South Florida Personal Injury Lawyers

On July 5, 2004, plaintiff Elida Lopez Oliver, an unemployed 44-year-old, was riding a bicycle in Port Isabel, approaching a swing bridge leading to Long Island, a private community where she lived. The bridge was owned and operated by the Long Island Owners Association Inc., and is one of the only privately operated swing bridges in the country. As she traversed the bridge, the mechanical warning arm–which blocks traffic when the bridge is drawn open–descended and struck her on the head, knocking her to the ground.Oliver sued the owners association for premises liability, alleging that the bridge operator failed to make sure Oliver was far enough from the bridge before he lowered the arm; that the warning lights on the arm were too small to be seen in daylight; that the inadequate lighting and lack of an audible warning violated the Texas Manual on Uniform Traffic Control Devices; that the arm took only about six seconds to descend, not giving her a chance to avoid it; that other motorists had experienced similar incidents; and that a motorcyclist in February 2007 had experienced a nearly identical incident.

The owners association denied liability, contending that Oliver was inattentive to the signals; that she had crossed the bridge numerous times in the past and was familiar with the warning system; and that neither the state manual on control devices nor any other statute requires an audible warning system.

Oliver was allegedly knocked unconscious, sustaining traumatic brain injuries and a herniated cervical disc. MRI images showed trauma to her temporal lobes, the corpus callosum and the corpus callosum fiber tracks, as well as dilated perivascular spaces. Her herniated disc was surgically repaired.

Oliver’s past medical bills were set at about $83,000.

Her treating physicians testified that she had permanent and severe cognitive impairment with the function of a child. They claimed that she would require either round-the-clock, live-in care or inpatient treatment for the rest of her life, costing between $3.9 million and $5.9 million.

Oliver asked the jury for a total of $9.6 million for past and future pain and suffering and medical expenses.

The owners association disputed that Oliver’s neurological problems or behavioral changes were even causally related to the accident, contending that her physicians did not rule out other potential causes, such as Alzheimer’s disease and multiple sclerosis. Defense counsel also claimed that Oliver’s brain damage could have happened in a subsequent accident. The jury found for the defendant. The plaintiff intends to appeal. 

A Kennebec County jury has acquitted a woman charged with operating under the influence (OUI) after determining that she broke the law to avoid sexual assault.

“The law says you can break the OUI law if it’s necessary to avoid imminent physical harm,” said defense attorney Sherry Tash.

The Incident

Anna L. Rocchi, 43, admitted she was drunk driving on July 8, 2007. She also admitted to passing out, after which point she reported that a man drove her to Windsor Fairgrounds and began sexually assaulting her.

“She woke up and found him on her,” Tash said.

Rocchi said she kicked and punched the man, managing to push him out of the vehicle, and then drove to a nearby home for assistance.

Police Called, Charges Filed

Windsor residents called the police, and one resident took Rocchi’s keys. When the police arrived, an officer noted that she was “highly intoxicated” and she was taken to the local police department.

OUI charges were filed against Rocchi, who had three prior OUI convictions. A fourth conviction would have landed her in jail for six months to five years.

‘Harm’ Defense

Her defense was based on the concept of “competing harms,” which essentially requires that the harm Rocchi was fleeing—namely sexual assault—be greater than the potential harm caused by driving while intoxicated.

The jury cleared Rocchi of the felony charges on Friday.

The Federal Aviation Administration is investigating after two planes came within 4,000 feet of each other on the runway at Miami International Airport. FAA spokeswoman Kathleen Bergen said American Eagle flight 4957 was told by air traffic control to taxi to the runway via the parallel taxiway Tuesday.Bergen said that two minutes later, the controller saw the American Eagle plane crossing a short taxiway onto the main runway about 4,000 feet from a United Parcel Service plane. She said UPS flight 382 was at the end of that runway, beginning the takeoff roll.

The controller immediately canceled the takeoff clearance for the UPS aircraft, and the American Eagle flight got on the runway and took off.

