Articles Posted in Personal Injury Case Law

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Earlier this month, an appellate court in Missouri reversed a lower court that had allowed a defendant in a product liability case to depose the plaintiff’s expert witness after the plaintiff disclosed the identity and substance of the expert’s testimony and then decided not to use the expert. In the case of Malashock v. Jamison, the appellate court held that the lower court erred in determining that the plaintiff had waived the attorney work product privilege by designating the expert and disclosing some basic information about his testimony.

The Attorney Work Product Privilege Protects Certain Information Prepared in Anticipation of Litigation

In Florida, the attorney work product doctrine acts to protect certain information from pre-trial discovery. Normally, parties are able to ask for all relevant information from the opposing party during pre-trial discovery. However, under the privilege, a party does not need to pass “documents and other tangible things . . . prepared in anticipation of litigation or for trial.” Importantly, the privilege covers both facts as well as opinions about a case or issue.

A Plaintiff’s Expert Is Nearly Used Against Him

The plaintiff in Malashock v. Jamison was injured in an accident involving a utility vehicle. The plaintiff filed a personal injury lawsuit against the dealer from which he obtained the vehicle. To help prove his claim, the plaintiff designated four experts who were to testify at trial. While the experts’ names and areas of specialty were released to the defendant, no specifics about the experts’ testimony were made available.

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Insurance contracts can be confusing. Often, the party purchasing the insurance only reads the “declarations” page, which is only a very brief overview of what their coverage entails. However, the actual insurance contract itself is often much longer and much more complicated, and it may even contain seemingly contradictory clauses.

When an insurance contract contains a clause that seems contradictory, the court system often must step in to resolve the conflict if the insured and the insurance company cannot agree. In most cases, if the court determines that there are contradictory terms, the conflict will be resolved in favor of the insured. However, the plaintiff does have the initial burden to prove that a contradiction exists. If no contradiction exists, the court will likely interpret the contract as it was written, even if this seems unfair because the insured thought that they were entitled to more coverage. A recent case decided by a federal court of appeals illustrates how a court may be asked to make a final interpretation of an insurance policy.

ACE Fire Underwriters v. Romero

Romero was the executor of an estate belonging to a man who was killed after he was involved in a tractor-trailer accident. There was no dispute that the operator of the tractor-trailer was at fault. However, since the accident was caused when the tractor became disconnected from the trailer, the issue arose of what the insurance pay-out limit was. Specifically, Romero claimed that it was $2 million, $1 million for each of the two vehicles involved. The insurance company, on the other hand, claimed that the policy maximum was $1 million, regardless of how many vehicles were involved.

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Earlier this month, a federal appellate court issued a written opinion in a product liability case, holding that a new trial was not warranted because any questionable evidence that was admitted by the trial judge had only a speculative effect on the jury’s verdict. In the case, Coterel v. Dorel Juvenile Group, the court skipped analyzing whether the evidence at issue should have been admitted, and it focused only on the effect that it had on the jury. Since the court determined that the plaintiff failed to prove that the jury relied on the evidence in question, the court held that even if the evidence were improperly admitted, a new trial was not warranted.

The Tragic Facts of the Case

The Coterels were given a door-knob guard manufactured by the defendant as a gift. The guard was designed to prevent young children from unlocking doors and getting out of a home unsupervised. On the day in question, the Coterel’s young son successfully negotiated the door-knob guard, escaped from the home, and drowned in a nearby pond. The Coterels filed a product liability case against the defendant manufacturer, alleging that the defendant’s dangerous product caused their son’s death.

At trial, the defendant manufacturer wanted to provide the court with evidence that the Coterels knew that their son had successfully disengaged the door-knob guard in the past. The defendants also had evidence that the parents normally locked the deadbolt in addition to using the door-knob guard, but on the day in question they forgot to lock the deadbolt. This evidence was obtained in post-incident interviews with the Coterels that were unrelated to the personal injury lawsuit.

