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Florida Injury Lawsuits are Now Much Tougher With Daubert Standard

Ansara Law Personal Injury Attorneys — Sun, 16 Jun 2019 03:37:37 GMT

The Florida Supreme Court just raised the bar on allowable scientific evidence with its nixing of the longstanding Frye test in favor of the more rigid Daubert, the latter followed by federal courts as well as those in most other states. This will mean additional hurdles, expense and time delays for plaintiffs in Florida injury lawsuits – particularly in cases of medical malpractice and product liability, which either require and/or rely heavily on expert witness testimony.

Last month’s divided ruling of In re: Amendments to the Florida Evidence Code, came as something of a shock to courts and South Florida injury attorneys, given that the state high court had ruled on this very matter in October – and came down firmly on the other side. Justices in the majority cited serious constitutional concerns and procedural issues.

Now, the majority has ruled those “grave concerns” for constitutional rights and procedure were “unfounded.”

Give that legal precedent is inherently slow by design and this was an abrupt reversal of the court’s own ruling took many by surprise. Although these evidence standards are applicable to expert witnesses for both sides, the truth is that because prosecutors/plaintiffs bear the proof burden, it is the defense that benefits most from Daubert.

Why Did Florida Flip-Flop on Frye?

For 70 years starting in 1923, the Frye test was considered the national standard for filtering “junk science” from submitted evidence. Precedent began with the U.S. Supreme Court’s ruling in Frye v. U.S, and was pretty much universal by the 1970s.

The Frye precedent was set with the U.S. Supreme Court’s ruling in Frye v. U.S. as a means to prevent the admission of “junk science.” (At issue in that criminal case was the lower court’s refusal to allow the defendant to help prove his innocence through what was basically an early version of the lie detector test.) The court held that in order for scientific evidence/expert witness testimony to be admitted, it had to be sufficiently based on established science and generally accepted among relevant scientific communities.

But in the ensuing decades, as technology, medicine and other sciences advanced, many began to argue the Frye test was far too simplistic.

In 1993, the U.S. Supreme Court weighed a case of alleged product liability against a drug company whose medication reportedly caused severe birth defects in two siblings. That case was Daubert v. Merrell Dow Pharmaceuticals, Inc.. The high court offered a more intensive, three-part analysis for determining admissibility of scientific evidence, establishing the judge as the gatekeeper and asking whether the evidence/testimony is backed by a breadth of objective fact, whether it’s relevant and uses scientific methods and principles and whether these recognized methods were appropriately applied to the facts of the case.

Soon after, the court approved Rule 702 of the Federal Rules of Evidence, which made Daubert the new standard in both criminal and injury litigation, and many (but not all) states fell in line soon thereafter. Florida, along with about a dozen others, stuck with the more lenient standard.

Twenty years after Daubert was established, state lawmakers in Florida passed (and then-governor signed) a bill amending the Florida Evidence Code used by state courts to adopt Daubert. This caused confusion when the Florida Supreme court deemed this an overreach by the executive and legislative branches. Citing constitutional concerns, they affirmed Frye as the standard for expert witness vetting in Florida and did so again just last year.

The change comes about almost certainly because the political makeup of the court appointments by Gov. Ron DeSantis, tipping the court’s ideology conservative and prompting a second look at their most recent case, DeLisle v. Crane Co., wherein the court held the previous “grave constitutional constitutional concerns” cited by the now-retired justices were “unfounded.”

DeLisle v. Crane Co., holding in October the case didn’t present proper controversy for them to consider Daubert’s constitutionality and Frye was the appropriate evidence standard in Florida.

Why Civil Injury Case Lawyers Loathe Daubert

Important to note: More lenient doesn’t mean less effective. In fact, there are many Fort Lauderdale personal injury lawyers – especially those practicing medical malpractice, product liability and wrongful death – who argue Daubert is the least effective of the two. It is time-consuming, requires a mini-trial before the trial – sometimes immediately preceding the trial.

Daubert cases tend to experience more delays, consume more resources and are harder to win. If the defense raises a Daubert challenge, most plaintiff attorneys won’t try to wing it with an expert on a conference call during the evidentiary hearing. They’ll want them present. These challenges also require additional preparation time for the witness, an expenses passed on the client.

