South Florida Injury Law Blog

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.

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" »

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" »

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." »

In Hester v. United States, the District Court for the Middle District of Florida takes on two defenses that are often raised in Florida personal injury cases: collateral source benefits and comparative negligence. While these remain viable defenses in many cases, the Court explains that a party raising them bears the burden of proving that they are actually applicable to a given matter.

Plaintiff Michael Hester, a wheelchair-bound paraplegic, was injured while being transported to a medical care facility by Dannie Dick, an employee of the U.S. Department of Veterans Affairs (VA). Plaintiff alleges that he was thrown from his wheelchair when Dick suddenly slammed the breaks in the vehicle in which he was driving Plaintiff in order to avoid an accident. Plaintiff filed this action against the U.S. government under the Federal Tort Claims Act (FTCA), which permits private parties to sue the government in a federal court for most torts committed by persons acting on the government's behalf.

The U.S. countered by arguing that any damages to which Plaintiff may be entitled must be reduced by the amount of "collateral source benefits" paid or payable to Plaintiff. Florida Statute § 768.76 provides that a court must reduce a damages award by the amount paid for the benefit of the plaintiff, or otherwise available to the plaintiff, from collateral sources. In this case, the U.S. argued that the damages award must be decreased by monthly VA benefits that he receives as a result of his status as a disabled veteran.

The court granted Plaintiff's motion to strike the government's collateral benefits defense, finding that Plaintiff's monthly VA benefits are not a collateral benefit simply because they come from the same source - the VA - as would any damages received. According to the court, the government failed to show that, by receiving both his monthly benefits and a damages award for injury suffered as a result of the car accident, Plaintiff would in effect be paid twice for the same injury. However, the court granted the government leave to amend its answer to the complaint in order to clarify its collateral benefits defense.

The court also granted Plaintiff's motion to strike the government's comparative negligence defense. Under Florida law, a person who is injured partly due to his or her own negligence can hold another liable proportionately. In other words, were Plaintiff found to be 40 percent responsible for the injuries sustained in the accident, he could only recover 60 percent of his damages from the government. In this case, however, the court found that the government "proffers no set of facts in which Plaintiff could be found to be comparatively negligent." As a result, the court granted the motion to strike.

Continue reading "Collateral Source Benefits and Comparative Negligence in Florida Personal Injury Cases - Hester v. United States " »

The multinational manufacturing company that allegedly provided defective drywall for use in homes throughout South Florida has agreed to an $800 million settlement in a global class action by home owners alleging that the drywall has caused physical damage to their homes and emits toxic sulfur gases causing residents a variety of physical respiratory problems.

Earlier this year, we told you about a number of lawsuits filed against Chinese drywall manufacturers Knauf Plasterboard (Tianjin) Co. and Banner Supply Co., the South Florida company that imports the product, for wide spread damages the allegedly defective drywall has caused to homes throughout the region. On December 15, a U.S. District Judge in New Orleans announced that Knauf had agreed to settle claims by more than 5,000 plaintiffs in federal and state actions.

"The settlement attempts to address a catastrophe that ruined homes and companies that came to light in South Florida in late 2008," South Florida Business Journal's Paul Brinkmann reports. "The drywall arrived in U.S. ports as a way to replace a shortage of domestic drywall during the building boom and hurricane reconstruction efforts of 2005 and 2006." Soon thereafter, home owners in Florida and other parts of the country noticed that the drywall was crumbling and that it emitted a foul odor.

In June, Banner reached an almost $55 million dollar settlement of roughly 2,000 claims stemming from its role in importing the drywall. But the Miami company's litigation bills may continue to pile up: In October, a local woman filed an action in Dade Circuit Court alleging that Banner continued to distribute toxic drywall despite knowing that the product was defective and even conspired with Knauf to keep the information under wraps.

Ft. Lauderdale contractor Moss & Associates has been hired to carry out Knauf's remediation program through which the defective drywall will be removed and replaced from effected homes. Plaintiffs in the Knauf settlement can choose to have Moss or another contractor to perform the work, or instead take a "cash out" for slightly less than the cost of the removal and replacement.

Continue reading "South Florida Homeowners Reach Settlement in Defective Chinese Drywall Suits" »

In recent years, a number of homeowners in South Florida have filed suit against the manufacturers of allegedly contaminated drywall containing toxins that destroy infrastructure, emit foul odors and cause breathing problems. Now, they're setting their sights on the company's Florida-based distributor.

Earlier this month, Samia Aziz, a Miami resident, filed an action in Miami-Dade Circuit Court against local company Banner Supply Co., alleging that the company continued to distribute toxic drywall despite knowing that the product was defective and even conspired with the manufacturer to keep the information under wraps.

Shortly after moving into her home in south Miami-Dade County, Aziz discovered that the drywall inside emitted odors, corroded the plumbing and electrical wiring and damaged electronic equipment in the home. As a result, she and her mother were forced to find another place to live.

The Aziz suit follows after several South Florida homeowners filed actions in Miami-Dade Circuit Court against German-based drywall manufacturing company Knauf and its Chinese outpost Knauf Plasterboard (Tianjin) Co. In addition to physical damage to their homes, many plaintiffs say that the drywall emits toxic sulfur gases causing a variety of respiratory problems. For its part, Knauf claims that it has acted in good faith and is working to "remediate" damaged homes.

