South Florida Personal Injury Lawyers

On April 18, 2005, Saticoy Elementary School fourth grade student, 11-year-old Steve Martinez, was playing on the school’s basketball court during recess when he fell and had a seizure. He is now paralyzed.His family sued the Los Angeles Unified School District on a government tort theory, claiming a lack of supervision and training.Plaintiffs alleged the response time, five to 10 minutes after the boy fell to the ground, was inadequate. The Martinez family claimed the school’s supervisor lacked proper CPR training. The supervisor who administered CPR to Martinez testified that she attended a one-day course in the 1960’s.

Plaintiffs further claimed that the school was well aware of Martinez’s condition. Two years earlier, he suffered a seizure at school while playing on a metal utility pole. Resuscitation efforts were successful with the help of a visiting Marine and the school’s nurse. However, the district and the Martinez family settled in court for $361,237.

The district argued that it responded as quickly as possible and efforts to resuscitate Martinez were just unsuccessful.

The district argued that it offered to transfer Martinez to a school with a full-time nurse after his first school seizure, but his mother rejected it claiming it was too far and the school was too crowded.

As a result of the seizure, Martinez will most likely not live longer than 10 more years. Paralyzed, Martinez is currently in a barely conscious state. He will most likely need supervised care for the rest of his life.

Plaintiffs sought undisclosed damages for pain and suffering, loss of earnings potential and future medical care.

The jury returned a plaintiffs’ verdict, awarding the Martinez family $7,600,000.

A new study—published in the Centers for Disease Control and Prevention’s Morbidity and Mortality Weekly Report— reveals that eight cases of an extremely rare and potentially fatal type of lung disease has been found in individuals who worked in California food flavoring factories between 2004 and 2007.

Bronchiolitis Obliterans

According to the study, the deadly lung disease called bronchiolitis obliterans may occur when workers inhale diacetyl—a chemical that poses toxic health risks and has also been linked to the disease in workers in the microwave popcorn industry.

“Bronchiolitis obliterans is a severe lung disease that can be prevented with appropriate measures, such as engineering controls, work practices, medical surveillance, and a respiratory protection program,” said co-author of the study Dr. Rachael Bailey, of the CDC’s National Institute for Occupational Safety and Health.

While diacetyl seems to be the culprit of the lung disease, “there are literally thousands of chemicals that are used in making these flavorings and not all of them have been evaluated, so other chemicals may cause the disease as well,” Bailey added.

No Regulations

Currently, there are no guidelines that regulate food flavoring plants or the chemicals that are commonly used in them. The CDC has requested the manufacturers take steps to create a safer workplace environments, including respiratory and ventilation protection for plant workers.

Experts advise food flavoring plant workers who experience any symptoms of the lung disease—such as shortness of breath or a severe cough—to seek medical attention.

“Occupational lung disease is a hazard in many industries, from mining to farming to automotive work,” said Dr. David Katz, director of the Prevention Research Center at Yale University School of Medicine. “These case reports suggest the need to add the food flavoring industry to the list, and to establish and enforce suitable safeguards so that workers are protected.”

However, these diseases could raise far more serious concerns for the public at large. “If the chemicals used in the flavoring industry are this potentially dangerous to the workers handling them, how good an idea can it be for the rest of us to be eating them,” said Katz. “Personally, I think artificial flavors should neither be inhaled, nor ingested.”

A railroad worker whose hand was crushed in a railyard accident was awarded $4.5 million in damages Friday.Steven Tennant, 48, of Helena, Mont., contended he lost the use of his right hand when a load of wood shifted and crushed it as he tried to push a piece of wood back onto a Dakota, Minnesota & Eastern Railroad car in Rapid City, S.D.

“The railroad lied at trial, and we caught them. The incredible injury and damages prove it,” said attorney Bill Jungbauer.

Brian Donahoe, a lawyer for the Sioux Falls, S.D.-based railroad, said the DM&E plans to appeal.

“We think there were some very serious problems with the facts … and a lot of the claims made by the plaintiffs were made by assumptions, speculation and innuendo,” he said.

Although the accident happened in South Dakota, Jungbauer said federal law allowed Tennant to file the lawsuit “anywhere the railroad lays track.” The Hennepin County jury awarded Tennant money for pain, suffering and lost wages after a nine-day trial.

The case hinged on whether a piece of wood was sticking out on the rail car.

