South Florida Personal Injury Lawyers

A speedier but less accurate laboratory test for pertussis, commonly called “whooping cough,” is responsible for false-positive test results in thousands of individuals, according to a recent report from epidemiologists with the U.S. Centers for Disease Control (CDC). Many of those individuals received completely unnecessary pertussis treatment with antibiotics.Thousands of Mistaken Diagnoses

Whooping cough/pertussis is a highly contagious upper respiratory tract infection, spread by coughing or sneezing. Government health officials had estimated that the number of pertussis cases has tripled in the U.S. since 2001, but nearly half of the cases diagnosed since 2001 have now been called into question because of the unreliable nature of the lab test used.

Outbreaks of what was thought to be whooping cough were reported in Massachusetts, New Hampshire, and Tennessee. In early 2004, a baby in a Tennessee town was diagnosed with whooping cough by the speedy test, and nearly 1,500 area residents were offered or treated with antibiotics for whooping cough. However, the slower but more reliable whooping cough test revealed that only the baby had a truly positive result.

Hospital Staff Reduced

At a Lebanon, N.H. hospital, a lab worker was incorrectly diagnosed with whooping cough in March 2006, and nearly 1,000 hospital employees were then put on furlough in an effort to prevent the infection of hospital patients. About 100 of the employees were diagnosed with pertussis with the quick test, and the results were eventually found to be wrong. Hundreds of the employees underwent unnecessary treatment with antibiotics.

In October 2006, the quicker-but-less-accurate test diagnosed pertussis in a toddler at Children’s Hospital in Boston. Some three dozen hospital workers were tested and found to be positive too, but when the more reliable bacteria culture test was performed by the CDC, it was found that all of these positive results were incorrect.

Reliable Test Takes One Week

The more accurate test for pertussis requires a week or more for the growth of pertussis bacteria from a patient’s test sample. Health officials have sometimes not wanted to wait that long to take preventive action against a pertussis outbreak.

The CDC is initiating a study with the goals of improving and standardizing the tests used to diagnose pertussis. In the meantime, the “outbreaks” of whooping cough are well described by Dr. William Schaffner, chairman of Vanderbilt University’s department of preventive medicine, who said, “It’s been a roller coaster. ‘Whoa, look at this big outbreak! Whoa, it wasn’t really pertussis!’”

Toys “R” Us, Inc. has recalled some 27,000 “Imaginarium” brand wooden coloring cases because of excessive lead in the ink on the outer packaging and in some of the black watercolor paint that is part of the product’s art kit. The cases were made in China.

The U.S. Consumer Product Safety Commission (CPSC) announced the recall today. The $20 art kits in their wooden cases were sold from October 2006 to August 2007 at many Toys “R” Us outlets nationwide and on its website. No injuries or illnesses due to the this product have been reported, but lead poisoning from paint and other sources has been confirmed to be the cause of brain damage in children who have ingested the lead by eating or licking it or inhaling lead dust.

Art Kit with Crayons, Markers, etc.

The Imaginarium is a 213-piece kit that includes crayons, fiber marker pens, pastels, colored pencils, a palette, a paintbrush, watercolors, a ruler, a pencil, and a pencil sharpener in a light tan wooden carrying case. The CPSC said that consumers who bought an Imaginarium should return it to the nearest Toys “R” Us for store credit. A customer service number for Toys “R” Us: 1-800-TOYSRUS.

Yet Another Chinese Product with Lead Paint

The Imaginarium recall is the latest in a barrage of recalls of Chinese-made products revealed to have paint with lead that exceeds U.S. standards. Other similar recalls included dolls and cars from Mattel, one of the world’s largest toy companies.

The recalls of toys made or painted in China and recalls of other products from China such as food and tires have culminated in a hearing at the U.S. House of Representatives’ subcommittee on commerce, trade, and consumer protection. The hearing is scheduled for September 19, and is expected to deal with imported toys, jewelry, and other products containing lead.

For the second time, a federal appeals court has overturned jury punitive damages awards to the parents of a 3-year-old boy who was crushed in their driveway when the parking brakes on their Ford pickup failed.

