South Florida Injury Attorneys Blog

March 18, 2015

Florida Third District Court of Appeal Limits Access to Plaintiff’s Expert Witness

During the discovery process, the sharing of information is considered normal, if not the entire purpose of the endeavor. Indeed, the exchange of evidence often promotes bringing the truth to light efficiently or, at the very least, narrowing the issues in contention. However, some information remains beyond the scope of this liberal sharing process, and litigants will often fight vigorously to preserve the information over which they still have an entitlement to privacy. This situation arose in a recent case that was appealed to Florida’s Third District Court of Appeal, Bailey v. Miami-Dade County.

Bailey arose from an alleged act of negligence at Mt. Sinai Medical Center, involving Miami-Dade Fire Rescue employees and Mt. Sinai staff who dropped a patient who had suffered cardiac arrest aboard a cruise ship from a gurney. The patient later died, and her husband brought a wrongful death action against Mt. Sinai, alleging medical negligence and ordinary negligence. After commencing the action, the complaint was amended to include a count of ordinary negligence against Miami-Dade County. Prior to filing this action, the plaintiff retained a physician to prepare a medical affidavit, which is required for all actions involving medical negligence in Florida. During the discovery process, the physician’s name was disclosed to the defendants on expert interrogatories. The existence of the physician’s affidavit was also disclosed, but the plaintiff refused to proffer the affidavit, asserting work product privilege. Shortly thereafter, Mount Sinai settled, leaving Miami-Dade as the only defendant and ordinary negligence as the sole claim. When the trial court issued an order directing the parties to submit their witness lists, the physician’s name was not listed on the expert witness disclosure list, even though he had been listed as a expert who would testify on the earlier expert interrogatories. The defendant immediately sought to depose the physician, and the plaintiff refused, again citing work product privilege. The plaintiff sought a protective order, but the trial court denied the request, leading to the current appeal.

March 11, 2015

Supreme Court of Florida Reverses Fourth District in Negligent Security Case

by Frankl Kominsky Injury Lawyers

The Supreme Court of Florida recently issued an opinion reversing a Fourth District Court of Appeal decision we cited in a previous post. The decision, Sanders v. ERP Operating Limited Partnership, examines when a defendant is entitled to a directed verdict in negligent security action.

The events leading to the Sanders case started in late 2004 when two young adults moved into an apartment complex that was marketed as a gated community. A year after they moved into the complex, the two were shot to death inside their apartment by unknown assailants. There were no signs of forced entry, but possessions including an engagement ring, cash, and credit cards had been taken. Evidence adduced during discovery showed that in the three years prior to the murders there had been two prior “violent” incidents at the gated community when the gate had been broken and criminals followed residents onto the property. During the year of these murders, the gate had been inoperable for a total of four months. One incident resulted in an armed robbery, the other in an assault. Though a governing manual provides that notice be given to residents when such acts occur, no notice was provided after these incidents.

March 4, 2015

Supreme Court of Florida Rules That Exculpatory Clauses Without Express Language are Valid

by Frankl Kominsky Injury Lawyers

In a recent per curium decision, the Supreme Court of Florida made a sweeping change to the law associated with pre-injury exculpatory clauses, and, as a result, left many susceptible to injury without recourse. The decision, Sanislo v. Give Kids The World, Inc., overturned precedential decisions from four of Florida’s five District Courts of Appeal, and held that an exculpatory clause insulating a negligent party from liability may be valid even if the clause does not utilize express language indicating that the other contracting party is releasing his or her right to bring negligence claims.

This case started when a negligence action was brought against Give Kids the World, Inc. (“GKTW”), a non-profit organization that provides complimentary vacations to seriously ill children and their families. While on one of these vacations at the storybook village, the mother of the child was seriously injured while standing on a pneumatic lift designed to lift wheelchairs on to a horse-drawn carriage ride. As part of the application process, the parents signed a waiver releasing GKTW from liability. Specifically, the release provided:

“I/we hereby release [GKTW] […] from any liability whatsoever in connection with the preparation, execution, and fulfillment of said wish, on behalf of ourselves, the above named wish child and all other participants. The scope of this release shall include […] damages or losses […] physical injury of any kind […] I/we further agree to hold harmless and to release [GKTW] from and against any and all claims and causes of action of every kind arising from any and all physical or emotional injuries ….”

February 25, 2015

Fourth District Addresses Issues Surrounding Post-Injury Surveillance in Florida and Adopts Bright-Line Rule

by Frankl Kominsky Injury Lawyers

Following the initiation of a personal injury suit, many defendants will start to conduct covert surveillance of the plaintiff in hope of uncovering evidence that can later to used to impeach inconsistent testimony. Beyond obvious privacy concerns, the production and use of surveillance footage raises numerous legal issues related to authenticity. Accordingly, it is well settled that defendants are required to turn over surveillance footage that they intend to use at trial during the discovery process. However, there is often an argument about when the defendant must turn over this footage. These timing issues are at the core of the discussion in a recent decision from Florida’s Fourth District Court of Appeal, Hankerson v. Wiley.