Jungbauer argued the wood was indeed sticking out, but someone cut it off while his client was in the hospital. He said a railroad official saw the wood sticking out and remarked on it during the internal investigation, but changed his story at trial.

Donahoe disputed that the wood was sticking out. He said Tennant was alone when the accident occurred May 21, 2004, and nobody saw what happened.

The federal government’s oversight of nursing homes and long-term care facilities in the U.S. in inadequate, according to a new report by the Government Accountability Office (GAO), an investigative branch of congress.

The report reveals that many U.S. nursing homes that have been repeatedly cited for the negligence or mistreatment of its residents often receive minimal penalties. Consequently, some of these facilities don’t always meet federal nursing home standards and guidelines, posing a continuous threat to the health and safety of patients, said the GAO.

According to the report, the U.S. Health and Human Services Department “fails to hold homes with a long history of harming residents accountable for the poor care provided.”

“Some of these homes repeatedly harmed residents over a six-year period and yet remain in the Medicare and Medicaid program,” the report said.

Because of the high number of nursing home negligence and abuse cases, Congress created strict standards for the facilities in 1987. However, in 1998, another GAO report found that the “homes can repeatedly harm residents without facing sanctions.”

In the last several years, a host of new efforts to improve care in nursing homes have been announced by the government and the nursing industry.

On May 25, 2003 in Bradenton, plaintiff Jesse Hall, 50s, a handyman, was driving his pickup truck when an sedan driven by Shirley Berger made a left, colliding with Hall’s truck head on. The impact of the accident caused Hall’s truck to slam into a concrete culvert. Both parties had green lights and were on opposite sides of the road. Hall sued Berger for negligent operation of a motor vehicle.Defense counsel admitted liability and the trial was held on damages only.

Richard Swope, plaintiff’s expert in accident reconstruction testified about the severity of the car accident. According to Swope the impact was equivalent to Hall’s truck being tossed off of a three-story building. The severity of the accident was compounded when Hall’s truck slammed into a concrete culvert, thus stopping the car dead.

Hall did not initially seek out medical treatment after the accident. Plaintiff’s counsel stated that the reason for this was that Hall suffered damage to his frontal lobe. Friends and family observed Hall behaving strangely and took him to a doctor. Among the strange behaviors Hall exhibited were inappropriate emotions such as laughing during a somber moment and crying during happy times. A positron emission tomograghy scan (PET) was performed to ascertain any brain damage.

Hall sustained numerous injuries to his spine and neck, requiring four surgeries, with two additional surgeries likely needed, stated plaintiff’s counsel. Among the surgeries Hall underwent were a five-level lumbar decompression surgery, and an arthroscopic shoulder surgery to repair a torn labrum on his left shoulder. Hall also underwent a Mumford procedure.

Hall is also under conservative treatment for TMJ. Plaintiff’s counsel stated that Hall incurred about $254,000 in past medical bills and faces between $670,000 and $850,000 in future medical costs.

Today Hall is unable to work, according to his attorneys. Hall had previously worked as a handyman. Plaintiff’s counsel claimed Hall lost $300,000 in past and future wages. Hall lives at his parent’s home today and is undergoing therapy for his brain injuries.

Defense counsel based their case on the three-month gap between the accident and when Hall sought treatment for his injuries. Testimony was offered, which demonstrated that Hall was moving about at the accident scene and stating that he was fine.

Defense counsel offered expert testimony of an orthopedic expert who opined that based on hall’s injuries he should not have been able to walk about freely. Testimony was also offered, which demonstrated that Hall had resumed some of his job duties subsequent to the accident.

Plaintiff’s counsel countered that the brain injury caused Hall to be unable to reason and process the pain of the injury. Plaintiff’s counsel pointed to literature from both the Centers for Disease Control and Prevention and the National Institute of Health, which agreed with his contention. Plaintiff’s counsel pointed out that the defendant could point to no other major trauma Hall was involved in, prior to seeking medical treatment. Hall also was not heavily involved in projects and often contracted out the work, according to plaintiff’s counsel.

The jury awarded Hall a total of $6,515,524 in damages. These damages included past and future lost wages, medical bills and pain and suffering. According to plaintiff attorney Kevin Woods this is one of the largest verdicts in Manatee County history.

