Miami Beach Injury Law News

Miami Beware: Carbon Monoxide Poisoning Leading Cause of Poisoning Deaths According to New CDC Study

2011-11-21T15:07:00.000-05:00

This week, the U.S. Centers for Disease Control and Prevention (CDC) issued its report on deaths by poison in this country, and it has been confirmed that carbon monoxide poisoning is the leading cause of unintentional poisoning deaths in the United States.

Hundreds of people die each year from inhaling carbon monoxide without knowing it. Thousands must be hospitalized after breathing these toxic fumes. The CDC numbers are not from exposures that are intended (e.g., suicide attempts or homicides). These are accidents, unintentional breathing of carbon monoxide.

What is carbon monoxide?

Carbon monoxide kills humans and other animals that breath it in. It is a poisonous, toxic gas that is especially dangerous because it is colorless, odorless, and tasteless.

There is no way to know if it is present in a room unless technology helps with a CO monitor.

What are the symptoms of Carbon Monoxide (CO) poisoning?

If you have inhaled toxic carbon monoxide fumes then you may first experience some or all of the following:

headaches
nausea
light headedness/dizzyness
flu-like symptoms (aches, pains, congestion)

Left in the presence of CO, you can lose consciousness and eventually die.

Miami, Do You Need to Worry About This? Yes, You Do.

Carbon Monoxide poisoning does not sound like something that the sunny beach communities of South Florida need to be concerned with, right? Isn't this something that happens to people living in snowy winters trying to stay warm with open ovens or faulty space heaters?

It's true that colder climates do see more heater accidents and CO poisonings due to heating needs, but that doesn't make Miami immune. Florida does get cold in the winter.

And tragic deaths from CO poisoning do happen here. Remember the teenagers, partying in a local hotel room who died from car exhaust fumes that entered the room where they slept?

Be careful, Miami -- educate yourself about CO poisoning at the CDC Information page.

By Bryant Esquenazi on August 9, 2011 12:51 PM

Government Extends Deadline Requiring Toys to Be Independently Tested Before American Kids Can Play With Them

2011-11-21T15:05:00.000-05:00

Children are hurt, seriously injured, or killed by toys every day - and this is becoming a growing danger as more and more children's products are being manufactured overseas and then imported and sold in the United States.

Toys Can Be Deadly

Fun, friendly childrens toys can cut, electrocute, or otherwise seriously injure kids of all ages. For example, the consumer advocacy group W.A.T.C.H. has published its annual most dangerous toys list at toysafety.org, with the 2010 lineup including:

1. SPY GEAR SPLIT-BLASTER (eye injuries)
2. SUPASPLAT SPLATBLASTER (eye, face impact injuries)
3. KUNG FU PANDA SWORD OF HEROES (impact injuries)
4. MY FIRST MINI CYCLE (head, impact injuries)
5. PULL ALONG CATERPILLAR (choking injuries)

Government Will Require Third Parties to Check Toys for Safety Before They Are Sold

With the growing problem of toys hurting kids, the U.S. Consumer Product Safety Commission (CPSC) approved new third party testing requirements for the toy industry.

However, according to its latest press release, the CPSC has voted to give manufacturers, importers and private labelers additional time to put a third party testing program into place. This, even though they've already had 2 years to get ready for this double-check. From the CPSC:

CPSC has approved a stay of enforcement on the requirement for third party testing and certification of children's toys until December 31, 2011. The Commission will enforce third party testing and certification of compliance based on the testing for toys manufactured or imported after that date.

In the Consumer Product Safety Improvement Act of 2008 (CPSIA), Congress required that the existing voluntary standard become a mandatory standard and directed CPSC to require testing to that standard. In May 2009, the Commission adopted the updated voluntary ASTM standard known as F 963-08 as the mandatory safety standard for toys and ASTM F 963-07ε1 as the mandatory safety standard for toy chests.

Safeguards in the mandatory toy standard strive to eliminate electrical, thermal and mechanical hazards, including cuts from broken wires, strangulations from long cords, burns from heating elements, shocks from electrical circuits and suffocations from hemispherical-shaped objects.

If your child is hurt by a toy, then you may have a claim for justice against not only the toy manufacturer, but also the distributor and the store where you purchased the product. Make sure your child is safe, then safeguard the toy (it may be evidence). Then, call your lawyer if you think you have a claim. Oftentimes, it is only from courtroom lessons that these toy makers learn to put people over profits.

By Bryant Esquenazi on August 4, 2011 1:57 PM

Miami Beach: Get Ready Now for Hurricane Damage, Tropical Storm Emily Headed Our Way: What to Do After the Storm Hits

2011-11-21T15:04:00.000-05:00

In a prior post, we discussed what to do in preparation for a hurricane - something that we all expect to happen in our lives sooner or later, here in South Florida.

Today, the Miami Herald is reporting that Tropical Storm Emily is increasing in power, and will be a hurricane soon. Emily is tracking a course that may bring her to landfall here ... or very close to South Florida.

What Should You Do After the Hurricane Hits?

Hopefully, Emily won't be as powerful or as devastating as storms of the past but we can expect some Floridians to have serious property damage in even the mildest of hurricanes.

So, assuming that you and your loved ones are safe and secure while a hurricane lambasts your Florida home, what should you do when you return to find your home, car, boat, truck, etc. damaged by the winds and rain?

First, since you have prepared in advance, you will have an insurance policy that covers this sort of thing. You'll gather all the information that you can about that policy (a copy is best; even the name of the agent or company may have to suffice).
Second, you can contact the insurance company yourself about filing your claim. Many do. However, it may be wise to contact an injury lawyer first, who can go over the legalese with you regarding coverage as well as help in the negotiations with the insurance company.
It may also be smart to get estimates, etc. from contractors if you can, to give you an idea about your damages before you start dealing with the insurer. Time is a factor in filing your claim, too, so be prudent here.
Third, remember that you will be entering into negotiations with an adjuster who has suddenly been given a huge caseload because his region has been hit by a hurricane. Money in settlement will be a big concern for the company big wigs who will want to keep the overall cost of this storm to their company at a minimum. These companies spend lots of time and money worrying about the outlay of a future hurricane - and they will be monitoring their own bottom line after the storm hits.

Negotiations can include not only the value of the damage and reimbursement for a lost asset, it can also involve an argument on whether or not something is legally covered by the policy. Your insurance company is not on the same side of the table as you are: if there is a lawsuit, you will be plaintiff and the company, the defendant. Your insurance agent's interests are not that of a best friend helping you through a crisis, no matter how they look in the TV commercials.

Emily may hit Miami Beach, or she may not. Maybe no hurricane will hit Florida this year. However, it's better to be safe that sorry -- so get ready now for the big storm, and if we are hit, then call a lawyer if you need help with your insurance claim.

By Bryant Esquenazi on August 2, 2011 3:53 PM

Miami, Be Careful: Kids Are Dying In Cars From Heat Exposure - Feds Call Meeting on Increasing Danger

2011-11-21T15:03:00.000-05:00

This week, the National Highway Traffic Safety Administration (NHTSA) invited car makers, safety advocates,and consumer interest groups to meet in a precedent-setting "round table" discussion about how to combat the growing danger of kids under the age of 14 dying in cars from heat exposure, aka "hyperthermia."

Feds Are Worried About Number of Kids Dying From Heat in Cars

In 2011, 21 children have died so far from heat-related deaths and that number is expected to almost double during this fluke heat wave that is hitting parts of the country that isn't used to 90-100 degree temperatures. NHTSA is reporting that hyperthermia kills more kids 14 years old and under in cars than anything other than major car wrecks.

Miami, it's dangerous to leave kids in cars - even when the thermostat reads as low as 70 degrees

According to the research, even a mild day with temperatures as low as 70 degrees outside can still mean a child can die from heat exposure if they are left in a car setting in the sun. Floridians understand this: the sun beating down on a metal car can heat that interior quickly; here in Miami, we know to leave the windows open just a bit, for example, or risk returning to the car and finding the windshield or a door window cracked from the heat.

What are the symptoms of heat exposure? A child or adult suffering from a body temperature that is too high (104 degrees or higher) may experience the following:

dizziness
disorientation
agitation
confusion
sluggishness
seizure
hot dry skin that is flushed but not sweaty
loss of consciousness
rapid heart beat
hallucinations.

NHTSA is meeting with experts in this area to brainstorm ways to increase public awareness and to save kids from preventable injuries and death from heat exposure.

Please spread the word on this very real danger - and don't leave your kids in the car.

By Bryant Esquenazi on July 28, 2011 1:51 PM

Boogie Board Injuries: Christopher Schwarzenegger Accident Should Bring Spotlight to Dangers of Boogie Board Serious Injury

2011-11-08T17:02:00.000-05:00

The 13-year-old son of Arnold Schwarzenegger and Maria Schriver, Christopher Schwarzenegger, was released from the hospital last night after suffering serious injuries while boogie boarding near Malibu.

Life-threatening injuries from Boogie Board accident

Schwarzenegger was reported to have suffered multiple broken bones and a collapsed lung - and spent several days in the Intensive Care Unit - after he had a bad spill on his boogie board while boogieboarding, crashing head-first into an object on the beach.

Boogie Board Injuries Are Often Serious - Especially for Teens

Boogie boards are popular here in Miami, as well as on most Florida beaches, and elsewhere around the world where ocean waves beckon. However, boogie boards are also well-known among injury experts -- medical experts, legal experts -- as being dangerous, especially for teenagers. Consider the 2002 discussion by Australian medical researchers on the likelihood that children and adolescents who ride boogie boards are especially vulnerable to severe abdominal injuries.

What To Do If Boogie Board Accident Happens To Your Loved One

If your day at the beach takes an unexpected turn because of a boogieboard accident, then remember to remain calm, and get medical help for the victim as soon as possible. Call 911, and be aware of the possibility of multiple broken bones or injured internal organs before attempting any type of movement of the injured person. Ask for directives from the 911 operator on how best to help the victim until Emergency Medical Care arrives.

It is also important, from a legal perspective, to document the scene as soon as possible. Have someone take photographs of the boogie board (is it cracked?) as well as the state of the beach (is it littered with debris?) and the height of the waves. Take the names and contact information from those who witnessed what has just happened.

It may sound callous, but having the facts as soon as possible can mean all the difference when an insurance claim is filed and an adjuster begins questioning whether or not coverage is available, etc.

By Bryant Esquenazi on July 26, 2011 2:36 PM

Ford Recall July 2011 - Another Big Ford Pick-up Truck Recall, Miami Ford Truck Drivers Take Note

2011-11-08T17:00:00.000-05:00

Ford Motor Company just announced another big recall for Ford vehicles. Another one.

Back in March 2011, we posted about the Ford recall of Ford pickup trucks because their tires could blow out and cause accidents.

The very next month, April 2011, Ford Motor Company announced another recall - this time, 1.2 million of Ford's F150 pickup trucks were recalled because of an electrical wiring problem. Seems that the Ford F150 pick-up truck airbags could just pop open on a whim, causing accidents or injuries.

Now, here it is: July 2011, and Ford Motor Company is recalling Ford pick up trucks again. This time, Ford Ranger pickup trucks, Ford Excursion SUVs, and a variety of Ford F-series pickup trucks (F-250, F-350, F-450, and F-550) are being recalled because of a problem with an electrical gizmo that could make the tail lights not work. Which might cause a wreck, say, if no one sees the brakes are on because the truck's brake lights don't work, right?

For details on all these Ford Pick-up Truck Recalls, check out recalls.gov or go to the Ford Motor Company website's recall information page.

And remember: products can cause serious harm or injury, and defective products do kill people. It's wise to respond to a product recall.

If you drive a Ford pick-up truck, then drive by your dealer and get it checked out - you never know what wreck you may be preventing just by doing this one little chore. And, sure, with this record it sounds like you might be dropping by the dealership every month to six weeks ... if Ford's recall track record stays on its monthly schedule.

What if you were in a wreck while driving a Ford pickup truck? The product (here, the truck) might be a contributing factor to your accident and something you need to investigate, discuss with your injury attorney. Product liability claims are possible and are different from filing claims against the negligent driver, etc., in a crash.

By Bryant Esquenazi on July 21, 2011 2:54 PM

Caylee's Law - Full Text of Proposed Florida Law (HB 37) and Is There a Wrongful Death Lawsuit Against Casey Anthony?

2011-11-08T16:59:00.000-05:00

Casey Anthony has been found not guilty and as this post is being typed, she is walking free somewhere, in an unknown location. Civil lawsuits have been filed against Casey Anthony - the defamation personal injury lawsuit by Zenaida Gonzalez is active now.

Other civil lawsuits are being discussed, particularly a wrongful death lawsuit brought against her on behalf of Caylee Anthony - and in that civil personal injury wrongful death suit, the burden of proof would be the lesser "preponderance of the evidence standard" not the higher "reasonable doubt" standard that the criminal jury found so insurmountable.

One key to that wrongful death case: who would file it? Under Florida law, as discussed here in a prior post, only certain family members may file a lawsuit seeking damages for the death of someone that has been proximately caused by another.

(Read the Florida Wrongful Death Act, Fla Stat 768.16 - 768.26, here.)

The most obvious party to file that suit? The baby's father. However, no one knows who is the father of Caylee Marie Anthony. Another clear possibility: the Executor of the Estate of Caylee Marie Anthony, whomever that might be (maybe one of the grandparents?). Will another family member file a wrongful death lawsuit against Casey Anthony on behalf of Caylee? No one has so far.

Another hurdle: what's their deadline to file? The standard limitations deadline for a wrongful death lawsuit in Florida, based upon an accident, is two years. Last year (July 2010), then-governor Charlie Crist signed into law the "Jeffrey Klee Memorial Act" which removed any deadline for a party to file a wrongful death lawsuit when the death was caused by homicide. The acquittal of Casey Anthony cleared her of homicide, so any suit against her for wrongful death arguably would not have the protection of the Klee Law.