The first jury awarded $150 million in punitive damages to give Ginny and Jimmie White of Elko. After that decision was thrown out, a second jury voted to award $52 million.

Ford Motor Co. appealed, and on Thursday, the court dismissed the jury award and ordered a new trial to determine an appropriate amount. Legal experts said the decision reflects a change in the way such damages are handed out.

The 9th U.S. Circuit Court of Appeals cited a recent 5-4 U.S. Supreme Court ruling in which a $79 million punitive damage award against Philip Morris was thrown out. The high court said punitive damages should align more closely with actual damages and cannot be used to punish a company for injuries suffered by those not involved in the lawsuit.

In the White case, the appeals court said Judge David Hagen in Reno failed to give the jury proper instructions to ensure that they would not consider the 54 other people who were hurt by the faulty brakes when awarding the Whites’ punitive damages.

“On remand, the district court must explain to the jury that although evidence of harm to non-parties may bear on Ford’s reprehensibility, any award of punitive damages can not be used ‘to punish (Ford) directly for harms to … nonparties,’” the appeals court said.

Shanin Specter, the Whites’ lawyer, called the ruling “regrettable.”

“Two unanimous juries and all seven judges who have ruled on this case over the past decade have ruled that Ford must be punished for its conduct,” Specter said. “It is regrettable that this punishment has been delayed all these years.”

Kristen Kenley, a spokeswoman for the Ford Motor Co., praised the court’s ruling.

“This was a very tragic accident and it is regrettable that this litigation continues almost 13 years later,” she said. “However, we are very pleased that the Ninth Circuit has once again reversed the excessive punitive damages award in this case, which resulted from procedures stacked against Ford.”

The ruling reflects a recent shift in the way punitive damages are awarded and reveals a desire to reign in a jury’s inclination to react emotionally to an inflammatory and difficult case, said William Dressel, president of the National Judicial College in Reno.

“The whole area of punitive damages has been an unsettled one,” Dressel said. “Its role is not to compensate for the loss, but is a way to punish the offender so they won’t do it again.”

But in the Philip Morris decision, the high court found that “there needs to be a relationship between the harm and the amount,” Dressel said. “Are you going to change future behavior and protect consumers with large damage awards? We have yet to really come up with an answer to say this is what punitive damages should do.”

Walter White was playing in the family yard in October 1994 and climbed into the cab of their 1993 Ford F-350 pickup, according to court records. The truck was set in first gear and the parking brake was on, but the boy knocked the gearshift into neutral.

The parking brake didn’t hold and the truck started to roll, the record shows. The boy fell out and was crushed by the truck’s rear dual wheels.

The company had started using a self-adjusting parking brake in its F-series trucks beginning in 1992 and had been hearing of potential problems with the brake since 1990, court records show.

By 1993, Ford knew it had a rollaway problem with the trucks but did not issue a recall until December 1994, two months after the child’s death, the records said.

In 1998, a jury found the brake was “defective in design.” However, the jury said the Whites were “40 percent contributorily negligent.”

Jurors awarded the Whites $2.3 million in compensatory damages and $5,434 for funeral expenses. They also awarded $150 million in punitive damages, but Hagen said that was constitutionally excessive and cut that amount to $69 million.

After an appeal, the second jury came back with a $52 million punitive award, but Ford argued that violated due process rights.

The deadly 2005 explosion at a BP PLC refinery in Texas City was described to potential jurors in the first civil trial stemming from the blast as a “hell on Earth” in which those killed had their bodies torn apart and survivors suffered debilitating injuries.More than 200 people gathered in a Galveston courtroom Thursday for jury selection and answered questions from attorneys representing plaintiffs in five lawsuits that will be tried together.

Their lawsuits, barring last-minute settlements, are to be the first to be tried in connection with the blast, which killed 15 people and injured more than 170 others.

BP spokesman Neil Chapman said the London-based oil company is working to settle all lawsuits filed as a result of the accident.

Currently, about 1,350 lawsuits have been settled, including those involving all 15 workers who were killed. The blast has cost the company at least $2 billion (€1.5 billion) in compensation payouts, repairs and lost profit.

