Articles Posted in Florida

Disc injury claims

Value of Injury Cases: Disc Injuries

I think it is useful to write about jury verdicts and give thoughts as to why I think the jury found as they did and the issues that arose in the case.  Why?  Because people are looking online for information about the value of their cases.  On our website, we provide a ton of verdict information for victims, many of which suffered a herniated disc.  This helps give some lens to the value of a case.  But it hardly tells the real story of the claim and why a jury may have valued it the way that they did.  So hopefully posts like this help educate those looking for answers.

Facts of Mayrink v. Luchsinger

This is a herniated disc case.   Plaintiff, a painter by trade, crashed into a median strip after being pushed off the road by the defendant who must have changed lanes without looking.   Usually, in these lane change cases, you almost invariably have a liability fight on your hands.  Defense counsel in this case, probably wisely, admitted responsibility.  Why is this wise?  Defense counsel often admits liability because they know if they fight and lose there is real credibility lost on the scope of the injuries battle.   By admitting fault, defendant seems more credible and honest than if they fight on liability and lose.  Continue reading

A Florida wrongful death lawsuit, filed by the widow of a mentally ill Ohio man, has settled after a roughly five-hour settlement conference. The 2009 death occurred after the man was repeatedly pepper sprayed while being held at the Lee County Jail. The suit, filed against the Sheriff, the jail’s medical provider, and several deputies and nurses is said to have settled “well into” the seven figures.

The decedent had come to Florida to visit family, when he stopped taking his medications, causing him to act erratically. After being asked to leave his family’s home, he was later arrested at a motel for trespassing. Once at the jail, he was placed in an observation wing because he was loud.

Due to his continued behavior, he was repeatedly pepper sprayed, even after having been restrained to a chair. The man was exposed to pepper spray ten times during a forty-three hour period, while pleading for mercy as he couldn’t breathe. The record shows that the jail’s ventilation system was not adequate to dissipate the amount of spraying and that he was subjected to prolonged exposure of the pepper spray as the area was never adequately decontaminated after the spraying. After having passed out and rushed to a local medical center, he died two days later. According to the medical examiner, the pepper spray was found to be a contributing factor that led to heart and brain failure. Brutal, just brutal.

A jury awarded a 41 year old man $1.3 million dollars after injuries sustained in a fall at Walmart left him with torn tendon in his right bicep, requiring three surgeries.

The plaintiff, a manager at a beverage distribution company, was walking through Walmart while carrying a water bottle when he slipped on a Gatorade sign that had fallen off of a display. The fall caused great injury to his bicep, and has left him with a permanent condition called a “popeye deformity” causing an abnormal bulge on his arm.

Walmart blamed Gatorade for providing cheap plastic screws for the sign, but Gatorade testified that if Walmart employees had put the sign together properly, it wouldn’t have fallen. Gatorade further testified that if the screws came loose or broke, that it was Walmart’s responsibility to take care of it.

Bristol-Myers got out of a wrongful death Plavix case on summary judgment after a New Jersey federal judge found that the Plaintiff cannot proffer evidence to support a failure to warn claim under the Florida law applicable to the case. It was a big loss all the way around. The court nixed plaintiff’s claim on duty to warn, causation, and the learned intermediary doctrine.

The court does not appear to be saying that other Plavix patients may not have a failure to warn case but that, as applied to the facts and medical condition of the Plaintiff in this case, there is no negligent warning case.

Interestingly, Plaintiff fought an effort last year by Bristol-Myers to get the case moved to the MDL. Had Plaintiff lost and the case been transferred, maybe the case would have gone to the back of the pack and eventually been lumped in to a settlement group down the road. Of course, this is rampant speculation.

It used to be easy back in the old days. You had lawyers running Yellow Page ads and you had lawyers with illegal runners. Think Danny DeVito in Rainmaker. (Fun fact: Claire Danes was in that 1997 movie.) Oh, yeah, and you had people getting personal injury cases the old fashioned way: doing good work and it spreading by word of mouth.