Full Text of Proposed Florida Caylee's Law

In the aftermath of her surprising acquittal, grass roots campaigns across the country have sprung up, pushing for versions of "Caylee's Law" to be passed by state legislatures as well as the federal government. In Florida, that proposed legislation is HB 37 -- and you can read the full text here.

By Bryant Esquenazi on July 19, 2011 3:12 PM

Hot Cars are Death Traps: Babies Left in Cars Will Die From Heat - Miami's Dominicue Andrews Tragedy One More Example

2011-11-08T16:58:00.000-05:00

Every year, babies die from heat stroke after being left in a hot car. And while the Miami Dade medical examiner has not released findings yet, it appears that the tragic death of little Dominicue Andrews, 22 months old, may be added to those statistics.

Dominicue Andrews was pronounced dead earlier this week after he was discovered near a van parked outside his daycare, the Jomiba Learning Center. His parents have announced that they will be suing the daycare facility.

This is a national problem. And, responsible personal injury attorneys applaud the efforts to educate the public and to help busy parents in eradicating this modern-day dilemma - no one wants to hear of a baby dying, and no one wants any parent to have to deal with the aftermath of this situation.

According to one study, a baby dies from heatstroke after being left in a hot car EVERY TEN DAYS in this country. There are even more instances of near-death accidents, where babies are found before heatstroke has caused them to perish in the hot sealed environment of a motor vehicle.

How does this happen?

Sometimes the parent forgets that the child is in the backseat, drives to work, and leaves the child in the car for the entire workday;
Sometimes caretakers forget a little one is in the hot car and cannot exit the vehicle on his/her own;
Sometimes the child manages to get inside the car through an unlocked door or open window and then cannot get back out of the vehicle.

Efforts to Stop These Kinds of Infant Deaths

Several efforts have been undertaken across the country to fight against these horrific deaths. There have been media campaigns designed to make everyone aware of the dangers of babies left in cars -- not only to help parents but to encourage all of us to check the cars in the parking garage or mall parking lot for babies in the backseat.

NASA developed the "Child Presence Sensor" - a mechanism that alerts parents when babies are in the vehicle.

And, personal injury wrongful death lawsuits have been filed - as it's suggested will happen in the Dominicue Andrews case - to pursue justice in infant heatstroke deaths. There are those that argue these cases are just for money but that's not true.

Wrongful death litigation serves society by not only focusing upon circumstances that need to be changed, but (though "punitive damages") providing an example to an industry that better consumer safety protections are just and right to implement.

By suing one day care, for example, maybe the lives of babies in the future will be saved because caregivers across the country will institute car checks, vehicle monitors, or other safety checks to insure that toddlers are not inside a hot vehicle during their watch. (If only to avoid being sued themselves.)

Our sincerest condolences to the family of Dominicue Andrews and all others who have lost little loved ones in this sort of tragic way.

By Bryant Esquenazi on July 14, 2011 1:48 PM

Sports Injuries Can Be Serious, Even Deadly: Jury Awards $10 Million in Wrongful Death of Florida College Football Player UCF's Ereck Plancher

2011-11-08T16:56:00.000-05:00

Last week, an Orlando Jury Awarded $10 Million to the Parents of a College Freshman Who Died During Football Practice at the University of Central Florida

Ereck Plancher was only 19 years old when he died during a football practice (he was a wide receiver) at the University of Central Florida and last week, the jury came back with a $10 million verdict in the wrongful death personal injury lawsuit filed by Mr. and Mrs. Plancher against the University of Central Florida Athletics Association. The jury, however, did not award any punitive damages.

It has been reported that the jurors did not award any punitive damages because there was insufficient evidence that the school's football coach withheld water from Plancher as well as keeping team trainers from the boy after he had collapsed in an off-season workout designed to build the players up before the actual football season begins.

The National Center for Sports Safety keeps statistics on American kids who are injured or killed during sporting events every year, and according to their site (sourcing to Safe Kids USA):

Over 3,500,000 kids aged 14-18 are injured while playing sports each year with injuries that are serious enough to need professional medical treatment
Almost a fourth (21%) of all traumatic brain injuries suffered by kids in the United States each year are the result of sport injuries
Sixty-two percent (62%) of injuries sustained during organized sports happen during practices and not the official games, even though 33% of parents don't take practices as seriously as games and don't take the same safety precautions for practice.

The Orlando Sentinel reports that in the past decade, 19 college football players have died while participating in offseason conditioning drills.

Of course, the University will appeal the Plancher verdict, and it may be years before the family actually sees any money from this case. And if you find this cruel and heartless, you are not alone: CBS News Commentator Gregg Doyel has spoken for many when he has labeled the University, where the young man died under their watchful eye, shameless.

Lessons for Parents of Kids Playing School Sports From the Ereck Plancher Lawsuit

For parents in Florida and across the country, it's time to take heed of the jury verdict in the Ereck Plancher lawsuit and recognize that kids need protection during practices as well as games at any school sporting event. This doesn't just apply to football, and it doesn't just apply to college-level competition.

However, it's also important to recognize this country's organized sporting industry and the importance of sports to school districts as well as colleges and universities. There's money to be made, and profits to be protected.

Which means that if a child is tragically injured or killed when he or she is practicing a sport or playing a game, then the parents may have a long, hard fight to get justice: they, too, may face a "shameful" appeal.

It's always shocking when deep pocket defendants try and avoid responsibility for their actions because of monetary concerns, but it's especially true when children have been the victims. Something that personal injury lawyers, unfortunately, see happen all too often in this country today.

By Bryant Esquenazi on July 12, 2011 11:23 AM

Class Action Lawsuits Can Be Only Hope for Some Injury Victims, Now U.S. Supreme Court Slams Door on Easy Access to These Kinds of Shared Group Lawsuits, Congress Investigating

2011-11-08T16:54:00.000-05:00

Class action lawsuits will be harder to pursue in the future, because the United States Supreme Court has issued two rulings making it much more difficult for plaintiffs to group together into one, big lawsuit and pursue justice against evildoing defendants.

This is not good news for injury victims and their families in Florida or elsewhere in the United States.

Think Erin Brockovich without the ability to get all those folk together into one big lawsuit - the real Pacific Gas & Electric (PG&E) class action made the basis of that Julia Roberts movie may be the most well-known class action lawsuit among Floridians today.

Class action lawsuits allow a number of injured plaintiffs to group together into one big, fat lawsuit (the group is called a "class") and pool their efforts in pursuing justice. Usually, these class action lawsuits are against huge, rich, powerful corporations, like auto makers or drug manufacturers.

The two cases are Wal-Mart v. Dukes and AT&T v. Concepcion and many people are arguing that this is all politics -- that the conservative majority on the High Court have made life easier for Big Pharma and other big corporate defendants in the future.

Congress is Investigating What the Supreme Court Has Done to Average Joe Plaintiffs

In fact, Senate Judiciary Committee chairman Patrick Leahy (D-Vt.) has already begun investigating the impact of these rulings with a hearing on June 29, 2011, where the SJC began gathering witness testimony and evidence on these two cases and how their negative impact on class action lawsuits is really barring access of citizens to the courts to address and right bad behavior by huge, powerful corporations.

The Legislative Branch does have the ability to pass laws that could bring protections back to American Plaintiffs that have been hurt by these two opinions. Hopefully, justice will prevail -- but for now, the Supreme Court has curtailed the ability of plaintiffs to sue as a group, and this is good news only for big business defendants.

By Bryant Esquenazi on July 7, 2011 1:48 PM

Miami Beach Cop Crashes ATV: Miami Police Causing Personal Injuries - What is Sovereign Immunity and When Can the Government Be Sued for Injury or Death?

2011-11-08T16:53:00.000-05:00

Over this past Fourth of July weekend, a veteran Miami Beach cop named Derick Kuilan who was on the job (on duty) left a local hotel bar with a young woman, giving her a ride on the beach on his ATV.

They sped along, this cop and his lady friend, and they were going fast. It was dark. The ATV's lights were off.

The ATV was going so fast, in fact, that Luis Almonte and his girlfriend Kitzie Nicantor couldn't get out of the ATV's way in time, and both were run over by the police officer (again, who was ON DUTY) and seriously injured. The cop's friend, Adelee Sharie Martin, was reported thrown from the ATV but not hurt very badly.

If This Were Not a Cop....

If this were not a police officer, then this would be a straight-up personal injury law example: an ATV crash where the duty of the driver to be safe as he operated his all-terrain vehicle would be examined, to see if the driver breached that duty and caused the injuries sustained by the victim. If negligence was found, then the driver (and his insurance coverage) would have to cover the damages sustained by those who had been hurt.

When a Government Employee Is Involved in a Crash, It's a Different Situation

Things are different in a personal injury situation where a government employee is involved as the person operating the vehicle that crashes. Whether it is a car, an ATV, a motorcycle, or an SUV, if that government vehicle is involved then something called "sovereign immunity" may apply.

Or not. It's been reported in the Miami Beach ATV crash that officer Kuilan was seen fleeing the scene of the accident after it happened -- a key fact -- and that tests of his BAC levels (blood alcohol content) are being done by Internal Affairs, as he is on administrative leave from his job.

Witnesses say that the accident happened at around five o'clock on the morning of Sunday, July 3, 2011, and that after the crash, Kuilan asked onlookers to help him out and not say anything before he ran away.

What is Sovereign Immunity?

The idea of "sovereign immunity" has been a legal concept since ancient times, where it was more commonly known as "the king can do no wrong." Today, it is a legal concept, or "doctrine," that bars anyone from suing a governmental agency (like a police department) unless there are laws on the books that allow that lawsuit to be filed.

In other words, if the State of Florida does not have a law that lets an injured person sue the Miami Beach Police Department -- or any other state agency, even the Governor himself -- then that lawsuit cannot be filed.

Why not? There are several reasons for sovereign immunity, including protecting taxpayer money. If the accident happened in the course of a proper governmental action, then in the balance, it may be seen as better to protect the taxpayers as a whole than allow lawsuits for damages against a state entity.

For more details, check out this summary of sovereign immunity prepared by the Florida Senate.

Florida Statute 768.28 - Limited Ability to Sue Florida Government for Personal Injury

The Florida Legislature has passed a law that allows injured victims in Florida to sue for damages, waiving sovereign immunity in some situations. Of course, this law limits who can be sued, how much attorneys' fees can be awarded, etc. - but Florida does have laws on the books waiving sovereign immunity in some situations.

For the full text of Florida Statute 768.28, go here.

One of the Keys to Sovereign Immunity is Scope of Employment

One of the first questions to ask when a government agency, like a police department, is involved in a personal injury claim, is whether or not sovereign immunity bars the suit, and one of the key issues in that analysis is this: was the government employee acting in his scope of employment at the time of the accident?

Was a Miami Beach police officer in the scope of his employment, allegedly drinking at a hotel bar on a holiday weekend before taking a female passenger on a fast ATV ride in the dark, without headlights at five in the morning?

By Bryant Esquenazi on July 5, 2011 1:16 PM

FDA Panel Revokes Avastin for Breast Cancer Treatment Despite Patient Outcry

2011-11-08T16:51:00.000-05:00

This week, an FDA Panel made up of independent experts unanimously voted that the cancer-treatment drug Avastin (bevacizumab) no longer be sold as a treatment for breast cancer in the United States. It will now be up to the FDA Commissioner, Margaret Hamburg, M.D., to review and decide upon the panel's recommendation - and if the Commissioner agrees, then the FDA will remove Avastin from the market.

Last December, as we detailed in our post, "Today's Recall of Breast Cancer Drug Avastin: Scandalous FDA Drug Recall That Many Deem "Death Panel" Decision," there was a recall of the drug - which was met by huge patient outcry and many pointing to Avastin as the first example of Death Panels in this country.

Despite that huge backlash in December, this FDA panel has issued its conclusion that Avastin offers "no substantial benefits" while it has "substantial risks" to victims of breast cancer. Interestingly, the panel okayed Avastin for other cancer treatments, such as lung cancer, colo-rectal cancer, renal cell carcinoma, and cancerous brain tumors.

Want to make a comment to the FDA Director on Avastin?

You can email her at margaret.hamburg@fda.hhs.gov.

By Bryant Esquenazi on June 30, 2011 1:15 PM

Is Florida No-Fault Car Insurance Doomed Because of Claims of Insurance Fraud?

2011-11-08T16:50:00.000-05:00

Across Florida, lots of people are filing fake car insurance claims and the insurance companies are arguing that this is due to no-fault insurance: the insurance industry does not like no-fault auto insurance policies. (For an explanation of P.I.P. coverage, read our earlier post, "What is PIP Insurance Coverage - and How Insurance Companies Just Lost Their Latest Try at Getting Florida to Gut PIP Coverage.")

It's easy to understand why. The insurance company does not investigate or question claims that it receives after an accident to try and place blame: instead, under Florida's no fault laws, when there is a car wreck, each policyholder is paid by their own insurance company for their injuries. You get hurt, your car gets damaged: you file a claim with your carrier.

It means that injured people in Florida get insurance coverage fast because there is no fight between two insurance companies about who is going to be responsible for paying the medical bills. That's a good thing.

However, apparently there are people who are taking advantage of the system in this bad economic time and the Florida insurance companies want to change the playing field. They don't want no fault insurance any longer.

According to a recent FoxBusiness news story, Florida leads the country in car insurance fraud. Criminals stage car crashes just to file the P.I.P. claims and the National Insurance Crime Bureau representative is quoted as saying that organized crime is involved. Apparently, there is an organization of car drivers and grifting medical clinics working together to systematically bilk millions from national insurance companies, all because of the no fault protections.

Reform? No, the insurance companies want to end no fault insurance in this country. Which means more fights before claims are paid for injured victims who are already suffering through no fault of their own. That is not good for honest Floridians who get hurt in accidents and need fast, dependable insurance help.

The fight to end Florida No Fault Car Insurance isn't over just because the lobbying failed with the Florida Legislature this spring. There is a huge public campaign backed with lots of power and clout, focused and fighting not to fix, but to end no fault coverage in this state. Be aware.

