Articles Posted in Litigation

P1010046-300x225Our firm is presently involved in a personal injury action on behalf of a truck driver who sustained serious injuries when he was struck by a motor vehicle on the side of the northbound lanes of I-95, in an area of the highway known as a gore, while an employee of a roadside assistance company attempted to replace a blown tire on the chassis our client was hauling with his tractor. We have sued the roadside assistance company for failing to display proper warning lights and for undertaking the assistance in a dangerous location. (This photograph shows the assistance vehicle sent to the scene and its location at the time of the crash.) The Defendant has asserted two affirmative defenses in an effort to apportion fault to a non-party. Our co-counsel, superb trial lawyer Robert Tilghman, has prepared a motion for partial summary judgment on the two affirmative defenses. (Reproduced in this blog are portions of the motion. The names of the parties and the non-party have been removed.)

The non-party was the driver of a northbound vehicle that struck our client after first striking the left rear of the vehicle sent to perform the roadside assistance. The parties will never know what caused his vehicle to enter the gore area as he died after the subject accident before he could give a statement. He told fire rescue that he did not remember what happened and there were no eyewitnesses or physical evidence to explain why, when, or how the vehicle entered the gore or why the driver was unable to avoid striking the repair vehicle. We have been able to formulate upwards of twelve reasonable explanations, some of which would not constitute fault on the non-party driver, for the events leading to the collision.

We anticipate that Defendant intends to argue that the non-party driver consumed alcohol prior to the collision and that it was the effect of alcohol which caused the accident. However, Defendant cannot present admissible evidence of his intoxication or that alcohol was a proximate cause of the collision.

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accident-scene-300x193With fault being a fundamental element in all but strict liability personal injury cases, it is often critically important for both sides of a dispute to be able to view certain photographs taken after an accident to help piece together the how and why of its occurrence. Common examples include accident-scene images showing the resting place of vehicles involved in a multi-vehicle collision or a condition alleged to have caused a fall.

Very often only one side has the photographs and sometimes the party refuses to share them with the other side, citing work product privilege as the basis.

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scales.jpgWhile the American jury system is one of the greatest human inventions, it is not infallible. At times our peers are influenced by prejudice, passion, or corruption; they sometimes ignore or misconceive evidence, take improper elements of damages into account by speculation and conjecture.

A verdict based on any of these elements should be rejected by the trial judge and superior appellate courts. There are various procedures for putting the decision before the respective courts. Rather than address those procedures, this blog will focus on the legal standards the courts consider.

There are two standards. The threshold standard is purely objective, the other standard is a hybrid of objective and subjective analysis.
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Facebook.PNGInsurance companies and their defense attorneys seek any shred of evidence to discredit plaintiffs. Facebook and other social medial have become a fertile field for this type of evidence.

Personal injury cases include claims for economic and noneconomic damages. Facebook photographs and comments can contradict these claims. Photographs from the Aspen snow trip and comments about dancing the night away on South Beach can be inconsistent with claims of intractable pain and work limitations.
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surgeon-3-391477-m.jpgHerniated intervertebral discs can have significant medical and legal consequences. The symptoms of a herniated disc can range from minor pain all the way up to unbearable, unremitting pain, paresthesia, and numbness. Treatment options include palliative medicine, physical therapy, epidural injections, and surgery. Each of these option can be costly and none is guaranteed effective. A herniated disc can also limit one’s ability to work.

Discs herniate through degeneration, a lengthy process, and acute trauma. A disc compromised by degeneration is more likely to herniate from trauma than one that is not. The personal injury and workers’ compensation legal systems do not compensate for herniations caused by degeneration only. They are supposed to compensate for herniations caused solely by trauma, and will sometimes compensate for herniations superimposed on degeneration, referred to as an aggravation of a preexisting condition. (For an understanding of how the two systems handle aggravation injuries, consider Florida Standard Jury Instruction 501.5a, for civil cases, and this article, for workers’ compensation.