A spokeswoman for American Airlines, the sister company of American Eagle, said the company is also investigating.

On March 2, 2005, plaintiff Kathy McMurray, 52, a part-time Costco employee, was bitten on the left hand by an Appaloosa horse named Roddy that was owned by Daryl Bryan. The horse bit off her left thumb.The horse was being kept in a rental pasture in Sacramento owned by Richard McMurray, Kathy McMurray’s father-in-law, and rented by Bryan. The three-rail wooden fence enclosing the pasture was 4 feet tall. The horse had been kept in the pasture for about four years and nine months prior to the incident. McMurray’s family was renting the house and grounds next to the rental pasture.

McMurray sued Bryan and her father-in-law, claiming that they were negligent for failing to protect her from the horse.

McMurray claimed that she had been standing next to the fence talking to Bryan, who was tending to his animals. She claimed she had been petting Roddy on the nose for several minutes when she noticed he seemed to be getting agitated, prancing around and rearing up.

McMurray claimed that she moved back “a few feet” away from the fence when she noticed Roddy’s agitation.

McMurray claimed that Roddy suddenly charged at the fence and knocked the top rail off one end of the post. She claimed Roddy then reached out and bit her left thumb. McMurray claimed Roddy then raised his head, lifting her off the ground by her thumb. McMurray’s head then hit an overhanging tree branch and her thumb separated from her hand and she fell to the ground.

Bryan retrieved McMurray’s thumb from the horse’s mouth and placed it on ice.

McMurray claimed that the horse had exhibited dangerous behavior in the past.

McMurray also claimed that the property housing the horse was dangerous, because the fence was too short to properly contain the animal, and because it was improperly constructed with the rails on the outside of the posts, allowing the horse to reach outside of the fence and bite her.

McMurray also alleged a trespass theory on the basis that the horse was able to reach outside the confines of his pasture and reach her while she was standing on her side of the fence.

Bryan claimed that the horse had never exhibited dangerous behavior in the past.

Defense counsel contended that the fence was appropriate and within the standards of the community.

Defense counsel also contended that the plaintiff had voluntarily placed herself in a position to be injured by the horse, regardless of the position of the top railing.

McMurray suffered a total traumatic amputation of her left, non-dominant thumb, with stripping of forearm tendons. She also claimed a strain to her left shoulder and rotator cuff, as well as injuries to her front teeth requiring future orthodontic treatment.

McMurray and her iced thumb were transported to the UC Davis hospital immediately after the incident. She was then transferred to California Pacific Medical Center in San Francisco for replantation microsurgery.

Dr. Rudolph Buntic performed replantation surgery on her thumb. It was only marginally successful, due to the extent of tissue damage to the severed thumb. The thumb developed dry gangrene distal to the base of the first knuckle. The replanted thumb died over a period of a few months, resulting in 80% loss of the thumb.

A great toe-to-thumb transplant was recommended, but rejected by McMurray due to questionable benefits, the potential risk of failure and a resultant foot disfigurement.

McMurray will need a new prosthetic thumb every two years for the next 30 years, which will cost about $60,000.

McMurray claimed $127,160.11 in past medical expenses, reduced post-verdict by amount of contractual write-offs to $53,400. She claimed $65,600 in future medical expenses and $5,512 in lost wages. She sought $400,000 in damages for her past pain and suffering, and a “reasonable amount” for her future pain and suffering.

Defense counsel suggested total damages of $288,000, before reduction of comparative negligence.

The jury found that McMurray was 75 percent negligent, her father-in-law was 15 percent negligent and Bryan was 10 percent negligent. She was awarded $398,472.61, which was reduced to $324,712.50 for contractual write-offs. This amount was then reduced to $81,178.13 for the plaintiff’s comparative negligence.

After trial, several jurors said they were impressed by the fact that McMurray was aware the horse was agitated. They said they felt it was incumbent upon the plaintiff to move to a safe location, not just a few feet away, where the horse could still reach her.

