South Florida Personal Injury Lawyers

On July 6, 2002, plaintiff’s decedent the Rev. R.A. West, 53, a minister and televangelist, was riding his new 2002 Ultra Classic Harley-Davidson motorcycle near his home in Varney. He veered off road and struck a rock wall of a mountain. The first person at the scene, who was also riding a motorcycle, was about one minute behind West. West was declared dead at the hospital. Cause of death was listed as traumatic arrest.In March 2004, Harley-Davidson announced a recall of the the 2002 Ultra Classic. Some of the bikes quit while riding, which could potentially be hazardous on a crowded roadway.West sued Harley-Davidson and the local dealership on a products liability theory, claiming design defect. Plaintiff’s counsel contended that the bike’s circuit breaker tripped, which caused the accident. Plaintiff’s counsel argued that the bike quit, forcing West to pull off the road so no one would hit him, and he was unable to stop before running into the rock wall of the mountain. Plaintiff’s accident reconstruction expert, Kenneth Obenski, gave testimony that supported this theory.

Defense counsel denied the allegations.

Defense counsel was allowed to perform certain tests on West’s motorcycle, and presented evidence that the circumstances didn’t exist for the circuit breaker to trip.

Defense counsel contended that if the circuit breaker tripped, it would not have caused the bike to run off the road and into a rock wall.

The defense accident reconstruction expert, Warner Riley, testified that West veered off the road and continued to ride for about six seconds with no apparent reaction, riding into a small ditch before striking the rock wall. Defense presented that six seconds was an exceptionally long time in which to have no reaction whatsoever. The intent was to present other possibilities than motorcycle defect as the reason Rev. West went off the road.

Defense counsel prestended medical testimony at trial from a physician who had examined West while he was alive. West suffered from morbid hypertension and he had target organ damage from uncontrolled hypertension. He had cardiomyopathy and some pulmonary hypertension. Defense counsel’s objective was to present the possibility that West had suffered some sort of medical episode that caused him to veer off the road and crash.

There was a partial autopsy. His family allowed only an autopsy of his lungs, because he was a plaintiff in an asbestos case against a railroad that had employed him 30 years prior.

Since there was no autopsy of the heart, defense counsel could not directly present the theory West had a heart attack while riding the bike that led to him going off the road. They presented testimony conditions existed that may have affected him.

West died shortly after crashing his motorcycle.

The jury found that the motorcycle was not defective and Harley-Davidson was not negligent. The case produced one of the first defense verdicts in a product liability jury trial in memory in Mingo County. “This was an unfortunate and tragic accident, but we are pleased that the jury understood the evidence and concluded, as we argued they should, that the motorcycle was not to blame,” said Robert Brand, Chief Product Counsel for Harley-Davidson. Defense verdicts in southern West Virginia are extremely rare. Also of note was the fact that three of the six jurors had attended services at West’s church prior to his death.

Comair sued the Federal Aviation Administration on Thursday, saying the agency was negligent in having only one air traffic controller on duty last year when a plane took off from the wrong runway and crashed. The accident killed 49 people.

The lawsuit

The Comair commuter jet mistakenly turned onto a too-short runway in the dark, struggled to get airborne and went down in a field Aug. 27 at Lexington’s Blue Grass Airport. The co-pilot was the only survivor.

A week earlier, the taxi route leading to the correct, longer runway had been changed during a construction project.

Comair claims the FAA should have staffed the tower with two controllers. The lone controller on duty that morning had turned away to do some administrative tasks before Comair Flight 5191 tried to take off.

The FAA had no immediate comment.

Comair, a subsidiary of Delta Air Lines Inc., operates 850 flights to 108 cities daily. Both airlines filed for bankruptcy protection last year.

Comair claimed in a previous lawsuit that the FAA failed to inspect and approve construction along the taxi route. That lawsuit was dismissed Tuesday.

A federal judge approved a $13.55 million settlement of a lawsuit filed against Boeing Co. and three other companies by two soldiers who were hurt in a 2003 Army helicopter crash in Iraq.The product liability lawsuit claimed that a gear box on an AH-64 Apache Longbow failed during a maintenance flight in Tikrit, causing the chopper to plunge 800 feet (245 meters).

