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11-year-old injured in fall at Marlins Park

What should have been a joyful family experience at the ballpark turned into a nightmare over the Memorial Day weekend. A father stood with his cellphone camera poised, videotaping his 11-year-old daughter scale a climbing wall set up just for kids at Marlins Park in Miami.

The girl had reached the top, and began to make her way back down, when something went terribly wrong. The safety harness that was intended to protect the girl while she enjoyed the wall reportedly failed. The girl plummeted from the face of the wall-crashing to the ground below.

Exactly what went wrong with the safety equipment remains sketchy in the public media. Certainly, Miami premises liability attorneys know that safety issues in public areas are important in any case. Generally, parents should be able to expect that safety equipment will perform the task it is designed to perform.

After the recent accident at Marlins Park, the girl’s father is now urging parents to check the safety equipment that kids may use. He went to the ballpark on a holiday to enjoy our national pastime and, instead, watched in horror as his child fell from the wall. She had fallen backward when, for apparently yet unknown reasons, her safety harness came loose. The 11-year-old fell to the concrete below-hitting her head on the cold hard concrete.

The girl’s father rushed to her side. He frantically checked for a pulse–some sign that his daughter would be okay. Then he heard sounds that, under the circumstances, gave him some form of comfort. He told NBC News that, “About that time, that’s when she first started gurgling and moaning, making these beautiful noises.”

The girl says she remembers the cable snapping. After that she said from her hospital bed, “All I remember was seeing everything kind of fall as I was, and then I blacked out.” Medical personnel checked the girl out after her arrival at Holtz Children’s Hospital in Miami. Doctors say the girl suffered a concussion, but she had escaped the accident without breaking any bones. She suffered serious bruising from the accident.

Concussions have gained a heightened awareness in the public’s eye recently. Issues among former professional athletes and soldiers returning from overseas after suffering head trauma have placed head injuries on the public agenda. This blog discussed the issue of concussions and brain injury in the aftermath of Junior Seau’s tragic suicide earlier this month.

The Marlins issued a statement wishing the girl “well in her continued recovery.” The Marlins closed the climbing wall after the accident, which remains under investigation. The vendor operating the wall reportedly has not made any public comment.

By: Jason Neufeld

Settlement Demand Package

Before initiating litigation, especially if it concerns car accidents, your attorney will give the other driver’s insurance company (or your own, if making an uninsured motorist claim) an opportunity to settle.Settlement Demand Package

After you finish medical treatment, your car accident attorney will prepare what is commonly referred to as a demand package (also referred to as a settlement package, demand, or demand letter).

The demand package starts off with a demand cover letter, usually no more than 2-3 pages long, that includes (i) a concise statement of when and how the accident occurred; (ii) a thorough explanation of our theory of how the other party was negligent (addressing any weaknesses head on); and (iii) a summary of damages (e.g. related injuries, prior related medical bills associated with those injuries, pain and suffering, cost estimate of necessary and related future medical care); and (iv) the settlement amount demanded.

With the demand letter, we will include the following exhibits:

(a) car accident police report; (b)  photos of vehicle damage; (c) photos of the client (before the injury, during treatment, and after treatment has completed); (d) medical records (including doctor’s notes and diagnostic imaging results); (e) witness statements; (f) pay stubs / income tax returns, if making a lost-wages claim; and (g) the appropriate jury instructions (that would apply if a lawsuit were to be filed).

If damages are more than the policy limits, the demand letter would also warn of a potential bad faith claim against the insurance company.

If you would like to speak to a miami personal-injury attorney, please call 800.379.TEAM and ask for Jason Neufeld or he can be emailed directly at jneufeld@nkplaw.com.

Boat Injury Verdict – $350,000

Boat Injury Verdict - $350,000Several weeks ago, Neufeld, Kleinberg & Pinkiert was approached by another law firm. This other law firm represented a man who was injured when an old wooden set of stairs (connecting a yacht to the dock) collapsed as the man was disembarking from the vessel. The owner of the boat had been previously notified of the stair / gangplank’s shoddy condition, but elected to avoid making any repairs or replacements. The man was significantly injured.

Knowing of David Kleinberg’s reputation as a relentless, yet entertaining and incisive advocate in the courtroom, the other law firm – only two weeks before opening statements – asked if David would step in as lead counsel to try the case.

Since the boating accident occurred while the client was technically a “crew member,” maritime law controlled and so the case was brought in Broward County Federal Court.

The trial lasted only four days. The jury took a day and a half to deliberate but, earlier today, returned a verdict of $350,000.

