South Florida Personal Injury Lawyers

On Sept. 17, 2003, plaintiff Alexander Grossman, 11, a student, was playing football as a member of the New City Rams, a Pop Warner Little Scholars Inc. peewee team.Alexander had previously played Pop Warner football during the 2002 season, and, during the 2003 season, he had asked to be given a chance to play quarterback. He acknowledged that he and his teammates had practiced numerous drills and scrimmages. He also admitted that he had tackled others and been tackled during the drills, scrimmages and during at least one game during the 2003 season.During a scrimmage on the night of Sept. 17, 2003, Alexander was given the opportunity to step into the quarterback position for the first time. As the team practiced the same play for the third time, Alexander was tackled by three teammates. He claimed that this hit resulted in a fracture of his right leg.

Alexander’s mother, Dina Grossman, acting individually and as Alexander’s parent and natural guardian, sued Pop Warner Little Scholars. She alleged that the league was negligent for poorly training its coaches.

The plaintiffs claimed that since that inter-squad practice was Alexander’s first time playing quarterback, he should have been provided with a red jersey, or “pinnie,” to wear over his uniform to signify that no one should hit or tackle him. Alexander also claimed that he was not given proper instructions regarding the quarterback position. The plaintiffs claimed that the coaches were liable for Alexander’s injuries and that the league did not properly train them. They contended that the coaches were often one of the players’ parents who volunteered to coach. Plaintiffs’ counsel called four parent coaches/helpers to testify that the red pinnies were used in other scrimmages and were available during this practice, but were not used. Plaintiffs’ counsel also called a sports and recreation expert, but withdrew him after he testified about his credentials and as defense counsel was about to commence cross-examination.

/CENTER Pop Warner admitted that the incident was unfortunate, but claimed that no negligent act had occurred. It contended that although a quarterback sometimes wore a red pinnie during scrimmages, it was not always used because they often practice in gamelike situations. It claimed that part of scrimmaging was learning how to be tackled and avoid being tackled. Pop Warner also contended that Alexander had assumed the known inherent risk of being tackled when he joined the team and that injuries were an unfortunate part of the game. Moreover, the defense claimed that no known established rule or regulation had been violated and that no contradictory expert testimony was received.

The trial was bifurcated, so damages were not before the court.

Alexander sustained a fracture of his right femur, necessitating two surgeries to the leg.

Alexander’s mother sought recovery of Alexander’s medical expenses and damages for his pain and suffering. She also presented a derivative claim.

The jury rendered a defense verdict. It found that Pop Warner did not break any rules and that injuries were inherent to the game.

A Los Angeles judge today began pondering just how much evidence a lawyer needed to present to a jury to prove a 15-year-old boy’s wrongful death case against a tobacco giant on behalf of his father.

Dylan Boeken’s father, Richard Boeken, made headlines in 2001 when he won a $3 billion judgment against Philip Morris USA Inc. — a sum subsequently cut to $55 million.Richard Boeken died in January 2002 at age 57, seven months after the verdict in his case. The disease had spread to his spine and brain.

Boeken’s widow, Judy, and son filed a wrongful death case against Philip Morris on June 2.

Los Angeles Superior Court Judge David L. Minning issued a nine-page ruling in February in which he threw out Judy Boeken’s claims entirely, but gave her son a chance to revise his complaint.

The lawsuit was modified, and the boy’s lawsuit is set for trial Oct. 29.

Dylan Boeken’s lawyer, Michael J. Piuze, maintains most of the issues in the case were decided in the first trial. He said the jury should only have to determine if Boeken died of lung cancer and, if so, what his son’s damages are.

Philip Morris wants a complete trial on all the issues.

Minning did not make a final ruling today and took the case under submission.

The lawsuit was the third filed by members of the Boeken family against Philip Morris. Richard Boeken sued the company for personal injury in March 2000, five months after the two-pack-a-day Marlboro smoker was diagnosed with lung cancer.

