South Florida Personal Injury Lawyers

On March 1, 2000, plaintiff’s decedent Malcolm Ferguson, 23, was shot and killed by city of New York police officer Louis Rivera after a struggle in Ferguson’s apartment building, which was located at 1045 Boynton Ave., in the Bronx. After an investigation, the Bronx County District Attorney determined that evidence indicated that the shooting was accidental. Thus he declined to bring criminal charges before a grand jury.Ferguson’s mother, Juanita Young, acting individually and on behalf of her son’s estate, sued the city of New York and Rivera. Young alleged that Rivera used excessive force by shooting her son and that the city was vicariously liable for Rivera’s actions.Rivera, a plainclothes officer, was part of a drug-enforcement team that was investigating activity on the 1000 block of Boynton Avenue, an area known for drug sales. Rivera observed a black male exit Ferguson’s premises walking quickly and another black male look out the front door. Rivera claimed that he identified himself as a police officer and pushed open the door. He contended that he entered the premises and observed four individuals, one of whom fled down the hallway. He claimed that he grabbed Ferguson’s left arm and began to chase Ferguson, who was unarmed. He contended that he briefly lost and regained his grip on Ferguson as they tripped up a staircase. He claimed that he told Ferguson to stop resisting as the men began a one-armed struggle on the stairs. During the course of the scuffle, the men fell down. Rivera contended that, as they continued to struggle, he placed his right hand, in which he was holding a gun, on Ferguson’s left shoulder. He claimed that the gun fired while its barrel was against Ferguson’s left temple.

Defense counsel claimed that the shooting was accidental. Rivera claimed that he drew his weapon after losing sight of the individual who was running in front of Ferguson and hearing a jacket open during his struggle with Ferguson. Rivera told investigators that he did not recall pulling the trigger and that he was surprised when the gun fired.

Ferguson died March 1, 2000, at age 23. His estate sought recovery of $7.5 million in wrongful-death damages. Ferguson’s mother presented a derivative claim.

The jury found that Rivera used excessive force and that the defendants were liable for Ferguson’s death. It determined that Ferguson’s damages totaled $10.5 million.

Defense counsel has expressed an intention to move to set aside the verdict.

Jennifer Gardner, 18, of Georgia was prescribed the Ortho Evra patch in March 2005 to help regulate her menstrual periods. As a perfectly healthy and active teenager, she didn’t expect any real problems with the patch. She wore the patch for just five months, and suffered two strokes during that period.

Increased Blood Flow, Other Problems

Soon after Gardner started wearing the patch, her periods got much heavier, with increased blood flow. She started getting headaches and felt light-headed all of the time. Her primary care physician sent her to a cardiologist in New York, whose testing showed normal results. She was not told to remove the patch, and she didn’t do so.

Told to Remove the Patch Immediately

When she returned from the long trip to the cardiologist’s office, she couldn’t walk, and she was then admitted to a hospital for three days. Diagnosed as having had a stroke, Gardner was then seen by numerous specialists, and each one told her to take the Ortho Evra patch off immediately. She took off the patch, but serious damage had been done to her heart; she was told by cardiac specialists that she would have to undergo heart surgery. There was no history of heart disease in her family.

Permanent Damage

Before the surgery could be performed, Gardner had to have five months of treatment from a hematologist for the blood clotting that had developed. She had the heart surgery in June 2006, and then had a more severe stroke in September 2006 in which she lost all feeling in her left side for two months.

After months of rehabilitation, Gardner relearned to walk, talk, and move, although she still has limited use of her arms. She needs further heart surgery to replace a damaged valve. She is expected to need heart medication the rest of her life

A couple hurt in 1997 by an allegedly drunken driver after he left Outback Steakhouse have settled their civil lawsuit against the restaurant out of court.How much the restaurant agreed to pay David and Lisa Markley was unavailable Friday afternoon.

Entries in the court’s case file indicate the case was settled through negotiations as of June 15. The file, however, did not indicate how much money both sides had agreed upon.

Phone calls to Outback Steakhouse’s corporate office and the Markleys’ Muncie attorney, Michael Alexander, went unreturned Friday.

The Markleys were on their motorcycle the night of July 21, 1997, when they were struck by William Whitaker, Albany, and suffered serious injuries.

The couple alleged Whitaker became intoxicated at the grand opening party at Outback’s Muncie restaurant. Witnesses said alcoholic beverages were served free of charge or for as little as a dime each.

The civil case had already been to trial once.