Divers searched a partially frozen pond in a quarry Monday for the body of a backhoe operator whose machine fell through the ice.The 20- to 25-ton piece of equipment fell into the pond at the Park View Sand and Gravel Pit and settled at a sharp angle with the cab submerged, according to the Racine County Sheriff’s Department.

Firefighters and rescue workers arrived at the quarry a minute after the emergency call came in at 10:18 a.m., Sgt. Robert Kazmarcik said. Crews worked for at least three hours to right the machine and reach the cab, believing the man could have survived if the cab was watertight.

But when workers finally tipped over the backhoe, the man was not inside it, Kazmarcik said.

The quarry is dotted with ponds and low-lying areas that filled with rain over the past few weeks and froze over, Kazmarcik said.

No other information about the driver was available.

An Indianapolis woman who was allegedly intoxicated when she caused a fatal traffic accident nearly two years ago is being sued by her purported victim’s estate.Samera J. Copas, 42, also faces criminal charges over the May 2006 crash that claimed the life of Charles “C.J.” McAlhaney Jr., 23, Lewisville.

Copas is the target of a wrongful death suit recently filed by Robin Chaplin, a representative of McAlhaney’s estate. A trial date has not been set in Henry Circuit Court. Henry County police said Copas, driving a sport-utility vehicle, ran a stop sign at Ind. 103 and Henry County Road 500-S, colliding with McAlhaney’s SUV.

McAlhaney, a former New Castle resident, was pronounced dead at the scene.

Copas, who was also badly injured in the crash, is charged in Henry Superior Court 1 with causing death when driving under the influence of both alcohol and a controlled substance. Each allegation is a Class B felony carrying a standard 10-year prison term.

The Indianapolis woman is also charged with reckless homicide, a Class C felony with a standard four-year sentence.

She was released from the Henry County jail after posting a $60,000 bond.

The criminal case against Copas is on hold while her attorneys appeal a decision by Judge Michael Peyton that rejected a bid to have evidence against their client ruled inadmissible at trial.

Her defense team includes Indianapolis attorney James H. Voyles, whose high-profile clients have included boxer Mike Tyson and former Indiana Pacer Stephen Jackson.

A circuit judge has upheld a $196.2 million punitive damages award against E.I. DuPont De Nemours & Co. (DD) in a class-action pollution case.Harrison County Circuit Court Chief Judge

Thomas A. Bedell also ordered the Wilmington, Delaware-based chemical giant on Monday to set aside nearly $130 million for a medical monitoring plan. Bedell said the plan would be operated on a pay-as-you-go basis but DuPont must put the total amount in an escrow account.The jury in the case required DuPont to provide medical monitoring for 40 years to people who were exposed to arsenic, cadmium and lead from a former zinc-smelting plant in the small community of Spelter.

Bedell appointed attorney

Edgar C. Gentle III as administrator of the medical monitoring plan. Gentle is a managing partner in Gentle, Pickens and Turner, a law firm in Birmingham, Ala., which is the escrow agent for a breast implant global settlement, according to the firm’s Web site.Ten residents of Spelter sued DuPont in 2004, claiming the company deliberately misled them about health risks from the pollution and delayed a site cleanup for as long as possible to maximize profits.

The lawsuit was tried last year in four phases involving property damage claims, long-term health screenings and corporate accountability. Jurors awarded the punitive damages in October in the trial’s fourth phase.

In the other phases, the jury required medical monitoring and found DuPont liable for and negligent in creating the waste site. Jurors also found DuPont had created a public and private nuisance and that its pollution trespassed onto private property.

On Monday, Bedell approved $127 million in attorneys fees and nearly $8 million in litigation costs, which will be taken from the overall award of $381 million. He rejected DuPont’s motion for a new trial.

A judge ordered the medical insurer Health Net Inc. to pay more than $9 million in damages to a woman after cutting off her coverage while she was being treated for breast cancer.