Former Chief Warrant Officer Juan Beltran, 34, Los Angeles, was left a quadriplegic, lost a finger and had severe head injuries. The crash shattered the spine of Chief Warrant Officer Ron Carnes, 34. He can walk but his movement is restricted, although he continues to serve in the Army, said Kevin Boyle, an attorney who represented both men.

The settlement provides more than $11.2 million to Beltran and about $2.3 million to Carnes.

Boeing spokesman Hal Klopper declined to comment.

The lawsuit claimed that the gearbox and gearbox bearings were inadequately lubricated and that a device called an accelerometer that should have warned pilots of a problem was badly designed and had failed early. It named Boeing, which built the Longbow, along with three companies that made the gearbox, bearings and the accelerometer.

Honeywell and Chadwick Helmuth made the accelerometer, MPB Corp. made the bearings and Aircraft Gear Corp. made the gearbox.

The companies did not acknowledge any wrongdoing in the settlement, and the lawsuit will be dismissed at a later date, Boyle said.

The Longbow is the Army’s primary attack helicopter in Iraq and Afghanistan. Boyle said he did not know of any other lawsuits involving Longbow crashes but said that some continue to fly with the accelerometer.

The Food and Drug Administration has learned that many Americans who have ordered specific drugs over the Internet have instead been receiving a pill that contains a powerful anti-psychotic drug, haloperidol.

Among the drugs that Americans have been receiving the substitute haloperidol for are Xanax, Ambien, Ativan, and Lexapro.

Several consumers have had to seek medical care for symptoms including muscle spasms, difficulty in breathing, and muscle stiffness after ingesting the replacement drug.

A Reissued Warning

In light of the new findings, the FDA has reissued its warning about the possible dangers consumers who purchase prescription drugs online face. The FDA encourages these consumers to review the FDA website — http://www.fda.gov/buyonline/ – for information on buying these drugs online before making purchases.

The Investigation

An FDA lab analysis of the drug has revealed that it contains haloperidol, which is the active ingredient in a prescription medication used to treat schizophrenia.

The FDA is not sure where these drugs are coming from, but they are arriving in packages postmarked in Greece.

Although consumers have named several Websites where they have purchased drugs and received haloperidol instead, the FDA has been unable to identify the vendors because of the deceptive practices common among many commercial Internet outlets.

The haloperidol drugs are white or light yellow in color. On one side of the pill, an imprint reads “Janssen.” The other side has a horizontal line imprinted into it. Above the line, an “H” appears, while a “2” appears below it.

If you have ordered a drug online other than haloperidol and received this drug in its stead, do not take the tablets. These people should instead notify their health care provider and alert the FDA.

On Feb. 20, 2001, plaintiff Anthony J. Santos was born to Maryann Santos and was delivered by Dr. Mark Bielawny. By 9:10 a.m., Santos was completely dilated and in full labor. Between 9 a.m. and 12:30 p.m. Bielawny evaluated her a number of times and he felt that birth was imminent. However, due to the length of the second stage of labor, he decided to use a vacuum extractor. The function of the extractor was explained to Santos and Bielawny proceeded with some success during two contractions. Bielawny then tried to use forceps to deliver the child, but was unsuccessful and returned to using the extractor.At 12:40 p.m. Bielawny used the extractor and was able to deliver the child’s head. Bielawny immediately noticed that the child’s progress was halted indicating that shoulder dystocia had occurred. Using the McRoberts position and supra pubic pressure, he delivered Anthony. These methods were unsuccessfully applied for a subsequent amount of time before Bielawny decided to reach into the birth canal and free the left arm. Bielawny was able to free the right arm and Anthony was delivered. However, the left arm was fractured.Anthony J. Santos, his mother Maryann Santos and his father, Richard Santos, sued Bielawny and Physician Associates of Florida for medical malpractice.

Plaintiff’s counsel contended that as a result of the Bielawny’s actions during the his delivery, Anthony Santo’s suffered from a permanent brachial plexus injury to his right arm. Plaintiff’s counsel argued that had Bielawny converted to a caesarean section the shoulder dystocia would have been avoided. They additionally argued that Bielawny applied too much lateral traction, resulting in damage to C5, C6 and C7 nerves.