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Earlier this month, a state appellate court issued an opinion in the case of Vasilenko v. Grace Family Church. The case was brought by a parishioner against the church after the parishioner was seriously injured in a pedestrian accident when attempting to walk from a church parking lot to the church. The court determined that, although the injury in a premises liability lawsuit must normally arise on the property owner’s land to be successful, that isn’t always the case.

The Facts of the Case

Grace Family Church was located on a busy five-lane road. Immediately next to the church was a parking lot. However, since the parking lot was small, it would often fill up. To accommodate the growing demand for parking spaces, the church contracted with a nearby business owner to use his parking lot as an overflow lot when the smaller main lot was full.

The church had volunteer parking attendants who would direct traffic from the main lot to the overflow low when the main lot was full. There were also parking attendants in the overflow lot, showing parishioners where they could park. Importantly, however, there were no attendants to help the parishioners cross the street to get to the church.

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In most cases alleging that one party’s negligence caused another party’s injuries, the lawsuit is based on the legal theory of negligence. Before a negligence lawsuit is even permitted to go to trial, a judge must determine that a prima facie case of negligence exists. This is a question of whether, taking all evidence in the light most favorable to the plaintiff, the plaintiff has made out a bare-bones case. If not, the court is proper in dismissing the lawsuit before submitting the case to a jury.

In negligence cases, there are four elements that must be met:  duty, breach, causation, and damages. In other words, a plaintiff must establish that the named defendant violated some duty of care that they owed the plaintiff, and the plaintiff was injured as a result of that breach. A plaintiff’s failure to submit proof of any of these elements can result in the court dismissing the case at the summary judgment stage. This is exactly what happened to a husband and wife who sued a local park for damages after the husband injured himself while leaning on a fence.

The Facts of the Case

In the case of Wheeling Park Commission v. Dattoli, the plaintiffs were a couple who were attending a concert at Wheeling Park. The couple arrived too late to find seating for the event, so they ended up standing at the top of a hill near a fence. As the night went on, Mr. Dattoli looked for a place to take some of the weight off his legs, and he leaned against the nearby split-rail fence. However, as he did so, the fence collapsed, sending Mr. Dattoli down the hill. As a result, he injured his shoulder.

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Whenever an accident occurs and a personal injury case is filed, there must always be a determination of who was at fault and whether any other parties were also at fault. In the simplest example, in a two-vehicle accident, one person may be 100% at fault and the other 0% at fault. However, these situations are rare. Often, there are multiple parties involved in the accident, and each party has some percentage of fault that can be assigned to them.

In Florida, the legal doctrine that helps courts figure these situations out is called “comparative negligence.” Under a comparative negligence analysis, anyone injured in an accident can recover compensation from anyone else who was at fault. However, the person’s available damages will be reduced by their own percent at fault. So, for example, if a pedestrian was determined to have suffered $500,000 in damages but was 10% at fault for the accident that caused their injuries, the pedestrian’s total available recovery amount would be $500,000 minus $50,000 (10%), or $450,000.

Comparative negligence is seen as a “plaintiff-friendly” doctrine, since it still allows plaintiffs to recover for their injuries even if they are partially at fault, albeit at a reduced amount. Other jurisdictions across the U.S. employ much harsher rules. For example, consider the case of Bertsch v. Mammoth Community Water District, in which a father was prevented from receiving compensation for the death of his son because his son was engaging in the “dangerous activity” of skateboarding at the time of his fatal accident.

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The Supreme Court of West Virginia recently released an opinion that overturned a circuit court’s decision granting an plaintiff a new trial on the issue of knee injuries he was alleged to have received in an accident with the defendant. The plaintiff will still be entitled to the verdict he received to compensate him for other injuries incurred in the accident, although his claim to compensation for his knee injuries was found by the state high court to be unsupported by the evidence at trial, causing the appellate court to reverse the circuit court’s decision to grant a new trial.

