General Litigation Issues

March 27, 2013

Will My Insurer Cover Me If I have A Motor Vehicle Accident In Florida Under The New Law?

Florida lawmakers have passed a new law which was implemented January 1 stating that all drivers from foreign countries (including Canada) must have an International Driver’s License to operate a vehicle in Florida. Many of our clients have been seeking the advice of a personal injury lawyer in Ottawa to help them determine whether they would be covered in the event of an accident if they were driving in Florida without an International License.

Victims of motor vehicle accidents seeking a lawyer in Toronto may want to consult with the head office of the Insurance Bureau of Canada, which has recently issued a statement indicating that they’ve asked insurance companies to conduct business in the same way as they have to date, therefore protecting all Canadians if such an unfortunate event should arise.

On their end, the Florida Highway Patrol has indicated they will not be enforcing the new law as it is subject to review due to potential conflict with international agreements.

January 25, 2013

NHTSA Calls For Louder Hybrid And Electric Vehicles For Safety

by Gerson & Schwartz, P.A.

On January 7, 2012, the U.S. Department of Transportation’s National Highway Traffic Safety Administration (“NHTSA”) released Federal Motor Vehicle Safety Standard No. 14 calling for manufacturers of hybrid and electric automobiles to ensure that their vehicles meet certain minimum sounds standards set forth by the federal Pedestrian Safety Enhancement Ac, (“PSEA”). Passed in 2010, the PSEA directs mandates the Secretary of Transportation promulgate motor vehicle safety standards establishing a requirement that electric and hybrid vehicles provide an alert sound to make pedestrians aware of the approaching vehicles.

According to an NHTSA press release, as a result of the fact they don’t rely on gasoline-power at low speeds, electric and hybrid engines are much quieter and difficult to perceive upon approach than their combustion-based counterparts. Standard 141 seeks to remedy this problem by requiring manufacturers to outfit electric/hybrid vehicles with some mechanism to emit a sound that is detectable beneath a wide range of street noises and ambient sound when the automobile is moving at less than eighteen miles per hour.

According to NHTSA Administrator David Strickland, the proposal would “[A]llow manufacturers the flexibility to design different sounds for different makes and models while still providing an opportunity for pedestrians, bicyclists and the visually impaired to detect and recognize a vehicle and make a decision about whether it is safe to cross the street.”

January 17, 2013

U.S. Consumer Product Safety Commission Issues Press Release Regarding Potentially Dangerous Winter Products

by Gerson & Schwartz, P.A.

Last week, the U.S. Consumer Product Safety Commission (“USPSC”), issued an advisory to consumers to check their homes for certain cold weather products which were previously recalled due to safety concerns.

According to the press release, consumers should be looking for four specific products which, although recalled over the summer, likely saw little or no use until the cold weather hit. Those products are ECHO Bear Cat log splitters, Big Lots portable ceramic space heaters, Harbor Breeze bath fans, and Snowpulse Avalanche airbags.

Each of these products suffers from a defect which renders it dangerous for use. For example, according to the press release, the ECHO Bear Cat log splitter suffers from a design flaw where the “end cap of the log splitter’s hydraulic cylinder can break away from the body of the log splitter, posing an impact hazard to the user or bystander.” At the time of the original press release in June of 2012, the manufacturer of the log splitter, Crary Industries, had received three reports of the hydraulic cylinder end caps detaching, with one of the instances resulting in an injury from the cylinder striking the user in the head.

December 12, 2012

Florida Rear-End Collision Victims Face New Challenge As High Court Complicates Proof of Fault

by Gerson & Schwartz, P.A.

Most drivers who experience the misfortune of being struck from behind by another vehicle operate on the assumption that the other driver is likely to bear full responsibility for the injuries and damage that result. This assumption has generally been borne out in Florida rear-end collision cases. However, but a Florida Supreme Court ruling issued just last month has increased the possibility that even where a rear driver is overwhelmingly at fault, that driver may not have to compensate the front driver for all accident-related expenses. This development makes it more important than ever for Florida accident victims involved in rear-end collisions to be represented by experienced Miami personal injury attorneyslike the ones at Gerson & Schwartz, PA who know exactly how to analyze the many factors now deemed relevant to establish legal liability in these types of cases.

The Rear Driver Is No Longer Presumed Solely Responsible

Until the Florida Supreme Court’s ruling, last month, the prevailing principle, in rear-end collision cases, was that the rear driver’s conduct would almost always be presumed to be the sole (and most immediate) cause of injuries caused to individuals in the forward vehicle. This presumption could be lifted in only three scenarios: 1) Where the rear driver’s vehicle experienced an unpreventable brake failure, 2) where the forward driver stopped or changed lanes suddenly, and 3) where the forward vehicle was illegally stopped in the path of traffic. In 2010, a Florida appeals court challenged this prevailing analysis, holding that if the forward driver in a rear-end collision case was negligent in any manner, that negligence could be used to reduce the rear driver’s liability for damages. This, said the appeals court, was consistent with Florida’s ‘comparative fault doctrine’ , in which financial responsibility in personal injury cases is generally not assigned on an all-or-nothing basis, and is, instead, distributed among the parties according to the percentage of fault in relation to the extent of fault to which their conduct contributed to accident and resulting injuries.