Times have changes, obviously. In some states, the laws have changed pretty dramatically too. In states like Florida and New York, no-fault laws have lead to a new player in the game: the health care providers.

Matt Dolman, a good lawyer in Florida, has been pointing out some of the weakness in doing this, targeting the problems with what some health care providers have been doing, specifically 411 PAIN and its progeny. Matt argues that while 411 PAIN pushes itself as a “lawyer referral service” it is is really a health care provider answering service that pushes its own services.

This is an interesting case. Adrian Vasquez, an 18-year-old Panamanian fisherman who pulled a Louis Zamperini by surviving 28 days at sea before being rescued by the Ecuadorian navy, has filed a lawsuit in Florida against Princess Cruise Lines
Why? Did they cause him to fall off his boat? No. Vasquez’ lawsuit alleges that a Princess Cruise ship saw him and should have stopped.

How does this make sense? Well, first the law of the seas is that you have to stop and help someone in distress. Good rule to be sure. The ship knew Vasquez was there; they were told by passengers someone was down there. But apparently, the communication on the ship was poor, so by the time the news reached the powers that be, they were too far past and did not turn back. In fact, Princess contends that the captain never knew.

Still, and maybe correctly, Vasquez’ lawsuit frames it more harshly: Princess “had clear knowledge that people were stranded in an open boat hundreds of miles from shore in the Pacific Ocean and desperately calling for their help” but they “consciously ignored the emergency situation and did not deviate from their cruise.”

That said, the lawsuit is a little disconcerting (at least to me). The guys – two of them sadly perished – were out on a fishing boat, probably with a bad engine, no tools and apparently little navigational experience. I think the cruise line did something bad here and should be made to pay for it. But, a lawsuit filed in Florida by someone who is not a U.S. citizen when they put themselves in harms way in the first place…

You know, I don’t like this guy being able to file a lawsuit in Florida and I also would not like it if he could not bring a claim, if that makes any sense. Because both outcomes are flawed.

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The Fourth District Florida Court of Appeals affirmed a defense verdict in a wrongful death medical malpractice case, finding that comments made by the defendant’s attorney during closing arguments were not improper.

This was just an awful case. Plaintiffs alleged that a man was killed because his physician misdiagnosed a cervical cord compression that lead to quadriplegia and, eventually, death.

The argument on appeal that seems to be of the most interest to Florida malpractice lawyers is whether the doctor’s lawyer made an “impermissible burden-shifting argument” in his closing by contending that the plaintiff failed to present “I would have done it differently” testimony from any of the decedent’s treating doctors. That’s not required, obviously, in Florida or anywhere else.

I wrote last week about the whole “settle case over policy limits and sue for bad faith” gambit last week. Here is another opinion from Tampa, Florida where the plaintiffs’ accident lawyer did the exact same thing. Sure this one failed too. Still.

Ultimately, the “insured dragged its feet on settlement” is a tough road to hoe.

You can read the full opinion in Machalette v. Southern-Owners Insurance Co. here.

A medical malpractice lawsuit on behalf of a Florida veteran will begin this week against the Miami Veterans’ Administration hospital. In the lawsuit, the plaintiff claims he contracted hepatitis C from an unclean medical device used in a 2007 colonoscopy. This may be the bellwether trial on this issue: there are a dozen similar lawsuits that have been filed in Florida and more have been filed in Tennessee. (Certainly, Tennessee – even with their new malpractice restrictions – is a more hospitable place than Florida for medical malpractice lawsuits.)

Bristol West is a private passenger automobile insurance company that is focused in Florida but provides bodily injury and physical damage car insurance to drivers across the United States. Dealing with Bristol West is the same as dealing with Farmers Insurance, who bought Bristol West in 2007.

The Bristol West name is slowly being extinguished. Bristol West is merging into Foremost, another Farmers insurance company.