Florida Injury Lawyer Blog

Uspenskaya v. Meline – Collateral Source Rule in Injury Cases

November 8, 2015 | Associates and Bruce L. Scheiner

Florida courts do not allow plaintiffs in most car accident cases to raise the issue of defendant insurance due to concern that jurors would treat insured defendants differently from those who lacked insurance.

It is in a similar vein that courts generally don’t allow defendants to mention whether plaintiff seeking compensation for medical bills had health insurance coverage. Courts don’t want jurors giving less compensation to plaintiffs who had coverage (and maybe only paid a fraction of billed costs out-of-pocket) than those who didn’t (and are therefore solely responsible for paying bills in full). This is known as the collateral source rule, and the key is that wrongdoers shouldn’t be allowed to benefit just because plaintiff received compensation from some other source. A plaintiff’s compensation from a third party doesn’t make the actions any less wrong.

However, that also doesn’t mean plaintiffs are necessarily entitled to receive double recovery. Usually, the insurance company intercedes and collects its fair share. Continue reading ›

Aubin v. Union Carbide Corp. – Florida Supreme Court Reinstates $6.6 M Asbestos Injury Verdict

November 7, 2015 | Associates and Bruce L. Scheiner

The Florida Supreme Court has reinstated a $6.6 million verdict in an asbestos liability lawsuit, quashing an earlier ruling by the Third District Court of Appeals that reversed a trial court’s judgment.

The case, Aubin v. Union Carbide Corp., is one of a string of lawsuits against the Texas-based producer and purchaser of a chemical called ethylene. A number of its products produced at its plants from 1945 to 1980 contained various types of asbestos, including Calidria chrysotile asbestos. Exposure to asbestos is the only known cause of a terminal cancer known as mesothelioma.

While many have decried the fact that the wave of asbestos litigation has clogged courts and forced companies into bankruptcy, these arguments gloss over the fact that these firms were aware of the danger posed by their products, and failed to warn or protect their workers or consumers. In fact, in the case of Union Carbide, evidence produced in a 2012 jury trial in Los Angeles that resulted in a $37.5 million judgment revealed an internal memo that proved the company knew asbestos exposure caused cancer. Continue reading ›

Pro Tennis Player Sues for Injuries in Slip-and-Fall

November 5, 2015 | Associates and Bruce L. Scheiner

Athletes put their bodies through punishing routines in order to ready themselves for competitions. They know they must be in top physical shape in order to win. They may even expect to get hurt in the course of competing. But when an injury happens off the field or court, it can result in serious consequences not only to their health, but their livelihood.

That’s what’s being alleged by pro-tennis player Eugenie Bouchard, who has filed a lawsuit against the U.S. Tennis Association and the U.S.T.A. Billie Jean King National Tennis Center in connection with a slip-and-fall she suffered in a physical therapy room. Bouchard’s lawsuit was filed little more than a month after winning her final match at the U.S. Open.

The lawsuit, filed in U.S. District Court for the Eastern District of New York, alleges she fell as a result of coming in contact with a slippery, foreign and dangerous substance on the tile floor of a physical therapy room operated by defendants. Continue reading ›

Wrong, Missed, Delayed Diagnosis Happens to Majority of Americans, New Report Says

November 3, 2015 | Associates and Bruce L. Scheiner

At some time in their lives, Americans will experience a missed, delayed or wrong diagnosis from a health care provider. That’s according to the latest in a series of in-depth patient safety reports by the Institute of Medicine, which is part of the National Academy of Sciences.

The first of these studies, released in 1999, was the bombshell, “To Err is Human,” which revealed some 100,000 people die every year in the U.S. as a result of health care errors. The latest estimates indicate the actual figure is likely four times that high. But diagnostic errors are scarcely mentioned in this literature. Now, researchers contend this under-studied issue accounts for far more problems than other types of mistakes, such as surgical mishaps or medication errors.

Much of research in the past has spotlighted mistakes that occur in hospitals. This is, of course, important. After all, that’s where emergency services are rendered, many surgeries take place and patients receive longer-term, inpatient critical care. However, it’s not where the majority of diagnostic errors happen. They occur in surgical centers, outpatient facilities and doctors’ offices. Continue reading ›

Obama Administration Considers Tackling Nursing Home Arbitration Agreements

November 2, 2015 | Associates and Bruce L. Scheiner

The federal Centers for Medicare & Medicaid Services (CMS) recently received a report from an organization called Public Justice addressing the problem of mandatory arbitration agreements for nursing home patients and residents of long-term care facilities.

Arbitration agreements are contracts that an increasing number of nursing homes require new patients and/or their representatives to sign upon admission to the facility. These contracts bind the parties, in the event of a dispute regarding care (i.e., a personal injury or wrongful death lawsuit) to engage in arbitration, rather than civil litigation. The benefits to the process are numerous for the nursing homes, as the process tends to result in more favorable outcomes for them and proceedings are confidential. Plus, arbitrators aren’t bound by decisions made by other courts or even other arbitrators. These clauses can also block class action lawsuits.