The case decided by Florida’s Supreme Court, last month, was actually brought by the rear driver in a rear-end collision case, who hoped to benefit from the 2010 appeals ruling that recognized potential liability on the part of forward drivers in such collisions. The forward driver in that case had been using her cell phone while driving downhill at 45 mph, just before she collided with a vehicle and then got struck by the plaintiff from behind. The rear-driving plaintiff initially lost at the trial and appeal levels, but the Supreme Court sided with her in the end, granting her a chance to present her case to a jury. In the process, the Florida Supreme Court essentially confirmed that there is no longer a very firm presumption, in Florida, that the conduct of the rear driver in rear-end collisions is solely responsible for the forward driver’s injuries.

October 30, 2012

Gas Station Burn Victim Gets Go-Ahead to Press for Punitive Damages Against Circle K and Shell Oil

by Gerson & Schwartz, P.A.

A Palm Beach Deputy Sheriff severely injured in a fuel fire that broke out at a Marathon, Florida Circle K gas station will now be able to pursue punitive damages against Circle K Stores and the Shell Oil Corporation. Upon careful review of pre-trial evidence gathered by burn victim Richard Ragali’s attorney, a Monroe County Circuit judge has found enough evidence of conscious disregard by the fuel companies for the life and safety of their customers to entitle Ragali to add a claim for punitive damages to the lawsuit he filed.

The October 2, 2012 Sun Sentinel recounted, the 2009 incident that disfigured and disabled Ragali: While motorcycling his way to Key West in the company of other off-duty police officers, Ragali stopped at a Circle K station at 11100 Overseas Highway in order to refuel. As Ragali pulled his motorcycle up to one of the station’s fuel pumps, his bike slid on a standing puddle of gasoline, and within seconds, Ragali’s body was engulfed in flames. Either the bike’s hot exhaust pipe, or fumes coming from the pipe, made contact with the gasoline, and the resulting flash of fire instantly incinerated Ragali’s trunk, buttocks, right arm, and right leg. Six weeks at Miami’s Jackson Memorial Hospital could not restore Ragali to function sufficient to enable him to return to duty, and Ragali currently remains disabled and unemployed.

September 24, 2012

Florida A&M Moves to Dismiss Hazing Death Suit. Sovereign Immunity a Problem for Injured Victims in Florida

by Gerson & Schwartz, P.A.

Florida A&M University responded last week to the wrongful death suit filed against it by the parents of Robert Champion, the young drum major who died at the hands of fellow marching band members during a notorious hazing incident that took place in Orlando last November. Triggering a tide of national media criticism, FAMU asked the Orange County Circuit Court to dismiss claims against it on grounds that Mr. Champion’s submission to hazing was itself an illegal act, and that, in any case, the University did all that it was required to do in the way of discouraging hazing practices.

According to a September 11, 2012 Orlando Sentinel report, the attorney for Mr. Champion’s family was shocked by FAMU’s blame-the-victim defense strategy, and he continues to maintain that FAMU is liable in damages because it failed to take available measures to end the culture of hazing that influenced members of its famous Marching 100 band, including Mr. Champion, to perform the “gauntlet” ritual that ended Champion’s life.

Civil Claim For Events That Included Alleged Criminal Activity by Others

FAMU’s court filing includes an alternative request that draws attention to another dimension of this case, which is the alleged criminal nature of the beatings that led to Mr. Champion’s death. The University is asking that if the lawsuit is not dismissed outright, then it be postponed until criminal prosecutions of band members charged in the hazing have been concluded. Twelve marching band members are currently fighting felony charges brought against them under Florida’s anti-hazing law. FAMU is apparently hoping that convictions of the band members will somehow reduce or erase its own liability for the activities that caused student Champion’s death. This, however, is not the way things are likely to work, because Florida’s anti-hazing law, and a body of court decisions that have addressed hazing, quite clearly impose on universities responsibilities that are not negated by the criminal acts of others.

September 12, 2012

Drunk Drivers Suffer Consequences for Driving Under the Influence

by Gerson & Schwartz, P.A.

A drunk driver, with his one year old child in the back seat, was arrested after being stopped by Boynton Beach police. Driving in the bicycle lane on North Federal Highway, Yair Espinsosa had a suspended license. His only identification was a Mexican passport. (sunsentinel.com) After police pulled Espinosa over, they found a bag of cocaine, as well as several open beer bottles.

In the state of Florida, drunk driving is a very serious offense. The legal blood alcohol level in Florida for drivers is .08%. Moreover, drivers are required to sign an “Implied Consent” when they sign their driver’s license. This law mandates that one has agreed to take drunk driving tests, if requested to do so. In Espinosa’s case, he refused the roadside sobriety test. Nevertheless, he later blew a .227 on a breath alcohol test which is almost three times the legal limit. Espinosa was transported to the Palm Beach County Jail; where, he still remains. He could not post the bail amount of $10,050.