Plaintiff’s expert witness, Berto Lopez, an OB-GYN, criticized Bielawny for not performing a Caesarean section. He testified that Santos had certain risk factors, such as the child’s larger than normal size for the gestational period, which should have alerted Bielawny to the possibility of a shoulder dystocia. He additionally testified that he believed Bielawny negligently applied the extractor because the child was too high in the birth canal and that Bielawny inappropriately applied traction using the forceps once dystocia was encountered.

Plaintiff’s expert witness, Mary Jane Minkin, also an OB-GYN, said that Bielawny acted appropriately except that he should have converted to a C-section in the latter stages of delivery.

Defense counsel contended that Bielawny complied with professional standards of care, and that most shoulder dystocias are not predictable or preventable. Defense counsel noted that the McRoberts position and supra pubic pressure are professionally accepted maneuvers. Reaching into the birth canal and freeing the left arm was also a medically accepted maneuver.

Defense counsel contended that the risk factors for shoulder dystocia are not necessarily predicative and Santos didn’t have a protracted second stage of labor mandating conversion to a C-section.

Defense counsel noted that all of the experts agreed that the two chief factors for a risk of shoulder dystocia are a diabetic mother and a fetus estimated to weigh more than 5,000 grams. Santos wasn’t diabetic and her son was estimated to weigh between 2,467 and 2,617 grams. And it was later determined that his actual weight was 4,124 grams, still placing him out of the risk area. The mother had high blood pressure, which usually results in smaller babies. Coupled with the fact that Anthony was being born one month premature, this indicated that the child would be smaller.

Defense OB-GYN expert William E. Roberts testified that most dystocias aren’t predictable nor preventable. He added that there was no indication for Bielawny to suspect a shoulder dystocia and once it occurred he acted expeditiously to deliver Anthony. Roberts noted that the maneuvers employed when a dystocia occurs are to save the baby’s life, and not necessarily to avoid injury. He noted that in the event of a dystocia, an obstetrical emergency exists because the umbilical cord is always compressed thus depriving the baby of oxygen, which greatly limits the amount of time left for delivery.

Defense counsel noted that all of the experts agreed that it was appropriate to sweep the opposite arm to deliver the child and that the injury to the arm could occur with appropriate traction being applied to the baby’s head.

Anthony Santos was admitted to Miami Children’s Hospital by Dr. John Grossman on July 17, 2001, for surgery which consisted of exploration and microsurgical neurolysis of the right brachial plexus at C5, C6 and C7. Additionally, C5 and C6 neuromas were performed, as well as sural nerve graft of several nerve roots.

Defense pediatric neurology expert Michael Duchowny testified that Anthony should be able to engage in most activities except those requiring high degrees of athletic skills. He noted that injuries that occur to children are tolerated and accommodated better than any other age group. Since Anthony is the chid of colleged educated parents, Dochowny said it was reasonable to assume that he would obtain a white collar job, which wouldn’t require physical activity that he’d be unable to do.

A jury decided in favor of the defense.

A bus explosion that killed 23 nursing home patients fleeing Hurricane Rita was partly due to flawed government oversight of bus companies, federal regulators concluded Wednesday.A rear wheel of the bus caught fire in the early morning of Sept. 23, 2005, on a freeway near Dallas. Within minutes the vehicle was engulfed in flames and smoke.

While the National Transportation Safety Board ruled that lack of oil in a wheel assembly probably caused the fire, the board said the Federal Motor Carrier Safety Administration was responsible as well because it has done a poor job making sure bus companies are safe.

The safety board also blamed the bus company, Global Limo Inc., because it did not conduct required preventive maintenance, require drivers to inspect the vehicles or keep inspection records.

Madison-based Wyeth’s menopause drug Prempro helped cause an Ohio woman’s breast cancer and the company should pay $3 million in damages, a Philadelphia jury said today in a retrial of her lawsuit.

The state court jury deliberated more than two days before also finding that Wyeth had “failed to provide an adequate warning” to plaintiff Jennie Nelson about the links between Prempro and breast cancer. Nelson won a jury verdict in October that was thrown out.