Banner bought more than a million sheets of Chinese drywall from Knauf. According to The Miami Herald's Toluse Olorunnipa, the lawsuit is one of thousands filed against Banner and alleges that company directors had known that the drywall was defective since 2006. The Herald describes that the suit further alleges that the directors conspired with the manufacturer to conceal the problem from homeowners.

Continue reading "South Florida Homeowners Sue Chinese Drywall Makers and Distributors for Personal Injury, Other Damages" »

Earlier this month Atlanta-based home furnishings manufacturer Ballard Designs announced that it was recalling more than 2,500 step stools due to concerns that the stools are unsteady. While the defective products appear to have caused only a few minor injuries, the incident is a good reminder to consumers to be aware of their rights in the event they are injured by a malfunctioning commercial product.

The recall was initiated when it was discovered that plastic tabs on the feet of the step stools may make the stools unstable, creating a fall hazard to consumers who attempt to use them. The Atlanta Journal Constitution reports that at least two incidents have occurred in which a consumer fell from one of the Ballard Designs stools, resulting in minor injuries.

According to a press release from the U.S. Consumer Product Safety Commission, the recalled product is a black or white wooden "Stafford" step stool. "Ballard Designs" is printed on a sticker under the bottom of the step along with the phrase "Made in China." The product was sold in Ballard Design stores in Florida, Georgia and Ohio, as well as in catalogs, on the company's website and through hsn.com from July 2009 through May 2011.

In announcing the recall, the CPSC, the federal agency that monitors the safety of a broad range of products from toys to power tools, warned that "[c]onsumers should stop using recalled products immediately unless otherwise instructed."

Consumers purchase products with the implied expectation that those products will not injure the consumer in an unpredictable way. Unfortunately, many defective products prove to be unfit and unsafe for their intended use and many injure people before being forced off the shelves by either the manufacturer or the CPSC. Injuries can range from minor bumps and bruises to serious brain and spinal damage. In recent years, for example, many South Florida homeowners have sued drywall manufacturers, claiming that dry wall installed in their homes emits a dangerous amount of sulfur gases causing serious respiratory problems.

Continue reading "Defective Product Recalls and Florida Personal Injury Law " »

Last Wednesday, the Florida Senate took a step toward overturning a landmark Florida Supreme Court decision on the Crashworthiness Doctrine, entitled D'Amario v. Ford Motor Co.

Simply put, the Crashworthiness Doctrine says that auto manufacturers are liable for injuries caused by a vehicle's poor performance after an automobile crash. The doctrine arises when an accident victim reports two distinct injury-producing events. The first injury-producing event is the initial car crash. The second injury-producing event occurs when a defective car part malfunctions in an unpredictable way after the initial impact.

For example, in the Florida Supreme Court case D'Amario v. Ford Motor Co., the plaintiff was a passenger in a car that crashed into a tree, and evidence showed that the driver's intoxication caused the initial crash. However, after the crash, the car burst into flames due to an allegedly defective relay switch. This second event (the car bursting into flames) resulted in severe injuries to the plaintiff, including burns and the loss of three limbs.

All parties agreed that the vehicle's driver was responsible for the injuries arising out of the initial collision. However, the issue before the court in the D'Amario case was whether the jury was allowed to consider the driver's negligence in apportioning liability for the injuries caused by the explosion, which was triggered by a defective relay switch. In other words, should an auto manufacturer be solely responsible for a plaintiff's injuries that were caused by a post-crash malfunction?

In D'Amario, the Florida Supreme Court held that automakers are responsible for making cars reasonably crashworthy. For that reason, a car's manufacturer is solely responsible for injuries caused by post-crash product malfunctions.

The Florida Senate's bill, CS/SB 142, would overturn the Supreme Court's holding in D'Amario. The bill states, in relevant part, that in "in a products liability action alleging that injuries received by a claimant in an accident were enhanced by a defective product, the trier of fact shall consider the fault of all persons who contributed to the accident when apportioning fault between or among them." Thus, if Bill CS/SB 142 becomes law, in cases like the D'Amario, a jury could consider the fault of the intoxicated driver, along with the fault of the auto manufacturer, in apportioning liability.

Continue reading "Florida Senate Votes to Limit Defective Product Lawsuits Brought Under the Crashworthiness Doctrine" »

A new study to be published in the highly respected medical journal, Pediatrics, reports that crib-related accidents send 26 children to U.S. emergency rooms everyday and result in more than 110 deaths annually. The vast majority of these injuries and fatalities are the result of children falling out of their cribs.

Crib-related injuries to a child's neck, face, and head are common. One of the study's authors explained that because infants and toddlers are "top heavy," they can tip out of cribs easily. After kids fall out of a bassinet or crib, "they don't have the ability to break their fall with their arms, so they always fall head first."

According to the Associated Press, about 94 percent of children who went to the emergency room for crib-related injuries during the study period were treated and then released. But sadly, over a 19 year time span, approximately 2,140 children died as a result of crib-related injuries.

Florida parents are rightly alarmed by the findings of this study. Hundreds of thousands of children in the state sleep in cribs that may present an unacceptable risk of child injury. Thankfully, the study gives parents some advice to follow on the topic of crib safety.

First, parents should always purchase a new crib that meets all of the current crib safety standards. Old, broken, or modified cribs are rarely the safest option. Next, parents should avoid cribs with decorative corner posts, cutouts, slats that are more than 2 3/8 inches apart, or knobs that protrude more than 1/16th of an inch. Last, parents should frequently visit www.recalls.gov to make sure that their child's crib was not recalled.

Continue reading "Florida Parents Alarmed by Crib-Related Injuries and Fatalities" »