Miami Injury Lawyer Blog

Previously, this blog discussed the elements of product liability claims as they relate to recalls by the U.S. Consumer Product Safety Commission (“USPSC”) of various defective consumer products. Many times the circumstances associated with product liability claims spur attorneys to use a unique legal device to obtain recovery when multiple individuals have been injured.

When a sufficiently large number of people are injured by a product that was defectively manufactured or designed, the group’s legal claims may be pursued by means of a “class action” lawsuit.

A class action lawsuit is a type of legal claim that groups multiple individuals together so they can litigate their claims as one. In order to commence such an action, however, the class must first be certified by the court in which the lawsuit is filed. To be certified by the Court a class must possess four qualities:

1 Numerosity. Any class must be made up of a sufficient number of claimants. The number must be large enough that it would be impractical for each person to file an individual lawsuit.

If, for instance, three people are injured in a bus crash caused by a defective braking system, it would still be practical for each individual to file their own lawsuit. However, if the same crass injured fifty people, a class action would be the most efficient and reasonable manner in which to handle the claims.

2 Adequacy. All classes are required to identify an individual or individual(s) as the representative(s) of the class. The representative(s) must epitomize the legal interests of the other class members.

3 Commonality. A class action’s members must have common legal and factual claims. Take the bus crash example discussed above. If a number of people were injured in the bus crash, that group of individuals would have common legal and factual claims based on the facts and circumstances of a single event.

4 Typicality. The class representative(s)’ legal and factual claims must be characteristic of the claims of all the class members. Class representatives must “possess the same interest and suffer the same injury as the class members.” General Tel. Co. of Sw. v. Falcon.
The absence of any of these four qualities will result in the reviewing court to decline certification of the class. If, however, the class is successful in obtaining certification, there are additional steps it must take before commencing litigation.

First, all potential class members must be notified as to the existence of the action and the nature of the claim. This notice has to describe the action and provide the potential class members an opportunity to “opt out", or elect not to participate, of the class. Similarly, if a settlement of the class action is proposed, all members must be advised of the terms of the settlement and again given the chance to opt out.

The qualified Miami product liability attorneys of Gerson and Schwartz, P.A. have extensive experience representing groups of individuals in the context of class actions who have suffered personal injury as the result of the negligence of another. If you or someone you know has been harmed by someone else’s negligent conduct, contact the attorneys of Gerson and Schwartz, P.A. today

Typically, when a person is injured in a car accident, the insurance company of the at-fault party will step in and attempt to settle the dispute on behalf of its insured. Sometimes, however, the insurance company is unable or unwilling to settle the claim, forcing the injured party to sue. The injured party may later receive a judgment against the insured party that exceeds the amount of the insured’s coverage, leaving him or her on the hook to the injured person for the full amount of the award less what was covered by under the insurance policy.

Under Florida law, bad faith claims allow the insured to sue his or her insurance company to recover the difference between the limit of coverage and the amount of the judgment if the insurance company acted in “bad faith” in attempting to settle the injured party’s claims. Last month, the United States District Court for the Middle District of Florida, issued an opinion in the case of Markel American Insurance Company v. Flugga discussing the elements of a bad faith claim and the elements necessary to establish such a cause of action.

In Flugga, Mark Flugga was found to be at fault for a 2010 motor vehicle accident in which he, his passenger, and two individuals in another vehicle were injured. Flugga's insurance company, Markel American Insurance Company, was notified of the accident four days after it occurred.

At the request of the attorney for Flugga’s passenger, Markel provided information concerning Flugga's coverage in April of 2010. Later, Markel requested information regarding the passenger’s injuries, after which the passenger’s attorney notified Markel that there was a publicly recorded hospital lien for more than $72,000 for hospital bills related to treatment for the passenger’s injuries. The passenger’s attorney also informed Markel that the passenger had filed a lawsuit against Flugga for negligence.

Markel tendered a check to the passenger’s attorney for $10,000, which was the limit of coverage under Flugga’s policy. The check was returned and no further discussion was had regarding settlement. On the day before trial was to commence on the negligence lawsuit against Flugga, Markel filed an action in Federal District Court asking the court to declare that Markel had not acted in "bad faith" in the handling of the passenger’s claim.

The District Court held that, generally, the lack of a settlement offer by itself is not sufficient to prove that an insurer acted in bad faith in handling a claim. The Court further opined that an insurer has an obligation to attempt to negotiate a settlement when liability is clear and the known injuries are sufficiently serious that a judgment would likely exceed the insured’s policy limits.

In applying its analysis to Flugga’s case, the Court concluded , “[G]iven the minimal coverage of $10,000 as compared to the known injuries suffered*** coupled with [the] retention of a lawyer to press [the] claim and the time that elapsed from the date of the accident to the tender of the policy limits, there is a genuine issue of fact as to whether***Markel American acted in bad faith.” The Court then dismissed the action, maintaining that the bad faith issue could properly be litigated in the state court action.

