Orlando Injury Lawyer Blog

Jurors decide whether an injury claim will result in a favorable result. Whether the conduct involves a car accident, a trip and fall or medical malpractice, jurors will decide all of the important issues. As Orlando injury lawyers, we are often asked, "How do jurors decide the issues of fault?" and "how much money is fair?"

For more than twenty years we have worked to understand the best way to help jurors make those important decisions for our clients. We have learned that most people want to make the correct decisions and take jury duty very seriously. We have great faith in our jury system and find that jurors generally feel the same way.

We often review the experience of jurors so that we can continue to do the best job possible. Despite most people's initial reluctance, once they get involved with the process they generally find the experience to be a positive one. For example, one prospective juror recently commented that jury duty, "is the basic level of citizen involvement. It is what you can do if you cannot serve in the military. This is a system that keeps going because someone is willing to step up and keep it going."

We believe that every one who goes to trial deserves to have a lawyer present their case in a manner that assists jurors to make the best decision possible. After more than 20 years, we know that too many individuals involved in car accident, injury and medical malpractice cases unfortunately choose lawyers who do not specialize in civil trial law. For this reason we wrote the Florida Accident & Injury Book. Order your free copy now.

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Posted In: Litigation Strategy

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Seeking justice for injury victims should not be the only goal for Orlando injury lawyers. Many times injury lawyers can bring about far-reaching safety changes through injury lawsuits. Whenever an injury lawyer can demonstrate to a corporate defendant that it makes good sense to improve the safety in their apartments, hotels or retail establishments change can result. In a recent Orlando slip and fall case we reached a significant settlement which brought not only justice for our clients, but a safer environment for all future patrons of a nation-wide chain.

In handling premises liability cases throughout Florida, we have found it beneficial to analyze the overall safety aspects of the environment involved. With so much competition in the apartment, hotel and retail industry, safety becomes a great marketing tool. Being able to boast of excellent security measures and a safe, general environment keeps and attracts business.

With this in mind, in our injury cases we try to illustrate that the injury to our client was not only avoidable, but that the hazard should be addressed to prevent future harm to other patrons. Whether injury results from lack of security or poorly designed stairs, ramps or walkways, we try to reasonably demonstrate simple, cost-effective alternatives that would benefit the hundreds and thousands of future patrons. It makes no sense for a corporate defendant to have to pay for our clients’ injury and remain at risk once the hazard and a reasonable solution has been identified.

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Posted In: Litigation Strategy

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Over the past two decades representing injury victims, we have seen horrific examples of corporations putting profit over people. Recently, the American Association for Justice has reported on such corporate tactics and the fact that corporations will stop at nothing to protect their profits. A recent case in the Illinois courts helps to expose one such corporate tactic: manipulating expert witness testimony.

Expert witnesses are a critical resource in numerous cases. Courts require litigants to provide expert testimony in virtually every serious injury case. Negligent corporations, however, have begun using their financial clout in an attempt to buy experts — even academics. What's more, they have done so behind a veil of secrecy.

In Rago v. Federal Signal Corp., firefighters who had suffered noise-induced hearing loss from sirens produced by Federal Signal Corp. brought a mass tort lawsuit for restitution from the company in an Illinois state court. In the course of defending Federal Signal, the company's lawyers pointed to an academic study published by Dr. William Clark, a professor at Washington University in St. Louis School of Medicine. The study concluded that firefighters were not at risk of hearing loss from sirens, despite their exposure to high levels of occupational noise. What the lawyers, and the study itself, did not say was that Clark had long been a paid consultant to Federal Signal and had helped the company defend other hearing-loss litigation while he was conducting his research. In fact, the "study" was based on data Federal Signal itself had collected and provided to Clark.

Federal Signal did all it could to hide its role in the study, even when it was required under standard court procedures to disclose its involvement in research. When the firefighters' lawyers learned of the company's cover-up, they forced the company to turn over an additional 1,400 pages of data and analysis that it had previously held back. As a punishment for the deception, the judge, barred the company from using the study in court, barred Clark from testifying and ordered Federal Signal to pay the firefighters $50,000 in attorney fees for the additional time their lawyers had to spend to force the company to come clean.

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As an Orlando injury lawyer familiar with the case of the “$65 million dollar pair of pants,” I enjoyed the recent post in the Maryland Injury Lawyer Blog. For those of you who are not familiar with this case, that post provides the background. In essence, Mr. Pearson is a lawyer and administrative law judge who brought a lawsuit against his neighborhood dry cleaner for misplacing his pants. Two years later, stacks of legal pleadings and discovery and hundreds of hours of time, Mr. Pearson remains determined to get his “cup of justice.” Importantly, justice in Mr. Pearson’s view requires more than the $12,000 that has been offered to settle his claims-much more. His complaint against his dry cleaner seeks over $65,000,000 including compensation for mental suffering, inconvenience, discomfort, the value of the time he has spent on the lawsuit, and for leasing a car every weekend for 10 years because there is no dry cleaner close to his house.