Richard Boeken began smoking at age 13, Piuze said. His client later attended Hollywood High School and bought some of the cigarettes he used from a vending machine in the International House of Pancakes across Sunset Boulevard, Piuze said.

The vending machine was in an alcove near the restroom, Piuze said.

At the time, Judy Boeken sued separately for loss of consortium. She later dropped her suit.

After a trial of Richard Boeken’s lawsuit, a jury in June 2001 directed Philip Morris to pay him $3 billion, that year’s largest award according to a survey by Lawyers Weekly USA magazine.

Judge Charles McCoy cut the award to $100 million that August.

Appeals were then filed by both sides. In September 2004, a panel from the 2nd District Court of Appeal affirmed the judgment but further reduced the damages to $50 million.

Both sides filed petitions, asking the panel to rehear the matter. The case was reheard in February 2005, but the justices later affirmed the $50 million award less than two months later.

Piuze said the tobacco company ultimately paid $55 million, plus many millions of dollars more in interest.

Judy Boeken never remarried, said Piuze, who is appealing Minning’s ruling that dismissed her as a plaintiff in the current case.

On July 25, 2004, plaintiff’s decedent Mikhail Platonov, 18, went out for a night of drinking and dancing with high school friends in South Beach for an all-you-can-drink special at Royal Cafe. Platonov became highly intoxicated and his friends took him to the South street parking garage on Miami Beach to put him into his car and take him home. Platonov died as a result of the stabbing. His mother, a Russian immigrant who has lived in the United States for 10 years, sought damages for her pain and suffering.

Platonov got into an argument in front of the garage with some young men almost to the point of violence. Inside of the parking garage a second altercation flared with the same men, and Platonov was attacked and beaten up. He was put into his car, which was stuck repeatedly with a baseball bat and the attackers were able to pull him from the car. Platonov’s friend put him back in the carand drove away while being pursued by the assailants. Although they were able to escape the attackers momentarily, the pair was unable to exit the parking garage because there was a car in front of them stopped at the garage attendant booth, which wasn’t allowed to leave because the driver didn’t have a ticket. Platonov’s friend rammed into this car and tried to escape the garage, but the attendant would not raise the gate to allow them to exit.The assailants caught up with Platonov and began attacking the car with chains and bats and Platonov got out with a raised bottle. He was stabbed and collapsed in the garage.

On behalf of Platonov, his mother, Tatyana Yankovska, sued Royal Café Inc. and 524 Ocean Drive, operating as Teasers Café, under the state’s dram shop act, and Standard Parking Corp. and Armor Security Inc. for negligent security, seeking wrongful death damages.

The plaintiff sued Teasers Café because that is where the underage assailant, who stabbed Platonov, had been drinking.

Plaintiff’s counsel noted that the entire fight from start to finish within the walls of the parking complex lasted about 40 minutes, and police were not called until the very end. None of the guards was aware of the fight despite a closed-circuit security monitoring system and a roving guard on patrol. Once the police were notified, officers responded quickly.

Plaintiff’s counsel contended that Standard Parking was liable because a supervisor violated the company policy that any accident or emergency is to be immediately reported to the police by dialing 911.

Defense counsel for Standard Parking contended that its staff was not obligated to call police because it was not an accident, and they owed no duty to Platonov.

Plaintiff’s counsel countered that there was an accident once Platonov’s vehicle rammed the car in the exit of the parking garage and the parking supervisor failed to report it via his cell phone.

Plaintiff’s counsel contended that Armor Security was liable because one of its guards on duty was not monitoring the closed-circuit security system. He had left the office and was unable to get into the office and call the police.

Defense counsel contended that the guard said she yelled into the booth for a parking cashier to call police.

Plaintiff’s counsel noted that no call was made from the office phone. The only call was made by the guard’s cell phone at the very end of the fight. ]

Defense counsel noted that an autopsy of Platonov’s body showed that his blood-alcohol content was .21, which was well above the legal limit of .08.

Eyewitnesses also reported that Platonov had instigated the incident by yelling at people on the street, and by exiting his car during the final confrontation with a raised bottle in his hand.