In a car accident where the liability is obvious and the damages are in excess of the policy and if the insurance company fails to settle the case for less than case value, you too may have a a bad faith claim under Florida law. The Miami, Florida personal injury attorneys of Gerson and Schwartz, P.A. have extensive experience representing individuals who have been injured in car accidents and are forced to deal with insurance companies. If you or someone you know feel your insurance company is not acting in good faith to resolve a claim, contact the attorneys of Gerson and Schwartz, P.A. today for a free consultation.

Last month, the U.S. Supreme Court issued a landmark opinion in the case of Wos v. E.M.A. that protects the rights of those who receive settlements or judgements following an accident. Specifically, the ruling prevents states from taking unnecessary large portions of the award for Medicaid reimbursements.

In WOS a victim of medical malpractice and subsequent Medicaid recipient challenged a North Carolina statute requiring that up to one-third of any settlement recovered by a Medicaid beneficiary be paid to the State as reimbursement for payments made for medical treatment. The victim estimated her damages to exceed $42 million, but she eventually settled the claims for $2.8 million. The state court approved the settlement but put one-third of the recovery into escrow pending a determination as to the amount owed to North Carolina for Medicaid payments.

While the case was pending, the North Carolina Supreme Court issued an opinion holding that the irrebuttable statutory one-third presumption was a reasonable method for determining the amount due the State for medical expenses. The Federal District Court that originally heard WOS agreed with the North Carolina Supreme Court, but, on appeal, the Fourth Circuit Court of found otherwise. The U.S. Supreme Court granted certiorari to resolve the conflict between the Fourth Circuit and North Carolina Supreme Court.

In a previous case, the Supreme Court held that the federal Medicaid statute sets both a floor and a ceiling on a State’s potential share of a beneficiary’s tort recovery. The Court determined that federal law requires an assignment to the State of “the right to recover that portion of a settlement that represents payments for medical care,” but also “precludes attachment or encumbrance of the remainder of the settlement.”

Unfortunately, the earlier case did not establish how to determine what portion of a settlement constitutes payment for medical care, allowing North Carolina to adopt the statute presuming one-third a recipient’s the recovery represents compensation for medical expenses.
Writing for a 6-3 majority in WOS, Justice Kennedy stated that the statute’s arbitrary determination that one-third of every settlement was reimbursable to Medicaid constituted a violation of the Federal Medicaid anti-lien provision.

Continue reading "United States Supreme Court Strikes Down Arbitrary State Medicaid Recovery Legislation" »

Florida lawmakers have passed a new law which was implemented January 1 stating that all drivers from foreign countries (including Canada) must have an International Driver’s License to operate a vehicle in Florida. Many of our clients have been seeking the advice of a personal injury lawyer in Ottawa to help them determine whether they would be covered in the event of an accident if they were driving in Florida without an International License.

Victims of motor vehicle accidents seeking a lawyer in Toronto may want to consult with the head office of the Insurance Bureau of Canada, which has recently issued a statement indicating that they’ve asked insurance companies to conduct business in the same way as they have to date, therefore protecting all Canadians if such an unfortunate event should arise.

On their end, the Florida Highway Patrol has indicated they will not be enforcing the new law as it is subject to review due to potential conflict with international agreements.

The Canadian issuers of the International Driver’s Permits have asked the State of Florida to change the law so that it does not apply to Canadians. We’re wondering what Florida accident attorneys such as the Miami Personal Injury law firm of Gerson & Schwartz , PA think of all this. In the meantime, we at Intraligi Law Firm would advise all our Canadian friends to obtain an IDP just to be safe before their next trip to Florida. Despite assurances to the contrary, you don’t want to have a car accident and then hear a police officer tell you you’re driving without a valid license, or worse yet, your insurance company. The last time we checked, the CAA website indicated the fee for such a license is $25. The annoying part is that you have to go get those passport photos taken before you can apply.

Stephan Intraligi, Hon.B.A., J.D., Esq.

Mr. Intraligi is a personal injury lawyer in Toronto, and also offers consultations as an injury lawyer in Ottawa to all victims of car accidents, slip and falls and all other type of personal injury related matters.

On March 2, 2013, FloridaToday.com reported on the unfortunate death of two Brevard County teens that were killed in a car accident caused by a suspected drunk driver. On February 28, 2013, Rachel Price, 18, and a passenger, Jamaree Cook, 19, were traveling west on U.S. 192 near St. Cloud, Florida when an oncoming pickup truck cut in front Price. Price’s vehicle collided with the pickup and then hit another vehicle stopped at the intersection, killing both Price and Cook. The driver of the pickup was arrested at the scene on suspicion of driving while intoxicated.

This unfortunate incident highlights a continuing problem of negligent and reckless drivers on Florida’s roadways. Because it is impossible to completely safeguard oneself from negligent drivers, it is important that motorists be aware that in the event they are injured in a car accident caused by the negligence or recklessness of another they have a right to compensation and in some instances punitive damages. Punitive damages are not recoverable in every case. Under Florida law, there first be a be a proffer of evidence in the record before a claim for punitive damages can even be included as part of a personal injury lawsuit.

