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A driver in South Florida faces vehicular homicide charges after he allegedly slammed into a family van while speeding and running a red light, resulting in the death of a 14-year-old boy.trafficlight1

Troopers with the Florida Highway Patrol say the crash occurred in Hillsborough County, shortly after a police cruiser had given up chasing the reckless driver at high speeds out of concern for public safety.

Toxicology reports are not yet back, but the driver reportedly has a host of prior traffic violations, including two citations for driving with a suspended license.

Red-light running continues to be a major problem in Florida. The Federal Highway Administration reports failure to stop at a red light is the No. 1 most common cause of all urban crashes.

The latest report from the Florida Highway Patrol, 22 percent of all crashes in 2013 were attributed to running a red-light. In those cases, injuries were reported in 45 percent of all incidents, compared to 30 percent in other types of crashes. In fact, the “T-bone” intersection crashes that most frequently occur as a result of red-light running are the type of impact with the potential to cause some of the most serious injuries.

Fifty percent of the injuries and deaths reported as a result of red light running were suffered by either pedestrians or the occupants of the other vehicle.

An estimated 165,000 people are injured annually in the U.S. as a result of red-light violations.

While sometimes a momentary distraction can result in running a red light, the agency reports those cause red light crashes are three times as likely to have numerous speeding convictions on their record.

Data culled from red light cameras recently revealed there is a red light runner at every urban traffic signal approximately once every 20 minutes. This is despite the fact 93 percent of drivers surveyed by AAA Foundation indicated red-light running was “unacceptable.” Meanwhile, an astonishing one-third admitted they had run a red light at least once in the last month.

The collective cost of these wrecks exceeds $230 billion every year in the U.S.

But the worst part about all of it is, these wrecks, which are 100 percent preventable, continue to occur. Many red-light runner violators often indicate they were “trying to save time” or they “weren’t paying attention.”

That kind of split-second poor judgment is fatal.

The one bit of good news to be gleaned form the FDHSMV report is that red-light running has decreased among the nearly six dozen communities in Florida where red-light safety cameras operate.

From 2013 to 2014, total violations are reportedly down 14 percent.

Among some of the specific findings:

  • Sideswipe crashes in Miami were down 28 percent, and down 54 percent in Miami Gardens.
  • Front-to-rear crashes were down 38 percent in Hillsborough at intersections with the red-light cameras.
  • Sarasota communities reported an 11 percent drop in crashes and citations at intersections with the cameras.
  • Coral Springs reported the injury rate at those intersections is down 20 percent.

Lee County does not yet have these traffic safety devices installed at intersections, though local law enforcement does routinely hold red-light running reduction operations. However, deputies can’t be at every location all the time. Plus, the cameras aren’t full-proof. The fatal crash in Tampa recently occurred in a community that had the cameras.

Those injured by the careless, reckless actions of red-light runners should immediately contact an experienced car accident lawyer.
If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Driver faces vehicular homicide charge after Jeep hits van, killing boy, Jan. 21, 2015, By Dan Sullivan, St. Petersburg Times

More Blog Entries:

McIntosh v. Progressive Design & Engineering et al. – Troubling Traffic Engineering, Jan. 18, 2015, Fort Myers Car Accident Lawyer Blog

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After securing a $1.2 million verdict for negligence against the test-driver of a vehicle, an injured care salesman will have to endure a second trial.OLYMPUS DIGITAL CAMERA

The decision by the California Court of Appeal, First Appellate District, Division Five in Gonsalves v. Li follows allegations of misconduct and trial court errors.

Though disappointing, it is not a bar to recovery for plaintiff. However, trials are expensive and time-consuming. This is true in both California and Florida. In a situation like this, it may be better to negotiate an out-of court settlement, though it would depend heavily on the underlying circumstances and the confidence of plaintiff counsel of securing another win in court.

According to court records, defendant crashed a brand new BMW while taking it for a test drive from the dealership.