Judge Scott Silverman sent the parties into nonbinding arbitration where the arbitrator held for the defense finding them not liable for the incident. Plaintiff’s counsel opted to settle the case outside of court due to Florida State Statute 768.36 (2) that states that a plaintiff cannot recover any damages for loss or injury if the plaintiff is intoxicated at the time of incident, and if the plaintiff was more than 50% liable for the incident.The plaintiff settled for $422,000 with Standard Parking paying $50,000 and Armored Security paying $372,000. The settlements with the two bars were confidential.

The doctor who treated a Hendricks County Council member before he died in 2000 will not have to pay damages, the Indiana Court of Appeals ruled.

A Hendricks County jury had awarded $375,000 to the estate of H. Hunt Palmer following a malpractice lawsuit against Dr. Mark A. Muckway, Avon, in September 2005.

But Judge Jeffrey Boles reduced the amount to zero because Palmer’s family had reached two out-of-court monetary settlements with other defendants in the lawsuit before the trial. Terms of those settlements were not made public.

Under a malpractice provision known as “set-off,” Boles ruled that Muckway gets credit for those agreements and that Palmer’s claims are satisfied by them. The appellate court agreed, even though the jury found that Muckway and Comprehensive Neurological Services, Avon, had erred in treating Palmer.

The appeals court affirmed Boles’ ruling in an 18-page opinion Friday.

“We did not agree that ‘set-off’ applied, but that’s what the court found,’’ said Michael S. Miller, the attorney for Linda A. Palmer, H. Hunt Palmer’s widow.

Roger K. Kanne, Muckway’s attorney, said the jury was not aware of the outside agreements when it determined its award. He said Palmer sought more than $1 million in damages.

Muckway had prescribed Palmer medication to treat multiple sclerosis when he came to see him with double vision, trouble speaking and memory loss in June of 2000. The day after Palmer started taking the drug, he felt sick. The next day he went into a 30-minute seizure, and Muckway treated him in the emergency room.

Two days later, Palmer, 44, died. An autopsy concluded he had a virus of the brain, but the cause of death was undetermined

David Halberstam, a Pulitzer Prize-winning author who chronicled the Washington press corps, the Vietnam War generation and baseball, was killed in a car crash early Monday, a coroner said. He was 73.

Halberstam, of New York, was a passenger in a car that was broadsided by another vehicle in Menlo Park, south of San Francisco, San Mateo County Coroner Robert Foucrault said.

The accident occurred around 10:30 a.m., and the driver of the car carrying Halberstam identified him as the victim, Foucrault said. The driver, a student at the Graduate School of Journalism at the University of California, Berkeley, was taken to Stanford Medical Center. Two others were injured.

A call to Menlo Park police wasn’t immediately returned.

“Looking at the accident and examining him at the scene indicated it’s most likely internal injuries,” Foucrault said.

Halberstam spoke Saturday at a UC Berkeley-sponsored event on the craft of journalism and what it means to turn reporting into a work of history.

He was born April 10, 1934, in New York City to a surgeon father and teacher mother. His father was in the military, and Halberstam moved around the country during his childhood, spending time in Texas, Minnesota and Connecticut.

Halberstam attended Harvard University, where he was managing editor of the Harvard Crimson newspaper.

After graduating in 1955, he launched his career at the Daily Times Leader, a small daily in West Point, Miss. He went on to the Tennessean, in Nashville, where he covered the civil rights struggle, and then the New York Times, which sent him to Vietnam in 1962 to cover the growing crisis there.

In 1964, at age 30, he won the Pulitzer Prize for his reporting from Vietnam.

He later said he initially supported the U.S. action there but became disillusioned. That disillusionment was apparent in Halberstam’s 1972 best-seller, “The Best and the Brightest,” a critical account of U.S. involvement in the region.

He quit daily journalism in 1967 and wrote 21 books covering such topics as Vietnam, Civil Rights, the auto industry and a baseball pennant race. His 2002 best-seller, War in a Time of Peace, was a runner-up for the Pulitzer Prize in nonfiction.