A diabetic jail inmate who lost control over his lower body died after being left alone covered in his own feces for a week, and officials failed to get him medical treatment despite knowing of his condition, his attorney said Thursday.Attorney David Kubiliun said Rodolfo Ramos, 41, was left in a solitary cell in Miami-Dade County jail even though a correctional officer there wrote that “I have made several attempts to (contact) medical staff to try and resolve this situation but to no avail.

“Inmate Ramos should not be housed in general population, he needs to be in a medical housing unit,” the lawyer quoted the report as saying. “This situation needs to be addressed immediately in order to prevent a tragic, unforeseen incident.”

Ramos died April 14 at a hospital, and pictures displayed at a news conference showed his body was covered with some type of bites. He was brought to the hospital March 25 from his solitary cell, where he had been kept for several days.

In a statement, the corrections department said it stood by its medical care and was investigating Ramos’ death as it would any other death at a corrections facility.

“While incarcerated, Mr. Ramos was regularly seen by doctors and medical staff, and hospitalized as needed. While Mr. Ramos’s medical history is quite extensive and complex, there is no indication of a lack of medical care or attention in his case,” the statement read.

Ramos’ family members said Thursday they were shocked and upset with his care at the jail, where he was awaiting trial on kidnapping charges.

One niece, Yeisleny Nodarse, said Ramos told her in telephone conversations that he was not receiving medication he took for diabetes. She said she repeatedly talked with nurses at the jail to see if he could get the drugs.

“He used to call me back and say, ‘Keep calling. They haven’t given me the medicine,’” Nodarse said.

Another niece, Yamilka Cortina, who spoke with Ramos over the telephone said he told her he was not well.

“He was very desperate and in pain also,” Cortina said.

Kubiliun called for an investigation into the death and the medical system at county jails.

“Rodolfo Ramos is not the first person whose medical needs have been ignored. We are calling for him to be the last,” Kubiliun said.

Ramos, who was single and had no children, had been working as a massage therapy assistant before being put in jail, family members said.

Another attorney for the family, Lynn Overmann, said they would wait for autopsy results and for the conclusion of a homicide investigation to see if they would file a lawsuit.

On April 1, 2005, plaintiff Remigio Jaimes, 37, was driving his friend’s truck on rural road FM 1942 near Baytown at night. Plaintiff Efigenia Garcia, 19, was in the passenger seat. The plaintiffs alleged that a calf was wandering in the road, and when Jaimes swerved to avoid it, he crashed into a ditch off the right side of the road.Jaimes and Garcia sued Michael Novosad, who owned cattle in the area, claiming negligent care of an animal. Jaimes claimed that he crashed his vehicle because he swerved to avoid a calf that belonged to the defendant. Plaintiff’s counsel argued that the defendant was negligent in allowing his cattle to run at large.Novosad acknowledged that three of his calves escaped from the pen earlier that evening and two were found alive later that day. He also acknowledged that the calf found dead near the scene of the accident belonged to him. He denied that he had permitted his calves to run loose, however.

Defense counsel argued faulty evasive action on the part of the plaintiff driver. Counsel further argued that the plaintiff driver was going too fast and had not turned on his bright lights.

A neighbor testified that she heard a crash and went outside, where she found a female motorist who claimed that she had just hit a cow. The neighbor claimed that the woman came into her home, and she then heard a second loud noise. She returned outside to discover the plaintiffs’ truck off the side of the road a short distance away. The neighbor and the defendant testified that they could tell by looking at the dead calf that it had been hit only once.

Police were summoned to the scene and the plaintiffs were taken to the hospital via ambulance. Jaimes alleged that he sustained a dislocated left shoulder and fractured humerus. Garcia claimed to have sustained cuts which required stitches.

Jaimes underwent tests which showed he was legally intoxicated and had cocaine and benzodiazepine in his system.

Jaimes claimed $21,241.61 in medical costs and $18,000 to $24,000 in lost wages. Garcia claimed $8,177.46 in medical costs.

The defense argued that Jaimes caused the accident due to being intoxicated and impaired while operating a motor vehicle.

The jury returned a defense verdict, finding that the Novosad was not negligent and Jaimes was negligent.

About 300 residents have joined a lawsuit claiming their water company endangered their health by not alerting them soon enough about arsenic in their water.The lawsuit, filed against Mercedes-based Military Highway Water Supply Corp. Monday, claims the utility tried to conceal and then downplay the problem from the mostly low-income rural residents. The suit seeks unspecified damages for health care, bottled water, temporary housing and other costs.