Even when a case isn’t likely to go to trial, concern of a successful Daubert defense challenge might compel some lawyers into settling a case for less than it’s worth.

If you are seriously injured in Florida, it is imperative now more than ever to carefully choose an attorney with the experience and resources to successfully fight for your rights.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

In re: Amendments to the Florida Evidence Code, May 15, 2019, U.S. Supreme Court

Excessive Dose Medical Malpractice Alleged in Hospital Wrongful Death Claims

Ansara Law Personal Injury Attorneys — Thu, 28 Feb 2019 03:02:47 GMT

Florida wrongful death lawsuits stemming from suspected medical malpractice by way of excessive medication doses are more common than we’d like to believe. Fort Lauderdale medical malpractice attorneys know that medical errors like these can result from ineffective charting procedures, inadequate oversight, poor staff training or staffers simply making an error and not following protocol.

A study by Johns Hopkins University found that more a quarter of a million people in the U.S. die every year as a result of medical errors, and medical researchers said the actual figure could be as high as 440,000. Even the low estimate puts it at No. 3 for leading cause of death, behind heart disease and cancer. Medication overdose is what killed a two-year-old child in 2006 after an area pharmacist accidentally gave the child 20 times the recommended dose of sodium chloride. It was the girl’s last chemotherapy visit. She died three days later in Cleveland, Ohio. The pharmacist later served six months in jail for involuntary manslaughter.

Now in that same state, different hospital system, an intensive care doctor has been fired and nearly two dozen other employees have been placed on leave, including pharmacists and nurses. The Associated Press reports it all stemmed from the doctor who ordered dozens of patients be given potentially lethal doses of pain medication over the course of several years. Doses for another half a dozen patients were reportedly larger than necessary to simply provide comfort for the patients, but probably isn’t what caused their deaths.more

Medical malpractice wrongful death attorneys know one of the questions authorities are examining is whether the doctor was ordering these larger-than-necessary doses of medications with intent (possibly to illegally/without the family’s knowledge?) and also whether nurses, pharmacists and other health care professionals failed to acknowledge the safeguards for approving and administering medication.

Family members for at least 16 of those former patients have filed wrongful death lawsuits alleging medical malpractice, with some complaints raising questions as to whether staffers improperly ordered/administered the drugs in an effort to hasten patients’ deaths absent their knowledge. For example in on instance, a 67-year-old was allegedly given a deadly dose of fentanyl, ordered by the doctor in question, administered by a nurse in July 2016.

In another case, plaintiffs say the chief pharmacy officer for the unit knew employees were prescribing, approving and administering medications that were excessive, yet the pharmacy officer did nothing to intervene. In that case, representative of decedent’s estate reported the patient, an 82-year-old woman, was given a dose of pain medication that was excessive and as a result died just minutes later.

Although these cases took place out-of-state, Fort Lauderdale wrongful death attorneys know they underscore how a single physician or lack of oversight procedures can potentially cause significant harm. An analysis published in 2016 in the Journal of Community Hospital Internal Medicine Perspectives noted adverse drug events account for more than 3.5 million doctor visits and 1 million emergency room visits a year. Preventable medication errors reportedly impact 7 million patients and cost roughly $21 billion, with nearly one-third of patients hospitalized having at least one discrepancy in discharge medication reconciliation.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Hospital tightens drug access, rules after excessive dosages, Feb. 12, 2019, By Katele Franko, Associated Press

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Florida Jury Awards Nearly $500M for Wrongful Death in Shooting, Feb. 23, 2019, Fort Lauderdale Wrongful Death Attorney Blog

Florida Cruise Zipline Excursion Ends in Injury, Death

Ansara Law Personal Injury Attorneys — Sun, 13 Jan 2019 19:41:54 GMT

Following several tourist injuries and at least one death, a Bahamian-headquartered cruise line docking in the Port of Miami is being sued by multiple plaintiffs who say they encountered an unreasonable risk of danger at an on-shore zip line excursion in Honduras. As with many excursions advertised by large cruise lines, this one was offered by a third-party independent contractor. However, plaintiffs allege firstly they were misled in marketing materials to believe the cruise line itself was the operator. Furthermore, these tourists say the cruise company should have known the zip line excursion wasn’t safe because numerous cruise ship guests suffered tourist injuries on it. Miami tourist injury attorneys know that if they can prove both of these elements, they may have a decent shot at recovering damages for their injuries.

