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Southwest Florida Injury Lawyer Blog

Florida Court Discusses Medical Malpractice on Cruise Ships

Published on: April 9, 2021 | Lusk, Drasites & Tolisano, P.A.

The majority of cruise ships employ doctors to provide medical care to passengers who become ill while on board. Cruise ship doctors, like other medical professionals, can be held accountable if they commit malpractice, but they are not always held to the same standards as other physicians. In a recent Florida opinion, a court discussed the burden of proof imposed on a plaintiff alleging harm caused by a cruise ship doctor’s malpractice. If you suffered harm due to the carelessness of a health care provider, you could be owed damages, and it is advisable to speak to a skillful Florida personal injury lawyer about your rights.

The Plaintiff’s Harm

It is reported that the plaintiff was aboard a cruise ship owned by the defendant when he became ill. He visited the ship’s doctor, who determined the plaintiff suffered a heart attack. He was admitted to the ship’s intensive care unit, but it was determined that it was better for him to remain on board rather than seek treatment at a port. The doctor contemplated treating the plaintiff with medication but determined that the risks outweighed the benefits.

Allegedly, when they returned to Florida two days later, the plaintiff was taken to the hospital, where he underwent heart surgery. He eventually had a pacemaker installed and had permanent medical issues due to the damage to his heart. The plaintiff sued the defendant, alleging its negligent care caused his harm. A jury found in favor of the plaintiff, and both parties appealed. The defendant argued, in part, that the trial court incorrectly instructed the jury as to the standard of care. Continue reading ›

Florida Court Discusses Admissibility of Expert Testimony in Slip and Fall Cases

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

Many people board cruises in Florida with the expectation that they will enjoy relaxing vacations. Unfortunately, some cruise vacations are ruined by slip and fall accidents. Generally, people injured on cruise ships can pursue damages from the company that owns and operates the vessels, but they typically must prove negligence to recover damages. In some cases, a plaintiff will retain an expert to offer testimony supporting the assertion that the defendant breached the standard of care. As discussed in a recent Florida ruling, though, the expert’s opinion must meet certain standards; otherwise, it will be deemed inadmissible. If you were injured in an accident on a cruise ship, you might be able to recover compensation, and it is prudent to meet with a Florida premises liability attorney to assess your possible claims.

The Plaintiff’s Injury and Claims

It is reported that the plaintiff was a passenger on a cruise ship owned by the defendant corporation. He was walking on one of the ship’s decks when he saw a chair in the middle of the walkway. He moved to walk around and slipped and fell, sustaining serious injuries. After his fall, he noticed liquid and food on the floor. He then filed a lawsuit against the defendant, alleging a count of maritime negligence. He hired an expert as well to provide an opinion as to why he fell on a slimy liquid substance. The defendant moved to preclude the plaintiff’s expert from testifying, arguing he did not employ any reliable methodologies.

Admissibility of Expert Evidence

Under the Federal Rules of Evidence, a party that seeks to admit expert testimony must prove by a preponderance of the evidence that it is admissible. A court will engage in a three-part test to determine whether an expert report may be admitted. First, it will determine whether the expert is qualified to testify on the matter he or she intends to address. Then, the court will examine whether the methodology the expert uses is sufficiently reliable. Finally, the court will determine if the testimony helps the trier of fact to understand the evidence or determine a disputed fact through the application of specialized or technical expertise or science. Continue reading ›

Florida Court Discusses Proof That a Will is the Product of Undue Influence

Published on: March 25, 2021 | Lusk, Drasites & Tolisano, P.A.

Generally, people have the right to draft wills that distribute their property after they die in any manner that they deem fit. If a person lacks sound mind or is coerced or otherwise unjustly persuaded into making certain testamentary decisions, though, a will may be deemed invalid, and the courts may refuse to admit it into probate. In a recent Florida opinion, the court discussed the evidence needed to establish that a will is the product of undue influence and is void, in a matter in which the court ultimately found the will was valid. If you recently lost a loved one and would like to object to his or her will or otherwise need assistance with a probate matter, it is advisable to speak to a capable Florida probate attorney to determine your rights and possible courses of action.

Facts of the Case

It is reported that after the testator died in 2017, the defendant, who was her daughter and the personal representative of her estate, filed a formal petition for the administration of the testator’s 2003 will. The will dictated, in part, that the testator’s home in Key West was to be sold and the proceeds distributed among her five children. The plaintiff, one of the testator’s other daughters, was only to receive 4% of the proceeds of the sale, however, and the remaining children were to receive 24% each.