In the passenger seat at the time of the wreck was a salesperson for the dealership. While operating the powerful vehicle, defendant reportedly entered the highway and pressed the “M button.” In so doing, he lost control of the car while rounding a curve on the ramp. The vehicle’s rear wheels lost traction, and the car slammed into a guardrail, spinning it in the opposite direction.

At the time, the vehicle was being driven by the son of a man interested in purchasing the car. It had taken some convincing, as usually, the dealership did not allow drivers to test-drive this particular vehicle at all without confirmatory paperwork of their interest/ability to pay. The prospective buyer insisted his son was a safe driver with no prior tickets.

However, while on the highway, plaintiff alleged defendant was reckless, at times reaching up to 120 mph. Later in depositions, he estimated the speed was somewhere between 50 and 80 miles per hour. Defendant exited the highway to return to the dealership at plaintiff’s request, but then attempted to re-enter the highway, at which time the crash occurred.

Both plaintiff and defendant differed on the exact version of events. Defendant indicated plaintiff encouraged him to re-enter the highway to “see the full potential of the car.”

Plaintiff reportedly suffered back and neck pain, for which he had to undergo several surgeries.

At trial, plaintiff asked jurors to award nearly $2.5 million in damages. Defense argued plaintiff’s damages were highly overstated, and were closer to about $40,000.

Jurors ended up awarding $1.2 million.

On appeal, defendant argued trial court made several errors in admitting certain evidence and allowing consideration of certain subjects. Those included plaintiff counsel’s questioning of defendant on the stand and closing arguments, in which he urged jurors to consider defendant’s failure to admit wrongdoing as evidence of wrongdoing in itself.

Additionally, the trial court allowed plaintiff’s counsel to press defendant as to the substantial causation of the crash – something about which he did not reportedly have the expertise to know.

Finally, the appellate court found error in the trial court’s admission of evidence of prior speeding tickets. There were reportedly two prior to the crash, despite what his father had told the salesman. Defense counsel disputed this evidence as irrelevant, but the trial court allowed it. Appellate court later ruled the decision was improper.

Our accident lawyers in Fort Myers understand while none of the errors singularly may have warranted a new trial, appellate court ruled the mistakes collectively prejudiced defendant to such a degree that the final decision was tainted.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Gonsalves v. Li , Jan. 13, 2015, California Court of Appeal, First Appellate District Division Five

More Blog Entries:

Sellers v. Twp. of Abington – DUI Death Lawsuit for High-Speed Pursuit Fails, Jan. 3, 2015, Fort Myers Crash Lawyer Blog

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While the majority of car accidents are the result of one or more drivers acting carelessly or recklessly, one cannot rule out the possibility of product liability. SONY DSC

A determination should be made regarding whether the vehicle’s parts performed as intended and promised. For example, a faulty seat belt or airbag could result in greatly exacerbated injuries. Meanwhile, a defective ignition switch or brake pedal could be the core cause of a crash.

Automobiles and their parts are recalled almost daily. Sometimes, there is evidence manufacturers were aware of the problem long before a recall was issued. Companies need to be held accountable when defects result in injury or death.

The recent case of Heco v. Foster Motors before the Vermont Supreme Court is one example.

According to court records, plaintiff was seriously injured when her 2000 Dodge Neon was rear-ended by another vehicle.

She filed a personal injury lawsuit against the dealer that sold her the vehicle, the manufacturer of the vehicle, the manufacturer of the driver’s seat and the manufacturer of the seat belts.

The original complaint detailed how she suffered spinal cord injuries when the driver’s seat back collapsed backward upon impact. Further, the seat belt system and other components failed to properly restrain her. Her claims asserted strict products liability, breach of warranty and negligence.

She later reached an out-of-court, confidential settlement with the seat belt manufacturer, and as a condition of that settlement, that firm was dismissed from the pending lawsuit.

Plaintiff continued to argue the dealer sold her a vehicle that was not crashworthy, and against the other defendants for defective and inadequate design and failure to protect against foreseeable crash forces in rear-end collisions.