Hankerson started with an alleged act of auto negligence, which ultimately led the plaintiff in this case to bring suit against the other driver. During the course of pre-trial discovery, the defendant acquired surveillance footage of the plaintiff, which the plaintiff then sought to acquire prior to her deposition. The trial court granted an order that would permit the plaintiff to view the surveillance footage prior to her deposition. Following issuance of this order, the defendant sought immediate certiorari review by the Fourth District Court of Appeal, arguing that permitting the plaintiff to view the footage prior to having an opportunity to depose her would lead to irreparable harm that warranted immediate review by the appellate court. Thus, there were two issues before the Court of Appeal: 1) whether the harm attendant to turning over footage is of a degree that warrants immediate appellate review; and 2) whether the defendant could be ordered to turn over work product surveillance footage prior to deposing the plaintiff.

February 18, 2015

Florida Fifth District Court of Appeal Affirms in Wal-Mart Negligence Case

by Frankl Kominsky Injury Lawyers

Typically, if one were asked to think of an object involved in the commission of a tort, an ornamental vegetable would not spring to mind. However, harm caused by an ornamental pumpkin is at the center of a recent negligence decision from Florida’s Fifth District Court of Appeal, Schwartz v. Wal-Mart Stores, Inc. Specifically at issue in Schwartz was whether the trial court erred in granting a motion for a new trial following a zero-damages jury verdict and whether the trial court erred by limiting the retrial to just damages for the plaintiff’s initial medical evaluation after the accident.

The plaintiff in this case was shopping at a Florida Wal-Mart store when she was struck in the back by an ornamental pumpkin. The ornamental pumpkin weighed 8.4 ounces and was described as squishy. Prior to trial, Wal-Mart conceded that the plaintiff was struck by the pumpkin because of an employee’s negligent conduct. However, Wal-Mart contested both causation and damages, which are both necessary for establishing negligence. After trial, a jury issued a zero-damages verdict, finding that Wal-Mart’s negligence was not the “cause” of the plaintiff’s claimed loss, injury, or damages. The trial court granted the plaintiff’s motion for a new trial but limited the new trial to strictly those damages associated with the plaintiff’s initial medical evaluation following the accident. On appeal, Wal-Mart argued that the trial court should not have granted the motion for a new trial, and the plaintiff argued that the trial court should not have limited the inquiry on retrial so narrowly.

February 11, 2015

Fourth District Court of Appeal Applies Slavin Doctrine in Florida Wrongful Death Suit

by Frankl Kominsky Injury Lawyers

We generally associate vehicular accidents with the negligence of one of the drivers, but in certain circumstances fault may be attributable to the acts or omissions of a third party. Third-party liability for a death resulting from a Pembroke Pines auto accident is the central topic in a recent decision from Florida’s Fourth District Court of Appeal, McIntosh v. Progressive Design and Engineering, Inc..

In McIntosh, the son of a deceased driver brought suit against the company that designed the traffic signal at the intersection where his father was injured. The intersection where the accident occurred is situated at the exit from a local trailer park. The traffic signal at this intersection allowed a driver exiting the trailer park to rely on a traffic signal further out in the intersection that was intended for other traffic while neglecting the closer traffic signal intended to control traffic exiting the trailer park. While the deceased person was exiting from the trailer park, he collided with a truck traveling southbound on the cross street. The signal design and interconnect plans were developed by Progressive Design and Engineering, Inc. with the input and approval of the Florida Department of Transportation. The plans were eventually approved and sent out for contractor bidding. The construction team generally constructed the intersection per Progressive’s plans. The accident occurred 15 days into the burn-in period, a warranty period when the contractor maintained the traffic signals in case a problem arose. During this period, only the Florida Department of Transportation could order necessary changes.

February 4, 2015

Fourth District Court of Appeal Clarifies Standard for Florida Negligent Security Cases

by Frankl Kominsky Injury Lawyers

Although negligence predicated on a failure to provide adequate security is not a novel cause of action, there are many questions regarding its application that have yet to be resolved by Florida’s highest court. Foremost among these unresolved questions is whether the standard for premises liability or the standard for ordinary negligence applies when determining liability in a negligent security case. In a recent opinion, Nicholson v. Stonybrook Apartments, LLC, the Fourth District Court of Appeal established what standard would be applied in cases arising in its jurisdiction, which encompasses Broward County and Palm Beach County.

