South Florida Personal Injury Lawyers

A man who found out the bone implanted in his neck to relieve back pain was stolen from a corpse is suing a medical technology company and several tissue processing businesses, including two in Tennessee.James Livingston, 44, of Weatherford, does not seek a specific monetary amount in his suit filed in New York last month against Minneapolis-based Medtronic Inc. for fraud and negligence.

Other defendants are Memphis, Tenn.-based Sofamor Danek Inc.; Knoxville, Tenn.-based Spinalgraft Technologies Inc.; Alachua, Fla.-based Regeneration Technologies Inc.; Fort Lee, N.J.-based Biomedical Tissue Services; Michael Mastromarino and Joseph Nicelli.

“How can you sell parts out of a body, just like parts from a stolen car?” Livingston said.

New York authorities believe Mastromarino, owner of now-defunct Biomedical Tissue Services, made deals with funeral directors to remove bones, tendons and heart valves from corpses without notifying their families or screening for disease. He has pleaded innocent to charges that include a felony punishable by up to 25 years in prison.

Nicelli is a former funeral parlor owner and embalmer who also has pleaded innocent to charges in the case.

Mastromarino is accused of doctoring death certificates and forging consent forms, then replacing the bones with PVC pipe and sewing the incision so it would not be noticed at the funerals.

The body parts were shipped to processing firms nationwide, sterilized and then implanted in patients from early 2004 to September 2005.

It’s unclear how many patients received stolen tissue or bone. Livingston’s lawyer, John David Hart of Fort Worth, said other lawsuits have been filed around the country.

After the New York investigation into Mastromarino, five tissue processors that received human parts from Biomedical Tissue Services issued voluntarily recalls. Medtronic, a distributor that received the parts, also issued a voluntary recall.

Livingston had surgery in 2005 at Baylor All Saints Medical Center at Fort Worth, which immediately pulled the tissue from its stock after learning of the recall. Physicians who had implanted the suspect material contacted their patients - five in all, said Wendy Walker, a spokeswoman for Baylor Health Care System.

Medtronic has voluntarily recalled about 16,000 bones nationwide, and tests on 12,000 to 13,000 people show no infectious disease that is traceable to the recalled tissue, said company spokesman Bert Kelly.

Although Livingston’s blood tests have shown no evidence of disease, he said he is worried about getting sick years from now. Knowing that the bone went through a sterilization process is of little comfort to him.

“My biggest concern is: Nobody really knows,” Livingston said. “And there’s a part of me that really does want to give that bone back.”

A Florida mother and daughter are facing charges after a confrontation on a school bus that was caught on surveillance tape.

Authorities said Karen Barber, 34, boarded the bus with her 15-year-old daughter to confront a boy who allegedly had been bullying her 12-year-old son.

On the tape, Barber turns to leave, but then returns and appears to slap the boy around, police said.

Police have charged Barber and her daughter with battery in connection with the incident.

The cafeteria at Miami Carol City Senior High School will remain closed after failing another health inspection earlier this week. Florida Department of Health inspectors are expected back at the school Wednesday, one week after a food service inspection report ordered the school to “eliminate rodent infestation.”According to the report, a rodent dropping was found on a meat slicer and a rodent was seen running in a food storage room. The report also said the school needs to “eliminate rodent urine odor from kitchen area.”

The cafeteria closure comes after Local 10 was criticized by Miami-Dade County Public Schools for exposing similar issues. Last May, Local 10 reported that about 40 schools received an unsatisfactory grade in a food service inspection because of rodent and roach activity.

The school has been catering food since the cafeteria was shut down. The cafeteria cannot reopen until there are three consecutive nights where no rats are caught in any of the traps set up at the school.

The school still must patch holes in the cafeteria walls, repair a freezer and sanitize the floor in the kitchen.

On May 4, 2001, plaintiff Joseph Provenza, 13, was riding his motocross bike in a desert area in Pahrump, Nev., while wearing specialty motocross clothing. His jersey was made of cotton and the pants were nylon, which were manufactured by Gear Racewear, Inc.Provenza alleged that while he was riding, 2.85 gallons of gasoline leaked from his bike and ignited. Part of his clothes caught fire and continued to burn until his clothing was almost entirely consumed by flames. He suffered third-degree burns to 90 percent of his body.Provenza and his parents sued clothing distributor LeMans Corp., Janesville, Wis.; Yamaha Motor Co.; and Gear Racewear on a products liability theory (breach of warranty). Gear Racewear settled for a confidential amount prior to trial, and Yamaha was involuntarily dismissed before trial.

