A successful personal injury trial for a plaintiff primarily hinges on whether or not the fact finder believes it is more likely than not the defendant(s) caused the resulting injury due to negligent behavior that falls short of a legal duty. While a jury is given great discretion in the type of facts they find to be true and supportive of a claim or defense, the trial court can make a determination at the end of each party’s presentation of evidence on whether or not the facts presented meet the set legal standard. If the facts fall short of the legal requirements for a successful claim, the court wet storefrontcan issue a directed verdict. If this occurs at the end of the trial, it can override a jury verdict.

A motion for a directed verdict in a Florida slip-and-fall lawsuit was recently considered in a Florida Third District Court of Appeal decision. The grocery store argued on appeal it was entitled to a directed verdict because the injured party’s evidence fell short of showing the store had actual knowledge of the dangerous condition or that one of its employees caused the dangerous condition to occur. The Court of Appeal agreed, reversing the million-plus jury verdict and remanding the case for a new trial.

The injured person fell during a shopping excursion with her husband. The 70-year-old lady realized she forgot some items while in line to check out. Her husband went to find these products but also decided to buy some other things and order a sandwich. During this period, his wife went to find him after he took so long to return, falling and slipping on some water. She did not notice this water prior to the fall. When the husband returned to the checkout area, he found his wife sitting in a chair crying. The husband testified he remembered seeing a man with a “mop in his hand,” but he did not specifically recount what he was doing. The wife also testified she saw an employee with a mop in his hand, but she failed to provide any details beyond this description.

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Civil courts have the power to sanction parties if actions taken or not taken during a litigation period are egregious to the process. A recent Florida uninsured motorist accident appeal heard in Florida’s Fifth District Court dealt with a sanction issued by the trial court to the party. The appellate court felt dismissing the action with prejudice was too harsh a penalty for the concerning behavior.

The plaintiff was injured by an uninsured motorist on a highway in 2014. The injured person’s policy provided $250,000 worth of uninsured motorist coverage. His insurance company denied his Highwayclaim for benefits, and the injured person filed a breach of contract claim against his insurer. During the discovery phase, the insurance company subpoenaed the injured person’s medical records and history, insurance claim history, and employment history.

As a courtesy, the injured person advised the defendant insurer that he was scheduled for surgery within a few weeks. The insurer asked for a compulsory medical examination (CME) prior to the scheduled surgery, and it offered two dates for this to occur prior to the procedure. The injured person advised he could not make either date. The insurer then asked the court to mandate the injured person to undergo the CME, asserting there was insufficient time for it to conduct one before the injured person’s surgery. The trial court granted the motion, ordering the injured person to undergo the CME or delay the procedure. The trial court also required the insurer to provide two more dates for the CME.

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Many Florida car accident cases do not make it to a trial in front of a selected jury. Often, the parties can reach a settlement agreement before a lawsuit is even filed, ideally to the satisfaction of both parties involved. The Fourth District recently reviewed a settlement agreement between an auto insurer and a plaintiff injured in a car accident. The injured person appealed the enforcement of a Signing Paperssettlement agreement, arguing they did not have a “meeting of the minds,” or a mutual understanding of what was agreed upon, thus voiding the contract.

The defendant in the lawsuit was insured under a policy with a $25,000 limit for bodily injury per person, a $50,000 limit for bodily injury per accident, and a $10,000 limit for property damage. The injured person’s counsel submitted a demand letter to the insurance company, asking for the policy limits of $50,000 for bodily injury and $10,044 for property loss. The letter also requested an affidavit from the at-fault driver to establish she had no other insurance coverage available, along with a copy of the insurance policy. No release was included with this letter.

The auto insurer accepted the offer and provided the injured person with all of the requested documents. The insurer provided a proposed release and asked that it be signed by the injured person and his mother. The letter specified signing the release was not required for the case to settle and was not a counter offer or new terms. The injured person rejected the proposed release and requested a “standard” release. A second letter was issued by the insurer with two proposed releases. One was an edited version of the first release, and the other was a standard release created by a section of the Florida Bar.

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Florida allows parties to utilize arbitration to bypass the civil court system. If two parties agree through a formal contract, they can use an arbitrator to decide any conflict that arises during the course of their relationship. The decision by an arbitrator would be as binding as if a decision were rendered through the state’s system. This month, the state’s Fifth District Court of Appeal assessed an arbitration agreement at a health and rehabilitation center following the death of a resident.

The deceased entered the defendant facility in 2015, when her daughter and power of attorney signed an admission agreement that included an arbitration agreement. This agreement stated the parties would use arbitration to settle any disputes, waiving the right to resolve the matter in residential carea court of law. The resident died a little over a month after her admission, and the estate filed a Florida wrongful death case. The estate specifically alleged the center failed to comply with the Florida Nursing Home Resident’s Rights Act. The center moved to compel arbitration, per the agreement, but the estate responded by claiming the agreement signed was void.