Among the lawsuits is one filed by two boys whose father, Rene Cardona Sr., 26, fatally shot himself six weeks after the explosion.

“Our experts will show that his suicide was a direct result of the explosion,” said Robert Kwok, an attorney for the sons of Cardona, a contract worker who did electrical maintenance at the plant.

Kwok said Cardona, who worked at the refinery from November 2003 until the day of the blast, was traumatized by the explosion because he knew people who were killed or injured in the accident.

Cardona’s sons, 11-year-old Rene Cardona Jr. and 6-year-old Xavier Rodriguez, briefly appeared in front of the jury before they had to go to school.

The other four plaintiffs - contract workers who say they suffer from back problems, hearing loss and post traumatic stress disorder due to the blast - are:

- Nara and David Wilson, both 44. They worked for mechanical contracting company Altair Strickland.

- Scott Kilbert, 48, an instrumentation supervisor for construction company JE Merit.

- Rolando Bocardo, 41, an instrument fitter for JE Merit.

“Inside the plant, it was hell on Earth,” Brent Coon, who represents the four other plaintiffs, told the jury pool. “These workers were running for their lives. Most of the people out there were working folks like you and I and were not emotionally prepared for that type of catastrophe.”

Originally, seven lawsuits were set to go to trial but two of them were settled before jury selection began Thursday.

The trial, if it proceeds, is expected to last up to two months.

The Texas City explosion occurred when part of the plant’s isomerization unit, which boosts the level of octane in gasoline, overfilled with highly flammable liquid hydrocarbons. A geyser-like release of flammable liquid and vapor ignited as the unit started up. Alarms and gauges that should have warned of the overfilling equipment failed to work at the plant about 40 miles southeast of Houston.

Coon told the jury pool all the plaintiffs are claiming BP ignored safety measures and failed to install new equipment that could have prevented the blast.

“They didn’t do it because they didn’t want to spend the money,” Coon said.

The U.S. Chemical Safety and Hazard Investigation Board, one of several agencies that investigated the accident, found that BP fostered bad management at the plant. The CSB also said cost-cutting moves by BP were factors in the explosion.

An internal report by BP released in May said there were management failures from the isomerization unit all the way up to the refining and marketing segment of the company.

Coon asked potential jurors Thursday if any of them work for BP. Several said they did, including two men who responded they work in the safety department at the Texas City refinery. Their responses elicited laughter from people in the courtroom.

“No disrespect for you. I’m sure you do a fine job,” Coon told one of these two men. Many others in the jury pool said they have worked for the petrochemical industry or have family or friends who do.

Others in the jury pool also told Coon they could not award money for any mental anguish the plaintiffs might have suffered because people assume some risk working in the petrochemical industry.

Some in the jury pool also said they believed oil companies are trying to be safe and they could not award damages designed to punish BP for any misconduct it might have done because that is the job of government agencies that regulate the petrochemical industry.

Jury selection was expected to take at least two days.

A California produce company recalled bagged fresh spinach Wednesday after it tested positive for salmonella.

There were no immediate reports of illness linked to the tainted spinach, distributed by Metz Fresh LLC of King City, Calif. The recall comes nearly a year after an outbreak of another pathogen, E. coli, in fresh spinach killed three people and sickened another 200.

The recalled spinach was distributed throughout 48 states and Canada and sold in both retail and food service packages. It covers 8,118 cases of spinach, although the company said more than 90 percent of that was on hold and would not be released.

While only a single sample from one of three packing lines tested positive for salmonella, the company said it moved to recall all the spinach packed that same day as a precaution.

The recall covers 10- and 16-ounce bags, as well as 4-pound cartons and cartons that contain four 2.5-pound bags, with the following tracking codes: 12208114, 12208214 and 12208314.

Consumers with questions can contact Metz Fresh at 831-386-1018.

Last year’s E. coli outbreak prompted the Food and Drug Administration to warn Americans not to eat fresh bagged spinach. It later lifted that warning after tracing the contamination to spinach processed and packed by Natural Selection Foods LLC in San Juan Bautista, Calif.

The incident prompted stricter monitoring procedures by growers and processors and stepped-up inspections by California health officials.

