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Just two days after the Pulse nightclub massacre in Orlando, a judge in Connecticut issued an order denying a motion to dismiss filed by the manufacturer of the AR-15 semiautomatic machine gun used by the Sandy Hook Elementary School murderer. Though the manufacturers and models differ, the Sig Sauer MCX used in Orlando is of similar aesthetics and lethality as the AR-15.

This ruling does not mean the Sandy Hook plaintiffs will prevail, however. Nor, unfortunately, does it afford much hope for potential Orlando plaintiffs hoping to hold Sig Sauer accountable.

The Sandy Hook plaintiffs are seeking to hold, among other defendants, Bushmaster, manufacturer of the AR-15 used in the Sandy Hook tragedy, liable for, among other things, the wrongful deaths of those slain at the elementary school. Among its 33 counts, the complaint alleges that the sale of the AR-15 to a civilian market posed an unreasonable risk of physical injury to others, as a mass casualty event was within the scope of the risk created by the defendant’s marketing and sales; that the AR-15’s ability to fire rounds quickly created an unreasonable risk that it would inflict great casualties before police intervention; and that the defendant “unethically, oppressively, immorally, and unscrupulously marketed and promoted the assaultive qualities and military uses of AR-15s to civilian purchasers…with the expectation and intent that possession and control of these weapons would be shared with and/or transferred to unscreened civilian users following purchase.” The defense countered that the Protection of Lawful Commerce in Arms Act (“PLCAA”) affords gun manufacturers broad immunity for the shooting deaths administered by eventual purchasers of its firearms.

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On Wednesday, a 17-hour search effort concluded after divers found the body of a  2-year-old boy who had been snatched by an alligator right in front of his dad.   The wild animal attacked Lane Graves who had been playing around in the water of the Seven Seas Lagoon at the Disney’s Grand Floridian Resort & Spa at around 9:15 p.m. on Tuesday night.

Catastrophic unavoidable accidents occur every day all across the country, but when someone or some entity’s negligence causes a catastrophe, it no longer is an accident, and it surely was avoidable.

What do we know about the Seven Seas Lagoon where the incident occurred?

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LeesfieldScolaro_logoLast month, we provided some tips on avoiding arbitration.

Thankfully, due to recent developments, you might not need that advice – at least when it comes to consumer financial products.

A few weeks ago, the Consumer Financial Protection Bureau, created by the Dodd-Frank legislation in the wake the 2008 financial crisis,  officially recommended a ban on mandatory arbitration and class waiver clauses in consumer financial products contracts. (See Summary of Proposal at the end of this blog entry.)

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The essential role of jurors at trial is to determine which party to “believe.”  Issues of law are handled by the judge, while factual issues and the credibility of the parties are solely for the jury.  The more complex the case, the more difficult it can be for jurors to make their important decision. However, when it comes to credibility, there is one constant: the jury will always trust the judge.  In cases involving negligence, what could be more effective for the Plaintiff than the judge instructing the jury that the Defendant was negligent?

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Time RunningGenerally, Continuances favor the Defendant—Not You.  As a plaintiff, you are not compensated until settlement or trial.  Meanwhile, your bills are adding up, your future remains uncertain, and the phrase “the wheels of justice turn slowly…” is not exactly soothing.

Why, then, is your lawyer agreeing to the defendant’s motion to continue the trial to a future date?  It should be noted that there are valid reasons for a plaintiff to agree to, or ask for, a continuance. Issues and exigencies are part of litigation. And you don’t want your attorney to be forced to try your case with inadequate preparation.
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backsetball hoopA Note on Contracting Away Liability for Sports-Related Injuries

While reeling from the Toronto loss, and with the looming Whiteside and Wade contract negotiations riddled with uncertainly, Heat fans can find a modicum of solace in one thought:

Next year, we get Bosh back.

Or do we?

We Miamians love Chris Bosh. And for the sake of him and his family, let’s hope his blood clots disappear.

But what if the medical issues endure? What if playing next year carries the specter of grave personal injury or even death?