In July, a newlywed groom on that zip line crashed into his brand new bride, suffering serious injuries that proved fatal. The Miami New Times reports that prior to that incident, there were at least 10 people who sustained severe injuries while on the excursion facilitated by Royal Caribbean, which received complaints after each incident.

Zip lining is arguably one of those recreational activities, such as rock climbing or mountain biking or snow skiing, that by their very nature present some sort of risk of an accident or injury. Defendants will often argue the “assumption of risk” doctrine, meaning they assumed the inherent risk when they chose to do that activity anyway. Such assertions can be especially bolstered if the claimant signed a waiver of liability. Such waivers don’t completely shield defendants from liability (particularly for gross negligence), but they can be useful for the defense. However, in the case of this Honduran-based excursion, the numerous federal lawsuits indicate a pattern of problems that went beyond what one might assume while zip lining. Rather, the allegations are that this particular zip lining excursion was especially dangerous – even for zip lining – and that Royal Caribbean knew about it yet failed to protect future guests from being hurt either by terminating their contract with the zip lining company or warning guests of the potential dangers or prior accidents.

Among the examples complied by news reporters in Miami:

On New Year’s Day 2014, a Texas woman reported 15 people were trapped and injured on the zip line when guides failed to communicate with each other to stop more people from being sent down the line after an 11-year-old child got stuck. Group after group crashed into each other. Those on the line were trapped there for 30 minutes, suspended at the highest point, even as the cable began to sag. Guests suffered broken rips, bloody lips and other injuries.
Later that year, a woman reported to the cruise line she and her husband were on the zip line, unable to stop and struck the platform at the other end with a high rate of speed.
A month after that incident, another guest informed the cruise line she and her daughter were injured when the brake on the line failed, causing her to crash into the platform.
In 2015, a man and his family were injured on the zip line after the guides reportedly allowed too many guests on it at once, allegedly without communicating with one another. He, his wife and son were injured first when they slammed into the three people in front of them and then again after three more people crashed into them from behind.
That same year, a 59-year-old woman suffered serious leg injuries that exposed her shinbone and had to undergo emergency surgery in Honduras after crashing into a platform that was not padded. She was later flown to a trauma hospital in Texas, and continues to suffer scars and disability.

The tour guides reported back to the cruise line that these injuries were all the result of rider error, mainly because riders weren’t following guide-issued instructions.

Then this summer, the honeymooning couple decided to take the excursion, neither receiving any warning of potential danger from the cruise line or the zip line company. The pair crashed into each other, the impact killing the 24-year-old groom and seriously injuring his 27-year-old bride. The latter is now pursuing wrongful death and personal injury lawsuits against both the cruise line and the contractor, seeking $1 million or more in damages.

Zip lining is generally considered a relatively safe activity, but it has been known to result in injury, which is why it’s imperative that operators follow all proper safety protocol in harnessing and operation. Earlier this year, a jury in Oregon awarded $315,000 to a 20-year-old woman who was just 17 when a seriously injured in an accident at a friend’s house on a homemade zip line lacking key safety features (seat and harness). She suffered two broken wrists and five broken vertebrae when she fell, according to The Oregonian.

If you are injured in a Florida zip line accident – or any incident while a guest on a cruise ship – contact our experienced Miami tourist injury lawyers.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Royal Caribbean Knew Zipline Company Was Dangerous Long Before a Newlywed Was Tragically Killed, Dec. 27, 2018, By Meg O’Connor, Miami New Times

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When Your Florida DUI Injury Lawsuit Conflicts With Criminal Proceedings

Ansara Law Personal Injury Attorneys — Sun, 04 Nov 2018 15:40:56 GMT

When a Florida drunk driver causes serious injury to his or her passengers, occupants of other vehicles or non-occupants, such as pedestrians and bicyclists, it is likely that driver will be named as a defendant in both a criminal and civil case. As Florida DUI injury lawyers at The Ansara Law Firm can explain, these are two totally different processes in different courts pursued for different purposes. However, that does not mean one will have no impact on the other. One of the most notable is the issue of compelling defendant’s testimony in a civil lawsuit, which then becomes public record that can be used against him or her in the pending criminal case. But of course, the Fifth Amendment to the U.S. Constitution gives those accused of criminal wrongdoing the right to remain silent to avoid self-incrimination. That silence and refusal to answer questions cannot be used against them for the jury to infer wrongdoing.

