Personal Injury

Florida Legislative Ban on Texting While Driving

Published on: May 2, 2013 | by Friedman Rodman Frank & Estrada, P.A.

After four years of thinking about whether or not to ban texting, the Florida legislature has sent a texting-while-driving ban to Florida Governor Rick Scott this week. The House voted 110-6 to pass the ban, while the Senate voted 39-1 to approve the bill that the House had amended.

Critics of the ban say that this ban is a watered-down bill. It makes texting while driving a secondary offense, rather than a primary one. In other words, a driver has to also violate another law in order to be pulled over for texting. A driver who violates the ban for the first time can only be fined $30.00 plus court costs.

The ban permits cellphone records to be used as evidence only if an accident causes a death or personal injury. While this latter point is good news for those who have suffered a personal injury, it does not help those who are killed as a result of others’ negligence in texting while driving. This is a big enough problem in Florida that the ban probably should have been stronger. Thirty-nine states and D.C. already ban texting.

Most of us know someone who texts while he or she drives, even though studies show that texting while driving is incredibly dangerous. One in 7 adults has admitted he or she texts while driving. Texting while driving diverts a driver’s visual, manual and cognitive attention away from the road. In 2011, 23% of car crashes (which comes out to equal approximately 1.3 million) involved cell phone use. That year, 3,331 people in the United States were killed by a distracted driver (not just including those who texted, but anybody whose attention was fixed on something other than driving).

Florida Appellate Court Finds No Fraud Upon the Court in a Products Liability Lawsuit

Published on: April 19, 2013 | by Friedman Rodman Frank & Estrada, P.A.

The District Court of Appeal of Florida, Fifth District, recently decided a case involving products liability. The case arose from a 2003 auto accident when a couple’s Ford Aerostar allegedly went from standing still into an acceleration that injured the wife. According to the couple’s lawsuit, Ford knew that the van’s cruise control system was defectively designed such that it allowed electromagnetic interference to cause a sudden acceleration from a standstill position.

In Florida, products liability lawsuits brought 12 years after purchase of a product that has an expected useful life of 10 years or less are barred unless the manufacturer knows of and conceals a defect. The couple claimed their case fell into this exception to the bar because the car company actively concealed the defect. During trial, however, the husband testified he might have touched the accelerator.

Before trial, the couple claimed that the car company committed fraud by concealing its knowledge of the sudden accelerations and by pushing the theory that the husband stepped on the gas instead of the brake, causing the acceleration. The trial court did not rule immediately, instead moving the case into trial. After closing arguments, the jury found for the car company, finding that the company did not put the car on the market with a defect that caused the wife’s injury and that there was no negligence by the car company that caused the wife’s injury.

After trial, the couple filed a request for relief from judgment and a new trial. The basis for these motions was that the car company perpetrated a fraud upon the court by putting forward a pedal misapplication defense while knowing that sudden acceleration in its cars was caused by electromagnetic interference.

Florida Hospital Ordered to Re-calculate Patient’s Life-Expectancy Damages

Published on: April 10, 2013 | by Friedman Rodman Frank & Estrada, P.A.

A Florida woman was diagnosed with stage 3c breast cancer after her physician failed to report evidence of microcalcifications during a routine breast screening two and a half years before the diagnosis. The injured patient filed suit against the hospital, treating physician, and medical imaging company. She agreed to let an arbitration panel determine the amount of damages she was entitled to, but disagreed with their calculation of the damages for loss of earning capacity. She argued that it should be based on her life expectancy before the injury occurred and appealed the arbitration panel’s decision to the Florida Third District Court of Appeals.

All parties agreed there was a chance of the breast cancer recurring, and that the recurrence would be fatal. To determine damages, her loss of earning capacity calculation began at an anticipated date of recurrence, but the parties disputed which life expectancy length should be used. The hospital argued that Florida law required the woman’s life expectancy to be calculated based on her current, post-injury life expectancy. The doctor and imaging company argued awarding damages that calculated her loss of earning capacity based on her pre-injury life expectancy would allow a personal injury claim to survive her death. The hospital, doctor, and imaging company’s argument is based on the idea that she would benefit from an award that belonged to her survivors and estate in a wrongful death action, thus she should be limited to a post-injury life expectancy calculation.

