Injury Law Blog : Florida Injury Lawyer & Attorney : LaBovick & LaBovick Law Firm: Serving West Palm, Boynton, North Palm, West Palm Beach, Jupiter

In a unanimous decision, the Georgia Supreme Court voted to strike down the state’s cap on medical malpractice awards. The decision by Georgia’s top court bars the state legislature from limiting the amount of money juries can award to malpractice victims, and effectively eliminates a 2005 state tort reform law that capped jury malpractice awards at $350,000 for pain and suffering.

In its ruling, the Georgia Supreme Court found that predetermined award amounts in instances of medical malpractice are in violation of the state constitution. “The [trial] court held that the statute violates the Georgia Constitution by encroaching on the right to a jury trial, the governmental separation of powers, and the right to equal protection,” Chief Justice Hunstein stated in the Court’s ruling.  “Based on our review of the record and the applicable law, we find that the noneconomic damages caps in OCGA § 51-13-1 violate the constitutional right to trial by jury.”

The high court’s decision pertained to the case Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt et al. In its decision, the court ruled to uphold a jury award of $1.265 million to 75-year-old Betty Nestlehutt, who, in 2006, had a face-lift operation that left her permanently disfigured. The Atlanta Journal-Constitution reports that after the surgery, Nestlehutt’s face was “covered with gaping wounds that required prolonged, excruciating treatments to keep them from becoming infected.” The state Supreme Court’s ruling prohibits any appeal by the defense.

State high court overturns state's tort reform - Atlanta Journal-Constitution Article about the ruling

Ruling Strikes Down Georgia’s Cap on Malpractice Awards – New York Times article on the Ga. Supreme Court ruling

Doctors, Lawyers Square Off on Damages Ruling – 11 Alive Atlanta, Ga. NBC article related to medical malpractice caps in Georgia

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In the City of Parkland the texting while driving debate is heating up.  On Monday night city commissioners made history when they unanimously approved the ban which would make it illegal to send text messages while driving. Fines for violators could be as much as $100. If approved, this would be the first municipality in Broward County to take such measures for driver safety. A second and final vote will be taken on September 23rd.

A ban on texting while driving is not new. Seventeen states including Maryland, New Jersey and California already have such bans; in California the fine is $20 for the first offense.

A recent survey from Nationwide Insurance shows that nearly 80% of U.S. adults support laws banning text messaging while driving,

The survey of 1,008 Americans, found most were in favor of a texting ban. Surprisingly, this was rated high among young drivers born between 1977 and 1988. 

According to Nationwide associate vice president, Bill Windsor, in a recent WSJ article,

Generation Y’s support for driving-while-texting bans — a hot-button topic that has gotten considerable attention in recent weeks — was unexpectedly strong.

Another discrepancy in the texting debate is the contrast of views among drivers from the Northeast and West compared to drivers from the Midwest and the South.

93% of Northeasterners say yes to texting bans, compared with 72% of Southerners — something Mr. Windsors attributes to more congested traffic conditions on the East and West coasts. Drivers in the Northeast and South, however, were the most likely to say they often see other drivers on the phone.

Our message is that safety comes first. The texting while driving debate is going to heat up in Florida.  We look forward to sharing helpful information to readers that will keep our roadways safe. Let us know what you think of the texting while driving ban. We are interested in hearing from our readers on this important topic.

Read the following to lean more on the Texting while driving ban in Parkland and the Nationwide Insurance Survey on Texting while Driving.

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It is finally here: The Florida Seat belt law officially named the Dori Slosberg and Katie Marchetti Safety Belt Law is now in effect. Drivers in the state of Florida can be pulled over for not wearing a seat  belt and ticketed. In Palm Beach County, the ticket will cost drivers $101.00 for not wearing a seat belt.  Buckle up or be prepared to pay the fine.

As we mentioned previously on the Injury Law Blog, this law was named after two young teens tragically killed in a car accident that were not wearing seatbelts. It is believed that they would not have died, if they were wearing seatbelts when the accident occurred. Traffic Safety Champion, and former state representative, Irv Slosberg, said in a recent interview  "This new law is a major victory on the roads".

Capt. Patrick Kenny, of the traffic division in the Palm beach County Sheriff's Office, is in favor of the new law. According to a recent interview on the new Florida Seat belt law, with the Palm Beach Post, he stated the following:

"It's long overdue. Everybody knows that wearing seat belts, they do save lives. Making it the primary reason for a traffic stop gives us the ability to write more citations and make people aware that they need to wear a seat belt."
 

Data from NHTSA on Crash Safety Facts, shows that Florida ranked three in the nation, in 2007 with 3,214 deaths due to car accidents. Texas came in at number two with 3363 car accident related deaths and California came in at number one with 3974 car accident related deaths. 

Let's hope the passage of this new Florida seat belt law will help cut the numbers of unnecessary car accident deaths down in Florida.  It will be interesting to compare our numbers from this year after the seatbelt law goes into place with next year's data. Time will tell if the traffic deaths will continue in a downward direction.

 Important facts regarding Florida's seat belt laws: 

* At all times, passengers in the front seat must wear a seatbelt.

* At all times, any and all rear passenger under the age of 18 must wear a seatbelt.

* At all times, children ages 3 years and younger must be secured in a child restraint seat that is federally approved.

* At all times, children ages 4-5 years must be secured either by a seatbelt or a federally approved child restraint seat.  It is important to note that this can include the use of a booster seat in conjunction with the vehicle seatbelt.

* Drivers of vehicles are responsible for ensuring that children in the vehicle are properly buckled into their seats or using the required restraint devices, there are no exceptions.

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I came across a post by Blogger Barry Barnett for the legal blog, Blawgletter today.  The post was  entitled Video and Witness Prep. Mr. Barnett shared his views on videotaping and trial preparation for a client. In this post, he shared that if you do not adequately prepare a client with crucial foundation, don't bother with the video. 

In an effort to see how a few Personal Injury Attorneys in our law firm viewed witness videotaping, I shared Mr. Barnett's post and the post from Deliberations,  entitled "Why your witness did not get better after watching herself on videotape"., and asked for feedback.

