Cases of Note

Construction law/premises liability

Mr. Lewis, the operator of the temporary elevators you see on a construction project, ran out of the elevator cage when it was at ground level under an emergency situation and tripped and fell over a door which did not fully open. He injured his neck, requiring surgery. The jury in 1985 awarded him $990,000 reduced by 30%. The case is important because it established that a hoist, just like an automobile, is a dangerous instrumentality, so that the owner of the project was liable for its negligent construction. Lewis v. Sims Crane Service, Inc., 498 So.2d 573 (Fla. 3rd DCA 1986)

Assumption of Risk/Premises Liability

Case 1

Mrs. M. was delighted to go to the opening of the Kendall Ice Rink on Mother’s Day in 2000. She had learned figure skating as a youth and went with her family to demonstrate her skills. Little did she know that the pipes below the ice were constructed with half the contracted-for freezing ability. So as she skated, she fell backwards over a soft spot on the ice, just over the defective pipe, and fractured her skull. The jury awarded her approximately $1.4 million. This cases illustrated that just because an activity such as ice skating can be inherently dangerous, and even the best skaters can fall, not every fall is the skater’s fault. The pipes underneath the skating rink were replaced and corrected thereafter. M. v. Kendall Ice Arena (2000)

Case 2

There aren’t many female jockeys in horseracing, but Ms. Hughes was one of them. Tough and gritty, she loved horses and loved to compete. But at Calder Race Track, some male jockeys were allowed to cut off the female jockeys without being penalized. Then Ms. Hughes was penalized, becoming a paraplegic after she was cut off by a reckless male rider. The case went to trial with the jury finding 85% negligence against Calder, and then settled for a confidential sum. This was the first such case in Florida where a jockey during a race was allowed to recover for the reckless riding of another jockey, and once again showed that even though horseracing is very dangerous, the jockeys need protection against those who needlessly exposed them to more danger than they bargained for. A juror on the case sent Keith an email which said: “Although serving in this case has put my job at risk and no doubt my work environment will be made very hostile by my boss, it has been well worth it! For the first time in my life, I feel as though I truly have made a difference in someone’s life. I hope that the ruling in this case will help make Corporations more aware of their responsibilities in protecting their employees and in enforcing safe and fair policies.” Hughes v. Calder Race Course, Inc. (2003)

Medical Malpractice

Case 1

Mr. A. went to Westchester General Hospital because he had pain when in his legs. He then began coughing up blood. His doctors routinely ordered tests, and he died of a pulmonary embolism. Of note the defense presented the testimony of a Yale physician to say Mr. A.’s death was not preventable, even in the most skillful medical hands. Keith was able to cross examine this physician expert witness with his own books that he wrote, to show the jury that what the doctor was saying on the witness stand, and what he wrote about good medical care for this type of disease, were entirely different. The jury in 1988 awarded the family about $1.4 million, and the case settled thereafter. A. v. Westchester General Hospital (1988).

Case 2

Mr. S. went to a local Miami hospital because he was suffering from the dts. He was a longtime alcoholic. Early one morning, he began to thrash in his bed, and the nurses called his doctor to ask if he wanted to come in to see his patient. His doctor ordered sedatives because he assumed that Mr. S. was suffering from the dts, and said he’d see Mr. S. in the morning. However, Mr. S. was actually going into respiratory depression and needed oxygen. Unfortunately Mr. S. suffered a cardio-pulmonary arrest, nearly died, and suffered brain damage as a result. The case settled against the hospital but went to trial against the doctor. Conventional wisdom would dictate that Mr. S.’s jury should not be composed of nurses of other hospital personnel because they would tend to side with the doctor, but Keith allowed 2 nurses and one hospital technician to sit on Mr. S.’s jury. This was a calculated gamble because it turns out that the doctor defended his failure to come into the hospital or order any tests on Mr. S. on the hospital’s nurses. The jury awarded damages of $1.8 million. S. v. Shapiro, et al (1991).

