THE FLORIDA LAW BLOG

THE FLORIDA-LAWBLOG

The Florida Lawblog, is a publication by S & F Media LLC,  and covers current legal topics, and stories of interest in Florida law. Some content  is based on guest commentary, or links to previously published articles, and court cases which have appeared in other publications. Posts may include the opinion of contributing authors, and readers are encouraged to view the referenced materials and links, and come to their own conclusions. You should not rely on any information contained within this site when making legal decisions or handling legal matters.  This site is limited to Florida law topics, and does not constitute legal advice, nor does this site constitute an advertisement or solicitation for business, always seek the advice of a lawyer in your state before making any decision or taking any course of action on any legal matter. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide to hire a lawyer, ask them to send you free written information on their qualifications and experience.

For more information or a free consultation on your legal issue contact Scott and Fenderson PLLC, your injury law and family law attorneys, at 727-321-0099. http://www.scottandfenderson.com #scottandfenderson

 

Florida man sues Just for Men hair dye maker after being scarred

An Orlando man claims his face is permanently scarred after using a Just for Men product to dye his beard, alleging it contained an ingredient that can cause burns, scarring and allergic reactions.

Just for men ingredients include the following: Ethoxydiglycol, oleyl alcohol, vegetable fatty acid, Ethanolamine, erythorbic acid, Trisodium EDTA, Polyguaterium-22, p-Aminophenol and p-Phenylenediamine, Resorcinol, and Hydrogen Peroxide. P-Phenylenediamine, also referred to as PPD.

In a federal lawsuit filed last month, David Collier, 62, alleges he developed a severe reaction after applying the Jet Black chemical dye to darken his beard. The defendants named in the lawsuit are Combe Products, Inc., which manufactures Just for Men, and Walmart, where Collier says he bought the product. Collier claims he suffered permanent scarring and discoloration on his face from using a men’s hair dye. In the lawsuit, Collier alleges the maker of Just for Men, failed to warn consumers that they could have allergic reactions to its Just For Men hair dye. The lawsuit also alleges African-Americans face a much higher risk of allergic reactions to an ingredient in the hair dye than white customers do.

The included product instructions advise people to test a patch of skin for allergic reactions before using the product. Users are advised to test a patch of skin and wait up to 48 hours for any signs of an allergic reaction and to seek immediate medical attention if they experience side effects such as a severe rash, swelling of the skin, dizziness, shortness of breath, and weeping of the skin.

Just for Men is sold in 15 countries, and in the United States for over 25 years. Numerous men have reported problems with Just For Men on ConsumerAffairs.com web site. Many of the complaints about the hair dye product were from customers who have used Just For Men for 10 years or more. The reported injuries from using the product include; blistering of the skin, severe itching, swelling and rashes, painful burning sensation, scarring, and weeping sores on the skin. In some cases, users have had to visit the Emergency Room to receive treatment for their symptoms.

HAVE YOU BEEN INJURED BY A PRODUCT here are some steps to follow:

1. Keep the product, and the packaging
2. Keep the receipt where you purchased the product
3. Take photos of any visible injury you have received
4. Seek medical attention
5. Consult with an attorney

The Insurance Industries Fallacy of ‘Pre-existing Conditions’

IN HEALTH INSURANCE

What is a pre-existing condition? This is strictly an insurance term that was created to characterize a particular health condition a person applying for insurance may have. The vast majority of people have pre-existing conditions. They may range from migraine headaches or chronic back pain, to cancer. The insurance industry is using pre-existing conditions as a pretext to deny coverage when someone applies for insurance. We hear politicians using pre-existing conditions as a political talking point, in particular with regard to the affordable care act. As many as 130 million adults under age 65 in the U.S. have pre-existing conditions that could result in their not being able to get insurance coverage in the private market, according to the Department of Health and Human Services. Before the Affordable Care Act became law, insurance companies routinely declined health insurance coverage to people who had ongoing medical conditions or recent illnesses. Even when insurers offered policies to those with health problems, they often excluded those illnesses. And insurance companies could cancel coverage for people who became ill once the policy year ended. The ACA made all those practices illegal. By withdrawing from defending the law in court, the Trump administration is saying it no longer supports those consumer protections, which are popular with voters.

