In all Florida personal injury cases, the jury must decide whether to believe some or all of the version of events put forth by the plaintiff, or some or all of the version of events put forth by the defendant. Formally, they are tasked with determining any genuine issues of material fact. Case law places this task firmly in the hands of a jury. Judges, on the other hand, are responsible for determining matters of law, and they must allow the jury to hear all relevant evidence that is not precluded by law. In a recent decision, McNabb v. Taylor Elevator Corp. (2D15-4838), the district appellate court looked at whether or not an expert witness unveiled a genuine issue of material fact in his affidavit, and whether the trial court erred by ruling in favor of the defendants’ summary judgment, dismissing the case.

The injured party in this case filed suit after sustaining injuries from slipping on an oil leak near an elevator on the premises of a condominium complex.  Elevator Buttons An elevator seal broke prior to the accident, leaking into the machine room and out into the hallway where the fall occurred. The elevator service technician testified that the leak was dripping every two seconds and that the oil was a quarter-inch deep. The injured man alleged that the elevator and the surrounding area were negligently maintained. The defendants in the case (the condominium association and the elevator servicing company) filed for summary judgment, arguing that the testimony of the inspectors ruled out negligent maintenance, since there was no leak at the time of the inspection. The injured man submitted the testimony of his own expert witness, a mechanical engineer, who opined that the seal had been leaking for between 4 1/2 and 18 days. The expert based his determination on the rate of the drip, the depth of oil observed, and the dimensions of the machine room.

Continue reading

In Florida personal injury and car accident cases, there are always four elements for an injured person or persons to prove:  1) a duty created by law directing the at-fault party to act in a certain way, 2) a breach of that duty, 3) an injury resulting from that breach, and 4) damages incurred from the injury. Often, appellate cases assess an error concerning one of the first three elements. In Safeco Insurance Co. of Illinois v. Fridman (5D12-428), the Fifth District Court of Appeal reviewed two questions on remand from the Supreme Court of Florida concerning damages. The first was whether there was an error in denying the defendant insurance company’s motion for mistrial, based on improper arguments made by the injured person. Busted tail lightThe second was whether or not the trial court should have granted the insurer’s motion for remittitur.

The underlying action began when the injured driver was hit by an uninsured motorist. The injured driver underwent surgery for his injuries three years after the collision, and an expert testified during trial that he would need to have fusion spine surgery in the future. At trial, the injured person provided proof of the injuries suffered as a result of the accident with an uninsured motorist, and he argued that he was entitled to damages from his insurance company. To show the damages he lost from the accident, both past and future earnings, the injured person described his work history preceding and following the accident.

Prior to the auto accident, the injured person had been an electronics salesman for several years, earning from $800 to $1,000 a week. For two years during this period, the injured person also ran a retail marble and tile store, but he was unable to testify about how much he earned from this business. After the accident, the injured person opened a wholesale marble and tile business for 20 days, stating he closed it because he could not lift the marble as a result of the injuries. Afterwards, he worked as a salesman again, first earning between $400 to $600 a week, then $500 to $600, and by the time of trial around $1,200 a week. During trial, an expert testified that he would not be able to work after a fusion spine surgery for three to four months. The injured person testified that if he had remained in the wholesale marble and tile business, he could have made $100,000 to $200,000, based on the profit margin for a square foot of tile. No other testimony or evidence was provided to support his assessment.

Continue reading

In Okeechobee Aerie v. Wilde, Nos. 4D14-2770 and 4D14-2771, the court of appeals reviewed an appeal stemming from an $11 million verdict awarded to a motorcyclist injured by a drunk driver. The driver had recently left a social club bar that served him alcohol and contributed to his heavy inebriation. The driver’s blood alcohol content was .26 at the time of the accident, and the testimony of servers during the trial indicated that they knew he was an alcoholic. The injured motorcyclist and his wife filed suit against the bar that sold him alcohol.Motorcycle accident After the trial concluded in their favor, the social club bar appealed, arguing that the trial court erred in several ways. The appellate court agreed, remanding the case back for a new trial.

