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shutterstock_78346864Under Florida Statute §768.79 and Florida Rule of Civil Procedure 1.442, parties in civil lawsuits are entitled to make Proposals for Settlements to the opposition. A Proposal for Settlement involves making a formal offer in writing to the other side to settle a case for a certain dollar amount. If the offeree does not accept the settlement offer within 30 days and the case proceeds to a trial and jury verdict, he or she can be liable for the attorneys’ fees and costs of the prevailing party offeror. The topic of Proposals for Settlement has led to a plethora of appellate decisions regarding their enforceability. This is largely due to the fact that there is no standard form issued by either the Florida Supreme Court of the legislature. This means the parties have to draft their own Proposals for Settlement and the courts have to determine on a case-by-case basis whether they are enforceable as written.

One recent appellate decision on a Proposal for Settlement, Miley v. Nash, provided guidance to practitioners on drafting these documents. In Miley, Martha Nash sued the Defendants for personal injuries that stemmed from an automobile accident. Her husband, Garfield Nash, brought a claim for loss of consortium. The Nash’s alleged that Kyle Miley, while driving a vehicle owned by Glenn Miley, negligently caused the subject car crash.

Prior to trial, the Defendant, Kyle Miley, made a Proposal for Settlement to the Plaintiff, Martha Nash, in the amount of $58,590. The Proposal read that it was, “an attempt to resolve all claims and causes of action resulting from the incident or accident giving rise to this lawsuit brought by Plaintiff Martha Nash against Defendant Kyle Mylie.” The proposal required that Marsha Nash dismiss both Defendants but was completely silent as to Garfield Nash and the loss of consortium claim.

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med mal blogIn Woodson v. Go, Florida’ Fifth District Court of Appeal (“Fifth DCA”) held that even in complex medical malpractice cases, the trial court has broad discretion to place limitations on expert witnesses. The holding represents a self-proclaimed rescission from Lake v. Clark, a 1988 Fifth DCA decision that overturned a trial court’s exclusion of a doctor’s expert witness testimony on standard of care.

The Woodson case involved a Plaintiff who claimed medical malpractice for negligent placement of a cardiac cauterization and failure to timely detect the resulting occlusion. To further his case, the plaintiff sought to call two interventional cardiologists as expert witnesses. The trial court allowed this, but limited one expert to liability only and the other only to causation. The Defendants all denied liability and maintained that they properly met the standard of care. At trial, the Defendants were victorious on liability which prompted the Plaintiff to appeal the final judgment based on the limitation of expert witnesses.

In upholding the verdict for the Defendants, the Fifth DCA held, “…we see no reason to permit litigants in medical malpractice cases to have an almost unfettered right to present cumulative expert witness testimony.” Applying an abuse of discretion standard, the appellate court noted black-letter Florida law that gives trial courts broad discretion in placing limitations on expert witnesses. See Lion Plumbing Supply, Inc. v. Suarez, 844 So. 2d 768, 770 (Fla. 3d DCA 2003); Elder v. Farulla, 768 So. 2d 1155 (Fla. 2d DCA 2000). The court also referenced Fla. Stat 90.612(1)(b), Fla. Stat. 90.403 and Fla. R. Civ. P. 1.200(b)(4), all of which give the trial court the duty and power to limit cumulative testimony, including that of experts, for the purposes of an expedient trial.

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In a landmark decision, Florida’s Fourth District Court of Appeal (“Fourth DCA”) in North Broward Hospital District v. Kalitan held that caps on non-economic damages in personal injury medical malpractice cases violate the Equal Protection Clause of the Florida Constitution.

shutterstock_184358357The Plaintiff,  Susan Kalitan, suffered serious injury due to medical negligence when she went in for a carpal tunnel surgery that required anesthesia. The Defendant/anesthesiologist punctured a hole in her esophagus while performing intubation. When Ms. Kalitan awoke after surgery, she complained of excruciating pain in her chest and back but the anesthesiologist failed to detect the problem. She was released from the hospital, but the next day Ms. Kalitan’s neighbor found her at home unresponsive. She was rushed back to the hospital for life-saving surgery. Ms. Kalitan spent several weeks in a drug-induced coma before having additional surgeries and intensive therapy to begin eating again and regain mobility. She presently suffers from pain in the upper half of her body and serious mental disorders as a result of this traumatic incident and loss of independence due to physical limitations.