Courts in Florida have held that defendants in wrongful death lawsuits can invoke their Fifth Amendment right during the civil litigation process if compelling that testimony could potentially amount to self-incrimination in the pending criminal case. However, as noted in the 1976 U.S. Supreme Court decision in Baxter v. Palmgiano, the Fifth Amendment doesn’t guarantee negative inferences against a defendant in a civil lawsuit when they refuse to answer pertinent questions regarding the evidence against them. This doesn’t mean the judge or jury in the civil DUI injury lawsuit can simply point to defendant’s refusal to answer questions and declare that alone as basis for a decision in plaintiff’s favor. However, the court is entitled to draw inferences against a defendant who chooses to invoke the Fifth Amendment right to silence. In U.S. ex rel. Bilokumsky v. Tod in 1923, the U.S. Supreme Court ruled that, “silence is often evidence of the most persuasive character.”

Fort Lauderdale DUI injury lawyers can use this to their advantage in drunk driving civil litigation. How Long Does a DUI Injury Defendant’s Right to “Plead the Fifth” Last?

The supreme court in Alaska recently dealt with this issue in the case of Graham v. Durr. In that case, defendant struck and killed two pedestrians after losing control of his vehicle. He was arrested two counts each of second-degree murder and manslaughter and one count DUI.

Months later, the families of those pedestrians filed DUI wrongful death lawsuits against both the driver and his employer. Defendant refused to respond to a portion of plaintiff’s complaint, asserting his Fifth Amendment right to remain silent. Soon thereafter in the criminal case, he pleaded guilty to the second-degree murder charges in a negotiated plea deal with prosecutors. He then did provide the civil lawsuit plaintiffs with initial disclosures, but still refused to provide the factual basis of his defense or the identity of those possibly responsible, again invoking the 5th Amendment. He was sentenced in the criminal lawsuit and, as plaintiff would later point out, participated in an interview with a probation officer wherein he admitted he caused the crash, submitted oral and written statements in that presentence report and expressed remorse at his sentencing hearing. He was sentenced to 32 years in prison.

A few months later, defendant filed a notice of appeal in the criminal case, arguing the judge made several evidentiary mistakes and his sentence was excessive. He requested his sentence be vacated and the matter remanded for resentencing. Around this time, plaintiffs sent a list of questions they wanted answered for the civil case discovery process. Defendant refused, citing his pending appeal and Fifth Amendment privilege. His attorney asked plaintiffs whether they would prefer to proceed with the deposition of defendant – knowing he would not answer key questions – or postpone it until the criminal case had played out entirely. That deposition didn’t happen.

Another discovery request sent by another plaintiff was again rejected on the basis of the 5th Amendment. That plaintiff moved to compel defendant to participate in discovery and refuse his privilege against self-incrimination as an excuse not to answer key questions. Plaintiffs argued that, No. 1, plaintiff wasn’t appealing a finding of guilt in the criminal case, only the sentencing. They noted that in Alaska, a defendant who is resentenced cannot receive a sentence that is more than the original. They argued defendant waived his right to plead the Fifth when he made statements of guilt at the sentencing hearing, and that even if he did retain his Fifth Amendment privilege, he should be compelled to testify anyway because there was no risk he’d be placing himself at greater risk in the criminal case appeal. Defendant argued he retained his Fifth Amendment right until his appeals were exhausted and he’d had a chance to seek all post-conviction relief.

The Alaska Supreme Court sided with defendant, at least with regard to retaining his right to silence until the appeals process was over. It declined to make a decision with regard to whether he was entitled to it until he had explored all post-conviction relief avenues, saying that issue wasn’t ripe.

Although this ruling has no direct impact on Florida DUI injury lawsuits, it is quite possible that if and when confronted with a similar conflict, the supreme court in Florida will look to the precedent set by sister courts in other states.