The award of compensatory damages is the largest to date in a case involving Wyeth’s hormone-replacement drugs. The judge had earlier ruled out punitive damages. The verdict included $2.4 million in damages to Nelson, 67, and $600,000 to her husband, Lawrence Nelson, 79.

Nelson’s lawsuit was one of about 5,000 against Wyeth over its hormone-replacement drugs, including Prempro and Premarin. Nelson was among 6 million women who took the pills to treat menopause symptoms such as hot flashes and mood swings before a 2002 study curbed sales.

The Women’s Health Initiative study, sponsored by the U.S. National Institutes of Health, concluded that women who received a combination of estrogen and progestin in Prempro had a 24 percent higher risk of getting invasive breast cancer.

Nelson began using Prempro in 1995 and was diagnosed with breast cancer in 2001. In October, a Philadelphia jury awarded Nelson and her husband $1.5 million in damages over her Prempro claims. The judge in the case declared a mistrial, erasing the award, after Wyeth accused a juror of misconduct.

A federal jury in Little Rock, Ark., on Feb. 15 rejected an Arkansas woman’s claims that Prempro caused her breast cancer. Wyeth won the first hormone-replacement case to come to trial in that same court in August.

Wyeth officials said in January that sales of its hormone-replacement drugs climbed to more than $1 billion in 2006. Sales had topped $2 billion, making them Wyeth’s best-selling products, before the Women’s Health Initiative study.

Wyeth shares rose 14 cents to $50.85 at 10:39 a.m. in New York Stock Exchange composite trading. They have risen 5.1 percent in the past 12 months.

The case is Nelson v. Wyeth, 040602368, Pennsylvania Court of Common Pleas (Philadelphia).

The Supreme Court on Tuesday overturned an Oregon jury’s award of $79.5 million in punitive damages against Philip Morris on the ground that jurors might have improperly calculated the figure to punish the cigarette maker for the harm it caused to smokers other than the man whose widow brought the case.

Although of limited scope, the 5 to 4 decision was a victory for the cigarette industry and for other corporate defendants whose products or behavior have caused widespread injury and who are thus likely to face skeptical or hostile juries.

The court was tightly focused on a question of procedural fairness: the need, in the majority’s view, to make sure that juries do not punish defendants for harm to others who are not parties to the lawsuit, or who even may have brought their own lawsuits previously and lost. “The due process clause prohibits a state’s inflicting punishment for harm caused strangers to the litigation,” Justice Stephen G. Breyer wrote in the majority opinion.

The court thus steered clear of the issue that most animates the debate over punitive damages: whether a punitive damage award that is much greater than the compensatory damages awarded by the jury can be considered unconstitutionally excessive. In this case, the ratio of punitive to compensatory damages was nearly 100 to one, but the court did not address the issue despite Philip Morris having raised it.

What happens next in this lawsuit may provide an early indication of the practical significance of the court’s ruling, as far as it went. The case now goes back to the Oregon Supreme Court, which has options ranging from reinstating the award to ordering a new trial. The original trial of the suit, brought by Mayola Williams, whose husband, Jesse, died of lung cancer after smoking two packs of Marlboros a day for 45 years, took place in 1999.

Mrs. Williams’s lawyer asked the jury to “think about how many other Jesse Williams in the last 40 years in the state of Oregon there have been.” The trial judge rejected a request by Philip Morris for an instruction warning the jury that “you are not to punish the defendant for the impact of its alleged misconduct on other persons.”

The Supreme Court on Tuesday did not require any particular wording in the form of a jury instruction. But Justice Breyer said that state judicial systems had a constitutional obligation to avoid “an unreasonable and unnecessary risk” that a jury would calculate the punitive damages based on harm to those not before the court.

The issue is complicated because, under the Supreme Court’s precedents, the “reprehensibility” of a defendant’s conduct is a factor that a jury is explicitly directed to consider in setting a punitive damages award. Justice Breyer acknowledged that harm to others can serve as a measure of reprehensibility, and that jurors will necessarily consider it. That was appropriate, he said, as long as courts “provide some form of protection” against jurors seeking “to punish the defendant for having caused injury to others.”

Sheila L. Birnbaum, a punitive damages specialist with Skadden, Arps, Slate, Meagher & Flom in New York, said the court was requiring jurors to “unring the bell” in a way that might prove difficult. “It’s very hard for jurors to disregard something they have heard,” she said.