I found the comments from my Attorneys insightful and decided to share a few thoughts on the subject from Brian F. LaBovick and Mark A. Greenberg.

Managing Partner, Brian F. LaBovick, provided the the following comments on the subject:

"We all understand ourselves!  How many times have you gotten into a fight with your loved one where you said one thing and they heard another?  I am sure the answer is plenty.  It is the same reason why witnesses who view themselves on video don't get better. We can't judge ourselves because we understand what we said in the first place.  

In our firm, we believe training witnesses needs objective help. Objective help can't be the lawyer or his/her paralegal training the client.  Objective evidence can be a paid expert; someone who can teach the client how to improve. Objective analysis can include watching yourself on video while at the same time watching mock juror's response to the client. Observing jurors reactions, and or polling them to discuss what they felt during the testimony is the best. It hurts to hear sometimes, but the juror's "truth" is all that counts at trial. It is better to be prepared now, than to be blindsided when the final Verdict is read in court!"

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Don't let the slick, clever misleadind Hydroxycut ad fool you, there’s no real substitute for diet and exercise when it comes to losing weight safely.  Every year millions of Americans turn to so-called dietary supplements to aid in reducing pounds and inches from their waistlines. In many cases, these supplements are no more than combinations of vitamins and minerals or herbal remedies that, while they may not actually cause weight loss, do no harm to those taking them. The FDA recalled several Hydroxycut products made by Iovate.

Is it worth the risk, taking a supplement touted as a miracle weight-loss aid, that can possibly cause dangerous, and even fatal, health problems? Many consumers taking the widely popular Hydroxycut products marketed and distributed by Iovate and Muscle Tech are faced with this dilemma.

According to a warning issued by the U.S. Food and Drug Administration last month, several Hydroxycut products manufactured by these companies have been linked with 23 reports of serious health problems, including jaundice and elevated liver enzymes, potential indicators of the presence or emergence of more serious liver damage which may, in some cases, require liver transplant. In addition to these health problems, the agency also reported one death due to liver failure linked to these Hydroxycut products.

In addition, Hydroxycut users reported other harmful and serious side effects, including cardiovascular problems, seizures, and rhabdomyolosis, a condition in which an individual’s muscle tissue begins to break down, often resulting in severe kidney damage and even kidney failure.

In its statement, the FDA noted that it has not yet determined the dosages associated with injury, and asked consumers to immediately stop using Hydroxycut products, and to see their physician if they experience any of the symptoms which may occur as side effects of Hydroxycut use, including the yellow skin and eyes indicative of jaundice, nausea, vomiting, fatigue, abdominal pain, loss of appetite, itching, light-colored stool, and brown urine.

Hydroxycut products recalled by the FDA include:

• Hydroxycut Regular Rapid Release Caplets
• Hydroxycut Caffeine-Free Rapid Release Caplets
• Hydroxycut Hardcore Liquid Caplets
• Hydroxycut Max Liquid Caplets
• Hydroxycut Regular Drink Packets
• Hydroxycut Caffeine-Free Drink Packets
• Hydroxycut Hardcore Drink Packets (Ignition Stix)
• Hydroxycut Max Drink Packets
• Hydroxycut Liquid Shots
• Hydroxycut Hardcore RTDs (Ready-to-Drink)
• Hydroxycut Max Aqua Shed
• Hydroxycut 24
• Hydroxycut Carb Control
• Hydroxycut Natural

If you have taken these products and are experiencing side effects, contact your doctor. It is better to err on the side of caution and discontinue use of the product. This could help save your life and prevent fatal results.

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Do any of these sound familiar?  "You are in Good Hands with Allstate",  "Like a Good Neighbor State Farm is there", "Better Benefits at work - Unum", "Helping people live healthier lives - United Health. The above mentioned slogans are all from top insurance companies that were listed in the publication Top Ten Worst Insurance companies - How they raise premiums, deny claims, and refuse insurance to those who need it most,  ranked by the American Association for Justice (AAJ).

As a Florida law firm, LaBovick & LaBovick, PA handles personal injury claims from accidents.  We have worked with most insurance, if not all insurance companies, when working on behalf of our injured clients. This post does not mean to bash insurance companies or suggest not purchase insurance. There have been several instances where a client's Uninsured Motorist policy had to kick in, because the person responsible for the automobile accident, had no coverage or insufficient coverage.  It is wise, to have a good insurance agent that you trust and respect, to write an insurance policy. Personally, I have been with my Insurance Agent for 20 years.

Proper coverage is so critical to a driver on Florida's roadways. If you are involved in an accident, and the other party responsible does not have coverage, you will wish that you would have taken out the Uninsured motorist coverage for the extra few hundred a year.  It can save you lots of headaches in the future, if you are injured in an automobile accident. Talk to your agent about proper coverage for your vehicle.

All insurance carriers are not equal.  Some are better than others and some are worse. The AAJ took a look at several insurance carriers and came up with a list of the top ten worst insurance companies. They investigated court documents, records from the FBI and the SEC, Complaints and investigations from State Insurance departments, testimony and deposition from former agents and adjusters, and new accounts from around the country.  The final comprehensive list of the top ten worst include automobile insurers, homeowners insurers, health insurers, life insurers and disability insurers.

There are a few well know advertising insurance companies are absent from the AAJ list they are AFLAC, GEICO, and Progressive.  They must be doing something right, if they managed to avoid the list.

Did you know that the insurance industry takes over $1 trillion annually in insurance premiums? The insurance industry also, has more than $3.8 trillion in assets, according to the Insurance Information Institute. One would think that with all of this money, why on earth would the insurance industry have to deny benefits to clients that were entitled to them.  There is only one thing that comes to mind and that is corporate greed.

In this five part series, we will look at the insurance industry, discuss companies on the ten worst insurance company list and give readers a fresh perspective as to what the companies are doing to improve public opinion and to service customers.

According to the AAJ, the following companies ranked as the top ten worst insurance companies:

1. Allstate
2. Unum
3. AIG
4. State Farm
5. Conseco
6. WellPoint
7. Farmers
8. United Health
9. Torchmark
10. Liberty Mutual

Stay tuned for part two of the series on "he worst ten insurance companies" and what every consumer needs to know when choosing an insurance provider.