Salmonella sickens about 40,000 people a year in the U.S. and kills about 600. It can cause diarrhea, fever, dehydration, abdominal pain and vomiting. Most cases of salmonella poisoning are caused by undercooked eggs and chicken.

On Monday, the California State Assembly passed a bill that would prohibit the use of cell phones, pagers, laptops, and text-messaging devices by drivers under the age of 18. The bill passed with a vote of 62 to 5. It has already passed in the Senate and will be returned to the Senate for final approval of some amendments. That approval is expected, but Gov. Arnold Schwarzenegger has not yet decided whether he will okay the bill or veto it.

Much Higher Crash Rates Among Teen Drivers

The bill was introduced by Palo Alto senator Joe Simitian, who cited a National Highway Traffic Safety (NHTSA) report that 16-year-old drivers have a vehicle crash rate that is fully five times higher than the rate for 18-year-olds and nearly 10 times higher than the rate for drivers between 30 and 59 years old.

In addition, Ford Motor Company research revealed that teenage drivers are four times more distracted when using a cell phone while driving, compared to adult drivers. The National Transportation Safety Board has a suggested “prohibition of the use of wireless communication device by young novice drivers” on it list of “Most Wanted” safety recommendations.

Most Teens Use Cell Phones, Texting While Driving

In a 2007 survey of 16- and 17-year-old drivers by Seventeen magazine and the American Automobile Association, 61% of the teens admitted to driving habits such as sending text messages while driving (46%) and talking on a cell phone while driving (51%).

Said Senator Simitian, a Democrat, “I introduced this bill for one simple reason: It will save lives…Year after year, car crashes are the No. 1 cause of death among teenagers. The young drivers who are using cell phones, pagers and PDAs while driving are putting not only themselves at risk, but all of us as well.”

Assemblywoman Bonnie Garcia (R-Cathedral City) seconded his concerns, pointing out that although teenage drivers are just 6% of licensed drivers, they account for 16% of auto accident fatalities. She noted, “On average we are losing 17 kids a day across the United States due to fatalities in which distraction was involved.”

Bill Follows Another Cell Phone Use Ban for All Drivers in CA

Sen. Simitian was optimistic that the bill would be signed into law, since Gov. Schwarzenegger signed a bill last year that will ban hand-held cell phone use by all drivers by July 1, 2008. The governor has also stated that he does not let his teenage daughter use a cell phone while driving.

If the new bill is passed, a first violation will result in a $20 fine, and $50 fines will be leveled for subsequent violations. No points will be taken off a violator’s driving record.

On March 4, 2004, plaintiff Daniel Feliciano, 84, was scalded by water while taking a shower in his apartment in the Bronx. An in-home health-care aide was supposed to be assisting him when a surge of hot water scalded his leg and torso. He sustained second-degree burns.Feliciano sued the building’s owners and managers, Concourse Area Housing Corp., Concourse Redevelopment Co. L.P., Graphic Building Systems Inc. and Rental Management Association. He alleged that the defendants were negligent in their maintenance of the building’s plumbing system.Concourse Area Housing commenced a third-party suit against a company that had repaired the building’s plumbing, Pelham Plumbing and Heating Corp., and the company that employed Feliciano’s in-home health-care aide, Premier Healthcare. Concourse Area Housing alleged that Pelham Plumbing and Heating was negligent in its repair of the plumbing system and that Premier Healthcare’s employee negligently failed to supervise Feliciano’s shower.

Feliciano claimed that the shower delivered an unexpected surge of scalding hot water. His counsel submitted evidence of a prior complaint for hot-water surges to the City of New York Department for Housing Preservation and Development. Thus, plaintiff’s counsel contended that the direct defendants had notice of the water-temperature problems.

Evidence indicated that the direct defendants had hired Pelham Plumbing and Heating to fix a mixing valve two weeks prior to the incident. The direct defendants claimed that Pelham Plumbing and Heating improperly installed the valve.

