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Southwest Florida Injury Lawyer Blog

Florida Court Discusses Juror Bias in a Car Accident Case

Published on: June 4, 2021 | Lusk, Drasites & Tolisano, P.A.

One of the core tenets of the American legal system is the right to have issues resolved by an impartial jury. As such, prior to a trial, attorneys for all parties will engage in a process through which they attempt to determine if any jurors harbor implicit or explicit biases that would prevent them from resolving factual issues impartially. If a court denies a party’s request to strike a biased juror, it may constitute grounds for having a verdict overturned, as demonstrated in a recent Florida opinion issued in a car accident case. If you suffered harm in a car crash, you have the right to seek damages, and you should meet with a dedicated Florida car accident lawyer regarding what compensation you may be able to recover.

Procedural History of the Case

It is reported that the plaintiff was driving on a Florida highway when she was struck by the defendant. She suffered injuries to her neck and back in the collision, which required extensive treatment. As such, she filed a negligence lawsuit against the defendant. The case proceeded to trial, and during the process of jury selection, the plaintiff’s attorney moved to exclude a juror because he stated he sympathized with defendants in car crash cases, believed defendants are treated unfairly, and had issues with insurance companies. Her motion was denied, and she later used a peremptory challenge to strike him but was ultimately forced to accept him as an objectionable juror. The jury returned a verdict for the defendant, and the plaintiff appealed.

Evaluating Juror Bias

In assessing a juror’s competency, a court will evaluate whether the juror can set aside any prejudice or bias and issue a verdict solely on the instructions on the law provided by the court and the evidence presented by the parties. Although courts have significant leeway in determining a juror’s competency, if any reasonable doubt exists as to whether a juror’s state of mind is impartial, that juror must be excused for cause. Continue reading ›

Court Dismisses Florida Slip and Fall Case Due to the Plaintiff’s Lack of Evidence

Published on: June 4, 2021 | Lusk, Drasites & Tolisano, P.A.

People who suffer harm in slip and fall accidents that occur in grocery stores have the right to seek damages from the party that owns the store. Generally, though, proof that a dangerous condition caused a person to fall, in and of itself, is insufficient to warrant the imposition of liability. Instead, a plaintiff in a premises liability case must demonstrate that the defendant knew or should have known that the condition existed prior to the fall. The evidence a plaintiff must produce in a slip and fall case was the topic of an opinion recently issued by a Florida court, in a case in which it ultimately dismissed the plaintiff’s claims. If you were hurt in a fall, you could be owed compensation, and it is smart to seek the counsel of a practiced Florida premises liability lawyer to evaluate what claims you might be able to pursue.

The Plaintiff’s Fall

Allegedly, the plaintiff was shopping in the defendant’s grocery store when she slipped and fell on a transient substance. During her deposition, she testified that she did not see the substance before she fell and did not know how the liquid got on the floor or how long it had been there. She also did not know whether any store employee knew of the substance prior to her fall. She did not know where the substance came from but speculated it might be from a grape.

It is reported that the defendant moved to have the plaintiff’s claims dismissed via summary judgment on the grounds that she failed to show that the defendant knew or reasonably should have known of the presence of the liquid prior to her fall. After considering the evidence produced by both parties, the court granted the motion. Continue reading ›

Florida Court Explains Admissibility of Expert Opinions

Published on: May 22, 2021 | Lusk, Drasites & Tolisano, P.A.

Motorcycle accidents typically cause catastrophic injuries, in part due to the lack of external protection. While many motorcyclists wear helmets, if a helmet is defective, it may not provide any safety benefits. Generally, a party must prove that a helmet is unreasonably dangerous due to a design defect via expert testimony. Expert opinions must be formed via sufficiently reliable methods, though, otherwise, they may be excluded. In a case arising out of a motorcycle accident, a Florida court recently discussed the factors weighed in determining if expert testimony should be admitted. If you were injured in a motorcycle crash, it is advisable to meet with an assertive Florida motorcycle accident lawyer to evaluate what claims you may be able to pursue.

