South Florida Personal Injury Lawyers

A Park County District Court jury spent less than an hour Thursday before assessing $3.7 million in damages against Evenflo Co., boosting the total damage award to nearly $10.4 million in a lawsuit over the death of a 4-month-old boy in one of the company’s child car seats.

The damages were awarded to Chad and Jessi Malcolm, whose son, Tyler, was killed in 2000 when the boy, still strapped in his seat, was ejected from their vehicle during a rollover crash on a highway south of here.

Attorneys for the Malcolms had argued that the company knew the car seat had problems, but marketed it anyway. “They put profits over the safety of children,” said Evan Douthit, one of the lawyers.

One of the jurors agreed. “They [Evenflo] knew this seat was a problem and they put it on the market,” said the juror, who asked not to be identified. “I don’t know how they can reconcile their tests with that. The seat was poorly designed — it didn’t have padding and the belt hook broke.”

“We need large companies — small companies, anybody who manufactures something to be on their toes to make sure their product is safe,” the juror said.

Outside the courtroom, Jessi Malcolm, who has since become a federally trained car seat technician and instructs others on proper installation of the seats, said, “This was never about the money. This was about getting justice for Tyler and not letting it happen to another family.”

“This sends a huge message to Evenflo,” added Chad Malcolm.

Rob Matteucci, Evenflo Inc. chief executive, said in a statement that while the company is “sympathetic to all the family has been through,” it disagreed with the jury’s verdict and plans to appeal to the Montana Supreme Court.

“We are confident Evenflo will be exonerated of any liability on further consideration of the facts of the case and the proper application of the law,” Matteucci said.

On Wednesday, the jury decided the seat was defectively designed and awarded the Malcolms nearly $6.7 million in damages for the loss of their son. Thursday’s award was for punitive damages.

On Thursday, Randy Bishop, another lawyer for the Malcolms, told the jury that the 3.7 million On My Way car seats that were sold “are dangerous and they should not be used.”

During the weeklong trial, an engineer testified on behalf of the Malcolms that the car seat was defectively designed. He said the belt hooks meant to help secure the child restraint to the car’s rear seat were susceptible to breaking.

On Sept. 2, 2004, plaintiff Puaolele Ieremia, a 34-year-old customer service representative, was a passenger in the SUV that her husband Roy was driving northbound on Interstate 5, by Turner Road in Lodi. After Mr. Ieremia slowed for traffic, he swerved his car to the right in an attempt to avoid being struck from behind by the Hilmar Unified School District pickup that Dick Wyatt Piersma was driving at a rate of over 50 mph. The pickup struck the Ieremia’s SUV anyway and Mrs. Ieremia ended up being ejected from the passenger seat.Claiming injuries, Mrs. Ieremia sued Wyatt and the school district for negligent operation of a motor vehicle.Counsel for the defense conceded that the school district was liable for the collision but it argued that Mrs. Ieremia would not have sustained the amount of injuries that she had if she had been wearing her seatbelt.

Plaintiff’s counsel contended that Mrs. Ieremia was actually wearing her seatbelt but she was ejected anyway because she had reclined the seat all the way back so that she could sleep.

Mrs. Ieremia was airlifted to the ER where physicians determined that she sustained a number of injuries including a ruptured spleen, fractured clavicle, shoulder impingement, a fractured shoulder, multiple lacerations on her right arm with hypertrophic formulations, lacerations on her face and abdomen, and a severe right leg skin avulsion with nerve damage where the flesh was torn off. A skin graft was performed on Mrs. Ieremia’s leg. Mrs. Ieremia’s injuries caused permanent scarring and loss of sensation to her right foot. Her avulsion injury also got infected

Plaintiff’s counsel claimed that Mrs. Ieremia tried to return to work after about one year but she still felt significant pain and she took a leave of absence. She still wasn’t working at the time of the trial and she claimed that she still felt pain when she walked. Lastly, counsel argued that the injuries and pain caused Mrs. Ieremia to suffer from depression.

Plaintiff’s counsel sought to recover $30,428 for past lost earnings, $630,694 for future lost wages, $21,207 for past home care costs, $3,064,826 for future home care services, and $23,200,000 past and future pain and suffering damages.

Counsel for the defense argued that Mrs. Ieremia actually returned to work four months after the collision but she had abruptly quit a year-and-a-half later. Counsel contended that Mrs. Ieremia failed to mitigate her damage because she didn’t seek treatment and therapy for her injuries, depression and pain.