By Bryant Esquenazi on June 28, 2011 2:09 PM

'Jackass' star Ryan Dunn Dies in Drunk Driving Accident: Will the Bar Be Sued? Will His Friends Who Let Him Drive Away? Lessons on the Law of Duty

2011-11-08T16:48:00.000-05:00

Ryan Dunn, best known as one of the stars of the movie "Jackass" was put to rest yesterday at a memorial service attended by several celebrities as well as many fans. The rumors that the Westboro Baptist Church would show up to protest didn't pan out: there were no protesters there.

At this point, pretty much everyone knows that Ryan Dunn died while driving drunk, with a blood alcohol content twice the legal limit, after losing control of his car while going between 130 and 140 mph, killing both Dunn and his passenger, Zach Hartwell, in a fiery one-car crash after the car veered off the roadway.

We also know that shortly before the crash, Ryan Dunn was seen at a local bar, partying with friends, and the latest tally was that he had 6 shots and 2 beers before getting behind the wheel. There are photos.

Meanwhile, renowned movie critic Roger Ebert backpedaled on his Twitter tweet published shortly after the news of Dunn's death hit the airwaves: he first tweeted, "Friends don't let jackasses drink and drive," and after worldwide backlash, Ebert apologized with "I should clarify: Anyone who drinks and drives is a jackass. That included me in my drinking days. Some are lucky enough to find sobriety," as well as writing a blog post on the subject. To read all his tweets, check out @ebertchicago.

Will the Bar Get Sued? No

There has already been an announcement that the bar where Dunn was seen drinking will not be held liable for contributing to this accident because there is no evidence that the bar employees or management were aware that Dunn was drunk. He didn't look drunk, he didn't weave or slur his words or anything like that ... so the police have released the bar folk from liability.

Why? If the bar is not aware that someone is under the influence, then they don't have a duty to step into the situation and stop serving the customer. Or to call a cab. Or chat with pals. No duty.

Will His Pals Get Sued? No.

There is no duty under the law to proactively step in and protect someone else. His friends shoulda coulda woulda ... but the law does not impose a duty on a citizen to invade the freedom of another citizen by taking their keys or driving them home. It may be the right thing to do, but it's not the legal thing to do. No duty.

Will the Estate of Ryan Dunn Get Sued? Maybe Yes.

There is a legal duty of a driver to protect those in his or her vehicle. It's negligence, maybe gross negligence, maybe more to drive drunk with someone sitting in that passenger seat. You have a legal duty to drive safely. You have a legal duty to obey the law -- no speeding, no driving while under the influence.

So, in this terrible tragedy, the only clear legal duty right now is the one owed by the driver to the passenger. And that duty looks to have been breached by the driver when the car crashed and killed Zach Hartwell.

Prediction: The Estate of Zach Hartwell will seek wrongful death damages from the Estate of Rick Dunn. Sad, but true. Legal duty.

By Bryant Esquenazi on June 23, 2011 2:25 PM

Hot Coffee Documentary on HBO Next Monday: Slant and Distortion of Plaintiffs Personal Injury Lawsuits Is Intentional - Watch This Show

2011-11-01T13:53:00.000-04:00

Hot Coffee is a documentary film that has already won lots of awards for filmmaker Susan Saladoff - and hopefully its debut next Monday, June 27, 2011, on HBO will bring it great exposure and success.

Why? Because Hot Coffee brings to light the slant and distortion that has pervaded the media as well as public perception not only of the McDonald's Hot Coffee case (which was far from a frivilous suit, this woman was severely injured) but to all the attempts to limit an injury victim's rights to justice in the American courtroom.

Last summer's post, "In Defense of the McDonald's Coffee Cup Case - Again," discussed the McDonald's Hot Coffee case and how people simply don't know the real story of what happened in that case. It's amazing how wrong the perceptions are, almost like that 'telephone' game we all played as kids. With each messenger, the message gets changed just a bit.

Hot Coffee, the HBO Documentary, Sheds Light on How Truth Has Been Hidden From You

From the website, the filmmakers discuss their film:

"Despite the fact that federal legislation has never been successful, big business interests have won in the hearts and minds of average people. They launched a public relations campaign starting in the mid-80's and continuing over the last two decades to convince the public that we have out of control juries, too many frivolous lawsuits and a civil justice system that needs reforming. They have used anecdotes, half-truths and sometimes out and out lies in their efforts, for one purpose - to put limits on people's access to the court system, the one and only place where an average citizen can go toe to toe with those with money and power and still have a shot at justice."

http://www.youtube.com/watch?feature=player_embedded&v=q4UpQ8U4gX4

By Bryant Esquenazi on June 21, 2011 2:46 PM

Florida Man Victim of Pit Bull Attack While Doing Yard Work: Florida Dog Attack Laws Put Strict Liability on Dog Owner

2011-11-01T13:51:00.000-04:00

The Sun Sentinel is reporting today about an elderly gentlemen in Palatka who died in a Gainesville, Florida, hospital after suffering a vicious dog attack that resulted in one of his arms being severed and another almost being pulled from his body. The dogs, identified as either pit bulls or pit bull mixes, were owned by his neighbor. Seems they got out of their yard and attacked the man as he was doing yard work.

What a terrible thing to have happen to anyone. Unfortunately, dog attacks and dog bites are all too commonplace in Florida - and across the country.

According to the Center for Disease Control and Prevention, over 4,500,000 people are bitten by dogs every year in this country, and 20% of those folk need medical attention as a result of the bites.

Many of these dog bites involve certain breeds, and the pit bull is among the most feared breeds for dog attacks in Florida and the U.S. In fact, there is one website dedicated to recording all media reports of pit bull dog attacks, state by state, and you can visit it for a listing of pit bull attacks throughout Florida since 2009: www.pitattacksbystate.com.

Florida Laws Protect Dog Attack Victims With Personal Injury Lawsuits and Damage Claims

In Florida, the law stands ready to protect victims of dog attacks or dog bites. Anyone harmed by a dog in the State of Florida can sue for damages based upon the the dog bite laws (see below) as well as the common law bases of negligence or intentional tortious injury.

Here is the Florida Dog Bite Law (Fla. Stat. 767.01, 04):

Dog owner's liability for damages to persons, domestic

Dog owner's liability for damages to persons bitten.--The owner of any 767.04 dog that bites any person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of the dog, is liable for damages suffered by persons bitten, regardless of the former viciousness of the dog or the owners' knowledge of such viciousness. However, any negligence on the part of the person bitten that is a proximate cause of the biting incident reduces the liability of the owner of the dog by the percentage that the bitten person's negligence contributed to the biting incident. A person is lawfully upon private property of such owner within the meaning of this act when the person is on such property in the performance of any duty imposed upon him or her by the laws of this state or by the laws or postal regulations of the United States, or when the person is on such property upon invitation, expressed or implied, of the owner. However, the owner is not liable, except as to a person under the age of 6, or unless the damages are proximately caused by a negligent act or omission of the owner, if at the time of any such injury the owner had displayed in a prominent place on his or her premises a sign easily readable including the words "Bad Dog." The remedy provided by this section is in addition to and cumulative with any other remedy provided by statute or common law.
767.01 animals, or livestock.--Owners of dogs shall be liable for any damage done by their dogs to a person or to any animal included in the definitions of "domestic animal" and "livestock" as provided by s. 585.01.

How Safe is Your Diabetes Drug, Miami? Three Popular Diabetes Drugs Being Questioned by Government Agencies This Week

2011-11-01T13:48:00.000-04:00

What diabetes drug are you or a loved one depending upon to control diabetes safely? According to recent news reports, more and more of the diabetes drugs prescribed by doctors and previously okayed by the Food and Drug Administration (FDA) are now being questioned for their dangers.

Potentially unsafe and dangerous drugs for diabetes include:

1. Avandia (rosiglitazone)

Avandia was revealed to be risky last fall and instead of helping diabetes sufferers, too many Avandia users were experiencing heart attacks and dying from heart disease that may be tied to the diabetes drug rosiglitazone. A class action lawsuit was filed by 43 diabetes sufferers who are now Avandia victims just this week in Illinois.

2. Actos (pioglitazone)
This week, the diabetes drug Actos was pulled from the market in France and Germany because of concernes that this diabetes drug might be causing bladder cancer in those taking Actos. A research study done in France found that Actos users were 22% more likely to have bladder cancer as compared to diabetics using other prescriptions.

3. Victoza (liraglutide)
Liraglutide is used by diabetes sufferers who have been unsuccessful with first-line therapy, and is injected once a day. Yesterday, the FDA issued a warning that liraglutide injections (Victoza, Novo Nordisk) m ay be connected to thyroid C-cell tumors and acute pancreatitis.

We Must All Be Aware of Dangerous Drugs and Not Blindly Trust Medicine as Being Safe
Diabetes is a national epidemic - and here in South Florida, more and more diabetes sufferers are diagnosed every day. Dangerous drugs, unfortunately, are another huge national problem and it is not enough to trust your doctor or your pharmacy to give you or your loved one safe medicine.

Be aware of what you are taking - and if you are taking these diabetes drugs, please check with your doctor. Maybe you need to find another method to control your diabetes.

And if you or a loved one suffers from diabetes and now has a diagnosis of cancer, heart disease, or other life-threatening illness, then perhaps it's time to check with a lawyer, too. Don't trust a doctor to always let you know that you have a potential lawsuit.

By Bryant Esquenazi on June 14, 2011 1:27 PM

Flo Rida Charged With DUI in Miami Beach While Driving $1.7 Million Bugati: How DUI Charges Can Impact Personal Injury Claims

2011-11-01T13:47:00.000-04:00

You may know him as the guy with the hit song "Low" but Miami knows Tramar Dillard as Flo Rida (get it, Florida?) and when Flo Rida was arrested before sunrise this morning here in Miami Beach for suspicion of driving under the influence, he was just one more celebrity partying on vacation here in South Florida that may have had one too many.

Celebrities like Miami, Miami likes celebrities. Around here, we're not too surprised that Flo Rida may have been tipsy at 3:30 am -- but that ride is causing some talk. Seems that Mr. Dillard was driving a $1,700,000 car when he was pulled over: a red and black Bugatti.

According to police reports, Flo Rida was found to have a blood alcohol content that was twice the legal limit, and he failed a field sobriety test to boot. Now, that's all criminal stuff, right? Nothing to do with personal injury lawsuits, right?

In Flo Rida's case, right. Thankfully neither Mr. Dillard nor his very, very nice car were injured in any way - nor was anyone else (or anything else).

However, there's a lesson to be learned here. Driving drunk - and things like BAC levels -- can be used in personal injury lawsuits that involve major damages for wrongful death, severe injury, car crashes, pedestrian accidents, and the like to help prove the element of CAUSE.

In an accident case, the plaintiff must prove four basic things: duty, breach, cause, harm. A car driver has a duty to drive in accordance with state law, and if he violates the law then he is in breach of that duty. Driving under the influence proven in a criminal court is easy evidence here: just put the authenticated criminal records into evidence in the injury case.

Next comes cause - did that breach cause the plaintiff's harm? An accident while the driver has a BAC above the legal limit helps to establish the cause of the injury - and it's evidence that's been compiled by law enforcement, easy for a plaintiff's attorney to get and use in the civil suit.

No, Flo Rida isn't involved here in any injury suit. However, his arrest today does give us pause - or it should. Things could have been very bad this morning and we could be worried about Flo Rida today just like we are about Sean Kingston. And that Bugatti is pristine today just like it was yesterday, thankfully.

Duty, breach, cause, harm. The other side of driving under the influence - it's good to know.

By Bryant Esquenazi on June 9, 2011 1:55 PM

E coli O104 Outbreak Spreads from Europe to USA: Confirmed Victims in Tennessee and Virginia - Tips for South Florida to Avoid Exposure

2011-11-01T13:45:00.000-04:00

There is a dangerous bacteria killing people in Europe, and now the Center for Disease Control and Prevention has confirmed that it's already been found in the states of Tennessee and Virginia. It's being called "E coli O0104" and we need to be ready for it here in South Florida.

Over in Germany, the World Health Organization is reporting that locating the source of the bacteria may not happen because they are running out of time: is it vegetables, is it meat? There doesn't seem to be a common thread running between the victims (not everyone ate the same thing, swam in the same lake, etc.).

In May 2011, the FDA reported USA was safe: now Tennessee and Virginia have been hit with European E. coli strain

Tragically, a two year old little girl in Dryden, Virginia, died this past weekend from E coli O104 bacterial infection.

The Food and Drug Administration (FDA) has issued a statement on the E. coli O104 outbreak in Europe, and there should be more coming from the FDA very soon.

From the FDA, we know that:

consumers in Germany have been warned to avoid raw tomatoes, cucumbers and lettuce.
as of the date of this first release, the FDA believed that this outbreak had not affected the U.S. food supply.
the U.S. receives relatively little fresh produce from the EU, due to the short shelf life of most fresh produce and the availability of closer growing areas in the U.S. and Central America.
in May, the FDA established additional import controls to protect against E coli O104, including increased surveillance of fresh tomatoes, cucumbers, lettuce and raw salads from areas of concern.

Miami - Here's What You Should Do Now To Protect Against E coli O104 Bacteria Outbreak

The Food and Drug Administration recommends the following when dealing with raw fruits and vegetables:

When preparing any fresh produce, begin with clean hands. Wash your hands for 20 seconds with warm water and soap before and after preparation.
Wash the produce under running water just before preparing or eating. This includes produce grown conventionally or organically at home, or produce that is purchased from a grocery store or farmer's market.
Proper storage of fresh produce can affect both quality and safety. Certain perishable fresh fruits and vegetables (like strawberries, lettuce, herbs, and mushrooms) can be best maintained by storing in a clean refrigerator at a temperature of 40° F or below. If you're not sure whether an item should be refrigerated to maintain quality, ask your grocer.
All produce that is purchased pre-cut or peeled should be refrigerated to maintain both quality and safety.
Cut away any damaged or bruised areas before preparing or eating.
Gently rub produce while holding under plain running water. There's no need to use soap or a produce wash.
Wash produce BEFORE you peel it, so dirt and bacteria aren't transferred from the knife onto the fruit or vegetable.
Use a clean vegetable brush to scrub firm produce, such as melons and cucumbers.
Dry produce with a clean cloth or paper towel to further reduce bacteria that may be present.
Throw away the outermost leaves of a head of lettuce or cabbage.

