The plaintiff, a 15 year old girl, allegedly suffered traumatic brain injuries when she fell during a sumo wrestling game at school. The event sponsor, Mega Party, sought discovery of the plaintiff’s c...ell phone to refute the assertion that she could not function normally. The trial court agreed that discovery of the cellular device itself was relevant and ordered its production, subject to a circumscribed protocol. Plaintiff refused and sought a writ of certiorari from the Third District Court of Appeal. Plaintiff argued that while certain data stored on the cell phone might be relevant (like photographs), the entire device was not, and the production invaded the plaintiffs’ privacy.
Mega party argued, among other things, that production of the entire device was powerfully relevant to its defenses, particularly given the allegations of traumatic brain injury. Mega Party argued that, particularly in today’s society, adolescent activities can revolve extensively, if not exclusively, around cellular devices. The playing of games, taking of photos, phone calls, social media and a myriad of other programs and apps are all instantly and constantly available. The use of the device as a whole would be essential to the defense, particularly given plaintiff’s active usage.
The Third District Court of Appeal ultimately agreed with Mega Party, and denied Plaintiff’s certiorari petition.
Personal injury
Carmon Sullivan v. BRP U.S., Inc.
Jul 10, 2015
OUTCOME: Jury verdict
The lawsuit, styled Carmon Sullivan v. BRP U.S., Inc., Case No. 2013-CA-000569, involved Plaintiff's allegations of strict liability design defect, negligent design, and failure to warn. BRP’s counsel... successfully had Plaintiff's consortium claim dismissed, pursuant to maritime law’s prohibition, and Plaintiff’s warranty claims dismissed pursuant to Florida’s privity requirements. This effectively streamlined the litigation from the outset. Prior to trial, Plaintiff moved for leave to plead punitive damages, which BRP’s counsel opposed at an evidentiary hearing and the trial court denied.
On the date of the accident, January 26, 2012, Plaintiff (a 37 year old female) was performing maintenance in the engine compartment of a 2011 Sea Doo jetboat while it was suspended on a lift in the Plaintiff's backyard. Instead of closing the engine hatch from the cockpit area, which is the only place a user can open the hatch, the Plaintiff climbed onto the gunnel of the jetboat, jumped onto the dock, and then re-boarded the jetboat from the rear swim platform. Once on the rear platform, the Plaintiff positioned her foot in an open, obvious, and clearly observable semicircular opening underneath the open engine hatch. Without looking down first to see where her foot was, Plaintiff pushed the engine hatch closed on her own foot. Plaintiff's foot was stuck for approximately 30 minutes before someone finally came to her assistance and opened the engine hatch to release her foot.
Three of Plaintiff's toes were amputated. Plaintiff was diagnosed with neuropathic pain, reflex sympathetic dystrophy, chronic pain syndrome, and an altered gait as well as constant back, hip, knee, leg and foot pain. Plaintiff underwent two surgeries for implantation of a spinal cord stimulator to address her pain symptoms. Plaintiff’s life care plan costs were in excess of one million dollars.
At trial, Plaintiff contended that BRP knew of the foreseeable risk of severe injury with the unreasonably dangerous and defective design of the engine hatch cover and semicircular opening but did nothing. Plaintiff argued that BRP failed to warn of the foreseeable risk of injury and did not include any information, warnings, or instructions on the jetboat itself, the owner's manual, or the safety video. Plaintiff maintained that BRP’s negligence and/or the defect with regard to the jetboat were the cause of Plaintiff's injuries and sought millions of dollars for disfigurement, mental anguish, pain and suffering, past medical expenses, and noteworthy future medical care needs.
BRP contended that the 2011 Sea Doo jetboat was not defective, unreasonably dangerous, or responsible for this entirely avoidable accident. BRP explained the evaluation, development, and hundreds of hours of testing that went into designing the jetboat and all its parts. BRP also emphasized that not a single other person had ever been injured while using the identical engine hatch design on other Sea Doo jetboat models. Despite Plaintiff’s attempts to exclude such evidence, BRP’s counsel successfully argued for the admissibility, relevance, and probative value pertaining to the lack of other accidents.
BRP maintained that because the semicircular opening underneath the engine hatch was so open, obvious, and clearly observable, there was no duty to warn. BRP informed the jury that Plaintiff had opened and closed the same engine hatch on the jetboat at least 50 times in the 10 month period prior to the date of the accident without any injury. BRP had Plaintiff concede that she had seen the open and obvious semicircular opening prior to the DOA. As such, BRP argued that Plaintiff was solely responsible for her own injuries. BRP further argued that in the three and a half years since the date of the accident, Plaintiff continued to regularly use the jetboat (including opening and closing the very same engine hatch cover without any changes or modifications) without any accident or injury.
Personal injury
Leoncio v. Louisville Ladder, Inc.
May 06, 2015
OUTCOME: Appellate Ruling
Obtained an opinion from the U.S. Court of Appeals for the Eleventh Circuit affirming U.S. District Court (Southern District of Florida) Judge Cecilia Altonaga’s grant of summary judgment regarding Pla...intiffs’ warnings claims in favor of their client Louisville Ladder, Inc. See Leoncio v. Louisville Ladder, Inc., 601 F. App'x 932 (11th Cir. May 6, 2015)(per curiam affirmed).