A Delaware Circuit Court 1 jury in June 2003 found in favor of the Markleys and ordered the restaurant to pay them $39 million.

The Indiana Supreme Court in November, however, overturned the verdict and ordered a retrial. The supreme court decision was based on the fact that the Markleys’ attorneys did not notify Outback’s attorneys about the planned testimony of a critical witness before the trial, an omission that constituted misconduct.

That witness, former Outback server Patrice Roysdon, eventually testified Whitaker was visibly drunk at Outback, changing her account of the evening from an earlier deposition.

A second trial had been scheduled for Sept. 4-14.

Whitaker pleaded guilty in 1999 to two counts of failure to stop after an accident resulting in serious injury, a class D felony, and served a three-year sentence that combined home detention and probation.

The parents of three children who were injured when they were thrown out of a ride at the Florida Citrus Festival three years ago have sued the ride operator.

Siblings Natashia Odom, Nyeshia Odom and Kenson Joseph were riding the Cliff Hanger at the Winter Haven carnival in January 2004 when the accident occurred.

Moniquie Joseph and Wilner Joseph, parents of the children, recently sued W.G. Wade Shows Inc. in Polk County Circuit Court seeking damages in excess of $15,000.00.

According to the lawsuit, the children were placed into the Cliff Hanger, laid on their stomachs inside a cagelike structure, and the ride began.

As the Cliff Hanger spun in the air, the cagelike compartment in which the children were lying dislodged from the ride.

Natashia, Nyeshia and Kenson were catapulted from the ride and thrown more than 30 feet. They crashed on top of a bumper-car ride, the lawsuit said.

Attempts to contact the children’s parents were unsuccessful.

At the time of the accident, Moniquie Joseph told the Sentinel the children were “lucky to be alive.”

Joseph told the paper that Natashia, then 12 years old, suffered a dislocated shoulder, broken arm and wrist and back pain. Nyeshia, who was 11, had a broken leg and fractured skull. Kenson, 7 years old at the time, broke teeth and received stitches in his chin.

The lawsuit alleges W.G. Wade Shows, which owned and operated the Cliff Hanger, failed to operate the ride safely and failed to reasonably inspect and maintain the ride.

The suit also says the company failed to train, supervise and instruct its employees to maintain, assemble, disassemble and reassemble the Cliff Hanger.

Attempts to contact W.G. Wade Shows were unsuccessful.

A state inspection concluded the carrier separated from the structure because of a combination of design and operational factors, said Robert H. Jacobs, chief of the Bureau of Fair Rides Inspection.

Dartron Manufacturing, which made the Cliff Hanger, developed a sequential program that included installation of new devices on the ride.

The state verified that Dartron’s corrective actions were implemented by owners and operators of the Cliff Hanger, Jacobs said.

A flight instructor and student died Sunday in a small-plane crash near an airport north of Anchorage, officials said.The single-engine plane, a Cessna 177, departed Sunday from Anchorage, 45 miles south of Wasilla, where it crashed. The plane was not required to file a flight plan, FAA spokesman Ian Gregor said.

The National Weather Service reported calm winds and cloudy skies with a visibility of 10 miles.

The FAA and the National Transportation Safety Board will investigate, Gregor said.

In New York state, a small plane went down in a wooded area near Wallkill, killing two people, FAA spokeswoman Holly Baker said.

The Vans RV4, which Baker described as “an experimental home-built type aircraft,” was destroyed. The cause was not immediately known.

Wallkill is about 60 miles north of New York City.

Tubes of counterfeit toothpaste being sold in New York, New Jersey, Maryland, and Pennsylvania under a false “Colgate” label were recalled recently after routine tests by the FDA found diethylene glycol, an antifreeze ingredient, in the toothpaste.

An FDA spokesman, Doug Arbesfeld, said that testing had revealed the chemical in a toothpaste product with the Colgate label, and the initial FDA announcement noted that the agency was unsure whether the product was from Colgate or a counterfeit.

Made in South Africa

The importer of the recalled toothpaste, MS USA Trading, Inc., is based in North Bergen, New Jersey. They imported the toothpaste from South Africa. The boxes that hold the five-ounce tubes of toothpaste have “Made in South Africa” printed on them, along with the word “Colgate,” although the toothpaste was not made by Colgate-Palmolive, the makers of the classic brand of toothpaste. The counterfeits were being sold in discount stores.