Continue reading "Victims Of Drunk Drivers Entitlement to Punitive Damages in Florida " »

Earlier today, the 3rd District Court of Appeals affirmed a Miami Dade trial court verdict of nearly 1 million dollars against Club Nikki on South Beach. The case arises from an assault that occurred at Club Nikki and the Nikki Beach Club back in August of 2009. The victim, David Millian sustained facial lacerations after another patron attacked him with a glass by the bathroom on a Saturday night. A Miami-Dade County jury awarded the Plaintiff just over one million dollars after a six day trial. The lawsuit was styled Milian v. Penrod Brothers Inc. Club Nikki Beach is owned by Penrod Brothers Inc. and is located on One Ocean Drive on South Beach. Attorneys Philip M. Gerson, Nicholas, I. Gerson and Edward S. Schwartz, PA represented sued the club based on negligence principles. Under Florida law, night club operators are liable for the negligent acts of their employees. The allegations included that the Penrod Brothers Inc, failed to provide reasonable security on the premises which resulted in serious injuries to the Plaintiff. The Miami, Florida personal injury attorneys at Gerson and Schwartz, PA specialize in premises liability, negligent security, and crime victim cases throughout Florida.

Continue reading "3rd DCA Affirms nearly 1 Million Dollar Verdict against Club Nikki and Penrod Brothers " »

On January 7, 2012, the U.S. Department of Transportation's National Highway Traffic Safety Administration (“NHTSA”) released Federal Motor Vehicle Safety Standard No. 14 calling for manufacturers of hybrid and electric automobiles to ensure that their vehicles meet certain minimum sounds standards set forth by the federal Pedestrian Safety Enhancement Ac, (“PSEA”). Passed in 2010, the PSEA directs mandates the Secretary of Transportation promulgate motor vehicle safety standards establishing a requirement that electric and hybrid vehicles provide an alert sound to make pedestrians aware of the approaching vehicles.

According to an NHTSA press release, as a result of the fact they don’t rely on gasoline-power at low speeds, electric and hybrid engines are much quieter and difficult to perceive upon approach than their combustion-based counterparts. Standard 141 seeks to remedy this problem by requiring manufacturers to outfit electric/hybrid vehicles with some mechanism to emit a sound that is detectable beneath a wide range of street noises and ambient sound when the automobile is moving at less than eighteen miles per hour.

According to NHTSA Administrator David Strickland, the proposal would “[A]llow manufacturers the flexibility to design different sounds for different makes and models while still providing an opportunity for pedestrians, bicyclists and the visually impaired to detect and recognize a vehicle and make a decision about whether it is safe to cross the street.”

Based upon NHTSA estimates, the implementation of Standard 141 would reduce the number of pedestrian and bicyclist injuries by 2,8000 over the life of each model year of hybrid car, truck, vans and low speed vehicle. A 2012 NHTSA report estimates that, in 2010, 4,280 pedestrians were killed and an estimated 70,000 were injured in traffic crashes in the United States. The report approximates that an average of one pedestrian was killed every two hours and injured every eight minutes in traffic crashes.

According to a 2003 report by the Florida Department Of Transportation, Florida’s pedestrian fatality rate consistently exceeds that of the rest of the United States and often ranks highest among the states. The report concludes that the high fatality rate is largely attributable to the fact that Florida’s temperate climate and seasonal variation in length of day, i.e. nights set in earlier in the South, results in increased pedestrians exposure to traffic during more hazardous dark hours.

With the increasing popularity of hybrid and electric vehicles, coupled with the tendency of Florida residents to walk rather than drive during dangerous dark hours, pedestrians and bicyclists are at greater risk than ever for being injured or killed in a traffic accident. If you, your family or friends have been involved an accident in which you sustained injuries, you may need legal representation to protect your right to compensation.

The qualified Miami, Florida personal injury lawyers at Gerson and Schwartz, P.A. have extensive experience representing car accident victims, pedestrians, and bicyclists who have been injured by negligent drivers. If you are a pedestrian or bicyclist that has been injured by an automobile, or know someone that has, contact our Miami,Florida accident attorneys at Gerson and Schwartz, P.A. today.

Last week, the U.S. Consumer Product Safety Commission (“USPSC”), issued an advisory to consumers to check their homes for certain cold weather products which were previously recalled due to safety concerns.

According to the press release, consumers should be looking for four specific products which, although recalled over the summer, likely saw little or no use until the cold weather hit. Those products are ECHO Bear Cat log splitters, Big Lots portable ceramic space heaters, Harbor Breeze bath fans, and Snowpulse Avalanche airbags.

Each of these products suffers from a defect which renders it dangerous for use. For example, according to the press release, the ECHO Bear Cat log splitter suffers from a design flaw where the “end cap of the log splitter's hydraulic cylinder can break away from the body of the log splitter, posing an impact hazard to the user or bystander.” At the time of the original press release in June of 2012, the manufacturer of the log splitter, Crary Industries, had received three reports of the hydraulic cylinder end caps detaching, with one of the instances resulting in an injury from the cylinder striking the user in the head.