The jury awarded Mrs. Ieremia $2,028,145 in damages.

The UCI Medical Center agreed to pay $7.5 million to settle 35 lawsuits brought by former liver transplant candidates at the hospital or their relatives, the lawyer for most of the plaintiffs said Wednesday.

The plaintiffs sued the University of California, Irvine, hospital after a 2005 federal report found that 33 transplant candidates died between 2004 and 2005 even as the hospital turned away organs that might have saved some of them.

The report and ensuing scandal prompted UCI to close its liver transplant program in 2005 and led to the resignations of top hospital officials. The report also led to a federal investigation and calls for a state inquiry.

Individual payouts to the plaintiffs would range from $50,000 to more than $1 million, said Larry Eisenberg, the attorney for 33 of them. He said a notice of the settlement was submitted Wednesday in Orange County Superior Court.

Eisenberg said about 15 cases remain to be settled. He said of the 35 plaintiffs who settled Wednesday, only 10 are still alive.

The university issued a statement saying it committed to resolving the transplant litigation “in a reasonable and responsible manner” through mediation. It did not discuss the announced settlement.

Federal health care regulators found that participants in UCI’s program had a one-year survival rate of 68 percent to 70 percent between July 2001 and June 2004 - well below the federal requirement of 77 percent.

In 2004, the United Network for Organ Sharing, which oversees the national transplant system, allowed UCI to continue its liver transplant program after the hospital hired a new transplant surgeon.

But 33 more candidates died awaiting liver transplants between 2004 and 2005, when the hospital turned down organs that might have saved some of them. UCI received 122 liver offers between August 2004 and July 2005 but transplanted just 12, according to federal records.

A review of 50,000 pages of subpoenaed hospital records indicated that in some cases donor organs were available but patients didn’t receive them because there was no surgeon available, Eisenberg said. In other cases, he said, the hospital couldn’t perform the surgery and instead listed the patient was too sick for a transplant.

An independent review by a committee appointed by the university’s chancellor blamed the program’s failures on high turnover among medical staff, a lack of interest and oversight by campus leaders, and the fact that the two transplant surgeons lived in San Diego, some 90 miles away. The program also failed to effectively recruit new surgeons, the panel found.

The Ford Motor Co. should pay $6 million to a man who was paralyzed when the Ford Aerostar van he was in rolled over, a jury ruled Wednesday.Julian Felipe, of Hialeah, was 17-years-old when he was a passenger in the van his mother was driving to Sarasota for a family vacation in 2002. A tire on the vehicle blew out and the van rolled over and the and the roof caved in. Felipe’s neck was broken.

“In the blink of an eye, he went from going on a vacation to having a serious injury,” his attorney, Ervin Gonzalez, of Coral Gables, told The Miami Herald.

According to the lawsuit, Ford knew there was a propensity for vans and trucks to roll over, especially after a tire blew out, and the company failed to provide adequate engineering and safety measures to protect consumers.

After a six-week trial, the six-person jury found that Ford failed to use reasonable care by placing the Aerostar on the market with a defect.

The money awarded is for economic losses, pain and suffering and loss of potential income.

A spokeswoman for Ford said the company will appeal.

“This was a tragic and severe accident,” Ford spokeswoman Kristen Kinley said. “However, there was no credible evidence introduced at trial to support a jury finding that a vehicle defect caused Mr. Felipe’s injury.”e roof caved in.

The 9th U.S. Circuit Court of Appeals recently ordered the Department of Veterans Affairs to pay retroactive benefits to Vietnam War veterans who were exposed to Agent Orange. The VA had fought for 16 years against paying benefits retroactively to veterans who had claimed that their leukemia was caused by the toxic herbicide.

VA Refused to Pay Retroactive Benefits

Although the VA agreed in 2003 to provide benefits to the vets diagnosed with CLL (chronic lymphocytic leukemia) caused by Agent Orange, the VA didn’t then review previous claims from vets with CLL, and it declined to pay them retroactive benefits.

Court Chastises the VA in Ruling

Judge Stephen Reinhardt, writing the appeals court decision, chastised the VA over its longstanding opposition to paying the benefits, stating, “We would hope that this litigation will now end, that our government will now respect the legal obligations it undertook in the consent decree some 16 years ago, that obstructionist bureaucratic opposition will now cease, and that our veterans will finally receive the benefits to which they are morally and legally entitled.”