The estate first argued the arbitration agreement was void because it required the application of the Alabama Rules of Evidence, even though the center was in Florida and required the application of Florida’s laws of remedies, evidentiary burden of proof, and substantive law. The estate asserted this wrongly limits the ability to recover compensatory damages because Alabama limits recovery for wrongful death to punitive damages. The estate then pointed to the required application of the Alabama Rules of Civil Procedure to pre-hearing discovery, which also incorrectly limited the estate’s discovery to omissions or negligent acts identified at the beginning of the lawsuit. The trial court agreed with the estate and found the agreement was void and against public policy. The court found the provisions could not be severed from the agreement because it would create confusion about which rules of evidence to apply. The center appealed.

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Before a trial, there are many instances of communication that occur between the injured party and the defendant’s auto insurer. Sometimes a defendant’s insurer will offer to provide the Personal Injury Protection (PIP) Benefits or an amount within the policy limits early in the negotiating phase of the process. These settlement agreements often come with language requiring the party accepting funds to waive their right to pursue a civil action related to the matter at hand. A recent Third District Court of Appeal decision (No. 3d17-891) covers the considerations an party injured in a Florida car accident should make when discussing a settlement.

In this lawsuit, a party injured in a car accident filed suit against the policy holder. The defendant’s auto insurer sought permission to intervene so that it could seek enforcement of a settlement agreement it believed Desk fileshad been reached between the injured person and the defendant before a personal injury action was filed. The plaintiff was injured on December 24, 2013, treated at a hospital, and discharged in January. Soon afterward, the defendant’s auto insurer sent a letter to the injured person’s counsel, offering to provide the $10,000 bodily injury policy limit to settle the claim against the insured. The letter included a check and a standard release payable to the injured person, his attorney, and the treating hospital. The insurer provided an explanation for its inclusion of the hospital, stating it noticed a lien for the provided medical services. The injured person and his counsel did not respond, nor did they cash the check.

In the following year, the injured person retained a new attorney, who notified the insurer he was the counsel of record and presented a demand for the full policy limits. The attorney requested a settlement draft to his office by the end of the month, and the insurer indicated its willingness to comply and accept modifications to the letter. Another letter was sent, similar to the first one, with a check payable to the injured person, the attorney, and the hospital. The new attorney believed the payment to be a counteroffer, since it included the hospital as a joint payee, and rejected the settlement payment. The insurer and attorney continued to exchange communications, debating about whether or not a settlement had been reached. The insurer issued two more checks with the hospital removed as a co-payee. The injured person rejected both payments. The insurer then filed a motion to enforce the settlement. The matter was heard, and the insurer’s motion was granted to dismiss the lawsuit against the at-fault driver with prejudice, subject to the terms of the settlement agreement. The injured person appealed.

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A Florida personal injury judgment against an aesthetician and a spa was recently upheld by the Fourth District Court of Appeal. In Case No. 4D16-2530, a woman was injured after a facial at a spa went very wrong. The injured customer filled out a form advising she had the skin condition rosacea, which is a chronic inflammation of the face. Prior to the treatment at the spa, the condition was mild with only a rosy flush in Covered faceher cheeks. The aesthetician performing the facial admitted she did not read the form before the procedure, and if she had been aware of the condition, she would have used a different product or performed a test on a part of her face.

The plaintiff stated her face felt like it was burning during the procedure and continued to burn afterward. The injured woman’s face oozed and remained bright red. During the trial, the injured woman’s face was bumpy and easily turned red whenever the temperature increased or she was out in the sun. The pattern of bumps and redness were in the exact shape of the burn to her face. The woman testified at trial that before the injury, she had smooth skin and never wore makeup. After the incident, people would inquire if she was all right any time her face became red, asking what was wrong. The plaintiff stated that she now has to wear makeup to feel comfortable in public, and she has become more shy and awkward as a result of her appearance.

At trial, the injured woman presented several expert witnesses to the jury to help document the history and worsening of her skin condition. Her treating dermatologist related that her condition was mild and had been improving prior to the facial. Following the peel, he diagnosed her with severe irritant contact dermatitis, prescribing an antibiotic cream. The dermatologist tracked the continued inflammation and hyper-pigmentation in the months after the peel. A plastic surgeon also testified, describing his examination of the plaintiff after the chemical peel. He stated that her face had been permanently damaged because the peel removed the skin’s protective barrier. He opined that the disfigurement and scarring were permanent and that she’d need a lifetime of dermatological care to control the outbreaks of her skin. He stated she could never return to her appearance before the peel.

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When you file a Florida wrongful death action, the allegations themselves must meet certain criteria set by statutes and case law. The defending party must have notice of the allegations against them in order to appropriately prepare a defense for themselves. The allegations are all written in a complaint, which is filed with the civil court that has jurisdiction over the matter. These complaints must dictate a cause of action supported by law.

The Second District recently reviewed the dismissal of a complaint in Case No. 2D16-3615, filed by the Internal machinerypersonal representative of an estate against a hospital with allegations of vicarious liability, breach of a non-delegable duty, and negligence. The representative filed suit against several doctors and health care providers under the theory the deceased died from complications following a surgery at the defendant hospital to repair a hernia and succeeding procedures provided by other physicians at other hospitals. The trial court dismissed the case against the hospital where the first procedure was performed, and the estate appealed.