Pelham Plumbing and Heating contended that a plumber returned to the building one day after the accident and found that the valve had been tampered with. It claimed that the direct defendants had broken the valve by trying to increase the water temperature after receiving complaints from tenants that the water was too cold. The plumber claimed that he found that the water was surging at 180 degrees.

The direct defendants also argued that Premier Healthcare was liable for the actions of its aide, who had left Feliciano alone in the shower when specifically instructed not to do so.

Feliciano sustained second-degree burns with disfiguring scars of 12% of his body surface, including his legs and torso. He was hospitalized for one month, after which he underwent about five weeks of rehabilitation. He did not undergo any skin grafts. He estimated his hospital and rehabilitation expenses at $87,000. He sought recovery of those expenses and damages for his past and future pain and suffering.

The parties agreed to a $960,000 settlement, which was established via the guidance of mediator Bertram Gelfand, of National Arbitration and Mediation. Pelham Plumbing and Heating’s insurer agreed to contribute $110,000; Premier Healthcare’s insurer agreed to contribute $250,000; and the remaining defendants’ insurer agreed to contribute $600,000.

Two workers seriously injured and the estate of a paramedic killed in a propane gas explosion in January have filed a $60 million lawsuit against six companies.Four people died and five were seriously injured Jan. 30 when a propane tank exploded and leveled the Flat Top Little General Store in Ghent.

In the lawsuit filed July 25 in Raleigh County Circuit Court, Beckley attorney Benny Jones claims the store and Godfather’s Pizza, which had a restaurant inside the store, were negligent for not providing a safe workplace and for not properly maintaining the propane tank. The lawsuit also alleges they violated the law by storing propane in a tank next to the store.

The lawsuit also accuses several propane suppliers of being careless when transferring propane from one tank to another and failing to adequately train their employees.

The lawsuit blames all six defendants for failing to order the immediate evacuation of the building once they knew propane had escaped into the air.

Jones filed the lawsuit on behalf of Little General employee Patricia Mullins, Godfather’s Pizza employee Leta Farley, and the co-administrators of the estate of paramedic Craig L. Dorsey II.

The two women each suffered serious permanent injures to their heads, arms and legs and incurred more than $300,000 in medical bills, plus lost wages, according to the lawsuit.

Named as defendants are Appalachian Heating LLC, ThompsonGas Propane Partners LLC, Ferrellgas Inc., BP America Inc., Little General Store Inc. and Godfather’s Pizza Inc. The lawsuit also lists unnamed landowners and unnamed distributors and manufacturers of propane and propane equipment used at the store.

On Aug. 25, 2003, plaintiff Stuart Denyer, 25, a commodities broker, joined friends at Beach Bums, a restaurant in Fort Lauderdale on Route A1A, which is officially known as 219 South Atlantic Blvd. Inc.Denyer and friends were seated at the outdoor sidewalk café, unaware that the restaurant did not have a permit to serve on the sidewalk. They were served alcohol by “shooters,” girls dressed as cowgirls who went around with bottles of alcohol strapped to their hips, pouring shots of alcohol directly into patrons’ mouths.A crowd gathered around the sidewalk. To get through the crowd, Denyer, who had consumed beer and shots from the shooters, walked toward the curb. He claimed that he was elbowed into the street and struck by a passing car. His head cracked the windshield. For several hours it was uncertain if he would live. At the hospital, a doctor found his blood-alcohol content was .21%.

Denyer sued Beach Bums and the property owner, Swiss Beach Holdings, Inc., on a premises liability theory. Swiss Beach Holdings was later dropped from the suit.

By not seeking a permit from the city of Fort Lauderdale before operating an outdoor sidewalk cafe and by violating a Florida statute precluding curbside service of alcoholic beverages, Denyer alleged that Beach Bums was the proximate cause of the accident and his injuries.

Plaintiff’s counsel argued that Beach Bums failed to ensure customers’ safety. Security expert Robert Lacey testified that the restaurant should have cordoned off the area or employed security personnel to be sure that no customers wandered into the road.

“If you serve alcohol beside a highway it was foreseeable that somebody would go into the road,” counsel later said in an interview. “They needed to create a buffer between the street and the sidewalk. It was extremely crowded, and crowd control was necessary.”