Soon after, plaintiff settled out-of-court with the dealership and the auto manufacturer. Here again, those firms paid an undisclosed settlement amount in exchange for being dismissed from the injury case.

The claim continued against the seat manufacturer.

The seat manufacturer, though, sought summary judgment on the dealer’s previous cross-claim for indemnification based on alleged vicarious liability, which was granted in the seat manufacturer’s favor.

Still, trial proceeded and plaintiff secured a $37 million verdict against the seat belt manufacturer. Additional, the trial court entered a final judgment against the dealership and in favor of the seat maker on the issue of cross-claim indemnity.

Essentially, this would make the dealer liable for payment of that $37 million, despite the previous out-of-court settlement with plaintiff.

Dealership appealed that indemnity ruling, and the appeal reached the state supreme court.

The dealership argued it couldn’t be independently liable because the company that manufactured the car (Chrysler) was bankrupt and not named as a defendant.

However, the state supreme court found this argument unsupported and unavailing. Thus, the court affirmed the final judgment in favor of the seat belt manufacturer’s summary judgement on the issue of cross-indemnity.

This could be bad news for the plaintiff if the court decides the out-of-court settlement bars collection of this payment. However, that issue will need to be decided separately.

Our experienced Fort Myers accident attorneys always consider whether it’s appropriate to pursue action against multiple defendants in crash cases – not just the driver who caused the crash. In many scenarios, that maximizes the compensation received by our clients.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Heco v. Foster Motors , Jan. 9, 2015, Vermont Supreme Court

More Blog Entries:

Comstock v. UPS – Failure to Adhere to Court Rules, Deadlines Ends in Dismissal, Jan. 9, 2015, Fort Myers Car Accident Lawyer Blog

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Two years ago Cape Coral police responded to a reported crash in which a pedestrian was run over by a Jeep driver, who fled the scene. The walker sustained life-threatening injuries and had to be trauma-alerted to Lee Memorial Hospital, where he spent the next month recovering. pedestrian

Now, police have identified and arrested the driver of that Jeep, age 27, and charged her with failure to remain at the scene of a crash involving injury.

This is a serious felony crime, and though neither drugs or alcohol are believed to have played a role, defendant could still face several years in prison. However, this case occurred prior to the passage of the Aaron Cohen Life Protection Act, which aligned penalties with hit-and-run involving serious injury or death with DUI manslaughter (which carries a statutory four-year minimum), which means it’s possible defendant may not serve any time at all.

Still, the fact that she has been identified does give the injured man more options for compensation recovery in civil litigation.

Such scenarios are more common in Florida than one might believe. In fact, according to new figures released by the Florida Highway Safety and Motor Vehicles, hit-and-run crashes are up 32 percent from 2004.

That year, there were little less than 11,800 hit-and-run crashes statewide. By comparison, in 2013,there were nearly 15,600. That means in just a decade, the number of those leaving the scene of a crash in Florida increased by nearly a third.

Not all of those collisions were fatal, but they often presented significant practical difficulties for the injured. When a driver is not identified, injured persons cannot access the at-fault driver’s insurance company – if the at-fault driver even has insurance.

This generally means injured parties must secure recovery from their own insurance company through uninsured/underinsured motorist coverage. Securing this can sometimes be a challenge, so it’s important injured people and their families should immediately contact an experienced injury attorney in Fort Myers.

These cases can be especially complex when the other driver is later identified. While Florida recognizes a strict, three-year time limit on personal injury claims, with the clock beginning to tick on the date injuries were incurred. However, those timelines can sometimes be tolled when the identity of the defendant was unknown until after the crash.

These scenarios are not uncommon, as recent news reports reveal. Authorities with the Florida Highway Patrol are searching for a suspect in a fatal hit-and-run in which a motorcyclist was killed on I-75 in Bonita Springs.

According to investigators, the crash occurred around 6 p.m. on a Saturday. The vehicle reportedly changed lanes behind the motorcyclist and then struck him. The vehicle driver did not stop.

In another case, authorities are searching for the driver of an unknown vehicle that struck and injured a 40-year-old pedestrian on Granada Boulevard. Again, the driver did not stop.