The deceased sought care from the defendant hospital, undergoing a procedure to repair his paraesophageal hernia. The surgeon used a surgical robot provided by the defendant hospital. During the operation, a part of the robot detached and became embedded in the deceased’s esophagus, causing complications to his health over the following months and years. An exploratory procedure was performed at a different facility three years later to assess the cause of the worsening symptoms. This was ultimately unsuccessful. Another exploratory surgery was performed at the same hospital, where the deceased’s vena cava vein was ruptured, leading to a large loss of blood, a heart attack, and finally his death. An autopsy revealed a small coil around the gastroesophageal junction, leading the representative to believe a part of the robot was left inside the patient at the original operation. The representative additionally alleged the foreign object last was seen at a CT scan prior to the second surgery.

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In Florida, an injured car accident victim can only recover future medical expenses if the care and cost are “reasonably certain” to be incurred. This is accomplished by meeting her burden to provide the fact finder with competent, substantial evidence that future medical expenses are more likely than not to be incurred. An injured party often uses treating physicians and medical administrative staff to relate the need for care and the cost of care. The Fifth District recently reviewed these types of damages in Case No. 5D16-533, in which a Gavel Restingjury awarded a large sum of money for several past and future intangible damages to a woman seriously injured in a Florida car accident, including $250,000 worth of future medical expenses.

The defendant driver appealed, and the court affirmed most of the verdict in favor of the injured woman, but it ordered a new trial or adjustment to the amount of damages, known as remittitur. The court emphasized that past medical expenses by themselves are not enough for a jury to use to calculate future medical expenses. In this lawsuit, the $5,365 for surgery was uncontested. The only testimony provided was about the previous medical bills and household goods and services used before the accident. The appellate court found this to be insufficient to meet the standards established by Florida case law precedent, and it reversed the award. The court allowed the parties to either enter a remittitur under section 768.043 of the Florida Statutes or be granted a new trial for the sole issue of the loss of future economic damages.

The Fifth District also assessed the collateral damages in Case No. 5D17-575 following a jury verdict in favor of a woman who was injured in a rear-end car accident case. The injured woman suffered shoulder, neck, knee, and low back pain as well as depression as a result of her injuries. The injured woman alleged she was unable to work due to her injuries, therefore losing a lot of income and the ability to earn income in the future. The defendant driver conceded fault but challenged the cause of the alleged injuries by the plaintiff and their respective costs. The jury returned a verdict awarding $50,000 for past medical expenses, $25,000 for future medical expenses, and $50,000 for past lost earnings. The jury declined to award any damages for future lost earnings.

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Personal injury litigation involves a lot of strategic anticipation. Even if a plaintiff is successful at trial, a defendant can ask for an adjustment, arguing the evidence did not support the amount of of damages awarded to the injured person. A Florida District Court of Appeal recently assessed a trial court’s refusal to grant Rear-ended carremittitur for a jury verdict awarding $100,000 for future medical expenses in an underinsured motorist (UM) car accident case.

The plaintiff was injured after a Florida car accident with an underinsured motorist. Even though the other driver admitted fault, her own insurance company refused to provide the requested UM coverage from the injured woman’s policy, arguing the alleged injury was not necessarily caused by the accident. The injured woman filed suit against her insurer for the benefits, and the jury awarded her $685,800, which included $158,000 for past medical expenses and $100,000 for future medical costs.

On appeal, the insurer argued the expert’s testimony was not properly disclosed prior to trial, that a treating physician should not have been able to testify as to why he referred the injured woman to a neurosurgeon, and that the comments made by the injured woman’s counsel during closing arguments were unfairly prejudicial. Upon review, the Court of Appeal did not find the trial court to have abused its discretion and affirmed the lower court’s rulings. However, the appellate court found the refusal to grant remittitur to be problematic.

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Expert witnesses help the finders of fact understand complex concepts in a personal injury action. In order to successfully be awarded damages, an injured person must connect the injury to the requested amount. An expert must be qualified to testify as a matter of law, and they may also be scrutinized by the jury and the court. Verdicts can be set aside if a judge concludes a jury could not have rightly entered a verdict in favor of the plaintiff based on the evidence presented.  hospital roomThis is seen in a recent Florida wrongful death appeal, No. 3D16-600.

The estate filed suit against the nursing home that provided the decedent care toward the end of her life. The estate asked for $400,000 for pain and suffering, as well as nearly $91,000 for funeral and medical expenses. The jury found for the estate but only awarded $5,000 in medical expenses and $1,133 for funeral costs. The trial court set aside this award and entered a verdict in favor of the defendant nursing home. The estate appealed.

The appellate court’s majority focused on the expert testimony offered by the plaintiff to help explain the decedent’s medical condition. The physician was an expert in family medicine but did not provide care to the decedent during her life. He provided opinions solely based on a review of her medical records, but many of the ones surrounding larger issues were contradicted by the records he used to form the opinions. The appellate court concluded the central issue was whether or not the expert witness had sufficient evidentiary weight to be submitted to the jury.

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