Aronberg, Aronberg & Green, Injury Law Firm Aronberg, Aronberg & Green, Injury Law Firm 2017-05-22T19:36:28Z https://aronberglaw.com/feed/atom/ WordPress David Aronberg <![CDATA[Could One of Apple’s Patents Prevent Texting & Driving?]]> https://aronberglaw.com/?p=6196 2017-05-22T19:36:28Z 2017-05-22T19:36:28Z Our Delray Beach personal injury lawyers have written about the dangers of texting and driving. We have also posted about local, legislative efforts to curb the epidemic. Of course Apple Inc. does not have the ability to unilaterally make texting and driving illegal. (And even if it did, there is little proof that making the...

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Our Delray Beach personal injury lawyers have written about the dangers of texting and driving. We have also posted about local, legislative efforts to curb the epidemic. Of course Apple Inc. does not have the ability to unilaterally make texting and driving illegal. (And even if it did, there is little proof that making the practice illegal would have a significant effect—people still do things that are against the law!). Could One of Apple’s Patents Prevent Texting & Driving?

But Apple likely has the technological capability to block drivers from using their phones while operating motor vehicles. And given that distracted driving contributes to 8 deaths and more than 1,160 car crashes every day here in the U.S., the ability to stop texting and driving might mean the difference between life and death. The statement that Apple has the technology to stop texting and driving is not based on the educated guesses of our Delray Beach personal injury lawyers.

Apple currently has ownership of patented technology which would allow it to disable the use of cell phones while their operator is driving. The published patent—appropriately named “Driver handheld computing device lock-out” is U.S. Patent No. 8,706,143. It was filed on December 12, 2008, and was granted to Apple on April 22, 2014. In the description of the invention, the patent states that the “lock-out mechanisms disable the ability of a handheld computing device to perform certain functions, such as texting, while one is driving.” As our Delray Beach attorneys know, patents are not issued unless the inventors demonstrate that they can actually make and use the technology—in other words, patents do not issue for simple guesses. So we are pretty sure that Apple could use the technology if it wanted to.

The patent—complete with descriptions and sketches—describes technology which uses built-in motion analyzers and scenery analyzers in order to determine when a smartphone should be disabled. One of the patent’s images is a sketch of a car, with the driver seat area marked “unsafe operating area,” and the passenger’s seat and backseat area of the car marked “safe operating area.” In theory, an iPhone, signaling its presence in the unsafe operating area, would have some or all of its functions disabled until the phone is removed from the unsafe operating area. This, as our personal injury lawyers know, could be a game changer in terms of roadway safety.

However, even if Apple chooses not to use its technology, society will not be at a loss forever. As U.S. patents last generally 20 years from the date of application, our Delray Beach personal injury lawyers understand that Apple’s patent on this technology will likely expire in 2028. Still, we shouldn’t have to wait another 11 years to use technology that could save lives. Perhaps more so than the legislators in state and national governing bodies, Apple—producer of the world-famous and omnipresent iPhone—is in an especially unique position to reduce the ability of smartphone users to text and drive.

Aronberg, Aronberg & Green is not the only firm to raise awareness about the fact that Apple’s patented technology could be saving lives. A law firm in California has filed a lawsuit (a hopeful class action) against Apple over the issue. The named plaintiff claims that he was rear-ended by a texting driver, and is asking a judge to block the sale of iPhones in California until Apple enables the lockout feature described in its patent.

If you or a loved one have been injured in an accident caused by the negligence or wrongdoing of another (including by somebody who was texting and driving), please contact our experienced Delray Beach personal injury lawyers at Aronberg, Aronberg & Green by calling 561-266-9191 or by e-mailing us at daronberg@aronberglaw.com. Please reach out to us to set up a free consultation. We look forward to assisting you.

 

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David Aronberg <![CDATA[Thursday Lawyer Humor – Must Read – Try Not to Laugh]]> https://aronberglaw.com/?p=6188 2017-05-18T15:38:19Z 2017-05-18T13:47:07Z These are from a book called Disorder in the Courts and are things people actually said in court, word for word, taken down and published by court reporters that had the torment of staying calm while the exchanges were taking place. Thanx Stu!!! ATTORNEY: What was the first thing your husband said to you that...

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These are from a book called Disorder in the Courts and are things people actually said in court, word for word, taken down and published by court reporters that had the torment of staying calm while the exchanges were taking place. Thanx Stu!!!