IN AUTO ACCIDENTS

What most people don’t know is that the insurance industry has decided to use pre-existing conditions to deny coverage for injuries received as a result of other peoples negligence.

When a person is involved in an auto accident, or slip and fall, as a result of the negligence of another person or business, the first course of action for any lawyer is to pursue recovery from the insurance coverage of the person or business responsible for the injury.

The insurance industry now attempts to blame any and all injuries a person incurs on some type of pre-existing condition that person may have had, even if that condition was ten or more years prior. The standard response from insurance carriers when a claim is made for injuries, rather than attempting to pay the claim, is to demand that the injured person provide the name, address, and phone number of every medical provider they have ever seen in the past ten years, and to sign a medical release form so that the insurance carrier can obtain all the persons prior medical records.

When any injury shows up, regardless of how remote, the insurance carrier cries “pre-existing condition” and either denies the claim or low balls the offer to settle. In many cases, the injured party has made a full recovery from the prior injury and has had no symptoms for years and years, until the new accident happens. Despite full recovery and years of being symptom free, the insurance carrier cries “pre-existing condition” and denies the claim or offers so little that the claim is effectively denied.

This is why injured persons need the help of a lawyer more now than ever if they are injured as a result of the negligence of others.

The 'Frye' Standard Is Now the Law in Florida

Thinking about taking your case to court, this is important news.

In a crucial 4-3 decision, in Delisle v. Crane, Case (No. SC16-2182) (Oct 15. 2018), the Florida Supreme Court has clarified the law governing the admissibility of expert witness testimony in Florida—moving away from the Daubert standard utilized in federal courts, to the Frye standard.

Prior to this decision, the Florida courts were unsure whether to analyze expert testimony and corresponding pretrial motions under Daubert, or Frye, so most trial courts utilized Daubert.

In 2013 when the Florida Legislature modified Florida Statute Section 90.702 to adopt the Daubert standard, despite the Florida Supreme Court’s repeated affirmations of Frye. In the Delisle decision, the Court held that the Legislature overstepped its authority when it adopted Daubert, because the manner in which trials and litigation are to be conducted are "procedural" matters—which are entirely within the province of the Florida Supreme Court under Article V, Section 2(a) of the Florida Constitution.

Delisle will save plaintiffs money. Testing or investigation that may have been required under Daubert will likely no longer be necessary. Under the Frye standard, a plaintiff must demonstrate that its expert is using methods that are "generally accepted" by the community of similarly situated professionals.

Under Daubert, the expert’s methods had to be "scientifically reliable" and based on literature. Plaintiffs had to overcome the substantial hurdles of testing methodologies, statistical probabilities, and margins of error. As the court stated in Delisle: "Frye relies on the scientific community to determine reliability, whereas Daubert relies on the scientific savvy of trial judges to determine the significance of the methodology used."

In a concurring opinion, Justice Barbara Pariente explained that the Daubert amendment to Section 90.702 had "the potential to unconstitutionally impair civil litigants’ right to access to the courts." Pariente explained that "defendants often exploit the requirements of Daubert as a litigation tactic against plaintiffs attorneys." In addition, she acknowledged that Daubert hearings, which were in essence mini-trials, produced a "minefield clogged" with pretrial hearings that were "lengthy, technical and diffuse."

The testing costs, and addressing as many as 25 to 50 defense Daubert motions seeking to exclude multiple experts from testifying (and the corresponding multiple day-long evidentiary hearings) caused tremendous hardship to plaintiffs. Costs and legal fees increased by hundreds of thousands of dollars, and in some cases in excess of $1 million. This scenario often forced plaintiffs to abandon their claims or settle for less money due to these financial pressures. Defendants and their insurance carriers consistently utilized these litigation strategies to grind down plaintiffs and force them to accept lower settlements prior to trial.

