In many cases, someone who is injured as a result of another’s negligence may not have physical injuries, but rather, emotional injuries. There are many examples where mental anguish or trauma may be even more significant than any physical harm that could have been sustained.

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Although we live in an age where mental health awareness is more prevalent than ever, the law has been slow to adapt to mental injuries that don’t stem from physical ones. There has long been concern that allowing people to recover for only mental distress, with no physical injury or impact, will lead to false claims, and is too difficult for a defendant to disprove.

The Impact Rule

Thus, courts have come up with the so-called “impact rule,” a rule that requires a victim sustain some physical impact, no matter how slight, in order to recover for any kind of mental distress.

But the Florida Supreme Court has weakened the impact rule in recent years. One case involved a prison nurse who gave mouth to mouth to an HIV infected inmate. The nurse was infected, and her HIV positive status was negligently disclosed and released to the prison by the testing company. It later turned out that the results were a false-positive, and the nurse never had HIV.

She sued the testing company, alleging only mental and emotional trauma, for the negligent disclosure of her personal (and inaccurate) medical information.

As a general rule, where negligent action clearly foreseeably can lead to emotional trauma, the impact rule has not been applied. One example is a “wrongful birth” action, where a physician’s medical malpractice leads to the birth of an impaired child, an event that surely can cause emotional distress.

The Supreme Court noted that the impact rule has also not been used in actions involving intentional torts, and torts involving privacy invasions. It also has not been used in cases where psychotherapists breach their duties of confidentiality to patients.

Court Allows the Claim

The Court here determined that laws that required the confidentiality of HIV testing (as well as other medical confidentiality laws) were instituted to promote people to get themselves tested. If there were laws ensuring HIV testing confidentiality, then surely the legislature believed that a breach of that confidentiality could cause severe emotional trauma. Thus, the impact rule did not bar the nurse’s claim against the medical company.

Although the case is a good one for victims, it unfortunately does not do away completely with the impact rule. Courts themselves have said that whether the rule will be applied will be on a case by case basis. Thus, many victims won’t have any certainty whether they can recover for mental/emotional-only injuries until they litigate their case. To that extent, there is uncertainty for some accident victims.

It should be noted again, however, that the impact rule does not bar someone from claiming mental or emotional trauma, when they also have sustained a physical injury or impact.

Injuries from accidents can take many forms. If you have been in an accident, make sure you obtain maximum recovery for both physical, as well as emotional injuries.  Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury case.

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When preparing for a personal injury trial, it’s easy (and important) to focus on the evidence and testimony that will be presented. But what many personal injury attorneys often forget is a process that is perhaps the most important part of the personal injury trial: picking a jury.

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Jury Selection

Jury selection has its own very complex set of rules and laws. And while everyone is in theory guaranteed a jury of their peers, that right is balanced with the right of parties to strike jurors, and challenge jurors, with and without cause.

Of course, knowing which jurors to strike is an art form in itself and many books have been written about the topic. Ultimately though, when there is a question of whether a juror should be stricken, the final decision will come down to the trial judge, and his or her decision as to whether the juror should sit or not.

Recent Case Deals With Jury Dispute

A recent case turns on a judge’s decision to keep a juror on the jury panel. A woman was suing for injuries sustained in an automobile accident that occurred when she was rear ended. At trial, the lawyer asked the jurors if there was anything in their life experience that would affect or alter their ability to hear the case and decide it on a neutral basis—a perfectly common and fair question.

One juror said that she had a relative that she felt was wrongly convicted of a crime. Thus, she stated she had lost all faith in the jury system. She stated that she believed that the defendant in the injury case would probably feel like the jury would be there for him, but that she knew that wasn’t the case based on her relative’s conviction. Upon a request to strike that juror, the judge denied it and allowed her to remain.