ATTORNEY: What was the first thing your husband said to you that morning?
WITNESS: He said, ‘Where are you, Cathy?’
ATTORNEY: And why did that upset you?
WITNESS: My name is Susan!
______________________________
ATTORNEY: What gear were you in at the moment of the impact?
WITNESS: Gucci sweats and Reeboks.
______________________________
ATTORNEY: Are you sexually active?
WITNESS: No, I just lie there.
______________________________
ATTORNEY: What is your date of birth?
WITNESS: July 18th.
ATTORNEY: What year?
WITNESS: Every year.
______________________________
ATTORNEY: How old is your son, the one living with you?
WITNESS: Thirty-eight or thirty-five, I can’t remember which.
ATTORNEY: How long has he lived with you?
WITNESS: Forty-five years.
_______________________________
ATTORNEY: This myasthenia gravis, does it affect your memory at all?
WITNESS: Yes.
ATTORNEY: And in what ways does it affect your memory?
WITNESS: I forget..
ATTORNEY: You forget? Can you give us an example of something you forgot?
____________________________

ATTORNEY: Now doctor, isn’t it true that when a person dies in his sleep, he doesn’t know about it until the next morning?
WITNESS: Did you actually pass the bar exam?
_____________________________

ATTORNEY: The youngest son, the 20-year-old, how old is he?
WITNESS: He’s 20, much like your IQ.
_____________________________
ATTORNEY: Were you present when your picture was taken?
WITNESS: Are you shitting me?
_____________________________
ATTORNEY: So the date of conception (of the baby) was August 8th?
WITNESS: Yes.
ATTORNEY: And what were you doing at that time?
WITNESS: Getting laid
_____________________________

ATTORNEY: She had three children , right?
WITNESS: Yes.
ATTORNEY: How many were boys?
WITNESS: None.
ATTORNEY: Were there any girls?
WITNESS: Your Honor, I think I need a different attorney: Can I get a new attorney?
______________________________
ATTORNEY: How was your first marriage terminated?
WITNESS: By death..
ATTORNEY: And by whose death was it terminated?
WITNESS: Take a guess.
________________________________

ATTORNEY: Can you describe the individual?
WITNESS: He was about medium height and had a beard
ATTORNEY: Was this a male or a female?
WITNESS: Unless the Circus was in town I’m going with male.

___________________________________
ATTORNEY: Is your appearance here this morning pursuant to a deposition notice which I sent to your attorney?
WITNESS: No, this is how I dress when I go to work.
___________________________________
ATTORNEY: Doctor , how many of your autopsies have you performed on dead people?
WITNESS: All of them. The live ones put up too much of a fight.
___________________________________
ATTORNEY: ALL your responses MUST be oral, OK? What school did you go to?
WITNESS: Oral…
___________________________________
ATTORNEY: Do you recall the time that you examined the body?
WITNESS: The autopsy started around 8:30 PM
ATTORNEY: And Mr. Denton was dead at the time?
WITNESS: If not, he was by the time I finished.
____________________________________
ATTORNEY: Are you qualified to give a urine sample?
WITNESS: Are you qualified to ask that question?
____________________________________
And Last:

ATTORNEY: Doctor, before you performed the autopsy, did you check for a pulse?
WITNESS: No.
ATTORNEY: Did you check for blood pressure?
WITNESS: No.
ATTORNEY: Did you check for breathing?
WITNESS: No..
ATTORNEY: So, then it is possible that the patient was alive when you began the autopsy?
WITNESS: No.
ATTORNEY: How can you be so sure, Doctor?
WITNESS: Because his brain was sitting on my desk in a jar.
ATTORNEY: I see, but could the patient have still been alive, nevertheless?
WITNESS: Yes, it is possible that he could have been alive and practicing law.

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David Aronberg <![CDATA[Everglades Airboat Tragedy in Miami – UM Graduate 22 Years Old Dies]]> https://aronberglaw.com/?p=6184 2017-05-16T14:11:00Z 2017-05-16T14:11:00Z By: Tonya Alanez and Anne Geggis Contact Reporter Sun Sentinel An Everglades airboat ride with her parents and sister turned deadly for a University of Miami student just one day after her graduation. Elizabeth “Ellie” Goldenberg, 22, and four others were thrown from the vessel late Saturday morning in the Wildlife Management Area, 12 miles west of...

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By: Tonya Alanez and Anne Geggis Contact Reporter Sun Sentinel

An Everglades airboat ride with her parents and sister turned deadly for a University of Miami student just one day after her graduation.

Elizabeth “Ellie” Goldenberg, 22, and four others were thrown from the vessel late Saturday morning in the Wildlife Management Area, 12 miles west of Krome Avenue, according to a Florida Fish and Wildlife Conservation Commission spokesman.

Goldenberg died from her injuries at Kendall Regional Medical Center. Her sister, Dana Goldenberg, 20, was hospitalized with minor injuries, said Rob Klepper, the wildlife commission spokesman.

Goldenberg’s parents, David and Renee, both 54, of Hummelstown, Pa., were not injured in the crash.