Ms. Birnbaum, who successfully argued the most recent punitive damages case heard by the court before this one, on behalf of the State Farm insurance company in 2003, added that the decision was nonetheless “a step in the right direction” for corporate defendants because it would require trial judges and appellate courts to be attentive to the guidance that jurors receive.

Justice Breyer’s majority opinion, Philip Morris USA v. Williams, No. 05-1256, was joined by Chief Justice John G. Roberts Jr. and by Justices Anthony M. Kennedy, David H. Souter and Samuel A. Alito Jr. The dissenters were Justices John Paul Stevens, Ruth Bader Ginsburg, Antonin Scalia and Clarence Thomas.

It is typical for the court’s punitive damages rulings to cut across the usual ideological lines. In fact, the only real surprise was the vote by Justice Stevens, who had previously voted with the court’s majority to support limits on punitive damages.

In his dissenting opinion, Justice Stevens said he was “firmly convinced” that those earlier decisions were correct. But he said that “in my view the Oregon Supreme Court faithfully applied the reasoning in those opinions to the egregious facts disclosed by this record.” He said that “no procedural error even arguably justifying reversal occurred at the trial in this case.”

The court’s two new members, Chief Justice Roberts and Justice Alito, succeeded justices who supported limits on punitive damages, as they themselves did on Tuesday. But the narrowness of the court’s opinion and its avoidance of the excessiveness issue raised the question of whether, beneath the surface stability, the court’s polarity may have shifted.

In the State Farm case that Ms. Birnbaum argued four years ago, the court overturned a punitive damage award that was 145 times greater than the compensatory award. “Few awards exceeding a single-digit ratio” would meet the test of due process, Justice Kennedy wrote then for a 6-to-3 majority, a strong statement that made the court’s failure on Tuesday to address the 97 to one ratio in the Philip Morris case all the more curious. (The Oregon jury awarded Mrs. Williams $821,000 in compensatory damages.)

To hold that a damage award is unconstitutionally excessive requires the court to accept the argument that the due process clause contains a substantive component as well as a procedural one. It is on this basis that Justices Scalia and Thomas, who do not accept the modern doctrine of “substantive due process,” have dissented from the leading punitive damages decisions.

It is not implausible that Chief Justice Roberts and Justice Alito might share that view. Whether they do might become apparent if the Oregon Supreme Court reinstates the punitive damages verdict and Philip Morris comes back before the justices with a new appeal based on excessiveness.

The dissenters tweaked the majority for what they characterized as judicial activism and refusal to give state courts proper respect. “I would accord more respectful treatment to the proceedings and disposition of state courts that sought diligently to adhere to our changing, less than crystalline precedent,” Justice Ginsburg said in an opinion that Justices Scalia and Thomas also signed.

In a prepared statement, William S. Ohlemeyer, vice president and associate general counsel of Philip Morris, a unit of Altria, said the decision would give the company “an opportunity to fully and fairly defend itself in this and other cases.”

Market analysts generally viewed the decision as positive for industry. “Despite a more narrow opinion than we had hoped for, we view the ruling as a positive as it effectively limits the size of punitive damages in future cases,” said Christopher R. Growe, an analyst at A. G. Edwards & Sons, in a note to investors.

In recent months, investors have pushed Altria’s stock to record highs, in part because they believe the litigation environment against tobacco companies has significantly improved. On Tuesday, Altria’s stock closed at $85.95, down 25 cents.

On May 20 and Nov. 25, 2003, plaintiff Robert R. Thomas, 54, an Illinois Supreme Court Chief Justice and former Chicago Bears place-kicker, was accused by a newspaper columnist of infusing political agenda into his vote in a case pending before the state Supreme Court.Thomas sued columnist William Page and the Kane County Chronicle, a small circulation newspaper, for defamation and false light. Page’s columns implied that Thomas had traded a judicial vote in exchange for a political favor.Because the columns were not printed with the modifiers “I think,” or “In my opinion,” but rather as allegations of fact, Judge Donald J. O’Brien determined that they were defamatory per se, and put it to a jury to decide if they were false and published with actual malice.