Treatment Stopped

Patsy Bates, a 52-year-old mother of two, had started chemotherapy for her cancer when her doctors refused to provide further treatment because of unpaid medical bills. Health Net had canceled her policy and left her nearly $130,000 in unpaid bills.

“I was devastated. I didn’t know what was going to happen. It’s boggling that someone can do that to you,” she said.

Damages Awarded

A state-funded program helped Bates continue her treatment. Last week, arbitration judge Sam Cianchetti awarded Bates compensation for her unpaid medical costs as well as an additional $750,000 for her emotional distress and $8.4 million in punitive damages.

“It’s hard to imagine a situation more trying than the one Bates had to endure. The rug was pulled out from underneath, and that occurred at a time when she is diagnosed with breast cancer, one of the leading causes of death for women,” the judge wrote.

Health Net Faces Criminal Charges

The award came just a day after a lawsuit against Health Net by the Los Angeles city attorney for illegally terminating over 1,500 patient policies. City Attorney Ricky Delgadillo said the company gave bonuses as incentives to administrators for canceling policies.

“It’s hard to imagine a police more reprehensible than tying bonuses to encourage the recision of health insurance that helps keep the public well and alive,” Cianchetti said in his decision.

American Airlines passenger died after a flight attendant told her he couldn’t give her any oxygen and then tried to help her with faulty equipment, including an empty oxygen tank, a relative said.

The airline confirmed the flight death and said medical professionals had tried to save the passenger, Carine Desir, who was returning home to New York from Haiti.

Desir, who had heart disease, died of natural causes, medical examiner’s office spokeswoman Ellen Borakove said Sunday.

Desir had complained of not feeling well and being very thirsty on the Friday flight from Port-au-Prince after she ate a meal, according to Antonio Oliver, a cousin who was traveling with her and her brother Joel Desir. A flight attendant gave her water, he said.

A few minutes later, Desir said she was having trouble breathing and asked for oxygen, but a flight attendant twice refused her request, Oliver said Sunday in a telephone interview.

After the flight attendant refused to administer oxygen to Desir, she became distressed, pleading, “Don’t let me die,” Oliver recalled.

Other passengers aboard Flight 896 became agitated over the situation, he said, and the flight attendant, apparently after phone consultation with the cockpit, tried to administer oxygen from a portable tank and mask, but the tank was empty.

Two doctors and two nurses were aboard and tried to administer oxygen from a second tank, which also was empty, Oliver said.

Desir was put on the floor, and a nurse tried CPR, to no avail, Oliver said. A “box,” possibly a defibrillator, also was applied but didn’t function effectively, he said.

“I cannot believe what is happening on the plane,” he said, sobbing. “She cannot get up, and nothing on the plane works.”

Oliver said he then asked for the plane to “land right away so I can get her to a hospital,” and the pilot agreed to divert to Miami, 45 minutes away. But during that time, Desir died, Oliver said.

“Her last words were, ‘I cannot breathe,”‘ he said.

Desir, 44, was pronounced dead by one of the doctors, Joel Shulkin, and the flight continued to Kennedy International Airport without stopping in Miami, with the woman’s body moved to the floor of the first-class section and covered with a blanket, Oliver said.

American Airlines spokeswoman Sonja Whitemon wouldn’t comment Sunday on Oliver’s claims of faulty medical equipment. Shulkin, through his attorney, Justin Nadeau, declined to comment on the incident out of respect for Desir’s family.

American Airlines, a unit of AMR Corp. and based in Fort Worth, Texas, is the largest domestic airline.

On Jan. 25, 2002, plaintiff’s decedent Timothy Orefice, 17, a senior in high school, was pulling out of a Saab car dealership, where he worked part-time, onto Route 1 in Guilford when he was broadsided on the passenger side of his vehicle by a tow truck driven by Jason Secondino. Orefice died instantly.Secondino was driving in the course and scope of his employment with Guilford Texaco Inc. GELCO, a General Electric subsidiary leasing company, was owner and lessor of the tow truck. (The crash occurred before lessor liability was eliminated by statute.)