Goldenberg’s mother, Renee Flax-Goldenberg, was en route to a funeral home to make final arrangements when reached by telephone Monday afternoon. “We loved her, we miss her. It’s a tremendous loss to the world that she was taken so young,” she said. “I’m a mourning mother … and it’s a criminal investigation, so it wouldn’t be appropriate for us to speak about the circumstances in which she died.”

Goldenberg earned a bachelor’s degree in fine arts, magna cum laude, from the university on Friday.

Citing an open investigation, Klepper declined to provide additional details about the crash, including who owned the vessel or who was piloting it. “At this time, I am unable to state whether or not this boating incident investigation will result in any charges,” Klepper said.

The fifth person on board the boat was Steve George Gagne, 52, of Miami, according to Klepper. He has worked as an airboat captain in the past, records show.

Goldenberg’s mother said that Goldenberg’s funeral is scheduled for 1 p.m. Tuesday at Kesher Israel Synagogue in Harrisburg, Pa. Late Monday afternoon, a memorial service was held on campus at the Jerry Herman Ring Theater.

A fellow theater student, Ashley Bombino, 21, said she learned the tragic news of Goldenberg’s death in an email from the department. “It didn’t seem real,” Bombino said by telephone Monday. “Ellie was just beyond a light. Whoever is hurting because of this, just please know she is watching over us and will always provide a light in our lives.”

In a tribute posted to Facebook, Bombino reflected on Goldenberg’s inspirational, outsized personality.

“Ellie Goldenberg you were a shining star and the happiest of people I have ever met. You were so talented and such a beautiful soul that I still can’t believe you’re gone,” she wrote. “Thank you for always making me laugh whenever we had to do fittings for shows, being wonderful backstage while performances ran and most of all being there to talk whenever I felt low.”

Goldenberg’s UM debut was in an ensemble of “Carmen,” and her most recent performance was the role of Ilse in “Spring Awakening,” according to the Miami Hurricane, the university’s student newspaper.

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David Aronberg <![CDATA[Be Safe—Protect Your Body and Your Case]]> https://aronberglaw.com/?p=6178 2017-05-15T20:58:58Z 2017-05-15T20:56:39Z In this blog post, our Delray Beach personal injury lawyers will explore the concept of comparative fault under Florida law. Be Safe – Protect Your Body and Your Case. “Be safe” seems like a pretty obvious recommendation from personal injury lawyers. But being safe and aware of your surroundings—when driving, walking through a department store, crossing...

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In this blog post, our Delray Beach personal injury lawyers will explore the concept of comparative fault under Florida law. Be Safe – Protect Your Body and Your Case.

“Be safe” seems like a pretty obvious recommendation from personal injury lawyers. But being safe and aware of your surroundings—when driving, walking through a department store, crossing the street, etc.—has multiple benefits. Further, the consequences of being too relaxed when it comes to safety can be serious and costly—even once your case gets to court.

First, the obvious: the safer you act, the less likely you are to be injured. But because not all injuries can be avoided, the second reason to practice safety precautions is especially important. Specifically, being safe and cautious can save you a lot of money in your personal injury case. On the flip side, as our personal injury lawyers at Aronberg, Aronberg & Green know, in the State of Florida, being negligent or absent minded in an accident—even if you were not the more negligent or reckless party—can significantly limit your ability to receive compensation, no matter how injured you might be.

Why? Because Florida is a state which statutorily adheres to the doctrine of comparative fault, meaning that in a negligence action, the contributing fault attributable to the plaintiff diminishes the amount awarded in damages for the injury.  So, as our Delray Beach personal injury lawyers understand, while contributory negligence is not a complete bar to recovery here in Florida, it limits the plaintiff’s ability to be made “whole” and recover all of his or her losses.

To explain this issue, let’s work with a hypothetical scenario. Suppose Dale Defendant is driving down an otherwise empty road when he looks down at his cell phone to read a text message while approaching an intersection (with a green light). At that very moment, Paula Plaintiff, listening to music on her phone, steps into the intersection to cross the street (not in a cross-walk). Dale finally notices Paula at the last second and slams on his brakes, but he still knocks Paula to the ground in the middle of the intersection. Paula winds up breaking her hip and left leg as a result of the accident. Due to her injuries, she has to miss three months of work and incurs thousands of dollars in medical and other expenses.

Suppose that after failed settlement negotiations, Paula sues Dale for her injuries. As our personal injury lawyers know, if the case makes its way before a jury, the members of the jury will have the ability to allocate fault in the accident. They will consider, of course, the fact that the defendant was texting and driving and did not see the plaintiff in intersection until it was too late. But they will also consider the fact that Paula was carelessly walking through the intersection, distracted listening to music, never looking up to check for oncoming cars.