At trial, the jury awarded Ms. Kalitan $4 million in non-economic damages, but that figure was reduced by the trial court post-verdict to $2 million under the non-economic damages caps found in Fla. Stat. 766.118. The trial court denied the Plaintiff’s arguments that the caps were unconstitutional violations of the Equal Protection Clause, her right to access the courts and her right to trial by jury.

Ms. Kalitan appealed the reduction of her jury-awarded damages to the Fourth DCA where she was victorious. Judge Forst delivered the opinion for the appellate court, wherein he carefully followed the Florida Supreme Court’s rationale in Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014). In Estate of McCall, the Florida Supreme Court ruled that caps on non-economic damages in wrongful death cases violated Florida’s Equal Protection Clause as, “the greater the number of survivors and the more devastating their losses are, the less likely they are to be fully compensated for those loses”, particularly in comparison to cases where there was only one survivor.

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calculatorIf you have recently lost a loved one due to the negligence, carelessness, or recklessness of another person or business, you may be wondering about your legal rights to pursue a claim for damages against the responsible party under Florida law. Lawsuits arising from such circumstances are called wrongful death cases and are governed by the Florida Wrongful Death Act, Florida Statutes § 768.16 et seq., and other applicable laws.

When a family suffers the wrongful death of a loved one, there must first be a showing of wrongdoing by the defendant against whom the family seeks to recover. This involves a showing of negligence, a four-step test that requires proof of a duty, breach of duty, damages, and causation. Depending on the type of accident that led to the loved one’s death, there may be other elements that must be proven, but this four-prong test is at the heart of any personal injury lawsuit, including wrongful death actions.

Damages Available to Survivors under the Florida Wrongful Death Act

Once negligence is established, the question becomes the amount of damages that it will take to fully compensate the aggrieved party. In a wrongful death lawsuit, there are two types of damages that may be available. The first class of damages is those to which survivors of the deceased person may be entitled. The Act defines “survivors” as the spouse, children, parents, and, in some situations, other relatives who may have been dependent upon the deceased person for support or services. Children born outside of marriage are recognized by the Act as being the “child” of their biological mother but may not be considered the “child” of their father unless he had recognized a legal responsibility to provide support.

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Florida’s Fourth District Court of Appeals recently handed down its decision in Nucci v. Target Corp., a personal injury case wherein discovery of the plaintiff’s Facebook posts was disputed. In Nucci, the plaintiff filed a lawsuit against Target claiming that she suffered permanent injuries due to a slip and fall accident. During the course of discovery, Target requested copies or screenshots of all photographs that the plaintiff posted on Facebook for a period of two years before the accident through the present day. The plaintiff objected to this discovery request, arguing that it was overbroad, burdensome and that it violated the Right of Privacy contained in Art. I, §23 of the Florida Constitution. When the trial court overrued the plaintiff’s objection and ordered her to turn over the Facebook discovery to the Defendant, she appealed.