Florida law permits individuals who have been injured as a result of a dangerous or defective product to recover damages from the manufacturer, designer, or retailer of the item. A person who has been harmed in such a way would assert what’s known as a product liability against the designer, manufacturer, or retailer, depending on the type of defect that cause the injury.

Three types of defects can result in a product liability claim:

Design Defect. A design defect is caused by a mistake or error in the design of the product. For example, the Big Lots portable ceramic space heaters mentioned above suffer from a design defect which permits them to overheat and melt, posing a fire or electric shock hazard.

Manufacturing Defect. A manufacturing defect is caused by an error in the manufacturing process and may affect only a certain portion of an otherwise normal product. An example of a manufacturing defect would be if a number of the Harbor Breeze bath fans mentioned above were made with blades that were slightly misshapen, causing the fan to rotate improperly and the blades to come off.

Insufficient Warning Defect. A warning defect arises when the manufacturer of a product fails to sufficiently warn consumers regarding the potential hazards associated with the product. For example, it would be a warning defect if the maker of the ECHO Bear Cat log splitter failed to warn users that using it to split logs larger than a certain size could result in the machine experiencing a structural failure.

The Miami, Florida personal attorneys at Gerson and Schwartz, P.A. have extensive experience representing individuals who have been injured by defective products such as automobiles, trucks, tires, medical devices, industrial equipment and cigarettes. If you have been harmed by a defective product, or think you may have a product liability claim contact one of your Miami, Florida personal injury attorneys of Gerson and Schwartz, P.A. today, or visit us online.

Most drivers who experience the misfortune of being struck from behind by another vehicle operate on the assumption that the other driver is likely to bear full responsibility for the injuries and damage that result. This assumption has generally been borne out in Florida rear-end collision cases. However, but a Florida Supreme Court ruling issued just last month has increased the possibility that even where a rear driver is overwhelmingly at fault, that driver may not have to compensate the front driver for all accident-related expenses. This development makes it more important than ever for Florida accident victims involved in rear-end collisions to be represented by experienced Miami personal injury attorneyslike the ones at Gerson and Schwartz, PA who know exactly how to analyze the many factors now deemed relevant to establish legal liability in these types of cases.

The Rear Driver Is No Longer Presumed Solely Responsible

Until the Florida Supreme Court’s ruling, last month, the prevailing principle, in rear-end collision cases, was that the rear driver’s conduct would almost always be presumed to be the sole (and most immediate) cause of injuries caused to individuals in the forward vehicle. This presumption could be lifted in only three scenarios: 1) Where the rear driver’s vehicle experienced an unpreventable brake failure, 2) where the forward driver stopped or changed lanes suddenly, and 3) where the forward vehicle was illegally stopped in the path of traffic. In 2010, a Florida appeals court challenged this prevailing analysis, holding that if the forward driver in a rear-end collision case was negligent in any manner, that negligence could be used to reduce the rear driver’s liability for damages. This, said the appeals court, was consistent with Florida’s ‘comparative fault doctrine’ , in which financial responsibility in personal injury cases is generally not assigned on an all-or-nothing basis, and is, instead, distributed among the parties according to the percentage of fault in relation to the extent of fault to which their conduct contributed to accident and resulting injuries.

The case decided by Florida’s Supreme Court, last month, was actually brought by the rear driver in a rear-end collision case, who hoped to benefit from the 2010 appeals ruling that recognized potential liability on the part of forward drivers in such collisions. The forward driver in that case had been using her cell phone while driving downhill at 45 mph, just before she collided with a vehicle and then got struck by the plaintiff from behind. The rear-driving plaintiff initially lost at the trial and appeal levels, but the Supreme Court sided with her in the end, granting her a chance to present her case to a jury. In the process, the Florida Supreme Court essentially confirmed that there is no longer a very firm presumption, in Florida, that the conduct of the rear driver in rear-end collisions is solely responsible for the forward driver’s injuries.

Continue reading "Florida Rear-End Collision Victims Face New Challenge As High Court Complicates Proof of Fault" »

A Palm Beach Deputy Sheriff severely injured in a fuel fire that broke out at a Marathon, Florida Circle K gas station will now be able to pursue punitive damages against Circle K Stores and the Shell Oil Corporation. Upon careful review of pre-trial evidence gathered by burn victim Richard Ragali’s attorney, a Monroe County Circuit judge has found enough evidence of conscious disregard by the fuel companies for the life and safety of their customers to entitle Ragali to add a claim for punitive damages to the lawsuit he filed.

The October 2, 2012 Sun Sentinel recounted, the 2009 incident that disfigured and disabled Ragali: While motorcycling his way to Key West in the company of other off-duty police officers, Ragali stopped at a Circle K station at 11100 Overseas Highway in order to refuel. As Ragali pulled his motorcycle up to one of the station’s fuel pumps, his bike slid on a standing puddle of gasoline, and within seconds, Ragali’s body was engulfed in flames. Either the bike’s hot exhaust pipe, or fumes coming from the pipe, made contact with the gasoline, and the resulting flash of fire instantly incinerated Ragali’s trunk, buttocks, right arm, and right leg. Six weeks at Miami’s Jackson Memorial Hospital could not restore Ragali to function sufficient to enable him to return to duty, and Ragali currently remains disabled and unemployed.