Let’s say the jury decides to award Paula Plaintiff a total of $200,000 for her injuries, pain & suffering, etc. If the jury finds her to have been 20% at-fault in the accident, her award will be reduced accordingly. So with a $200,000 jury verdict, a finding that the plaintiff was 20% at fault means that she will be awarded $160,000 ($200,000 less 20%). As our Delray Beach personal injury lawyers know, 80% is better than 0%, but it’s not better than 100%. Had Paula been more aware, she might not have been found at-fault at all in the accident, and she would have been entitled to recover the full $200,000.

If you or a loved one have been injured in an accident caused by the negligence or wrongdoing of another, please contact our experienced Delray Beach personal injury lawyers at Aronberg, Aronberg & Green by calling 561-266-9191 or by e-mailing us at daronberg@aronberglaw.com. Please reach out to us to set up a free consultation. We look forward to assisting you and remember Be Safe – Protect Your Body and Your Case!

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David Aronberg <![CDATA[In-Depth: Who is Liable in an Uber or Lyft Crash?]]> https://aronberglaw.com/?p=6174 2017-05-12T20:32:37Z 2017-05-12T20:32:37Z Unless you’ve been living under a rock, you’ve probably heard of Uber and/or Lyft. These popular ride-hailing mobile apps which allow users to enter a pick-up and drop-off destination and virtually request a car ride. Last summer, Uber completed its two-billionth trip. That’s a lot of Uber rides. While Lyft has not gained as much...

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Unless you’ve been living under a rock, you’ve probably heard of Uber and/or Lyft. These popular ride-hailing mobile apps which allow users to enter a pick-up and drop-off destination and virtually request a car ride. Last summer, Uber completed its two-billionth trip. That’s a lot of Uber rides. While Lyft has not gained as much popularity as Uber, it still is surging in use. This blog will explore: In-Depth: Who is Liable in an Uber or Lyft Crash?

As our Delray Beach personal injury lawyers at Aronberg, Aronberg & Green know, that means that many of the cars on our roads are performing Uber or Lyft-ordered drives. In particular, we know that both ride-ordering apps have significant presences in the South Florida region, including in Palm Beach, Broward and Miami-Dade Counties.

So, with so many app-ordered transports taking place every day, a question arises: who is responsible for the damages in a car accident involving an Uber or Lyft driver?

To explore this issue, our Delray Beach personal injury lawyers will delve into three separate but relevant issues. First, we will discuss the inquiry into when a driver is actually considered to be driving for Uber or Lyft. Next, we will examine the legal theory of respondeat superior. Last, we will discuss how the individual companies (Uber and Lyft) go about providing insurance for their drivers.

Issue 1: When are the drivers actually “Uber” or “Lyft” drivers?

First, it’s important to identify when a person is actually an Uber or a Lyft driver. That classification is not triggered when the person is approved to drive for either company. Because of how Uber and Lyft work, people can choose to drive at their preferred times. For instance, let’s say Ben decided to drive for Uber only from 1 PM to 3 PM on a Friday. Before and after that time frame, he is logged out of the app. Clearly, then, if he gets into an accident with somebody at 9 AM while on his way to the gym, Uber or Lyft (whoever he is driving for) bear no responsibility.

However, let’s say Ben logs into the Uber app at 1:00 PM, but has not yet picked-up a ride; he is still waiting to be hailed. If Ben is just driving around, logged in, and gets into a car accident, this is probably a gray area. It is unclear whether in this case Ben was actively an Uber driver. While on the one hand he was logged-in to the app and available to be hailed, as our personal injury lawyers know, he is not actually performing an Uber drive at the time that he got into the accident.

Next, let’s look at the more obvious scenario. Ben logs in at 1 PM and is immediately hailed. After picking up a rider, while driving the rider to his destination, Ben rear-ends another car. In this situation, Ben is in the act of driving for Uber, as he is logged-in and performing a transportation ride ordered through the Uber app.

So, if while Ben is considered an “Uber driver,” he gets into an accident in which he is negligent, from whom can the victim seek compensation? For answers to that question, we turn to Issues 2 and 3.

Issue 2: Respondeat superior

“Respondeat superior” is Latin for “let the master answer.” It is also the legal doctrine that a party is responsible for acts of his or her agents. In practical terms, it means that an employer is liable for harms and damages caused by acts of an employee while in the course of his or her work for the employer. A premise relied upon here is that the “agent” is an “employee.”

That premise is not always true, as our personal injury lawyers know. Often, people who work for others are “independent contractors” instead of “employees.” The key distinction that courts use in separating independent contractors from employees is the degree of control exerted by the employer over the employee.