Read the PDF of the AAJ's "Ten Worst Insurance Companies"

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Mattel Corp. settled the lawsuits brought against the company for bringing and selling unsafe products within the United States. On Friday, June 5th, the U.S. Consumer Product Safety Commission (CPSC) placed a civil penalty against Mattel for violating Federal Ban on the use of lead paint. The company agreed to pay a $2.3 million sum, though both the company and its subsidiary, Fisher-Price, did not admit to any wrong doing. The moneys to be paid out in this settlement are in addition to a previous a previous finding; in 2008, Mattel ended a 15 month legal probe by paying $12 million to 39 states regarding the importing and attempted sale of the contaminated toys.

The lawsuit stemmed from a discovery of unsafe levels of lead paint found in Mattel toy products that were on store shelves between September 2006 and August 2007. According to the CPSC, nearly 100 varied items were included in the lawsuits, representing several million individual pieces. Mattel issued a recall for the products, which included such popular toy brands as Barbie, Doggie Day Care, Dora the Explorer, and Polly Pocket. Other toys that were recalled included items associated with characters from Sesame Street and the movie Cars.

Parents have every right to feel anxiety about high levels of lead in toys. The CPSC says that lead in paint can cause irreversible brain damage, increased blood pressure, decreased muscle coordination, nerve damage, and reproductive harm in both children and adults. Parents who fear that their children may have been exposed to lead based paint should arrange for lead poisoning screening. Early treatments may reverse the effects of lead poisoning, while prolonged exposure to lead or lack of adequate care may cause permanent damage.

Though some parents have vowed to only allow their children to use organic, unpainted toys, this is an effective but unnecessary step at lead exposure prevention. In order to decrease the contact children may have to possible lead based toys, parents should stay abreast of all product recalls. The CPSC keeps an updated list of all recalled toys at on the Consumer Products Safety Commission website under recalls. Parents should check this site regularly if they are at all concerned about possible lead contamination. Parents should also frequently examine toys and remove those that have chipped or peeling paint, as ingested or inhaled lead is the chief cause of damage. Parents should also attempt to keep children from biting or sucking on painted toys.
 

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Florida Motorists, mark your calendars, on June 30, 2009, the Dori Slosberg and Katie Marchetti Safety Belt Law will go into effect in the State of Florida.Thanks to the valiant efforts of concerned citizens and organizations such as the Dori Slosberg Foundation and the Katie Marchetti Foundation, this law will finally become a reality. This law is named in memory of two Florida teens that were killed in separate traffic accidents and died as a result of not wearing their seatbelts. This new seatbelt law will have far-reaching implications for those motorists that continue to violate the law by failing to wear their seatbelts either as the driver of or as passengers in a vehicle. While many might argue that every individual should have the right to choose whether or not to buckle up on Florida’s roadways, the state feels that it is in the best interest of public safety to enforce safety rules and regulations regarding seatbelts. Hence, Florida motorists will want to be aware of the new seatbelt law and how it will affect them.

While the percentage of motorists wearing seatbelts has increased over the last several years, Florida’s percentage of those that adhere to seatbelt laws is still below the national average. The National Highway Traffic Safety Administration reports that the national percentage of seatbelt use in 2008 was 83 percent. In Florida, the percentage of seatbelt use in 2008 was just under 82 percent. Even though Florida’s seatbelt use percentage is close to the national average, 1 in 5 drivers still do not wear their seatbelts according to the Florida Department of Transportation (DOT). Furthermore, the Florida DOT states that 3 out of 5 motor vehicle fatalities are the result of a failure to buckle up.

Florida joins 28 other states plus the District of Columbia with the passage of th new primary seatbelt law that will allow Florida law enforcement officers to pull over and ticket motorists for simply not wearing their seatbelts. No other type of violation will be necessary under the new seatbelt law for Florida law enforcement officers to make a traffic stop. When the driver or any passengers in the vehicle are not wearing their seatbelts, a Florida law enforcement officer will have a legal right to pull over the car and ticket those not wearing their seatbelts. The state fine for a seatbelt violation will be $30, and each county may impose additional fines and court fees as well.

According to Florida Governor Charlie Crist, "The most important function of government is to protect." With that said, Governor Crist signed into law the Dori Slosberg and Katie Marchetti Safety Belt Law. The Florida Highway Patrol predicts that at least 124 individuals will be saved each year as a result of the state’s new seatbelt law. It is important for drivers and their passengers to be aware of these changes to the state’s seatbelt laws, and drivers should ensure that they and their passengers are buckled up before hitting the Florida roadways beginning June 30.

Check out  the Governor's Highway Safety Association website to learn more about the various state seatbelt safety laws.
 

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After 8 years of attacks and more attacks, we are finally seeing some relief with plaintiff and consumer friendly legislation.

One significant highlight this year is the Supreme Court 6-3 decision in favor of Diana Levine, in Wyeth v. Levine. The Supreme Court decision held that FDA drug regulation does not preempt common law claims for damages under state law. A major step in the right direction.

Additional highlights include three important new bills that were introduced on Capitol Hill:

The Nursing Home Arbitration Act , introduced in the House of Representatives by Rep. Linda Sanchez (HR 1237) and in the Senate by Sen. Mel Martinez (S. 512). These bills would prohibit binding mandatory arbitration agreements in nursing home contracts, safeguarding the legal rights of an all too vulnerable population.

The Sunshine in Litigation Act , introduced by Senators Herb Kohl and Lindsey Graham (S. 537). The Sunshine in Litigation Act, is a bill to restrict protective orders and secrecy agreements in Federal cases where the result of such agreements would be to withhold public health and safety information from the public.

The Medical Device Safety Act, introduced in the Senate by Senators Kennedy and Leahy (S. 540) and in the House by Representatives Waxman and Pallone (HR 1346). This bill will restore the rights of patients injured by faulty medical devices – a right patients lost last year as a result of the Supreme Court’s decision in Riegel v. Medtronic.

Although these bills are a step in the right direction, there is much work to be done. We can only hope that it is made clear that Congress does not intend for FDA regulation to preempt claims against device manufacturers.