By Bryant Esquenazi on June 7, 2011 10:34 AM

Miami's Sean Kingston, Hip Hop Star, in Near Fatal JetSki Accident While on Vacation Here in Miami Beach - The Importance of Cause in an Injury Claim

2011-11-01T13:44:00.000-04:00

Singer Sean Kingston, born here in Miami, was involved in a very, very serious accident last Saturday when he was having fun with friends, cruising the MacArthur Causeway on a personal watercraft (which most know as a JetSki, though it's unclear who the maker is of the product that Sean Kingston was using - others include Yamaha WaveRunners and SeaDoos).

Today, Sean Kingston is in the Jackson Memorial Hospital ICU after he crashed that watercraft while going at a high speed.

According to his friend, who was riding behind him at the time, Sean was riding toward the Palm Island Bridge when he realized that they would not fit under the bridge. As he turned the watercraft, both Sean Kingston and his passenger, Cassandra Sanchez, were thrown into the water.

A Good Samaritan in a nearby boat grabbed them from the Causeway, and while Cassandra was banged up but otherwise okay, Sean Kingston has suffered severe trauma and is far from out of the woods at this point.

Meanwhile, friends like Serena Williams are popping into the hospital for a visit and Justin Bieber is tweeting about Sean's condition - Sean Kingston was Bieber's opening act during his last tour. Police officials have confirmed that alcohol wasn't involved.

Florida Personal Watercraft Laws Designed to Protect Against Serious Accidents Like This One

Miami Beach - and most of Florida - is filled with water-people. Tourists and locales alike love the sun and sand and surf: there are lots of personal watercraft (like JetSkis and WaveRunners) in use every day. Which means that there have been more accidents here in Florida involving these personal watercraft than in other states, and the Florida Legislature has enacted lots of regulations over their use.

From the Florida Fish and Wildlife Conservation Commission site, here is a summary:

Each person operating, riding on, or being towed behind a personal watercraft must wear an approved non-inflatable Type I, II, III, or V personal flotation device (PFD).
Inflatable PFDs are prohibited for personal watercraft use.
The operator of a personal watercraft must attach the engine cutoff switch lanyard (if equipped by the manufacturer) to his/her person, clothing or PFD.
Personal watercraft may not be operated from 1/2 hour after sunset to 1/2 hour before sunrise, even if navigation lights are used. Remember, both federal and state law requires the use of navigation lights from sunset to sunrise.
Maneuvering a personal watercraft by weaving through congested vessel traffic, jumping the wake of another vessel unreasonably close or when visibility around the vessel is obstructed, or swerving at the last possible moment to avoid collision is classified as reckless operation of a vessel (a first-degree misdemeanor).
A person must be at least 14 years of age to operate a personal watercraft in Florida.
A person must be at least 18 years of age to rent a personal watercraft in Florida.
It is unlawful for a person to knowingly allow a person under 14 years of age to operate a personal watercraft (a second-degree misdemeanor).
Anyone born on or after January 1, 1988 is required to either have successfully completed a National Association of State Boating Law Administrators (NASBLA) approved boating education course or have passed a course equivalency or temporary certificate examination and have in their possession a boating education ID card and a photo identification card before operating a vessel with a motor of 10 HP or more in Florida. Identification cards for persons completing the course or the equivalency exam are good for a lifetime. Temporary Certificate exams are made available to the public through contractors. The temporary certificate is valid for 12 months from the issue date.

Any personal injury lawsuit that arises from a serious personal watercraft injury or wrongful death will face an insurance company (and defense attorney) going through this list with a fine-toothed comb, looking for ways to make the driver responsible for his own accident.

However, these regulations should not intimidate someone who has been harmed on a personal watercraft from pursuing justice under Florida law because:

if the watercraft malfunctioned in some way,
if there were insufficient instructions on its use,
if there was blockage in the water itself because no one had cleaned out the trash,
if there was an intentional distraction (someone flashing a blinding light, crying out, etc.),
or if there was another cause of the crash,

then these regulations will not suffice as a barrier to the plaintiff (or his surviving loved ones) from making those responsible take on that responsibility. Legal causation must be determined - and what is seen at first glance in an accident may not reveal what has happened to cause that accident and injury.

By Bryant Esquenazi on May 31, 2011 1:17 PM

Florida Court Okays $500,000 Maximum Award for Doctor Negligence, Medical Malpractice Plaintiffs Awards Are Capped

2011-11-01T13:42:00.000-04:00

Unless the United States Supreme Court changes things, the decision of the United States Circuit Court of Appeals for the Eleventh Circuit has approved a Florida law that limits the amount that injury victims can receive in lawsuits based upon medical malpractice to $500,000 in noneconomic damages.

In other words, no matter how stupid or horrific the mistake made by the doctor or nurse, Florida plaintiffs can only obtain (1) reimbursement for expenses (their economic expense) and (2) $500,000 for everything else.

You can read the 11th Circuit's opinion here.

A few years ago, the Florida Legislature passed a law that limited medical malpractice claims' noneconomic damages (pain, suffering, etc.) to $500,000.00. It wouldn't matter what were the facts of a particular case -- no what a judge or jury thought, the law basically gave the health care provider a Free Pass after that amount was paid.

The brave family of one woman, Michelle McCall, who died in 2006 during childbirth due to a nurse's error combined with a doctor's failure to check Mrs. McCall's blood pressure. They challenged the justice of this by filing a wrongful death lawsuit.

McCall Trial Judge Approved $2,000,000 as Justice for Death of Michelle McCall

The Florida judge who heard the facts of the McCall tragedy held that they should receive to $2,000,000 million in non-economic damages. Under the Florida statute, this was gutted per the $500,000 cap. So, the McCall family appealed.

They argued that the statute was passed back in 2003 on a lie: back then, Florida's med mal cap was passed amidst a brouhaha that medical malpractice insurance premiums were going to skyrocket, and that soon it would be too risky and expensive for doctors to practice. The 2003 law was passed to help keep doctors' office doors open.

However, the McCalls, argued this was a Chicken Little argument, the sky never fell. So, the courts shouldn't respect the $500,000 cap when it was so obviously an injustice, disregarding what the judge had decided was a fair amount based upon the facts of the case.

McCall Family Stymied by $500,000 Cap Unless U.S. Supreme Court Helps Them - and Every Other Florida Victim of Serious Medical Errors

The appellate court was not swayed by the McCalls' arguments. Now, only if they have the financial stamina and emotional wherewithal to try and take their case to the Highest Court in the Land will this not be a slam-dunk win for doctors and their insurance companies in this state.

By Bryant Esquenazi on June 2, 2011 2:47 PM

This is National Hurricane Preparedness Week: We Get More Warning Than Joplin Could, Miami, Let's Take Heed and Avoid Serious Injury and Death

2011-11-01T13:41:00.000-04:00

Right now, in the midst of National Hurricane Preparedness Week, Miami joins the rest of America in watching the continuing massive destruction that the recent wave of huge thunderstorms and powerful tornadoes has caused throughout the Midwest.

According to the National Oceanic and Atmospheric Administration, the United States tornado death toll in 2011 is the highest ever through the month of May in the NOAA-NWS official record (1950-present).

Here in South Florida, we understand what it means to folk in Joplin, Missouri, and other hard hit areas: hurricanes and tornadoes are different, but the horrors they leave behind are the same.

The Joplin tornado exceed 200 mph and destroyed 30% of the town. You can watch the Associated Press video of the storm and its damage here. Right now, there are 232 names on the Joplin Missing List.

June 1st is the Start of Hurricane Season

Next week, the 2011 Hurricane Season begins. NOAA is predicting that we are going to have a higher than number of hurricanes in the Atlantic Ocean this year. NOAA is predicting the following:

* 12 to 18 named storms (winds of 39 mph or higher), of which:

* 6 to 10 could become hurricanes (winds of 74 mph or higher), including:

* 3 to 6 major hurricanes (Category 3, 4 or 5; winds of 111 mph or higher)

Getting Ready Now for a Bad Hurricane Coming

Last year, on the eve of Hurricane Season we posted steps everyone should take to make sure they have adequate insurance protection on their homes, cars, boats, RVs, motorcycles, and themselves long before the weathercasters start predicting landfall of a storm.

To read that list of tasks you should undertake now, read our post "Hurricane Earl and Miami: Tips for Preparing Now 4 Hurricane Storm Damage Insurance Claims."

Hopefully, South Florida will escape the horrors that Joplin, Missouri, is dealing with today. However, it is best to be prepared for a huge hurricane: we're in the high risk area, after all.

Luckily, there are several sources of information online that you and your family should review now. They are both downloadable documents and short videos to watch, prepared by the National Hurricane Center as part of National Hurricane Preparedness Week.

Go check this stuff out -- it's easy stuff, and we need to be ready now. Unlike the tornado sweeping down on an unexpected Joplin, we're getting advance notice of the Big Storm Coming.

By Bryant Esquenazi on May 26, 2011 3:21 PM

Casey Anthony Opening Statements Today - Florida Example of How Trials Really Work, B4 You Get There

2011-11-01T13:39:00.000-04:00

Casey Anthony's trial began today and in her attorney's opening statement, revelations were given to us all about how her daughter Caylee Anthony died, including allegations that her father George Anthony was involved in covering-up the drowning death of the toddler.

It's being called the biggest trial since O.J. Simpson and most of the news media, national and local, is covering this story. Nancy Grace has her show dedicated to this trial nightly.

You can watch the live feed of the Casey Anthony trial here.

True enough, this is a criminal trial. Personal injury cases have civil trials. Civil procedure and criminal procedure is different.

What Personal Injury Claimants and Plaintiffs Can Learn By Watching the Casey Anthony Trial

Nevertheless, anyone considering filing a personal injury case can learn a lot by watching this trial about what it means to be a plaintiff in a courtroom, fighting for justice when they or a loved one has been seriously injured or suffered a wrongful death.

In a Florida civil trial, just like a Florida criminal trial like the Casey Anthony trial going on now in Orlando, you will have the following:

The Judge
Sitting in robes above the rest of the participants, and able to see everything that's going on, the judge has the job of making sure that proper trial procedure is followed and that the law is followed: when necessary, the judge will make decisions on points of law.

The Jury
Civil plaintiffs must ask for a jury (and pay a jury fee); in criminal cases, they are mandatory unless the defendant waives the jury (and then the judge decides the case). In major cases, there are 12 jurors. In cases with smaller amounts in controversy, there may be less than twelve.

The judge decides what is legally admitted as evidence. The jury decides the facts based on the law given to them (in jury instructions) and the jury makes the final decision (verdict).

The Parties

In a personal injury case, the one who files the suit is the "plaintiff," and the one who is sued is the "defendant." The defendant learns of the lawsuit in pre-suit negotiations, usually; however, some defendants first learn of the lawsuit when they are served with notice of the complaint being filed.

The Evidence

Witnesses give testimony on the stand or via deposition. Witnesses also "prove up" documents that serve as evidence. This can take days or weeks.

The Record

A court reporter is responsible for keeping track of all that happens in the trial: recording all the words spoken and all the exhibits entered as evidence. The record will be the transcript of what the witnesses said in words and the documents that were admitted into evidence. This is what the appellate court reviews if an appeal is filed: the record that the court reporter has accumulated, sealed, and sent to the appeals court.

The Trial
Jury is selected

1. A panel of potential jurors is pulled from the jury room and they are brought to the courtroom. Attorneys for both sides question them, and the judge will sometimes ask questions, too. The goal is to get 12 unbiased people to serve on the jury, along with a couple of alternates.

2. Opening Statements

Lead attorneys for both sides make opening statements. Here, the lawyers give the jury an outline of what they will prove in the evidence. The Plaintiff's attorney gets to speak first at trial, before the defendant's attorney summarizes their defense.

3. Evidence is Given By Both Sides

Witnesses are called. The lawyer that calls the witness asks questions in "direct examination" and the opposition asks his/hers in "cross examination." Documents are presented as evidence as witnesses testify, unless the parties have argued documentary evidence already with the judge in a pre-trial motion.

4. Case Closes

After both sides are finished (they "rest"), then the attorneys give "closing arguments" to the jury. Each side analyzes the evidence that has been presented during the trial, and argues how it fulfills his position. The Plaintiff will have the chance to rebut the defense's closing argument (and in a criminal case, the prosecution will offer a rebuttal)
5 Jury Decides

After the closing arguments, the judge will instruct the jury - and they will get written instructions that relate what the judge has said. They jury will then be escorted to the jury room to meet and decide. In some cases, they will be sequestered, and forced to stay in hotel rooms and away from their personal lives until they've reached a verdict.

6. Verdict is Issued

Once the jury decides, then the attorneys are contacted and everyone is asked to return to the courthouse to hear the verdict read to them.

By Bryant Esquenazi on May 24, 2011 1:38 PM

Miami Man Dies On American Airlines Flight NYC to Miami: Wrongful Death, Proximate Cause, Airline Common Carrier Injury Law, and Jurisdiction

2011-11-01T13:35:00.000-04:00

This morning, while most of Miami is celebrating last night's victory by the Miami Heat over the Chicago Bulls in the NBA Eastern Conference Finals (85 - 75), the family and friends of an elderly man returning home to Miami from New York are grieving his death.

It seems that a 73-year-old Miami man got on an American Airlines flight, took his seat, and after takeoff, complained to the attendants that he wasn't feeling well.

People Who Tried To Help: Flight Attendants, On-Board Doctor

About 20 minutes after the plane departed JFK International, things got worse and the flight attendants were actively trying to resuscitate their passenger.

There was a doctor on board. He tried CPR and he used an AED (automated external defibrulator) on the Miamian. He was not successful in his efforts.