Personal Injury Mediations (Pt 2)

Yesterday’s personal injury mediation blog post discussed personal injury mediation preparation. Now that we’ve set our best foot forward, here’s a summary of what will happen on the day of the actual mediation. Clear your calendar because mediations are slow and time-consuming events. If the mediation doesn’t end within an hour (i.e. it becomes obvious that one side doesn’t want to settle, or doesn’t have the authority to settle for a reasonable amount), my experience is you will be at the mediation center for at least 4-5 hours, if not the entire day.

Personal Injury Mediations 2Typically, you will meet your attorney at a mediation center, which will have a kitchen with coffee, soft drinks and snacks. You will first meet in a room where you can speak privately with your attorney. You’ll then go to a larger conference room where you will sit next to your attorney and opposite defense counsel and usually an insurance adjuster. The mediator will sit at the head of the table.

The mediator will introduce themselves, tell you about their experience handling personal injury cases, that they are not a judge (i.e. they cannot force you into anything), that nothing presented or discussed during the mediation will be admissible in a court of law, and that the main benefit of mediating a case is that of certainty. Anything can happen when a jury is involved. You take a substantial risk in failing to compromise at mediation because at or after trial (a) you may lose the case outright and (b) you may be required to pay defense counsel’s fees. But if you settle, you (c) know exactly the result and (d) you would get money sooner (within weeks of settling at mediation) as opposed to waiting months or years before getting to trial.

Then your attorney will give a short opening statement.  Beforehand, you and your attorney will decide if you should say anything during this opening statement. If I have a client that is prone to dramatic angry outbursts; or does not communicate their thoughts well; or is extremely shy – I will usually advise my client to stay silent. But, if the client is polite, articulate and appropriately emotional, I may decide to let them speak if they wish (what is said will be planned beforehand to avoid the client accidentally revealing information deleterious to their case) – about how the injury has affected their life. This can humanize, and set my client apart, to an insurance adjuster who is simultaneously handling potentially hundreds of other files at the same time.

Afterwards, the defense counsel will give their short opening statement. Their purpose will be to highlight your case’s weakesses and, sometimes, to intimidate you. While I will not interrupt a defense attorney pointing out our case’s shortcomings (that is his/her job), I will cut them off if they are rude, treat my client with disrespect, or engage in other inappropriate behavior.

Finally, the parties will separate. You and I will go into our own room and the other lawyer and adjuster will go into another. The mediator will then bounce back and forth between rooms conveying messages and offers/counteroffers in an attempt to find some acceptable middle ground.

If you would like to speak to a miami personal-injury attorney, please call 800.379.TEAM and ask for Jason Neufeld or he can be emailed directly at jneufeld@nkplaw.com.

Personal Injury Mediation

Personal Injury MediationOccasionally, there are pre-suit mediations. But for purposes of this personal injury blog post, I am going to discuss the more typical mediation variety.

If you have an upcoming personal injury mediation, chances are that pre-litigation negotiations broke down and you have filed a personal-injury lawsuit. In Florida, mediations are required before an injury case can go to trial.

Usually, the defense attorney will suggest one or more mediators they deem acceptable. My first instinct, whenever a defense attorney suggests anything, is to question their motive. In this case, it is obvious they are suggesting mediators that they have used before with some perceived success. Most experienced mediators have reputations in the legal community; so unless the mediator is known to be too “defense friendly” or if they do not have significant experience handling personal injury cases (for example, simple car accident cases, with typical injuries, do not require as much technical knowledge as a complex defective products cases or a car accident case that involves traumatic brain injury), I may consider agreeing to one of the defense attorney’s suggestions; here’s why:

  • the defense attorney is more likely to trust the advice given by a mediator they have used before. If I can combine this psychological advantage with the confidence that I will be able to illustrate my client’s fantastic personal injury case, I believe the mediator will be better equiped to move defense counsel into a compromise more advantageous to my client.

Next, I may send a position paper to the mediatior in advance of the mediation. This will outline the basic facts, our case’s advantages along with the other side’s shortcomings. If our case has some obvious shortcomings, I would address those as well to minimize its impact. There are case-specific facts (that may be positive or negative) that I may choose to leave out – depending on a multitute of reasons (e.g. whether I think the case has a reasonable chance of settling or as part of a larger litigation strategy).

I may also send a modified version of that same position paper to opposing counsel (any portions I instruct the mediator to keep confidential, must be kept confidential – i.e. will not be relayed to defense counsel). Here’s why:

  • A few days or a few weeks prior to the mediation, defense counsel will try to estimate (give a range) of potential settlements to the insurance company that will ultimately pay any settlement agreed upon. The insurance company will then give the defense attorney the “authority” to settle the case for no more than x dollars. So, if the defense attorney fails to consider an angle that is advantageous to the plaintiff, their settlement authority may be set artificially low – thus dooming the mediation before it even starts.