There are many reasons why drivers fail to stop at the scene of a crash. Those include lack of license, lack of insurance, outstanding warrants or intoxication.

Individuals harmed in these instances need to count on a personal injury lawyer who will work diligently to identify all possible defendants and help them maximize chances for full compensation.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Victims’ families speak out; Hit-and-runs up 32 percent since 2004, Dec. 27, 2014, By David Breen, Orlando Sentinel

More Blog Entries:

Mosley v. Lloyd – Florida Pedestrian Accident Nets $22.7M Verdict, Dec. 28, 2014, Cape Coral Accident Attorney Blog

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Defective roadway design, engineering and construction can lead to fatal consequences for those who frequent these thoroughfares. However, proving negligence in these cases can be challenging. trafficlight

This is especially true in light of the 1959 Florida Supreme Court decision in Slavin v. Kay, which holds a contractor isn’t liable for patent defects after acceptance of the project by the owner. That means if a bridge or guardrail is defectively designed, plaintiffs can’t sue the company that built it if the government accepted the work. That same principle has also been recently applied to traffic engineering firms.

Depending on the situation, that can mean the only viable defendant for defective design or construction of roads or traffic signals is the government, which can mean plaintiff must overcome issues of sovereign immunity and other hurdles.

Our experienced Fort Myers injury lawyers are committed to helping our clients thoroughly examining all possible options for compensation. We will not advise you to pursue a claim unlikely to succeed, but neither will we sidestep an opportunity to hold those responsible accountable. This means analyzing not just the role of the at-fault driver, but also the owner of the car, anyone who supplied alcohol to the driver, the manufacturer of the vehicle (if any defects were at play) and yes, even government officials and contractors who designed and built the roads and traffic signals and safety devices.

The recent case of McIntosh v. Progressive Design & Engineering et al., weighed by Florida’s Fourth District Court of Appeal, highlights some of the challenges plaintiffs face.

According to court records, plaintiff brought the action on behalf of his father, decedent, who was killed while exiting a mobile home park in his vehicle. His father turned east at a traffic light and collided with a truck traveling south on the cross-street. Traffic signals at the intersection allowed those exiting the mobile home park to view signals farther out in the intersection intended for other motorists, while the signals closest to the park were intended for those exiting.

The design of the intersection, completed by one of defendants, was submitted to the Florida Department of Transportation, which then submitted it to Broward County officials, local police and other officials for review. During the review process, an FDOT employee noted a special signal might be necessary to ensure motorists “didn’t see the wrong indication” while at the interchange. The company issued a negative response to this, and that answer was accepted by FDOT.

Plaintiff would later point out traffic designers’ drawings did not include a tree located in the median.

The plans were ultimately approved and the signals built, but the official “burn-in” period – wherein contractor maintained the signals in the event of a problem – would not expire for three months. The crashed happened just two weeks after the signal was erected.

Plaintiff’s expert witness, an accident reconstructionist, testified the design of the traffic signal was the primary cause of crash because the line of sight meant motorists focused on the second set of signals, rather than the first.

Plaintiff further argued the Slavin doctrine didn’t apply because the county hadn’t yet “accepted” the project.

A jury determined that while the design company was negligent – the legal cause of plaintiff’s father’s death – the design was accepted and discoverable by FDOT.

Plaintiff appealed, arguing the court erred in finding the Slavin doctrine applicable when the evidence failed to show the county officially accepted the final project.

However, the 4th DCA affirmed, specifically noting the fact that FDOT’s own employee pointed out the defect long before the crash. Additionally, the court found merit in defendant’s argument that its work was accepted by FDOT months before the accident.

Thus, the design company could not be held liable.