The Court of Appeals agreed with the injured patient and ruled that she should be allowed to calculate her life expectancy based on her pre-injury estimate and not post-injury. They Court agreed that survivors and beneficiaries have a right to sue in Florida for future loss of support and services in a wrongful death action, but noted that a wrongful death action is actually precluded under Florida law when the injured party is successful in obtaining a personal injury judgment. In this case, the injured patient’s family would not be able to recover in a wrongful death action, so she is entitled to damages that calculate her pre-injury life expectancy. The Court of Appeals recognized that several courts around the United States have the same position and that a calculation considering pre-injury life expectancy is fair and necessary to make someone “whole”, or as they would have been but for the injury.

Florida Court of Appeal Allows Boat Retailer to Bring Third Party Claim Against Manufacturers

Published on: April 2, 2013 | by Friedman Rodman Frank & Estrada, P.A.

The Second District Court of Appeal recently ruled in a case regarding personal injuries sustained in a flash explosion on a boat. The case arose when a retailer sold the boat to a couple and later performed repairs. There was a flash explosion on the boat and according to the couple, it happened because of a leak in the fuel pump.

The couple filed a complaint against the retailer for negligence and strict liability, claiming that the retailer failed to properly service, repair and inspect the boat and failed to warn them of the defect. They also asserted claims for negligence and strict liability against the boat manufacturer, the pump manufacturer, and the engine manufacturer alleging that there were failures to warn them of the defect and that they allowed the defect to pass through their shops undetected.

The retailer filed an answer and affirmative defense in 2011, before the plaintiffs’ depositions were taken. Later that year, they served notice that they would drop the various manufacturing defendants without prejudice, but did not file an amended complaint or withdraw the allegation of a defective pump.

The following year, the retailer tried to file a third-party complaint against the dismissed manufacturing defendants, claiming that the couple had sued it on the basis that it had sold them a boat with a defective pump. It claimed that it hadn’t changed the pump, engine or boat and that if it were liable, its liability would be vicarious or secondary to that of the dismissed manufacturing defendants. The retailer asked for contribution from the manufacturers.

Potential for Fracking Operations in Florida Presents Concerns of Silica Inhalation

Published on: March 27, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Legislation was recently introduced by a state representative that would require industries to report the chemicals injected into the ground while fracking in Florida. Currently there is no fracking operation in Florida, although there has been recent speculation that fracking would begin in South Florida near other oil and gas operations. Fracking is a technique used to stimulate oil and gas production by forcing water through the ground at high pressures. The process has been scrutinized for its potential to damage the environment and expose workers to silica inhalation.

Silica and asbestos exposure can cause serious damage to the exposed person. Asbestos was a form of insulation commonly used in construction because of its sound absorption and ability resist fire, heat, and electrical damage. Silica is a material found in several types of rocks that are frequently used in construction. Both are tiny particles that can remain in the lungs once inhaled, accumulating and causing scarring and inflammation. This affects the exposed person’s ability to breathe and often results in serious illness like mesothelioma.

Employers of construction businesses are obligated to maintain their workers’ health and safety, including exposure to silica or asbestos. If they fail to use ordinary and reasonable care on the work site, and either fail to warn employees of potential harm or neglect to maintain a work site that minimizes exposure, the employer or owner may be liable for injuries the employees suffer. Manufacturers of products that contain silica or asbestos may also be liable for injuries suffered due to product defects. The product itself may be considered unsafe, and inadequate warnings or instructions for safe use may be absent. Safety products themselves that are designed to protect you from silica or asbestos exposure may also fail, creating a breach in the manufacturer’s obligation to provide a safe product.

Florida legislation determines who can file an asbestos or silica related claim. A plaintiff must show that physical impairment was a result of a medical condition to which exposure to asbestos was a substantial factor. Extensive medical documentation is required by a qualified medical professional. Medical examiners assess the impairment rating of the individual’s lung capacity. There must also be proof of the injured’s substantial occupational exposure to asbestos.