Tragically, the man died while the flight was in midair. American Airlines diverted things, and the plane landed in Virginia so the body could be removed from the flight. News reports do not let us know if the plane was grounded, or if it resumed flight to Miami (and this might be a big deal later).

The Norfolk Airport officials report that the local Virginia Medical Examiner is heading up the investigation into the Miami man's death.

Personal Injury, Wrongful Death, and Jurisdiction

New York, Florida, Virginia - all these states have laws that impact this case, and many others like it. Federal statutes and regulations may apply, as well.

Miami and most of South Florida is a cosmopolitan type of place: not only do we have tourists, but we've got residents who travel to other places. Vacationers. Snowbirds. Business travelers.

When serious injuries or wrongful deaths happen, then Florida lawyers have to sort through jurisdictional puzzles. What law applies where?

Jurisdiction decides what law will apply. There are state and federal laws that can overlap and conflict.

For example, Florida gives doctors immunity from liability under its Good Samaritan laws, but does Virginia? Does New York?

And, which law applies to a plane passing over other states with a doctor performing CPR mid-flight?

Florida's Wrongful Death statute defines which loved ones can use its provisions to sue for the wrongful death of someone who has died because of another's actions (or inactions).

Most states have special medical malpractice laws (you can read over Florida's medical malpractice statute here). Which ones would apply to the doctor here?

Federal law as well as all states have strict liability laws and agency regulations that apply to common carriers (air, train, bus). What laws and regulations apply to this American Airlines flight? Was there a violation of their duty to allow this man on board? Did someone neglect to see a very ill and old man in need of medical care before he took his seat?

Airlines are sued for severe personal injury and wrongful death, usually these are the result of plane crashes (see Perkins v Valujet Airlines as an example). Is American Airlines a future defendant?

Our condolences to the loved ones of this Miami gentleman who passed away on his way back home. Deepest sympathies.

And our understanding goes out to the lawyer that may be asked to sort through all these laws and regulations, state and federal, that may apply in this situation. It's a legal spaghetti bowl.

By Bryant Esquenazi on May 19, 2011 1:18 PM

Two Horrible Motorcycle Accidents in Miami Area Remind South Florida of the Dangers in Riding Motorcycles Here

2011-10-26T11:59:00.000-04:00

Motorcycles are fun and freeing - and the weather here in South Florida invites all sorts of people to drive our roadways on their motorcycle - be it a rice chopper, a cruiser, whatever.

It's adventurous. It's romantic. It's downright American.

However, in two separate news stories this week, both involving motorcycle accidents, people were seriously injured and killed while peacefully riding along on their bikes.

These tragedies remind all of us how serious these types of crashes can be. Even when -- especially when -- the biker is doing absolutely nothing wrong.

1. Pembroke Park, biker hit from behind by SUV - serious injuries

In Hollywood, Florida, bike enthusiast Ytzhak Hartzy was hit from behind on I95 near Pembroke Road (in the park) by a hit-and-run driver driving a black Kia SUV early Sunday morning. Last we knew he remained in critical condition at Memorial Regional Hospital.

The Florida Highway Patrol Sergeant is investigating - but they know the driver's identity (and they've arrested him) thanks to witness John Roxey, who saw Hartzy get hit, fly into the air, and roll down the roadway several hundred feet. Roxey and a pal followed the hit-and-run driver and held him until the cops arrived.

(Now, there's a great witness for trial, right?)

2. Lakeland, two died as motorcycle tries to avoid car pulling out of driveway

In Lakeland, Michael Mitts and his passenger, Laura Nalley, were riding a motorcycle down North Chestnut Road on Monday evening (about 7:30 p.m. according to the Florida Highway Patrol), when a driver started backing out of his driveway oblivious to the bike coming down the road.

Mitts hit the brakes. Both Mitts and Nalley were thrown from the bike; the bike crashed into the car. Both were pronounced dead at the crash scene.

Florida Law and Motorcycle Crashes - Personal Injuries and Wrongful Death in Motorcycle Accidents

In Florida, the law requires that anyone driving a motorcycle on Florida roads know what they are doing: you must have special knowledge and the state gives you a special license to drive a two-wheel motor vehicle. Florida also requires helmets.

However, even the most experienced rider - wearing leathers, obeying the law with that helmet - is vulnerable to the cage drivers out there.

Like these two examples. In both these motorcycle crashes, there doesn't appear to be any question that the motorcycle drivers were not at fault here.

Whether or not criminal cases will proceed against the car (or SUV) drivers in these terrible wrecks, the truth is that Florida personal injury law provides some level of justice in the form of a civil lawsuit.

Under the law of negligence here in Florida, damages in the form of wrongful death, pain and suffering, lost wages, medical care, etc. can be obtained through a personal injury lawsuit.

What's involved in a Florida motorcycle accident negligence lawsuit?

Under Florida law, when someone causes personal injury to another due to their negligent acts, then they are legally responsible for all the harm that results from what they've done.

The personal injury lawsuit must prove that:

1. There was a duty of care owed to the person injured (the one on the motorcycle) in this circumstance -- which is clear from the laws covering driving on Florida's roads;
2. For some reason (driving drunk? distracted driving?), the defendant failed to meet his or her duty of care to the guy on the bike; and
3. As a result, the plaintiff (e.g., the motorcycle driver or passenger) was injured or killed.

By Bryant Esquenazi on May 17, 2011 1:37 PM

TMZ Scoop on A-List Celebrity Herpes Lawsuit: Sexually Transmitted Diseases (STDs) Can Be Basis for Personal Injury Lawsuit in Florida

2011-10-26T11:58:00.000-04:00

TMZ has another big celebrity news story, one that is building this week: seems that an A-list celebrity (whose name has not been released yet) has been sued for giving someone herpes.

That's right. Some very big movie star ( according to the pleadings, an "A-list celebrity of substantial fame internationally") intentionally gave a sexually transmitted disease to a woman (her name's withheld, too) and she has filed a lawsuit for damages based upon having herpes now.

You can read the lawsuit's petition here as it was filed yesterday in Los Angeles.

Bases of the Movie Star STD Injury claim include (1) sexual battery; (2) infliction of emotional distress, intentional and negligent; and (3) fraud. Requested personal injury damages? TMZ is claiming it's $20,000,000.00.
Today, the plaintiff has revealed that there are videotapes which can be used as evidence that the claims are not frivolous. TMZ is keeping track of all the offers that are being made (these are in the millions of dollars) for these tapes; however, so far the videos remain within the attorneys' evidence files.

In Florida, Can You Sue for Personal Injury Damages As A Result of Getting an STD? Yes, You Can.

First of all, Florida recognizes that it's wrong for someone with an STD to infect someone else with the disease, especially when they are aware that they had an STD.

For several sexually transmitted diseases, this has been made a crime under Florida law and the person can be prosecuted by the district attorney's office for doing this. (Read the statute and its STD list here.)

Under Florida's personal injury law, giving someone a sexually transmitted disease can form the basis of a civil lawsuit, analogous to the one filed in California yesterday.

However, insurance policies will only provide coverage - and therefore money to pay any judgment - if the transmission was negligently done and not intentional. If the defendant knew that they had the STD and went ahead anyway, then there will not be insurance coverage. The defendant's assets will have to cover whatever monetary awards or judgments result from the lawsuit.

For the California International A-List Movie Star lawsuit, the plaintiff probably isn't concerned about collectibility of a judgment. You might be, if you're thinking about suing for an STD, and putting all that personal, private information into the public record.

By Bryant Esquenazi on May 12, 2011 2:23 PM

What is PIP Insurance Coverage - and How Insurance Companies Just Lost Their Latest Try at Getting Florida to Gut PIP Coverage

2011-10-26T11:56:00.000-04:00

Personal Injury Protection, or "PIP" coverage, is something offered to Floridians as part of their automobile insurance policy. Right now, under Florida law, every car owner and driver must have at least $10,000 PIP coverage.

If you are in a car accident in Florida, this PIP coverage kicks in, never asking who's to blame. The $10,000 coverage is there, ready to help. Since the insurance company isn't allowed to assess blame here, Florida is called a "no fault" state.

PIP will cover up to 80% of your medical bills and up to 60% of your lost wages - up to that $10,000 cap. No questions asked.

Insurance companies are against PIP coverage because they are arguing that too many people take advantage of it, setting up fake insurance claims just to get the money. We've discussed this before; now, however, Tampa's Fox 13 Investigative Reporter has just published its own expose on PIP coverage fraud, which may help drive those pushing the legislature for change in the future.

Florida is No. 1 in the USA for Fraud PIP Claims

According to Tampa Bay reporter Doug Smith, Florida is actually number 1 in the United States for these kinds of fraud -- and Tampa is tops within the state for filing fake PIP claims.

According to the Fox story, many of these fake PIP claims are professional jobs where there are staged wrecks and clinics are set up to handle the filings. The crashes are set up to have lots of folk involved, so that $10,000 cap can be milked. Eight people can mean close to $80,000 from one scam. The news story goes on to interview those in the know, including police detectives who suggest that these big crash scams are orchestrated by organized crime.

Florida Legislature Nixes Reform - No Changes to PIP Laws for Now

In January, we discussed PIP reform proposals that were being talked about up in the state capital and the efforts of insurance carriers to push reforms through, from bill to law. They've failed.

The insurance industry had gone so far as to build up proposed comprehensive reforms to Florida's PIP laws, creating one big comprehensive personal insurance coverage reform bill.

Around ten days ago, that all fizzled out when the Florida House committee hearing the proposal voted against it. Specifically, HB967/HB1411 - the biggest attempt at changing PIP laws here in Florida in the past 4 years - died as it was voted down by the Florida House Subcommittee on Health Care and Human Services.

Read the dead bill's language here -- and see for yourself that what didn't succeed into turning into law this year was not only an attempt at altering your insurance coverage (instead of boosting regulations to stop criminals via criminal investigation, etc.) but an attempt to:

give the insurance companies the right to cap the charges they would cover under PIP for medical services;

limit the amount of money that attorneys could charge for their work regarding these crashes; and

granting the insurance company even more time (read that delay) in investigating claims before they pay.

It's one thing to fight crime. It's another thing to hurt all Floridians who unfortunately are involved in an accident. Sounds like lots of Florida accident victims may have just dodged a bullet.

By Bryant Esquenazi on May 10, 2011 3:41 PM

South Florida Kava Bars May Be Trendy - and Dangerous: New Study Warns Against Kava Tea

2011-10-26T11:53:00.000-04:00

Here in South Florida, like it or not, we're usually on the cutting edge of new trends. Maybe it's because of the cosmopolitan flair of Miami. Maybe it's because of all the celebrities that love to vacation here.

Kava Bars a Popular Favorite Here in South Florida

Whatever the reason: it was almost a year ago to the day that the Palm Beach Post was reporting about the latest thing: a surge in Kava Bars popping up in South Florida. Allison Ross blogged in an article entitled, "Kava Bars Popping Up in South Florida," that kava tea was the new drink for bars in the Miami area - and this was true even though kava does not have an alcohol content.

Today, if you google "kava bars south florida" you'll find a long list of establishments serving Kava Tea from which to choose. They seem to be so competitive, in fact, that they've got promotions to draw you into their bar and away from their competition down the street, as well as different atmospheres to tempt you.

Read through the various South Florida kava bars and you find cozy ones. Friendly ones. Ones with live music. Ones that are more restaurant than bar, more bar than restaurant.

Kava Bars are a big deal here in Miami Beach.

What is Kava? It's something originating in the South Pacific that is a plant revered for its properties. Kava threads itself through social and cultural traditions as well as medicinal and religious ones in a large number of Southern Pacific islands, such as Tonga, Fiji, Hawaii, the Federated States of Micronesia, and Vanuatu. In fact, Kava is a grown as a cash crop in Vanuatu and Fiji.

Some folk chew the Kava root or take a Kava pill, but drinking Kava tea appears to be the most popular way to imbibe Kava. You can buy Kava Tea at your local store or online, it's not expensive. You can also go to your local Kava Bar and order a specially prepared Kava drink just for you. Cold or hot.

New Research Study Warns Against Kava Tea

It's not the first warning that Kava may hurt you, but the latest study warning against the dangers of Kava tea is getting lots of attention and respect. Last week, the American Journal of Emergency Medicine published a study released by the University of Rochester Medical Center on the dangers of Kava Tea.

The case study even supports its assertion of the growing popularity of Kava Tea by pointing to three new Palm Beach Kava Bars that have opened recently here in South Florida.

This case study is heralded as the first piece of scientific literature dealing with Kava tea. (Hence, the notoriety that this study is getting around the world). Here's the citation to the study if you wish to purchase the complete research study online in pdf format: Ryan Bodkin, Sandra Schneider, Donna Rekkerth, Linda Spillane, Michael Kamali. Rhabdomyolysis associated with kava ingestion. The American Journal of Emergency Medicine, 2011; DOI: 10.1016/j.ajem.2011.01.030.

What's the big deal?

Seems that this case study began when a 34-year-old guy was riding his bike along some roadway in or near the University of Rochester when he collapsed on the side of the road. Wham. When he arrived at the E.R., they discovered that he had recently injested Kava Tea and tied the Kava to his episode where he had nearly suffered complete kidney failure as well as a muscle breakdown.

The guy up in New York recovered, he's okay. However, the University of Rochester study is being waved like a big, big red flag by all sorts of folk: doctors, researchers, media outlets, and of course, Big Pharma who don't like herbal remedies and the like.

So, will Kava Tea -- which has been a popular beverage among South Pacific Islanders for over 3000 years -- be found dangerous to drink here in South Florida?

Who knows. This same media scare hit South Florida back in 2005 --see the USA Today story back then, covering the Nacava Bar in Boca Raton, and discussing the FDA warnings of 2002 on Kava.

South Floridians will probably continue to frequent Kava Bars. And, here's the thing: if you do suffer symptoms of harm due to drinking Kava, then Florida laws do exist to protect you.