However, by forfeiting the right to civil litigation, potential claimants lose a number of important rights. Continue reading ›

Injury Lawsuit Against 12-Year-Old Gives Woman “Worst Aunt” Label

November 1, 2015 | Associates and Bruce L. Scheiner

It was her 8-year-old nephew’s birthday party, and he was thrilled to see her. The boy raced up excitedly to his aunt and tackled her, causing her to catch him as he jumped into her arms and she fell over. The result was a fracture of her left wrist.

Now, four years later, she has been dubbed by some media outlets and commenters as the “worse aunt” after a jury rejected the claims made in her personal injury lawsuit against her nephew, now 12, whom she alleged was negligent in his exuberant greeting.

But there is reason to stop and reconsider. This case was almost certainly not about a beloved aunt trying to collect money from a minor or his father (the boy’s mother, plaintiff’s cousin, died last year). It was an attempt to collect compensation for medical bills from a homeowner’s insurance policy. In Connecticut, as in most states, insurance companies can’t be named as defendants in an initial cause of action. The reason is because courts have found it may prejudice jurors who may more readily find against a defendant who is known to have insurance and therefore the ability to pay. Continue reading ›

Bus Injury Victim Gets New Trial in Reese v. Stanton

October 30, 2015 | Associates and Bruce L. Scheiner

A woman injured when her work van was struck by a school bus will get a second trial, following an appeal regarding improperly-admitted evidence.

Plaintiff in Reese v. Stanton argued trial court improperly allowed reports and conclusions from workers’ compensation doctors to be admitted into evidence in her personal injury lawsuit – even though those individuals were not called to testify in court. The Montana Supreme Court agreed, finding this action amounted to admission of hearsay.

The idea here is that the witnesses putting forth this information can’t be challenged. It’s the same reason police accident reports typically aren’t entered as evidence unless the officer is also called to testify. Continue reading ›

Peterson v. Flare Fittings, Inc. – Post-Accident Waiver as a Release of Liability

October 29, 2015 | Associates and Bruce L. Scheiner

Liability waivers are not generally favored by Florida courts because they relieve one party of the obligation to use due care, and further shift the risk of injury to the party likely least equipped to take necessary precautions to avoid injury. For this reason, they are usually strictly construed against the party seeking to be relieved of that liability.

That said, releases of liability will be honored by the courts if it can be shown there was specific language that makes it clear the injured person fully appreciated the implications of that release.

In most of these cases, liability waivers are signed prior to a certain activity. For example, if you’ve ever ridden a rented jet ski, you probably had to sign a liability waiver. Similar releases are usually required for common Florida tourist activities like parasailing, boating or kayaking. However, most liability waivers don’t generally cover activity that occurs prior to signing that release. But that’s what defendants in Peterson v. Flare Fittings, Inc. et al. tried to do. Continue reading ›

Associates & Bruce L. Scheiner Sponsor Cape Coral Bike Night Events

October 28, 2015 | Associates and Bruce L. Scheiner

Associates and Bruce L. Scheiner, Attorneys for the Injured, have long been staunch supporters of motorcycle safety and the right to share the road. Not only have we spent four decades fighting for the rights and interests of injured motorcyclists, we also serve as primary sponsor for Cape Coral Bike Night events.

The first of those for the 2015-2016 season was held on Saturday, Oct. 10, 2015. Upcoming Cape Coral Bike Night Events are slated for:

December 12, 2015
February 13, 2016
April 9, 2016

Motorcycle ridership among Floridians has grown considerably in recent years. The state reports that as of January 2015, there were nearly 600,000 registered motorcycles in Florida. Many more bike enthusiasts travel to South Florida throughout the winter season to enjoy the amazing year-round riding weather and engage with others who share their passion.

“The Cape Coral Bike Nights have turned into the area’s premier venue for motorcycle enthusiasts in Southwest Florida, and we are pleased to be the primary sponsor,” said Bruce Scheiner, founder and senior attorney of the firm. Continue reading ›

Fatal School Bus Crash Results in $8.7 Million Damage Award

October 25, 2015 | Associates and Bruce L. Scheiner

In the case of Beauchamp v. St. Lucie County School District, there was no question the school bus driver was liable for a crash that caused the death of a 9-year-old student and serious injury to several others. In fact, the driver conceded as much in earlier depositions.

That meant the defense strategy was to limit liability by shifting blame – namely on the semi-truck driver and seat belt manufacturer – in order to reduce the damage award. In the end, jurors awarded $10 million in damages, and assigned 87 percent of the blame to the driver of the bus, and 13 percent to the seat belt manufacturer and the semi-truck driver.

The latter two entities settled claims with the family for an undisclosed sum prior to trial, so they aren’t subject to paying that 13 percent. However, neither will the school district automatically have to pay $8.7 million. There is a $200,000 damage cap on civil awards against a state government entity – which includes a school district. Plaintiffs plan to file a claim with the state legislature, which is the only way a higher damage award against the government may be approved. Continue reading ›