The case proceeded to trial on the theory that the clothing enhanced the burns beyond what Provenza would have suffered had he been wearing clothing made from fire-retardant or flame resistant materials. Plaintiffs’ counsel argued that LeMans advertised the Gear Racewear clothing as fire-retardant, and the clothing burned beyond what he would have suffered (first-degree, second-degree burns) had he been wearing clothing made from fire-retardant or flame-resistant materials. After conducting flammability testing on exemplar clothing, Gordon Damant, the plaintiffs’ chemistry expert, testified that the clothing distributed by the defendant was unreasonably dangerous. This opinion was shared by Eldon Knuth, the plaintiffs’ fire-protection engineer. Alan Dimick, the plaintiffs’ burn medicine expert, testified that all of Provenza’s third-degree burns were caused by clothing which accelerated the burning, and not by the gasoline.

LeMans denied the allegations.

Defense counsel contended that the clothing was not advertised as fire-retardant, and that the burns were not caused by the clothing but by the gasoline fire. Joseph Moylan, the defense’s medical burn expert, testified via video that all of Provenza’s burns were not enhanced by the nature of the clothing, and that his burns were caused by the burning gasoline.

Judge Elizabeth Gonzalez excluded evidence by the defense that Provenza’s father and father’s friend wrapped a piece of metal wire around the bike’s spark plug prior to May 4.

Bruce LeBlanc, the defense’s textiles expert, conducted a test by spilling a fraction of the 2.85 gasoline involved in the accident on Nomex, a DuPont-trademarked flame-resistant material, in order to see if a fire-retardant jersey would have protected Provenza. LeBlanc testified that the Nomex burnt just as severely and would not have protected Provenza if he was wearing the Nomex material during the accident.

Defense expert Russell Darnell, a former motocross champion, testified about his years of teaching students the warnings and dangers associated with the sport, including the use of proper impact-protection wear. However, Darnell was barred from testifying that, in his years of experience, he did not teach students about the possibility of fire hazards associated with motocross because he never heard of it occurring.

Provenza was flown to University Medical Center in Las Vegas for third-degree burns to more than 90 percent of his body, for respiratory failure and for convulsions. He was on prolonged ventilator support and received a tracheostomy. On July 11, Provenza was transferred to Shriners Hospital in Sacramento for treatment through Nov. 28. Following discharge, Joseph underwent 76 skin surgeries over six years, including split thickness, autograft, homograft, patient’s cultured skin and Integra (bovine matrix) grafts. He suffered complications that included “skin” breakdowns caused by peripheral neuropathy, ischemia and necrosis of the digits in both hands and feet, which required surgical interventions and z-plasty revisions of scar contractures.

Developing ongoing osteomyelitis of the feet and toes, Provenza underwent an amputation of the right great toe and right second toe; partial amputation of the right middle toe, and amputation of the right fifth toe and fifth metatarsal. His left third, fourth and fifth toes and lateral foot were also amputated.

Provenza developed a valgus deformity and a bilateral drop foot and osteoporosis of the bones of his feet. Both of his hands sustained contractures, which dislocated the joints of the index and ring fingers. Provenza underwent amputation and fusion of the joints of his index and middle fingers and partial amputation of his small finger. He developed partial hearing loss secondary to massive and continued use of antibiotics to treat wound infections and episodes of cellulitis.

William Zamboni, the plaintiffs’ treating burn physician, testified that Provenza was the most badly injured burn victim who lived in the state of Nevada. Provenza sought $4,266,600 for past medical expenses and $7,115,370 for future medical expenses. Plaintiff’s counsel argued that Provenza would not be able to live independently and that his parents would have to care for him for the rest of his life. He sought $28 million in past and future pain and suffering and past and future disfigurement. Lewis Vierling, plaintiffs’ vocational rehabilitation expert, testified that Provenza was unemployable. He sought $2,029,482 for future lost earnings. Economist Patrick Mason calculated the plaintiff’s damages.

The jury rendered a plaintiff’s verdict and awarded $41,519,423.

Plaintiffs’ counsel filed a memorandum of costs in the sum of $1,302,593. Plaintiffs’ counsel filed a motion for attorneys’ fees pursuant to LeMans Corp.’s rejection of pre-trial offer of judgment for $967,634. On May 17, 2007, Continental Casualty Co. and National Fire Insurance Co. of Hartford, LeMans Corp.’s insurers, filed suit against LeMans for declaratory relief. The insurance companies requested a judicial finding that they have “no obligation to indemnify LeMans for any portion.
 

A fire that tore through a house early Monday, killing three people, including a 12-year-old boy, authorities said.Investigators said the fire was caused by an electrical problem. A 16-year-old boy who was rescued was taken to a hospital, where he was listed in serious but stable condition.

The fire in the three-story wood-frame house in Brooklyn was reported by a passer-by shortly after midnight. It likely began in wiring in the walls between the second and third floors, investigators said.

The three people who died were found in a third-floor attic, which had no smoke-detecting device, the investigators said. A 49-year-old and a 76-year-old died of burns at the scene. A 12-year-old was pronounced dead from burns at a hospital.