Continue reading "Gas Station Burn Victim Gets Go-Ahead to Press for Punitive Damages Against Circle K and Shell Oil" »

According to the Miami Herald, a woman lost her life after a man recklessly drove his car into a Miami Gardens bus bench yesterday around 4 pm. 4 other people were seriously injured while waiting for the bus at Northwest 199th Street and Second Avenue. The driver who was speeding lost control of his vehicle and literally plummeted directly into the bus bench without even breaking.

One woman, Delia Tafur, wound up having both of her legs amputated. A second woman Wendy Vaszuez, 44, endured severe trauma to the head. Mary Smith, died at the scene, and two teenagers, ages 16, suffered fractures throughout their entire bodies. The name of this driver is still unknown and an investigation is pending. It will be interesting to find out if this driver was driving under the influence of drugs or alcohol or what is past driving record reveals about him.

Car accident attorneys are hired by victims’ families such as these to represent them in a court of law and to seek damages for their physical and emotional losses. Automobile collisions are one of the most common causes of personal injury and wrongful death in Florida. Car accidents can result in multiple kinds of injuries, leaving individuals disabled for a lifetime. Tragically, a car accident can result in the loss of life of a loved one.

An experienced and qualified Miami personal injury lawyer can assist you in filing a claim for lost wages, lost earning capacity, disability, pain, suffering, and funeral expenses, due to a car accident. You are entitled to financial payment for your medical bills, as well. Motor vehicle collisions are a serious crime if they are the result of negligent driving behaviors. If you or someone you love has been seriously injured or killed in an automobile accident contact the law firm of Gerson & Schwartz, PA for a free consultation, today.

The professional services you need to file your claim are available to you, and personal injury attorneys are prepared to help you get through this difficult time. For a hard working attorney who will be committed to your case call (305)371-6000 or contact info@gslawusa.com to see the firm’s website and to speak to an attorney

Gerson & Schwartz, PA will represent your family in an automobile accident case and wrongful death situation.

Florida A&M University responded last week to the wrongful death suit filed against it by the parents of Robert Champion, the young drum major who died at the hands of fellow marching band members during a notorious hazing incident that took place in Orlando last November. Triggering a tide of national media criticism, FAMU asked the Orange County Circuit Court to dismiss claims against it on grounds that Mr. Champion’s submission to hazing was itself an illegal act, and that, in any case, the University did all that it was required to do in the way of discouraging hazing practices.

According to a September 11, 2012 Orlando Sentinel report, the attorney for Mr. Champion’s family was shocked by FAMU’s blame-the-victim defense strategy, and he continues to maintain that FAMU is liable in damages because it failed to take available measures to end the culture of hazing that influenced members of its famous Marching 100 band, including Mr. Champion, to perform the “gauntlet” ritual that ended Champion’s life.

Civil Claim For Events That Included Alleged Criminal Activity by Others

FAMU’s court filing includes an alternative request that draws attention to another dimension of this case, which is the alleged criminal nature of the beatings that led to Mr. Champion’s death. The University is asking that if the lawsuit is not dismissed outright, then it be postponed until criminal prosecutions of band members charged in the hazing have been concluded. Twelve marching band members are currently fighting felony charges brought against them under Florida’s anti-hazing law. FAMU is apparently hoping that convictions of the band members will somehow reduce or erase its own liability for the activities that caused student Champion’s death. This, however, is not the way things are likely to work, because Florida’s anti-hazing law, and a body of court decisions that have addressed hazing, quite clearly impose on universities responsibilities that are not negated by the criminal acts of others.

Continue reading "Florida A&M Moves to Dismiss Hazing Death Suit. Sovereign Immunity a Problem for Injured Victims in Florida " »

A drunk driver, with his one year old child in the back seat, was arrested after being stopped by Boynton Beach police. Driving in the bicycle lane on North Federal Highway, Yair Espinsosa had a suspended license. His only identification was a Mexican passport. (sunsentinel.com) After police pulled Espinosa over, they found a bag of cocaine, as well as several open beer bottles.

In the state of Florida, drunk driving is a very serious offense. The legal blood alcohol level in Florida for drivers is .08%. Moreover, drivers are required to sign an “Implied Consent" when they sign their driver’s license. This law mandates that one has agreed to take drunk driving tests, if requested to do so. In Espinosa’s case, he refused the roadside sobriety test. Nevertheless, he later blew a .227 on a breath alcohol test which is almost three times the legal limit. Espinosa was transported to the Palm Beach County Jail; where, he still remains. He could not post the bail amount of $10,050.

The legal ramifications for drinking and driving are severe in the State of Florida, and laws vary depending on the age of the driver. For instance, there is a “Zero Tolerance Law” which applies to all individuals under the age of 21. According to this law , drivers who are found to have a blood alcohol level of .02% or higher are subjected to harsh penalties, including jail and a suspended license for 6 months.