Allegedly, the will also granted a vacant lot to the defendant and ordered that the remainder of the testator’s assets be sold and the proceeds divided among the children, excluding the plaintiff. The plaintiff objected to the administration of the will, arguing that it was the product of the defendant’s undue influence. Two of the other children joined in the objection as well. The trial court found in favor of the defendant, and the plaintiff appealed. Continue reading ›

Florida Court Discusses Evidence in Product Liability Cases

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

In cases arising out of defective products, both the claims and defenses largely hinge on evidence that suggests or disproves liability. As such, in many instances, a plaintiff will attempt to introduce evidence of other harmful events caused by the product in question and any litigation that arises out of such incidents. In turn, defendants will typically fight to exclude such evidence, arguing that it is prejudicial. In a recent Florida ruling, the court addressed the admissibility of a settlement agreement in a case involving a defective product in subsequent litigation involving that product. If you suffered harm because of a faulty or dangerous device, you might be owed significant compensation, and it is smart to meet with a skillful Florida product liability lawyer to assess what evidence you may be able to use in support of your claims.

Facts of the Underlying Case

It is reported that plaintiffs filed a lawsuit against the defendant, asserting that it manufactured and sold earplugs that were dangerous. Specifically, it is alleged that the earplugs failed to actually block noise as intended, resulting in tinnitus, hearing loss, and other damages. Another lawsuit, referred to as a whistleblower or qui tam action, was filed against the defendant as well. In the qui tam case it was alleged that the defendant knew that the earplugs were defective and continued to sell them regardless. The qui tam action ultimately settled.

Allegedly, prior to trial, the defendant filed numerous motions seeking to preclude the plaintiff from introducing certain evidence at trial. In part, the defendant argued that evidence of the allegations in the qui tam complaint and the qui tam settlement should be excluded as irrelevant, unduly prejudicial, and inadmissible hearsay. Continue reading ›

Florida Court Discusses Default Judgment in Divorce Cases Involving Custody

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

In divorce actions, as in other cases, the court can enter a default judgment against a party that fails to respond to a complaint. While a default judgment may be proper in a straightforward divorce action, it is not suitable in a case involving the custody of a child. This was demonstrated in a recent Florida opinion, in which the appellate court discussed the exercise of personal jurisdiction over absent defendants and the appropriateness of a judgment by default in custody matters. If you or our spouse intend to end your marriage, it is important to understand your rights, and it is in your best interest to meet with a knowledgeable Florida divorce attorney to assess your rights.

The Underlying Action

It is reported that the parties were married in October 2015 and had one child together. They separated in March 2017, and in December 2019, the wife filed a petition for the dissolution of marriage with a minor child. At the time, the wife lived in Key West, the husband lived in Illinois, and the child lived with the husband’s family in Florida. The husband was personally served with the divorce papers by a Sheriff’s deputy in Illinois.

Allegedly, the husband did not enter an appearance or make any effort to contest the divorce. The hearing was then held in February 2020, during which a special magistrate recommended granting the wife’s petition, thereby awarding her sole custody of the child. The court subsequently entered a default judgment, dissolving the marriage and granting the wife sole custody of the child. The husband then appealed. Continue reading ›

Florida Court Discusses Discovery in Car Accident Cases

Published on: March 14, 2021 | Lusk, Drasites & Tolisano, P.A.

Typically, if a person injured in a car accident enters into a settlement agreement with the party responsible for the crash before a lawsuit is filed, it will be considered a complete resolution of the claims. In some cases, though, it may be unclear whether the parties actually entered into a contractual settlement agreement, and the injured party will proceed with litigation. Recently, a Florida court discussed the right of a defendant to question a plaintiff’s attorney regarding the settlement of a claim in a case in which the defendant argued the plaintiff was improperly seeking damages despite previously settling claims arising out of the underlying accident. If you were injured in a car accident, you only have one chance to recover damages, and it is prudent to speak to a dedicated Florida car accident lawyer to determine your potential claims.

The Underlying Accident and Negotiations

It is reported that there was a three-car accident involving the plaintiff, the defendant, and another party. The defendant’s car struck the third-party’s car, which then struck the plaintiff’s car. The plaintiff and his son were both injured in the crash. Following the accident, the plaintiff and the third party asserted claims against the defendant. The parties reportedly entered into a settlement agreement, wherein the defendant’s insurer agreed to pay her policy limits, which were divided among the three injured parties.

Allegedly, the plaintiff then filed a negligence lawsuit against the defendant. The defendant moved for summary judgment, and attached evidence regarding the settlement agreement to her motion. The plaintiff opposed the motion and filed affidavits stating that no settlement occurred. The defendant then sought to depose the plaintiff’s attorney and the plaintiff on issues pertaining to settlement. The plaintiff sought and was granted a protective order precluding such discovery, and the defendant appealed. Continue reading ›

Florida Court Discusses Admission of Expert Testimony in Product Liability Cases

Published on: March 5, 2021 | Lusk, Drasites & Tolisano, P.A.

Dangerous devices injure people throughout Florida daily. In many instances, the injured party will pursue a product liability claim against the manufacturer of the product. Usually, a plaintiff alleging a product was unreasonably dangerous must produce expert testimony in support of the assertion. A proposed expert must have certain qualifications, though, otherwise, he or she may be precluded from testifying. This was demonstrated in a recent Florida opinion in which the court discussed the admission of expert testimony in product liability cases. If you were hurt by a dangerous product, you could be owed damages, and it is advisable to meet with a skillful Florida product liability attorney to assess your options.