As my colleague’s post points out, this case, which does not involve personal injury is bad for all injury lawyers. The reason-this case can be used to support the position of tort reformers that our civil justice system is out of control. Of course, who among us could argue, with a straight face, the merits of Mr. Pearson’s multi-million dollar claim?

That is precisely why I view Mr. Pearson’s claim as a great advantage for all of us in our injury lawsuits. In every jury selection, I bring up the subject of frivolous lawsuits. I provide an opportunity for my jury panel to share any outrageous cases that they have heard about. When finished, I always try to bring them up to speed on the biggest “junk lawsuit” that I have come across. Why do I do this? I have found that Mr. Pearson’s claim and similar ones, provide an opportunity to present evidence in jury selection that my client’s claim is absolutely meritorious. Compared to $65 million for a pair of misplaced pants, my client’s physical injury, her loss of function and the defendant’s misconduct would appear to justify a favorable verdict.

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My recent blog regarding a Texas judge’s ruling in a Vioxx case has stimulated further thought on the effectiveness of the “failure to warn” claim in drug product liability cases. As I shared, Texas may eliminate drug injured plaintiffs’ failure to warn claims in about 900 Vioxx cases if Merck & Co. complied with the FDA’s minimum requirements.

The purpose of this post is not to re-visit that announcement but to expand upon the value of the failure to warn case in drug litigation and the resulting hardship to injured consumers if federal preemption applies. Unlike manufacturing defect and design defect claims, failure-to-warn claims are available and can be proven. These claims provide many opportunities for a jury to consider whether consumers are entitled to more information about dangerous drug side effects.

For example, if the side effect your client suffered was not specifically included in the warnings should it have been? If the drug maker mentions the side effect your client suffered, was the warning clear and effective. Where did the drug maker put the warning- in the section marked "warnings" or "contraindications" on the labeling, or in the section marked "precautions." A jury can appropriately consider whether the warning should have been in a “black box.”

Of course, you should consider whether the manufacturer should have sent a "dear doctor" letter to all physicians telling them about the risk. Perhaps your particular client’s use of the drug creates some issues of adequate and fair warnings. Did your client require or receive a high dose or use the drug for an extended period? Did such circumstances lead to foreseeable injury that should have been identified as part of the labeling?

As you can see, the failure to warn claim is “The Claim” in these drug cases. You must remember that there is more to the plaintiff’s case than just proving inadequate warnings. You must also prove that your client would not have used the drug if properly warned and that the drug is the cause of your client’s injuries. The failure to warn claims help to level the playing field when you go up against a giant drug maker.

Posted by Tony Caggiano | Permalink | Email This Post

Posted In: Litigation Strategy , Pharmaceutical Drugs

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As Orlando injury lawyers our cases, like yours, likely include issues of insurer bad faith. Of course, how we respond is critical to our clients' ability to hold insurance companies accountable for their improper conduct. In the aftermath of Hurricane Katrina, litigation has emphasized the importance of e-mail correspondence in proving insurer misconduct in these cases.

In e-mails State Farm Insurance Company had threatened to fire a firm hired to inspect storm-damaged homes after Hurricane Katrina, and firm leaders suggested that the insurer was dissatisfied with how it was reporting damage. Attorneys for homeowners suing State Farm claim e-mails support their argument that the insurer pressured its engineers to alter their reports on storm-damaged homes so that policyholders' claims could be denied.

The e-mails indicate that State Farm was threatening to dismiss Raleigh, North Carolina-based Forensic Analysis & Engineering Corp. less than two months after Katrina hit on Aug. 29, 2005. In part the e-mails contain instructions from State Farm to stop using local engineers to inspect properties because they were "too emotionally involved" and were "working very hard to find justifications to call it wind damage when the facts only show water induced damage."

Of course, handling property damage claims, State Farm like many insurers post-hurricane point out that their homeowner policies cover damage from wind but not rising water, including wind-driven storm surge. That forms the basis for the insurer's efforts to deny coverage to hurricane victims.

In the Katrina cases, the engineering firm sent a reply to State Farm which questioned the insurer's motivations and questioned if there was an ethical problem with State Farm telling the firm what to put in reports. Certainly, this would prove important and quite damaging should these e-mails ever be presented to a jury considering the relevant issues. Obviously, these e-mails provide clear evidence of the independent engineers hired by State Farm expressing concern about being pressured to change reports. As in many insurer bad faith cases, e-mails should be considered when formulating discovery requests.

By the way, in response to suggestions that State Farm acted in bad faith, its representatives recently told the media, that State Farm is committed to conducting itself in an ethical and appropriate manner and any suggestions to the contrary are simply wrong. Does that surprise you?

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As an Orlando injury lawyer, I read with interest a news article about the struggle to bring the comparative negligence doctrine to injury victims in Maryland. Unlike Florida, Maryland bars any recovery by personal injury victims found to have contributed to the injury or damages claimed. Under this doctrine of contributory negligence many deserving injury victims receive no compensation.