Personal injury laws are on the books for just this sort of thing. Kava may not be an alcoholic beverage, but those who manufacturer, distribute, and sell this herb or drink are still responsible for its safety.

Bryant Esquenazi on May 5, 2011 1:49 PM

Honda Airbag Recall Up to 1.6 Million With Today's Recall of 833,000 More Honda Models for Exploding Airbags

2011-10-26T11:51:00.000-04:00

Honda Accords, Honda Civics, Acuras, Honda CR-Vs -- looks like almost every popular model of Honda driven on U.S. roadways today may be at risk of an airbag that explodes without warning.

The Honda recalls of airbags just got lots bigger today, and now we're talking over 1,600,000 Honda vehicles that may be dangerous to drive - and are being driven.

What's the New Honda Airbag Recall?

Honda announced in a company press release yesterday that Honda was increasing the number of Honda and Acuras that were being recalled. And, it's a lot of cars that have been recalled: 833,000 cars to be exact.

Read the Honda Press Release announcing the recall here.

What's going on? Seems that Hondas can have flaws in their airbag inflators -- and the airbags can suddenly pop. That's right: you're driving along, and there goes the airbag.

Specifically, you need to stop driving your vehicle and have it checked out at the Honda dealer if you drive a:

2001 Accord
2002 Honda Accord
2001 Honda Civic
2002 Honda Civic
2002 Honda Odyssey
2002 Honda CR-V
2003 Honda CR-V
2002 Honda Acura 3.2 TL
2003 Honda Acura 3.2 TL
2003 Honda Acura 3.2 CL.

This is the THIRD recall of Honda airbags. We can only hope that it's the last.

By Bryant Esquenazi on May 3, 2011 1:42 PM

Florida Ex-American Idol Finalist Paige Miles Narrowly Escapes As GMC Envoy Bursts Into Flames

2011-10-26T11:49:00.000-04:00

Last year, Paige Miles of Naples, Florida sang her way to 11th place in the American Idol talent show. Very impressive, and it's surprising to no one that yesterday, Paige Miles was at a rehearsal. Paige Miles has a very bright future ahead of her.

However, that bright future almost ended in tragedy when the SUV she was driving, a GMC Envoy, burst into flames while she driving the vehicle home. That's right: a fire started while the vehicle was in motion, in traffic, on a Florida roadway.

Luckily, Paige Miles managed to get out safely. On her Facebook page, she described jumping out of the vehicle while it was still moving, to get away from the flames.

She has also posted photos of the GMC Envoy, and the extensive damage caused by this mysterious fire. Go here to have a look at the aftermath.

GMC Envoy Fire - Obvious Argument of Product Defect

Paige Miles has explained that she believes the fire started from some sort of electrical problem. However, experts will have to go over the wreckage with a fine-toothed comb to determine what really happened this week, and why a fire began in a moving vehicle.

This is something that should never, ever happen. Anyone driving a GMC Envoy needs to be aware of this incident, and at the minimum, carry a fire extinguisher with them in the front passenger section where it can be easily found and used.

Product Liability - One Bad Apple or Defective Product Line

Without a major recall of GMC Envoys due to fires like this, then it's too soon to know whether or not Paige Miles is a victim of an individually flawed product, or if all models of this SUV are vulnerable to similar events. It's better to be safe than sorry right now, if you're an Envoy driver.

Under Florida law, product liability protections exist for either situation: a bad apple in a great product line, or a defective product line. Either way, plaintiffs who have been harmed by products can force the manufacturer to take responsibility for their mistake.

GMC knows this. You can be sure that they are checking out GMC Envoys today after news of Paige Miles' narrow escape. Or they better be.

By Bryant Esquenazi on April 28, 2011 11:18 AM

Dolphin Expressway PileUp Today - Good Example of Florida's Good Samaritan Law In Action

2011-10-26T11:48:00.000-04:00

This morning, several Miami folk left their homes thinking that they had all the time in the world to do things on their to-do lists: shop, schedule an oil change for the car, vote on American Idol this week, follow the Miami Heat to the NBA Championship - just like we all did.

Except these few of our fellow Miamians had their life change today. What happened?

They were involved in a huge, horrific traffic pileup on Dolphin Expressway this morning. It was a multi-car pile up. News reports are that one person died in the car crash(es), and nine people were seriously injured.

And, out of those 9 people who were hurt but hopefully will live to tell their stories of what happened today, more than one may well have survived because other Miamians stopped and helped them.

Dolphin Expressway Crash - People Stop to Help those in Need

WSVN-TV interviewed men who didn't just rubberneck, but stopped their vehicles and ran to help people who were injured, trapped, screaming in pain. The victims of the Dolphin Expressway accident today undoubtedly are grateful to them, as well as their families.

It's also probably very true to say that all of Miami is both proud and grateful that we have people like this living in our community. Heroes. No other word for them.

Florida's Good Samaritan Law

It's sad to say that in the past - and it's still true in some other states - that Good Samaritans like those who went into action today might have involuntarily exposed themselves to a lawsuit in the future. Yes, sad but true that there are people who got sued just for trying to do the right thing.

Not in Florida. Not now.

In Florida, we have laws in place to protect Good Samaritans in situations like this one today. The Florida Good Samaritan Act, Florida Statute 168.13, provides immunity to those (including physicians) to stop to help in an emergency.

Florida personal injury attorneys are all for seeking justice in situations like this -- going after product liability claims when cars or trucks or SUVs fail in some way, or suing for road conditions that should have been fixed, or whatever else may cause horrible accidents like this one today.

Justice in this country depends upon brave plaintiffs bringing negligent defendants to task for their bad acts.

However, it's also justice to protect those who stop and risk themselves as they act to help others in trouble. Like the heroes today.

The Florida Good Samaritan Law is a good thing. It's something that Florida can be proud of - right along with the character of those Floridians we saw on that highway today.

By Bryant Esquenazi on April 26, 2011 1:31 PM

Miami Heat Sweep? Online Gambling and Sports Betting - Damages Aren't Protected Under Florida Law

2011-10-26T11:30:00.000-04:00

Here in Miami, as well as most of South Florida, we're pretty psyched about the 2011 NBA Playoffs. After all, the Miami Heat have just toyed once again with the 76ers like a cat toys with a mouse: yesterday, final score in Game 2 of the series, 94 - 73.

Sweep! Sweep!

The Sun Sentinel is all for a sweep, and gives us all the analysis on why a Heat Sweep is going to be a done deal, up there in the City of Brotherly Love. Who in Miami is going to argue with Shandel Richardson's take on things? Not anyone here in Miami Beach.

Fun with the Heat - Be Careful Out There, Miami

We've posted before about big Miami events, and how drinking and partying tied to big events can result in personal injuries. Personal injury lawsuits, unfortunately, are all too often based upon good times gone bad, with serious injuries or wrongful death resulting.

So, once again, at all the inevitable Miami Heat Playoff parties - remember to be careful. Stay safe. While there are Florida laws available to those who are injured or killed in car crashes, slip and falls, assaults, and other festivity-related injuries and accidents, the better option is to avoid becoming a party plaintiff.

Not Every Injury Is Protected Under Florida Law

Finally, one last note: not every harm that Floridians may suffer during the Miami Heat path to the 2011 NBA Championship is protected by the law. Big one: losses from gambling - and more importantly, winnings from gambling.

If you gamble and win a bet on the Miami Heat, then know that this is not legal in Florida (even though there's a fight for online gambling for sporting events to be legalized across the country). If you bet and you win, and then you cannot collect your money, it's an injury you are going to have to deal with without the help of a lawyer.

Get injured in a car crash, bar fight, or fall? Personal injury claims can be asserted.

Get stiffed on a Miami Heat bet? You're on your own. We can't help you there.

By Bryant Esquenazi on April 21, 2011 1:40 PM

New Nissan Recalls: Thousands of Nissan Leafs Recalled to Dealer This Week

2011-10-26T11:28:00.000-04:00

Another big car maker recalls its product this week. This time, it's Nissan. Seems that its cute little economical electric Leaf sedan has a big ignition glitch. That's right: the Leaf, which is reportedly becoming really, really popular here in the U.S. - at least by electric car standards - has a big flaw.

What's the problem with the Nissan Leaf?

Sometimes, Nissan Leafs won't start. Turn the ignition - zip. Leafs apparently just sit there.

So, Nissan is recalling all its little Leafs back to the dealer, so the ignition problem can be repaired. Since starting a car isn't considered to be a problem that usually causes a danger, the recall isn't being labelled the same way that say, a defective tire (Ford this month) or a injection system (Toyota last year) are labelled.

Still, the recall this week by another major car maker of cars already released into the marketplace should give us pause.

Shouldn't consumers be able to trust products that they buy in the marketplace?
Shouldn't car makers make sure that their vehicles are ready for use before they sell them?

Products Liabilty Laws Seek Justice for Injuries After the Fact

In Florida, as well as the other 49 states in this country, there are laws on the books that personal injury victims can use to get justice when a manufacturer sends a defective product out into the marketplace and it hurts them. Plaintiffs can sue for damages from defective products that are defective by design, like those subject to recall. They can also sue for monetary damages when an individual product has hurt them even though on the whole, the product line is not dangerous.

For the country, however, it is defective product lawsuits where the entire product line is defective that brings protection. It is through big victories in defective product lawsuits that real change happens in this country -- because sometimes, it's only money that makes the corporation take heed and change its product (or remove it from the marketplace).

Nissan Escapes Courtroom Battles Here

In the case of the Nissan Leaf, this defective product won't mean much, product liability lawsuit wise. Since the lawsuit must show damage to be a viable claim, and a car not starting isn't likely to hurt someone, we cannot expect products liability lawsuits to teach Nissan to be more careful. (Every injury lawsuit must show (1) liability and (2) harm.)

Instead, we must rely on the government's oversight -- and word of mouth (like this post) on a product that is growing in popularity. Nissan Leafs are being recalled, and if you own one, you should know this.

By Bryant Esquenazi on April 19, 2011 2:38 PM

LeBron James' mom Gloria James Sued for Personal Injury Damages by Valet

2011-10-26T11:27:00.000-04:00

Last week, we predicted that a personal injury lawsuit would be following along behind the criminal charges that were filed against Gloria James, mother of Miami Heat's LeBron James, because of an altercation at the famed Fontainebleau Hotel earlier this month. Sure enough, a Miami - Dade County lawsuit was filed this week.

The Valet Has Sued LeBron James' Mom For Florida Personal Injury Damages

According to news reports, the pleadings filed by the Fontainebleau hotel valet ask for monetary damages resulting from the following legally-recognizable injuries (read the complaint here):

emotional distress
humiliation
mental anguish
medical expenses
the loss of the ability to earn money, and
the loss of capacity for enjoyment of life.

Liability Must Be Proven First

These allegations of harm are based upon two bases for liability: (1) negligence and (2) assault and battery. The plantiff must prove these legal bases -- "causes of action" -- before any damages can be awarded.

Damages Must Also Be Proven By Valid Evidence

Once the liability has been proven by admitted evidence, then the damages must be proven, also by admitted evidence. The valet will have to provide testimony and documents to support the harm he has purportedly experienced: e.g., facts to show that he has lost the capacity to enjoy life, etc.

The Amount of Evidence Must Be a "Preponderance"

In civil cases, unlike the "beyond a reasonable doubt" standard for criminal matters, there must be enough evidence to prove the fact is more likely than not true. Every plaintiff has to provide a certain amount of evidence in order to prove their case - and the judge decides if this has been done.

The valet, as the plaintiff in this civil lawsuit, must prove it is more likely than not true that:

Lebron James' mother was negligent under Florida law.
Gloria James legally committed civil assault and battery against the valet.

Only after the plaintiff has met this liability burden will he have an opportunity to submit evidence of damage; again, as plaintiff in this civil lawsuit, he must prove it is more likely than not true that:

he suffered "emotional distress" as that is defined in Florida law
he suffered "humiliation" as that is defined in Florida law
he suffered "mental anguish" as that is defined in Florida law
he incurred legally-recognizable medical expenses as a result of the event
he has suffered a loss of the ability to earn money, and
he has suffered a loss of capacity for enjoyment of life.

How Is This Evidence Provided in a Lawsuit?

Evidence is provided in two ways: by witness testimony and by admitted documents. Documents can include videotapes, audiotapes, etc. under Florida law. Accordingly, the plaintiff can take the stand and tell the jury what he's experienced. He can also introduce things like doctor's bills and pay stubs.

Of course, LeBron James' mother can also introduce evidence in her defense. Evidence that refutes the plaintiff's claims.

Today, TMZ offers a surveillance video of the incident itself. The video has a lot of folk asking who's really to blame for the event: the valet or Mrs. James. Watch it for yourself and see what you think -- because if this case gets to trial, then the jury will be watching this same video to decide that "More Likely Than Not" question.

By Bryant Esquenazi on April 14, 2011 1:24 PM

Fatal Car Crash in West Palm Beach Provides Lessons to South Florida Re Importance of Insurance

2011-10-25T13:30:00.000-04:00

Yesterday, a silver Ford Mustang driven by Jorge Alberto Salinas of Cary, North Carolina, sped through a red light as it zipped south down Military Trail.

It was six o'clock in the morning.

No one can know for sure when or if driver Rodlin Hyppolite, 39, saw that Mustang speeding toward the Mitsubishi Galant as Hyppolite drove along Elmhurst Road. Hyppolite died at the scene of the crash. Passenger Maryory Cruz, 21, survived the accident, but she's suffering from serious injuries. Both Hyppolite and Cruz hail from West Palm Beach.

Jorge Salinas, 27, was arrested for (1) driving without a license and causing death and (2) driving without a license and causing serious injury. The test results for whether or not he was driving drunk have not been released.

Here's the thing: right now, it's not a question of drunk driving -- it's a question of no insurance. If he didn't have a license to drive, then did he have insurance to cover a wreck?

The Importance of Having Car Insurance

From a legal perspective, there is Florida law in place for a wrongful death action in cases of fatal car accidents where the victim is not the one at fault for the wreck, as well as personal injury claims that are available to those who are seriously injured in accidents like these.

