South Florida Injury Lawyer Blawg

The Importance of Avoiding Expert Bias During a Florida Car Accident Lawsuit

Published on: February 19, 2021 | by Law Offices of Robert Dixon

Expert witnesses are often a critical resource in Florida personal injury lawsuits. These individuals are qualified in a particular field based on their educational and occupational experience. Some common expert witnesses include medical experts, accident reconstructionists, economists, rehabilitation experts, mental health experts, and engineers. Cases often hinge on the opinion and testimony of an expert witness. An unqualified, inept, or biased expert witness may result in disqualification or impeachment based on credibility.

Recently, a Florida appeals court issued an opinion in a defendant’s appeal of a trial court’s decision to limit their ability to cross-examine two of the plaintiff’s medical experts. The case arose when the plaintiff suffered injuries after the defendant rear-ended him at a stoplight. The plaintiff filed a lawsuit against the defendant and his employer. During pretrial proceedings, the defendants stipulated to the driver’s liability and the employer’s vicarious liability. However, they asked the court to bifurcate the trial and damages phase of the trial. The trial court agreed to the bifurcation but refused to exclude evidence of the driver’s intoxication.

During the trial, the plaintiff presented several medical experts, including one that was personal friends with the plaintiff’s attorney. The defendant sought to cross-examine the expert witness on his relationship with the plaintiff’s attorney; however, the trial court limited the inquiry. The court only allowed the defendant to inquire as to the length of the friendship. Amongst other issues, the defendant argued that the limitation was inappropriate as it went to the expert’s potential bias.

Court Addresses Florida’s “Apparent Agency” Theory in Florida Lawsuit Against Hospital

Published on: February 17, 2021 | by Law Offices of Robert Dixon

Historically, hospitals maintained various theories and defenses to escape liability for acts of negligence occurring at their facilities. Florida medical malpractice injury victims can currently hold hospitals vicariously liable for their employees’ or agents’ acts. Under the actual agency theory, a hospital may be liable for the acts of its employees. A hospital may also be liable under apparent agency theory for other workers’ actions at their facilities who are independent contractors instead of traditional employees.

Recently, a Florida appeals court issued an opinion finding a hospital liable for a physician’s negligence at their facility, working as an independent contractor. In that case, an emergency room doctor admitted the patient for appendicitis and periappendiceal abscess. The patient felt weary of the on-call surgeon designated to perform the surgery; however, another doctor would not be available until the next morning. As a result, the patient proceeded with the surgery with the on-call surgeon. After the surgery, the patient asked for antibiotics, which the surgeon deemed unnecessary. However, the patient suffered an acute infection requiring extensive treatment. The patient filed a medical malpractice lawsuit against the hospital for the surgeon’s negligence. In response, the hospital contended that they were not liable for the surgeon’s negligence because he was an independent contractor. The trial court granted a final summary judgment order in favor of the hospital system, and the plaintiff appealed.

Under Florida law, hospital systems cannot evade responsibility for a physician’s negligence by merely alleging that they were an independent contractor. These entities may still be liable if the hospital cloaked the physician with the “apparent authority to act on its behalf.” To establish apparent agency, the plaintiff must prove that the hospital represented the physician as an employee, the plaintiff relied on the representation, and the plaintiff experienced a change in their position because of the reliance.

The Dangers of Florida Left-Turn Accidents

Published on: February 12, 2021 | by Law Offices of Robert Dixon

The National Highway Traffic Safety Administration (NHTSA) reports that nearly 40% of car accidents occur at intersections. Many of these accidents transpired when a motorist was attempting to make a left-hand turn. Florida accidents, such as ones that occur when a person is making a left-hand turn at an intersection, can result in serious injuries to drivers, passengers, and bystanders.

Most Florida roadways have two lanes of travel; as such, most intersections have four lanes meeting in the middle. These intersections can be perilous because drivers need to be aware of traffic coming from several different directions. The NHTSA findings revealed that the majority of intersection accidents occur because of driver error. The top forms of driver error were failure to observe the intersection, incorrect assumptions about other motorists, continuing through an intersection with an obstructed view, illegal traffic maneuvers, distraction, and improper judgment. Many of these accidents occurred when a motorist was making a left turn.

There are many reasons why a left-hand turn is hazardous. The main reason is that drivers turning left often have to cross a complete lane of traffic after waiting for traffic from both directions. This driving maneuver requires quick thinking and swift movement. However, quick judgment is not always the safest, and those making a left-hand turn may not notice all of the vehicles and pedestrians approaching. Further, many people making left-hand turns mistakenly assume that an approaching motorist will yield to them. This mistake often results when an approaching car inadvertently leaves its blinker on or when the driver seems to be slowing down.

Florida Products Liability Law and the Recently Discovered Dangers of Certain Baby Foods

Published on: February 10, 2021 | by Law Offices of Robert Dixon

Recently, The U.S. House of Representatives Subcommittee on Economic and Consumer Policy released its findings from a 2019 study regarding high levels of heavy metals in baby foods. Although some of the baby food companies voluntarily submitted their products for internal testing, several companies refused to participate. The refusal is concerning because it may indicate that there are more unsafe baby food products in Florida and throughout the United States than are known to consumers. Companies that fail to abide by health and safety standards may be liable under Florida product liability laws.

