to defend an action filed against him personally in a forum with which his only relevant contacts are acts performed totally outside the forum state and not for his own benefit but for the exclusive benefit of his employer."

Pursuant to this doctrine, the court ruled in Doe v. Thompson that a corporate executive who lived and worked in another state could not be haled into a Florida court to defend a negligence claim by a clerk who was sexually assaulted at a local convenience store owned by the executive's company. In the present case, however, Plaintiffs allege that the employee defendants engaged in negligent behavior - the training and/or supervision of Dickey - while physically present in Florida. As a result, the court held that the employees were not protected by the corporate shield doctrine and were subject to the trial court's jurisdiction under the long-arm statute.

Continue reading "Florida Supreme Court: Out of State Company Employees Can be Sued for Negligence in Florida - Kitroser v. Hurt" »

In Murray v. Traxxas Corp., the Second District Court of Appeal explains that a plaintiff in a Florida products liability action can still prove his or her case even when the product at issue is not available for inspection.

Plaintiffs' eleven year old son suffered severe burns when a Top Fuel can exploded as he and his brother tried to start a fire to roast marshmallows. The fuel can, taken from a shed on the boys' grandparents property, was originally purchased by their uncle for use in a remote controlled model car. Plaintiffs sued Defendants - the companies that designed, produced and sold Top Fuel - asserting that the can's negligent design caused their son's injuries. Specifically, the Murrays claim that the can should have been equipped with a "fuel arrestor" in order to prevent the flame-thrower or flashback effect which resulted in the explosion.

A circuit court granted Defendants' motion for summary judgment based largely on the fact that Plaintiffs had disposed of the Top Fuel can before filing the suit. As a result, the parties could not run tests on the fuel to determine its condition - nor that of the can itself - at the time of the accident. "Without the can... there's no proof of [P]laintiffs' theory of liability, that this can had a flame-thrower or flashback effect," the circuit court ruled.

On appeal, the Second District reversed the summary judgment ruling, finding that both parties can conduct experiments on similar Top Fuel cans in order to determine whether the one at issue in this case was negligently designed. The court explained that "[t]o prove their action based on negligent design, the Murrays must show that the defendants owed them a duty, that the defendants breached the duty, that the breach was the proximate cause of Brandon's injuries."

The condition of both the can and the fuel inside it at the time of the accident relate to the issue of whether Defendants breached a duty to the Murrays via negligence. The court found that the Murrays presented enough circumstantial evidence to indicate that the can contained the original fuel at the time of the accident. Specifically, according to the court, the boys' uncle "testified that he placed the partially used can of Top Fuel on a shelf in the shed about two years before the accident and that he never used the fuel. Defendants did not present any evidence to counter this testimony. Additionally, because the Murrays' negligent design claim is based on the undisputed fact that Top Fuel cans were not equipped with fuel arrestors, the court found the fact that the can was not available for inspection did not prevent the Murrays from proving their case. As a result, the court remanded the action to the circuit court for further proceedings.

Continue reading "Florida Court Allows Products Liability Case to Proceed without the Product - Murray v. Traxxas Corp." »

Negligence is the most common theory of recovery for people injured in any type of accident. The law allows a person sued for negligence to defend himself on a number of grounds, including that the person's conduct was not negligent. In Felker v. Zampatti, the Middle District of Florida considers two lesser raised negligence defenses: insanity and sudden and unforeseeable loss of consciousness.

Plaintiff Christopher Felker was injured when the bicycle he was riding on A1A in North Florida was struck by a car driven by Defendant Andrea Zampatti. Felker and his wife Linda filed the present suit raising a number of claims, including negligence. Although both Felker and Zampatti indicated that they don't remember what happened at the time of the accident, an eyewitness testified at deposition that he saw Zampatti's vehicle swerve and hit Felker's bike.

In order for a plaintiff to successfully assert that a defendant was negligent, he or she must show that: 1) the defendant owed the plaintiff a "duty of care"; 2) the defendant breached the duty of care; 3) the plaintiff was injured; and 4) the breach caused the plaintiff's injury.

Before trial, the Felkers filed a motion for summary judgment on the negligence claims, asserting that the undisputed facts show that Zampatti breached her duty of care owed to Mr. Felker and that the breach resulted in his injury. In response, Zampatti argued that she cannot be held liable for negligence because she was insane at the time of the accident.

"Under Florida law, the general rule is that insane persons are responsible for their own negligence, despite their mental incapacity," the Court ruled, citing the Third District Court of Appeals' 1991 decision in Mujica v. Turner. As a result, the Court ruled that Zampatti may not offer evidence of her mental incapacity in defense of the Felkers' negligence claims.