The opinion went on to say “The performance of the United States Department of Veterans Affairs has contributed substantially to our sense of national shame.”

It is not yet known how many veterans will be affected by the court’s decision, or how much the VA would be paying out in benefits, or whether the VA will appeal the latest decision.

Other Agent Orange-Based Disabilities Possible

An attorney with the National Veterans Legal Services Program, Richard Spataro, noted that the appeals court ruling might finally halt the years of legal battles with the VA — if the VA doesn’t appeal the case to the Supreme Court. Spataro also pointed out that if other disabilities or illnesses among vets are found to have been caused by Agent Orange, the recent decision will bar the VA from denying retroactive benefits for those vets, too.

On Nov. 3, 2000, plaintiff Jacqueline Essen, 46, a road crew member for the state’s transportation department, was admitted to Carlinville Area Hospital to have her gall bladder removed.Essen alleged that general surgeon Anand Talcherkar damaged her bile duct when he placed surgical clips on it and did not recognize the injury before closing her abdomen.Essen sued Talcherkar for medical malpractice. Plaintiff’s counsel argued that Talcherkar was to blame for placing the surgical clips along her common bile duct and that he failed to recognize the injury before closing the area. Marc Cooperman and David Linehan, the plaintiff’s general surgery experts, testified that Talcherkar was at fault for placing one of the clips against the target structure and bile duct.

The defendant denied the allegations. Defense counsel contended that Talcherkar did not breach the standard of care, and that Essen received the appropriate level of surgical care, which was reiterated by Norman Estes, the defense’s general surgery expert.

Because of post-surgery complications, Essen was transferred to Missouri Baptist Hospital in St. Louis and then to nearby Barnes-Jewish Hospital. She became jaundiced and ill due to the bile that was backing up in her liver and it was determined that the clips could not be surgically addressed due to inflammation. Essen’s backup bile was drained through her liver and she was then released. On Jan. 17, 2001, she underwent surgery to reroute her intestinal track and suffered a heart attack. She was released nine days later and continued to experience pain from the incision and sought treatment from her family physician and pain management specialist. Essen sought approximately $150,000 in past medical expenses. Craig Backs, the plaintiff’s internal medicine expert, testified that the pain from the incision was permanent. She sought an unspecified amount in past and future pain and suffering. She missed five months of work and stopped working as a road crew member in April 2004. Plaintiff’s counsel argued that Essen would only perform clerical type of work. She sought $163,503 in past and future lost wages.

The jury found that Talchekar breached the standard of care and awarded Essen $3,104,695.

A recent study reported that 90 percent of the 3,000 doctors surveyed admitted having made a medical error or narrowly missed making such an error. A “near miss,” a minor medical error, or a serious error (i.e., an error resulting in permanent or potentially life-threatening harm) was acknowledged by 2,909 of the 3,171 doctors who answered a questionnaire. The stress incurred by doctors when they make medical mistakes has not been addressed, according to the study’s authors.

Thousands of Deaths Due to Medical Mistakes

The Seattle-, St. Louis-, and Canada-based physicians were surveyed by The Joint Commission, a hospital regulatory group working to reduce the rate of medical errors in the U.S. The August edition of The Joint Commission’s Journal on Quality and Patient Safety gave the complete study, which also cited an earlier estimate that at least 44,000 patients die in the U.S. each year because of medical mistakes.

The study’s lead author, Washington University psychologist Amy Waterman, stated that job stress following medical mistakes could make some physicians prone to depression and possibly prone to additional mistakes. Although most of the doctors surveyed said that they would like to have counseling or some type of help after making an error on the job, few reported having any such resources at hand.

Mistake-Related Stress Troubles Physicians

Of the doctors who were involved in medical errors, 44 percent admitted that after making the mistake they became less confident in their ability to do their job as a doctor. The physicians who were involved in serious errors reported increased job-related stress, but only 10 percent of the doctors surveyed said that the hospitals where they worked offered them adequate resources for handling medical error-related stress.

Doctors have traditionally been trained to keep quiet about any mistakes that are made in medical care, and their reputation as “god-like” medical experts has hindered the open reporting environment that many healthcare facilities are trying to implement. As Dr. David Jaimovich, chief medical officer of a Joint Commission affiliate office noted, doctors who have made a mistake in patient care are “supposed to bite their lip, suck it up and keep going.”