Nicholson arose from a shooting during a party at an apartment complex managed by the defendant. The plaintiff was shot in the apartment complex’s common area and brought suit against the apartment complex, arguing that it failed to maintain its premises in a safe condition and failed to provide adequate security on the property. The suit went to trial, and a jury ruled in favor of the apartment complex, finding that management was not grossly negligent. However, the plaintiff appealed the judgment, arguing that the trial court erred in both allowing the defense to admit evidence regarding her status as a trespasser at the time of the injury and instructing the jury that the plaintiff’s status as an invitee or trespasser was pertinent to the standard of care to be applied.

January 28, 2015

Federal Appeals Court Reverses and Remands for New Trial in Mysterious Death Case

by Frankl Kominsky Injury Lawyers

In a recent decision, Collins v. Marriott International, Inc., the Eleventh Circuit Court of Appeals reviewed an interesting case that involved the un-witnessed death of an Atlanta businessman at a Gulf resort in the Bahamas. At the trial level, the case had progressed all the way to trial, but the trial court ultimately granted the defendants’ motion for judgment as a matter of law, leaving the estate of the deceased person with no recovery. In response, the estate, the plaintiff in this action, appealed.

The death at issue occurred at a resort in the Bahamas where the deceased person owned property. The resort is located on the island of Abaco in the Bahamas and is situated at the end of a peninsula ending in a rocky promontory called “the Point.” The Point is composed of rock formations, steep cliffs dropping to the sea, and a blowhole opening through which waves crash. The resort does not own the area known as the Point, but the land is only accessible from resort property and was not clearly demarcated or separated from the club’s property with either fencing or signage. On the evening of August 16, 2007 at sunset, the deceased person and friends who accompanied him to the club took a golf cart to the Point, which is located only 50 feet from one of the resort’s paths. While his friends were taking pictures, the deceased man decided to walk up the crest of the Point. When his friends walked up to the crest no more than 10 minutes afterward, however, he was not to be found. The friends returned to the resort, and they and resort staff began searching for the deceased person. His body was found the next day in the water of a cove a few miles from the resort.

January 21, 2015

South Florida Federal Court Denies Motion to Dismiss in Product Liability Case

by Frankl Kominsky Injury Lawyers

Even when performed safely, surgery presents a variety of different risks for a patient. However, not typically among the variety of different risks one considers prior to surgery is the possibility that medical equipment to be implanted is defective. Despite not falling within the ambit of typically considered risks, medical devices, like other products, can be defective in either their design or their construction and lead to patient injury. Harm arising from an alleged defect in medical equipment serves as the central issue in Witt v. Howmedica Osteonics Corp., a recent decision from the District Court for the Southern District of Florida.

At issue in Witt is an alleged defect in an artificial knee manufactured by Howmedica Osteonics Corporation. Specifically, the plaintiff alleged in her Amended Complaint that the artificial knee had “unreasonably dangerous design defects such as the potential of the Knee to loosen after being implanted, leading to failure of the Femoral Component” and that the plaintiff’s alleged diagnosis of “loose right knee prosthesis” was “due to failure of the X-Small Right Medial/left Lateral EIUS Knee Femoral Component …” Following her diagnosis, the plaintiff brought a suit against Howmedica for both strict product liability and negligence. In this decision, the trial court had to determine whether to grant Howmedica’s motion to dismiss, which argued that the plaintiff had failed to plead facts in the Amended Complaint that, if taken as true, would state a plausible claim to relief.

January 14, 2015

Salazar v. Coello: A Look at Florida’s Medical Negligence Intent to Sue Requirements

by Frankl Kominsky Injury Lawyers

Although initiating a lawsuit should be essentially the same regardless of the subject matter involved, many types of cases do require that a plaintiff engage in specialized procedures or risk having his or her claims lost. Among the most important of these specialized procedures in Florida is the pre-suit notice and investigation scheme for medical negligence cases provided by Section 766.106 of the Florida Statutes. This notice and investigation process is the subject of a recent decision from Florida’s Third District Court of Appeals, Salazar v. Coello.

To provide background, Section 766.106 requires that a plaintiff with a putative medical negligence claim conduct a pre-suit investigation, after which he or she must, prior to filing a complaint, notify each of the prospective defendants of his or her intent to initiate litigation. The statute further requires that the plaintiff provide, if available, a list of the following along with the notice: 1) all health care providers the plaintiff has seen for the injuries of which he or she has complained subsequent to the purported act of medical negligence; 2) all health care providers the plaintiff has seen in the two years prior to the alleged act of negligence; 3) copies of all medical records on which the expert providing an affidavit in support for the plaintiff’s claim has relied; and 4) a standardized authorization form. Suit may not be filed for 90 days following delivery of this notice, and during this 90-day period the defendant or its insurer are supposed to conduct a review of the claim and determine possible liability. Importantly, during this 90-day investigative period the statute of limitations is tolled against all potential defendants.