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Bicycle Verdict Reversed

Written by Spencer Aronfeld on . Posted in Bicycling Injuries, Brain Injury, Car Accidents, Personal Injury News and Safety Resources

As a bicycle injury lawyer Miami, FL, I have tried personal injury and medical malpractice jury civil trials across the State of Florida for more than 22 years.  And as in the recent trial of George Zimmerman, jurors are not always told only the facts of a given case in accordance with the Rules of Evidence. There are hundreds of rules and exceptions, but the basic concept boils down to the following: Is the alleged fact one that is more helpful or not for a juror to know in determining the truth, or as we lawyers are taught to argue, “Does the probative value outweigh the prejudice” of a given fact?

One of the most debated and controversial issues as a personal injury lawyer Miami, FL  I see come up in most traffic accident claims in Florida involves the issue of collateral sources.  A collateral source set-off is the legal concept intended to prevent injured people from obtaining double payment for the same damages, usually medical expenses from two or more different sources—for example, making and getting a verdict for medical expenses in a car accident case from both the defendant and the injury victim’s own health insurance.

Vehicle-vs-Bicycle-Crash-with-Person

Your bicycle accident may involve uninsured motorist insurance.

I had imagined that virtually every possible combination of fact and law surrounding the concept of collateral sources had been litigated and ruled upon over the last 30 years. Recently, Florida’s 2nd District Court of Appeal faced a case of first impression, meaning an issue was presented for the very first time. A Florida man, John Joerg, a developmentally-disabled adult, sued State Farm for uninsured motorist insurance coverage after he was hit by a car driven by William Lazar and seriously injured while riding his bicycle.

He sued Lazar and settled but went to trial against State Farm for his uninsured motorist insurance benefits (which provide coverage for cyclists involved in traffic accidents) and won a verdict of $469,076, which included future medical expenses calculated at the full Medicare rates, not the lower reimbursement rates.  State Farm appealed on the basis that the trial court erred in excluding evidence of the lower rates.

The issue at his bicycle accident trial was whether or not the jury could or should have considered Mr. Joerg’s future Medicare benefits in determining his future damages.  In other words, are potential future Medicare benefits a collateral source that the jury should be told about.  Astonishingly, until now there has been no precedent or any other Florida appellate court decision that directly and unequivocally answers this question.

Safe Cycling Tips That Can Save Your Life

Written by Spencer Aronfeld on . Posted in Bicycling Injuries

As the weather warms up more and more people are taking their bicycles out of storage for the summer. As a bicycle accident lawyer in Miami, I recommend the following; before riding a bike that has been unused for more than a few months, have it thoroughly inspected, cleaned and maintained by a professional bicycle mechanic.

TUNE UP TIME

Improperly maintained bicycles or a bicycle with a defective component can cause a serious bike accident. Over the years we have represented a number of injured cyclists in claims against manufacturers, distributors and even the local bicycle shop.

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This week, Cervelo, a Canadian frame maker and sponsor of the several top ranked professional cyclists, announced the recall of Aura Pro aero handlebars. The Aura pro is a custom bicycle handlebar that attaches to the 2013 Cervelo P-Series bicycle. It comes in black, gray or red with the brand name “Cervelo” imprinted on the frame. These bicycles are designed for maximum speed by experienced cyclists in time trials and triathlons.

According to the Government of Canada’s Official Safety Recall Page, the bars were made in Hong Kong by 3T and distributed internationally through Cervelo’s Toronto offices. To date, 623 bicycles have been recalled in the United States. If you own a Cervelo and are not sure if your bars have been recalled, I urge you to immediately stop riding your bicycle and contact 3T at 1-800-223-3207.

Since I am a Miami attorney who sues companies for products that hurt people, I am required to constantly research the CPSA’s recall lawsuits. I found out about the Cervelo 3T recall on the United States Consumer Product Safety Commission website. But I was unable to find any reference to the recall on Cervelo’s homepage. It is understandable that a company in the business of selling bicycles may not want to alert potential consumers to a potentially dangerous defect. I am disappointed in Cervelo as it should be compelled to put this kind of information prominently on its websites homepage to alert and protect consumers.