By way of background, on the day of the accident, Plaintiff, an accountant, was using a 20 foot fiberglass extension ladder to remove Christmas lights when he fell and sustained an open elbow dislocation, torn rotator cuff, and bicep tear. Plaintiff and his wife brought claims against the manufacturer sounding in strict liability and negligence. Plaintiffs claimed damages for past and future medical expenses, past and future pain and suffering, loss of consortium, and loss of past and future earnings. Plaintiffs’ pretrial demand exceeded $550,000.
The crux of Plaintiffs’ claim was for failure to warn foreseeable users of the fiberglass extension ladder regarding proper orientation and set up. Ralph L. Barnett’s (Plaintiffs’ sole liability expert) only opinion regarding a defect concerned the warnings as to orientation and set up. The ladder is designed, tested, and manufactured to be used in a fly-over-base orientation. The on-product label contains safety instructions and warnings on how to properly set up the ladder to avoid severe injury or death, including a pictogram depicting the ladder in the proper fly-over-base orientation. Contrary to the warnings and the manufacturer’s intended use, Plaintiff improperly set up the ladder in a base-over-fly orientation. At his deposition, Plaintiff clearly, unambiguously, and unequivocally testified that he saw the on-product warning labels, knew them to be warnings, but chose not to read them.
Defense counsel argued Plaintiff’s failure to read the on-product warning label negated the element of causation as a matter of law. Plaintiff's deposition testimony precluded any argument regarding prominence or conspicuity. In opposing summary judgment, Plaintiff filed an affidavit stating he had in fact read the warnings, which plainly contradicted his clear deposition testimony and failed to provide any explanation for the wholesale revision of his testimony. Defense counsel successfully argued the affidavit was a last-minute sham created for the sole purpose of defeating summary judgment. Despite Plaintiffs’ continuous efforts, defense counsel convinced the trial court that there is no heeding presumption under Florida product liability law.
Plaintiffs unsuccessfully moved for reconsideration of the trial court’s order. The Plaintiffs appealed. In its per curiam opinion affirming the district court’s decision, the Eleventh Circuit held, “Mr. Leoncio's deposition testimony unambiguously established that he had never read the warning labels on the ladder. His self-serving, contradictory affidavit filed after Louisville Ladder moved for summary judgment was insufficient to create an issue of material fact. Florida law is clear that Mr. Leoncio's failure to read the warning cuts off Louisville Ladder's liability based on the alleged inadequacy of the warning.” Id. at 933.
Personal injury
Thomas v. Bombardier Recreational Products, Inc.
Nov 12, 2012
OUTCOME: Jury Verdict
After a two week trial in the U.S. District Court Middle District in Fort Myers, Fla, a jury found that the 2006 Sea-Doo RXT was safe and not defective, and that the manufacturer, Bombardier Recreation...al Products, was not negligent in the design of its product. The lawsuit was filed by a Naples, Fla. woman who was severely injured in a personal watercraft accident in 2007.
Appeals
State v. D.F.
Aug 03, 2011
OUTCOME: Appellate Ruling
Armando G. Hernandez argued an appeal on behalf of a juvenile before the Third District Court of Appeal of Florida as a Special Assistant Public Defender. By way of background, the juvenile was charged... with possession of contraband and filed a motion to suppress the evidence at trial due to a violation of his right to be free from illegal searches and seizures. The trial court granted the motion. The State appealed. On appeal, the State contended the juvenile D.F. was not seized when he discarded the contraband because: 1) there was no show of authority directed at D.F.; and 2) D.F. did not submit to any police show of authority. Armando, on behalf of the juvenile D.F., contended that a show of authority consisting of at least twenty police officers, wearing tactical regalia and bullet proof vests with the words “POLICE” emblazoned on the front and back, approaching in numerous marked and unmarked police vehicles, with firearms drawn, raiding an apartment complex, heading directly towards D.F.’s position, and shouting verbal commands of “Police! Stop!”, constituted an unreasonable show of authority unsupported by any constitutional underpinning. The Third District held that any reasonable person in D.F.’s position would not have felt free to leave. See State v. D.F., 92 So. 3d 216 (Fla. 3d DCA 2011). Despite the juvenile’s comment that he felt free to get up and walk off, he also testified that when he saw the raid of police officers he did not move because he did not want the police officers to think he was running off and did not want to get charged with something. Armando maintained the facts in the present case truly showcased the objective standard for determining seizure. Following the precedent set forth in Hollinger v. State, 620 So. 2d 1242 (Fla. 1993), the Third District held that D.F. submitted to the police show of authority before discarding the contraband, which constituted an illegal seizure.
Appeals
State v. Ferrey
Jun 02, 2010
OUTCOME: Appellate Ruling
After jury found defendant guilty of burglary of a dwelling with assault or battery and attempted sexual battery, the Circuit Court, Miami-Dade County granted defendant's motion for new trial. State ap...pealed.
The District Court of Appeal held that repeated references to victim's non-testifying neighbor warranted new trial because it was improper, impermissible and inadmissible inferential hearsay. .