Continue reading "Court: Insanity is No Defense to Negligence, but "Sudden and Unforeseeable Loss of Consciousness" Is - Felker v. Zampatti" »

In Florida, a person who is injured on the job can often seek compensation for his or her injuries under the employer's worker's compensation plan. But can the employee also sue the employer for negligence? The district court for the Middle District of Florida answers that question in Mena v. J.I.L. Construction Group, Inc.

Plaintiff Victor Mena sued Defendants J.I.L. Construction Group Corporation (J.I.L.) and Slorp Construction Company, Inc. (Slorp) for injuries sustained when he fell from a second-floor roof truss of a house that he was building in a Davie residential development. A general contractor subcontracted the shell construction of homes in the development to Slorp, which in turn subcontracted part of its work to J.I.L, which hired Mena to work on the construction. Both companies denied his claims for worker's compensation benefits, asserting that they did not have an employer/employee relationship with Mena. He then filed the present action alleging negligence by both J.I.L. and Slorp.

In addition to defending the action based on assumption of risk and comparative negligence, the companies further argued that they were immune from suit because Plaintiff's injuries were compensable exclusively under Florida's Worker's Compensation Act. Plaintiff, on the other hand, argued that the companies were estopped from raising this defense because they previously denied his worker's compensation claims. The trial court sided with the subcontractors, granting Defendants' motions for summary judgment.

On appeal, the Middle District affirmed the summary judgment ruling in favor of Slorp, but reversed the ruling in favor of J.I.L. Under Florida law, the Court noted, an employee cannot sue an employer for injuries encompassed in the state's Worker's Compensation Act. Citing Florida's Third District Court of Appeals' ruling in Coastal Masonry v. Gutierrez, however, the Court also stated

where an employer denies a claim for worker's compensation benefits on the basis that the injury did not occur in the course and scope of employment, or that there was no employment relationship, the employer may be estopped from asserting in a later tort action that the worker's exclusive remedy was worker's compensation...

Furthermore, a court should not grant summary judgment where the employer's notice of denial of a worker's comp claim could give rise to more than one interpretation as to whether the denial is inconsistent with a worker's compensation immunity defense, according to the Court.

In this case, the Court ruled that it could not determine whether J.I.L.'s denial of Plaintiff's worker's comp claim was inconsistent with its immunity defense. Specifically, it found that the meaning of J.I.L.'s indication that no employer/employee relationship existed between it and Plaintiff was unclear "at the very least." As a result, it reversed the summary judgment ruling. The Court found no such inconsistency in regard to Slorp, however. Rather, Slorp denied Plaintiff's worker's comp claim on the basis that he was employed by J.I.L. and therefore covered under J.I.L.'s worker's comp plan. In its immunity defense, the company similarly argued that Plaintiff was acting in the course and scope of his employment when he was injured. Thus, Slorp was not estopped from claiming worker's compensation immunity.

Continue reading "Workers Compensation Immunity in Florida Personal Injury Lawsuits - Mena v. J.I.L. Construction Group, Inc." »

In order to recover damages in a personal injury lawsuit, a plaintiff must not only prove that he or she is injured, but that the injury resulted from the defendant's conduct. Often, this comes down to a battle of experts, with each party presenting witnesses to support the claims or defenses. In Poland v. Zaccheo, Florida's Fourth District Court of Appeals explains that the parties must be given a full and fair opportunity to cross-examine these witnesses before a case goes to a jury for a decision.

Appellant Audra Poland was injured in a car accident in 2006 when her car was rear ended by Appellee Susan Zaccheo's SUV. Poland eventually underwent surgery for a lower back injury. She filed an action against Zaccheo for negligence. At trial, Zaccheo called an orthopedic surgeon who, according to the Court, testified that the "accident had caused only a temporary cervical strain on Poland and that the majority of Poland's injuries were attributable to preexistent disc bulges and degeneration associated with her morbid obesity." The expert further stated that the accident did not cause any permanent injury.

The jury found Zaccheo 90 percent negligent and Poland 10 percent negligent for the accident - under Florida law, a person who is injured partly due to his or her own negligence can hold another liable proportionately - awarding Poland $10,000 for past medical expenses and $4,400 for past lost earnings. The jury did not award damages for future medical expenses or lost earnings, concluding that Poland did not sustain a permanent injury within a reasonable degree of medical probability.

On appeal, Poland argued that the trial court erred by limiting her lawyer's cross-examination of Zaccheo's medical expert. Specifically, the trial judge sustained an objection from Zaccheo's attorney, preventing Poland's lawyer from questioning the expert as to whether Poland's surgery was related to the accident.