However, it should be noted plaintiff did not walk away empty-handed. Several other defendants, including Broward County, the Florida Department of Transportation and the City of Pembroke Pines, reached an out-of-court settlement with plaintiff prior to trial.
If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

McIntosh v. Progressive Design & Engineering et al., Jan. 7, 2014, Florida’s Fourth District Court of Appeal

More Blog Entries:

Drunk Driving Fatalities, Injuries, Spike During New Year’s Celebrations, Dec. 27, 2014, Fort Myers Injury Lawyer Blog

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Federal safety regulators announced auto manufacturing giant Honda will be fined $70 million – the maximum allowable by Congress – for intentionally underreporting deaths, injuries and safety risks involving its vehicles.carinside

The announcement coincides with the company’s agreement to allow broader oversight by officials with the National Highway Traffic Safety Administration, as well as more independent audits to ensure its future safety reports are accurate.

The two $35 million fines relate to the company’s failure to report nearly 1,730 injuries and deaths to the federal regulatory agency between 2003 and 2014. The automaker said it discovered the discrepancy on its own. It called the error the result of a “misinterpretation” of what should have been included and data coding errors.

The failure, made consistently for nearly a decade, amounts to more than half of the death/injury reports the company should have made per the 2003 TREAD Act. This information is coined “Early Warning Reports,” and it’s used by the federal government to identify potential issues that could pose risk to public safety. It’s also used to help the government identify potential defects that require recall.

Depriving the government of this information effectively deprived the public of important safety knowledge, and may have put even more lives at risk.

Also cited in the decision was the company’s practice of fixing car defects outside of warranty. Under the guise of “customer satisfaction campaigns,” the car maker quietly repaired defective vehicles or defective vehicle parts even when it was outside the warranty period. But these problems were never reported to federal oversight agencies.

These reporting shortfalls are totally separate from the defects identified in Honda’s Takata-made airbag inflaters, suspected to be at issue in at least three deaths. Although one Takata airbag-related death and seven injuries were not reported to the NHTSA by Honda, the auto maker says the federal government was informed of those incidents via other channels.

Honda is just one of 10 car manufacturers subjected to recalls related to the faulty airbags, but it is the one with the most affected vehicles. Recently, company executives were called before a Senate committee to testify regarding the problem.

Auto safety advocates doubted Honda executives’ version of events, saying it “strains credulity” that a company with such sophistication and access to such cutting-edge technology could have made so many basic, fundamental errors.

This assertion that such underreporting may have been intentional is bolstered by the fact that despite a Honda employee pointing out a discrepancy in 2011, the company didn’t follow up. The matter was effectively dropped until officials with the NHTSA came knocking to ask whether its reports were in fact accurate.

Our Cape Coral injury lawyers recognize there are two general types of product liability claims that might be made from the noted defects. The first is the assertion vehicles were unreasonably dangerous by design. The second is that vehicles or vehicle parts were improperly manufactured in some way.

In addition to the vehicle manufacturer, other entities that might retain liability include the parts manufacturer (like Takata), the car dealership or auto supply shop, the shipping company and possibly the used car dealer.

Already, a number of personal injury and wrongful death lawsuits have begun to crop up in the wake of the airbag recall. It’s possible Honda’s willful reporting violations may come into play to plaintiffs’ advantage in some of these cases.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Feds fine Honda $70M for unreported safety problems, Jan. 8, 2015, By Chris Woodyard, USA Today

More Blog Entries:

Sellers v. Twp. of Abington – DUI Death Lawsuit for High-Speed Pursuit Fails, Jan. 3, 2015, Cape Coral Car Accident Lawyer Blog

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A defendant in a car accident injury case succeeded in petitioning Florida’s Fourth District Court of Appeal to quash an order to produce post-accident surveillance video prior to plaintiff deposition. iphone2

In Hankerson v. Wiley, the issue at hand was fairness of a plaintiff being allowed to review footage before submitting testimony regarding key facts of the incident. Defendant alleged irreparable harm would be caused if plaintiff were allowed to watch the video before deposition.

In many cases, surveillance footage can be key. If it is of the crash scene, it can show indisputable, unbiased proof of important facts that may be improperly recalled by eyewitnesses or even official investigators.