Last but not least is The Arbitration Fairness Act of 2009  introduced by Rep. Hank Johnson (HR 1020) in early February. This bill will eliminate unfair binding mandatory arbitration contracts in consumer agreements.

Let's see what the future continues to hold for consumer friendly legislation.

 

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Homa v. American Express represented a major victory in the win column for protection of  consumer rights regarding class actions. According to the Consumer Watch Dog Group Public Justice, this recent victory will make a major difference nationwide, and will serve as a means to stop corporate attempts to get the U.S. Supreme Court to enforce class action bans.

In Homa v. American Express Company, the U.S. Court of Appeals for the Third Circuit rejects the credit card company's arguments that federal preemption, its mandatory arbitration clause banning class actions, and the Utah choice-of-law provision in American Express's agreement would allow it to bar New Jersey consumers from bringing class actions against it. The decision also dismisses -- as inapplicable dicta -- language in an earlier Third Circuit decision that has prompted several U.S. district courts in New Jersey to dismiss class actions in the last year. Companies throughout America have been using language from this earlier Third Circuit case to argue that the lower courts disagree about -- and the U.S. Supreme Court must decide -- whether state laws preserving class actions are preempted, i.e., wiped out, by federal law.

This decision has a huge impact on consumer issues including mass torts and deceptive and unfair trade practices that are practiced by large corporations.

Click here to read the decision from the Third Circuit Court of Appeals.

 

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In a recent Arizona Appeals case, Chalpin vs. Snyder,  the Court, raised several questions in a case regarding an insurance company not paying an insureds claim regarding a car accident. One of the most far-reaching question's is whether an attorney is liable for aiding and abetting in a malicious tort?

This case argues that Snyder, Attorney for the Reliance Insurance Company, assisted and participated in a tort against Hi-Health and its owner Mr. Chalpin, when the company refused to cover a driver-at-fault accident involving Mr. Chalpin’s daughter. Mr. Chalpin’s daughter was covered under the company policy as an occasional employee.

Two additional points of note are that 1) Reliance initially accepted the claim, and 2) Snyder initially held that the claim was valid. It was not until the claim exceeded a five million dollar expense that Reliance sought to disallow the claim. In fact, Snyder advised Reliance Insurance to sue their insured, Mr. Chalpin as a means of minimizing the value of the policy and thus reducing the acceptable settlement amount in the accident claim.

Two courts dismissed motions for summary judgment filed by Hi-Health and allowed the case to go to trial. Their reason was that the evidence as presented raised a credibility issue that was best decided by jury.

The subsequent appeal noted that the credibility issue would not have been present if Snyder had addressed the points of the suit in the motion. In short, Hi-Health claimed that Snyder knew that Reliance had improperly revisited its original decision to cover Mr. Chalpin’s daughter only after it realized the amount of exposure the company would suffer and that the subsequent suit was in fact an effort to shift its losses.

The court noted that Reliance failed to avail itself of a number of alternatives when issuing the original coverage, including modified coverage and deeper initial investigation of the person covered. The fact that Snyder was aware of these options, and initially held that the coverage was legitimate, was Snyder’s undoing.

Under general rule, “a lawyer is subject to liability to a client or non-client when a non-lawyer would be in similar circumstance.” Moreover, “when a lawyer advises or assists a client in acts that subject the civil liability to others, those others may seek to hold the lawyer liable along with or instead of the client.” (Paragraph 45 of the ruling) Thus, the court held that Snyder, due to active involvement in the misdirection of the case and its subsequent motions, was indeed liable and that aiding and abetting was a valid cause of action.

The Supreme Court reversed the trial court’s orders dismissing the aiding and abetting claims and granted summary judgment of the malicious prosecution claim.

Ironically, if Reliance Insurance had authorized the original settlement amount, consistent with the coverage obtained by the policyholder, this case would never have gone to trial.

 

 

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I love election day. I really enjoy going out to the polls. It feels important. It should feel important because it is important!

Voting in America is easy. Because of that, many people take their right to vote for granted. How often do we hear about "elections" in far away lands where there is only one party running? How often do we hear about military juntas hunting down opposition voters and terrorizing or killing them to keep their party in power? How many countries are affected by election or voter fraud? There are too many, far too often. 

 

Here in America we have peaceful organized and honest voting. We have such smooth elections that our voting right is now boring. This is especially true for the primary elections. What was the worst voting problem to happen during an American election in the past decade? Do you recall the hanging Chad? Thankfully, no one rushed to pick up arms and start shooting at the Republicans or Democrats. You may laugh, but that is exactly what could happen in many places around the world.

 

I believe every citizen has more then just the right to vote. I believe we each have an obligation to vote. We live in the "freest" country in the world. It takes no longer then 15 minutes to vote. You only need to vote once or twice every few years. Your vote is the easiest formal action you can take to insure the freedom of our great land.

 

Republican, Democrat, Green Party, Independent, I don't care. Exercise your right to vote. I recognize you are one vote among millions and millions. It does not matter. Your vote can make a difference.

 

Thanks for exercising your freedom to vote.

 

Stepping off the soapbox!

 

Brian

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Have you paid your Insurance premium lately?  If so, your premiums are helping the Insurance Industry account for over $1 trillion in annual premiums and amass over $3.8 trillion in assets, which happens to be more than the GDPs of all but two countries in the world, the United States and Japan. Despite this overwhelming success, the Insurance still try and do anything to avoid paying claims for their clients.

The consumer rights organization, American Association of Justice, released the comprehensive report, The Ten Worst Insurance Companies in America: How They Raise Premiums, Deny Claims, and Refuse Insurance to Those Who Need It Most." This report highlights 10 of the worst insurance companies for consumers based criteria such as, SEC and FBI records, testimony from former insurance agents and adjusters, court documents and more. 