If you would like to speak to a miami personal-injury attorney, please call 800.379.TEAM and ask for Jason Neufeld or he can be emailed directly at jneufeld@nkplaw.com.

Man sues warehouse after slip and fall accident causes injury

Man sues warehouse after slip and fall accident causes injuryThe Centers for Disease Control and Prevention estimates that roughly one million Americans sustain some level of personal injuries in slip and fall / premises liability accidents. While slapstick Hollywood and cartoons have been known to depict such accidents as involving the proverbial banana peel on the floor, slip, trip and fall cases can arise in a wide variety of ways.

Miami personal injury lawyers know that slip and fall injuries can be severe. In fact the CDC says that as many as 17,000 people die each year from a slip and fall accident.

Recently, a worker in the Midwest filed a premises liability lawsuit against a communications company. The man was at a facility to deliver a load of cables for the communications business. While in the building, the delivery man says that he needed to use the restroom and asked a person who worked in the warehouse for directions to a restroom.

The warehouse worker reportedly gave directions to the delivery man, and the guest followed the exact route toward the restroom. While en route, the delivery man found himself on the floor. He had fallen. Immediately, he says, he began to feel a burning sensation in his limbs. He thought that he could feel his skin burning, and thought he had fallen into some form of solvent on the warehouse floor.

He says that he suffered pain, disfigurement, huge medical bills and more as a result of that slip and fall accident. As it turns out, the warehouse was stripping its floors. The delivery man says in his lawsuit that the person who had given directions to the restroom apologized after the accident and said that he forgot that the floor was being stripped.

The injured delivery man has filed the personal injury lawsuit claiming that not only was he given directions through the solvent, but that the warehouse and its workers were negligent in failing to post warning signs near the wet floor. He says the company was negligent in failing to warn of the slippery conditions, and the business failed to properly supervise the construction workers who were stripping the floor.

The injured man says the accident has reduced his ability to earn a wage, has cost him with extensive medical bills, caused him pain and has required him to undergo extensive medical procedures. He seeks to recover in court for what he has lost.

Source: The Madison Record, “Slip on solvent leads to lawsuit,” by Kelly Holleran, May 17, 2012.

If you would like to speak to a miami personal-injury attorney, please call 800.379.TEAM and ask for Jason Neufeld or he can be emailed directly at jneufeld@nkplaw.com.

Claims against Florida government, subdivisions, public hospitals

Historically, the state and its subdivisions and agents could not be sued – enjoying what is known as sovereign immunity. Modern government entities, however, recognize that their employees and agents occasionally act negligently – causing serious injuries to good law abiding citizens, and that it would create a great injustice if those who are so injured were unable to recover money for their injuriesm and pain & suffering, the way they could if the injury was negligently caused by another private citizen or corporation. So states, including Florida (and its subdivisions and agencies -i.e. cities, counties, public hospitals, etc..) passed legislation that waives their sovereign immunity, subject to certain limits.

Claims against Florida government, subdivisions, public hospitalsFlorida Statutes Sec. 768.28 governs the waiver of sovereign immunity, sets limitations on attorneys fees and provides for other limitations:

Attorneys Fees

  • Capped at 25% (in either settlement or verdict/judgment)

Damages Caps

  • These public entities will not be liable for paying, either by settlement or judgement, more than $200,000 for an individual injury or $300,000 out of any one occurrence (regardless of how many people were injured in that single occurrence).
  • If a claim or judgment exceeds these limits a claims bill may be brought in front of the legislature, which may or may not approve any settlement or judgment in excess of $200K per individual or $300K per occurrence (this only happens under extraordinary circumstances).

Notice Requirements / Statute of Limitations

  • If the claim is against a municipality, that municipality must be provided with written notice (an opportunity to settle or deny the claim) within three (3) years of the negligent incident, otherwise a law suit cannot be filed.
  • If the claim is against any other government entity or agency, both the relevant agency and the Florida Department of Financial Services must be provided with written notice (an opportunity to settle or deny the claim) as well within three (3) years of the injury, otherwise a law suit cannot be filed.
  • In Florida wrongful death cases, the statute of limitations/notice requirements is only two (2) years.
  • If the above notice requirements are met, a law suit may be filed within four (4) years for general negligence actions or within two (2) years for medical negligence actions.