Appellate Court Rules Juror Should Have Been Stricken

If there is reasonable doubt as to a juror’s neutrality, or where it seems one side is ahead of the other in a juror’s mind, the juror should be stricken. Jurors who have reservations as to the jury system itself can be stricken from a jury panel because jurors must have a state of mind that allows them to impartially hear evidence and decide a case.

With that law in mind, the appellate court determined that the trial court had erred in refusing to strike the jury, and a new trial was declared.

Surely, every injury attorney should strive to strike jurors that may not be helpful to their client, and keep those that may be sympathetic to their client. But pushing too hard to keep jurors that may be contested can end up having an adverse effect, if it later turns out a juror was kept that should have been stricken. An otherwise good verdict can end up overturned on appeal because of jury selection problems.

Personal injury trials can be complex. It’s important to have lawyers that understand the process from start to finish, including the art of jury selection.  If you have been in an accident, talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury case.

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Once again, a tragic event has occurred in a cruise ship pool. This past Monday May 18, 2015  a ten year old girl drowned aboard the vessel Norweigian Gem. Our Florida cruise ship lawyers are monitoring the case closely. According to attorneys at Gerson and Schwartz, PA, the cruise ship industry does not require lifeguards in their pools. It just does not fit in their business model, says Nicholas I. Gerson of Gerson and Schwartz, PA. This is alarming considering the number of children and pools on passenger vessels. Under federal maritime law, cruise ship operators only have a legal duty to provide reasonable care under the circumstances.

In the last several years, the cruise ship industry in general has been subject to scrutiny based on  lack of tougher laws and enforcement of its own rules and regulations. Numerous requests for stricter rules   and regulations make their vessels safe are needed for the public. Until recently, cruise ships were not even required to report violent crimes such as rape or sexual assault, nor were they required to cooperate with law enforcement. Accidents like drownings aboard ships are foreseeable and preventable. These ships should have trained lifeguards on duty whenever the pool is open. If the cruise line industry required it’s vessels operate recreational pools with an active life guard and increased safety measures like in you would find in a typical resort, would help make these floating cities safer for all. The cruise ship lawyers at Gerson and Schwartz, PA represent passengers and crew members in all types of accidents. For more information on how we can help, visit www.injuryattorneyfla.com or call toll free at 1-877-475-2905.

Does the term collateral sources seem interesting? Probably not, and it probably sounds like a term that has absolutely nothing to do with getting recovery from a negligent party for your injuries. But in fact, collateral sources can directly affect the amount that you receive from a jury verdict in a lawsuit brought for personal injuries.

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What is a Collateral Source?

Collateral sources are sources of money that you receive that compensate you for damages or injury, which aren’t part of your injury lawsuit.

For example, assume your PIP insurance pays $10,000 towards a surgery that you needed as a result of injuries sustained in an accident. Your PIP will pay those bills, regardless of negligence, or what a jury says. Later, a jury awards you a verdict that includes the same $10,000 for the surgery. You have now been “paid” that $10,000 twice—once from your PIP, once from the jury.

The collateral source rule is designed to prevent this from happening. Thus, when the jury awards you the verdict, it will be reduced by $10,000 to compensate for the PIP coverage you received.

There are a number of sources that can be considered collateral, which can reduce the jury’s verdict. The sources are directly detailed in Florida’s collateral source statute. They include:

  • Social Security disability payments;
  • Payments from similar federal medical programs that provide medical benefits for disability;
  • Any private disability insurance;
  • Any auto insurance policy that provides medical benefits (such as a PIP policy); and
  • Any employer-provided wage payment plan payable in the event of disability.

What Sources are Not Considered Collateral?

There are some sources of payment that don’t operate to reduce a jury’s verdict.

Generally, a jury’s verdict can’t be reduced for future medical expenses. If you will need a surgery in the future, and it will cost $10,000, even if you have insurance, the verdict can’t be reduced by that amount. Verdicts can only be reduced for amounts that are or have been actually paid.

A recent case determined that unemployment benefits were not collateral sources, even though these, like a jury award, may compensate someone for lost or unavailable wages.