Pamela Orefice, on behalf of her son, sued Secondino, Guilford Texaco and GELCO for vehicular negligence resulting in the death of her son. The trial was bifurcated at the plaintiff’s request.

Plaintiffs’ counsel argued that the Secondino was speeding and inattentive, and his employer was negligent and reckless in its hiring, training and supervision practices.

The plaintiffs’ accident reconstruction expert, testified that Secondino’s speed at the time of the accident was seven to 10 miles over the posted 45-mph speed limit.

The plaintiffs’ truck safety expert, opined that the standard of care for the operator of a commercial motor vehicle required the operator to drive substantially below the posted speed limit at the accident location, because it was immediately beyond an exit ramp from Interstate 95. As a basis for his testimony, the expert drove at the crash location in January 2007 (virtually the same date and time of the crash) in a replica vehicle that was the same year, make and model as the defendant’s vehicle.

Through a series of photographs, the expert showed the shift lever of the truck in each of the five forward speed positions. Comparison of the photos showed that the defendants’ truck was in fifth gear at the time that the police photo was taken, prompting the expert to testify that this corresponded to excessive speed (over 50 mph) and represented a conscious choice by the driver to operate at a high rate of speed.

The expert added that Guilford Texaco failed to check Secondino’s driving background, as well as his criminal and psychiatric background, and that the employer breached the standard of care that governed the hiring, training and supervision of commercial motor vehicle operators, based both on industry standards and standards set forth by the Federal Motor Carrier Safety Administration regulations.

If Guilford Texaco had checked Secondino’s criminal history, it would have found a two-year-old burglary and larceny conviction and a pending case wherein Secondino used a motor vehicle to try to escape from a police officer after a shoplifting incident, argued counsel. The truck safety expert said that a reasonable employer would not have hired under these circumstances.

Counsel introduced evidence about Secondino’s drug treatment program that showed that he missed appointments, refused random drug screens and had questionable urine samples. Dorrity said that Guilford Texaco should have watched Secondino more closely and should have sought information from the treatment program, and that these were red flags. Counsel asserted that Secondino would never have passed the required DOT medical exam, which the employer never required him to take.

Further relying upon photographic evidence, plaintiffs’ counsel argued that the tow truck’s lights were off at the time of the accident, thus explaining why Timothy would pull out in front of Secondino.

The defendants denied the allegations.

Counsel for Secondino and Texaco asserted that Secondino had the right of way and that the decedent pulled out in front of the tow-truck driver. Defense counsel relied upon an eyewitness, who saw the tow truck moments before the crash, who testified that the truck did not appear to be speeding.

The defense accident reconstruction expert said that Secondino was traveling 1mph to 9 mph over the speed limit.

The defendants challenged the causal connection between hiring practices and the crash, particularly since Secondino did not have any prior motor vehicle history at the time that he was hired. During his employment, Secondino had only one minor incident (a dent in a parking lot).

At the end of the liability phase of the trial, the jury found that Secondino was 20 percent negligent ; Guilford Texaco was 70 percent negligent ; and that Timothy was 10 percent comparatively negligent. The jury also found that Secondino and Guilford Texaco were both reckless; that Secondino was liable for statutory double damages under Connecticut General Statutes 14-295, and that Guilford Texaco was liable for common law punitive damages (limited in Connecticut to litigation costs).

The case then proceeded to damages.

Plaintiffs’ counsel argued that Timothy had aspirations of becoming an airline pilot like his father. He was an honor roll student and star baseball player who had been accepted to four colleges. Counsel presented a series of still photos and home video taken throughout Timothy’s life, as well as material such as his college application essay. The plaintiffs’ economist testified to a future lost earning capacity of $2.9 million, which was based on earnings projections by Kit Darby, an expert on the earning capacity of commercial airline pilots.

The parties settled for $18.3 million. On behalf of all defendants, Harleysville Insurance paid $6 million, and on behalf of GELCO, Electric Insurance paid an additional $12.3 million.