Anxiety, Trouble Sleeping, Less Job Satisfaction

Of the surveyed doctors who were involved in mistakes, 61 percent reported feeling increased anxiety about their potential for future mistakes, 42 percent experienced problems sleeping, and 42 percent described a loss in job satisfaction.

On Nov. 7, 2003, plaintiff Chadwick Paddock, 50s, an event planner, was driving his sports car on Immokalee Road in Collier County when he was hit head-on by a sedan driven by Yuri Jimenez, whose vehicle is owned by Tarcisio Vasquez Delgado, her uncle.Paddock sued Jimenez and Delgado for her vehicular negligence and for negligent entrustment.Jimenez was intoxicated at the time of the accident. She testified that this was the first time she consumed alcohol, and she could not remember the quantity she drank. Blood alcohol tests indicated that Jimenez had consumed roughly a dozen beers. She’s currently serving a 4.5-year prison term for the accident. Jimenez, an illegal alien is awaiting deportation to Mexico.

Plaintiff’s counsel argued that Delgado had given permission to Jimenez to drive the vehicle. Delgado possessed a valid insurance policy on the vehicle. During her deposition Jimenez testified that she often use Delgado’s car with his permission to drive to work and run errands.

Delgado’s counsel argued that Jimenez stole the car. Delgado claimed that he had no knowledge that Jimenez took his vehicle, and she knew where he kept the keys for the vehicle. Jimenez once lived with her uncle, and knew where he kept the car keys. Defense counsel stated that theft can occur even among family members.

Paddock sustained fractures to his hip, knee, pelvis and both of his feet. He had multiple surgeries to his hip, pelvis and feet, including the implementation of hardware. He was hospitalized for about a month, and incurred roughly $651,656 in medical expenses.

An event planner prior to the accident, Paddock claimed that his injuries have precluded him from going to work. He claimed roughly $275,000 in past and future lost wages.

Paddock claimed that he is coping with significant disabilities. Plaintiff’s counsel contended that Paddock will likely need future medical care of about $802,500 in future medical expenses, which included several surgeries. Paddock claimed he is dealing with residual pain, and has difficulty walking long distances. Favorite activities such as attending his children’s athletic contests have been curtailed due to his injuries, argued plaintiff’s counsel.

Paddock’s wife, Donna, claimed damages based on loss of her husband’s household services due to his injuries.

The jury found that Delgado did not negligently entrust his car to Jimenez. The jury found Jimenez negligent and awarded Chadwick and his wife $6,990,931. Plaintiff’s attorney Randall Spivey stated that he hopes the verdicts serves as a reminder of the tragic results that drunk driving can cause. He hopes a message was sent to other drunk drivers with this verdict.

In what is being called a “wrongful birth” case, a jury awarded more than $21 million Monday to a couple who claimed a doctor misdiagnosed a severe birth defect in their son, leading them to have a second child with similar problems.But because the doctor works for the University of South Florida, the family will have to persuade the Legislature to award most of the money. State law limits negligence claims against government agencies at $200,000.

Daniel and Amara Estrada, whose two young sons aren’t able to communicate and need constant care, sought at least enough money to care for the second child, 2-year-old Caleb.

“This is a severely impaired child who will need a great deal of care for the rest of his life,” said Christian Searcy, one of the attorneys who tried the case. He called the award “conservative but fair.”

The couple claimed that Dr. Boris Kousseff failed to diagnose their first son’s genetic disorder, called Smith-Lemli-Opitz syndrome, which is the inability to correctly produce or synthesize cholesterol, after his 2002 birth.

Had the disorder been correctly diagnosed, a test would have indicated whether the couple’s second child also was afflicted and they would have terminated the pregnancy, according to the lawsuit.

Instead, Kousseff, a specialist in genetic disorders, told them they should be able to have normal children in the future.

The jury decided that Kousseff was 90 percent negligent and that an Orlando doctor not named in the lawsuit was 10 percent at fault.

A USF spokeswoman didn’t immediately return a call seeking comment Monday.

Searcy said he would push state lawmakers to pass a bill awarding the Estradas money over the $200,000 cap.

“I believe that this case is so powerful and this tragedy was so preventable and is so poignant, that it is the kind of case that should rise above the fray and rise above party politics,” Searcy said.