The Plaintiff’s Harm

It is reported that the plaintiff was operating a forklift manufactured by the defendant. The forklift had an open area that allowed for entry and exit without a door. Additionally, it was operated by holding the brake pedal down. The plaintiff lost control and collided with the end of the storage rack. His leg was crushed between the forklift and the rack, and he sustained severe injuries.

Allegedly, the plaintiff then filed a product liability lawsuit against the defendant, arguing that the design of the forklift was defective and that reasonable alternative safer designs were available. Specifically, they argued that the forklift should have a barrier that prevented a person’s leg from leaving the body of the forklift during operation and two brake pedals, one of which was for emergency braking. Following discovery, the defendant moved to preclude the plaintiff’s experts from testifying. The motions were ultimately denied in part and granted in part. Continue reading ›

Florida Court Discusses Liability for Negligent Entrustment

Published on: February 25, 2021 | Lusk, Drasites & Tolisano, P.A.

Florida has many navigable bodies of water, and many people throughout the state own boats. It is not uncommon for boat owners to lend their crafts to other people to enjoy without a second thought. When a person operating a borrowed boat acts carelessly, though, it can result in unintended consequences for the owner, including potentially the imposition of liability. In a recent Florida opinion, a court discussed the grounds for holding a boat owner liable for negligent entrustment in a case in which a person suffered critical injuries while riding as a passenger in a borrowed boat. If you suffered injuries in a boating accident, it is in your best interest to speak to a trusted Florida personal injury attorney to determine your possible claims.

The Boating Accident

Allegedly, on a summer afternoon, the plaintiff, the driver, and another friend when riding on a boat owned by the defendant. The driver suddenly and unexpectedly turned the boat, causing the plaintiff to fall off. The plaintiff’s right leg suffered severe wounds, and his right hand was almost completely severed. The driver was arrested and charged with stealing the boat and died by suicide prior to trial.

It is reported that the plaintiff then filed a negligent entrustment claim against the defendant, arguing that he should be liable for the plaintiff’s harm for carelessly allowing the driver to use his boat. Following discovery, the defendant moved to have the plaintiff’s claims dismissed via summary judgment. Continue reading ›

Florida Court Explains Proving Causation in Nursing Negligence Cases

Published on: February 21, 2021 | Lusk, Drasites & Tolisano, P.A.

Nurses are often tasked with providing patients with thorough and competent care. When nurses carelessly fail to abide by their duties, however, it can cause their patients to suffer undue harm, and many people injured by nursing negligence can recover damages. However, as in other personal injury matters, a person injured by the reckless acts of a health care provider must prove causation to recover damages. What constitutes sufficient evidence of causation was discussed in a recent Florida opinion. If you or a loved one sustained damages due to the negligence of a medical professional, you could be owed damages, and you should consult a knowledgeable Florida personal injury attorney as soon as possible.

The Decedent’s Care

Allegedly, the decedent was being driven in a medical transport van from the defendant dialysis center where he recently received treatment back to the nursing home where he lived. The driver of the van suddenly applied the brakes, causing the decedent to fall out of his wheelchair. He suffered numerous wounds in the fall, including head lacerations and a fractured leg, and ultimately passed away due to complications arising out of his injuries.

The plaintiff, the decedent’s daughter, filed a lawsuit against the defendant dialysis center, alleging it negligently permitted the decedent to leave the facility in a wheelchair when his critical medical issues made it unsafe for him to travel in any manner other than on a stretcher. The defendant filed a motion for judgment as a matter of law, which the trial court granted. The plaintiff then appealed. Continue reading ›

Florida Court Discusses Enforcement of Divorce Decrees After a Party’s Death

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

While it does not occur frequently, in some cases, a party to a divorce action will pass away during the pendency of the case. In such instances, the courts will typically dismiss the case, as a petition for dissolution of a marriage becomes moot if one party is no longer living. However, the court handles the matter of enforcing a divorce decree differently if one of the former spouses passes away, as demonstrated in a recent Florida ruling. If you wish to end your marriage, it is advisable to speak to a capable Florida divorce attorney as soon as possible to discuss your options.

The Facts of the Case

It is reported that the husband and the wife obtained a divorce in 2008. Pursuant to their marital settlement agreement, which was incorporated into the final judgment of dissolution, the wife had the right to remain in the former marital home. The right was granted with the understanding that the wife would assume certain financial obligations that came along with the home. Shortly after the parties divorce, the husband passed away.

Allegedly, the husband’s estate then filed two motions: the first, asking to be substituted as a party in the divorce case, and the second, requesting that the court order the wife to leave the residence. The basis for the second motion was the allegation that the wife failed to uphold the financial obligations imposed by the marital settlement agreement, causing the home to fall into foreclosure. The trial court denied the motions, and the estate appealed. Continue reading ›