Officials in Laurinburg, N.C., were also investigating a fire in a modular home that left four siblings dead over the weekend.

The fire in the mobile home late Sunday started in the stove area of the kitchen, officials said. It killed three boys aged 12, 9, and 3, and their 9-year-old sister.

The children’s mother said she was not home at the time of the fire because she was dropping off her boyfriend, authorities said.

Laurinburg is about 40 miles southwest of Fayetteville, N.C.

A federal judge says a lawsuit can proceed on allegations that negligence by school officials led to the sexual assaults on four boys at an elementary school.The $15 million suit, on behalf of three of the first-grade boys and their parents, alleges that Allentown School District employees failed to investigate or remove the 12-year-old boy who committed the assaults over four months beginning in December 2003.

The 12-year-old, a special education student, was found guilty in juvenile court of rape and was sent to a detention center until he turns 18.

U.S. District Judge Thomas M. Golden denied the district’s motion to dismiss the lawsuit.

In his ruling dated Friday and released Monday, Golden said the U.S. Constitution’s due process clause does not require school officials to protect students from “violence at the hands of a private actor.”

However, he said the school could be found liable if officials took actions that made Central Elementary more dangerous. He said the plaintiffs’ attorneys “must focus on discovering what actions the defendants took, rather than on what actions they failed to take,” for the suit to succeed.

Blake Rush, an attorney for the plaintiffs, said Golden allowed the most important, potentially damaging claim of “state-created danger” to proceed.

John Freund, the school district solicitor, predicted the lawsuit will eventually be dismissed.

The lawsuit was filed in federal court because Pennsylvania law generally bars negligence suits against municipal governments, including school districts.

About 1 million Simplicity Inc. cribs were recalled last week after federal regulators discovered a design and hardware flaw that may lead to incorrect installation of the drop rail. The defect has been linked to the deaths of three children.

According to the Consumer Product Safety Commission, several of the company’s best-selling models have a faulty drop rail that can detach and create a space where infants become entrapped and suffocate.

“We want parents to know. We do not want your child in that crib tonight,” said Scott Wolfson, CPSC spokesman.

Infant Deaths, Additional Incidents

Two of the deaths occurred when the drop rails in cribs with older style hardware were installed upside down. The two children were six and nine months old. A third death involving a one year old in a crib with newer hardware is also being investigated.

Even though the three deaths occurred in cribs where the drop rail was installed upside down, the CPSC warns that the poor design of the cribs can be dangerous even when the drop rail is properly installed.

“CPSC is also aware of two incidents that occurred when the drop side was correctly installed with older style hardware, though the upside down installation greatly increases the risk of failure,” said the agency.

The CPSC added that it has received more than 50 additional reports of Simplicity crib-related incidents and seven cases of infant entrapment.

The Recall

Cribs included in the recall are sold under the Simplicity and Graco brands at various retailers across the country including Wal-Mart and Target. The cribs, which cost between $100 and $300, were sold from January 1998 through May 2007.

Customers can contact Simplicity for a repair package (888-593-9724), and the CPSC is urging that owners of the cribs ensure that the drop rail is properly installed and securely attached.

The recall is the largest in U.S. history of full-size cribs and marks Simplicity’s fourth in just over two years.

Nancy A. Cowles, executive director of the nonprofit group Kids in Danger, described the company’s track record as “disturbing.”

“With a crib, there is no margin of error; you leave a child alone and it has to be safe,” she said.

Five teens, three of them minors, are facing charges after what is being called a horrific hate crime.

According to police, the teens attacked and tried to drown an 18-year-old black college student from Florida International University.

The student said he was attacked very early Sunday morning after a late-night keg party on an island near Haulover Beach. He said the “N” word was used during the attack.

Police said the incident began after words were exchanged between two groups of people on the island. The groups then took separate boats back to Haulover Marina, where the attack allegedly occured.

Once on shore, the student was beaten with a baseball bat, police said. The teens then allegedly held his head under water and tried to drown him. His friends were also beaten, police said.

Police arrested 18-year-old Miguel Aranda and charged him with a hate crime and attempted murder. Jose Osorio was charged with battery and attempted murder but does not face hate crime charges. Three other suspects have also been arrested. Two of them are 17 years old, the third is only 15. All three minors face hate crime charges.

All of the injured students were treated and are expected to be OK.