In civil cases, a defendant responsible for causing a herniated disc can be liable in damages which include medical expenses, lost wages (past and future), and pain & suffering (also known as non-economic damages). In workers’ compensation, the employer/carrier can be liable for medical expenses and lost wages; compensation for pain & suffering is not available in the workers’ compensation system.

The costs associated with a herniated disc can be significant, even in the hundreds of thousands where a spinal fusion is involved. As a result, civil defendants and workers’ compensation employers/carriers fight to limit their financial exposure.

A common defense method is to use doctors who will testify to one or more of the following:

  • There isn’t a herniation
  • If there is a herniation, it was not caused by the accident (e.g., it preexisted the accident)
  • The herniation is asymptomatic or not causing the level of pain being complained of by the Plaintiff/Claimant
  • The various treatment options, including surgery, are not indicated now or in the future
  • The herniation should not prevent the Plaintiff/Claimant from working full duty

The defense doctor’s testimony must be challenged. As with the questioning of any expert under oath, the most important rule is to be prepared. For me, at least, that means going over the doctor’s report with a fine tooth comb for weaknesses and inconsistencies, keeping in mind that what isn’t said is often as telling as what is said. At the beginning, I may feel stumped. However, with enough thought, even of the subconscious type, something always comes to mind. This is why I like to begin the process well in advance of the interrogation. Digesting and mulling works wonders.
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laptop-work-1260785-m.jpgParties to legal actions should always assume that their social media (e.g., Facebook; Twitter) postings will be discovered (discovery is allowed by FRCP 1.350; Discovery of Facebook Content in Florida Cases, 31 No. 2 Trial Advoc. Q 14 (Spring 2012)) and used against them by the other side if helpful. Postings can be used to contradict assertions made in a legal case and sometimes lead to the outright dismissal of actions by the court based on fraud.

However, hurdles must be overcome to get postings into evidence. Among the hurdles:

Finding and Preserving the Social Media Evidence

  • Once we find useful postings by surfing the Internet, we save link addresses, print pages, and take iPad screen shots by simultaneously pressing both of the device’s power switches.
  • Preservation of evidence letters can also be sent to those who own and or control the site to prevent spoilation of the evidence through the innocent or purposeful removal of content. Surprisingly, parties are not obligated to preserve evidence without a specific request. See, Osmulski v. Oldsmar Fine Wine, Inc., So.3d , 37 FLW D1578 (Fla. 2nd DCA 6-20-2012).
  • Formal discovery, pursuant to FRCP 1.310, 1.340, and 1.350, can be used to identify websites with potentially valuable information. Request from the respondent: websites the respondent uses to communicate with others; website account information such as account holder and user name; respondent’s email addresses, phone number, home address; printouts of account information and screen shots.
  • Subpoenas can also be issued to website administrators, like Facebook and Twitter. (The particular knotty issues involved in gathering information from administrators is beyond the scope of this blog.)
  • Another source of information is the Wayback Machine. This is a service that allows people to surf more than 150 billion pages in the Internet Archive’s Web archive.

Legal Hurdles
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doctor.jpgAccident victims often require medical attention. Medical malpractice sometimes makes their medical conditions worse, compounding the initial injuries with additional medical expenses and pain and suffering.

When the initial injuries are caused by the negligence of a third party, the victim is entitled to be compensated by the third party for both the initial injuries and the enhanced injuries resulting from the medical negligence.

In Dungan v. Ford, 632 So. 2d 159 (Fla 1st DCA 1994), the trial court allowed the Defendant to present expert testimony that a surgeon should not have performed a percutaneous diskectomy which resulted in more pain, suffering and expenses. The trial judge’s ruling was appealed. The appellate court held that the trial judge was wrong:

“It is well-established that a wrongdoer is liable for the ultimate negligence on the part of a physician who has treated an injury in such a way that the treatment may have increased the damage which otherwise would have followed from the original wrong. Stuart v. Hertz Corp., 351 So.2d 703 (Fla. 1977); Davidson v. Gaillard, supra; Rucks v. Pushman, 541 So.2d 673 (Fla. 5th DCA), rev. denied, 549 So.2d 1014 (Fla. 1989); 57 Am.Jur.2d Negligence § 149, and Restatement (Second) of Torts § 457 (1965). Cf. Barrios v. Darrach, 629 So.2d 211 (Fla. 3d DCA 1993).”

surgery.jpgOne of the primary responsibilities of personal injury attorneys who represent Plaintiffs, those injured by the negligence of others, is to recover past and future medical expenses.