Some programs will demand repayment if you get a jury verdict. For example, Medicare may require you pay back from a jury verdict some or all of any money it pays for your medical expenses. Because you have to pay back Medicare, that expense can’t be subtracted from a jury verdict. Many private health insurance companies operate the same way—they will require reimbursement if you receive a jury verdict, and thus what they pay won’t be subtracted from your verdict.

It may sound like collateral sources are a strange legal term that you don’t have to think about. But if a jury awards you a verdict, the defendant will likely do anything it can to get that amount reduced. That includes a fight over collateral sources. Unfortunately, many injured victims find a substantial verdict whittled away because their attorneys didn’t understand the rule or how to protect their clients from its effects.

Getting a verdict and protecting it are two different things. Make sure your injury attorneys understand every way that defendants will try to avoid compensating you for injuries sustained because of their negligence.  Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury case.

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Even injury cases that seem like “slam dunks,” or “easy” cases, can have complex issues, that could prevent someone catastrophically injured from recovering at trial. No case should be seen as easy, even when facts seem to look like they go in a victim’s favor. A recent case demonstrates how even when on the surface a case seems like a winner, what happens at trial can turn things around in a hurry.

The Wrongful Death Case

The case arose when the estate of the victim, who died, sued a driver in a rear-end accident. The defendant rear-ended the victim, ejecting her from her car, and killing her. It was later learned that the defendant was an off-duty police officer who had fled the scene after the accident, lied about what happened to his car, and at the time of trial, was actually in jail for charges related to the accident.

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How could it be that the estate recovered almost nothing? It had to do with evidentiary issues, including the seat belt defense.

Evidence of the Defendant’s Behavior

The first question concerned the off-duty officer’s behavior after the accident, including fleeing the scene. The victim’s estate wanted the jury to hear that information. The defendant objected, believing that it was just meant to anger the jury, and make the victim look like a bad person, and thus was not admissible.

Generally, even evidence that may be relevant to an issue can be excluded, if it is highly inflammatory or unfairly prejudicial to a party. It is up to a judge to determine whether the prejudicial effects outweigh any beneficial evidentiary value information presented to a jury may have.

The trial court here agreed with the defendant that the evidence was highly prejudicial and kept the information from the ears of the jury.

On appeal, the court noted that the trial court had wide discretion in determining whether evidence is too inflammatory or prejudicial, and here, it was bound to follow the trial court’s decision to exclude the evidence.

The Seat Belt Defense Issue

The seatbelt issue was more complex. The defendant argued that the victim died largely because of her failure to wear a seatbelt, and in fact, there was testimony that one wasn’t used. However, there was also testimony that the seatbelt in the car was not operable.

The victim asked the court to omit the seatbelt evidence, arguing that before the defense could be asserted, it had to be shown that the seatbelt was working in the first place. Here, there was plenty of evidence that it was not. But the court denied the motion, and allowed the jury to decide.

In the end, the jury determined the victim was 70% responsible for her own injuries, thus reducing her estate’s recovery by that amount.

The appellate court noted that although a jury can consider whether there was an operational seatbelt in a vehicle, as it did here, there was nothing that said that a defendant had to prove that a seatbelt was operational before a jury considers the issue. In other words, a broken seat belt can be considered by a jury. But finding there was a working one was not a prerequisite to the issue being submitted to a jury to decide.

The appellate court thus was obligated to abide by the jury’s determination.

Don’t ever assume a case is easy, or that a wrongful death case is one that just anybody can handle. There are many issues that may not be apparent on the surface, that you need good attorneys to recognize and deal with. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury or wrongful death case.

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The area of products liability is one of the biggest areas in which a personal injury lawyer can make a difference in the lives of consumers. We rely upon products that we use every day to be safe and reliable, often putting our lives in the hands of the companies that make and manufacture these products.