Call Fort Lauderdale DUI Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Graham v. Durr, Oct. 26, 2018, Alaska Supreme Court

More Blog Entries:

Appeals Court Backs Florida Injury Lawsuit Plaintiff, Ruling General Negligence, Not Medical Malpractice, Oct. 30, 2018, Fort Lauderdale DUI Injury Lawyer Blog

Blood-Alcohol of Pedestrian in Accident Allowable as Evidence in Wrongful Death Lawsuit

Ansara Law Personal Injury Attorneys — Wed, 11 Oct 2017 19:58:52 GMT

It’s estimated that nearly 50 percent of all pedestrian accidents involve some type of alcohol use – either by the motorist or the pedestrian. This can become a point of contention in an injury lawsuit because evidence of impairment – even if it’s not an illegal, given the circumstances – can still be used to discredit a witness or to show a person at-fault or at least comparatively at-fault. However, the mere fact of impairment – even if it’s against the law – does not decide liability in a civil case. That’s why even civil cases involving drunk drivers aren’t a shoe-in.

In Florida, a finding of comparative fault (meaning plaintiff shares some of the blame for what happened) will not prohibit a plaintiff from pursuing the case or from collecting damages. However, per F.S. 768.81, Florida’s comparative fault law, it will proportionately reduce the amount of damages to which one is entitled. So for instance, if a plaintiff is deemed 30 percent at fault and defendant 70 percent at fault, plaintiff will only be able to collect damages on that 70 percent.

In a recent pedestrian accident case out of Pennsylvania, a major sticking point was whether evidence of a decedent pedestrian’s blood-alcohol level was rightly allowed into evidence by the trial court, or whether it was unfairly prejudicial an inadmissible absent any other independent corroborating evidence.

The trial court ruled this issue was well within the discretion of the trial court.

The important takeaway here is that just because one may not be considered the “perfect plaintiff,” they shouldn’t allow this to discourage them from consulting with an experienced personal injury attorney. Yes, there may be some additional hurdles to overcome, but that does not mean these are insurmountable. Initial consultations are always free, so it’s worth the phone call.

In this particular case, plaintiff was the mother of a man who was struck and killed by a vehicle on a four lane road in Philadelphia. Defendant admitted she did not see the pedestrian before the impact. He was transported to a nearby hospital with severe injuries and pronounced dead. A medical examiner shortly thereafter conducted an autopsy and concluded the man’s blood alcohol concentration to be at 0.313. To put that into context, a person who is driving is deemed legally drunk with a BAC of 0.08. However, this man was not behind the wheel.

It was not known where pedestrian had been prior to the crash and there were not witnesses who could attest to his condition or behavior, either earlier that evening or just before the crash. The police report made no mention that he appeared to be intoxicated or that his apparent intoxication was a factor in the crash.

Decedent’s mother filed a wrongful death lawsuit against the driver, alleging negligence resulting in the accident that caused her son’s death. She sought a motion to preclude any evidence of alcohol in decedent’s system, asserting it was irrelevant, didn’t have the necessary corroboration and would unduly prejudice the jurors. Trial court denied that motion. At trial, jurors determined driver was negligent, but that her negligence was not the cause of decedent’s death.

On appeal, decedent’s mother argued the trial court wrongly admitted the BAC evidence. The majority in the Pennsylvania Supreme Court, however, ruled this decision was appropriately within the trial court’s discretion, which was not abused.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Coughlin v. Massaquoi, Sept. 28, 2017, Pennsylvania Supreme Court

More Blog Entries:

Court: Designated Driver Not Bound by Higher Standard of Care, Sept. 12, 2017, Fort Lauderdale Pedestrian Accident Attorney Blog

Holding Bars Liable for Contractors’ Drunk Driving

Ansara Law Personal Injury Attorneys — Thu, 28 Sep 2017 16:35:55 GMT

As far as dram shop laws go, Florida’s is pretty weak. It’s not that F.S. 768.125 isn’t worth considering in your drunk driving accident claim, but it can only be applied in limited circumstances. A dram shop law is one that allows claimants to hold a bar or liquor license holder accountable for failure to prevent a patron from becoming inebriated before getting behind the wheel and seriously injuring himself or others.

The circumstances under which drunk driving accident victims in Fort Lauderdale can assert a dram shop claim are when:

The driver was served alcohol, despite being under the legal age of 21.
The bar staff knew or should have known driver was a habitual alcoholic, and yet continued to serve him drinks anyway.

