Bicycle Verdict Reversed

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. 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...

Safe Cycling Tips That Can Save Your Life

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. 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...

LANCE ARMSTRONG’S PERJURY

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. 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...

Justice For Family of Cyclist Killed on Key Biscayne

The family of a cyclist killed while riding on Miami’s dangerous Key Biscyane will finally get their chance at justice. Omar Otaola, a well known Miami cyclist, died tragically after being hit by a truck owned by Cusano’s Italian Bakery. He left behind a wife and two minor children. His family collected a $1,000,000 insurance policy from Allstate for Cusano’s single limit coverage without having to sign a release. The settlement was approved by the probate court and the money was disbursed. Apparently, Cusano’s did not demand a release nor did it participate in the probate proceedings. The family then sued Cusano’s for wrongful death, seeking an additional million from their excess insurance policy provided by AIG. Miami-Dade Circuit Court Judge Marc Schumacher dismissed the family’s Miami accidental death case and ordered them to either sign a complete release in favor of the Bakery or return their million dollar settlement. After nearly 7 years of litigation, the Appellate Court reversed Judge Schumacher. It found that by simply accepting Allstate’s $1,000,000 policy, the family did not abandon its right to sue Cusano’s. First, because Cusano’s did not participate in the probate court proceedings and failed to demand a complete release. Instead, Cusano’s waited over two years to demand a release. Second, Cusano’s did not claim they had a “settlement” as an affirmative defense. Instead, it plead “accord and satisfaction,” even though it had not made any payment toward the claim. Allstate did the correct thing by tendering the limits to the family. I am one of the first to criticize an insurance company; but in this case Allstate should be...

Intersection Bicycle Accident Kills Hollywood Man

Jeffrey Lee Howard of Hollywood Florida was riding his bicycle at the intersection of Taft Street and North 66th when he was hit by a Volvo driven by Tony Shillingford. He was killed instantly. Intersections are particularly dangerous and not just for bike riders. In fact, almost 40% of all traffic crash accidents in Florida happen at or near an intersection. There are various causes for intersection crashes, such as when one or more drivers are distracted, intoxicated, or simply ignore the traffic signals. When we are hired to investigate a bicycle accident at a Florida intersection our lawyers focus on the intersection itself and not just the action of the drivers. We analyze the following: • Time of day • Lighting condition • Atmospheric condition • Roadway surface condition • Roadway alignment • Roadway profile • Speed limit • Relation to junction Not all intersections are alike. Certain kinds of intersection accidents have been shown to occur due to the geometry of the intersections in relationship to the traffic flow. The Center for Advanced Transportation Systems Simulation at the University of Central Florida (UCF) has analyzed over 1,500 intersection accidents and discovered a predictable pattern for certain intersection configurations. Their research has created a profile manual that is helpful in locating intersections with high crash and fatalities numbers. The results of the research is fascinating. For instance, simply increasing motorists’ awareness of an intersection by the location of the stop sign; can decrease the number of accidents. Another recommendation is to install rumble strips at intersection approaches. Rumble strips are usually recommended for application where pavement markings like...

When The Defense Examines an Injured Plaintiff

Florida like most states permits the defendant in a personal injury claim to force the plaintiff (claimant) to undergo a physical and sometimes even a psychological examination. Florida Rules of Civil Procedure 1.360 is the rule that provides the guidelines as to how the examination is supposed to take place. The examinations are commonly referred to a “Independent Medical Examinations” but there is usually very little that is independent about them. Instead they are usually unpleasant and invasive examinations conducted by doctors that are highly paid and trained to limit the claims of the injured. The first step is that there has to be a formal request made identifying when, how and where the examination is going to take place. The person conducting the examination is required to be a qualified expert in the condition or injury that is in question. So a gynecologist is not permitted to do an orthopedic examination. The examination can take place without the Court’s permission provided that the time, place, manner, conditions, and scope of the examination is reasonable and acceptable. As a bicycle accident lawyer in Florida I have handled cases where the condition in controversy is not physical, such as a traumatic brain injury or emotional trauma. These types of conditions may require a complex examination performed by a neuropsychologist, psychiatrist and neurologist. When a child is injured in Florida a parent or guardian is permitted to attend the examination unless it can be shown to the court that the parent’s presence will interfere with the results. The defense is usually very careful about who they hire to perform these types...
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