Lots of Misspellings on Box

A statement from Colgate-Palmolive following the recall stated that “Colgate does not import toothpaste into the United States from South Africa…In addition, the counterfeit packages examined so far have several misspellings including: ‘isclinically,’ ‘SOUTH AFRLCA,’ and ‘South African Dental Assoxiation’.”

No Injuries So Far

Colgate-Palmolive and MS USA are working closely with the FDA to identify the company ultimately responsible for the countefeit product. Colgate has said that consumers who think that they might have purchased counterfeit toothpaste can call Colgate’s toll-free number (1-800-468-6502) to discuss their concerns. No injuries have been reported to date.

On March 8, 2003, plaintiff’s decedent Caleb Spence was born with severe brain damage and he died on March 27, 2004. His shoulder got stuck on the pubic bone during the delivery, which otherwise known as shoulder dystocia.The day before Caleb’s birth, the mother, plaintiff Kina Spence, 28, and her husband, plaintiff Christopher Spence, 28, went to see obstetrician Emerson R. Julian Jr. for her last scheduled visit before her March 9 due date. Julian decided to send her to Mercy Medical Center to induce labor, which he died with Pitocin and Cytotec.On behalf of Caleb, his parents sued Julian and Harbor City OB/GYN Associates for medical malpractice seeking wrongful death damages. Mercy Medical Center also was named but it settled pretrial.

Plaintiffs’ counsel contended that Julian failed the standard of care seven times, which directly led to Caleb’s injuries and death.

Plaintiffs’ counsel contended that Julian failed to advise Kina Spence about the danger of gaining excessive weight. Plaintiffs’ experts in obstetrics, Phillip Goldstein and Jonathan Katz, testified that excessive weight can lead to a dangerously large child and increases, among other problems, the risk of shoulder dystocia.

Plaintiffs’ counsel contended that only after 10 minutes of pushing and without any need for its use, Julian used a vacuum extractor to assist. Plaintiffs’ counsel contended that the use of a vacuum can be dangerous and requires informed consent, which Julian never obtained. The experts also testified that using the vacuum after only 10 minutes was extremely dangerous. Counsel argued that performing such a dangerous procedure without consent amounted to assault.

Once the shoulder dystocia occurred, Julian began to inappropriately apply fundal pressure and other forcible means to force out Caleb. Eventually, an episiotomy was performed and Caleb was pulled out.

Goldstein also testified that there is a normal course of labor which allows the baby to align properly. He testified that the use of the vacuum most likely forced Caleb down the birth canal causing him to be improperly aligned which led to the shoulder dystocia.

The defense contended that Julian did not breach the standard of care. Julian claimed that he had never used fundal pressure and that the official records showed that he did not use it.

Plaintiffs’ counsel countered that Julian ordered changes made to the records after the birth. A nurse testified that she had recorded Julian using fundal pressure, but he ordered her to remove it from the record.

Attorneys for the defense contended that Julian only made normal changes to the record to clarify mistakes.

While lodged in the birth canal, Caleb’s umbilical cord became pinched off, stopping the flow of fresh blood for about eight minutes. Caleb required intubation, was placed on a respirator and then moved to neonatal intensive care. He died about one year later from complications. Caleb suffered from numerous neurological injuries including cerebral palsy, blindness, seizures, motor impairment, cognitive failures, kidney failure, hearing and respiratory impairment and others.

The jury viewed home video of Caleb while he was still alive. It included scenes of Caleb struggling to breathe, feeding through a feeding tube and his parents clearing his windpipe with a tube to keep him from choking. Plaintiffs’ experts testified that despite his impairments Caleb could feel pain.

The Spence’s sought $1.5 million for Caleb’s pain and suffering.

The plaintiffs moved to Long Island so that they could care for Caleb while he was alive. Doing this forced Christopher Spence to quit a master’s program. The Spence’s sought $700,000 in economic damages.

The plaintiffs also sought noneconomic damages for mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection and more.

They sought $2.5 million each for pain and suffering.

The jury awarded The Spence’s $8.1 million. After state caps on noneconomic damages, the award is expected to be reduced to about $2.2 million.

A Illinois judge has signed off on a $1 million settlement between a Skokie nursing home and a quadriplegic resident who says he suffered preventable bedsores while at the facility.

Jerzy Wazydrag, 56, of Chicago, alleged in his suit that he developed severe bedsores on his lower back, hips and heels during his stay at the Alden North Shore Rehabilitation & Health Care Center because the facility did not have adequate prevention techniques.