State Court of Appeals Allows Hospital to Take Patient’s Personal Injury Award

Published on: March 25, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Eighteen Florida counties allow hospitals to pay for a patient’s care by granting them the ability to take a portion of the patient’s legal judgment or settlement. This is called a hospital lien, or a right to secure a debt. A patient may seek treatment at a hospital for an injury sustained in a car or work accident. If that patient sues the negligent party and has unpaid medical bills, the hospital can file a lien against any potential judgments or settlements to recover the amount billed.

Wisconsin has a state statute granting similar rights to hospitals to enforce liens against a patient’s judgment or settlement. The state’s appellate court recently handed down a decision in favor of a hospital and its ability to enforce a hospital lien. In that case, the patient qualified for Medicare, but the hospital chose to enforce the lien instead of billing his medical care costs of $19,423 to Medicare. The plaintiff sued, but the trial court granted summary judgment to the hospital. The injured party argued that federal law mandates hospitals to bill Medicare for those who qualify for Medicare and not the individual. The injured plaintiff depended on a memo from the U.S. Dept. of Health and Human Services that interpreted the Medicare provision to bar hospital from enforcing liens after the Medicare billing period expired.

The trial and appellate courts, however, decided that the Medicare law does not require hospitals to withdraw their liens after the Medicare billing period had expired and that 42 U.S.C. § 1395y(b)(2)(A)(ii) allows Medicare to become the “second payer” if there’s expected third party liability. The appellate court rejected the injured plaintiff’s reliance on the DHHS memo, stating that the memo does not provide a reasonable interpretation of the Medicare law.

This past year, the Supreme Court of Florida declared Florida’s state law granting hospital liens unconstitutional in Shands Teaching Hospital and Clinics, Inc., v. Mercury Ins. Co. of Florida. It allowed local ordinances to stand, but determined that the state lien law was a ‘special law’ pertaining to the creation, extension, or impairment of liens based on private contracts. The court considered the care between the teaching hospital and the patient to be a private contract, so a lien cannot be enforced through legal action under state law. A Florida hospital may be able to enforce a lien against an injured party’s judgment, but only if the hospital is in a county with an ordinance granting them that right. The hospital must follow the proper procedures to file the lien so that all parties are notified that the lien exists. Insurers are supposed to check for all potential hospital liens before issuing a check to the injured party.

Injured parties often contest the amount of the hospital lien. Hospitals enforce liens attached to uninsured parties or parties who qualified for federal entitlement benefits, but they secure the amount of the original bill – not the amount that would have been billed to a program like Medicare or Medicaid. The original hospital bill is often grossly different than the negotiated amount an insurance company pays, and the hospitals may even seek the difference from the insurance company and the original bill, even though the injured party would not have been responsible for that amount.

Florida Court of Appeals Allows Condominium Resident to Sue Condominium Association

Published on: March 22, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s Third District Court of Appeals handed down a ruling against a condominium association who failed to repair a buckled section of carpet in a common area of the condominium. The injured plaintiff and other condominium owners had repeatedly complained to the Board of Directors of the Association about the carpet, but the Association did nothing to remedy it. It was known that the carpet buckled especially after a cleaning while still wet.

The injured owner sued the Miami-based Association for failing to repair the carpet. She suffered injuries to arm, hand, and neck. The Association moved for summary judgment, alleging that there was no valid claim as the buckled carpet was an “open and obvious” hazard. The trial court agreed with the Association, dismissing the injured owner’s claim. The injured owner appealed, arguing that Association was under a duty to maintain the premises in a reasonably safe and serviceable condition for the residents, thus still responsible for repairing the carpet in the common area.

The Florida Court of Appeals looked to a previous decision, Kopf v. City of Miami Beach, 653 So. 2d 1046 (Fla. 3d DCA 1995). This case had similar facts, where the injured sued the City of Miami Beach after she tripped on a portion of sidewalk that was cracked and deteriorated. The City, like the condominium association, claimed that the danger was open and obvious, and the trial court precluded the plaintiff from suit. The Court of Appeals reversed the trial court’s ruling, stating that there were issues of negligence, comparative negligence, and causation which can only be resolved by the jury. The court did not feel that a landlord should be shielded from their duty and liability for their negligence, simply because the hazard could be seen.