In construction cases in particular, insurance carriers providing a defense to developers, contractors, architects, engineers and manufacturers often waited until the outcome of the Daubert hearings before analyzing the true value of the case—since there was a significant possibility of striking the expert testimony supporting the plaintiff’s claims. Therefore, Delisle is a monumental game changer, especially in large multi-party construction cases. It alters the balance of power between plaintiffs and defendants, and levels the playing field.

The court acknowledged that juries are capable of evaluating the credibility of competing expert testimony in making their decision and that trial judges should not usurp the jury’s role.

NEW FLORIDA LAWS OCTOBER 1, 2018

Several new laws went into effect in Florida effective October 1, 2018, here is a summary of those new laws.

FIRST RESPONDERS
The change for first responders (SB 376) would expand workers’ compensation insurance benefits for firefighters, police officers, paramedics and emergency-medical technicians who suffer from PTSD.

ANIMAL CRUELTY
The new law, named “Ponce’s Law” after the puppy, allows judges to bar people convicted of animal cruelty from owning pets. The legislation also increases the severity ranking of animal-abuse related crimes, making it more likely that offenders would go to jail upon conviction, also creates policies and procedures for animal shelters to use after natural disasters, such as hurricanes, to return lost pets to their owners.

PAYING FOR GUN BACKGROUND CHECKS
HB 55 allows people buying guns to use credit cards to pay for background checks. They have been required in the past to pay with personal checks, money orders or cashier’s checks.

DEAF REGISTRATION OF VEHICLES
-- HB 135 allows deaf people to voluntarily identify themselves as hearing-impaired when they register vehicles. The idea, which came from a Tallahassee police officer whose son is deaf, is intended to prevent communications issues with deaf drivers that could inadvertently lead to confrontations.

TRESPASS ON AIRPORT PROPERTY
-- HB 523 increases penalties to a third-degree felony for people who trespass on airport property to injure other people, damage property or impede the operations of aircraft. The bill is in reaction to instances since 2014 in which people got onto property at Florida airports, including Orlando International, Tampa International and Miami International.

BEER GLASSES WITH LOGOS FROM BREWERS OR IMPORTERS
-- HB 961 allows businesses such as bars to receive up to 10 cases of branded glassware --- 24 glasses per container --- a year from brewers or importers. Supporters of the “beer glass” bill maintained that the change would allow small businesses to save on the cost of glassware. But a number of craft brewers opposed the measure, arguing it would allow a small number of brewers who could afford the costs to flood the market with company-branded glassware.

IS THE AGGRESSIVE LAWYER BETTER?

In law school, we are taught that ours is a noble and civil profession populated by genteel intellectuals guided in their every action by the rule of law. What a shock it is, then, when we encounter an "aggressive lawyer" for the first time, that one attorney who is the complete opposite of what we have been taught to expect. We are in a deposition, and this aggressive attorney may be rude, condescending, hostile, disruptive, vulgar, and/or disrespectful. We are caught by surprise and may not be prepared for how to react or respond. How we handle the situation reflects on the type of attorney we are, on our firms, on our clients, and on our profession in general.

For the general public, finding the right  lawyer can be a daunting task. For some clients it may be their first experience with the legal system, aside from a traffic ticket.

It can be tempting to look for a lawyer who claims that he or she is aggressive.   It is common to see on attorney's website, or during your meeting with an attorney, the self-proclaimed declaration about how "aggressive" they are;  a real "pit-bull" lawyer who loves to cross-examine the police, the defendant, the opposing party, or to make unreasonable demands to a claims adjuster.   This is done with the belief that being "aggressive" will somehow get you, the client,  a better result.   

Here are some reasons to consider a calm, cool and confident lawyer:

1. Aggressive does not mean effective - An aggressive attorney often makes few friends in the courthouse. The judges often have little patience for certain aggressive tactics, such as refusing to agree to a new hearing date. An effective attorney will compromise on procedural issues, realizing that a case is won or lost with arguments and facts, not tricks. You will also find that fighting over such procedural issues often does little more than waste time and money. Ask any judge, and they will tell you that they are tired of lawyers who cannot get along with one another, who argue over the most minute aspects of their case, who accuse other lawyers of misdeeds, who complain about imagined slights, who hold hard-and-fast to deadlines without accommodation or courtesy, and the list goes on.