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Nowhere is that more evident than in the area of medical products. A recent, tragic death in Chicago is a reminder of how vital it is to keep companies responsible for ensuring the safety of the products.

Chicago Law Student Dies

A young University of Chicago law student, Abbie Harper, died recently, apparently due to the failure of her diabetic monitoring equipment. Harper was a Type 1 diabetic, and used Abbott’s FreeStyle test strips with a glucose meter. According to the lawsuit, the products gave artificially low glucose readings. As a result, Harper didn’t take enough insulin, leading to her death.

The FreeStyle strips were recalled just days later, for that exact reason—providing inaccurately low readouts.

Harper’s lawyers also believe that not only were the readings inaccurate, but the strips were incompatible with the other devices she used.  And this isn’t the first time there had been indications of faulty products—in 2010 and 2013, Abbott products were pulled from shelves due to inaccurate readings as well.

Walgreens, which filled the prescription, is also being sued; in a products liability suit, even retailers who sell a defective product can be liable for injuries caused to a customer, even though the retailer may not have made or manufactured the product, and even though the retailer may not have had actual knowledge of the defective product.

Products Liability Suits Can Be Difficult

Like most products liability suits, Harper’s lawsuit will take some time to resolve, and likely will entail the testimony of experts, and the expert testing of products. Products liability suits should only be handled by attorneys with the resources and skill to not just obtain the needed evidence, but to explain it in common language to a jury.

Harper’s parents said the test strips were her lifeline. They likely were, just like so many medical devices and products that we rely upon on a day to day basis.

Yet, there is still grumbling about excessively high jury verdicts, and complaints by businesses (or their insurers) about how difficult it is to do business with the specter of lawsuits.

But lawsuits are about holding people responsible. Given the very high income statements of many pharmaceutical and medical manufacturing companies, it isn’t much to ask that companies be held responsible for the products they sell, make money on, and upon which they know patients rely.

If you have been injured by a product that you believe was defective, or malfunctioned, don’t let a negligent company get away with continuing to sell faulty products. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury case.

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Florida’s liability system is based upon what is known as comparative fault, or comparative liability. What this means is that if you are injured as a result of someone else’s negligence, a jury at trial can reduce your award by any amount that you were negligent—that is, the extent that you were responsible for your own injury.

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This often comes into play in a slip and fall, where a defendant may claim that you should have been looking where you were going, or in an auto accident, where a defendant may allege that you could have avoided the accident. But a negligent defendant in a recent case argued a novel theory, attempting to prove that the kind of shoes a woman wears allows a court to apportion liability to her.

Woman Slips in High Heels

The victim in the case sued when she slipped on a bathroom floor that she alleged was overly slippery and improperly maintained. At trial, the court determined that both parties were equally negligent, and thus awarded the victim 50% of her total damages.

The basis for the reduced award was the fact that the victim was wearing very high heeled (but otherwise normal women’s) shoes. Although the defense acknowledged at trial they weren’t saying women could or couldn’t wear certain kinds of shoes, it did say that people tend to fall wearing 4-inch heels, and thus, the victim could have expected to fall wearing those kinds of shoes.

To support its position, the defense pointed out that the victim testified that she was held up by a co-worker after the fall who was wearing “safer footwear.”

Appellate Court Disagrees

The appellate court started by determining whether wearing high-heeled shoes creates a “foreseeable zone of risk,” such that an injury can be expected. The court determined that the property owner did not meet its burden of proving there was any foreseeable risk given the facts here. Thus, the court sent the case back to be determined without apportioning liability to the victim just because of the shoes she was wearing.

It’s important to remember that this doesn’t mean that a defendant can’t use your footwear (or other clothing) as evidence against you in a negligence trial. A defendant can certainly explore other causes of how an accident occurred. So, for example, if someone were running in high-heeled shoes, or had a history of falling in high-heeled shoes, footwear could become an issue in a case that an injured party has to be concerned about.