In another case, Lotto v. Point East Two Condominium Corporation, Inc., 702 So. 2d 1361 (Fla. 3d DCA 1997), the injured tripped on a cracked sidewalk attached to the condominium complex. The injured sued, alleging that the association failed to warn of the dangerous condition and neglected to maintain the premises in a safe condition. The Court of Appeals thought the obvious danger did not merit a duty to warn, but the association was still under a duty to repair the sidewalk.

Ultimately, the Court of Appeals ruled that the condominium association had a duty to maintain the premises, but questions of comparative negligence by the injured remained. The court determined that the question of whether the injured plaintiff was also negligent should be given to a jury since she chose to repeatedly frequent an area that had an open and obvious danger. While the appellate court believed that the condominium association had a duty to repair, the court suggested that the injured plaintiff may also be found negligent, thus potentially reducing the association’s liability and obligation to make the injured plaintiff whole. In Florida, if a plaintiff is found comparatively negligent, but the defendant mostly negligent, the plaintiff may still recover, but the amount of recovery is reduced by the percentage of the plaintiff’s negligence.

Supreme Court Assesses Liability of Generic Drug Makers

Published on: March 20, 2013 | by Friedman Rodman Frank & Estrada, P.A.

The U.S. Supreme Court recently heard arguments regarding whether or not federal law regulating generic drugs preempts New Hampshire’s design-defect law. The case may determine whether or not the injured plaintiff is able to recover from the generic manufacturer. The trial court and lower appellate court found that federal law did not preempt New Hampshire’s strict product liability law. However, other recent Supreme Court decisions barring recovery may guide the result of this case, depending on whether there’s enough of a distinction between a state law requiring a duty to warn and a state law allowing recovery under strict liability.

Florida also allows recovery under the theory of strict liability for defective products, where negligence and intent to cause harm does not have to be shown in order for an injured plaintiff to recover. The design has to be defective, and injury or other damage shown to be caused as a result of the defect. Florida’s law includes both consumers and bystanders and does not require that the product be shown to be “unreasonably dangerous”.

The injured plaintiff in the current Supreme Court case took a prescribed, generic anti-inflammatory medicine for shoulder pain. As a result, she suffered from two painful syndromes, Stevens-Johnsons Syndrome and toxic epidermal necrolysis which caused her skin to slough off, esophageal burns, near-blindness, and lung injuries. She sued the manufacturer of the generic drug, claiming the medication was “unreasonably dangerous”, and that the risks outweighed the potential benefits.

The Food and Drug Administration had previously deemed the brand-named version of the drug as “safe and effective”. That not only allowed the brand-named drug to sell its product on the market, but the generic versions to sell with that designation as well, including the drug that harmed the plaintiff in this case before the Court. The F.D.A. says that a generic drug, by law, must contain the same active ingredients in identical amounts as the brand named product. It should also be the same in dosage, safety, strength, how it is taken, quality, performance, and intended use. These are supposed to be seen as the “therapeutic equivalent” to brand-named drugs. They are also required to have the same warning labels as their brand-named counterpart.

The outcome of this case will guide whether or not an injured plaintiff will be able to sue in state court for injuries caused by generic drugs. The manufacturers of the drug argue that the strict liability imposed by the state adds duties to the drug manufacturers that are not congruent with federal laws requiring “sameness” between generic and brand-named drugs. Other recent Supreme Court decisions have held that federal law preempted a state failure-to-warn action. The injured plaintiff’s attorney, however, is arguing that there is a distinction between her action, centered around strict liability, and the ruling of the prior Supreme Court decision.

Florida Appellate Court Grants Mistrial to Injured Plaintiff

Published on: March 14, 2013 | by Friedman Rodman Frank & Estrada, P.A.