2. Aggressive attorneys have a harder time reaching settlements - You may think there is no way that you will settle your current case, however statistics show otherwise; upwards of 90 percent of cases settle before trial. Settling a case is far cheaper than going to trial, and attorneys fees are higher for trial, not to mention the extra cost of expert witnesses.  Aggressive tactics, especially when dealing with claims adjusters may result in the claims adjuster digging in their heels and sticking with a low ball offer, ultimately resulting in your case having to go to trial rather than settle.

3. Aggressive attorneys are often not realistic - A good attorney will help you understand what the court is likely to consider in your case. He or she will explain the factors the court (or jury )  will consider in determining an award in your case.   An aggressive attorney may not give you a reasonable or realistic assessment of the likely outcome, leaving you unprepared for the final settlement or jury award.

4. Aggressive attorneys may alienate the opposition -  claims adjusters and defense lawyers are turned off by aggressive tactics, which may thereby reduce or eliminate the possibility of a reasonable settlement, and may result in low settlement offers.

5.  "Aggressive" lawyers are often hated by other lawyers - Lawyers discuss among themselves how to handle these obnoxious fellow lawyers, and try to mentor younger lawyers to not behave that way.  Good Lawyers Don’t Just "Try" Cases; Good Lawyers Try to "Resolve" Cases. If other lawyers hate you, then you will have an uphill battle when trying to resolve your clients case.

Family law attorneys can probably attest to this fact the most. Aggressive lawyers run up legal fees, eliminate any likelihood of cooperation between parents, and leave children as the victims of litigation. The same is true for civil litigation. Sparing with opposing counsel or writing aggressive letters or emails is useless.  Engaging in aggressive behaviors does not change the facts or the law of your case

Overall, while it might initially be tempting to find an aggressive attorney for your case, you may ultimately find that a more calm and reasonable attorney will better suit your long term needs.

To be an effective lawyer, you need to win people over. You do that by being prepared, courteous, and firm. You don’t do it by being aggressive.

LAWYERS SHOULD NOT COME TO YOUR HOUSE

Some lawyers are advertising that the lawyer will come to your house or hospital room, even after business hours.  If that was true, it would be a nice convenience for the potential injury client, but if a "lawyer" is not coming to your house, and instead it is a "contract runner" or other non-lawyer, then the advertisement is false, misleading and deceptive at best.

When you hire a lawyer, you are entitled to meet with a lawyer to discuss your case and sign a contract for legal representation. You should be able to sit down face to face with the lawyer you are hiring to discuss your case and sign the contract for representation. This meeting is perhaps the most important meeting you will have with your lawyer. In addition, when a lawyer comes to your house, you miss out on the opportunity to see what the lawyers office looks like,  meet the legal staff, and see how you are treated when you visit the firm.  The only contact you may  have is with the person that came to your house or hospital room.

Often high volume law firms that advertise on television employ contract runners, but may call them "investigators". These are usually non-lawyers, anyone with a drivers license, that will come out to your home or hospital room, sometimes in the middle of the night, with a contract for legal representation.

You should be aware that only a lawyer is legally allowed to give legal advice, including answering questions you might have about signing the contact to hire the lawyer.  If a non-lawyer is advising you about a legal agreement, that would be a violation of the Florida Bar rules.

You should not agree to meet with a contract runner, and avoid hiring this type of firm. You should insist that you meet with the lawyer you are hiring. Unless the contract runner (investigator) is also a lawyer, that person is not allowed by law to answer any legal questions you might have about the contract or about the representation.

If your first contact with a law firm is a non-lawyer "contract runner" coming to your house at night, this should be a red flag, this should raise concern over whether you should hire this law firm. Only agree to meet with a real lawyer, not a contact runner, and if possible, meet at the lawyers office.