The Plaintiff Is Injured in a Rear-End Crash But May Have Had a Pre-Existing Knee Condition

The plaintiff in the case of Harnish v. Corra was a man who was injured after the defendant rear-ended his vehicle while he was waiting to make a left turn into a parking lot. The defendant admitted that he was at fault for the accident. After the crash, the plaintiff filed a personal injury lawsuit against the defendant, requesting over $25,000 in damages for medical expenses related to the accident. Over $15,000 of the plaintiff’s requested damages were attributed to a knee injury he had allegedly suffered in the accident.

At a jury trial, the defendant admitted that the accident was the cause of the plaintiff’s back and neck injuries, although he presented testimony that the knee injury was the result of a pre-existing condition and that the medical expenses related to the injury should not be awarded to the plaintiff. After the parties had presented their cases, the jury awarded the plaintiff damages for his neck and back injuries, but they declined to award any damages related to the alleged knee injury.

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Florida courts are already overburdened by the number of lawsuits filed in the state each year. To help curb the number of new lawsuits each year, and to ensure that medical malpractice cases are heard in a timely manner, the Florida legislature has set out a series of rules that limit the time in which a medical malpractice plaintiff can file a lawsuit against a medical provider. Of course, all cases have time limitations, but medical malpractice cases have some of the most stringent.

These rules, called statutes of limitations, can act to completely prevent a victim of medical malpractice from recovering compensation for an act of medical malpractice. In fact, the statutes even prevent the claim from being heard in many cases. Therefore, it is extremely important that anyone who believes they have been a victim of medical malpractice reach out to a dedicated personal injury attorney as soon as possible to preserve their right to file a lawsuit and seek compensation.

Indeed, Florida medical malpractice plaintiffs must also comply with other procedural requirements, such as a pre-suit investigation to determine the validity of the claim. A plaintiff’s failure to comply with any of these requirements may result in early dismissal without the ability to refile the case. Indeed, that is exactly what happened to the family of a man who believed that the hospital treating their loved one was negligent in his care and then tried to cover up their mistake.

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Earlier this month, a state court in Indiana issued an opinion explaining how the summary judgment standard should be applied by trial courts when there is conflicting evidence presented to the trial judge. In the case, Siner v. Kindred Hospital Limited Partnership, the court explained that summary judgment is not appropriate when there is conflicting evidence regarding a material issue of the case.

The Facts of the Case

The plaintiffs in Siner were the surviving loved ones of a woman who had passed on after being placed in the defendant hospital’s care. The allegations involved the hospital’s refusal to provide the deceased with life-sustaining treatment. In short, since the hospital told the deceased’s loved ones that it was unwilling to provide life support in the event it was necessary, the plaintiffs decided to relocate their loved one, who died a short time after her relocation.

The plaintiffs had the case reviewed by a medical review board, which issued the following opinion:  “the defendants failed to comply with the appropriate standard of care, and their conduct may have been a factor of some resultant damages, but not the death of the patient.” The plaintiffs cited the report as evidence that the defendant was potentially liable for the death of their loved one.

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When an accident victim files a case against another motorist, the law requires that certain information be passed through what is called “pre-trial discovery.” This allows both sides to have an idea of the evidence the other party will use to prove or defend their claim. While not every piece of harmful or beneficial information must be passed in pre-trial discovery, generally all relevant evidence should be passed. If a court determines that a party is hiding evidence, or is otherwise not complying with the discovery process, the court can implement sanctions against that party.

Defense Verdict Reversed on Appeal, Based on Failure to Comply with Discovery Requirements

Earlier last month, an appellate court in West Virginia issued an opinion in a case that reversed a jury’s verdict in favor of the defendant after it came out that the defense failed to comply with pre-trial discovery rules. In the case, Phillips v. Stear, the court determined that the plaintiff was denied a fair opportunity to present his case when the defendant failed to disclose previously issued traffic citations and then denied knowledge of the citations at trial.

The accident giving rise to the case occurred when the plaintiff, a truck driver, was cut off by the defendant. According to the court documents, the defendant swerved in front of the plaintiff, made an obscene hand gesture, and then quickly applied the brakes. In response, the plaintiff tried to slow down as well, but he ended up losing control of the truck and crashing it off the side of the road.

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