The report addressed the levels of heavy metals including arsenic, cadmium, lead, and mercury present in baby food jars, pouches, teethers, puffs, and similar items. The presence of heavy metals in baby food is not a new issue, and previous studies have published reports on the analysis of metals, such as arsenic, in many rice-based products and juices. The initial 2019 findings focused on all foods babies eat, however, the report focuses on processed baby food items. Many heavy metals are naturally occurring as plants absorb these materials as they propagate and grow. However, there are many ways that heavy metals can enter food products. In some situations, these unsafe metals can enter through manufacturing equipment that the companies use. Further, some of the binding ingredients in processed baby foods contain higher levels of heavy metals.

Many companies argue that these naturally occurring heavy metals are not easily removable. However, other companies have drastically changed their production methods to reduce significant amounts of heavy metals from their products. Despite these contentions, safety experts have provided several recommendations on how to diminish the presence of these unsafe materials in baby foods. They suggest researching new sources of food that contains less naturally occurring heavy metals and discontinue using products that do not have a low-risk alternative. Further, they advocated for an overhaul of outdated and potentially unsafe manufacturing equipment. Finally, they encouraged companies to consider researching chemical methods to reduce the level of mercury in baby food products.

Court Finds in Plaintiff’s Favor in Recent Florida Premises Liability Case

Published on: February 5, 2021 | by Law Offices of Robert Dixon

An appeals court recently issued a decision in a plaintiff’s appeal of a final judgment motion in favor of a construction company. The plaintiff filed a Florida premises liability lawsuit against a construction company for injuries he suffered from falling into a drain. The plaintiff worked as an electrical subcontractor for a project the construction company was overseeing. There were approximately a hundred drains on the construction site, and depending on the phase of construction, the drains would be covered or uncovered. The plaintiff’s work on the site was sporadic, and he was at the site about a week before the incident leading to the lawsuit. On the day of the accident, it was bright outside, but the interior lighting was about thirty percent below the average level. When the plaintiff opened a door, dust from grinding work and the light blinded him, and he fell into the drain.

The plaintiff sued the construction company, arguing that they were negligent for failing to keep the premises safe. At trial, the defendant successfully argued that they were entitled to summary judgment because the drain was an open and obvious danger. On appeal, the plaintiff argued that there were genuine material fact issues.

In Florida, property owners and occupiers owe business invitees, such as the plaintiff, the duty to use reasonable care in maintaining the property. Further, they must warn of dangers the owner knew or should have known about, and which the invitee does not know about and cannot discover through reasonable care. There are exceptions for dangers, which are “open and obvious.” Under the open and obvious doctrine, a property owner is not liable for dangerous conditions when the condition is obvious or known, unless the owner should anticipate the danger and injuries.

The Pre-Trial Stages of a Florida Personal Injury Lawsuit

Published on: February 3, 2021 | by Law Offices of Robert Dixon

Many people often underestimate the complexity of Florida personal injury lawsuits. Even the most straightforward civil lawsuits require plaintiffs to abide by strict procedural and substantive laws. The failure to meet the demanding standards may result in a dismissal and waiver of recovery. As such, injury victims should contact a skilled attorney to preserve their rights and fully understand their potential remedies.

Some of the most critical procedural requirements occur before or at the onset of a civil trial. The first step to a Florida personal injury lawsuit is the pleadings stage. Pleadings are filings that assert the plaintiff’s allegations, causes of actions, and the defendant’s responses to the allegations. This stage includes the complaint, answer, responsive motions, counterclaims, cross claims and third-party claims, and amendments. The term “pleadings” is more technical and narrow than it may appear. The scope is particularly relevant during certain litigation stages, such as the motions to dismiss. During this stage, the parties may not present, and the court cannot consider, evidence outside of the pleadings.

After pleadings, courts will often move to pretrial conference scheduling. This stage aims to simplify the trial by scheduling case management conferences between the parties to discuss experts, amendments, and other litigation issues. Discovery, discovery methods, protective orders, and sanctions occur at this stage.

The Importance of a Summary Judgment Motion in a Florida Personal Injury Lawsuit

Published on: February 1, 2021 | by Law Offices of Robert Dixon

Summary judgment is a procedural tool that either party in a civil lawsuit can use to dismiss specific issues from a lawsuit. Florida’s summary judgment rules have undergone some drastic changes in the last few months, and plaintiffs must understand how the procedural tool functions in court settings. In most cases, lawsuits proceed to trial because the plaintiff and defendant disagree about the facts of a case. However, in some situations, critical facts of a case may not be under dispute. In these cases, a party may ask the court to decide the lawsuit’s outcome without a trial. This is only applicable when there are no material facts under dispute, and in light of the undisputed facts, the moving party is entitled to judgment under the law.