Because of the theory of respondeat superior, it should be no surprise that both Uber and Lyft claim that those who drive for them are independent contractors. A Florida court of appeals recently confirmed that Uber drivers are independent contractors.

So making the claim that Uber or Lyft can be liable for a car crash involving one of their drivers under the argument of respondeat superior is a difficult one to make. This is the reality, as our personal injury lawyers know, even though both Uber and Lyft exert significant control over how the drivers perform their work (in particular, they provide the routes to drive!).

Issue 3: Insurance coverage

Even though it would be hard to hold Uber or Lyft responsible under a theory of respondeat superior because of the case law allowing the “independent contractor” classification to persist, there is another way to hold the companies responsible: through the insurance they provide. Both Uber and Lyft provide insurance coverage for their drivers, as our Delray Beach personal injury lawyers understand.

First, let’s discuss what Uber claims to provide. According to Uber’s website section dedicated to insurance, Uber (unsurprisingly) offers no coverage for drivers when they are “offline” and offers insurance for when drivers are between rides and when a rider is on an Uber-ordered trip.

For between-ride coverage, Uber provides drivers with a 3rd-party policy that offers bodily injury insurance of up to $50,000 per individual per accident, with a total of $100,000 per accident and up to $25,000 for property damage. For on-trip coverage, drivers are covered by Uber’s $1 million insurance policy, which covers “each and every incident that occurs between accepting a trip and reaching the rider’s destination.”

Now let’s turn to Lyft’s insurance offerings. While the Lyft website is a bit less specific, the company does state that it offers a policy with four types of coverage which are in effect from the time a driver accepts a ride until the time that the “ride has ended in the app.” The four components of the coverage are 1) contingent liability (for drivers while in driver mode waiting for a ride request), 2) primary auto liability, 3) contingent comprehensive & collision, and 4) uninsured/underinsured motorist insurance.

After exhausting the insurance policies provided by the companies, a victim’s next-best course of action would likely be to go after the insurance policy of the driver him or herself. But because every case is different, we highly recommend that you contact an experienced personal injury lawyer such as one of ours at Aronberg, Aronberg & Green if you happen to be injured in an auto accident.

So if you have been involved in an auto accident caused by a Lyft or Uber driver, please contact our experienced Delray Beach personal injury lawyers at Aronberg, Aronberg & Green by calling 561-266-9191 or by e-mailing us at daronberg@aronberglaw.com. Please reach out to us to set up a free consultation. We look forward to assisting you.

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David Aronberg <![CDATA[High-Tech Auto Safety = High-Priced Insurance Rates?]]> https://aronberglaw.com/?p=6170 2017-05-08T20:09:01Z 2017-05-08T20:09:01Z Wouldn’t you think that the safer your car is, the less it would be to insure? After all, as our Delray Beach personal injury lawyers at Aronberg, Aronberg & Green know, insurance companies usually pay for auto repairs after collisions. So, if your car has especially high-tech systems to help prevent collisions, making the collisions...

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Wouldn’t you think that the safer your car is, the less it would be to insure? After all, as our Delray Beach personal injury lawyers at Aronberg, Aronberg & Green know, insurance companies usually pay for auto repairs after collisions. So, if your car has especially high-tech systems to help prevent collisions, making the collisions less likely, wouldn’t insurance companies want to reward such systems with lower premiums? As it turns out, it’s not that simple. Find out why High-Tech Auto Safety = High-Priced Insurance Rates.

According to a recent Wall Street Journal report, new vehicles “loaded with high-tech crash-prevention gear are having a perverse effect on car insurance costs: They are soaring.” With collision-prevention technology an increasing reality in the auto market (14% of vehicles sold in the 2016 model-year came packed with such technology), this problem is not one which only affects a small portion of the market. To be sure, the safety technology helps: car manufacturers and industry researchers argue that the technology does help to prevent crashes.

But the decrease in risk of crashing is leading to an increase in cost. The reason? High-tech technology which prevents crashes is very expensive, as our personal injury lawyers understand. For instance, as the WSJ article explained, it currently costs $166 to fix a standard left-side mirror on a 2015 Mercedes-Benz ML350. However, that same mirror (but with the collision-prevention technology) on that same car costs $925 to fix! Auto components such as side-mirrors, grilles, fenders and bumpers which come equipped with safety sensors are more expensive to repair due to the necessary software re-calibration. Another problem leading to increased cost is that the replacement parts have limited availability.

Is the extra technology necessary? To answer that question, consider the fact that the National Highway Traffic Safety Administration estimates that human error accounts for more than 90% of all crashes that take place in the U.S.. If technology can help mitigate human errors behind the wheel, then crashes can be prevented, property damage can be averted, and injuries can be avoided. The Insurance Institute for Highway Safety has conducted research showing, for instance, that cars equipped with automatic braking technology experienced a 50% reduction in rear-end crashes.