In other words, Florida law provides an avenue for justice here - both for the man who died in this wreck, as well as the passenger who today fights to recover from serious and painful injuries in a hospital intensive care unit.

However, even assuming that these avenues were used and damages were awarded, the reality is that insurance carriers are usually the pockets where most of the money actually comes from to satisfy personal injury and wrongful death judgments.

That's why car insurance is mandatory in so many states. To protect against cases like this: where the out-of-state driver -- who the police have already deemed responsible for this tragedy -- may well not have the personal resources to cover the literal and practical and real costs of what he has done.

Florida Law Regarding Mandatory Car Insurance

In Florida, the Florida Financial Responsibility Law requires that any person at fault in a crash resulting in bodily injury and property damage to others must have in effect at the time of the crash full liability insurance coverage, which at the minimum should be:

bodily injury liability of $10,000 per person,
bodily injury liability of $20,000 per crash,
$10,000 property damage liability per crash, and
personal injury protection limits of $10,000 per person per crash.

However, the fact that yesterday's driver, Jorge Salinas, was cavalier enough to be speeding along Florida roads without a driver's license does suggest that he may well not have followed Florida law regarding having minimum insurance coverage.

Under Florida law, without a policy, the winning plaintiffs can seek to enforce any judgment with any property he may own that isn't judgment-proof. Whatever that is.

What happens if he doesn't have insurance?

Under Florida law, the lawsuit judgment is immediately enforceable, and the defendant's driver's license, car tags, and vehicle registrations are suspended for 20 years or until the judgment is satisfied.

Of course, to someone who is already driving without a license, this may not sound very scary.

What's left?

Looking for another defendant, for one thing. Where did this man come from? If he was drunk, then does the bar or partygiver have a legal responsibility here? Did the car itself fail in some way -- will Salinas report failed brakes, for example?

There's still hope for the victims here. But it's a harder road for them if this guy was driving without a license and without insurance.

By Bryant Esquenazi on April 12, 2011 1:55 PM

LeBron James' Mother Arrested for Assault in Miami: Assault as a Crime vs Assault as a Civil Lawsuit Under Florida Law

2011-10-25T13:28:00.000-04:00

Miami Beach's famous Fontainebleau hotel is in the national news today as the place where Gloria James, Lebron James' mother, was arrested by Miami police early this morning on charges of battery and public intoxication.

The news reports are headlining that Lebron James' mother allegedly assaulted a valet at the Fontainebleau, which she vigorously denies.

The Miami Police Department has issued a press release about the arrest of the Miami Heat forward's mother. Even better, the actual police report (including the cop's sworn affidavit) has made it to various celebrity sites (read it here courtesy of TMZ.com).

The Confusion Surrounding Assault Under Florida Civil and Criminal Law

The Miami Heat's LaBron James has a mother who has been charged with a crime. Under the Florida Penal Code, "assault" is an illegal act, specifically defined by the Florida Legislature in Florida Statute 784.011. Technically, while the news media is using the word "assault" in its coverage, the Miami police report suggests that the actual crime that Mrs. James is facing is "battery" under Florida Statute 784.03.

Mrs. James will have to hire a criminal defense attorney and defend herself in Florida criminal court system against these allegations, as detailed in that affidavit found in the police report. Maybe that's all she will have to do.

However, entirely separate from the criminal laws in Florida, as well as other states, there are civil laws that make certain intentional acts to be unlawful, too. They are commonly referred to as "intentional torts," and assault is a recognized tort under Florida's civil law today.

Which means that the person who was involved in this situation with Gloria James might be seeking guidance from a personal injury plaintiff's attorney to see what lawsuit he might be able to file against Mrs. James. This would be a separate lawsuit than the criminal case, with a separate docket, separate lawyers, separate burdens of proof, and separate trials.

Most importantly in civil assault cases, if the plaintiff is victorious, it means that money is awarded as damages -- something that the criminal assault case will not provide. Tort damages are available for civil assaults.

The Florida Legislature provides a four year statute of limitations for an assault lawsuit to be filed in Florida Statute 95.11.

Which means that LeBron James' mother may be waiting for another shoe to drop here ... waiting until April 8, 2015.

By Bryant Esquenazi on April 7, 2011 1:17 PM

New FDA Food Recall Website: Miami, Check to See if Food is Safe at New Website

2011-10-25T13:26:00.000-04:00

This week, the Food & Drug Administration (FDA) has made it easier for all of us to check on suspicious food items or known food recalls. You can go to the website and in a few simple steps, learn whether or not a food product has been recalled - either voluntarily by its seller or by the FDA itself.

Remember all those hundreds of thousands of eggs recalled a few months back? We can't always trust the food on the shelves, Miami, and this new resource is a welcome one.

Go here for the new FDA Food Recall Site.

Also shown on the new website is a ready reference of food products that have been recalled in the past few months. Photos are included.

The FDA has provided this new resource as part of the massive federal legislation passed last fall, which implemented the first major update in federal food safety laws in almost 70 years.

The Food Safety Modernization Act (FSMA) is intended to alter how the FDA deals with food safety in America by focusing upon preventing bad food from happening, rather than responding to outbreaks of dangerous food after people are already at risk. For more on how this major new law impacts you, check our earlier post, "What Miami Needs to Know About the Federal Food Safety Modernization Act."

Working together with this new, user-friendly food recall page is the federal government's food safety website, FoodSafety.Gov. It's here that you can report a food that you think is dangerous and should be recalled. For example, if you open a jar or a box or a carton and something's just not right - don't use that product. Go to the web and check for a possible recall -- and if it's not there, trust your instincts. Perhaps this is a product that needs to be reported.

It's always better to be safe than sorry, especially with food products that can carry toxic bacteria which can cause serious injury to most and death to some. Kids, babies, the elderly, and pregnant women are especially vulnerable to food poisoning.

In the press release announcing the new website, the FDA's Deputy Commissioner of Foods explained, "[r]ecalls, mandatory or otherwise, are serious and we must do everything possible to make it easier for people to know about these recalls so they can take all appropriate steps to protect themselves and their families. We encourage people to check out our new recalls search page for themselves, and use it whenever they have a question about a recall."

By Bryant Esquenazi on April 5, 2011 1:36 PM

Opening Day 2011: Baseball Season Begins Today Along With News of SF Giants' Barry Zito Car Crash

2011-10-25T13:24:00.000-04:00

Baseball's Opening Day is an American tradition, recognized by many as a national holiday according to the Baseball Hall of Fame website.

Here in South Florida, it's a special year because it marks the last year for the Florida Marlins over at Sun Life Stadium. Soon, they'll be the Miami Marlins, playing in a brand spankin' new stadium in downtown Miami. (Go here for the 2011 Marlins schedule.)

Today, for the first time on a Thursday since 1976, the 2011 Major League Baseball regular season hits off with:

the Milwaukee Brewers at the Cinncinnati Reds,
the Los Angeles Angels at the Kansas City Royals,
the Atlanta Braves at the Washington Nationals,
the Detroit Tigers at the New York Yankees, and
the San Diego Padres at the St. Louis Cardinals.

For a blow by blow on the season openers, check out Mark Newmann's overview at the Major League Baseball site.

Here in Miami Beach, we can watch the Marlins go against the New York Mets tomorrow night, over at the stadium or on Fox-TV (which is covering all the Marlin games this season).

The Spring Season for Sports Injuries Begins, Too: SF Giants Barry Zito Car Crash

Along with the excitement of Opening Day, there is news of a minor car crash involving San Francisco Giants' pitcher Barry Zito over in Los Angeles. Seems Zito was treated and released at a local LA hospital after his car was broadsided as he drove through an intersection on Sunset Boulevard.

It's important to remember that minor car wrecks can sometimes result in longterm injuries, and the fact that Zito has been released from hospital care does not mean that he may be home free on any physical injury. Head injuries and back injuries may appear over time. Neck injuries often appear after minor car crashes, and whiplash can be a very serious injury that doesn't fully manifest for awhile after the accident itself.

Of course, Barry Zito's condition will be closely monitored by team physicians. This may not be the case for the rest of us, who may return to a job where our physical prowess isn't a vital component to company success.

For anyone experiencing a minor car accident, it's important to be vigilant about any body conditions or changes for awhile after the accident occurs. Pain should not be ignored. Favoring a limb, a nagging headache, numbness -- all are symptoms which should be immediately reviewed by a doctor.

Not all of us are baseball stars like Barry Zito, but we're all important to our family and friends. No matter how minor your car crash, it's better to be safe than sorry. Get a doctor's opinion, and remember: the party at fault (and their insurance carrier) should be responsible for your medical expenses.

By Bryant Esquenazi on March 31, 2011 12:35 PM

Unsafe to Drive: Honda Recalls 2011 Odyssey Minivans While Volkswagen Recalls 2011 Jettas

2011-10-25T13:22:00.000-04:00

It's sweet to drive that new vehicle off the lot -- that new car smell, the cutting edge technology, everything inside so clean and shiny and new. Sweet but short-lived: oftentimes, it's the brand new products that are subject to recall by their manufacturers.

All too often, it is only after the new car, minivan, or truck hits the road that defects and flaws are discovered by the manufacturer - and the products must be recalled for these problems to be fixed. Defects in products deemed safe enough to sell can prove to be dangerous - and while product recalls are an attempt to fix things, it is sadly all too true that many of these errors form the basis for products liability lawsuits where plaintiffs have been seriously injured or victims of wrongful death.

Beware the New Product: Honda Odyssey and VW Jetta as Two Examples

This week, two car makers have issued voluntary recalls of products that they okayed and placed into the marketplace for buyers to trust and purchase.

Honda is recalling 2,800 of its 2011 Odyssey minivans, sold throughout the United States, so that Honda dealers can replace the side window glass in one or both of the front doors. Why? According to its news release, Honda has discovered there is "... a potential for one or both windows to become detached from the window regulator, causing the window to become inoperative and preventing it from being rolled up or down. In the worst case, the window may bind and shatter onto the occupants. No crashes or injuries have been reported related to this defect." Honda Odyssey owners with questions can call the car maker at calling (800) 999-1009 (choose option 4).
VW Jettas are the subject of a much larger recall this week. Volkswagen of America, Inc. is recalling 71,043 of its new 2010 and 2011 Jettas because the VW dealers need to "...reconfigure a wiring layout associated with the anti-theft alarm system and horn. No injuries or accidents have been reported as a result of this condition." Jetta owners with questions should contact Volkswagen at 1-800-822-8987.

If you have a question or concern about any new product - car, car seat, tire, toy, appliance, whatever - then visit www.recalls.gov to check for the possibility of a product recall. If you have been injured by a defective product, then know that you may have a claim for damages and take steps to protect your claim: safeguard the product, document the incident, and contact a plaintiff's products liability attorney. Sometimes a product line is defective; sometimes, a single flawed product can be the cause of harm.

By Bryant Esquenazi on March 29, 2011 1:24 PM

Michael Jackson Murder Trial: Shows Us How Juries Are Really Picked - In Florida or California

2011-10-25T13:20:00.000-04:00

The trial of Dr. Murray for being responsible for the untimely death of Michael Jackson is underway - jury selection starts tomorrow.

The people that will serve justice in this proceeding already have their notices in hand, requiring them to appear at the courthouse as potential jurors. They just don't know yet, and neither do we, who the actual jurors will be.

Picking a jury in the California criminal trial isn't that much different from picking a Florida personal injury jury here in Miami.

Citizens get a notice with instructions on the time and date they are to come to the official jury room. Lots of people show up. There's parking to deal with - where to park, cash to bring, and decisions to be made on reading material and snacks to take.

Once there, citizens find they are part of a big group of people who got similar notices. Out of that big group, smaller ones are chosen to go to courtrooms and be part of the selection process for particular trials.

The big group waits around, reading the paper or eating chips from a machine, until a court representative sends word that a jury is needed and another bunch of people need to be sent up to that court. There's a lunch break.

Picking the Jury: Questions That May Seem Too Personal

Meanwhile, trial attorneys are getting ready to question the group because they need to know that those folk who get on the jury will be fair.

No one wants the defendant's sister in law on the jury - except the defendant. And these questions are prepared in advance, lots of time goes into what to quiz the jurors.

In personal injury trials where millions or billions of dollars is at stake, professional jury consultants will be hired to assist the lawyers in jury selection. They may go so far as to have "ghost juries" to track the proceedings in the courtroom or practice panels for jury selection preparation.

Information on potential jurors will be provided to both sides by the court clerk - attorneys will know in advance where they live, how old they are, things like that.

Dr. Murray - Michael Jackson Manslaughter Trial Jury Selection Questions

TMZ has published a partial list of the questions that Murray's attorneys will be asking during jury selection. Here are a couple of examples - questions that might well be asked in a personal injury trial as much as a criminal one:

At what age should a person be held accountable for their decisions, actions and consequences?
Do you have a blog? If so, describe.
Are you active on social networks. If so, which?

Why ask about blogs or Facebook or Twitter?

For one thing, these questions can lead to follow up questions - what's your blog about? have you ever blogged about product recalls? etc. Individual questions that will reveal more about the potential juror. For example, Dr. Murray may want responsible business owner types, while his opposition will probably want dedicated music fans.

Will those blogs and Facebook pages and Twitter tweets be read as part of jury selection in Dr. Murray's trial? What do you think?

By Bryant Esquenazi on March 24, 2011 1:04 PM

Drive a Ford Pickup Truck? Check Your Tires: Major Recall of Bad Tires on Ford Trucks

2011-10-25T13:18:00.000-04:00

Continental Tire has voluntarily recalled over 390,000 tires that are currently being driven on Ford F-250 and Ford F-350 trucks (model years 2008 and 2009) because the tire manufacturer has discovered these light truck tires can experience "...uneven wear, vibration or particularly under conditions of overloading or under inflation in high ambient temperature usage, separation between the belt edges potentially leading to a tread separation."

Big fancy language for letting us know that the tires are dangerous and could cause a pickup truck to crash.