SHOULD YOU CALL A LAWYER FROM THE ACCIDENT SCENE?

Some television commercials advise you to call a lawyer, or some type of lawyer referral service directly from the scene of a car accident. Their reason for giving this advice, is probably that they want to get their lawyer on your injury case before some one else does. What they don’t tell you is that there is no valid reason to call a lawyer or referral service from the scene. They further don't tell you that you have four (4) years from the date of the accident to bring a claim for your injury. Actually calling a lawyer or referral service from the scene may distract you from what you should be doing, taking photos with your smart phone, getting witness statements, and speaking with the police or paramedics about what happened. Further if your case goes to trial, the fact that you called a lawyer or lawyer referral service from the accident scene may be used against you by the insurance defense lawyer. Your primary objective should be to see that you and your passengers are all ok, and if you or anyone is injured, to seek appropriate medical care at an emergency room or with a doctor of your own choosing. Under Florida law you must see a doctor within fourteen (14) days, so relax, take your time, and choose wisely. There will be time to speak with a lawyer as well, there is no need to talk to a lawyer at the accident scene.

Drowsy Driving More Common and Riskier than You Might Think

Guest commentary by Ben DiMaggio. 

It’s recommended that adults get between 7 and 8 hours of sleep a night. However, that is not the reality for many Americans. Nearly 35 percent of Americans get less than 7 hours of sleep a night, according to the CDC.

Even going without that little bit of sleep a night can cause impairment that can lead to an accident.

So, how many accidents are actually caused by drowsy driving? Researchers aren’t exactly sure, but the numbers don’t look great. The USDOT estimates that 7 percent of all car wrecks in 2016 in the United States involve a drowsy driver. When the department looked at fatal crashes, that number went up to 16.5 percent.

Researchers believe that this number is lower than it should be. It’s difficult to tell when drowsiness is a factor in a wreck unless it’s noted in the police report, and no one wants to admit that they fell asleep at the wheel unless they have to.

Nearly 30 percent of drivers reported having driven “when they were so tired that they had a hard time keeping their eyes open” at least once in a 30 day period, according to a USDOT study. In that same time frame, 19.8 percent of drivers reported having done so more than once, and 2.4 percent reported having driven while tired fairly often.

In fact, research from a National Motor Vehicle Crash Causation study showed that 34 percent of crashes that involved drifting between lanes involved incapacitated drivers. Half of those incapacitations were attributed to sleeping, the other half to illness or drug or alcohol influence.

It’s enough of a problem in Florida that the state legislature designated the first week of September to be Drowsy Driving Prevention Week beginning in 2016.

 “…just missing two hours of sleep can quadruple a driver’s crash risk,” said Amy Stracke, Managing Director, Traffic Safety Advocacy for AAA – The Auto Club Group and Executive Director of the Auto Club Group Traffic Safety Foundation in the 2017 news release.

There’s really only one solution for drowsy driving, at the end of the day — Get more sleep!

Whether you need to change something about your sleep conditions, like finding the right type of pillow or mattress for your sleep style, or you need to change the times that you take medications, you should never drive while you’re falling asleep.

About the Guest Commentary Author:

Ben DiMaggio is a researcher for the sleep science and health organization Tuck.com. Ben specializes in investigating how sleep, and sleep deprivation, affect public health and safety. Ben lives in Portland, Oregon. His worst sleep habit is checking his email right before bed.

 

 

HUNGOVER DRIVING JUST AS BAD AS DUI DRIVING

I have previously discussed the dangers of drunk driving in this blog because according to recent statistics from the CDC, alcohol is a factor in nearly 1 out of 3 traffic fatalities. New studies indicate that driving hungover might not be a good idea either.

What about hungover driving the next day?

Researchers at Utrecht University in the Netherlands found that hungover drivers were more impaired than a driver with a blood alcohol concentration (BAC) of 0.05. For the study, each of the nearly 50 volunteers consumed 10 drinks and then underwent simulated driving tests the next day when their BAC was back to zero. Overall, they showed significant lapses in alertness and increases in erratic behavior such as weaving.