Speaking to a journalism conference last year in Tennessee, he said government criticism of news reporters in Iraq reminded him of the way he was treated while covering the war in Vietnam.

“The crueler the war gets, the crueler the attacks get on anybody who doesn’t salute or play the game,” he said. “And then one day, the people who are doing the attacking look around, and they’ve used up their credibility.”

The parents of a 13-year-old boy who died after losing control of a borrowed all-terrain vehicle (ATV) was awarded $20 million in economic and non-economic damages.

Donald “D.J.” Roberts was in middle school in 2002 when he lost his life in an ATV Accident. According to the wrongful death lawsuit, D.J.’s parents claim that Timothy Mark Taylor—the man who invited the teenager over to ride the vehicle—was responsible for the 1986 Honda ATV and therefore, should be held liable for the damages resulting from the accident.

According to Hendrik Uiterwyk, the plaintiff’s lawyer, D.J. “was almost decapitated” when he crashed the ATV into a barbed wire fence. Another young boy was also on the vehicle and suffered some injuries.

The civil suit accused Taylor of negligence and wrongdoing for failing to supervise the kids, neglecting to secure the ignition, and failing to ensure the vehicle was property maintained and in “safe” condition. The defendant never appeared in court nor were any attorneys there to represent him.

Although the parents got a favorable verdict, “it doesn’t bring them any pleasure because they still lost a 13-year-old son,” Uiterwyk said.

On April 8, 2005, plaintiff Florence Glassman, 84, retired, received a prescription for compression stockings from the University of California, Mount Zion Wound Clinic, where she was being treated for ulcers in her legs. Glassman took the prescription to the San Francisco location for Bischoff’s Medical Supplies, Citrus Heights, in order to get it filled. At Bischoff’s Medical Supplies, the manager applied the compression stockings to Glassman’s legs over her bandages and other garments. The application of the compression stockings eventually led to Glassman developing profound ischemia (a decrease in the blood supply) to both of her legs.Claiming injuries, Glassman sued the Regents of the University of California and Bischoff’s Medical Supplies for negligence and medical malpractice.Plaintiff’s counsel argued that the two parties were jointly and severally liable for the series of events that led to the manager at Bischoff’s Medical Supplies, applying the compression stockings to Glassman’s legs because the manager should not have placed the compression stockings and the Regents of the university of California did not properly discuss the process to her.

Counsel for the Regents of the University of California contended that Glassman failed to properly follow the instructions that the staff at Mount Zion Wound Clinic gave her when they issued the prescription. Counsel asserted that Glassman was specifically told that she was to have the prescription filled and then return to the clinic to have the compression stockings fitted. Counsel further denied that the Regents of the University of California was liable because the manager at Bischoff’s should have known better than to apply the compression stockings over Glassman’s bandages and garments when she got the prescription filled there.

Initially, Bischoff’s Medical Supplies denied that any of its staff members applied the compression stockings to Glassman’s legs but the discovery phase confirmed that the Bischoff’s manager had, in fact, applied the stockings.

Counsel for Bischoff’s Medical Supplies contended that the stockings were applied over the bandages pursuant to the physician’s oral directions as understood by Glassman, and her daughter, and as indicated on the written prescription.

Plaintiff’s counsel argued that the incorrect application of the compression stockings caused Glassman’s legs to develop severe ischemia. Counsel argued that the injury was so astringent that Glassman’s treating vascular surgeon was almost forced to amputate her legs. Instead, Glassman underwent four vascular surgeries on her legs over the course of several weeks, at which point she was transferred to a skilled nursing facility. Plaintiff’s counsel further argued that the ordeal led Glassman to develop dementia and restricted ambulation. Counsel asserted that the sum total of Glassman’s injuries had effectively forced her into residence at an attendant care facility for the remainder of her life. As a result, counsel initially sought $100,000 in past medical specials, $100,000 in past nursing specials, $100,000 in future medical specials, $781,000 in future nursing specials and an unspecified amount for past and future pain and suffering. However, plaintiff’s counsel eventually claimed economic damages between $1,546,660 and $1,972,489 because they elected to incorporate any potential wrongful death damages in their claim. In regards to their request for pain and suffering damages, plaintiff’s counsel asserted that they would request that the court allow for Glassman to receive general damages beyond the full $250,000 MICRA cap restriction because, as they had argued in Lathrop v. Healthcare Partners, this matter involved a defendant that was not a licensed health care provider.