The company, Continental Tire the Americas ("CTA"), will undertake the chore of notifying truck owners of the problem and the company is also voluntarily going to replace the bad tires - free of charge.

Which sounds so generous of them, until you consider this is mitigating their potential damage, should they become responsible for a tragic accident due to their faulty product.

The tires that are being recalled are as follows:

Tire Name: Continental ContiTrac TR Size: LT275/70R18 125/122S Load range: E Outline White Letters DOT Serial Numbers: P515 46U0 1807 through P515 46U0 2308

Tire Name: Continental ContiTrac TR
Size: LT275/70R18 125/122S Load Range :E
Black sidewall
DOT Serial Numbers: P515 46XB 2607 through P515 46XB 2408

Tire Name: Continental ContiTrac
Size: LT275/70R18 125/122S Load Range: E
Black sidewall
DOT Serial Numbers: P515 46YB 4307 through P515 46YB 3708

This Is a Serious Situation For Owners and Operator of Ford Trucks

As LeftLaneNews has already pointed out, it was a similar beginning for Ford Motor Company several years ago when the Firestone tires it placed on its vehicles started to go bad, causing serious accidents across the country.

Moreover, according to LeftLaneNews, these bad CTA tires have already been involved in 100 property damage claims over the defective tires with five claims of personal injury being reported to the tire company. Also, Continental and the NHTSA are also reportedly investigating a 2009 crash where these tires were on a Ford F-250 pickup truck involved in a fatal rollover accident.

Miami, check those Ford truck tires against the product details above -- and get them off your vehicle asap. You don't want to be involved in an accident due to a product known to be defective.

By Bryant Esquenazi on March 22, 2011 1:25 PM

Vanessa Hudgens Fights Release of Nude Photos - When Criminal Law and Personal Injury Tort Law Overlap

2011-10-25T13:10:00.000-04:00

Vanessa Hudgens is mad and taking action regarding the unauthorized release of some old nude photographs taken of her years back. Seems that someone has sent out photos of Vanessa Hudgens sans clothing without her okay and now, several websites have posted the photos on their websites.

What Vanessa Hudgens Has Done About This So Far: State and Federal Criminal Investigations

Vanessa Hudgens obviously believes she has been, and continues to be, harmed by this. She's gone to local police.

Today, there are news reports that Vanessa Hudgens is also talking with the Federal Bureau of Investigation about the leaked nude pix.

Which means that Vanessa Hudgens has opened the door to both state and federal criminal laws and statutes applying to her situation. Law enforcement authorities for both the state where the crime allegedly occured (presumably California according to the news reports) as well as for the federal government will be actively involved in determining what has happened here.

If state or federal laws have been violated, then the person believed to have violated these laws will be arrested, charged, and if convicted, forced to pay monetary fines and/or serve jail time.

None of which provides justice to Vanessa Hudgens for the harm that she may have experienced because of these bad acts.

What Vanessa Hudgens Can Do In the Future: Personal Injury Civil Suit.

Crime victims often suffer severe personal injury as a result of the criminal acts committed against them. Sometimes these are physical injuries. Sometimes they are emotional ones. In many cases, they are economic harms.

Here, Vanessa Hudgens may argue that she has been detrimentally impacted by the release of these photos in a permanent way insofar as her professional career.

With her background as a Disney star, release of compromising nude photos may be argued to have injured her career-wise. The criminal investigations and prosecutions will do nothing to rectify that injustice.

Personal injury lawsuits, based on any number of torts, are often filed by victims of crime in order to obtain personal justice for the sufferings the victims have indured. Civil cases can proceed at the same time as criminal cases do, and in civil cases the burden of proof will be lessen stringent than the prosecutor will have to meet.

Personal injury evidence must prove the plaintiff's case by a "preponderance of the evidence" standard, which basically means "more likely than not." It is more likely than not that the defendant's actions harmed the plaintiff in the amount of X dollars.

In criminal matters, the state attorney must meet the "beyond a reasonable doubt" standard: it is an almost certainty that the defendant committed the crime.

It is only through the personal injury civil lawsuit that a victim of wrongdoing can obtain monetary justice for the real damage that they have suffered at the hands of the wrongdoer, where the courts can and will force that wrongdoer to pay money to the victim to repair, at least in part, the harm that they have caused.

Whether or not Vanessa Hudgens, the star of Disney's High School Musical series, sues for personal injuries remains to be seen. Legally, it's an avenue open to her and her legal counsel to consider and pursue in the coming months.

By Bryant Esquenazi on March 17, 2011 12:15 PM

Bachelor Brad Womack Dumps Florida's Emily Maynard: Does Emily Have a Lawsuit?

2011-10-25T13:08:00.000-04:00

The Bachelor on ABC-TV had its season finale last night, and Brad Womack chose South Florida's own Emily Maynard to be his fiancee. Sorta.

Hailing from Key West, single mom Emily (she's the mother to a five year old daughter, Rikki) was seen by millions last night, as Brad picked Emily from all the contestants to be his bride -- but wait: before the show ended, it was also announced that while Emily considers the couple to be engaged, she's not ready to pull up stakes and move to Austin, Texas, where Brad lives.

Hal Boedecker of the Orlando Sentinel called the finale "screwy" and he's right.

Today, news is that Brad has pulled the plug on the relationship and Emily shouldn't worry about considering the engagement as still being on. It's not. It's over.

You've seen the show -- it's been a hit for many years now, though few of the couples actually make it down the aisle.

Brad and Emily won't, we know this morning. Seems that Brad has already broken the engagement with Emily thought they kept this quiet as part of their contractual agreements with the TV show Powers That Be.

Does Emily Have a Lawsuit? What Florida Law Says About Broken Engagements

In most states, there are laws on the books for "breach of the promise of marriage." Here, the plaintiff has to provide evidence of things like:

an exchange of promises - a proposal and an acceptance;
that there was a break-up;
the parties could legally marry (they were legal adults, had the mental capacity, etc.); and
the damages sustained by the person who was dumped.

However, many states have abolished these statutes as being inappropriate for modern times. The legal status of women has changed in our society, and these contractual protections have been deemed unnecessary in many states.

Section 771.01 and 771.04 of the Florida Statutes abolished the cause of action for breach of a promise to marry as follows:

Certain tort actions abolished.--The rights of action 771.01 heretofore existing to recover sums of money as damage for the alienation of affections, criminal conversation, seduction or breach of contract to marry are hereby abolished. History.--s. 1, ch. 23138, 1945.

No act done in state to give cause of action.--No act hereafter done 771.04 within this state shall operate to give rise, either within or without this state, to any of the rights of action abolished by this law. No contract to marry hereafter made or entered into in this state shall operate to give rise, either within or without this state, to any cause or right of action for the breach thereof.
History.--s. 4, ch. 23138, 1945.

Personal Injury Law May Help In Some Cases - But Not All

Does an injured party have no legal redress? In some particularly agregious situations, Florida law may help. Other legal avenues may exist under personal injury law that might provide a basis for a legal case. Claims for tortious conduct, such as the infliction of emotional distress, may be applicable and allow for punitive damages.

However, these won't apply to every broken engagement and a lawyer would have to review each factual situation for its legal viability. Facts must be able to support the particular personal injury cause of action.

Elements of Intentional Infliction of Emotional Distress

For example, as explained in Johnson v. State Dept. of Health and Rehab. Services, 695 So.2d 927 (Fla. 2d DCA 1997) , Florida has defined the intentional infliction of emotional distress as involving the following:

the wrongdoer's conduct was intentional or reckless;
the conduct was outrageous, that is, as to go beyond all bounds of decency, and to be regarded as odious and utterly intolerable in a civilized community;
the conduct caused emotional distress; and
the emotional distress was severe.

By Bryant Esquenazi on March 15, 2011 2:30 PM

Charlie Sheen Sues for $100,000,000: But What About the Arbitration Clause in His Employment Contract?

2011-10-25T13:06:00.000-04:00

Charlie Sheen has officially filed a lawsuit against a number of defendants regarding the controversy over his CBS TV series Two and a Half Men, and you can read the entire pleading here on TMZ.com.

So, what does this mean in view of the arbitration clause that is contained in his contract?

As discussed in an earlier post, there was an agreed-upon arbitration clause in the contract Charlie Sheen signed regarding the show as referenced in the Warner Bros' lawyers' letter responding to Sheen's initial written demands.

While the contract has not been made available, it's probably safe to assume that it exists, since it was quoted by Warner Brother's counsel (as shown in the earlier post).

That doesn't mean it's written in stone, though.

You may find an arbitration clause in the contract you have for your cellular phone service, or in your new car loan, or in your checking account agreement. Buy any major appliance and check the language in the sales agreement: odds are high that there will be language in there about arbitrating any dispute that arises from the deal.

Doesn't mean that you can't fight that arbitration provision. Many have. Many do.

Just last year, for example, a Florida court nixed an arbitration clause in an employment agreement involving Carnival Cruise Lines (Carnival Corporation), where the agreement stated:

"any and all disputes arising out of or in connection with this Agreement, including any question regarding its existence, validity, or termination, or Seafarer's service on the vessel, shall be referred to and finally resolved by arbitration."

In this Florida case, the employee committed suicide while on board the cruise ship, and the personal representative of his estate sued Carnival for negligence. Carnival asserted that the case had to be arbitrated. The Florida federal judge ruled that this contract provision (above) was null and void because it violates language found in the Jones Act. Result? No arbitration. (See Ruiz v. Carvinal Corporation)

The Fight On Where the Battleground Will Be

Now that Sheen has filed a lawsuit, doesn't mean that arbitration won't be the result. A "motion to compel arbitration" can be filed, for example, and then the lawsuit goes into limbo and the fighting moves to the arbitration forum if the motion is granted.

Of note: not all of Sheen's lawsuit involves that contract, though. He's got allegations against parties that may not be a party to the agreement -- and he's alleging tortious conduct that involves activity outside of the contract. Personal injuries that he and others have sustained as a result of the bad acts of another, which Sheen can argue are outside the scope of the contract provision.

Charlie Sheen is educating lots of people through his example, in more ways than one.

Charlie Sheen may be suffering from mental illness. Charlie Sheen may be addicted to any one or more substances. However, one thing is obvious: Charlie Sheen has worked well with his legal counsel, as all clients are smart to do, and together, a solid (and yes, perhaps #winning) strategy is revealing itself to all of us.

It's very clear that CBS and Warner Brothers, et al., have a big legal fight on their hands.

By Bryant Esquenazi on March 10, 2011 2:12 PM

Charlie Sheen v CBS, Warner Bros: Probably No Trial. Why? Sheen Agreed to an Arbitration Clause and Why You Should Know About Arbitration, Miami

2011-10-24T10:11:00.000-04:00

Charlie Sheen's lawyers wrote to CBS and Warner Brothers about his claims regarding the TV series Two and a Half Men and this week the letter Charlie Sheen got in response was published online.

You can read it here on TMZ.com. Of particular note, the following language on page 10:

...Warner Bros. has submitted this dispute to arbitration before JAMS, as
required by the Agreement....

What is Arbitration?

Arbitration is a very popular form of "alternative dispute resolution." Which means it's one of the most popular ways of avoiding a trial down at the courthouse. Others are mediation and informal settlements between the parties.

Sometimes, alternative dispute resolution is a good idea. One example that is rising in popularity across the country are collaborative divorces, where courtrooms are avoided as the spouses work out their custody and support and property issues. Another example, two conglomerates are fighting over fees - it's cheaper and faster for their representatives to set down at a table and hammer out a deal that works for both sides than for all that time and money to be spent on a boring money dispute presented to a jury.

However, arbitration is different than other forms of alternative dispute resolution. It's scary because when it's created in a deal made within a contract (like Sheen's employment deal) it means "fair trial" goes out the window.

Why? Where it's part of a contract, a provision that provides that the parties agree that if there is a dispute it's understood in advance that there will be no lawsuits filed down at the courthouse, in the public record -- instead, they all agree at the outset to opt for arbitration to settle the dispute.

This means there won't be the usual rules of evidence used in standard litigation, and there will be a different kind of decision maker. He or she won't be an elected or appointed judge. He or she will be an independent third party arbitrator, and maybe there will be more than one. A panel who decides your fate.

What if you don't like the decision? You may be out of luck. Appeals of arbitration decisions are limited in scope to things like bias. Hard to prove. And to try, you have to do something like move to vacate the arbitrator with the Arbitration Board. Anyone pondering how often they find bias to exist?

How Arbitration Can Impact You Here in Miami

In Florida, the Florida Arbitration Code, Florida Chapter 682, Florida Statutes Sec. 44.104 and Rule 1.830 of the Florida Rules of Civil Procedure work together to control the type of contractually imposed arbitration that the Charlie Sheen - CBS and Warner Brothers situation exemplifies.

Here, it is considered a voluntary and binding arbitration by Florida law and to some extent, the parties are free to arbitrate as they see fit. For example, Florida voluntary binding arbitrations can have one arbitrator or an arbitration panel, as the parties decide. They can adhere to the procedure set out by the American Arbitration Association or they can improvise, creating their own procedure for the arbitration. They can even agree on the evidence: they can limit the evidence to documents and no testimony, or documents and depositions only, etc.

(Court-ordered arbitrations exist in Florida, see Florida Statute 44.104, but they are different than the Sheen scenario: the judge orders them, usually when mediation fails, as a last ditch effort to avoid an expensive trial, and the parties aren't bound by the result.)

Most Floridians have entered into arbitration agreements - waiving their right to a jury trial and the protections of state or federal evidence law - without even being aware of it. Seeing the advantages of arbitration over courtroom trials, companies have adopted consumer arbitration agreements in all sorts of sales agreements. Read your contract with your bank; the deal you made for your phone; the purchase contract for your car or HDTV.

Don't be surprised to see that there's an arbitration agreement in there. Can you get around that clause if you need to do so? That all depends. The power of these big companies to force arbitration down the consumer's throat is an issue that is still being litigated in Florida and across the country.

By Bryant Esquenazi on March 8, 2011 3:59 PM