Articles Posted in Personal Injury Case Law

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If a Florida wrongful death case goes to trial, one party ends up with an unfavorable result. In that case, the losing party may appeal the decision. But if an appeal is made, the party has to have a clear understanding of the issues it can raise—because if it failed to raise the issue before, the issue may be waived, and the party may be stuck with the result.

In a recent case, a Florida appeals court considered whether an issue could be raised on appeal that the defendants raised before—but not during—the trial. In that case, a man brought a wrongful death claim against two cigarette companies after his wife’s death. The case went to trial, and the jury found in the man’s favor, awarding him $460,000 against each defendant. The defendants appealed the decision, arguing in part that there was improper expert testimony.

The expert testified about the defendant’s use of ammonia in an attempt to increase the addictiveness of cigarettes. The trial court had allowed the expert, a historian, to testify about the history of the defendants’ efforts to increase the addictiveness of cigarettes. The court did not allow the expert to give an opinion on the chemistry of tobacco. However, on appeal, the defendants argued that the expert’s testimony went beyond a historical opinion by testifying that adding ammonia to cigarettes increases their addictiveness.

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In most Florida personal injury cases that are tried to a jury, once both parties have concluded their presentation of the evidence, and the jury returns a verdict, that verdict is final. However, Florida lawmakers recognize that jurors can make mistakes, and thus they have provided a mechanism for parties to petition the court in these situations.

Remittur and Additur

Under Florida Statutes section 768.74, after a jury determines that liability exists and returns a verdict, a party can ask the court to “review the amount of such award to determine if such amount is excessive or inadequate in light of the facts and circumstances which were presented to the [jury].”

If the judge determines that the amount awarded by the jury was inadequate, he or she can order an additur, which increases the amount of the jury’s verdict. Similarly, if the judge finds that the jury’s verdict was excessive, he or she can order a remittur, which reduces the jury’s verdict. If the party asking for review does not agree with the new figure, the judge will then order a new trial on the issue of damages only.

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Earlier this month, a court issued a written opinion in a Florida golf cart accident case requiring the court to determine if the plaintiff’s insurance provider was required to cover the accident under the underinsured motorist (UM) provision of the plaintiff’s policy. Ultimately, the court held that the exclusion for accidents involving “non-owned golf carts” was invalid.

The Facts of the Case

The plaintiff was walking on a pathway in Sun City Center when she was struck by a golf cart. As a result of the collision, the plaintiff suffered serious injuries. The operator of the golf cart did not have sufficient insurance coverage to fully compensate the plaintiff for her injuries, so she filed a claim with her own insurance company, under the underinsured motorist provision.

The plaintiff’s insurance policy contained separate language for accidents involving liability insurance and accidents involving UM insurance. Specifically, the plaintiff’s liability policy covered accidents involving “non-owned golf carts,” but accidents involving “non-owned golf carts” were specifically excluded from the UM protection policy. Thus, the insurance company denied the plaintiff coverage.

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Being involved in even a minor Florida car accident is a stressful experience, but when an accident victim suffers serious injury in an accident the stress can become overwhelming. initially the physical and emotional recovery consume an accident victim’s time and thoughts, but as the body and mind start to heal, financial worries creep into the picture. What sort of medical treatment is going to be needed in the future? How will it be paid for?

Thankfully, Florida accident victims are able to pursue a claim for compensation against the at-fault party through that party’s insurance carrier. Although Florida law requires a base level of coverage, if the at-fault motorist does not have insurance coverage, then an accident victim will likely be able to file a claim with their own insurance policy under the uninsured motorist clause. Similarly, if an accident victim’s injuries amount to a need for compensation in excess of what is available through the at-fault driver’s policy, a claim under the victim’s underinsured motorist protection clause can help fill the gap.

Dealing with insurance companies, however, is rarely an easy experience. Insurance companies operate on a for-profit model, and are often reluctant to approve a claim for what the accident victim deserves. Indeed, in many cases insurance companies look for ways to deny a claim, or approach a motorist with a low-ball offer in hopes of settling the claim quickly and for as little as possible. A recent case illustrates an insurance companies attempt at avoiding financial liability following a Florida car accident.

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Earlier this month, an appellate court issued a written opinion in a Florida premises liability lawsuit that arose after the plaintiff fell off an examination table in the defendant doctor’s office. The court was tasked with determining if the plaintiff’s lawsuit should be dismissed because she failed to comply with the applicable statute of limitations. Ultimately, the court concluded that the plaintiff’s lawsuit was not a “medical malpractice” lawsuit as defined by the statute and that her claim need not comply with the stricter statute of limitations for medical malpractice lawsuits.

The Facts of the Case

The plaintiff was seeing the defendant doctor so that he could remove a catheter. When the doctor came into the examination room, he instructed the plaintiff to climb onto the examination table. He then pulled out a stool so that she could more easily get atop the table. The plaintiff safely climbed onto the table, and the doctor performed the procedure without any complications.

After the procedure, the doctor told the plaintiff to go to the front desk and make a follow-up appointment the following week. The doctor then left the examination room without pulling out the stool to help the plaintiff descend off the table. The plaintiff attempted to get off the table but fell as she did so.