The Plaintiff’s Harm

Allegedly, the plaintiff sustained critical injuries in a motorcycle accident. The plaintiff was wearing a helmet manufactured by the defendant at the time of the crash and alleged that the straps failed and became loose after the initial impact. Thus, she filed a product liability lawsuit against the defendant in the federal district court, in which she asserted that the helmet contained a design or manufacturing defect that caused it to fly off of her head without warning. Prior to trial, the parties filed cross-motions to exclude each other’s expert reports.

Rules Governing Expert Testimony

The Federal Rules of Evidence govern the admissibility of expert testimony. Specifically, Rule 702 states that the proponent of such testimony must establish that: the expert has the qualifications needed to competently testify regarding the matters he or she intends to address; the methodology through which the expert arrived at his or her conclusion is sufficiently reliable as mandated by Daubert; and the testimony offered helps the fact finder to understand or determine a fact in issue, through the application of technical, scientific, or specialized expertise. Continue reading ›

Court Discusses Warrantless Blood Tests in Florida DUI Cases

Published on: May 22, 2021 | Lusk, Drasites & Tolisano, P.A.

Generally, in most DUI cases, the State will rely on the results of chemical testing to establish a defendant’s guilt. Although Florida’s implied consent law dictates that all motorists suspected of DUI consent to submit to breath or urine tests, absent exigent circumstances, the police must obtain warrants to conduct blood tests. If an officer compels a person to submit to a blood test without a warrant, the test might constitute an unreasonable search, rendering the results of the test inadmissible. In a recent Florida opinion arising out of a DUI case, the court discussed the factors weighed in determining if the police unlawfully conducted a blood test. If you are charged with a DUI offense, it is wise to speak to a knowledgeable Florida DUI defense lawyer regarding your rights.

The Defendant’s Arrest

It is reported that the defendant was involved in a motor vehicle collision. When police arrived at the scene of the accident, they suspected that the defendant was under the influence of alcohol and asked her to submit to field sobriety testing. She did poorly on the tests she completed and stated she had a knee injury. When asked if she consumed alcohol, she reported drinking rum and coke earlier in the day.

Allegedly, the police transported the defendant to a hospital and asked her to provide a blood sample. She refused the request on two occasions. After the investigating officer determined that a passenger in the other vehicle involved in the crash died from his injuries, he directed a nurse to conduct an involuntary blood draw, which showed that three hours after the accident, the defendant’s BAC was 0.13%. The defendant was charged with DUI manslaughter, and prior to her trial, moved to suppress the results of the blood test. The court denied her motion, and the jury issued a guilty verdict, after which she appealed. Continue reading ›

Court Discusses Spoliation of Evidence in a Florida Premises Liability Case

Published on: May 22, 2021 | Lusk, Drasites & Tolisano, P.A.

Slip and fall accidents frequently happen in retail stores, and in most instances, there is little, if any, evidence of the condition that caused the fall. If the injured party reports the incident to people working at the store, though, the manager will often take pictures of the area where the fall occurred. Stores might not maintain such photos, however, and if they do not, it may result in an adverse inference against them at trial due to the spoliation of evidence. In a recent ruling, a Florida court discussed the proof needed to demonstrate a defendant’s actions warrant an adverse inference in a slip and fall case. If you fell in a retail store, you could be owed damages, and you should confer with a skillful Florida premises liability lawyer regarding your potential claims.

The Plaintiff’s Fall

It is alleged that the plaintiff fell while shopping at a store owned by the defendant. The day of the fall, the defendant’s store manager called the defendant’s insurance company to report a claim, and during the conversation, stated that he took photographs of the area where the fall reportedly happened. Shortly after the accident, the plaintiff’s attorney sent two letters to the defendant asking it to preserve any surveillance videos that depicted the fall.

Reportedly, the plaintiff filed a premises liability lawsuit against the defendant, asserting negligence claims. In response to the plaintiff’s discovery requests, the defendant stated it did not have any photographs of the fall. The plaintiff deposed the store manager, who stated that he could not recall if he took pictures of the area. Pursuant to the plaintiff’s motion, the court ordered the defendant to produce the photographs. The plaintiff then filed a motion for sanctions, requesting an adverse inference against the defendant for the failure to preserve the photographs, pursuant to the Federal Rules of Civil Procedure. Continue reading ›

Florida Court Discusses Substantial Changes in Circumstances in Custody Cases

Published on: May 22, 2021 | Lusk, Drasites & Tolisano, P.A.

