March 2009 Archives

March 31, 2009

Salmonella Causes FDA to Issue Pistachio Product Recall

The U.S. Food and Drug Administration (FDA) is cautioning consumers in Florida and across the nation to avoid pistachios and any products that contain them.  The latest food product recall stems from Kraft Foods Inc.'s discovery that their Back to Nature Trail Mix was contaminated with Salmonella.  The source of the Salmonella was traced back to Setton Pistachio of Terra Bella, Inc. in California.  The pistachio contamination is said to involve several strains of Salmonella according to the FDA.

Several illnesses related to the pistachio Salmonella contamination have been reported, but it is unclear if any of those cases occurred in Florida.  The FDA investigated whether the strains found in pistachio products were related to the recent outbreak of Salmonella in peanut products which caused one illness in Florida as of March 15, 2009, but have found no link thus far.

The Salmonella bacteria can cause diarrhea, fever, abdominal cramps and other related symptoms.  In people with weakened immune systems, such as the young, elderly, and infirm, Salmonella can at times lead to death.  In nuts, the roasting process is used to kill off the bacteria, but when this process is improperly performed the bacteria can survive in the finished product.

Companies are often held liable for the injuries caused by their products.  Companies have a duty to comply with the various food-safety guidelines applicable to their particular product and to take steps to ensure the safety of their products.  Most recently, these types of claims against food producers have stemmed from the peanut butter Salmonella outbreak which sparked numerous lawsuits against Peanut Corporation of America and other related companies after allegations of unsanitary conditions and code violations.  Thus far, no such allegations have been made against the producers of the pistachio products.

The FDA is advising that consumers avoid eating pistachio products until further information is available.  Because the pistachios were sold in bulk to other companies that packaged and produced other products with the nuts, the extent of exposure has not yet been determined.  Many companies, including Georgia Nut Company, Back to Nature Food Company, and Kroger, are already issuing recalls on some of their pistachio products.
  

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March 26, 2009

West Palm Beach Woman Causes Multiple Car Accidents in Broward County

Michele Fevola of West Palm Beach was involved in four separate auto accidents while traveling south on I-95 in Broward County, Florida on March 23, 2009.  The first accident involved a rear end collision with Antonio Diehs of Miami, the second was a collision with Jessica Craft of Plantation, the third impact caused Marisal Montellano of Davie to lose control of her vehicle and overturn, and the fourth was a collision with Joseph Aufsesser of Connecticut after Fevola lost control of her vehicle in Fort Lauderdale.  All four auto accidents occurred in distinct locations throughout Broward County, and the third accident with Marisal Montellano caused serious bodily injury.  Charges are currently being reviewed pending a toxicology report, but it is suspected that alcohol may have been involved according to reports.

Although this accident is tragic and unfortunate, it does pose interesting legal issues in both the criminal and civil arenas.  Although any comment on the Fevola case would be mere speculation, the circumstances can be used to discuss the theoretical avenues for prosecution and litigation.  In Florida to be criminally guilty of the charge of DUI, a person must be found beyond a reasonable doubt to have been driving or in actual physical control of a vehicle under the influence of a alcoholic beverage, chemical substance, or controlled substance to the extent that his or her normal faculties were impaired or with a blood/breath alcohol level of 0.08.  In a civil case for damages caused by an auto accident, punitive damages can often be sought against a person driving while intoxicated separate and apart from normally recoverable damages if intoxication is shown by clear and convincing evidence.

Also available in instances where a driver fails to remain at the site of a crash is the charge of Leaving the Scene of an Accident (LSA).  Florida statute provides that people involved in an auto accident that results in damage to a vehicle or property or injury to a person must at least remain on the scene and provide certain information as required by law.  Restitution under the criminal statute of LSA becomes problematic, however, because it has been argued that any damage or injury does not stem from the act of leaving the scene but rather from the accident itself.  Therefore, judges cannot order restitution sua sponte.  However, restitution has been effectively pursued under LSA by plea agreements between the State and defense in exchange for a more favorable sentencing recommendation.  This plea agreement can then be blessed by the Court and restitution ordered.
   

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March 17, 2009

Sunrise, Florida Boy Dies in House Fire Accident

A fire at a Broward County home claimed the life of three-year-old Aiden Bizier of Sunrise.  According to reports, firefighters used thermal imaging to search the house and eventually found the child dead in the garage with his dog which also perished.  Sunrise Police and the Florida's State Fire Marshal's Office are investigating the cause of the fire.

This tragedy emphasizes the continued threat fire poses even in this technologically advanced age and the need to focus on fire safety and prevention in South Florida.  According to the National Fire Protection Association (NFPA), in 2007 there were 530,500 structural fires in the United States which caused 3,000 civilian deaths and 15,350 civilian injuries.  Although not all fires, nor the deaths and injuries that result from them, are preventable, there are steps that can be taken to reduce the likelihood of such incidents.  FireSafety.gov suggests that everyone install and maintain smoke alarms, make an escape plan, practice fire safety as a daily routine, and take other actions in the prevention of fire accidents.