As our personal injury lawyers know, other factors—aside from the high-tech safety features of a car—can lead to increased insurance rates. According to Allstate, information reflecting your age, gender, driving record and the number of miles you drive can affect your insurance premiums. Also relevant is where you drive and, importantly, where you park overnight.

Even with the presence of extensive safety features, car crashes are a reality of life in 2017. When a car accident is not your fault, and you suffer injuries in the accident due to the negligence of another, it is usually the at-fault party’s insurance company who is responsible for paying your damages.

If you or a loved one have been involved in an auto accident caused by the negligence or wrongdoing of another, please contact our experienced Delray Beach personal injury lawyers at Aronberg, Aronberg & Green by calling 561-266-9191 or by e-mailing us at daronberg@aronberglaw.com. Please reach out to us to set up a free consultation. We look forward to assisting you.

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David Aronberg <![CDATA[The “Foreign-Body Presumption of Negligence” is Alive and Well in Florida]]> https://aronberglaw.com/?p=6166 2017-05-05T20:00:04Z 2017-05-05T20:00:04Z At least one aspect of Florida law—and its interpretation by the state’s Supreme Court—is favorable to plaintiffs. This blog will discuss The “Foreign-Body Presumption of Negligence” is Alive and Well in Florida. As our Delray Beach medical malpractice lawyers at Aronberg, Aronberg & Green know, some features of the Florida State Statutes place truly burdensome limitations...

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At least one aspect of Florida law—and its interpretation by the state’s Supreme Court—is favorable to plaintiffs. This blog will discuss The “Foreign-Body Presumption of Negligence” is Alive and Well in Florida.

As our Delray Beach medical malpractice lawyers at Aronberg, Aronberg & Green know, some features of the Florida State Statutes place truly burdensome limitations upon victims of medical malpractice. For instance, Florida State Statute 766.118(2)(a) mandates a cap of $500,00 upon the noneconomic damages which can be obtained by a victim of medical negligence. However, another part of the Statutes, 766.102(3)(b), provides that the presence of a “foreign body” within a patient shall be evidence of negligence on the part of the medical provider.

To be clear, subsection (3)(b) of the statute begins with language that protects potential medical practitioner defendants. Specifically, as our medical malpractice lawyers know, the subsection begins by stating (in more complicated language) that the fact that somebody has a medical injury does not create an inference that the health care provider was negligent. It also says that the injured claimant has the burden of showing that the injury was actually caused by a breach of protocol by the health care provider. But buried in that (3)(b) paragraph is the language helpful to victims and their families. Because the favorable language is important and relatively clear, it has been pasted below:

“However, the discovery of the presence of a foreign body, such as a sponge, clamp, forceps, surgical needle, or other paraphernalia commonly used in surgical, examination, or diagnostic procedures, shall be prima facie evidence of negligence on the part of the health care provider.”

So instead of carrying the initial burden, if a claimant has a foreign body instrument (such as the ones described in the statute) within their body, such a fact constitutes evidence of medical negligence by the health care provider. Then the burden shifts to the provider to prove that they were not negligent. As our Delray Beach medical malpractice lawyers know, this puts the burden on the defendant health care provider (doctor, hospital, etc.) to show that they were not negligent, as opposed to on the injured victim who has enough to worry about.

A recent case which made it all the way to the Florida Supreme Court affirmed the strength and power of Florida Statute 766.102(3)(b), which provides for the presumption of negligence given the presence of a foreign body. Dockswell v. Bethesda Memorial Hospital (Fla. 2017) involved a man who was admitted to Bethesda Memorial Hospital for surgery due to “colon resection due to cancerous polyps.” As a normal part of the surgery, the surgeon inserted a drainage tube into the patient’s abdomen to remove fluid. (The tubes are generally removed after surgery.)

While a nurse did attempt to remove the tube, it was undisputed that a 4.5-inch section of the tube remained in the patient’s abdomen. Four months later, after the patient experienced continuing pain in the abdominal region, he underwent a CT scan which revealed that a portion of the drainage tube remained in his body. He then underwent another surgery to have the piece of the tube removed.

Understandably, the patient (turned plaintiff) sued the hospital for negligence. The parties argued over the true meaning of the above-mentioned statute about the presumption of negligence given the presence of a foreign body, understanding that a drainage tube commonly used in that type of surgery qualifies under the statute as a covered instrument. As our Delray Beach medical malpractice lawyers understand, the Florida Supreme Court defined the issue before it as “whether, in a medical malpractice case involving a foreign body left inside a patient’s body, the burden of proof shifts to the defendant to prove that no medical negligence occurred.”