Case 3

Mr. Pino’s wife developed pneumonia after successfully having open heart surgery. To get better, she was intubated. No one likes to have the tube down their throat and despite having her arms tied to the sides of her bed, she was able to pull the tube out. But she needed the oxygen it would deliver to her lungs in order to recover. The hospital wanted the tube replaced but she Mrs. Pino refused. Her doctor was called and said there was nothing he could do if the patient refused the intubation. But Mrs. Pino was mentally incompetent, so she couldn’t refuse this treatment. So the hospital her husband to consent for and then said he refused reintubation for his wife. As a result, Mrs. Pino died. The jury awarded damages of $1 million and the case settled against the hospital. The award against the doctor was reversed on appeal on the grounds that Mr. Pino properly refused his wife’s treatment. Pino v. Rodriguez, 634 So.2d 681 (Fla. App. 3 Dist., 1994).

Medical Malpractice/Presuit Procedure

For years the physicians and hospitals have sought to cap the amount of compensation that the injured patient may receive, regardless of the injury inflicted. For example, as crazy as it sounds, are you aware that in certain cases, the negligent health care provider can limit the damages of a person’s pain and suffering to $250,000 – regardless of whether the person has lost an arm or leg, has to spend their life in a wheelchair, or has died? Keith has fought against these caps both in court and out. One such example is Damus v. Parvez, 556 So.2d 1136 (Fla. 3rd DCA 1989). The court ruled that the defendant cardiologist had to have a medical report that enabled him to deny that he was guilty of malpractice in order to deny negligence as one of his defenses to the failure to properly treat and diagnose Mr. Parvez’s heart attack. The case settled for a confidential sum after this ruling.

Landlord-tenant/premises liability

Mr. Smith was a tenant at an apartment complex where the landlord refused to do maintenance in the parking lot. As such, Smith’s car kept on getting scratched by overhanging trees and bushes and the apartment building kept on having power outages when the branches would fall on the wires. So Mr. Smith took it upon himself to cut these trees, got out his ladder, then fell and fractured his heel. Originally, the trial judge blamed this accident on Mr. Smith alone but the appeals court reversed. Smith v. Grove Apartments, 976 So.2d 582 (Fla. 3rd DCA, 2007). Then Mr. Smith had his day in court, and recovered a jury verdict of $476,000, reduced by 40%. The landlord just can’t stick his head and ignore his duty to maintain the apartment building, both inside and out.

Chair Collapse/premises liability

All Mrs. Sanchez wanted was a quiet night at the movies with her husband. So she sat in her chair at the United Artists Theatre, and the bottom of the chair fell to the ground. It turns out these chairs were breaking regularly and the movie theatre had plans to replace them. Meanwhile, customers kept on getting hurt. Mrs. Sanchez required back surgery, and the case settled for a confidential sum. This case is important because through legal discovery Keith was able to learn about all of the prior incidents of chair failures at the theatre, and have these prior customers come forward to describe that their accident was just like Mrs. Sanchez’.

Products Liability/Over-the-Counter product causes loss of smell and taste

Mr. Hood purchased Zicam, a nasal inhalant, to stop the cold he felt coming on. He put it up his nose and then lost his sense of smell and taste. Throughout the country similar customers were experiencing the same thing. But the company that manufactured Zicam never warned anyone about this. Many lawyers banded together to sue Zicam and obtained a rather sizable settlement. But Keith and Mr. Hood decided to go it alone because the amount of compensation Mr. Hood would’ve received was too small for such a large loss as his ability to smell and taste. Others tried to do the same thing, but failed because courts refused to let very reputable and fine physicians testify about how patients lost their senses of smell and taste. Then Keith had the breakthrough case, Hood v. Matrixx Initiatives. Inc., 50 So.3d 1166 (Fla. 4th DCA 2010), which held that the doctor should be allowed to testify. The case is awaiting a trial date.

Automobile Accident

A doctor who broke both wrists can’t practice medicine until he heals, and his wife who broke her leg can’t be pushed around in her wheelchair. The van that hit the doctor was uninsured, but the doctor was smart enough to purchase underinsured motorist insurance coverage on his own vehicle. This 1997 accident resulted in a settlement of $1.45 million within 10 months of the accident, the full amount of the available insurance. Any attorney practicing automobile law must understand how to interpret insurance policies to obtain the maximum benefit for his client.

Lastre-Torres v. Burger King

Lastre-Torres v. Burger King - $940,000 verdict reduced by 10% comparative negligence for a young man who was told to clean Burger King's restaurant equipment with a face shield. The Court subsequently awarded Keith Chasin $550 per hour for his attorney's time in procuring this award because the proposal for settlement was exceeded by $640,000.