Florida is well within the majority of states that find the contributory negligence rule to be draconian and out-dated. Certainly, it is difficult to imagine a more unfair rule than one which allows a wrongdoer to completely escape responsibility for injury or wrongful death because his lawyer can convince a jury that the victim played some role in the incident. How unjust for a property owner or product maker to create a dangerous situation and avoid accountability by cleverly arguing some degree of fault on the part of the injury victim.

What’s more disheartening about the legislative battle in Maryland is the point made in the Maryland Injury Lawyer Blog. Apparently, the chief opposition to the effort to allow injury lawyers to obtain recovery for clients based on comparative fault is lead by a personal injury lawyer-one with an agenda that seeks to protect his own practice.

Peter Angelos, a personal injury lawyer and owner of the Baltimore Orioles, has determined that he should use his money and influence to prevent injury victims from benefiting from the fairness of the comparative negligence doctrine. His fear of recovery in his asbestosis laden case load puts him at odds with all other personal injury lawyers in that state. While he appears not to oppose the proposed legislation to bring comparative negligence to that state, he is concerned about amendments which may impact recovery where some defendants are insolvent.

I admit to being an outsider in this tort battle in a sister state. However, as an injury lawyer, it is troubling that one among us would sacrifice the overwhelming benefits to the majority of injury victims for the good of one lawyer’s practice. Perhaps I am missing something…if I am, I will be pleased to learn what it is.

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Trying Florida injury lawsuits we have seen the negative effects in jury selection of the lawsuit propaganda put out by the insurance industry, business groups and medical associations. Despite all the efforts of the Florida Justice Association and the American Association for Justice, this propaganda continues and our jury pools will remain infected for the foreseeable future.

To illustrate, America Online (AOL) is running an article titled "Most Outrageous Lawsuits." It describes "crazy lawsuits" reported by groups like Citizens Against Lawsuit Abuse (CALA) and the American Tort Reform Association (ATRA). As personal injury and medical malpractice lawyers, we know these groups see personal injury lawsuits as evil attempts to crush business in the United States. They see no need to hold corporate giants accountable for injury and death to innocent people. They have and will continue to distort the truth about our profession and the American Civil Justice System. By using these fictitious stories of lawsuit madness or twisting the truth of real cases, they poison our future jurors.

Certainly, no personal injury lawyer will ever forget the famous McDonald’s coffee case. Importantly, from our jury selection it seems as though no juror will ever forget that case. As lawyers the lesson we have learned from all this is: Swim with the current. While I support and commend the activities of our state and national associations to undo the image of rampant frivolous lawsuits resulting in billions of dollars for unscrupulous lawyers, we must effectively represent our injury and medical malpractice clients today in this environment.

Fighting this propaganda in the media makes sense. Doing so in the courtroom does not. You must never swim against the rip current unless you plan on becoming a statistic. Instead, you must champion your legitimate injury or malpractice case by contrasting it to the jurors’ perception of frivolous cases they have heard about. Without a doubt, EVERY case I have tried has little difficulty appearing meritorious when compared to the juror’s perception of the “case where the lady spilled McDonald’s coffee while driving at high speed and received a 100 million dollars for a little burn.”

Please understand that I am familiar with the McDonald’s case facts. However, I am not going to try to validate the McDonald’s jury verdict with my client’s jury panel. I would never assume that jurors will believe some lawyer over what they have accepted as truth years before they stepped into our courtroom. Instead, I will allow the jury to compare my client's case with all those “outrageous lawsuits.” Against that standard, I like our clients' chances every time.

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As a specialist in Florida personal injury and medical malpractice cases, I am always striving to better communicate with our juries. For more than twenty years, I have worked with jury consultants to pre-try our cases to mock juries. Having participated in mock trials involving car accidents, defective products and medical malpractice, I find it helpful to test my case issues on impartial observers.

Now, with the aid of TrialJuries, www.trialjuries.com, injury lawyers can test their case issues before a panel of jurors using the Internet. Unlike traditional mock juries, which are too time-consuming and costly for minor injury cases, TrialJuries provides mock juries at a greatly reduced cost. Unlike traditional mock juries, which can cost tens of thousands of dollars, the cost to use TrialJuries internet mock juries ranges from $1500 to $2500 per case, depending on the type of presentation (text, audio or video) the attorney chooses to make to the jury. The basic cost also includes up to 5 Exhibits, 15 jurors, 5 Verdict Questions and 5 Feedback questions.

Obviously, internet mock juries have limitations and can not provide the free flowing exchange between jurors or counsel. However, using this internet approach to pre-try your case will allow you to get helpful feedback from real people. Learning how your case is perceived by others is always valuable. Over the years, we have often formed our own focus groups in a convenient, cost-effective manner. Now with the advent of internet mock juries, we will begin to consider this option in our injury law practice.

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Posted In: Litigation Strategy

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