A smaller study by the University of the West of England had similar results. Drivers tested the morning after a night of heavy drinking showed poor reaction times, had trouble maintaining a steady speed, and made substantially more driving errors.

These studies confirm a 2008 study by Brunel University in Uxbridge, England. Participants in those tests were hungover, and drove faster, left their lanes more frequently, and committed twice as many traffic violations, running stop signs and red lights. In addition to being hungover researchers felt sleep deprivation, dehydration, and low blood sugar levels all played a role.

Does "sleeping it off" makes you safe to drive after a night of drinking?

In the U.K., new statistics show that "morning after" drunk drivers account for 10% of all drunk-driving arrests. The drivers were pulled over between 6 and 8 a.m., still intoxicated several hours after their last drink.

Do not conclude that a few hours of sleep after a night of drinking will make you ok to drive.

Depending on the amount of alcohol you drink, you can still be over the legal limit the next morning. In an insurance survey, drivers admitted that they do not know how long it takes alcohol to leave the body. Drivers who would never get behind the wheel after consuming alcohol at a bar (and do the right thing by taking a cab, Uber, or Lyft) may still be over the legal limit the next morning without knowing it. It is a false sense of security to think that a shower, some coffee, or a little sleep will eliminate the effects of a night of drinking. The reality is that time is the only thing that will eliminate the alcohol from your system. Often it takes five or more hours after waking up from a night of drinking to be under the legal limit.

Beware, Florida Drivers Are Uninsured

Thinking of coming to Florida on vacation, you should think twice, and be warned that Florida drivers are not required to carry liability insurance, also known as bodily injury liability or BI. Bodily injury liability coverage will pay for your injuries and other losses after being in an accident.

Under the current Florida law, drivers are only required to carry personal injury protection or PIP, which will cover their own injuries, but not yours. In addition Florida drivers are required to carry property damage coverage which will pay for the damage done to your car. However there is no requirement that Florida drivers carry BI coverage which would pay for your injuries when you are in an accident caused by a Florida driver. This is how things have been in Florida since 1972. Florida became the second state in the country to adopt a no-fault automobile insurance plan which took effect January 1, 1972.

This antiquated law has remained on the books ever since, with the exception that the Florida legislature enacted provisions in Florida's new personal injury protection (PIP) on January 1, 2013. The changes required that accident victims seek treatment within fourteen days after their accident or loose their right to collect pip benefits. In addition, if you are not diagnosed with an emergency medical condition, or EMC, the new law will limit the pip benefits to $2,500.00. Under the revised law, PIP will not pay for acupuncture or massage thereapy. The 2013 changes did not make it better for anyone, Florida drivers are still not required to carry bodily injury liability insurance, and the 2013 law instituted hurdles that Florida insured drivers must clear in order to even get coverage under their own policy.

In January 2018, the Florida Senate will consider a proposal that would replace the state's no-fault auto insurance system, while a similar bill has already has gone to the House floor.

The senate proposal would repeal the no-fault law, which requires motorists to carry $10,000 in personal-injury protection, or PIP, coverage to help pay medical expenses after accidents. It would require motorists to carry $5,000 in what is known as medical payments coverage, or MedPay, and minimum amounts of bodily-injury coverage that would increase over time.

The requirement that motorists carry $10,000 in PIP coverage hasn't changed since 1979.

The House proposal does not include a requirement of carrying MedPay coverage. The House measure, which faces opposition from some insurers, business groups and medical providers, has been projected to save motorists on average about $80 a year.

Under the proposed bill, starting Jan. 1, 2019, Florida would set a minimum of $20,000 for bodily injury protection that includes coverage for the injury or death of one person and $40,000 for injury or death of two or more people. The coverage would grow to $25,000 and $50,000 two years later and to $30,000 and $60,000 on Jan. 1, 2023.

If you plan on driving in the State of Florida, lets hope that the Florida legislature does the right thing and enacts the proposed legislation to require Florida drivers to carry bodily injury (BI) liability coverage. If they don’t, I suggest you stay away from driving on the Florida highways.