Recovering the past medical expenses requires proof that the charges are reasonable, related to the accident, and necessary. See Garrett v. Morris Kirschman & Co., Inc., 336 So.2d 566 (Fla. 1976).

Interestingly, while expert medical testimony is required to prove the relationship between the accident and the injuries, expert testimony is not always required to prove that the charges are reasonable and necessary. See, Id., and Albertson’s, Inc. v. Brady, 475 So.2d 986 (Fla. 2d DCA 1985), rev. denied, 486 So.2d 595 (Fla. 1986).

dollars.jpgIndividuals seriously injured through the negligence of others often require medical care and treatment long after the case is resolved. Settlements and jury verdicts must take these future medical expenses into account.

Some individuals harmed through the negligence of others are eligible for medical care through governmental or charitable services for a pre-existing disability unrelated to the tort claim. The most common of these services is Medicare.

Governmental and charitable reimbursements are always a fraction of a medical provider’s usual and customary charges. While the services may cover medical expenses related to the accident, there are no guarantees as to what will be covered and for how long. Given these factors, should juries be allowed to consider evidence of the reduced rates in calculating future medical expenses.

The answer in Florida appears to be Yes.

In State Farm v. Joerg, the trial court did not allow State Farm to introduce evidence that Joerg’s future medical expenses might be reduced under the Medicare program. The trial court’s decision was reversed on appeal.

Relying on Florida Physician’s Insurance Reciprocal v. Stanley, 452 So. 2d 514 (1984), a Florida Supreme Court case, Florida’s 2nd DCA held that since Joerg did not earn the Medicare benefit, the jury should be allowed to consider Medicare’s rates in calculating future medical expenses.
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scales.jpgFor-profit insurance companies enjoy privileges in Florida not afforded individuals and other commercial activities. It is little wonder they profit so handsomely. In turn, their wealth allows them to exercise ever greater control over politicians, the courts, and the psyche of the people. It’s an ugly picture.

In the context of liability claims, an insurance company’s primary responsibility is to protect its insured from an excess judgment. An excess judgment is a judgment entered by the court in an amount greater than the insured’s policy coverage limits. The carrier can achieve this outcome in most cases simply by being conscientious and reasonable. Falling below this standard is generally considered negligence.

As a lawyer, I can be held accountable for negligence causing harm to a client. The same holds true for doctors, bankers, manufacturers, drivers and every other entity … except for insurance companies.

In DeLaune v. Liberty Mutual Ins. Co., 314 So.2d 601 (Fla. 4th DCA 1975), Liberty failed to settle a car crash claim for its insured’s policy limit of $10,000. A verdict was rendered against the insured for $360,000. The court disallowed the Plaintiff’s attempt to recover the difference in a separate lawsuit based on allegations of harm resulting from negligence. The court said that an insurance company cannot, unlike every other entity in Florida, be held liable for harming an insured based solely on negligence. (The insured assigned the Plaintiff his right to sue Liberty in exchange for the Plaintiff agreeing not to enforce the judgment against him. This is standard operating procedure in situations where insurance carriers expose their insureds to excess judgments.) See also Thomas v. Lumbermens Mutual, 424 So. 2d 36, 38 (Fla. 3rd DCA 1982).

Not good.

Silent (Dominant) Partner
When its insured is sued, the insurance company calls the shots on every aspect of defending the case. The carrier chooses the lawyers, hires the experts (or not), requires the insured’s cooperation, and decides on settlement (or not). Florida juries are not allowed to know any of this. See Sec. 627.4136, Fla. Stat.; Beta Eta House Corp. v. Gregory, 237 So. 2d 163, 165 (Fla. 1970) (The Florida Supreme Court said this information is not relevant to issues of fault and damages.)

Not good.
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