Plaintiff’s counsel argued that Page and the paper published the columns with knowledge of their falsity or with reckless disregard for the truth. Plaintiff’s counsel contended that the columns lacked factual basis. Page lied and “made up stories out of thin air,” according to plaintiff attorney Joseph Power.

Four current court justices, who work beneath Thomas, testified on his behalf, saying that he never displayed political bias during the Supreme Court’s deliberations on the disciplinary proceeding.

The defense denied the allegations.

The defense maintained that the columns relied on information from confidential sources. The managing editor of the Kane County Chronicle, Greg Rivara, testified that Page’s columns were based on information supplied by confidential sources.

“In order to protect the sources we could not allow them to testify,” defense attorney Steven Mandell said. “Journalists have to live up to their promises of confidentiality.”

Defense counsel argued that even if the columns contained false information, plaintiff’s counsel needed to prove that the defendants published them with malice.

The defense counsel contended that because the columns were written as op-ed pieces, as opposed to a news report, they were protected by the First Amendment. Defense counsel noted that the newspaper printed the banner headline “Our Viewpoint” on the same page and the article itself contained the modifiers, “word is,” “it seems,” “the perception is so strong,” and “why if not for political payback.”

Plaintiff’s counsel countered that it would be ludicrous to suggest that the columns were opinions.

Thomas alleged that the columns damaged his reputation and diminished his future earnings potential as either an equity partner at a major Chicago law firm or a federal judge. Plaintiff’s counsel contended that these events will shadow Thomas forever. He also claimed emotional distress, embarrassment and humiliation.

Plaintiff’s counsel asked the jury to award $1 million to $2 million for Thomas’s mental distress, $5 million to $7 million for Thomas’s future economic losses, and $3 million to $7 million for damage to Thomas’s reputation.

The defense disputed the damage claims. It noted that even after the columns were published, Thomas was elevated to the position of Chief Justice and was solicited by the state Republican party to run for U.S. Senate. The defense also noted that not one of Thomas’ witnesses could identify any individual who said that they thought less of the plaintiff as a result of the columns.

The defense’s expert on hiring practices, Joel Henning, testified that, given plaintiff’s experience and lack of a book of business, there would be little probability of Thomas receiving an offer from a major Chicago law firm to become an equity partner.

On behalf of the defense, the former Assistant Attorney General for Policy Development under President Bill Clinton, Eleanor Dean Acheson, testified that the columns would likely have minimal adverse effect on Thomas’ selection to the federal bench. Furthermore, the defense argued that Thomas’ career flourished after the publication of the columns.

Plaintiff’s counsel countered that Thomas’ current position and salary is irrelevant, as the columns’ adverse effects will play out once Thomas’ current post ends. Economist Dr. Charles Linke testified that Thomas’ future finances would probably suffer.

As to the plaintiff’s claims of emotional distress, the defense noted that Thomas never visited a doctor, never sought counseling, never took medication and never claimed to have any performance-related issues at work.

The jury found that Page and the paper acted with malice, and awarded Thomas $7 million. It is the second largest award in the county’s history, according to The New York Times.

County officials approved a nearly $1 million settlement Tuesday with the families of three mentally ill inmates who were denied medication while in the country’s seventh-largest detention complex.Just over half of the award went to James Mims, a Dallas County jail inmate whose psychiatric medications were withheld for two months in 2004, his attorney David Finn said. Mims also nearly died when water was shut off in his cell for two weeks.

“They could just not afford to have this case go before a jury,” Finn said.

Commissioners approved the $950,000 agreement without discussion.

The federal civil rights lawsuit was filed in December 2004 on behalf of inmates Mims, Kennedy Nickerson and Clarence Lee Grant Jr., who died in custody.

Grant, who had paranoid schizophrenia, was found dead in his cell after not receiving medicine for five days in 2003, according to court records. An autopsy showed he died from complications of diabetes, pneumonia and other ailments.

Nickerson, who also has paranoid schizophrenia, was released from jail in 2003 without medication. A few days later he was found on the street dehydrated, suffering from fever and seizures, court records show.

The U.S. Department of Justice told the county in December that the jail violates inmates’ rights by failing to provide adequate medical and mental health care, and warned that a lawsuit could be filed if the problems weren’t fixed.