After reviewing the facts of the case and all of the relevant law, the Florida Supreme Court confirmed that “the foreign-body presumption of negligence set forth in section 766.102(3)(b) is mandatory when a foreign body is found inside the patient’s body, regardless of whether direct evidence exists of negligence or who the responsible party is for the foreign body’s presence” (emphases added).

As our Delray Beach medical malpractice lawyers understand, this statement by the Florida Supreme Court is critically important. Because it reaffirms that medical malpractice plaintiffs are relieved of the initial burden of proof given the presence of a foreign body, this ruling will likely lead to hospitals exercising higher standards of care, wary that should a “foreign body” be left behind in a patient, the hospital will face a difficult task in defending itself.

If you or someone you know has been injured due to the negligence of a medical professional, please contact our Delray Beach medical malpractice lawyers at Aronberg, Aronberg & Green. To schedule a free consultation, please call us at 561-266-9191 or e-mail us at daronberg@aronberglaw.com. We look forward to assisting you.

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Seth Green <![CDATA[Investigating Indialantic Fatal Car Crash]]> https://aronberglaw.com/?p=6151 2017-05-03T19:43:44Z 2017-05-02T16:10:31Z Help us get answers for our clients who lost a family member in a fatal car crash that occurred on April 19, 2017 in Indialantic, Florida. The crash occurred just after midnight near the intersection of A1A and Ocean Oaks Drive. The defendant driver Ian Joel Morkan Colon is alleged to have been driving on the...

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Help us get answers for our clients who lost a family member in a fatal car crash that occurred on April 19, 2017 in Indialantic, Florida. The crash occurred just after midnight near the intersection of A1A and Ocean Oaks Drive. The defendant driver Ian Joel Morkan Colon is alleged to have been driving on the wrong side of the road, at speeds of approximately 80 mph according to the investigating police officer, when he struck our client’s car head on. Mr. Colon was driving a white 2007 Lincoln MKZ. Continue to read our blog on Investigating Indialantic Fatal Car Crash.

We are investigating (1) why Mr. Colon was on the wrong side of the road, (2) where he was immediately before the accident and (3) whether he was under the influence of any drugs or alcohol at the time of the crash.

If you saw Mr. Colon (or his vehicle) that night please contact us. If you have a business in the area that maintains surveillance cameras pointed towards the roadway please save the video footage and contact us as well. You may call us at (561) 266-9191 or email attorney Seth Green at SGreen@Aronberglaw.com.

Our car accident and wrongful death attorneys at Aronberg, Aronberg & Green are grateful to those who take time out of their busy schedule to assist us in pursuing justice.

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David Aronberg <![CDATA[EpiPen Devices Subject to Nationwide Voluntary Recall]]> https://aronberglaw.com/?p=6147 2017-05-01T18:59:22Z 2017-05-01T18:59:22Z Some things just have to work when you really need them. Car brakes, for example: what good are they if they don’t work when you need to slow down or come to an abrupt stop? Also on this list, as our Delray Beach personal injury lawyers at Aronberg, Aronberg & Green know, are EpiPens, medical...

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Some things just have to work when you really need them. Car brakes, for example: what good are they if they don’t work when you need to slow down or come to an abrupt stop? Also on this list, as our Delray Beach personal injury lawyers at Aronberg, Aronberg & Green know, are EpiPens, medical instruments which allow users to inject a life-saving drug into their system to help reverse symptoms of severe allergic reactions and potentially save the user’s life. Learn why EpiPen Devices Subject to Nationwide Voluntary Recall in this blog.

The fact that EpiPens necessarily need to be completely reliable makes a recent voluntary recall of the product so distressing. Late last month, pharmaceutical company Mylan announced that its manufacturing partner for the EpiPen Auto-Injector expanded a voluntary recall of certain lots of the EpiPen and EpiPen Jr. product. The recall, also announced by the FDA, is due to the potential that these devices might contain a defective component that might result in the devices’ failure to activate. As Mylan announced, the recall was issued after the company was made aware of two reports outside the U.S. of the EpiPen’s failure to active because of a defect in a product component provided by a supplier.

A comprehensive list, provided by Mylan, of the affected United States lots of the injectors can be viewed here. Still, if you or a loved one relies on EpiPen products, our personal injury lawyers recommend that you contact your doctor and/or pharmacist immediately to ensure that the product you have is safe and, if it is not, to figure out how to replace it with a reliable one. In addition, check out this webpage run by Mylan, full of information related to the EpiPen recall and how to go about ordering a replacement.