Those are some pretty narrow circumstances. But these can be interpreted differently by different courts, and laws can certainly evolve too.

Take for example a case recently weighed by the Ohio Supreme Court. According to court records, plaintiff was severely injured in a crash where she was a passenger in a vehicle struck by an allegedly impaired driver.

According to court records, that other driver was an exotic dancer at a local strip club – an independent contractor – who reportedly consumed cocaine and several beers during her shift that night. Defendant driver confessed to officer she was intoxicated.

Evidence revealed that it was not unusual for dancers and other workers at the club to consume alcohol during the course of their shift. Dancers weren’t required to drink on-the-clock, but they were encouraged to do so when customers (who were also urged) were paying the tab. The bar charged a higher price for drinks purchased specifically to give to the dancers. Most of the club’s profits were derived from alcohol sales – about 40 percent of which were drinks paid for by customers for the dancers. The club had no limits on how many drinks dancers could receive. Although the club had a policy to arrange for a sober driver for dancers who were too intoxicated, there is scant evidence management ever actually did this.

Plaintiffs filed a dram shop lawsuit against both the driver and the club, alleging violation of that state’s dram shop law. The court entered a default judgment in favor of club owner, whom it was held could not be personally liable under state dram shop laws. The dram shop case against the club went to a jury, which decided the case in favor of drunk driving victim for more than $2.8 million.

Plaintiff appealed the directed verdict in favor of club owner personally.

The appellate court then reversed the judgment against the club on the issue of common law negligence, which rendered the fact of club owner’s liability moot. The state supreme court agreed, affirming the appellate court’s reversal. The court noted that while dram shop liability still holds even if the driver doesn’t personally buy the drinks (i.e., they were purchased by someone else), the bar can still be liable.

Plaintiff argued the law disallows establishments from serving alcohol to intoxicated patrons – and because she was an independent contractor and not a patron, so she shouldn’t be bound by limitations on the permit holder’s liability. She noted courts and legislators repeatedly used the term “patrons” when drafting and interpreting the content.

The state supreme court, however, held the use of the word “patron” was not intended to be limiting to that class of persons, and therefore the limitations of the act apply and club owner and club could not be held accountable.

If you are injured in a drunk driving crash in Fort Lauderdale, let us help you weigh all your legal options.

Additional Resources:

Johnson v. Montgomery, Sept. 6, 2017, Ohio Supreme Court

More Blog Entries:

4th DCA Reverses $3.6M Liability Award in Death of Pregnant Woman, Unborn Child, July 22, 2017, Broward Wrongful Death Lawyer Blog

Homeowner Had No Duty to Protect Child From Drowning Where Relative Assumed Supervision

Ansara Law Personal Injury Attorneys — Fri, 11 Aug 2017 18:35:40 GMT

Florida has the highest child drowning rate in the country, with the Florida Department of Health reporting enough children under 5 die this way every year to fill three preschool classrooms. Not only is it devastating, it’s infuriating because virtually every one of these instances is preventable. This is not to say anyone intends for this outcome, but there simple precautions go a long way.

Many of these incidents occur when there are many people around, such as family gatherings or holiday celebrations. Often it comes down to a miscommunication between adults who are supposed to be supervising the child. Property owners can be held accountable in some cases on the theory of premises liability or negligent supervision. However, it will come down to the individual facts of the case. If there is no defect in the pool, it often comes down to negligent supervision. If a homeowner assumes responsibility for supervision of young swimmers and then breaches that duty, he or she may be held liable. However, if another guest steps in an assumes that responsibility, the homeowner may no longer have a duty of care to supervise.

This was the case recently in a wrongful death lawsuit brought by the father of a young boy who drowned in a backyard pool at a family gathering.more

According to court records, the 5-year-old child had come to the party with his mother, and neither he nor his mother knew how to swim, though she did not bring a flotation device with her. When the child and his mother first arrived, one of the homeowners agreed to watch the child as he splashed around in the wading area of the pool, which was separated from the main pool by a nine-inch rock wall. When the child’s grandfather – a city fire department captain – arrived at the gathering, he told the homeowner he would take over watching the child. He later testified he never turned that responsibility over to anyone else.