“This is a classic example of a nursing home facility that was understaffed and inadequately trained and supervised,” Wazydrag’s attorney, Michael Bonamarte, said in a June 15 statement.

Alden North Shore’s attorney, Debra B. Walker, disputed that assessment, saying Wazydrag offered no evidence of understaffing or improper training.

However, Walker said the nursing home decided to settle because Wazydrag and his wife, Bo, made very sympathetic plaintiffs.

Judge William D. Maddux of the Cook County Circuit Court approved the deal June 14.

Wazydrag filed his suit against Alden North Shore in 2003 in the Chicago court.

According to the lawsuit, Wazydrag was paralyzed in a work-related accident. He entered the Alden North Shore nursing home in July 2001 for rehabilitation therapy.

He said he developed bedsores, which became infected in December 2001. The bedsores were so bad that he needed a one-year hospital stay to heal, according to the complaint.

Wazydrag blamed the bedsores on the facility’s failure to observe the relevant standard of care for preventing and treating bedsores. He also alleged violations of various federal and state regulations relating to nursing homes.

Primarily, Wazydrag contended that the facility had an insufficient number of adequately trained staff to attend to his needs.

Alden North Shore disputed Wazydrag’s allegations that he developed preventable bedsores while at the facility.

The nursing home said Wazydrag already had bedsores when he entered the facility and that he developed other bedsores during numerous hospitalizations that occurred throughout his stay.

Any bedsores he did develop at the facility were not avoidable, given his paralysis and already compromised skin condition at arrival, Alden North Shore argued.

Wazydrag’s attorneys said the settlement demonstrates that bedsores are preventable, even for quadriplegic patients.

They note that Wazydrag now lives with his wife at home, under the care of nurses, and has not developed any bedsores since returning there.

“[Wazydrag's] dedicated wife … is the real hero in this story,” the plaintiff’s co-counsel, Steven Levin, said in a June 15 statement.

“She has proven without a doubt that patients with complex medical conditions like quadriplegia need not live with painful and life threatening bedsores,” he said.

Walker took issue with Levin’s reading of the case. She said nursing homes are not specialty hospitals and do not provide the kind of individual constant care that Wazydrag now receives at home.

“One need only look at the plight of Christopher Reeve to understand that bedsores are often clinically unavoidable,” Walker said. “Even the best of one-on-one 24-hour care - the kind that movie stars can afford - may not save the life of a quadriplegic.”

A teenage girl’s legs were severed above the ankle while on a thrill ride at a popular amusement park, park officials said.The accident happened Thursday afternoon on the Superman Tower of Power at Six Flags Kentucky Kingdom, said Six Flags spokeswoman Wendy Goldberg.

It is unclear at what point during the ride the girl, 13, was injured, Goldberg said. She was taken to a hospital, but there was no immediate word on her condition.

The ride lifts passengers 177 feet (54 meters) straight up, then drops 154 feet (47 meters), reaching a speed of 54 mph (87 kph), according to the park’s Web site.

The ride has been shut down indefinitely while park officials investigate what caused the accident. The rest of the park remained open.

A new study revealed that babies in homes where one or both parents smoke have up to five-and-a-half times higher urine levels of cotinine, a nicotine toxin, compared to babies living in non-smoking homes. The findings were released today online before publication in the journal Archives of Disease in Childhood. One hundred and four infants (12 weeks old) were studied — 71 babies with one or both parents who smoked, and 33 with nonsmoking parents.

Nicotine By-Product

Cotinine is used by health experts as a measure of exposure to passive smoking. It is a metabolic byproduct formed by the body as it breaks down nicotine from inhaled smoke in an attempt to rid itself of the nicotine. In the present study, researchers at Leicester and Warwick Universities in Great Britain measured the cotinine in the 104 babies’ urine and found that those whose mothers smoked had quadrupled cotinine levels and those whose fathers smoked had doubled cotinine levels compared to babies of nonsmokers.

Babies Become Passive Smokers

Dr. Mike Wailoo of Leicester University described the outcome: “Our findings clearly show that by accumulating cotinine, babies become heavy passive smokers secondary to the active smoking of parents.” He pointed out that nicotine is “merely one of the several thousand constituents of tobacco smoke and may not be the most lethal.”

Parents’ Smoking Also a Risk Factor for SIDS

The authors also reminded the public that parents’ smoking is a risk factor for sudden infant death syndrome (SIDS), the sudden, unexpected death of an apparently healthy baby during his or her sleep.