The Fourth District agreed with Poland, finding that the trial judge improperly limited cross-examination concerning the proximate cause of Poland's injuries. Section 90.612(2) Florida Statutes (2008) provides that cross-examination of a witness should be allowed to the extent that it covers matters to which the witness testified on direct examination. In this case, according to the Court, the relationship between the accident and Poland's surgery was sufficiently related to the matters to which Zaccheo's expert testified on direct examination - namely, Poland's injuries and their likely cause - that the trial judge should have allowed cross-examination on the issue. "At a minimum...the lower court should have allowed Poland's attorney to fully explore the witness's opinion regarding the causation of Poland's injuries in order to effectively refute the notion that Poland's damages were not proximately caused by the accident," the Court ruled. Accordingly, the Court reversed the jury's decision and remanded the case for a new trial.

Continue reading "Florida Court: Car Accident Plaintiff Must be Given Full Opportunity to Cross-Examine Defendant's Medical Expert - Poland v. Zaccheo" »

Sunshine State lawmakers are set to consider a proposed law intended to limit Florida medical malpractice lawsuits by raising the standard of proof in certain cases and allowing defendants to have unfettered access to a plaintiff's treating doctors.

The Associated Press' Gary Fineout reports that "[t]his effort is being criticized as an attack on the privacy rights of patients and comes at a time when fewer medical malpractice claims are being filed, according to state regulators."

Sponsored by Rep. Matt Gaetz (R-Fort Walton Beach), House Bill 385 provides that a doctor is not liable for malpractice for failing to order or perform a diagnostic exam, unless the doctor also failed to act "in good faith," as proved by the plaintiff based on "clear and convincing evidence." It also allow a potential medical malpractice defendant - a person seeking to sue for medical malpractice must notify the defendant before filing suit - to interview the plaintiff's treating doctors without the plaintiff or his or her attorney present.

Undeterred by the difficult standard of proof that the proposed law would enact for certain medical malpractice plaintiffs, Gaetz told the AP flatly that sometimes there are simply "bad outcomes" in medicine. He also overlooked the significant privacy implications of allowing a doctor to talk to a third person about a patient's condition and treatment without the patient or a representative present.

Section 456.057(7)(a)(3), Florida Statutes (2010) requires that a health care practitioner obtain a patient's written authorization before discussing the person's medical records with a third party. The law provides an exception, however, "[i]n any civil or criminal action . . . upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient's legal representative by the party seeking such records." § 456.057(7)(a)(3).

Continue reading "Florida Considers Medical Malpractice Revamp, Raising Privacy Concerns" »

The legal theory of negligence arises in a wide variety of situations in which a person is injured, from car and boat accidents to the selection of home building materials and operation of theme parks. For the Sunshine State's many senior residents, negligence can also come up in another context: nursing homes. In Gilmore v. Life Care Centers of America, Inc., the District Court for the Middle District of Florida explains how to sue a nursing home for negligence.

Ronald Gilmore filed the complaint on behalf of his mother's estate. A resident at Life Care Center of Estero, a long term care facility owned by Defendant Life Care Centers of America, Inc., Vera Gilmore died after sustaining a fall on the premises. Mr. Gilmore asserts that Defendant acted negligently by failing to prevent the fall. In particular, he alleges that his mother was observed to be disoriented and having trouble walking before she fell.

The Court granted Defendant's motion to dismiss both of Gilmore's claims - one for negligence and the other for negligence per se - but left open the door for him to amend his complaint so as to properly state the negligence claim. In so doing, the Court explained that a person seeking to bring a negligence claim arising from the personal injury or death of a nursing home resident must raise the claim pursuant to Florida Statutes §§ 400.023-400.0238, which according to the Court provide the "exclusive remedy" in such cases. In order to properly state a claim under the statutes, a Plaintiff must allege the following:

(a) The defendant owed a duty to the resident;
(b) The defendant breached the duty to the resident;
(c) The breach of the duty is a legal cause of loss, injury, death, or damage to the resident; and
(d)The resident sustained loss, injury, death, or damage as a result of the breach.

In this case, the Court found that Plaintiff failed to adequately specify the duty owed by Defendant to Ms. Gilmore. "A complaint requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do," the Court noted, quoting the Supreme Court's decision in Bell Atlantic Corporation v. Twombly. As a result, the Court dismissed the claims while allowing Gilmore to file an amended complaint within 21 days of the ruling.

Continue reading "Florida Court Explains Nursing Home Negligence Law - Gilmore v. Life Care Centers of America, Inc." »