When the boy’s mother saw the homeowner whom she had entrusted to watch the child in the house, she did not ask who was watching her son because she assumed another adult had taken over. The boy’s grandfather allowed him to play in the shallow end of the pool. At some point, the grandfather lost sight of the boy. An older girl reportedly held the boy and played in the deep end – with the approval of his grandfather – but it’s not clear at what point she and his grandfather lost sight of them. Suddenly, someone spotted the boy being in face down at the bottom of the pool. Adults pulled him out, but resuscitation efforts were unsuccessful and the boy died.

In plaintiff’s lawsuit, it was alleged defendant homeowners made modifications to the pool that turned the color of the water dark, thus making it difficult to see under the surface. Further, plaintiff alleged no flotation devices were provided to guests.

Trial court granted summary judgment to defendant, finding homeowners owed no duty of care because decedent’s grandfather had specifically overtaken supervisory duties for the child, and there was no evidence that any condition of the pool was dangerous or that these conditions caused the boy’s death.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Taylor v. Trimble, July 27, 2017, California Court of Appeal, Second Appellate District, Division Four

More Blog Entries:

Fair Injury Risk Underscored by Fatal Accident During Peak Fair Season, Aug. 2, 2017, Fort Lauderdale Wrongful Death Lawyer Blog

GOP Tort Reform Bills Targets Medical Malpractice Lawsuits, Injury Claims

Ansara Law Personal Injury Attorneys — Sun, 30 Apr 2017 13:34:24 GMT

Proponents of tort reform are seizing on their opportunity with a GOP-controlled Congress to push forward with a series of measures that would make it harder to win medical malpractice and personal injury lawsuits, as well as to obtain just compensation.

As The New York Times reported, one of those measures would impose new limits on lawsuits involving care that is covered by Medicare, Medicaid or private health insurance subsidized by the Affordable Care Act, with some limits applying to product liability claims as well as medical malpractice litigation involving physicians, hospitals and nursing homes. In effect, it is lower income and older people who would find it the most difficult to win lawsuits for injuries caused by defective drugs, defective medical devices or negligent medical care. This bill is part of the plan to replace the Affordable Care Act.

Proponents of the measure say it is a necessary means to lower the number of “frivolous lawsuits” that drive up health care costs for everyone else. Of course, this assertion has been disproven time and again. Take for example the Florida Supreme Court’s decision in 2014 rejecting a 2003 medical malpractice law and lambasting the legislature for manufacturing an alleged medical malpractice crisis that didn’t exist to pass unnecessary tort reform. In a 5-2 ruling, the court suggested lawmakers created the crisis to cap damages on medical malpractice cases, which saves a modest amount of money for many at a “devastating” cost on a few – namely those who have suffered the most severe and egregious injuries due to medical negligence or defective medical products. The law was ultimately deemed unconstitutional under the state’s equal protection clause.

The new federal bill would allow doctors to decrease their use of diagnostic tests and services to combat so-called “defensive medicine,” which they allege drives up the cost of care. However, opponents of the bill note that it would deny full recovery of damages to victims of medical malpractice, including those who had suffered an egregious medical error, such as when an object is left inside a patient’s body during surgery or when surgery is conducted on the wrong body part. Even in those cases, the bill would limit damage recovery to $250,000 in non-economic damages (which includes damages for pain and suffering).

In addition, another measure coined the “Fairness in Class Action Litigation Act” would allow class-action lawsuits to continue in federal court only if every person in the class presented the same type and scope of injury.

And yet another law, called the Lawsuit Abuse Reduction Act, would mandate federal judges impose sanctions on attorneys whose lawsuits are later deemed to be frivolous. As our Fort Lauderdale personal injury attorneys can explain, the effect could be chilling. Attorneys would be reticent to bring even valid claims with the threat of sanctions looming over them.

There has been criticism that that proponents of tort reform measures (which in years past had failed to gain much traction) are now moving at lightning speed through the House – without congressional hearings. Even some Republicans have been critical of this fact, citing a lack of transparency in the process as troubling.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

House GOP quietly advances key elements of tort reform, March 9, 2017, By Kimberly Kindy, The Washington Post

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Cyclist Injury Results in $4.85M Settlement, March 16, 2017, Personal Injury Attorney Blog