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Earlier this month, the Florida Supreme Court issued a written opinion in a case that will likely have great implications across the State. The case involved allegations of Florida medical malpractice brought by the wife of a man who died while in the defendant doctor’s care. The issue involved a discovery rule that allowed for a defendant doctor to compel the plaintiff to release the names of previous health care providers and allowed for the defendant to arrange meetings with the providers without the plaintiff or the plaintiff’s attorney present.

Ultimately, the court concluded that the plaintiff had the ability to assert her husband’s right to privacy to challenge the discovery rules and that the rules were unconstitutional because they burdened the plaintiff’s right to access the court system.

The Discovery Rules

The discovery rules at issue allowed for informal discovery, whereby the defendant could request certain information from the plaintiff. Among the information that could be requested by the defendant were the names of all previous medical care providers. A 2013 amendment to the rules also allowed for the defendant to arrange ex parte meetings with the medical care providers. The plaintiff challenged the aspect of the rules that allowed for ex parte meetings.

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When a party is injured due to the allegedly negligent act of another person, company, or government entity, the injured party can seek compensation for their injuries through a South Florida personal injury lawsuit. Many of these cases are resolved in pre-trial settlement negotiations, with less than 5% of cases proceeding to trial. The reason most cases settle before reaching trial is because the parties involved prefer the certainty of agreed-upon negotiations rather than the uncertainty of a jury trial.

In addition to a jury trial being an uncertainty, once a jury enters a verdict in favor of a party, it is usually final. There are several exceptions, however. The first exception is if the judge overseeing the trial makes a legal error. For example, if a judge prevents a certain key witness from testifying or makes an erroneous legal ruling, the party against which that ruling was made can appeal that specific issue to a higher court. If that party is successful on appeal, the case will usually get remanded back to the lower court with instructions on how to proceed.

Another exception to the general rule of finality is in a post-trial motion arguing that the jury’s verdict was against the weight of the evidence. These motions, brought after both parties have closed and the jury has entered a verdict, argue that the jury came to the wrong conclusion given the evidence presented.

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Earlier this month, an appellate court issued a written opinion in a Florida car accident lawsuit that illustrates the difficulties some motorists encounter when filing insurance claims after an accident. The case presented the court with the opportunity to discuss when a plaintiff’s failure to fulfill a “condition precedent” prior to filing a claim with his own insurance company can be fatal to a plaintiff’s claim. The court concluded that, generally, such a failure will prevent the plaintiff from recovering damages; however, when the insurance company fails to raise the issue in a timely manner, the objection will be considered waived.

The Facts of the Case

The plaintiff sustained injuries in a Florida car accident. The plaintiff was a passenger in a car that was being operated by her father. The plaintiff claimed that the other driver was at fault, but that driver did not have adequate insurance coverage to compensate the plaintiff for the injuries she sustained.

At the time of the collision, the plaintiff was covered under two insurance policies:  her mother’s policy with Allstate and her father’s policy with Geico. Both policies had underinsured/uninsured motorist insurance. The Geico policy’s limit was $20,000, and the Allstate policy’s limit was $25,000. The Allstate policy contained an “other insurance” clause, stating that the insured must exhaust all other insurance policies available before a claim under the Allstate policy.

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Earlier this month, a Florida appellate court issued a written opinion in a Florida medical malpractice case that required the court to determine if the plaintiff’s case was timely under the applicable statute of limitations. Ultimately, the court concluded that the plaintiff’s case was properly filed within the applicable statute of limitations, and a lower court’s finding to the contrary was reversed. As a result, the plaintiff’s case will be permitted to proceed toward trial or settlement negotiations.

The Facts of the Case

The plaintiff was a patient of the defendant radiologist. In 2008, the plaintiff underwent a mammogram, and the defendant interpreted the results. Despite finding a nodule that he knew at the time was likely to be cancerous, the defendant did not inform the plaintiff or her primary care doctor.

Later that year, the defendant’s office called the plaintiff, requesting she come in for a follow-up. Again, no mention was made of the nodule and the possibility that it was cancerous. It was not until 2010, following a subsequent mammogram, that the plaintiff realized she had breast cancer. By that time, the cancer had metastasized and spread to her bones. The plaintiff’s breast cancer was successfully treated with chemotherapy, but the metastatic cancer in her bones continued to progress.

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Earlier this month, Florida’s Fourth District Court of Appeal issued a written opinion in a Florida personal injury case brought by a former smoker who had developed lung cancer and Chronic Obstructive Pulmonary Disease (COPD). The plaintiff’s case was filed against the manufacturer of the cigarette brand that she used to smoke and claimed that her addiction to cigarettes was what caused her disease.

The case presented the court with the task of determining whether the trial court’s conflicting evidentiary rulings regarding the plaintiff’s expert warranted a new trial. Ultimately, the court concluded that the trial court’s error likely did have an effect on the jury’s decision to find for the defendant and ordered a new trial to take place.

The Lower Court’s Rulings

The lower court first determined that the plaintiff’s treating pulmonologist was not qualified to testify that the plaintiff was addicted to cigarettes. In a subsequent ruling, the lower court then allowed the same pulmonologist to respond to questioning from the defense about the plaintiff’s ability to quit smoking. The pulmonologist explained that the plaintiff “could quit when she was sufficiently motivated to do so.”

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