In upholding the trial court’s order compelling the plaintiff to turn over the Facebook photographs, the Fourth DCA relied on three rationales. First, it held that the plaintiff lacked sufficient grounds to be entitled to certiorari review as overbreadth of discovery alone does not constitute a basis for certiorari. Specifically, the Court held that the plaintiff did not show that there has been a “violation of clearly established principle of law resulting in a miscarriage of justice” which would have entitled her to such review. Second, the Fourth DCA noted that under Fla. R. Civ. P. 1.280 the parties are entitled to a broad scope of discovery and that pictures which individuals choose to put on Facebook and share with family and friends are highly relevant to a fact-finder in a personal injury case. As the jury is charged with the task of examining a plaintiff’s life before and after an accident and awarding damages, the Court noted, “If a photograph is worth a thousand words, there is no better portrayal of what an individual’s life was like than those photographs the individual has chosen to share through social medial before the occurrence of an accident causing injury,” and went to call the photographs “powerfully relevant.” Finally, in examining the plaintiff’s claims that these requests violated the Florida Constitution’s Right of Privacy, the Court noted that the privacy right must be balanced against the need for discovery in a personal injury case. Per the Fourth DCA, when a person chooses to post a picture on Facebook and share it with family and friends there is no real privacy expectation. Even if there is a minimal privacy right, the Court held, it is outweighed by the defendant’s legitimate interest in conducting before-and-after discovery.

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Boynton Beach drunk driving car accident lawyer

Super Bowl Sunday is just around the corner. Many people in the Boca Raton area will be attending a Super Bowl party to watch the game, debate the best commercials, and put in their opinion about the latest New England Patriots cheating scandal. These events are typically accompanied by a lavish spread of food and freely flowing alcohol.

While the Super Bowl doesn’t necessarily rival New Years Eve, Halloween, or July 4th in terms of alcohol consumption, it is most probably in the second tier of heavy drinking events. In fact, the National Highway Traffic Safety Administration (NHTSA) ranks Super Bowl Sunday as one of the most dangerous times of the year for drunk driving fatalities. NHTSA figures for 2012 indicated that 43% of all fatal car accidents on Super Bowl Sunday were caused by drunk driving, while an average day only sees 31% of fatal accidents linked to drunk driving.

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spill at groceryThey say a picture is worth a thousand words. After a slip/trip and fall, a picture can worth hundreds of thousands of dollars. Having visual evidence of the dangerous condition that caused you to fall and injure yourself can go a long way in helping you prove your premises liability case.

To successfully prove a slip/fall premises liability case in Florida, a plaintiff must

prove that the, “business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it” (See Fla. Stat. §768.0755). Actual knowledge means the business owner/employees clearly knew of the spill or actually created the spill. The other means of proving a slip/fall case, constructive knowledge, requires a showing that the business owner/employees should have known of the spill if they used due diligence in inspecting and cleaning the premises.

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According to a report from the National Highway Traffic Safety Administration (NHTSA), the number of auto recalls is expected to increase in 2015. In 2014, more than 60 million vehicles were recalled, nearly doubling the previous record for recalls in a year (30.8 million vehicles were recalled in 2004).

According to the new head of the NHTSA, increased public attention to auto safety defects has played a major role in the dramatic increase in recalls we are currently witnessing. As part of this push to improve vehicle safety, the NHTSA is working on strategies to improve the way they track potential defects and initiate recalls.

The record number of recalls in 2014 was largely due to major ignition switch defects in GM vehicles and defective airbags which impacted a large number of Honda vehicles.

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Boca Raton car accident attorneyHonda has been fined $70 million for their failure to inform the U.S. government of injuries and warranty claims associated with defects in their vehicles. The auto manufacturer failed to report more than 1,700 injuries and deaths associated with these defects. As part of this settlement, Honda will also need to submit to stricter government oversight in the future.

By law, auto manufacturers are required to report information regarding warranty issues and injury/death reports associated with car accidents. By failing to provide this information, Honda may have impacted the NHTSA’s ability to identify vehicle defects in a timely manner.

These violations were discovered in late 2014 during the investigation into defective air bags which resulted in serious injuries to drivers and passengers across the country.

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After a car wreck, the importance of calling an experienced injury lawyer before you call any insurance company is paramount.  Remember this: anything you say to the insurer can and will be used against you.  Even if you are sure that the other driver is at fault, and even if the police officer fully blames the other driver, the involved insurance companies (including your own insurer) may very well assign you fault for causing the crash.

Here’s a typical scenario. My client was headed straight through a green light at an intersection.  The at-fault driver turned left, violated my client’s right-of-way and caused Continue reading →