When a fire does occur, determining the cause of the fire is often left the state fire marshal.  Determining the party responsible for the damage caused by the fire, however, is often the job of a South Florida personal injury attorney that handles fire accident cases.   This is because determining liability can be a complex issue depending upon the source of the conflagration.  For instance, a fire which starts in electrical wiring may have numerous potentially liable parties including the landlord/owner of the building, the company that installed the wiring, the manufacturer of the wiring, and so forth. 

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March 13, 2009

Finding Insurance Coverage for South Florida Car Accidents

It is imperative for the South Florida personal injury attorney to ascertain all sources of insurance coverage available to the client.  This is especially true when the negligent driver's insurance policy is insufficient to cover the injuries sustained by the client.  Determining what coverage is available can be complex and require diligent research to uncover all available sources of insurance.  Florida law and the insurance policy will provide assistance in finding additional coverage for the car accident victim.

The owner of the negligent vehicle is an appropriate party to look to first for insurance coverage.  If the driver of the negligent vehicle owns his own car, then you also want to look to him for coverage.  If the negligent driver did not own his own vehicle, but lived with a relative that owned a vehicle, then the client may be entitled to the coverage of that relative.  If the negligent driver was in the course and scope of his employment at the time of the accident, then the diligent personal injury attorney should also look to the negligent driver's employer for additional coverage.

Florida personal injury lawyers must also look to their own clients for additional coverage in the form of uninsured motorist insurance policies.  First, the attorney should look to the client's policy and determine if it includes uninsured/underinsured motorist coverage.  Next, if the client did not own the vehicle he was driving at the time of the accident, uninsured motorist coverage may still be obtainable from the policy on the car the client was driving when the accident occurred.  Finally, coverage may be derived from any relative the client lived with at the time of the accident if the client did not own an automobile or the client owned an automobile, but a resident-relative had a stacking uninsured motorist policy.

These coverage determinations often require more research than simply looking at the available insurance policy and the police reports.  It is important to also research what vehicles are owned by the negligent driver (if any), where he resided at the time of the accident, whom he resided with, where he was employed at the time of the accident, and any other information that will assist the South Florida personal injury attorney in securing the highest possible insurance coverage available for her client.

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March 11, 2009

Construction Accidents in Broward and Miami-Dade

Although the downturn in the economy has slowed construction in Broward and Miami-Dade county, the familiar image of numerous cranes dotting the skyline and the commonplace sound of hammering and building are still fresh in the Floridian mind.  With all this new construction also comes the potential for injury and death from construction accidents.  These accidents often include falls, electric shock, tool injuries, equipment failure such as defective cranes, and other accidents that can cause serious injury or death.

According to the United States Department of Labor Bureau of Labor Statistics, in 2007 there were 27,900 construction accidents in private industry in Florida.  Although not limited to construction accidents, 362 people died in work related injuries in Florida in 2007.  The number of construction site accidents has risen to such a level of concern that the Florida legislature was motivated in February to propose a bill that would create a state safety standard for the use of cranes at construction and demolition sites.

Often times construction site accidents are handled through workers' compensation claims.  There are complex instances that require the help of a South Florida personal injury attorney in order to fully investigate and determine if liability will be covered by a workers' compensation claim or some other type of personal injury claim.  With the growing number of job site accidents, it is important for workers and others to exercise caution while on a construction site, but also to fully know their rights if an injury does occur.

Our firm's lead partner, Dan Cytryn, obtained an $11.5 million dollar jury verdict for the mother of a young man who died in a fall from a construction site roof. 

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March 6, 2009

Dangerous Drug Injury Victim Scores Big in Supreme Court

In a 6-3 decision on Wednesday, the Supreme Court of the United States held that federal law and regulation does not pre-empt state personal injury actions against drug manufacturers whose products cause injury because of inadequate labeling.  The ruling in essence makes drug companies responsible for the content of their warning labels.  The decision stems from a Vermont lawsuit in which Diane Levine sued Wyeth Pharmaceuticals after she received an IV-push of the drug company's anti-nausea drug, Phenergan, which ultimately led to the amputation of her right arm.  Levine was awarded $6.7 million (after court-ordered reductions) by a Vermont jury that found Wyeth failed to adequately warn of the dangers of it product.

After the verdict, Wyeth appealed and ultimately argued to the Supreme Court that Levine's lawsuit was pre-empted by federal law because "it would have been impossible for it to comply with its state law duty to modify Phenergan's label without violating federal law" and "that requiring it to comply with a state-law duty to provide a stronger warning about IV-push administration would obstruct the purposes and objectives of federal drug labeling regulation." The Court's opinion rejected both arguments basing part of its decision on the fact that Food and Drug Administration (FDA) regulations permit a manufacturer to make certain changes to its label before receiving agency approval, and without evidence that the FDA would have rejected such changes, the court refused to find the claim was pre-empted because of impossibility of compliance.