In divorce matters involving children, the courts will generally issue orders establishing the parties’ timesharing and parental responsibility rights. In doing so, the courts’ sole concern is what is in the best interest of the divorcing couples’ children. As such, custody orders are not easily disturbed, and a parent typically must show a significant change in circumstances to obtain a modification. Recently, a Florida court issued an order discussing what constitutes a change that is substantial enough to warrant an alteration of custody rights, in a matter in which the father appealed the denial of his petition for modification. If you need assistance with a custody matter, it is smart to speak to a capable Florida child custody lawyer to evaluate your options.

History of the Case

Allegedly, the husband had two children together, born in 2010 and 2012. They divorced in 2015, and the final judgment of dissolution granted them shared parental responsibility and equal timesharing. Shortly after the divorce, the wife began a relationship with another man. In 2018, the husband filed a petition for modification of the final judgment, seeking a change in timesharing and parental responsibility due to the wife’s harassment of the husband, domestic violence incidents between the wife and the boyfriend, and the wife’s interference with the husband’s custody rights.

Reportedly, the magistrate determined the husband demonstrated a significant change in circumstances, noting that the children were temporarily removed from the wife’s care in 2017 and that there was a significant history of domestic violence between the wife and the boyfriend. Thus, he recommended that the husband be named as the ultimate decision-maker on issues pertaining to the children’s health and education and to amend the timesharing to grant wife visitation every other weekend. The wife filed exceptions to the magistrate’s report and recommendations, which the circuit court granted. The husband then appealed. Continue reading ›

Court Explains Discrimination in Violation of the Florida Civil Rights Act

Published on: April 30, 2021 | Lusk, Drasites & Tolisano, P.A.

Many people with disabilities are able to work despite the challenges presented by their illnesses. Unfortunately, however, some employers treat employees with disabilities unfairly and ultimately terminate them because of their conditions or requests for accommodations. Firing a person because of a disability is unlawful, though, and employers that engage in such practices may be held liable for discrimination. Recently, a Florida court set forth an opinion explaining what an employee must prove to establish workplace discrimination in a case in which the employee alleged he was terminated due to a disability. If you believe you were fired for an unlawful reason, you may be able to pursue a discrimination claim, and it is smart to meet with a knowledgeable Florida workplace discrimination lawyer as soon as possible.

The Plaintiff’s Claims

It is alleged that the plaintiff worked for the defendant as a supervisor in a call center. He suffered a neck injury and was prescribed opioids. In 2016, he asked for FMLA leave so that he could participate in a detoxification program to reduce the dosage of his medicines. His leave was granted, and he returned to work without any difficulties. On several occasions after that, he was observed acting unresponsive and groggy, and he fell asleep at his desk multiple times.

Reportedly, the defendant was advised his behavior was unacceptable. He went on FMLA leave again to detoxify and advised that he was hoping to find treatment for his narcolepsy and once again be a valuable team member. He returned to work but was found sleeping again and was subsequently terminated. He then filed a lawsuit against the defendant, alleging disability discrimination in violation of the Florida Civil Rights Act (FCRA). Following discovery, the defendant moved for summary judgment. Continue reading ›

Florida Court Denies Motion to Dismiss Premises Liability Claim

Published on: April 27, 2021 | Lusk, Drasites & Tolisano, P.A.

In premises liability cases, the defendant will often argue that the plaintiff sustained injuries outside of the subject property and will often seek discovery to that effect. If a plaintiff fails to comply with discovery requests and provide the defendant with the information sought, it may result in adverse consequences. It is unlikely to constitute grounds for dismissal based on fraudulent behavior, however, as demonstrated in a recent Florida ruling. If you were hurt by a dangerous condition you encountered on someone else’s property, you could be owed damages and should speak to a trusted Florida premises liability lawyer regarding your potential claims.

The Plaintiff’s Harm

It is reported that the plaintiff visited the defendant’s restaurant in September 2015. While she was there, she went to the bathroom, and as she was washing her hands, the sink fell from the wall and struck her in her arm. She was unable to finish her meal due to the pain in her arm and went to the emergency room, where she was diagnosed with a contusion. She then filed a lawsuit against the defendant, alleging its negligence led to her injuries.

