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Florida’s 5th District Court of Appeal scrapped a nursing home arbitration agreement because of an unenforceable damage cap contained therein – one that the court said went to the financial heart of the agreement. OLYMPUS DIGITAL CAMERA

In Estate of Novosett v. Arc Villages, the court decided that because this part of the agreement was not enforceable, the entire agreement was unenforceable. That leaves plaintiff free to pursue remedy through the courts, as opposed to being forced to take the case before an arbitrator.

Still, justices asked the Florida Supreme Court to weigh in on whether arbitration could be compelled based on the severability clause of the contract.  Continue reading →

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The Florida Supreme Court has agreed to consider whether the 4th District Court of Appeals made the right call in finding damage caps on personal injury verdicts stemming from medical malpractice unconstitutional. needle1

In the case of North Broward Hospital District v. Kalitan, defendant appeals finding that the $500,000 damage caps for medical malpractice injuries are unconstitutional. The appeals court based its ruling on the 2014 Florida Supreme Court decision in McCall v. U.S., which was a wrongful death lawsuit stemming from medical negligence.

In McCall, the Florida Supreme Court ruled that damage caps in wrongful death cases involving medical malpractice were arbitrary and violated plaintiffs’ constitutional rights to equal protection. Further, the court pointed out the stated purpose of the legislators’ action – a purported crisis with health care insurance premiums – was ill-founded. In fact, there is little evidence to suggest that imposing a cap on damages lowers health care insurance costs.  Continue reading →

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Florida’s dram shop law may offer monetary relief for drunk driving accident victims – but only under limited circumstances. beerhand

As far as dram shop laws go, Florida’s is one of the most narrow. Codified in F.S. 768.125, the measure protects persons and business establishments that furnish alcoholic beverages to those of lawful drinking age who are not known to be habitually addicted to alcohol. That means the only time drunk driving accident victims can sue the bar that served the driver may be if the driver was under 21 or if he or she was a known alcoholic.

There have been some instances in which the courts have extended liability, but it usually involves additional assumption of duty. That’s what plaintiffs in the recent case of Torre v. Flanigan’s Enterprises Inc. sought to establish. Continue reading →

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Johnson & Johnson, along with its subsidiary DePuy, recently lost a $500 million lawsuit in a consolidated case of five Texas patients who suffered serious injury as a result of defective hip implants. sadness2

The patient accused the company of concealing the design flaws and dangers of its Pinnacle artificial hip implants. Plaintiffs alleged these metal-on-metal implants:

  • Failed prematurely
  • Caused tissue death
  • Resulted in bone erosion
  • Left them with high levels of metal in their blood

Although the manufacturing company was aware of the shortfalls of its products, plaintiffs alleged, it continued to market them aggressively. These artificial hips were touted as being best-suited to younger patients and those with more active lifestyles.  Continue reading →

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Fort Myers medical malpractice lawsuits are different from other kinds of claims alleging general negligence. Basically, cases against doctors, nurses and other health care professionals are held to a higher standard than other types of claims. surgery

It’s not enough that there was a bad outcome or even to show that the health care provider was negligent. Instead, what one has to show, is that the actions of the health care worker breached the applicable standard of care. For this, you have to hire an expert witness with the same professional training as defendant who can attest to that professional standard (it varies by profession and location) and how the defense violated it.

Additionally, there are a host of notification requirements and other rules that apply to medical malpractice claims that simply don’t apply to other types of negligence lawsuits.  Continue reading →

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Concerns about bus and motor coach safety have increased in recent years with a number of high-profile accidents, many resulting in multiple fatalities. busdriver1

Motor coaches are widely used for a variety of trips, including school sporting events, family vacations and outings for seniors. But a number of serious crashes have prompted the National Transportation Safety Board (NTSB) to recommend the Federal Motor Carrier Administration (FMCSA) work with bus operators and the trucking industry to implement improved commercial vehicle safety measures that would include:

  • Flame-resistant interiors;
  • Data recorders;
  • A second door for emergency evacuations;
  • Pre-trip safety briefings for passengers;
  • Windows that can stay open during evacuation.

Continue reading →

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In some Fort Myers car accident lawsuits, defendants will allege injuries or damages incurred by plaintiff were not as serious as he or she has stated because the crash was low-impact. brakes

However, just because a crash happened at a relatively low speed does not mean serious injury is an impossibility. Consider that:

  • A typical automobile weighs about 2,000 pounds;
  • A collision at 10 miles-per-hour is going to result in an average impact force of 3.7 tons;
  • A 3,000-pound vehicle striking at 10 mph is going to result in a force of impact of about 5.6 tons.

The force of impact to one’s back and neck is significant. Plus, when a person is involved in a rear-end accident, it’ s important to understand a physics principle known as “magnification of acceleration.” What that means is the occupants of a vehicle are going to accelerate a lot faster than the car that is impacted, which means they are going to absorb much more of the force. So even a low-impact crash can result in substantial injuries.  Continue reading →

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Florida drivers can expect to see more motorcyclists on the roads this month, an estimated 500,000 motorcycle enthusiasts come rumbling into the state for Daytona Bike Week, which stretches through the first and second weeks of March. motorcycle7

Many of those bikers are from out-of-state, and many take the opportunity to make a longer trip of it and ride through the rest of the state. Even those who live here full-time may be traveling cross-state to attend the popular 10-day event.

It’s an opportune time to discuss the fact that motorcycle riders face unique dangers on our highways, especially because Florida has more motorcycle fatalities than anywhere else in the country.  Continue reading →

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Preston J. Scheiner, a trial attorney at Bruce L. Scheiner, Attorneys for the Injured, recently spoke at the national Anatomy of a Personal Injury Lawsuit Seminar in Scottsdale, Arizona.photo__1320671_image006

The conference, held last month, was a feature event to highlight one of the best new personal injury lawyer resources available, “Anatomy of  Personal Injury Lawsuit (Trial Guides 2015).” The book, published by the American Association for Justice, contains contributions from 60 of the most well-respected injury lawyers in the country. Preston Scheiner was among them.

The 4th edition of the book offered detailed advice, arguments, charts, illustrations, practice tips and examples to assist other personal injury attorneys across the country. It offers a step-by-step navigation of how personal injury claims should traverse the legal system. It is an honor to share this information to assist other injury attorneys in the fight against injustice and for the rightful compensation of those harmed by the carelessness and recklessness of others.

Preston Scheiner’s contribution focused on, “Damages: Wage Loss-Related Damages.”  Continue reading →

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A proposed class action lawsuit alleges side airbags in the Nissan Frontier pickup truck deploy without cause, posing an unreasonable risk of accidents and injuries.airbag

According to court records in Brantley v. Nissan North America Inc. et al., the carmaker is accused of having knowledge of this defect, and yet concealing it and also refusing to pay for repairs and damages to those affected.

The side airbags in question were reportedly designed for 2011-2012 model years. The purpose of the feature is to protect passengers in the event of a rollover or near rollover. Plaintiff alleges the company failed to warn motorists of just how sensitive these air bags can be. Complaint also claims the seat belt pretensioner igniters – the feature that tightens the slack on a safety belt in the event of an accident – is far too sensitive. Continue reading →