On April 29, 2003, plaintiff Toby Tremain was born via emergency Cesarean section to plaintiff Evelyne Tremain, 37, at St. Elizabeth Hospital in Belleville.Tremain claimed that at about 2:30 p.m., nurse midwife Lt. Col. Shari Stone-Ulrich, of Scott Air Force Base, administered Pitocin, and during the course of four to five hours, Tremain’s contractions increased to seven contractions per 10 minutes. Toby’s heart rate would decelerate and then recover, and Stone-Ulrich gave her more Pitocin. At 8:40 p.m., Tremain’s uterus ruptured and Stone-Ulrich continued administering more Pitocin for the next three minutes. Obstetrician Capt. John Smith, also of Scott Air Force Base, was contacted and performed an emergency C-section. He found the baby half-extruded from Tremain’s uterus into her abdominal cavity.Toby was born asphyxiated with low Apgar scores and an umbilical artery blood gas indicative of hypoxia and metabolic acidosis.

Individually and on behalf of her son, Tremain sued the United States of America for medical malpractice. Plaintiffs’ counsel argued that St. Elizabeth’s policy dictated that an obstetrics nurse must be supervised by a physician during delivery and, therefore, Stone-Ulrich breached the standard of care. Cassandra Garcia, the plaintiffs’ obstetrics nurse expert, testified that Stone-Ulrich should have contacted Smith by 7 p.m., at which point Stone-Ulrich should have cut off the Pitocin. Plaintiffs’ counsel argued that Smith failed to properly examine Tremain and properly monitor her progress; failed to properly monitor the progress of Toby; failed to diagnose or treat the condition of a potential uterine rupture; and failed to administer adequate care for the condition of a uterine rupture by delaying the performance of a C-section.

The defense denied the allegations. Cheryl Moran, the defense’s obstetrics nurse expert, testified that Stone-Ulrich did not breach the standard of care.

Toby, who was born unresponsive, was transferred to St. Louis Children’s Hospital where he underwent treatment for about seven weeks. He was diagnosed with cerebral palsy and required a feeding tube. Plaintiffs’ counsel argued that Toby, who was bound to a wheelchair, was a bright child who was limited by his physical condition. Robert Voogt, the plaintiffs’ life care planning expert, testified that Toby would require between $10 million and $20 million in future life care expenses.

Robert Jackson, the defense’s life care planning expert, testified that Toby’s future life care expenses would be between $6 million and $12 million.

Judge Patrick G. Murphy awarded $24,554,880 with interest thereon at the rate of 4.95 percent as provided by law, and her costs of action.

Evelyne Tremain, as next friend of Toby Tremain, a minor,$23,554,880 Personal Injury: damages

Evelyne Tremain, individually

$1,000,000 Personal Injury: damages

The father of a 14-year-old boy who died in June from a waterborne illness will file a $10 million lawsuit against the owners of an Orlando apartment complex where he said his son contracted an amoeba while rescuing a girl in a swimming pool.

Adalberto Arroyo-Ramos, the father of Angel Arroyo-Vasquez, will file the lawsuit in the Circuit Court of the 9th Judicial Circuit in Orange County, FLORIDA TODAY news partner WKMG Local 6 reported.

The defendants named in the complaint are: MPI Brentwood Orlando, LLC., a foreign limited liability corporation, and WRH-AEW V Royal Grande, LLC., a foreign limited liability corporation.

According to the lawsuit, on or about June 5, the boy was at the Royal Grande Apartments at 1989 Americana Blvd. in Orlando, at about 3 p.m. when he heard a woman screaming that her daughter was drowning. The boy jumped into the pool and rescued the girl, according to his father.

But as a result of swimming in the pool, the boy was invaded by a deadly amoeba, known as Naegleria Fowerli, the lawsuit stated.

The amoeba entered his body from the pool water, through his nasal cavity, and embedded into his brain, causing him to die three days later, the family said.

The complaint alleges that the apartment complex was negligent of properly maintaining its pool.

Watersports complex sued

Meanwhile, the family of another boy who died from an infection caused by an amoeba is suing the Orlando Watersports Complex.

Richard Almeida, 10, died earlier this month days after he went to the Orlando Watersports Complex to ski.

“They absolutely are responsible,” family attorney Julio Martinez said. “I mean, they didn’t close the place, they didn’t treat the water, they didn’t post any warnings and they didn’t even advise people of precautions they should take.”

Martinez said the complex knew that the deadly parasite thrived in warm waters and did nothing to warn its customers.

Complex officials said they have done nothing wrong and said the boy swam in other lakes as well.

They said it is impossible that he contracted the infection at the Orlando Watersports Complex.

“It is a little sad that just fingers are being pointed at other people,” Orlando Watersports Complex representative Rene Hofmann said. “We do have test results from our lake which clearly states that we have really clean drinking, bathing and swimming water quality.”

Boy dies from amoebic encephalitis

In August, Will Sellars, 11, died after contracting amoebic encephalitis, or acute swelling of the brain.

Health officials said that there is an increased risk of infection by the organism in all freshwater areas throughout Florida, especially during summer months when the water temperature exceeds 80 degrees.

Water sports or activities such as wakeboarding, water skiing, swimming or diving puts people at a greater risk, officials said.