It’s also sometimes used in personal injury claims to disprove the severity of injuries claimed by plaintiff. Yes, that means defendants may have someone following you, taking footage of you carrying out normal, everyday activities.These images can be used to refute claims of injury alleged to be exaggerated or fabricated entirely. A good personal injury attorney will never advise a client to lie. So, as long as you’re being honest, this should not ever be much of an issue.

There are situations in which video images may be taken out of context, and that’s why it’s important to have an experienced legal advocate on your side, to ensure your rights are protected.

This is especially important in our current technological climate, where surveillance is easily achieved by anyone with a phone. The same kind of evidence can be culled from an individual’s social media platforms and other photo-sharing forums.

But defendants want to expose rather than prevent lies or exaggerations, which is why they so vehemently argue to have the video released after deposition.

Of course, this evidence, as with all other relevant evidence in a civil case, has to be shared with all sides eventually. The question of when, however, is the critical point.

In reaching its decision to delay the production of this evidence to plaintiff, justices relied on a 1980 ruling handed down by the Third District Court of Appeal in Dodson v. Persell. In that case, the court held a defendant in a personal injury case should be allowed to question plaintiff prior to turning over the surveillance video. The reason was because surveillance materials can be used to establish inconsistency in a given claim. Usually, discovery is turned over without any court order. However, in these instances, it’s within the discretion of the trial court to allow deposition before this discovery. The 3rd DCA called this “the appropriate middle road” to make sure all pertinent evidence is presented in a fair and accurate way.

While the decision did note the trial court’s discretion, the 4th DCA in this instance found the trial court abused its discretion.

Our Fort Myers accident lawyers understand the court called for the 3rd DCA’s opinion on this matter to be considered the “bright line rule” in the future, in order to ensure uniformity among district courts across the state.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Hankerson v. Wiley, Jan. 7, 2015, Florida’s Fourth District Court of Appeal

More Blog Entries:

Mosely v. Lloyd – Florida Pedestrian Accident Nets $22.7M Verdict, Dec. 28, 2014, Fort Myers Injury Lawyer Blog

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It may seem a fairly straightforward concept: In order to bring an injury claim, one must prove – among other elements – a compensable injury.

But what does that mean, exactly?hyperdermicneedle

Here’s one example: You are in a car accident caused by another and you suffer a broken bone. That’s a compensable injury. As a result of that injury, you suffered pain, incurred medical bills, maybe had to take time off work and will likely require follow-up treatments or therapies.

On the other hand, if you were given the wrong medication by a pharmacist but suffered no major ill effects and did not have to spend time receiving follow-up care or incurring ongoing tests as a result, it’s likely you will not be able to identify a compensable injury – even if there is no question the pharmacist was negligent.

The basic test is whether there is some measurable cost incurred as a result of someone else’s negligence or malpractice.

Our Fort Myers medical malpractice lawyers recognize these cases are seemingly straightforward, but not all incidents are so clear. This is why it’s important to always discuss your options with an experienced attorney.

One case in which the issue of compensable damage was less than clear-cut was that of Sadler v. PacifiCare of Nev., Inc., before the Nevada Supreme Court. Although medical malpractice laws vary between states, the general principle of the types of injuries deemed compensable is the same.

According to court records, an outbreak of hepatitis C was linked to unsafe injection practices used in certain health care facilities in the southern part of the state. Patients who were deemed at risk by way of having undergone these procedures were advised to submit for updated testing of numerous blood-borne diseases, which included hepatitis C as well as hepatitis B and HIV.

All of the patients who came forward for retesting tested negative for these conditions. Thus, they did not suffer a physical injury as a result of the facilities’ clear negligence.

It was on this grounds – lack of compensable injury – the facilities argued lawsuits against them for negligence should be dismissed.

The trial court agreed, dismissing a class action claim asserting negligence and negligence per se for failure to perform the duty to establish a quality assurance program to oversee medical providers within the network. There was no “actual injury,” the court ruled.

However, the appellate court reversed. The reason? Patients did incur costs/pain/mental anguish by needing to submit to additional testing and undergo ongoing medical monitoring as a direct result of the unsafe injections provided by defendant’s subsidiaries.