The social club bar disagreed with the court’s determination to allow evidence and a jury instruction regarding Florida’s Responsible Vendor Act. The injured motorcyclist and his wife claimed that the Act created two causes of action. The bar claimed it created only one cause of action. The appellate court pointed out that it actually eliminates a cause of action, shielding a person or vendor that serves alcoholic beverages from suit in some situations when the right to bring a claim might otherwise exist. An exception does exist, however, if the beverages were sold negligently to a habitual alcoholic. The court felt in this case that it was not enough to show that a drinking establishment knowingly served a habitual alcoholic. The court explained that the injured person must show that the establishment owed a legal duty to the injured person and that a breach occurred. Evidence of common sense, the bar’s failure to adequately train its staff, and societal standards were acceptable, but evidence of the Act went a step too far.

This ruling affected the next issue of whether or not the court erred by allowing evidence of a prior case in which a woman was killed by a different drunk driver who was served by the same establishment. This evidence was submitted solely on the basis that the bar was aware of the statute and its responsibilities under it. Since the introduction of the Act was deemed unacceptable, the evidence of the prior accident was also ruled inadmissible.

Continue reading

A series of consolidated appeals in Florida Wellness & Rehabilitation v. Allstate Fire & Casualty Co. (Nos. 3D15-151; 3D14-2688; 3D14-3008; 3D15-149 & 3D15-150) asked whether or not the language in an insurance policy provided notice to the insured that payments would be issued according to Florida Statutes 627.736 (5)(a)(2)(f), which pays medical care providers at a rate of 80% of 200% of the Medicare Part B schedules. Five medical providers, as assignees of an injured party, filed suit against the insurance company, arguing that the policy did not provide a clear and unambiguous election to the insureds that the statutory schedules were to be used by the insurance company to limit reimbursement to providers. Summary judgment motions were filed by both sides, but the trial court ruled in favor of the insurance company, ultimately determining that the policy language offered a clear and unambiguous election to its insured. Medical Care The providers appealed, but the decision was ultimately affirmed with a certification that it is in conflict with the law in Florida’s Fourth District and a note that it is in line with recent rulings from the First and Second District Courts of Appeals.

The appellate court in this case first looked at the statute that allows insurers to limit reimbursement. The court pointed out that while the option is available to pay 80% of 200% of the allowable amounts listed under the Medicare Part B schedule, this option is permissive rather than required. The Florida Supreme Court previously held in GEICO v. Virtual Imaging Servs., Inc., 141 So. 3d 147, (Fla. 2013), that the insured must be put on notice that the limitations on payment are being elected by the insurance carrier. In Virtual Imaging, the Supreme Court deemed the payment of “reasonable expenses . . . for medically necessary . . . services” was mandatory, but the ability to use the Medicare fee schedules to limit reimbursements was not. Since the reimbursement was permissive, notice to the insured of the election then became necessary. The insurance company in that case did not indicate in any way that it planned to limit its reimbursements based on the law, which established the notice requirement.

The Third District disagreed with the Fourth District’s assertion that there was an ambiguity in the language of the policy, particularly the phrase “subject to.” Looking at Florida case law on other matters, the Fourth District appellate court pointed to several examples in which “subject to” indicates subordination when there’s a hierarchical effect on overlapping provisions within the Florida statutes. The court felt that any other interpretation of the policy would be counter-intuitive to the understood meaning of a phrase frequently used in Florida’s statutes. The lower court’s decision was affirmed.

Continue reading

Eyewitness testimony in car accident cases can come down to the two parties in the accident, who often provide conflicting accounts of what happened. In these cases, it may be necessary to use an expert witness to help determine what occurred at the time of the accident. A recent decision issued from Florida’s First District Court of Appeals in Boyles v. Dillard’s Inc. (1D14-5276) addressed whether or not the trial court erred in allowing testimony from the defendant’s expert accident reconstructionist, and whether the defense counsel’s conduct was prejudicial enough to warrant a new trial. Neighborhood DrivewaysThe court determined that the admission of the defendant’s expert witness testimony was appropriate, but the conduct of the defendant’s lawyer was not appropriate and unfair to the injured woman. Due to the latter concern, the jury verdict was vacated and the case remanded back to the lower court.

The woman in Boyles was injured after her car was struck by a delivery van driven by a department store employee. Her car was in front of the delivery van in the same lane until she attempted to turn into her driveway. The injured woman claimed that she directly turned right into her driveway when she was hit, but the delivery driver claimed that she went into the left lane before turning right, leaving him no time to avoid the collision. The woman alleged she suffered injuries to her shoulder, neck, and back. The defense produced an expert witness to help reconstruct the accident scene for the jury.