The utility sent residents a letter this month saying that Texas Commission on Environmental Quality tests found arsenic exceeding the state’s maximum allowable levels, but company attorney Barry Jones said it wasn’t enough to cause health problems.

“The levels in the ground water are so small that it doesn’t impose any immediate threat,” he said in response to the accusations in the suit.

But the lawsuit says many residents are sick because of the water.

“Many children have suffered from rashes and stomach ailments that are unexplained except by the poor quality of the water,” the suit said. “People throughout the district have been suffering illnesses they believe are related to the water.”

The Environmental Protection Agency recently required states to test for compliance of a lowered acceptable arsenic level. Texas began testing in 2006 and this year began citing water suppliers that didn’t meet the standard.

The EPA’s rule lowered acceptable levels from 50 parts per billion to 10 parts per billion, or about .0010 milligrams per liter. The letter Military Highway Water Supply sent to residents said the 2006 average for arsenic in their water was .0012 milligrams per liter.

TCEQ water specialist Debra Cerda said the average was skewed slightly by a high reading in December. She said that the other three times the water was sampled in 2006, arsenic levels were at or slightly above the standard.

But she said the levels were only slightly above the compliance level and residents’ illnesses could have other causes.

A fairness hearing for a proposed $63.8 million settlement for a Madison County class action suit against the makers of Paxil and Paxil CR was continued after several closed discussions between the lawyers took place Wednesday.Associate Judge Ralph Mendelsohn postponed the hearing until 9 a.m. today. Three objections to the settlement remain to be heard before Mendelsohn decides on its fairness.

The lawsuit claimed GlaxoSmithKline promoted the drugs — normally used as anti-depressent medications — for prescription to children and adolescents while withholding negative information about the drugs’ safety and effectiveness. Members of the class include all U.S. residents who bought the drugs for their children.

Consumers who have records of their purchases can get full refunds for their expenditures. Consumers who do not have records can get $15.

Prior to the hearing, Mendelsohn denied motions to intervene submitted by attorneys for a consumer group, Prescription Access Litigation Project, and a few Paxil buyers. They wanted to be able to get information about whether the settlement is adequate for Paxil buyers.

Belleville attorney Tom Keefe also tried to intervene on behalf of four out-of-town law firms that were pursuing other class-action lawsuits involving Paxil.

Through the proposed settlement, the plaintiff attorneys, Stephen Tillery of Korein Tillery LLC in Fairview Heights and Stephen Swedlow of Swedlow & Associates in Chicago, would be entitled to 26 percent, or $16.6 million, of the $63.8 million settlement fund. Of the remainder, any money that is not paid out to consumers would be kept by GlaxoSmithKline.

Keefe argued the distribution of funds only to plaintiff attorneys in the Madison County case is unfair, because of the work that the out-of-town law firms have done for their clients.

“What we’re talking about here is an issue of fairness,” Keefe said.

Tillery argued the out-of-town lawyers shouldn’t get a portion of the attorney fees while continuing to represent clients in their own Paxil cases.

Mendelsohn said it would open a “Pandora’s Box” for any attorney who looks into Paxil to also feel entitled to a portion of the attorney fees in the Madison County class action.

Despite years of largely successful public campaigns to reduce the number of deadly childhood accidents, new research suggests those efforts haven’t had the desired effect for black or American Indian/Alaskan Native children.

Statistics from 2003 show that young black children were 63 percent more likely to die from an unintentional injury than white children, and young American Indian and Alaskan Native children were more than two times more likely to die.

“The message is that we’ve come a long way, but there is a still a lot of room for improvement,” said study lead author Joyce C. Pressley, assistant professor of epidemiology, health policy and management at Columbia University’s Mailman School of Public Health.

Pressley and her colleagues did the study to see how national prevention campaigns – including those pushing bicycle helmets, automobile child safety seats and education programs for parents – are reaching different racial and ethnic groups.

“We can show in individual studies, in small, single communities, that these approaches work,” she said of previous research. “The question is whether they’re being disseminated widely to all populations. The only way to really figure that out is to look at national data.”

The researchers examined national statistics from 1981 to 2003 on fatal injuries among children, from birth to 4 years old, in all 50 states and the District of Columbia.

The rate of unintentional fatal injuries declined among all racial and ethnic groups – blacks, whites, American Indians/Alaskan Natives and Asian/Pacific Islanders – during the time period reviewed. Injury rates among Hispanics went down, too, during much of that period, but they weren’t tracked separately until 1990.