The legal ramifications for drinking and driving are severe in the State of Florida, and laws vary depending on the age of the driver. For instance, there is a “Zero Tolerance Law” which applies to all individuals under the age of 21. According to this law , drivers who are found to have a blood alcohol level of .02% or higher are subjected to harsh penalties, including jail and a suspended license for 6 months.

September 5, 2012

Victims Still Seeking Product Liability Damages for Dangerous Drug

by Gerson & Schwartz, P.A.

A painful public memory was reawakened late last week when the Gruenenthal Group, which introduced the drug thalidomide in the 1950s, issued an apology to thousands worldwide who suffered severe birth defects after their mothers took thalidomide during pregnancy. The gesture brought no closure for thalidomide victims who have yet to be appropriately compensated for their injuries and disabilities, because the apology came with a reminder by Gruenenthal’s chief executive that the company has no intention of compensating victims for losses caused by the drug.

Thalidomide: Dangerous Drug
Prescribed until 1961 as a panacea for morning sickness, thalidomide interfered with fetal development, leaving its victims with shortened or completely absent limbs, and with other disabling, and often fatal, abnormalities of the heart, genitalia, eyes, and ears. The approximately 12,000 known victims of thalidomide were concentrated throughout Europe (including the U.K.), Australia, Japan, and Canada, where the drug had been approved for use during pregnancy. Even in the U.S., where thalidomide was distributed only on an ‘investigational’ basis, at least 17 children were born with the drug’s characteristic adverse effects. The accommodations those surviving thalidomide victims ended up needing simply in order to get through life turned out to be extensive and costly.

Despite Gruenenthal’s steadfast denial, over the years, of any obligation to compensate thalidomide victims for their injuries, advocates for compensation have never given up their fight, even as the population of thalidomide victims has aged. In the U.S., Gruenenthal, along with British firm GlaxoSmithKline and multinational pharmaceutical developer Sanofi-Aventis, have been named in lawsuits that seek damages based on these companies’ connections with the business entities that originally made thalidomide available to pregnant women in the U.S.

Dangerous Drug Claims
Thalidomide, which is used relatively safely, today, to treat a variety of conditions in non-pregnant patients, worked its notorious fetal harms through undetected or undisclosed side-effects. Also, many claims involve marketing practices that deprived thalidomide prescribers and users of clinical testing information that could have provided notice of serious risks.

Undisclosed dangerous side-effects, failures to limit drug use to safe contexts, and improper marketing are, in fact, often the bases for dangerous-drug damage claims against drug manufacturers and distributors. Manufacturing defects and drug tainting (which may occur during bottling and shipping) are yet another basis for liability recognized under drug product liability law.

August 30, 2012

Florida Jury Awards $28.45 Million in Meningitis Misdiagnosis Case

by Gerson & Schwartz, P.A.

Earlier this month, Palm Beach County Civil Division jurors awarded $28.45 million in damages to the mother of a Boynton Beach child who suffered a stroke and permanent brain damage after two doctors misdiagnosed what was a very serious, but eminently treatable, infection of the child’s nervous system. The child had presented at Bethesda Memorial Hospital with a persistent fever, and his doctors correctly ordered a diagnostic spinal tap; but when spinal fluids showed the presence of bacterial meningitis, the doctors failed to take notice.

The child subsequently fell victim to a massive stroke that left him with profound and permanent developmental disabilities. His doctors alleged that they eventually did diagnose and treat for meningitis (and they are planning to appeal the verdict). However, in an interview given to the Palm Beach Post on the occasion of the verdict, the family’s medical malpractice attorney discounted this better-late-than-never argument, noting that all the injuries and losses suffered by the child and his family could easily have been prevented through timely administration of antibiotics.

The hefty verdict in this case included $12 million in non-economic damages reflecting the patient’s pain and suffering. Though Florida legislation imposes a cap of $1 million on such non-economic damages in medical malpractice cases, the successful plaintiff in this lawsuit may ultimately recover the full verdict amount, because the Florida Supreme Court is currently in the process of deciding a case, brought by key policy-makers, that seeks to get rid of the legislated malpractice damage limits.

April 12, 2012

3rd DCA Reverses Trial Court and Orders New Trial In Tobacco Smokers Claim; Gerson and Schwartz, PA wins appeal for late smoker

by Gerson & Schwartz, P.A.

The Third District Court of Appeal reversed the trial court in Frazier v. Philip Morris USA Inc., and R.J. Reynolds Tobacco Company. The appellate court issued a 25 page opinion reversing and remanding the case for a new trial and stating that the late Phyllis Frazier should have been granted a directed verdict on the question of whether her lawsuit was covered by a four-year statute of limitations from a disbanded smoker class action, the 3rd DCA ruled. Philip M. Gerson and Edward Schwartz, PA with the law of firm of Gerson & Schwartz, PA represented the late Ms. Frazier in a hard fought 6 week trial. The jury deliberated finding that the Plaintiff proved her case on all but one issue.