Essentially, this means zero tolerance for any driver under the age of 21. According to Florida Drunk Driving statistics issued by the DMV, there were 33,625 convictions in the state of Florida in 2010. Of these, 2,274 were in Miami-Dade County. The highest number of convictions was in Hillsborough County which includes Tampa, Fl.

Victims who are injured or killed by drunk drivers can seek compensation based on the damages they have suffered. Drunk Driving accident attorneys advocate for just compensation for persons who have suffered because of a negligent driver, who was under the influence. Based on their personal injuries, attorneys can ultimately make claims for victims or their families directly. In this way, those accident victims do not have to get involved with insurance companies or other responsible parties. Often, but not always, punitive damages are available to victims.

The gross negligence of the drunk driver in this story, who also had a toddler in his car, and the negligence of others like him, can cause serious harm, injury or death to other drivers and passengers, as well as, to themselves. Experienced personal injury attorneys investigate the breathalyzer reports and all other aspects of accident cases, such as this one. Blood alcohol level tests, in combination with thorough investigations, can very often provide solid proof of the presence of alcohol or drugs in a driver’s blood stream. In general, this information is indisputable, generating clear cut evidence for these cases. Drunk driving can be proved in court, even without blood alcohol tests, in certain cases. Extra skill is needed to accomplish this task.

Florida injury attorneys at Gerson & Schwartz, PA are highly qualified professionals, who have the experience and expertise necessary, to make the important decisions regarding how to proceed in cases, where a drunk driver has seriously injured or killed innocent victims. Over four decades, our firm has successfully sued drunk drivers and others legally responsible for their misconduct.

Contact Gerson & Schwartz, PA today for a free consultation, if you or anyone you know has been harmed. (305)371-6000 or info@gslawusa.com

A painful public memory was reawakened late last week when the Gruenenthal Group, which introduced the drug thalidomide in the 1950s, issued an apology to thousands worldwide who suffered severe birth defects after their mothers took thalidomide during pregnancy. The gesture brought no closure for thalidomide victims who have yet to be appropriately compensated for their injuries and disabilities, because the apology came with a reminder by Gruenenthal’s chief executive that the company has no intention of compensating victims for losses caused by the drug.

Thalidomide: Dangerous Drug

Prescribed until 1961 as a panacea for morning sickness, thalidomide interfered with fetal development, leaving its victims with shortened or completely absent limbs, and with other disabling, and often fatal, abnormalities of the heart, genitalia, eyes, and ears. The approximately 12,000 known victims of thalidomide were concentrated throughout Europe (including the U.K.), Australia, Japan, and Canada, where the drug had been approved for use during pregnancy. Even in the U.S., where thalidomide was distributed only on an ‘investigational’ basis, at least 17 children were born with the drug’s characteristic adverse effects. The accommodations those surviving thalidomide victims ended up needing simply in order to get through life turned out to be extensive and costly.

Despite Gruenenthal’s steadfast denial, over the years, of any obligation to compensate thalidomide victims for their injuries, advocates for compensation have never given up their fight, even as the population of thalidomide victims has aged. In the U.S., Gruenenthal, along with British firm GlaxoSmithKline and multinational pharmaceutical developer Sanofi-Aventis, have been named in lawsuits that seek damages based on these companies’ connections with the business entities that originally made thalidomide available to pregnant women in the U.S.

Dangerous Drug Claims

Thalidomide, which is used relatively safely, today, to treat a variety of conditions in non-pregnant patients, worked its notorious fetal harms through undetected or undisclosed side-effects. Also, many claims involve marketing practices that deprived thalidomide prescribers and users of clinical testing information that could have provided notice of serious risks.

Undisclosed dangerous side-effects, failures to limit drug use to safe contexts, and improper marketing are, in fact, often the bases for dangerous-drug damage claims against drug manufacturers and distributors. Manufacturing defects and drug tainting (which may occur during bottling and shipping) are yet another basis for liability recognized under drug product liability law.

Continue reading "Victims Still Seeking Product Liability Damages for Dangerous Drug " »

Earlier this month, Palm Beach County Civil Division jurors awarded $28.45 million in damages to the mother of a Boynton Beach child who suffered a stroke and permanent brain damage after two doctors misdiagnosed what was a very serious, but eminently treatable, infection of the child’s nervous system. The child had presented at Bethesda Memorial Hospital with a persistent fever, and his doctors correctly ordered a diagnostic spinal tap; but when spinal fluids showed the presence of bacterial meningitis, the doctors failed to take notice.

The child subsequently fell victim to a massive stroke that left him with profound and permanent developmental disabilities. His doctors alleged that they eventually did diagnose and treat for meningitis (and they are planning to appeal the verdict). However, in an interview given to the Palm Beach Post on the occasion of the verdict, the family’s medical malpractice attorney discounted this better-late-than-never argument, noting that all the injuries and losses suffered by the child and his family could easily have been prevented through timely administration of antibiotics.