That analysis has more to do with causation—what caused the accident—than comparative negligence, which asks if a victim contributed to her own injuries by acting negligently. Clearly, wearing certain footwear, by itself, doesn’t make someone negligent. But the case is an important lesson in how details can make or break a serious injury case, and how crafty defendants will get to avoid responsibility for their actions.

Slip and falls can lead to catastrophic injury, and also involve detailed factual analysis. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury case.

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When someone suffers a heart attack, we normally think of that as a natural occurrence, unpreventable by anything that anybody could have done. However, while it certainly is a natural occurrence, more and more, law is evolving to recognize that certain property owners have an obligation to have working, operational defibrillators, and to provide training to those who may need to use them.

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A tragedy during an athletic contest has now lead the Florida Supreme Court to expand significantly the instances where a defibrillator may be required.

High School Athlete Dies on the Field

The case involves a Lee County high school student, Abel Limones, who collapsed during a school sponsored soccer game. Abel could not be revived by onlookers who tried to perform CPR. The school actually had a defibrillator, and the coach knew how to use it, but testimony demonstrated that it was never brought to him to use on Abel. By the time rescue personnel arrived and resuscitated him, he had suffered severe brain damage.

Abel’s family sued, alleging that had the defibrillator been used, Abel would not have sustained his injury. The trial court and appellate court disagreed, citing numerous cases that say health clubs and those holding athletic contests have no duty to provide a defibrillator, or diagnose when one is needed. Those courts dismissed the family’s case before it even got to be tried or heard by a jury.

Florida Supreme Court Takes the Case

The case made its way to the Florida Supreme Court. The court began by clarifying that there is no common law duty to come to the aid of another, absent a special relationship. But that relationship exists between students and their schools during school-sponsored activities. Schools have to act reasonably in protecting students.

One of the duties that schools owe students is to take reasonably appropriate efforts to mitigate or lessen injuries by using appropriate post-injury treatment. The question of what is reasonable, however, is one for a jury to decide. The court emphasized that this will often depend on the student, the activity, the people supervising, and other fact-based inquiries. But because it is a fact-based inquiry, the jury must decide whether actions taken were reasonable—not the judges, as was the case here, when the trial court threw out the case before it ever reached a jury.

Schools Aren’t Gyms

The court also held that cases related to gyms and their adult members are far different than the school-student relationship. Those cases, which seemed to indicate having or using a defibrillator was not required by health clubs, don’t necessarily apply in the school context.

School is mandatory, and the state has undertaken the obligation to care for students, unlike in a commercial health club, where patrons visit voluntarily and there is only a commercial relationship.

The Supreme Court may not have explicitly stated that having or using a defibrillator is always necessary for a school. But at least it has said that it is an issue for a jury to decide, meaning that those who think that a student’s injuries could have been avoided or lessened by something the school should have done will be allowed to make their case and have a jury come to a decision.

Even if you suffer injury by natural causes, there may be a duties owed to you to provide appropriate post-accident treatment. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury case.

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We discuss causation (sometimes called proximate cause) often in this blog, and for good reason. It’s usually the most difficult part of an injury lawsuit to prove, and defendants often challenge proximate cause vigorously at trial. Additionally, the concept of causation is often so vague that different courts may appear to rule differently in every factual scenario.

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What is Proximate Cause?

Just as it sounds, proximate cause asks whether the defendant’s negligence actually caused the injury. By way of example, assume a car rear-ends a vehicle driven by a person with a heart condition. Two days later, that person dies of a heart attack. Did the accident cause the death, or the heart condition?

These questions arise in many forms, and are often factual disputes for a jury to determine. Courts have defined causation as whether, in the realm of human foresight, injury could be seen as occurring from the negligence.

New Case on Causation

A recent case explores causation in the context of products liability. A man had purchased a bicycle, and was riding it in Miami, when the wheels suddenly and without warning froze and locked, sending the victim tumbling over and suffering catastrophic damage to his face and jaw. It turns out that pieces of debris from the road had damaged carbon fiber parts of the bike, which then caused the wheels to stop.