Beach Bums denied liability. Defense counsel argued that Denyer was comparatively negligent, arguing his intoxicated state caused him to wander into the street. One witness testified that Denyer skipped out into the street. Based on the report of a homicide investigator, the defense argued that Denyer was several steps into the street and had time to avoid the oncoming car.

Defense counsel contended that If Denyer’s intoxication was the proximate cause of the accident, and if Denyer was more than 50% at fault for his intoxication, then Beach Bums could not be held liable for the accident.

Stuart Denyer was rushed to Broward Hospital, where he remained for one week. His right leg was broken, his jaw had been fractured in three places, his teeth were knocked out and he had a fractured skull, orbit and cheekbone. Doctors installed two titanium rods and hardware in the right leg. Denyer later underwent several facial surgeries and physical therapy. He claimed scarring and disfigurement, stitches to the head and loss of bone.

Prior to the accident, Denyer had been a semi-professional rugby player and a commodities broker. He’ll never play rugby again. He claimed loss of enjoyment, pain and suffering, and a year of lost wages between $35,000 and $40,000. He claimed past medical expenses of $190,000 plus future medicals.

The trial was bifurcated and did not reach the damages portion.

The jury found that the negligence of Beach Bums was a legal cause of injury to Stuart Denyer. The jury found Denyer 65% negligent and Beach Bums 35% negligent. “The blood-alcohol level posed some challenges, but the jury understood the issues,” attorney David Shenkman later said. “It’s their city, and I don’t think they appreciated the shooters out there on the sidewalk.”The parties then settled for $750,000 before the damages portion of the trial.

The family of a woman who died when she received inadequate care after surgery at Geisinger Wyoming Valley Medical Center has been awarded $3.5 million in a settlement over the death, court papers say.

Lori D. Kashinsky, of Tunkhannock, died in July 2006 when staff at the Plains Township hospital failed to treat the internal bleeding she suffered after a gall bladder removal, despite clear signs that she was hemorrhaging for hours after the procedure, the suit said.

Tuesday’s settlement, filed in Luzerne County Court of Common Pleas, calls for Kashinsky’s family to receive the funds from the hospital and doctors Alejandro J. Gruneiro and Asish Mukherjee.

The suit, filed by attorneys Joseph A. Quinn Jr. and Michelle M. Quinn of the law firm of Hourigan, Kluger, and Quinn, said:

Kashinsky, 50, went to Geisinger on July 18, 2006, for the scheduled surgery with Gruneiro. Her surgery was finished by about 9 a.m., but about five hours later, a nurse found Kashinsky complaining of nausea and cold sweats. The nurse took Kashinsky’s blood pressure for the first time in four hours. Kashinsky’s blood pressure was inaudible.

Two hours later, a blood test showed Kashinsky was losing blood. About 30 minutes later, blood tests showed “critical” signs and a blood test three hours later showed signs of ongoing blood loss.

The test results showed signs of “life-threatening blood loss,” the attorneys said in the suit, but Kashinsky was not taken to the operating room until 9 p.m. There, the attorneys said, “1.5 liters of old, clotted blood was found inside” Kashinsky’s abdomen. Between July 18 and 29, when Kashinsky died, she remained at the hospital.

“During that time, (Kashinsky) suffered excruciating pain,” the attorneys wrote.

On July 28, Gruneiro noted Kashinsky’s right colon and right lobe of the liver were dead. Gruneiro also concluded that Kashinsky’s entire small bowel was dead, making her condition “incompatible with life,” the suit said. Kashinsky died July 29. Her husband and sons were present when she died.

They sued in July 2007, claiming Kashinsky’s death was preventable had the defendants appropriately monitored her after surgery and treated her symptoms.

The parties reached the $3.5-million settlement and it was approved Tuesday by Judge Chester Muroski.

The settlement calls for Kashinsky’s husband, three sons, and estate to receive and distribute among them about $2.205 million and the law firm to receive about $1.293 million for fees and costs.

Joseph Quinn said he could not comment on the settlement Tuesday.

Dave Jolley, a spokesman for Geisinger, said the “matter is resolved to the satisfaction of both parties.”