Allegedly, the defendant engaged in the discovery, including deposing the plaintiff and requesting documents, but believed that she was not fully disclosing other accidents and her treatment for prior injuries. The defendant then moved to have the plaintiff’s claims dismissed for fraud, or alternatively for sanctions. Continue reading ›

Florida Court Discusses the Disclosure of Experts in Personal Injury Cases

Published on: April 23, 2021 | Lusk, Drasites & Tolisano, P.A.

Many car crashes cause significant injuries that require long-term care and assistance and result in significant losses of income. Thus, victims of collisions will often seek damages from the parties ultimately responsible for their harm. Liability and damages are frequently disputed in lawsuits arising out of car accidents, though, and it is not uncommon for parties to rely on experts to support their opinions. Experts must be disclosed to the opposing party, though, and if they are not, it may impact whether they can testify, as discussed in a recent Florida opinion. If you were injured in a collision brought about by someone else’s negligence, you might be able to recover damages, and you should meet with a knowledgeable Florida car accident lawyer as soon as possible.

The History of the Case

Reportedly, the plaintiff suffered harm in a collision caused by the defendants. The precise circumstances surrounding the accident and the damages sustained were not disclosed. It is clear, however, that the plaintiff sustained substantial injuries that resulted in the need for at-home care and caused a loss of earning capacity. Thus, she filed a lawsuit against the defendant in federal court. Prior to trial, the defendant retained experts to opine on the plaintiff’s life care costs and her loss of future earning capacity. The defendant failed to provide the plaintiff with experts by the disclosure deadline, though. As such, the plaintiff moved to preclude the defendant’s experts from testifying.

Disclosure of Experts in Personal Injury Cases

Under the federal rules of civil procedure, a party that fails to disclose an expert in a timely manner will generally be precluded from using the expert’s information or allowing the expert to testify at trial, unless the failure to promptly disclose the expert report was either harmless or substantially justified. The failure to disclose a report will be deemed harmless when it does not cause the party who is owed the report to suffer any prejudice. The court explained that prejudice occurs when an untimely disclosure prevents a party from thoroughly preparing its case via depositions of expert witnesses. Continue reading ›

Florida Court Dismisses Slip and Fall Case Due to Lack of Notice of Spill

Published on: April 17, 2021 | Lusk, Drasites & Tolisano, P.A.

Spills are common in warehouse stores that sell a variety of goods, including food. Unfortunately, in many instances, spills lead to slip and fall accidents. In some cases, a person hurt in a fall may be able to recover damages from the store owner for the harm suffered. Generally, however, a plaintiff must prove that a defendant property owner had actual or constructive notice of a dangerous condition to demonstrate liability. A plaintiff’s burden of proof in a slip and fall case was the topic of a recent Florida opinion, in a matter in which the defendant’s motion to dismiss the plaintiff’s claims was granted. If you were hurt in a slip and fall accident, it is in your best interest to speak to a dedicated Florida premises liability lawyer to determine your rights.

The Plaintiff’s Harm

It is reported that the plaintiff was shopping in the defendant’s store when she slipped and fell on water that was near a bay of freezers. She admitted that she did not see the water prior to the fall and did not know how long it had been on the floor. She subsequently filed a lawsuit against the defendant, alleging it was negligent for allowing the dangerous condition that led to her fall to exist. After discovery was completed, the defendant filed a motion for summary judgment, arguing the plaintiff could not prove that it knew or should have known that the water was on the floor prior to her fall. Upon review, the court agreed and dismissed the plaintiff’s claims.

Proving Fault for a Slip and Fall Accident

Under Florida law, a plaintiff asserting a negligence claim must prove that the defendant had a legal duty to protect the plaintiff from certain harm, the defendant breached the duty, and the plaintiff suffered injuries that were actually and proximately caused by the breach. Further, a plaintiff alleging negligence based on a transitory substance in a business must also demonstrate that the defendant had constructive or actual knowledge of the dangerous condition and should have taken measures to remedy it. Continue reading ›