The hefty verdict in this case included $12 million in non-economic damages reflecting the patient’s pain and suffering. Though Florida legislation imposes a cap of $1 million on such non-economic damages in medical malpractice cases, the successful plaintiff in this lawsuit may ultimately recover the full verdict amount, because the Florida Supreme Court is currently in the process of deciding a case, brought by key policy-makers, that seeks to get rid of the legislated malpractice damage limits.

Continue reading "Florida Jury Awards $28.45 Million in Meningitis Misdiagnosis Case" »

A CSX train derailed yesterday killing two 19 year old women and demolishing several automobiles below the track. According to the National Transportation Safety Board, officials have reported that the derailment took place around midnight in Ellicott City Maryland. The CSX coal train was on route from West Virginia to Baltimore when it derailed, leaving horrifying sounds on and off its tracks. Witnesses claimed that the sound of screeching brakes were frightening and indicative of the disaster to follow. http://www.msnbc.msn.com/id/48745179

Although, the exact cause of this CSX train derailment is yet to be determined, typically train wrecks occur as a result of crew error like miscommunication or improperly maintained tracks. These unfortunate circumstances can lead to a train’s wheels literally jumping off their tracks. According to CSX spokesman, Bob Sullivan, the train which was traveling from Grafton, W. Va. to Baltimore consisted of two locomotives and weighed 9,000 tons. “The first 21 cars of the 80-car train derailed". In this instance, the CSX train was actually transporting 190 pounds of coal which spilled into the Palapsco River. This tragic train wreck resulted, not only in a loss of human lives, but affects the sea life in the river, as well. As a result, economic issues lie ahead, for all those involved. Reports have been made that the acidity in the water could become seriously elevated, threatening the aquatic life in the river. http://www.huffingtonpost.com/2012/05/22/india-train-crash_n_1534939.html

This kind of accident is all too familiar to attorneys like Philip M. Gerson at Gerson & Schwartz, PA. Having had experience dealing with CSX in the past for railroad accident cases, Gerson is aware of the difficulty involved in pursuing cases against railroad companies like CSX Transportation. "We need to understand the facts and deal with the people involved on a personal, human level, he said, from his office in Miami, Florida.

The event data recorder will likely provide investigators with important information about how the train was being operated, prior to this accident. A thorough investigation of all inspection records for this particular line of track are required, in order to determine whether or not the track malfunctioned. There is a high likelihood that the cause of this derailment was due to the way the locomotive was being operated and whether or not the tracks were properly maintained. Other accident causes can be due to the amount of cargo being hauled, the train speed, and operator error.

Coincidentally, Gerson, a board certified personal injury attorney, is currently litigating a pending case against the CSX railroad company. In Gerson's case: on February 8, 2007 there was a massive collision between a train and a car , killing one man and severely injuring several others .Those involved in this CSX catastrophe should hire an experienced personal injury attorney, as soon as possible. A full investigation should begin immediately. The National Transportation Board will also conduct their own investigation , but the results of that investigation will take months to be determined. The families of these two college students deserve fair and just representation for their losses.

Located in Miami, Florida, Gerson & Schwartz, PA have been litigating railroad accident cases and a wide range of accident cases involving personal injury or death for over 40 years.
If you or a loved one has been seriously injured due to the negligence of a 3rd party and seeks compensation and restitution for your pain, suffering, and bodily injuries, contact the law firm of Gerson & Schwartz, PA today. Consultations are always free and a friendly and comforting staff is available to hear your case and help you fight for your rights. Contact (305)371-6000 or info@gslawusa.com today.

The Third District Court of Appeal reversed the trial court in Frazier v. Philip Morris USA Inc., and R.J. Reynolds Tobacco Company. The appellate court issued a 25 page opinion reversing and remanding the case for a new trial and stating that the late Phyllis Frazier should have been granted a directed verdict on the question of whether her lawsuit was covered by a four-year statute of limitations from a disbanded smoker class action, the 3rd DCA ruled. Philip M. Gerson and Edward Schwartz, PA with the law of firm of Gerson and Schwartz, PA represented the late Ms. Frazier in a hard fought 6 week trial. The jury deliberated finding that the Plaintiff proved her case on all but one issue.

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The Sanford Police department is under intense scrutiny, after an investigation that is being referred to as one of the most media driven murder cases of this year floods the news. Trayvon Martin, an African American 17 year old boy was shot and killed by a Hispanic man, George Zimmerman, a volunteer neighborhood watchman patrolling his garden apartment complex on February 26, 2012. Trayvon had just finished purchasing a package of skittles candy and an Arizona ice tea at the local 7-11, when he was shot by Zimmerman.

Despite Zimmerman’s claims that, he was attacked by Trayvon and that he was acting in self defense, the community at large and now, the nation at large, believes that shooting this black man with a “keltek 9mm semi automatic handgun” was completely unnecessary. Trayvon did not have a weapon aside from an unopened pocket knife and was heard by witnesses crying and screaming. Sanford Police Chief Brian Lee, has “temporarily stepped down” from his position due to the has been criticism to put it mildly for poor investigation and police efforts to lead to an arrest of the shooter. Important pieces of evidence have been discovered which were not considered during the investigation including Trayvon’s phone records indicating he called his girlfriend right before he was shot, and that Zimmerman’s clothes were bloodied.