In its decision, the court noted the West Virginia Supreme Court’s 1999 ruling in Bower v. Westinghouse Elec. Corp., which found merit in claims for medical monitoring. In that ruling, the court ruled the purpose of such claims is to make sure defendant pays for costs of all long-term diagnostic testing, and also to aid in the early detection of any latent diseases that may later be identified as resulting from defendant’s negligence.

Defendants did not object to paying for medical monitoring, but argued plaintiffs had no claim for negligence without presenting evidence of an actual physical injury. In this case, that would mean providing proof they had actually contracted a blood-borne illness.

The court ultimately ruled that “injury” in these cases can mean legal injury, as well as physical injury.

If you have been a victim of medical malpractice, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Sadler v. PacifiCare of Nev., Inc., Dec. 31, 2014, Nevada Supreme Court

More Blog Entries:

Wilkins v. Conn. Childbirth & Women’s Ctr. – Birth Injury Claim Revived, Dec. 10, 2014, Fort Myers Medical Malpractice Lawyer Blog

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In any personal injury case, facts may emerge proving less-than-favorable to a plaintiff. All participants must nonetheless adhere to court orders and deadlines in production of certain information, or else risk sanctions up to and including dismissal of a case. gaveljan

This is what happened in Comstock v. UPS, and it’s a good example of why cases need to be carefully vetted by plaintiff lawyers before ever reaching the discovery (evidence production) phase.

On the surface, plaintiff – later substituted by his daughter – appeared to have a strong case for compensation of damages suffered after plaintiff was rear-ended by a UPS truck. However, defendants contended plaintiff’s health may have at least been a contributing factor in the crash and sought documents from plaintiff to support this theory.

Plaintiff produced just one name of a physician he saw prior to the crash. He died a year later. His daughter, named estate administrator, was substituted as plaintiff and, when prompted did release some but not all medical record information requested by defense. The court ordered plaintiff to produce all requested items by the end of September 2012. She did not do so until December 2012, at which time she turned over some 3,000 documents, many of which reflected very poorly on decedent’s case.

As our truck accident lawyers understand it, the evidence showed plaintiff’s father suffered from vision problems, as well as dizziness, paranoia and hallucinations while driving. In fact, he’d been instructed not to drive at night, and was hospitalized just hours before the crash. Plaintiff had even contacted police that night, concerned because she learned her father set off on an overnight trip out-of-state.

Of course, none of these issues were favorable to plaintiff’s case, but they weren’t necessarily going to ruin it entirely. Even with these issues, it does not excuse the commercial truck driver’s negligence in failing to maintain a safe distance/speed to avoid a rear-end collision.

In a state like Florida, which recognizes comparable fault, such revelation may reduce the overall damage award, but would not bar the claim entirely.

Unfortunately, what resulted in the claim’s dismissal was the fact plaintiff failed to meet the deadline to turn over documents. Trial court, in a decision later affirmed by the Eighth District Court of Appeal, ruled this amounted to misconducted.

Plaintiff asserted she was not aware of her father’s poor health prior to the accident, but the court found this “strained credulity,” particularly because she’d called police the night of the crash to check on her father.

Further, plaintiff hired an accident reconstructionist as an expert witness to conduct various tests on the scene. However, those test results were not all turned over to UPS, presumably because they weren’t favorable to her position.

Through these actions, the court found plaintiff intentionally violated federal rules of civil procedure. It granted defendant’s motion for dismissal.

Upon appeal, justices were not swayed by plaintiff’s argument that while defendant was prejudiced by her actions, the prejudice was curable. At no point did plaintiff contest she had engaged in misconduct or acted to hamper defendant’s ability to conduct depositions or obtain certain key information.