As our Delray Beach personal injury lawyers know, a voluntary recall is one issued based on the company’s own wishes (that is, the recall was not ordered by a government body). Still, just because a company issues a recall on one of their defective products, that does not let them off the hook in the event that somebody still uses the defective product and is injured as a result. For example, in this case, if someone is not aware of the recall, does not replace their EpiPen, goes into an allergic shock and then sustains harm because their EpiPen failed to work, they can still go after the company responsible for the product notwithstanding the recall. So while recalls certainly help limit the number of people who might be harmed due to the defect in the product, it does not necessarily eliminate the risk of liability facing the company.

If you have any questions about this or any other personal injury-related issue, or if you or someone you know has been injured or otherwise harmed due to the negligence or wrongdoing of another, please contact our Delray Beach personal injury lawyers at the Aronberg, Aronberg & Green. To schedule a free consultation with one of our experienced lawyers, please contact us by calling 561-266-9191 or by e-mailing daronberg@aronberglaw.com. We look forward to speaking with you.

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David Aronberg <![CDATA[The Importance of Jury Selection in a Trial]]> https://aronberglaw.com/?p=6143 2017-04-28T20:56:42Z 2017-04-28T20:56:42Z What do you think is the most important aspect of a jury trial? What is the Importance of Jury Selection in a Trial? Facts, witnesses, attorney skill and party likeability all impact how a case turns out, but the most important aspect of a jury trial is completed before the lawyers even make their opening...

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What do you think is the most important aspect of a jury trial? What is the Importance of Jury Selection in a Trial?

Facts, witnesses, attorney skill and party likeability all impact how a case turns out, but the most important aspect of a jury trial is completed before the lawyers even make their opening statements. As our Delray Beach personal injury lawyers at Aronberg, Aronberg & Green understand, the process of jury selection is incredibly important to the outcome of a case. With a favorable jury, even a party with a relatively weak case can be victorious. Without a favorable jury, even the strongest case can result in an adverse verdict. Ultimately, the jury decides the fate of the plaintiff and the defendant, and that is why picking who is on the jury to make that decision is so critical.

At the outset of a jury trial, a process known as voir dire takes place. In voir dire, attorneys representing both the plaintiff and the defendant are given the opportunity to question potential jurors in order to determine whether they will be able to fairly hear the case. As our personal injury lawyers know, in voir dire, the plaintiff’s attorney will try to ensure that none of the prospective jurors who wind up on the final jury are biased against the plaintiff’s position. Likewise, the defendant’s attorney will try to keep anyone who might be biased against the defendant’s position from getting on the jury. Both attorneys are going to argue, of course, that potential jurors who are friendly with or have reason to dislike either of the parties are biased and thus unable to fairly serve as a juror in the case.

But voir dire goes far beyond simple questions such as whether or not a potential juror knows one of the parties. Let’s consider a hypothetical personal injury case which is going to trial. In this scenario, Plaintiff Peter was walking across the street with his dog when he and the dog were struck by a distracted driver, Defendant Doug, working for a courier service. Peter sustained serious injuries and, unfortunately, his dog had to be put down. Peter’s claim is that he was in the cross-walk; Doug claims that Peter jumped out in the middle of the street with his dog.

  • During voir dire, Plaintiff Peter’s attorney is going to look for sympathetic jurors. Among other things, Peter’s lawyer might try to find dog lovers, people who enjoy taking walks, people who have had a friend or family member hurt by a distracted driver, etc. Peter’s lawyer is going try to try to get rid of potential jurors who, say, hate dogs or who have had a family member sued (or been themselves sued) for distracted driving, as they would likely be sympathetic toward the defendant.
  • On the other hand, during the jury questioning process, Defendant Doug’s lawyer is going to want to find jurors who sympathize with the courier, perhaps a potential juror whose family member works for a courier service or who has had a family member sued (or been themselves sued) in a personal injury case. Likewise, Doug’s attorney is going to want to try to get rid of potential jurors who would be likely to be sympathetic to Peter’s case, including perhaps a potential juror who is a member of PETA or another animal rights group, etc.

By and large, once a jury is set it is set. The parties are generally stuck with the jury which emerges from voir dire. This fact makes the jury selection process so important. While the judge overseeing a trial will act as the referee, it is the jury who ultimately makes the decision as to whether a defendant will be held liable or not.

At Aronberg, Aronberg & Green, our personal injury lawyers are prepared to go to trial to maximize recovery for our clients. We make sure that if and when that time comes, we have the skill and experience necessary to select a great jury.

If you have any questions about this or any other personal injury-related issue, or if you or someone you know has been injured or otherwise harmed due to the negligence or wrongdoing of another, please contact our Delray Beach personal injury lawyers at the Aronberg, Aronberg & Green. To schedule a free consultation with one of our experienced lawyers, please contact us by calling 561-266-9191 or by e-mailing daronberg@aronberglaw.com. We look forward to speaking with you.

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