The report ends with making a call for "Pro-Consumer Insurance Reforms" and making a suggestion for the following three points:

1. Require Insurers to Work in Good Faith

2. Require Prior Approval of Rate Increases 

3. Establish an Insurance Consumer Advocate

The remainder of the top 10 list of worst insurance companies for consumers is rounded out by the following:

1. UNUM, - Disability Insurance, Life insurance, supplemental and accident insurance
2. AIG,  - Auto insurance, life insurance, accident and health insurance,  property and casualty
3. State Farm, - Auto, life, health, home owners insurance and health insurance
4. Conseco, - Health Insurance, Life Insurance and Annuities
5. WellPoint, - Health benefits Company
6. Farmers Insurance  - Auto, Life and Homeowners Insurance
7. UnitedHealth, - Health care Insurance
8. Torchmark, - Holding Company offering life and supplemental health insurance
9. Liberty Mutual - Auto, Life, Homeowners and Commercial Insurance.

Over the past 16 years, I have handled thousands of Personal Injury cases against several of the companies on this list and a host of others.  I can attest firsthand that some companies are better than others at handling claims for their Insured and helping the needs of the injured.

I find it no surprise that Allstate made the top of the list, nor am I not surprised by the findings of the report: The Ten Worst Insurance Companies in America". I do find it strange however, that the insurance companies are so quick to harm and work against the interest of their own insured clients.

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Judge Jeffrey Winikoff, a well respected and admired member of the legal community, died of a heart attack on Tuesday.   While at a Photo exhibition at the West Palm Beach Palm Beach Armory last week, we were given the news that Judge Winikoff had a heart attack. This was especially sad to us since we had brought many cases before him and always found him to be a Judge with integrity, fairness for both sides, and belief in Justice for all.  He was only 59.

When told of the news of Judge Winikoff's death, Attorney Carl Wald, stated "Judge Winikoff is one of the finest Judges I  have ever appeared before. The Judiciary has lost one of its finest, but his memory will live on forever."

Funeral Services for Judge Winikoff  will be held Friday at 12:30 p.m. at the Beth Israel Memorial Chapel, 11115 Jog Road west of Boynton Beach, with burial afterward at Eternal Light Memorial Gardens, 11520 State Road 7 west of Boynton Beach.

This sad and untimely loss raises the importance of supporting the American Heart Association. If you want to find out more on how you can get involved or support the American Heart Association, contact your local American Heart Association office today.

Our thoughts and prayers go out to all of the family and friends of Judge Winikoff. The Sun-Sentinel has a Guest Book in honor of Judge Winikoff. Loved ones and members of the Community give their heartfelt sympathies to the Winikoff family.  Click on the following Sun-Sentinel Guestbook link to add your words of encouragement to the family.

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Florida's budget crisis is now coming to the Courts. In light of recent budget shortfalls, the Florida Legislature has increased court fees, which is expected to generate approximately $121 million additional revenue for the state.  Governor Charlie Crist, recently signed  CS/SB 1790, a bill that increases over 140 court-related fees, effective
July 1, 2008.

It is important to note that the Florida Legislature regulates court fees and not local officials. The Court fees have not been adjusted since 2004. The list includes Traffic Court Information such as Speeding Ticket fines. If you are always in a hurry and get a lot of speeding tickets, it will cost you a lot more for speeding.  Driving 20 miles over the Speed Limit will cost you at least 231 and driving 30 miles over the Speed Limit will cost you $331. Ouch... That is a $100 difference between 10 miles.  Be wise and don't Speed.

If you take the Florida Turnpike or other Toll Highways and fail to pay the toll, it will now cost you $181, plus the toll amount.  Keep your Sunpass Transponder updated and fully loaded.  Otherwise, the Florida Turnpike and our Toll Highways will start to become just as painful as it is to fill up your pump.  Be Wise, keep change in your car and keep your Sunpass funded. The auto-replenishment method, is starting to sound like a bargain.

 Click on the following link to view a list of the new court fees. 

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Preemption is a huge issue for the average American and I wonder if the public is paying attention. Last week as reported in the LaBovick Injury Law Blog, Congress had a hearing to discuss the issue of preemption. On all accounts, it appears to have been a success. One of the key speakers, Actor Dennis Quaid, discussed his experience with the drug Heparin, which almost killed his twin newborns. His testimony was so moving that even a total tort reformer, like Rep. Tom Davis, was moved to state that if "this had been my kids, I'd be suing everyone in sight. This should not happen."

The public does not seem to get the fact that this is a HUGE separation of powers issue. The right to sue is part of our JUDICIAL system. It is the way America, as a society, permits the common man to address problems he may have with other people including corporations and even our government. The Judicial system replaced the rule of Hammurabi, which was an eye for an eye. We also have a Legislative Branch, which makes the rules, and an Administrative Branch that applies the rules and keeps order (police, fire, army, road crews, etc). We can not allow the Administrative Branch to take away our right to access to the judicial branch. It messes up the balance of our government and our entire social makeup! Do you know how deeply this harms our system of government? I know it feels innocent and easy on the surface, however the implications of a dictatorship rule is scary!

Click here to read the testimony of key witnesses and Chairman Waxman's Opening Statement addressing the legal liability of manufacturers that produce dangerous drugs and medical devices before the Committee on Government Oversight and Reform.

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In what is the most anti-tort opinion from the Supreme Court ever to hit the shelves of the Library of Congress Justice Scalia delivered a terrible and scathing opinion creating bonafide Federal preemption to regular tort claims. Here is the low down on Riegel vs. Medtronic: The Supreme Court agrees that the Federal Government has created a pre-emption clause within Federal Statute 21 U.S.C. Section 360. This means that if the Food and Drug Administration (FDA) give "Pre-market Approval (PMA) to any medical device and that device is defective and hurts, kills, infects or otherwise harms human beings (read: United States Citizens), that the human beings have the right to go scream in a bucket, because they can’t do anything about it. The FDA said the device was OK and that is the final word. No joke. The FINAL WORD! Sure the FDA may, eventually pull the product after a few hundred deaths, sure the FDA may fine or otherwise slap with figurative company wrist. However, you, the injured, dead or otherwise harmed individual or family, just need to ... learn to live with it.