The appellate court disagreed with the injured woman’s assertion that the trial court erred in allowing the expert’s testimony at trial. The woman argued that the expert was not qualified to testify about the degree of injury she suffered because of the accident. The appellate court disagreed, determining that she misconstrued relevant case law regarding biomechanics’ expert testimony. Prior rulings in this district have held that while a biomechanics expert is not allowed to give a medical opinion regarding the extent of an injury, they are allowed to give an opinion as to whether the mechanism of the injury was caused by the accident. The appellate court felt that the testimony was within these parameters and affirmed the lower court’s ruling on this issue.

Continue reading

In personal injury actions, it is frequently necessary to help the fact-finder understand how the alleged negligence caused the injury to the plaintiff. Often, this is accomplished by expert testimony, which is guided by Florida Statutes and Rules of Civil Procedure (See Fla. Stat. §90.702 and Florida Rule of Civil Procedure 1.390.) The court first determines whether expert testimony is appropriate for the subject matter. This may include an assessment of whether or not there is recognized science or specialized knowledge available to support the subject. The court then decides whether the witness offered by counsel is qualified to testify.

Gavel RestingThe Third District Court of Appeal recently reviewed whether or not sanctions were appropriate after the trial court dismissed a wrongful death action when it determined that the estate did not comply with the statutory requirements guiding expert witness qualifications in medical malpractice lawsuits. In Bery v. Fahel (3D15-0756), the personal representative filed suit against a family practitioner, relying on the affidavit of an emergency medical physician to support the allegations against the defendant family practitioner during the initial stages of the litigation. The defendant moved to dismiss, claiming the estate failed to comply with Fla. Stat. §766.202 and Fla. Stat. §766.203. The trial court agreed with the defendant and dismissed the lawsuit. The personal representative appealed, but the appellate court affirmed the lower court’s ruling. On remand, the trial court awarded the defendant fees and costs as part of the sanctions, and the estate appealed once more.

Fla. Stat. §766.202 and Fla. Stat. §766.203 add additional responsibilities for the injured party to meet when a personal injury action involves medical malpractice. The injured person or the estate must conduct a pre-suit investigation prior to issuing a notification of intent to initiate medical negligence litigation. This investigation is supposed to establish whether there are reasonable grounds to believe there was negligence in the care or treatment of the injured person, and whether the negligence caused the injury. The law dictates that the affidavit must be completed by a medical expert who regularly engages in the practice of his or her profession and specializes in the same specialty as the defendant.

Continue reading

Often, personal injury actions involve contract law. For example, in many Florida automobile accident cases, the injured person must deal with either his or her own insurance policy or the policy of the at-fault party. In these types of cases, the terms of the policy are scrutinized to determine whether a clause will either provide or limit benefits to the injured person or persons. For any contract, the terms of the policy must be clear, and any vagueness in the contract is interpreted in favor of the party who did not draft the document. But before any contract can be effective, all parties must agree to the terms and have the presence of mind to do so.

The Second District Court of Appeal recently affirmed a ruling in favor of an estate filing a wrongful death case against a nursing home. In this case, the nursing home appealed the trial court’s decision not to grant their motion to compel arbitration per the Resident Admission and Financial Agreement.
hospital bed

In Sovereign Healthcare of Tampa v. Estate of Otto N. Schmitt (2D15-2969), the personal representative and widow of the deceased filed suit against the nursing home that provided him long-term residential care twice before his death. The nursing home attempted to move the proceeding to arbitration per the agreement signed at the beginning of each residence. The agreement was not signed by the deceased resident, and it became clear that the wife did not have the authority to sign on her husband’s behalf. In its ruling, the appellate court pointed to a prior ruling made in 2014 dealing with the same issue in Sovereign Healthcare of Tampa v. Estate of William S. Yarawsky (2D13-2083).