Included with the above notice requirements, potential plaintiffs must report their date and place of birth, social security number, and whether they owe any money (fees, fines, judgements, etc..) to the state in excess of $200.00.

If you would like to speak to a miami personal-injury attorney, please call 800.379.TEAM and ask for Jason Neufeld or he can be emailed directly at jneufeld@nkplaw.com.

Four killed, one critically injured in fiery I-95 car accident in Martin County

Four killed, one critically injured in fiery I-95 car accident in Martin CountyFour people lost their lives in a fiery head-on collision on Interstate 95 early Sunday morning; one person is in critical condition. The Florida Highway Patrol says that a Port St. Lucie woman was traveling the wrong-way on 1-95, when her Jeep SUV slammed into a Chevrolet Silverado. A passing motorist stopped to lend assistance at the horrific accident scene, but was only able to free the 41-year-old Port St. Lucie woman after the crash.

Both vehicles burst into flames after the head-on car accident. Four people were trapped inside the 1982 Chevrolet, including two adults and two children. All four occupants of the Chevy lost their lives in the 1-95 crash. The Florida Highway Patrol says the Chevrolet was traveling properly in the northbound lanes before the wreck.

A Port St. Lucie man arrived at the accident scene after the car accident. He saw the Chevrolet fully engulfed in flames, and he suspected that the Jeep was on the verge of bursting into flames. The Good Samaritan knew there was nothing he could do for the accident victims in the Chevy, but he saw an opportunity to save the life of the sole occupant of the Jeep.

The passer-by and two others pulled the woman from her vehicle just before the Jeep burst into flames. The woman pulled from the Jeep was flown to Lawnwood Regional Medical Center and Heart Institute’s trauma center in Fort Pierce after the wreck. Authorities say that she suffered critical injuries.

The driver of the Silverado was to turn 29-years-old on Monday was one of the four killed in the head-on collision. The driver, an adult woman and one of two kids in the Chevy were from Chattanooga, Tennessee. A fourth person in the pickup reportedly was a 9-year-old child from Miami.

The Good Samaritan says that as a family man, he did all he could do to save a life, according to the Palm Beach Post. He knew that nothing could have been done for the victims who died in the horrific wreck. Authorities say that the passerby suffered unidentified personal injuries during his rescue effort.

The head-on car accident occurred in the northbound lanes of I-95 about a-half-mile from the Martin Highway just before 2:20 Sunday morning. The fatal accident remains under investigation.

Source: Palm Beach Post, “Officials ID 4 killed in fiery head-on crash on Interstate 95,” James Kirley, May 14, 2012

Some Recent Drug Recalls

Some Recent Drug RecallsWhile we want to be able to trust the products we purchase in stores and pharmacies, it is an unfortunate fact of life that some of these products are deemed dangerous after they have been sold to you the consumer – thus requiring a recall.

Luckily, most recalls do not involve catastrophic consequences. Below are a few recalls that have been announced in late 2011 or 2012:

Motrin IB Recall

12 million units were recalled in November, 2011 because they did not dissolve as fast as necessary. The health risk is minimal – however if a dose is taken after a prior failed to dissolve properly, there is some risk of overdose. Symptoms may include: tinnitus, blurry vision, stomach ache, diarrhea, heartburn, nausea, potential loss of blood in stomach/intestines, rash and (in rare circumstances) coma.

Avastin Recall

Avastin is used to combat some forms of cancer. In August, 2011 some serious problems were discovered in some Miami and Hollywood, FL patients. Some started contracting serious bacterial infections (Streptococcus endophthalmitis), which can lead to blindness and brain damage in certain cases. The infections were linked to a repackaging pharmacy in Hollywood, FL that failed to take proper precautions in their drug-packaging process.

No Doz Recall / Excedrin Recall

There is a potential mixup in the packaging of prescription-strength pills instead of over-the-counter-strength pills. Some also suspect that folks who purchased No Doz got Excedrin instead. The announcement was made in January of 2012. The resulting complications may requires a wrong prescription attorney.

Pradaxa

The product, used as a stroke-preventing blood thinner, is manufactured by Boehringer. The company recently announced that Pradaxa has caused internal bleeding in hundreds of patients.

IKEA High Chairs (Antilop)

In January, 2012, the restraint buckle found on children’s IKEA “Antilop” High Chairs was found to easily loosen and/or unexpectedly release. Obviously, active children who are not properly restrained in a high chair are at considerable risk of falling and therefore may require a traumatic brain injury attorney. Approximatly 170,000 units have been recalled.

If you would like to speak to a miami personal-injury attorney, please call 800.379.TEAM and ask for Jason Neufeld or he can be emailed directly at jneufeld@nkplaw.com.