STRAP IT ON

Most people understand the importance of wearing a helmet when riding a bicycle. Studies show that bicycle helmets can reduce the risk of a head injury by as much as 85% during a fall or collision. Bicycle helmets are specifically designed to absorb the impact rather than your brain. The problem we frequently encounter is that people have sustained serious head injuries by wearing the wrong kind of helmet. Not all helmets are the same and each type of helmet is designed to protect heads from dangers that are particular to that sport. For instance, a skateboard helmet does not meet the same federal safety standards as a bicycle helmet.

We recommend that cyclist only use a helmet that meets the CPSC’s helmet standards. Helmets that are marketed for mountain climbing, go karting, horseback riding, lacrosse and skiing do not have to meet the same standards as a CPSC approved bicycle helmet.

To protect your children from the substantial risks of injury and death present in a bicycle accident it is very important when selecting a helmet to not rely solely on a manufacturer’s name especially when sold in a toy store. Rather, we recommend carefully inspecting the helmets inside lining and verify that it is in compliance with the CPSC and ASTM formerly known as the American Society for Testing Materials.

Helmet fit is as important as selecting the correct helmet. A helmet should be both comfortable and snug. Lose helmets can fall off during a crash or shift to the side actually causing more harm than protection. Consult with a professional at your local bike shop to ascertain if your helmet is properly fitted. For more information En Español.

LANCE ARMSTRONG’S PERJURY

Written by Spencer Aronfeld on . Posted in Bicycling Injuries

Apparently Lance Armstrong just admitted to having used performance enhancing drugs during his Tour de France victories. I am disappointed; and candidly very sad. I have admired and followed Armstrong’s career closely. My father and I were in Paris, and watched him cross the finish line for his 7th and final Tour victory. I reached out and touched his bike. Today, my 10-year old son Nory has a signed poster of Lance above his bed. It was given to us by my friend Chris Carmichael who was Armstrong’s personal coach. Another poster of Armstrong hangs in my Coral Gables law office. It shows Armstrong climbing Mount Ventoux.

I am a fan, father and Miami bicycle accident lawyer. I am also a former cyclist who raced in the United States and Europe. Here is an old picture of me racing clean.

smaracing.jpg I have diffuiclty understanding Lance’s sudden confession. After spending most of my life cross-examining defendant doctors, expert witnesses and corporate representatives I know that some lie more convincingly than I can tell the truth. I also understand how a doctor lies to save his medical license. I have seen hospital administrators, insurance adjusters and grocery store managers lie countless times to deprive justice to the injured.

I have also attended thousands of clients’ depositions, who have against my advice, “misstated the truth.” We spend a lot of money doing background investigations on potential client’s before we agree to accept a case. We do this to prevent a legitimately injured client from ruining their own case by trying to hide a prior accident or injury.

In Florida, when a personal injury claimant testifies falsely under oath their entire claim can be case dismissed with prejudice as a sanction. It is not uncommon for a trial judge to order an untruthful plaintiff to pay the attorney’s fees and costs to the opposing party.

There are criminal ramifications as well. Florida’s Perjury Statute §837 defines a false statement as one that is made by someone who does not believe it to be true. Violating this statute would subject Lance to a third degree felony punishable by up to five years in prison and a $5,000 fine.

Why after all these years has Lance has decided to come clean? Purportedly he wants to continue to compete in triathlons and other events that have banned him. Can his competitive drive outweigh potential financial loss and criminal exposure? Civilly, I believe he is subject to multiple law suits for fraud, insurance fraud, breach of contract and slander.

I imagine, like many of Florida’s uninsured medical doctors, Lance has a bullet proof asset protection plan that will shield him from creditors. Or perhaps he will seek bankruptcy protection? He also may have made so much money that he can work out a settlement and pay back plan. I recently blogged about this in the Huffington Post “Patients, Beware When Doctors Go Bare” explaining how doctors commonly use these techniques to avoid paying medical malpractice judgements in Florida.

I cannot imagine how much time and money has been spent chasing and investigating Lance over the last ten years. At each juncture, Lance would not only deny the accusation, but often sue the accuser or derail their own professional aspirations. Yet somehow, he has chosen this inexplicable moment in time to confess.

Can Lance still be a hero and a role model if by confessing he encourages others who have lied and cheated in sports and other aspects of their lives to do the same? Or is his legacy forever tarnished and branded as a fraud. Only time will tell. For now, his poster remains on Nory’s wall.