Continue reading

When applying for Social Security benefits, it is necessary to show the physical and mental health conditions from which you suffer and how these cause your inability to work. A recent, unpublished decision from the Eleventh Circuit U.S. Court of Appeals, Kent vs. Acting Commissioner of the Soc. Sec. Admin. (No. 15-15059), provides insight into what is required for an award of SSI benefits. In this case, the SSI applicant suffered from severe impairments of major depressive disorder, generalized anxiety disorder, obesity, and migraines. She appealed the denial of her application when the administrative law judge (ALJ) chose to give little credit to the testimony of her treating psychiatrist about the extent of her mental limitations.

paperwork stackWhen weighing medical opinions, an ALJ is required by case law to give a treating physician’s opinion “substantial or considerable weight,” unless she or he can articulate good cause for not doing so. This occurs when the treating doctor’s testimony is not supported by evidence, the evidence actually points to an opposite finding, or the the opinion of the treating physician was conclusory or inconsistent with the doctor’s own medical records. The appellate court felt that the ALJ in the earlier proceeding demonstrated good cause and was supported by substantial evidence in the record.

The treating psychiatrist performed a mental residual functional capacity assessment and labeled the applicant as having marked restrictions in her ability to perform work-related tasks, from performing simple instructions to getting along with co-workers to responding to changes in the workplace. The doctor then opined that she had “extreme” restrictions in several areas, including her ability to understand and remember detailed instructions, sustain an ordinary routine without special supervision, and complete a normal workday and workweek, performing at a consistent pace. The ALJ, however, noted that the psychiatrist’s assessment didn’t line up with the testimony as a whole, in which there were findings of the applicant having a “consistently fair ability in memory, concentration, and attention,” “no more than moderate symptoms,” and “no symptoms to only mild symptoms.”

Continue reading

In Coffey-Garcia v. South Miami Hospital, Inc. (No. 3D15-1966), the appellate court reviewed an order that compelled the mother of a child diagnosed with cerebral palsy to answer deposition questions about any lawyers she consulted related to the medical malpractice action she filed as an individual and on behalf of her daughter. The defendants requested the order from the trial court after the mother acknowledged that she had spoken with an attorney prior to the one she retained as counsel for the current litigation. The defendants felt that if the mother had spoken with another attorney or other attorneys long before filing the suit, the statute of limitations may have run on the action.

Secret ShelvesIn this case, the daughter was born at the hospital in 2005 and was diagnosed with cerebral palsy in 2007. The lawsuit was not filed until April 30, 2013. Under the Florida statute of limitations, a medical malpractice action must be filed within two years from the time the incident occurred or within two years from the time the incident was discovered or should have been discovered. The defendants argued that they had a right to know whether this had passed, and they deposed the mother to learn when she first really understood that her child’s injury was caused by malpractice. The mother refused to answer the questions, citing attorney-client privilege, and the defendants sought an order from the trial judge to compel her to answer the questions about when she first sought legal counsel, the names of the attorneys she consulted, and the reasons why she sought legal counsel and any subsequent counsel.

The appellate court first looked at the right of a client to have her or his communications with an attorney remain confidential. The right in this case is granted by the Florida Evidence Code in § 90.502, Fla. Stat. (2013), under which the client has the privilege to refuse to disclose, and prevent others from disclosing, the contents of confidential communications when another person learns they were made while legal services were being provided to the client. The court noted that underlying facts that are independent of any communication with a lawyer are discoverable, but not the actual communication with the attorney.

Continue reading

Florida statute 395.1041 was created by the state legislature to address whether, when, and how patients are transferred from one hospital to another when the original hospital does not have service capabilities to treat the patient. It is also known as the “anti-dumping” statute. In a recent state appellate case, Morejon vs. Mariners Hospital, Inc., (No. 3D15-1711), the District Court of Appeals looked at whether 395.1041 created a duty to ensure the transfer of an injured patient to a different facility that had greater capabilities to treat him when the first facility failed to admit him.

Ambulance hospitalIn this case, the injured patient arrived at the original hospital with abdominal pain. After a determination of the patient’s emergent condition, the staff at the hospital chose to transfer him to another hospital with more specialized staff. The transfer was denied by that hospital, and the original hospital did not pursue transfer to another facility. Instead, the surgeon on call performed exploratory abdominal surgery, which was complicated by an injury to the patient’s spleen and a heart attack. The injured patient and his wife both pointed to this series of actions by the hospital as the cause of his worsened condition, alleging that his current state of health could have been prevented if the hospital had persisted in finding an appropriate transfer.

Continue reading