Counsel for both defendants argued that Glassman’s leg ulcers simply became infected and that she did not develop ischemia on her legs. Counsel further asserted that Glassman’s infected ulcers were not related to any alleged negligence by the defendants.

Regarding the claimed damages, counsel for the defendants argued that the $781,000 that plaintiff’s counsel was seeking for future nursing care was highly speculative because it was unlikely that Glassman would live long enough to expend that sum on nursing care. Furthermore, counsel asserted that Glassman was already living in an attendant care facility prior to the incident and her numerous medical problems would have caused her to remain in the facility for the remainder of her life, regardless of any residual damages that may have resulted from the injuries that she was claiming.

By November 2006, all of the parties agreed to settlements whereby the Regents of University of California agreed to pay Glassman $700,000 and Bischoff’s Medical Supplies agreed to pay her $700,000. As a result of the settlement agreements, Glassman’s personal injury claims and any potential resulting wrongful death claims against the two defendants were resolved.

More than 1,000 personal injury lawsuits filed in Texas over the once-popular pain medication Vioxx were put on hold Friday after a judge ruled the drug’s manufacturer had given adequate warnings about the drug.State District Judge Randy Wilson, based in Harris County, granted a motion by Merck & Co. Inc., the drug’s manufacturer, to dismiss part of a lawsuit filed by Ruby Ledbetter.

Merck’s attorneys argued a 2003 Texas law prevents Ledbetter from claiming she wasn’t properly warned about Vioxx.

The law, passed as part of tort reform efforts, says a drug manufacturer is not liable in allegations it failed to provide sufficient warnings about its product if the drug in question came with warnings approved by the Food and Drug Administration.

Friday’s ruling put Ledbetter’s case, which was set to go to trial in May, on hold.

But Travis Sales, one of Merck’s attorneys, and Tommy Fibich, one of Ledbetter’s attorneys, both said Wilson had previously told lawyers in the case that such a decision would put all Texas cases on hold until appeals courts rule on the issue.

Wilson, who is presiding over all Vioxx lawsuits filed in Texas, said in his ruling that virtually all the Texas cases allege that Merck failed to provide an adequate warning.

“The court got it right,” Sales said. “It goes to the heart of what Merck has always said. Merck gave proper information to the FDA and the FDA made proper labeling decisions based on what was there at the time.”

Fibich said although the judge ordered an expedited appeal in the case, he thinks that process could still take up to two years to complete. “Meanwhile all those Texas cases will sit there and nobody is going to get their day in court,” he said.

Vioxx, an arthritis pain reliever, was pulled from the market in September 2004, when a study showed it could double the risk of heart attack or stroke if taken more than 18 months.

Whitehouse Station, N.J.-based Merck said it now faces 27,250 personal injury lawsuits over Vioxx, including 45,700 plaintiff groups.

The company is sticking by its plan of defending each of thousands of claims over Vioxx rather than settling the suits.

Wilson said in his ruling that for Ledbetter to win her case under Texas law, she would have to show that Merck had withheld or misrepresented information required by the FDA when it approved the drug or that such information was related to her injury.

Wilson said the FDA had not made any determination that Merck withheld or misrepresented information concerning Vioxx.

Sales said federal law pre-empts part of the Texas statute from 2003.

“We think the court looked at this very carefully,” Sales said. “Texas courts should not be second guessing the FDA on these issues.”

Ledbetter, a 62-year-old woman from Elmendorf, just southeast of San Antonio, suffered a heart attack in May 2004.

“We think the court has made an erroneous ruling,” Fibich said. “The effect of his ruling is that it immunizes manufacturers that lie and mislead the FDA.”