The Court also rejected Wyeth's obstruction claim that argued "[o]nce the FDA has approved a drug's label, a state-law verdict may not deem the label inadequate, regardless of whether there is any evidence that the FDA has considered the stronger warning at issue."  The Court found that Wyeth's argument was completely contrary to congressional intent and reasoned that "[i]f Congress thought state-law suits posed an obstacle to its objectives, it surely would have enacted an express pre-emption provision" within the controlling federal law.  The Court also noted that although the FDA has recently taken the position that its regulations pre-empt state law, "[n]ot once prior to Levine's injury did the FDA suggest that state tort law stood as an obstacle to its statutory mission."

In an amazing denunciation of the FDA's 2006 change in philosophy and in support of state tort claims, the Court noted that "[s]tate tort claims uncover unknown drug hazards and provide incentives for drug manufactures to disclose safety risks promptly" and "serve a distinct compensatory fucntion that may motivate injured persons to come forward with information."

The decision helps pave the way for others in Florida and throughout the US to bring suits for injuries sustained as a result of pharmaceutical companies' failures to adequately label and warn of known dangers. 


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March 2, 2009

Car Accident Injury Victims in Florida Feel the Squeeze of a Poor Economy

The poor economy seems to be negatively affecting the settlement offers Florida auto accident victims are receiving from insurance companies. These lower-than-expected offers are not surprising when viewed in light of the recent headlines concerning insurance giant AIG's staggering fourth quarter loss of over $61 billion. As insurance companies' stock prices continue to tank, anecdotal evidence suggests that they are tightening the purse strings for car crash related injuries, especially soft-tissue injuries. Although never loose with compensation offers, the offers now being made are seemingly much lower than in years past for similar injuries.

Florida personal injury attorneys must take steps to help combat these unreasonably low offers for auto accident injuries. The most effective way for Florida personal injury lawyers to help ensure they receive reasonable offers is to thoroughly and honestly evaluate a case and injury prior to filing suit. This evaluation will achieve two crucial goals for the car accident or other personal injury case you are handling: 1) it will allow you recognize what is or is not an appropriate offer from the insurance company, and 2) it will ensure that good cases are brought to trial and poor cases are not. Ultimately, the goal is to try the cases legitimately worth trying because they will result in more verdicts for the plaintiffs. This, in turn, will give the insurance companies and their adjusters a moment's pause before making an unreasonably low offer they know will force you to trial.

There are numerous factors that the South Florida personal injury attorney must be aware of before deciding to take an auto accident case to trial. Some of these factors include the following:

The quality of the client -- While we respect our clients and understand we would be nowhere without them, the honest truth is that some clients make a better presentation than others. This needs to be taken into consideration before deciding to place them under the scrutiny of a jury panel.

The quality of the defendant -- The defendants presentation is also a crucial consideration during your evaluation process. Drunk drivers and corporate defendants most often are more difficult for the jury to relate to.

Property Damage -- It is important to consider how much damage was done to the vehicles. This is because jurors have a difficult time associating serious injury with low-impact collisions.

Nature of the Accident -- When considering whether or not to take a case to trial, keep in mind that "rear-ender"-type accidents are not as persuasive to a jury as a defendant that has run a red-light or stop sign, T-boned another vehicle in the intersection, or caused other less common accidents.

Emergency Care -- Always consider what types of injuries and treatment were reported at the time of the accident. For instance, were the paramedics called to the seen? Was the auto accident victim taken to the emergency room via ambulance? Did the patient require immediate medical attention or lose consciousness at the scene?

Lost Wages -- Lost wages can be a significant part of an auto accident settlement or verdict, but make sure the lost wage claims are documented by the employer and supported by tax return information.

Type of Work -- Although perhaps unjustified at times, jurors are often compelled to compensate a blue collar worker more than a white collar worker. This most likely is because they associate blue collar jobs with more physical activity and white collar jobs as being more sedentary, but regardless, it is an important factor to consider.

Doctors -- Make sure you have knowledgeable doctors that can identify and explain an injury to a jury. If your doctor does not make a good presentation and waivers in his opinion of the client's injury, it can be as devastating if not more so than a client that makes a poor presentation. Also, make sure the client is seen by all the appropriate doctors for their particular condition.

Medical History -- Make sure to evaluate all medications, injections, epidurals, facet blocks, etc. and take into consideration whether the client has refused or discontinued any recommended treatment. THOROUGHLY INVESTIGATE your clients past medical history. It is imperative that you order and review the medical records of your client as far back as you can go. Check the "intake forms" from doctors' offices to see what prior physicians are listed and then order those records as well. You can be sure the insurance company will.

It is important to research and evaluate a case properly prior to making a decision to go to trial. As Florida personal injury attorneys, we have to continue to fight the good fight. If we have done our research, hopefully we can then make the appropriate decision to take a case to trial or settle. With more positive plaintiff jury verdicts, we will see more appropriate offers from insurance companies even in these tough economic times.

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