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waiver formIn recent years, liability waivers have become standard procedure in virtually every association between corporations and individuals.  Whether a jet ski tour, your typical gym membership, or even placing your child in summer camp, corporations of all sizes are aggressively protecting themselves with liability waivers.  In many cases, corporations are required to obtain liability waivers as a condition of their insurance policy.  These waivers contractually preclude individuals from pursuing any kind of claim in the event of injury, even those caused by the negligence of the corporation’s employees.  The waivers are typically buried within other tedious paperwork and executed by individuals without much thought.  After all, no one expects to become injured.  These waivers then become potentially devastating in the event of a serious or even fatal injury.  Because liability waivers are presumptively valid under Florida law, they deprive injury victims of their day in court on a daily basis.

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Banks. Cell phone service providers. Social networking sites. Insurance companies. Nursing homes.

What do they have in common?

They all attempt to rob you, their customer, of your day in court. And, usually, they succeed.

Forced arbitration is the cancer of the American justice system.  Accompanying—indeed accelerating— the national decline in civil jury trials is the appearance of arbitration clauses in contracts, particularly consumer contracts. These clauses eliminate your right to have your case decided in a court of law, by a jury of your peers; limit the information you can discover to help win your case; and, in many cases, greatly reduce the amount of damages you can ultimately recover against the company you are suing. When an arbitration clause is enforced, your case skips court altogether, going instead to an arbitrator or a panel of arbitrators. This tribunal acts as judge, jury, and —often for plaintiffs’ claims— executioner.

In short, you should avoid arbitration clauses whenever possible. Should you brush up against one, you’ll need experienced legal counsel to protect your rights.

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Car_crash_2Suppose you are injured in an automobile collision caused by a negligent driver. You then go to a duly-licensed physician for medical care. You certainly trust your physician and her dedication to the well-being of her patients.  Ultimately, your physician provides treatment and even surgery.  Down the road of litigation, the negligent driver’s attorney claims that the surgery you underwent was medically unnecessary or unreasonable.  Assuming this treatment was “unreasonable,” should you be on the hook to pay for it?  Is it your fault if your physician provided unnecessary treatment by mistake or for financial gain? Of course not!

The Florida Supreme Court (Stuart v. Hertz Corporation) established long ago that a negligent party who injures another is liable not only for the resulting injuries, but is also liable for any medical negligence stemming from services of a competent physician.  This principle has been reaffirmed many times and even extended by Florida Courts to hold negligent parties liable for improper and unnecessary medical treatment performed by an allegedly unscrupulous physician.

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When we are engaged to represent a client and take on their case we become their advocate and we fight for them because they cannot. We give a voice to the voiceless. We fight for the injured. We champion their cause and their case with every resource and every ounce of talent and energy we have. We do this because, not only is it the right thing to do, but also because each client and each relationship we have with our clients is personal. We truly believe that our clients remain clients for life long after the case is resolved and long after we have achieved a financial recovery for them.

Set0001 - DSC_6054.JPGJust recently we resolved the case of a motorcycle accident victim who lost a leg as a result of a county employee running a stop sign. The inattentive driver rolled his truck up to the stop sign clueless to crossing traffic and our client’s oncoming motorcycle and blew right through the intersection without thinking twice. Our client had no choice but to lay down his bike to avoid a head on crash with the side of the truck and certain death. Unfortunately, the back wheels rolled over his leg resulting in a traumatic amputation at the knee. We undertook representation knowing full well that any real recovery was highly unlikely given that the negligent party was a county employee protected by the state sovereign immunity cap of just $200,000. With past hospital bills alone of over $400,000 we rejected the county’s settlement offer of $200,000. After two years of litigation, multiple lawsuits and incredibly creative and aggressive representation, we secured a multi-million dollar settlement for our client.

Today we handed him his first of several settlement checks. A very humble man, our client started to thank us but we stopped him from any such praise. The true thanks goes out to him and his resolve and for believing in us and giving us the honor of fighting for him. When we met, he was just coming out of surgery where he lost his leg. We were up front and honest with him about the financial obstacles that his case faced with sovereign immunity. We saw him crying and hopeless and full of anxiety about the future. With that we went to work and devoted two years to fight for him and obtain justice for our client. Through the case, we saw him fight through depression and readjusting to life as an amputee. It was his resolve that pushed us every day and knowing that he was fighting to regain his life, we would fight for him no matter what it took.

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