The man sued the maker of the bicycle under a number of product liability theories, including failure to warn. Specifically, the victim argued that had there been a warning that carbon fiber on the bike could be damaged by debris, and stop the wheels, he wouldn’t have purchased it.

Appeal Ensues

The jury entered a verdict of $800,000, but the bicycle company appealed. The appellate court noted that it must be more likely than not that the failure to warn caused the injuries.

The court took a very limited view of causation, stating that the debris (or poor road conditions) caused the accident, not the failure to warn. The court noted that all roads may have debris, and that’s not something any bicycle company can control, or should have to warn about.

It should be noted that the case did not go forward on other products liability theories, such as defective manufacturing or defective design. There’s no way to know from the case why that is. But it’s very possible the outcome may have been different had that been the case.

Still, it’s troubling that the court took such a narrow view of the case, and didn’t give much attention to the fact that it wasn’t just the debris that caused the accident, but the weak and apparently susceptible carbon fiber parts of the bike.

If a bicycle manufacturer knows parts of a bike are weak and may be susceptible to debris, it should have an obligation to warn purchasers of that fact. That sounds like common sense. Unfortunately, the appellate court disagreed in this instance.

If you are injured by a defective or malfunctioning product, make sure your attorneys understand all the possible legal theories and strategies. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury case.

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You may have heard in the news about how arbitration clauses are causing consumers difficulty when bringing claims against big companies. You may think arbitration is a threat to just consumer clients suing businesses for unfair trade practices. But more and more, it’s being used against those who suffer personal injury due to the negligence of another, as big businesses’ way of trying to deny victims the right to a jury.

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What is Arbitration?

Arbitration is an informal proceeding where both sides present their evidence and a decision is made about the case. Unlike court however, the decision is not made by a jury, but rather, an arbitrator. The arbitrator also may not even be a judge, but may be a lawyer, retired judge, or other professional.

The process is very informal. The rules of evidence are often relaxed, and the ability to collect evidence before a “trial” may be much more limited than it is in a regular courtroom.

Businesses like arbitration for many reasons, but the primary one is the elimination of the jury. Businesses feel that arbitration avoids the supposed emotional reaction juries have, and avoids the so-called “runaway verdicts” that defendants think juries enter.

Recent Case Limits Arbitration

A recent case explores arbitration clauses in the context of negligent security. An employee of Club Med was sexually assaulted while sleeping in her employer-provided dorm room.

She subsequently sued Club Med for negligent security. However, her employment contract had a provision where she agreed to submit any claims or lawsuits to arbitration. Thus, Club Med sought to throw the case out of court, and have it submitted to an arbitrator.

But the appellate court disagreed with Club Med, and found that the arbitration agreement only required arbitrating any claims that arose from the victim’s employment. An attack when the employee was off duty, and in her dorm, did not arise from the victim’s employment.

The fact that she wouldn’t have been attacked had she not been an employee of Club Med was of no consequence, because there was still no nexus (connection) between her employment, and the attack that she was suing for. Thus, the court reasoned, the arbitration clause was inapplicable to her.

Mixed News Going Forward

Clearly, the good news is that a court refused to enforce an arbitration clause upon an injured victim. But the decision was based on the language of the agreement that limited the scope of arbitration, and thus, it’s reasonable to think that in the future, these arbitration clauses will be drafted broader and broader to cover as many different scenarios as possible.

If courts begin to believe that these clauses, when properly drafted, are enforceable, it could be a huge threat to an injured victim’s right to a jury. The Consumer Financial protection Bureau (CFPB) is dealing with enforceability of arbitration clauses, and let’s hope that there’s regulation limiting them as much as possible.

If you are injured by the negligence of a business, or are victimized because of poor security, make sure you have attorneys that understand all the possible defenses and difficulties of the case from the very start. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury case.

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