The most disturbing aspect of this story, is that the Sanford Police neglected to arrest Zimmerman in connection with the death of Martin, claiming there was no supporting evidence. Since then however, public opinion has been exactly the opposite. Presently, the Sanford Police are being blamed by everyone from Congress to the Al Sharpton for an unacceptable job in this investigation.

Continue reading "What rights do Crime Victims of any Race truly have?" »

Yet another tragedy to add to the 10 fatalities that occurred this past weekend in car and motor vehicle accidents. Five year old Yanelle Lucero was riding her tricycle when she was struck by a van operated by a19 year Erick Garcia. Garcia, allegedly then fled the scene in his friends van. According to the news reports, the van was owned by 19 year Mario Argumedo and operated by 19 year old Erick Garcia. The young girl Lucero, was pronounced dead on arrival. According to Miami injury lawyer Nicholas I. Gerson both the owner and operator of the van are legally responsible under Florida's Dangerous Instrumentality law. These laws state the owner of a motor vehicle is liable for the harm caused so long as the motor vehicle is operated with the vehicle owner's consent.

Continue reading "Another Tragedy on Florida Roads: 5 Year old Girl Dies in After Hit and Run by Van" »

The cruise ship accident this past weekend aboard the Costa Concordia is inexcusable. With modern technology including sonar and GPS which average people have in their cell phones and recreational boaters almost universally use it is extraordinary and gross negligence for a professional sea captain, with thousands of lives in his hands to make errors which would cause a cruise ship with state of the art navigational tools, run aground. What is even more remarkable about this cruise ship accident is that this could happen in familiar waters just hours from one of the major cruise ports in the world. It is criminal that a captain would leave defenseless passengers and crew behind to avoid injury to himself.

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On November 22, 2010 a Miami-Dade County jury decided that Defendant Tenet Healthcare Systems d/b/a North Shore Hospital was negligent and thus legally responsible for a sexual assault by one of their patients on another patient in the hospital. The sexual assault took place in the behavioral unit of North Shore Hospital in 2007. After a six day trial the jury deliberated for nearly 4 hours before unanimously awarding $1,310,000. The case was tried by Philip M. Gerson, Nicholas I. Gerson, and Edward Schwartz of Gerson and Schwartz, P.A.

Continue reading "$ 1,310,000 Jury Verdict for Sexual Assault Victim" »

Just last week we received a $1,200,000 jury verdict for the widow of a lifetime cigarette smoker who died in 1993. The tobacco industry used every available appeal to delay justice for our client. Now, 76 she finally received an award for the loss of her husband on May 22, 2009. The defendant R.J. Reynolds Tobacco Company will appeal again. We will defend the jury verdict as far as it goes and as long as it takes. Ultimately, justice will prevail. At Gerson & Schwartz we continue our 39 year commitment to helping individuals get justice from corporate wrongdoers. Our team of trial lawyers has the experience to handle all types of personal injury cases and wrongful death claims. For more information on how we can help contact us at 305-371-6000.

Gerson and Schwartz, PA recently obtained a $240,0000 settlement for our client who was assaulted in her apartment complex. Our client, had returned home one evening and parked her vehicle in her assigned space in the parking lot area in front of her second floor condominium apartment. As she exited her vehicle she was grabbed by a young black male, pulled out of the vehicle and thrown to the asphalt pavement. The man got in her vehicle and drove off the property.

Continue reading "$240,000 Settlement for Assault at Apartment Complex" »

Gerson and Schwartz PA, along with co-counsel obtained a $2.5 million jury award for our client, who suffered severe – and permanent – injuries when the deck of a house she was visiting collapsed from under her. The house – a foreclosed Atlanta property that had been listed for sale on the U.S. Department of Housing and Urban Development’s Website – had been examined, prior to the visit, by HUD inspectors, who overlooked or ignored dangerous signs of rotten wood.

Continue reading "Falling Deck and Inspectors Failings Result in $2.5 million Verdict" »

Judge David Miller ruled last week that the Engle Trust Fund with over 600 Million dollars will be eligible for smokers to claim beginning on April 25, 2008. In a string of recent decisions in favor for sick smokers in the last few months, former Engle Class Members may finally be able to take a portion of these monies that were set aside years ago.

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Like other responsible plaintiff’s lawyers we urge many clients to structure significant settlement proceeds for their future security. The benefits of tax-free structured future payouts to plaintiffs are well known and carefully explained to clients at the time of settlement. If there is a downside to these plans it is that no one can foresee the future and thus the structure payment program sometimes no longer meets the client’s needs because of unexpected events and changes in the client’s health or lifestyle.

Continue reading "SALE OF STRUCTURED SETTLEMENT ANNUITIES" »

We have had several confidential settlements during our 37 years in practice. At Gerson & Schwartz, P.A. we oppose confidentiality in settlement agreements. It is obvious the public good is better served by open and full disclosure of settlements especially in product liability cases.

Continue reading "A Word About Settlements" »