The court, in its first few paragraphs, related the story of the Dalkon Shield, an intrauterine device that harmed thousands of women. The court made a broad accusation that the Dalkon Shield created a barrage of tort lawsuits that proved the common law tort system (read: American System of Justice) is defective and unable to properly handle tort claims related to medical devices. The court gave no basis for this opinion, except for the fact that there were many tort claims filed because thousands of woman here harmed by the Dalkon Shield. For most of America the Dalkon Shield cases were proof, similar to Ford Pinto cases, that Corporate profit motives outweigh human safety all too often, even with Federal oversight.

Are medical devices so special that they get special handling or special rules compared to any other "device" produced today. If the court system cannot properly handle medical devices then why it is able to handle front-end loaders that have a "device defect" that kills people. Why can the court properly handle tire defect cases, roof crush, seat belt failures, or any other "non-medical" device that harms people? It is illogical. The only logical position is that medical devices interact with the human body in a more intimate and significant way so they need additional protection from lawsuits. I feel the exact opposite. The fact that a medical device is such an intimate thing leads me to believe that the law should garner the human participant in using the medical device MORE not LESS protection from device defects.

The language of 21. U.S.C. section 360 states as follows:
Except as provided in subsection (b) see below of this section, no State or political subdivision of a State may establish or continue in effect with respect to a device intended for human use any requirement (emphasis added) -
(1) which is different from, or in addition to, any requirement applicable under this chapter to the device, and
(2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under this chapter." Section 360k(a).
(The exception noted in subsection (b) allows the FDA some latitude in giving local and State government oversight in some limited instances, which were not covered by the court in the opinion.)

 

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New Jersey drivers will be fined $100 if they are caught using a hand held devices to talk or to send text messages while driving. Starting Saturday, March 1, 2008, the new law went into effect. Police will be issuing fines for $100 if they catch drivers in the act of texting or not using a hand held device while driving.

New Jersey is among four other states, New York, California, Connecticut and Washington, D.C., to have such laws. According to a survey done by Nationwide Insurance, 73 percent of drivers use cell phones and 20 percent text while driving. The New Jersey Gov. Jon S. Corzine signed the legislation giving police more authority to target drivers using hand-held cell phones, and making it illegal to send text messages while driving - distractions legislators contend make for risky driving. The law however, allows drivers to use hands free devices to talk on the phone.

Do Hands Free devices make the roads safer? According to reports from the transportation officials, nearly half of the 3,580 phone-related crashes in New Jersey involved a hands-free device, Five of 11 fatal accidents involving a cell phone that year also involved a hands-free device. This data was from 2006. Russ Rader of the Insurance Institute for Highway Safety said those figures are consistent with recent research showing no difference in crash risk between hand-held and hands-free cell phones.

Although, Florida has not joined the pack in banning texting and cell phone use without a hands free device, We urge you to use caution and common sense.  If you are driving, pay attention to the road and do not text and drive.  If you must send a text, pull over, stop driving and send your text message. After you are finished, compose yourself and proceed with caution to get back on the highway if you have pulled over.  If you do not have one, go out and purchase a hands free device for your cell phone. However, as the statistics above show, driving while not concentrating can cause accidents even with a hands free device.  Always exercise caution while driving and talking.  Your primary focus should be operating your vehicle safely and paying attention to what is happening on the roadway, not your phone conversation, which can be a distraction.

Click here to read more on texting and cell phone use bans from 6ABC.com, AP and the Gainesville Sun

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Dear Readers,

I recently read a Washington Post.com article Telecom Firms' Need For Immunity Stressed.  The article made me think of how the path to hell can be paved with good intentions.  How often are actions that are meant to do good, in the end lead to disaster? The post 9/11 terrorist / "Patriot act" / Telecom Immunity is exactly that type of mentality. If we continue to follow President Bush to restrict our right to privacy then we might as well congratulate Osama Bin Laden on winning the war, because the war isn't about oil, money or land. The war is about the idea of freedom. The beautiful thought of freedom.

In the closed societies of the Taliban, Hammas and many other places in the world people do not have the freedom to speak, to organize, to freely think in the privacy of their own homes. They can't talk out about the government without facing criminal sanctions. In fact, this Blog may deserve a jail sentence in many parts of the world. We must realize that our need for security is balanced by our need to keep the freedoms we take for granted alive. We must be diligent not to let these rights slip away under our noses while we hunt for terrorist threats. This isn't to say I don't believe in the terrorist threat, I just believe we need to play by our own rules in catching them in our own country. Changing the rules to hunt for terrorists leads to changing the rules to hunt for criminals, which leads to changing the rules for you and me.

As a former prosecutor with the Department of Justice, also married to a former prosecutor, that has complete trust and faith in our system, albeit imperfect, I am not ready to change the rules on privacy so quickly.

Off the soapbox:

Brian

Click here to read more on Phone firm phones and immunity to privacy suits by the Washington Post.com and the recent article Telecom Firms' Need For Immunity Stressed in the Washington Post.com

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Lawmakers reached a compromise on a Consumer Product Safety Senate bill. It is the first major overhaul of the nation's consumer product safety system in a generation.

The deal, was a bi-partisan effort, being led by Sens. Mark Pryor (D-Ark.), Daniel K. Inouye (D-Hawaii) and Ted Stevens (R-Alaska). There was a lot of behind the scenes maneuvering, but the congressional members managed to come to a compromise to address last year's product liability claims and recalls for  millions of Chinese-made toys, including iconic playthings such as Barbie and Thomas the Tank Engine. 

Click here to read more from the Washington Post on the Senate Consumer Product Safety bill.

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We would like to mention that the week of February 4 - February 8, 2008 has been named "Teen Dating Violence Awareness and Prevention Week by the Senate. 

In an effort to spread the word and shed more light on this important issue, the American Bar Association Division for Public Education and the Commission on Youth at Risk recently introduced elements of the Toolkit as a curricular component of a new partnership between the ABA and the Girl Scouts of the U.S.A. The curriculum, "Take Charge: Violence Prevention, Conflict Resolution & Law," has evolved into a national pilot program through which hundreds of teen Girl Scouts in 11 major U.S. cities are being introduced to the teen dating facts, warning signs, and prevention recommendations. At the conclusion of the program, girls participate in a mock trial involving domestic abuse, with volunteer lawyers and law students coaching the girls through their roles. Since its inception, Toolkit elements have been used by high schools and community organizations across the nation and in U.S. territories, as well as by military base schools and schools that serve military families in the U.S. and abroad. 
Click Here for elements of the ABA Toolkit.