Under Florida laws, a plaintiff cannot file a summary judgment motion within the first 20 days after filing a complaint. However, the defendant can file a summary judgment motion at any time. The motion must specifically detail the grounds upon which it is based and identify all evidence that the moving party relies upon. The movant must file and appropriately serve the other party with the motion at least 20 days before the scheduled hearing date. Both parties can use depositions, interrogatories, and expert affidavits to support or oppose a summary judgment motion.

After the judge receives the motion and response, they will preside over the hearing and listen to the attorneys present their arguments. These hearings do not involve any other oral testimony. Summary judgment is a useful tool for plaintiffs; however, when the other party moves for summary judgment, a plaintiff may risk having their case dismissed. An experienced attorney can help plaintiffs understand the best course of action in cases involving summary judgment.

Fatal Florida Workplace Accidents

Published on: January 27, 2021 | by Law Offices of Robert Dixon

Wrongful death in the workplace or during work activities is one of the most tragic events that a Florida family can experience. Those that suffered a loss because of a Florida workplace accident should contact an attorney to discuss their rights and remedies. These cases can be challenging because of the interplay between workers’ compensation and negligence laws.

The Occupational Safety and Health Administration (OSHA) reports that many fatal workplace accidents occur at construction sites. OSHA classifies construction site accidents into one of the “fatal four” incidents, electrocutions, falls, crush injuries, and blunt force injuries. For example, recently, a Florida news report described a shocking crush injury at a Home Depot. The victim was delivering materials to the Florida Home Depot when a load of construction materials fell on him. OSHA stated that they are investigating the incident to determine why the construction load fell. This situation is a prime example of a potentially complex negligence lawsuit. The delivery driver was not a Home Depot employee, but rather an employee of a third-party carrier, delivering products from another company.

Generally, the law provides Florida employers with immunity from their employees’ personal injury lawsuits. The immunity is derived from Florida’s workers’ compensation laws, which allow employers to receive payments for their injuries without establishing employer negligence, unlike traditional personal injury lawsuits. However, as a trade-off for this “no-fault” system, lawmakers have made it exceedingly difficult for employees to sue an employer successfully. However, there are exceptions if an employer acted grossly negligent, in a wanton manner, or intentionally. However, it is an onerous standard that many plaintiffs cannot meet.

Recalled Ceiling Fans May Result in a Florida Product Liability Claim

Published on: January 22, 2021 | by Law Offices of Robert Dixon

At the end of 2020, the U.S. Consumer Product Safety Commission (CPSC) reported a Home Depot ceiling fan recall. After receiving dozens of reports, Home Depot issued the voluntary recall that the fan’s blades were detaching and posing serious dangers to people and property. Despite the voluntary recall, individuals who suffered injuries from a faulty ceiling fan may recover damages under Florida product liability laws. Responsible parties may include the product’s manufacturer, importer, wholesaler or retailer. Essentially any party in the stream of commerce may be a potential party.

The Home Depot described the nearly 200,000 ceiling fans as having remote controls, and LED lights. The home improvement store sold the fans in white, black and polished nickel. The fans are manufactured by a Florida company producing the items in China and importing them out of Georgia. There were approximately 182,000 units sold in the United States and another 9,000 in Canada. Manufacturers and federal authorities advised consumers who purchased the fans to stop using them and inspect the blades to ensure that they are not uneven. If any erratic movements or gaps are present, the consumers should contact the distributor.

Florida statute 768.81 governs product liability claims in the state and explains injury victims’ rights and remedies. The majority of claims stem from negligence or strict liability; however, some may arise from a breach of warranty. More than one theory may apply; however, an attorney can help plaintiffs determine the most promising strategic approach.

Court Addresses Plaintiff’s Evidentiary Burden in Florida Premises Liability Lawsuit

Published on: January 20, 2021 | by Law Offices of Robert Dixon

A federal district court recently issued an opinion in a Florida premises liability lawsuit against Orange County. The plaintiff, an attorney, met with a client at a county jail when an interior gate suddenly closed on her. Following the incident, the plaintiff filed a Florida premises liability lawsuit against the County for her injuries. The County argued that neither it nor the corrections officer controlling the gate, acted negligently. They contended that the plaintiff tripped on a sensor or experienced an unexpected gate malfunction.

The plaintiff presented testimony from jail employees describing how the gates operate and what steps an officer takes to open a gate when a visitor enters or exits. The officer in charge of operating the gate on the day of the incident stated that he did not press any buttons while the plaintiff was walking through. He explained that the sensor serves as a safety mechanism to stop the gate from closing when a person walks through the gate. The plaintiff did not introduce any evidence explaining whether the gate malfunctioned. However, the trial court provided a res ipsa loquitur instruction.

Res ipsa loquitur, which roughly translates to “the thing speaks for itself,” is a theory that allows a court to infer negligence from the inherent nature of the accident. This theory is applicable when there is an absence of direct evidence of a defendant’s actions. To be entitled to a res ipsa loquitur instruction, a plaintiff must establish that the instrumentality causing his or her injury was under the exclusive control of the defendant, and that the accident was one that would not, in the ordinary course of events, have occurred without negligence on the part of the one in control.