Fibich said even if appeals courts uphold the judge’s ruling, his client and other plaintiffs have two other claims against Merck they can still try to prove in court: negligence and product design.

“I think they are all three good claims,” he said. “If I had to pick just one, it would be the failure to warn claim. But in all the cases where plaintiffs have prevailed against Merck, juries have found in favor of the product design and negligence claims.”

Fibich said the case will probably go all the way up to the Texas Supreme Court and he is looking at whether he can file any appeals in federal court.

The companies that grew, processed and marketed contaminated spinach that led to a nationwide E. coli outbreak last year have settled lawsuits in the deaths of three women.The attorney for the families of Ruby Trautz, 81, of Bellevue, Neb., Betty Howard, 83, of Richland, Wash., and June Dunning, 86, of Hagerstown, Md., said the women died after eating fresh spinach bagged under the Dole label.

“They just didn’t die immediately after eating it, but they got sick,” said attorney Bill Marler. “But there’s no question that it came from Dole baby spinach, or else there wouldn’t have been a settlement.”

Federal officials announced a massive recall of bagged fresh spinach last September, as nearly 200 people were sickened after eating the leafy greens processed by Natural Selections LLC under a number of labels, including Dole. Inspectors eventually traced the E. coli strain to cattle or wild pig feces found in the San Benito County spinach fields of Mission Organics, which grew the spinach.

Terms of the settlements were not disclosed.

Sarah Brew, an attorney for Dole Food Co., confirmed the settlements were reached in late March, but declined to comment further.

Attorneys for Mission Organics, based in Salinas, and Natural Selection Foods, based in San Juan Bautista, could not be reached for comment.

Marler said all of the parties are “liable under the law from a consumer’s perspective,” and they and their insurance companies all came to an agreement on the settlements.

The three women, who Marler said either tested positive for the E. coli strain or ate from a bag of Dole spinach that tested positive, are the only confirmed deaths from the outbreak.

But the companies still face legal action by dozens who were sickened by the contaminated spinach. Some eventually will have to get kidney transplants, said Marler, who is representing 90 other victims in 26 states.

A jury awarded $9 million to a black man who suffered permanent brain damage after being beaten and dumped in a field by four men in 2003.Billy Ray Johnson, 46, lives in a nursing home because of the injuries he suffered in the beating. In the criminal case, the men accused of assaulting him were fined and sentenced to probation and jail time, but none served more than 60 days behind bars.

In a four-day civil trial in District Court that ended Friday, jurors found James Cory Hicks and Christopher Colt Amox responsible for Johnson’s injuries. Defendants Dallas Chadwick Stone and John Wesley Owens previously reached confidential settlements, attorneys said.

A jury of 11 whites and one black deliberated less than four hours before returning a unanimous verdict, said attorneys for the Southern Poverty Law Center, which brought the lawsuit on behalf of Johnson.

“The jury told all of Texas and, indeed, the entire country, that Billy Ray is a human being who deserves to be treated with dignity - that the life of each of us, rich or poor, black or white, abled or disabled, is truly precious,” said Morris Dees, founder and chief trial attorney for the Montgomery, Ala.-based law center.

Authorities in this poor, pine-locked east Texas hamlet had said that Johnson, well-known around town as a friendly but “slow” character, was lured to an all-white pasture party where underage drinkers fed him alcohol and picked on him.

Authorities said Johnson, who lived with his mother and brother and had no criminal background or history of violence, was taunted for the defendants’ amusement. He was found unconscious on a fire ant mound and had suffered a serious concussion and bleeding in the brain.

Jurors in the criminal cases against Amox and Hicks acquitted them of serious felony charges, instead convicting them of a lesser charge and recommending probation. Stone and Owens pleaded guilty to an “injury to a disabled individual by omission” charge.

District Attorney Randal Lee said before the sentences were imposed that the juries’ decisions were in line with other juries who sympathize with first-time offenders. He pointed out that the so-called beating involved one punch.