Given all this, justices found trial court was within its discretion to dismiss the personal injury lawsuit with prejudice – meaning it may not be refiled.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Comstock v. UPS, Dec. 30, 2014, U.S. Court of Appeals for the Eighth Circuit

More Blog Entries:

Report: Minivan Crash Test Reveals Safety Deficiencies, Dec. 19, 2014, Tampa Truck Accident Lawyer Blog

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In any injury tort action, plaintiffs must prove defendants owed a duty of care to injured/deceased parties, breached that duty and proximately caused damage as a result.policelight

In DUI injury cases, Florida plaintiffs have a myriad of options, depending on the circumstances. In situations where the drunk driver is identified and proven intoxicated, that person and his or her insurance company may be liable. The owner of the vehicle and/or his insurer may also be vicariously liable. If an establishment illegally served alcohol to someone who then causes a crash, that establishment may be held liable under state Dram Shop laws. And in some instances, other motorists who may have contributed to the crash could be held liable as well.

This last one was what plaintiffs alleged in Sellers v. Twp. of Abington, where parents of deceased asserted before the Pennsylvania Supreme Court that police negligently and recklessly engaged in a high-speed pursuit of a suspected (and later proven) drunk driver, who then crashed, killing a passenger.

Our Fort Myers DUI injury lawyers know anytime a lawsuit is brought against a government entity, there will be challenges due to sovereign immunity. There are, of course, exceptions to this rule, but plaintiffs will still have to prove the government owed a duty of care to plaintiff/decedent.

In this case, trial court ruled local police did not owe a duty of care to the passenger of a fleeing vehicle when the existence or relationship to a fleeing driver is unknown to police. The state supreme court affirmed this ruling upon review.

Virtually all police departments have restrictive policies for high-speed police pursuits. A study by researchers at Florida State University noted most departments allowed for speeding in response to emergency situations (sometimes including pursuit of certain suspected criminals), though many agencies defined emergencies differently.

In pursuits, officers generally are made to consider:

  • The seriousness of the law violation committed by suspect
  • Department guidelines on pursuit driving
  • Existing traffic conditions
  • Road type and condition
  • Weather condition

Though many departments grant officers a broad range of discretion on these issues, an officer who aggressively pursues a suspect in spite of grave risk to other innocents may be held liable for proximate injuries.

In this case, however, decedent was not a bystander but rather a passenger in suspect vehicle. The suspect driver is still liable of course, but the duty owed by police to that passenger is different than the duty owed by police to others not in that vehicle – at least according to the Pennsylvania Supreme Court.

According to court records, three men spent the day drinking together and some time in the early morning hours of Christmas Eve asked a third to drive them to his residence so they could sleep there. No one fastened their seat belts. Driver later admitted he was drunk, and in fact had driven his friends home drunk on several occasions prior.

A police officer testified driver was operating erratically, and initiated a stop. Driver said he didn’t realize he was being pulled over, but did see the officer and “floored it” to get away in order to avoid a DUI arrest. Initially, the officer lost track, but then driver again noticed officer in the rear view and again “floored it.”

Decedent and the other passenger shouted at driver to slow down, knowing there was an upcoming dip in the road. Driver did not listen, struck the dip at a high rate of speed. The car went airborne, crashed into trees and a parked truck. Decedent was ejected and suffered catastrophic brain injury, and died.

Decedent’s parents filed a lawsuit against the township for the alleged negligent actions of officers. State law there says governmental immunity is applicable when official negligence occurs while plaintiff is in flight or fleeing apprehension or arrest. It wouldn’t apply if plaintiff was an innocent bystander, but it wasn’t clear if it would extend to “unknown passengers” in a fleeing vehicle.

The court ruled officers do not owe a duty of care to unknown passengers in a fleeing vehicle, and thus, the claim was dismissed.

Assuming the statute of limitations has not run out, plaintiffs may still have other options for pursuing litigation against other defendants (namely, the driver), but attorneys will have to weigh the wisdom of that action based on the facts.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Sellers v. Twp. of Abington, Dec. 29, 2014, Pennsylvania Supreme Court

More Blog Entries:

Drunk Driving Fatalities, Injuries, Spike During New Year’s Celebrations, Dec. 27, 2014, Sarasota DUI Injury Lawyer Blog

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