 

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Texting while driving is becoming trendy and dangerous.  It is not uncommon to see someone text while driving these days, especially teens. Let's not forget the Blackberry Crowd. They are equally dangerous to drivers on the road.  One New Hampshire Lawmaker  is doing something about it, Nashua's David Campbell has filed the paperwork for a bill to ban two-handed texting or typing on any electronic or telecommunications device while driving. According to Campbell in a recent Associated Press article,  "You need at least one hand to operate a motor vehicle,'' a police officer told him cell phone texting isn't the only problem. Some drivers are typing on laptop computers while behind the wheel." He seeks only to ban two-handed typing or texting.

In a recent accident involving a 17-year old, text messages were sent to and from the teen driver before the deadly crash involving a tractor trailer crash.  This is any parents nightmare. Their teen dying at the wheel, while on the phone.  Adults are not immune to texting while driving. According to Lynch Ryan  Worker's Comp Insider Blog,"You can make a case that a vehicle can be operated safely while the driver talks on a cell phone - preferably with a head piece - but no case can be made for safe driving while the operator's eyes are actually focused on the mobile device. Texting, like alcohol, does not go with driving."  I agree wholeheartedly.  The cell phone providers should do more to bring awareness to the dangers of texting while driving. According to a recent study by AAA on teen texting while driving habits, nearly 46% of teens, text while driving.  

Blogger, Anne Donnegan, hit it nail on the head, when she said, more people may have to die in DWT accidents, before legislators eventually see the light and pass a bill banning DWT.

Thankfully, lawmakers around the country are introducing legislation to curb this dangerous behavior. A few brave champions, such as Washington State, Phoenix and New Hampshire are writing legislation on Driving while texting.

What are your thoughts on texting while driving?  Should it be illegal?  What is better a fine or points on a license? The answer remains with concerned citizens. Do you want your loved one killed or injured by a driver that is texting?  If not, find out if your local city or state has a ban on DWT - Driving While Texting. If not, contact your local lawmaker and suggest this legislation. Share what other cities are doing such as: Washington,  Phoenix, and New Hampshire. Make a difference and let your voice be heard in the fight to end DWT accidents.

Click here to read more from the Insurance Journal

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The House voted Tuesday, 265-159  to expand the State Children's Health Insurance Program, or SCHIP, by $35 billion over five years. However, the Democratic-led victory may prove short-lived because the margin was too small to override President Bush's promised veto, according to an Associated Press Article.

President Bush vows to veto the bill because of costs, reliance on a tobacco tax increase and potential for replacing private insurance with government grants.

SCHIP is a state-federal program that provides coverage for 6.6 million children from families that live above the poverty level but have trouble affording private health insurance. The proposed expansion, backed by most governors and many health-advocacy groups, would add 4 million children to the rolls.

SCHIP is set to expire Sunday. To avert that, congressional Democrats plan to extend it temporarily with a larger spending bill to keep the government running when the new fiscal year begins Oct. 1. The strategy would prevent Democrats from being blamed or letting the health program lapse by not reaching an accord with Bush, lawmakers said.

What can you do to get involved? Contact your local Legislative Representative regarding this critical issue.  Of course there are details that still need to be worked out, however, it would be reprehensible to let these poor children go without healthcare.  Join in the fight to provide healthcare for children. Do not let this important issue become a tug of war between the democrats and republicans.

Join Esther Uria LaBovick, Esq. and our firm in letting your Congressional Representative know how important this issue is to our Children in America, by contacting them personally.  If you do not know your local Congressional Representative, go to www.Congress.Org, to find your Congressional Representative's contact information. Don't delay, every vote counts for this critical legislation.

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In a recent Press Release from The American Association for Justice, the organization praises a report by the nonprofit Center for Progressive Reform. The report  "The Truth About Torts: Using Agency Preemption to Undercut Consumer Heath and Safety" suggests that the Administration has forced federal agencies to claim their regulations preempt state laws, despite lacking any constitutional authority. These actions contradict Congressional intent and, frequently the agencies’ own policies. According to the new report,  state laws are preempted through regulatory rulemaking authority. The preemption provisions are often slipped in at the last minute without any chance for public comment. 

Among the preemption measures:

• The National Highway and Traffic Safety Administration (NHTSA) declared its rules on seat-belts and roof-crush resistance would preempt state common-law claims, despite previously rejecting the concept.
  
• The Food and Drug Administration (FDA) declared a rule on drug labeling preempted state tort law despite the fact that the agency had long held the opposite view.
  
• The Department of Homeland Security (DHS) also adopted preemption provisions, despite the fact that the Senate Homeland Security and Governmental Affairs Committee had expressly rejected such an approach just a year earlier.
  
• The Consumer Product Safety Commission (CPSC) and Federal Railroad Administration (FRA) have been criticized for trying to preempt state law.

Click here to read the report: "The Truth about Torts: Using Agency Preemption to Undercut Consumer Health and Safety".

Key figures testifying at the Senate Judiciary Committee hearing this week on “Regulatory Preemption" were Georgetown Professor David Vladeck, attorney Collyn Peddie and Donna Stone, state representative from Delaware and the current President of the National Conference of State Legislatures.

Testimony from State Representative Donna Stone

Testimony from Professor David Vladeck

Testimony from Attorney Collyn Peddie

Click here to read more from the AAJ on the Judiciary Committee Hearing.

Agencies such as the Consumer Product Safety Commission (CPSC), Food and Drug Administration (FDA), and The National Highway and Traffic Safety Administration (NHTSA) set out to protect the health and safety of Consumers. Let's hope that the Judiciary Committee meetings help to prove this point loud and clear so that we can all work together towards the fight for consumer justice.

 

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Beware:  What is done in the dark, will come to the light, sooner or later. The attorneys in Kentucky are wishing they would have adhered to this principle. They are now faced with criminal charges and must repay at least $62.1 million in settlement funds and interest, to their 400 clients they represented in Fen Fen Cases, according to Special Judge William Wehr.