The Florida District Court of Appeal issued an opinion in Howard v. Palmer, granting a new trial to the plaintiff. Defense counsel repeatedly made improper statements during the trial implying the plaintiff’s actions were all centered around suing the defendant. Florida case law has established precedent against statements made during trial that can lead a jury to believe that the plaintiff is very litigious and seeking deep pockets. The defense attorney in this case flagrantly ignored the plaintiff’s motion, granted by the judge, to refrain from any references to the plaintiff speaking to an attorney immediately after the accident.

In Florida you have a right to contact an attorney at any time on any matter. The defense attorney in Howard, made other inappropriate remarks in the midst of the jury trial, using commentary buried in his questions that referred to photographs being taken for the purpose of a lawsuit and that Comcast was attached to the defendant company. Implying that the plaintiff is “litigious” is irrelevant to whether or not the defendant was negligent and can cause the jury to be biased against the injured party.

In personal injury cases, whether they are caused by car accidents or slip and fall conditions, an injured party must show that the other party was negligent and that their negligence was the cause of their injury. Proof of negligence is shown through eye witness testimony, photographs, and related documents that reveal the conditions of the scene where the injury occurred or the objects involved, like a car or spilled item. Photographs and witness statements taken closer to the time of the injury better reflect what happened. The burden of proof falls on the plaintiff to show that it was more likely than not that the defendant’s negligence caused the injury, so the injured party needs all evidence available to meet that burden. The Florida Court of Appeals has repeatedly found that statements inferring a tortious plaintiff are not relevant to prove negligence or defend against a negligence claim.

In addition to the proof of the injury, the injured party must also prove the monetary damages incurred as a result of the injury. The injured party is able to recover compensation for lost wages, medical expenses, property damage, mental distress, loss of consortium, and emotional distress. It is essential to keep track of expenses and provide documents to your retained counsel like wage statements, hospital bills, and repair receipts. Mental distress, loss of consortium, and emotional distress do not require a calculation. Proof of future lost earnings and medical bills are harder to estimate and may require expert testimony to show what those amounts may look like.

Florida Court of Appeals Allows Construction Worker to Sue Fellow Subcontractor for Gross Negligence

Published on: March 7, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s First District Court of Appeals recently issued two opinions in one case, Villalta v. Cornn Intl., that assessed whether workers’ compensation statutory immunity applied to a contractor and subcontractor. A construction worker was finishing drywall when his ladder slipped into a cutout left by other subcontractors. He fell through the cutout and died from his injuries, and the personal representative of his estate brought suit against the contractor and all subcontractors tied to the project.

A Florida construction contractor hired two subcontractors, one for drywall installation, and one for HVAC installation. The drywall subcontractor hired their own subcontractor to do the finishing. The sub-subcontractor employed the deceased plaintiff. The cutout that caused the plaintiff to fall was made by the HVAC subcontractors, who did not warn the other subcontractors of its presence or use the proper guidelines to ensure safety of the area. Workers’ compensation was available to the deceased’s workers family, but they elected to also pursue a personal injury action against all liable parties.

Florida’s workers’ compensation is a state-mandated insurance fund designed to provide injured workers or their families with the compensation they need when an employee is injured or killed at work. Because compensation is ensured, Florida also grants immunity to employers unless they committed an intentional tort, and to fellow subcontractors unless there was gross negligence. When the injury or death occurs on a construction site, the relationships are assessed to determine which statutory immunity applies, if at all.

The Court decided that the contractor was immune from a personal injury suit because they were in a vertical relationship, defined in Mena v. J.I.L. Construction Group, Latite Roofing & Sheet Metal Co. v. Barker, and also Dempsey v. G & E 3Construction Co. The only exception to immunity is when an intentional tort (when someone has been hurt purposefully) has occurred, and the Court ruled that it didn’t exist in this case. The HVAC subcontractor is also granted immunity, however the exception is merely gross negligence (willful and wanton misconduct) instead of an intentional tort.

After litigation began, the HVAC subcontractor moved for summary judgment, arguing that they are entitled to immunity. The trial court initially agreed, but the Florida Court of Appeals looked at the facts and ruled that it was for a jury to decide whether or not the events that led to the employee’s death were gross negligence or standard negligence. The deceased employee and his representative now get to move forward in the personal injury suit against the HVAC contractor.