Junior Seau’s death renews public awareness of brain injuries

The recent suicide death of former Miami Dolphins player Junior Seau shocked the football world. In the aftermath of the original breaking news, many people suspected that the suicide may be linked to brain injuries the former NFL superstar may have sustained during his professional football career. Seau played for several teams, and appeared in 12 Pro Bowls.

Junior Seau's death renews public awareness of brain injuries 1Brain injuries among professional athletes have received growing attention in recent years. Seau is not the first former pro to commit suicide. Dave Duerson and Ray Easterling also took their own lives over the course of the last year, and many say the suicides may be linked to successive concussions that led to serious traumatic brain injuries.

Junior Seau’s death was tragic – hopefully it can bring more awareness to better understanding TBI (traumatic brain injury) and helping others with TBI obtain the help and services they need.Junior Seau's death renews public awareness of brain injuries 2

The NFL is receiving criticism for how it has historically handled concussions among players. More than 1,200 former NFL football players have filed a class-action personal injury lawsuit against the league on a claim that the organization has been negligent in failing to protect players from the debilitating effects of brain injuries.

Brain injuries do not only affect professional athletes. Miami personal injury lawyers know that brain injuries can occur in a wide variety of situations. At least 1.7 million Americans suffer brain injury each year. Car accidents remain the leading cause according to the Centers for Disease Control and Prevention. Other accidents, including such situations as a slip-and-fall accident at the local supermarket, a bump to the head in day to day activities or many other situations can involve head trauma.

Any type of head trauma can lead to a brain injury. That means any bump to the head can result in some level of brain injury, from concussions, to more severe forms of TBI. Concussions can have complications, and as the medical profession continues to learn more about traumatic brain injury, parents should note that children can be susceptible to issues from head trauma.

Medical professionals say that most brain injury victims recover fully. However, some people can experience symptoms for days, weeks, months and longer after a blow to the head.

Sources:

NBC Miami, “Experts Connect Brain Injuries Suffered During Football to Suicide,” Diana Gonzalez, May 3, 2012

Journal Tribune, “Seau’s death shows NFL must address head injuries,” May 8, 2012

If you would like to speak to a miami personal-injury attorney, please call 800.379.TEAM and ask for Jason Neufeld or he can be emailed directly at jneufeld@nkplaw.com.

Miami area hit-and-run accident results in bicyclist’s death

Miami area hit-and-run accident results in bicyclist's deathA fatal hit-and-run car and bicycle accident that took place in the Miami area is receiving media attention due to the driver involved so far having escaped all criminal liability. The accident also raises pedestrian and bicycle safety concerns as the victim of the crash happened to be a cyclist.

The driver thought to be responsible for the crash was reportedly at a Coconut Grove bar before the accident occurred. At approximately 6:00 a.m. the driver then got behind the wheel of a car and struck two bicyclists that were riding eastbound on Rickenbacker Causeway. The driver then left the scene of the accident and one of the bicycle riders died several hours later.

Finding out precisely what occurred has proven difficult. The suspect turned himself into police some 12 hours later purportedly after police discovered damage to the suspect’s vehicle. However, because there was such a delay in locating the suspect police were unable to administer any blood alcohol test that would show whether the driver was impaired at the time that the accident occurred.

Family members and friends of the deceased bicycle rider will undoubtedly be frustrated by the inability of authorities to prosecute the suspect thought to be responsible for the crash. Lack of evidence appears to have made it impossible to convict this individual for criminal wrongdoing.

Yet a failure to press criminal charges does not mean that such individuals are out of options. Family members of the deceased bicyclist may still have the ability to pursue a wrongful death action against the driver in civil court. Personal injury attorneys can admit certain evidence into civil cases that may not be allowed to be brought in a criminal matter. Also, such attorneys may have additional resources to commence an independent investigation as to what occurred.

Sadly, the bicycle rider that died was a 36-year old father of two children. It appears that his life was tragically cut short due to the carelessness of another individual. Though it can never make up for the loss of a life, a wrongful death action may at least make it possible for his children and family to be compensated for what occurred. Perhaps it will also bring added attention to the need for more safety when it comes to drivers and bicycles sharing the road.

Source: Huffington Post, “Aaron Cohen Hit-and-Run: Michele Traverso Reportedly Escapes DUI Manslaughter Charge,” May 4, 2012

If you would like to speak to a miami personal-injury attorney, please call 800.379.TEAM and ask for Jason Neufeld or he can be emailed directly at jneufeld@nkplaw.com.