The Attorneys, William J. Gallion, Shirley A. Cunningham Jr., and Melbourne Mills Jr., to repay $42 million taken from the settlement and $20.1 million in interest. What were they thinking? They started out with best intentions and ended up getting corrupted by greed. Greed is not good. Especially, when you have to hurt and exploit the people who hired you to help them.

Hopefully, this will send a message to the bad apples in the legal community that give the majority of trial lawyers a bad name. This is bad for the legal profession, bad for the consumers and bad for society at large.

Click here to read more on the story from Associated Press.

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This week LaBovick & LaBovick joined a great statewide cause: Getting Insurance for Florida's Uninsured 718,000 Children so they can get health care benefits at a price their families can afford through the state-subsidized program.  We agreed to be a Corporate Partner, in helping spread the word in an effort get as many uninsured kids enrolled during Open enrollment of Florida KidCare.

Now, you may ask why are we mentioning this on our LaBovick Injury Law Blog, the answer is simple: We want to help. We want our Readers to know about this program and to Join us in making a difference. This is for the kids. 

The Florida KidCare program accepts applications year-round from families with uninsured children under the age of 19. Children enrolled in the program receive regular doctor’s visits, immunizations and routine vision and hearing screening. Most families pay a premium of $15 or $20 a month.

“Working families with uninsured children should be given every opportunity to enroll in KidCare,” said Esther Uria LaBovick. “We’re in contact with these families regularly and it makes sense to use these opportunities to share information about KidCare and encourage families to complete the application for this quality healthcare program.”

Families can apply online 24-hours a day on the Florida KidCare Web site - www.floridakidcare.org, which is a one-stop source for information about program benefits, costs and enrollment status. Information and printable applications are available in English, Spanish and Haitian Creole. Families can call (1-888-540-KIDS) to receive an application by mail or get answers to any questions they may have about KidCare.

Please share this message with people who can benefit fro having insurance for their uninsured Children. It is easy, affordable, and available to qualified parents.  Call (1-888-540-KIDS) or visit www.floridakidcare.org for more information.

Application in English 

Application in Espanol

Application in Haitian/Creole

We are proud to be a corporate partner and work local organizations on spreading the news about the Florida KidCare program! We will be in the community distributing literature at local venues. Esther Uria LaBovick will be speaking about KidCare on “Hablando con la Comunida” – News Ch.5 WPTV and “Nuestro Pueblo” – News Ch. 48 WWHB, Azteca America Affiliate and on Around our Town - WTVX - CW Network.

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Home Depot along with five other companies are facing litigation for the grout product Stand 'N Seal that was exclusively sold at Home Depot. Over 160 people across the country  have brought 31 product liability suits against The Home Depot and five companies tied to the manufacture and distribution of Stand 'N Seal, claiming that using the product permanently damaged their health. The lawsuit claims are ranging from loss of lung, respiratory breathing problems to death.

The interesting part of this litigation is that Home Depot was notified about the defective product, however, did not remove all of the product from its shelves, until 19 months after the Consumer Products Safety Commission issued a recall on 300,000 cans of cans of Stand 'N Seal. The litigation has a lot of finger pointing of who is to blame.  Is the retailer, Home Depot responsible, since it sold the product to the consumer? Is the manufacturer, tile perfect, a division of the Roanoke Companies, a leading manufacturer and private label company? Is it the company SLR, Inc that produced the product for Tile Perfect? Is it the Georgia-based Innovative Chemical Technologies or the South Carolina based company, Ortec Inc. that is responsible because they allegedly were involved with the formulation of Flexipel?  Time will tell, which of these five companies will ultimately bear the blame of the unfortunate injuries to the consumers of the Stand N Seal grout product. 

Click Here to read more about this story from Law.com and the Fulton County Daily Report.

The Law Firm, LaBovick & LaBovick, Civil Justice Prosecutors, is a Plaintiff’s firm. LaBovick & LaBovick focuses on fighting for personal injury victim’s rights in Florida and on qui tam (whistleblower claims) nationwide.  The firm handles all serious injuries, car accidents, boating  accidents, wrongful death, slip & fall, toxic torts and product liability cases. The firm has office locations in Boynton Beach, West Palm Beach, Jupiter and Port St. Lucie, Florida. Visit the firm website at www.labovick.com more injury information.

 

 

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Steve and Evelyne Tremain, will never have a happy ending, despite winning a $24.5 million judgment from the federal government over a "botched baby delivery" for their son Toby. Their son will never live a normal life.

Four years ago, Evelyne Tremain went to the hospital with labor pains. Instead of having a doctor on hand during the complicated delivery (as required), a Midwife, presided over the entire delivery. Since, Evelyne, had a Cesarean with complications, prior to this pregnancy, her doctor informed her that she was "high risk" should not use a midwife in this delivery. Unfortunately she received a "Midwife Delivery" instead, and a doctor was not involved until it was too late. The child, Toby Tremain, is impaired and tragically injured as a result of the medical care provided by the Air Force at St. Elizabeth's Hospital in St. Louis. The judge wrote in his ruling that the Air Force medical providers confused military rank with what was best for the patient. The midwife was a Major and the obstetrician was a Captain at the time of the delivery.

Click Here to read more on this case in the St. Louis Post Dispatch.

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A trial lawyers victory of a $14.1verdict for a personal injury client, struck by a taxi cab was short lived. The judge cut the verdict down to $3.2 million, saying the jury award deviated "greatly" from awards typical in such cases. The Judge based her numbers on awards given to other plaintiffs with comparable injuries.

The Plaintiff was a former secretary that suffered a compound fracture of her right leg and underwent six surgical procedures, including bone and muscle grafts, and had rods inserted into her leg, with minimum success. Her injuries prevented her from working  and limited her physical activities.  

The verdict was not thrown out, instead, the Judge ordered a new trial on the pain and suffering issue, unless the plaintiff agreed to reduced awards for past and future losses. The award for lost earnings, medical expenses and spousal loss of services, totaling  $3.2 million stands. 

 Click Here to read more about this case in the Staten Island Advance.

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