Issue 8: May 2024

Issue 8: May 2024

ICYMI - all the news from the past month!

I. Need to Know : Legislative and Case Law Updates

Nashville Partner, John Floyd, Jr., explains a new Tennessee law that addresses an important aspect of medical bills recoverable in Tennessee health care liability cases.

Read more about "The Crotty Fix" here: https://lnkd.in/e6qQVE5g

II. Protecting Your Interests: Verdicts, Dismissals and Judgments

Summary Judgment: Seminole County, Florida (Premises Liability)

Orlando Partner, Patrick Mixson, and Orlando Associate, Bianca Perito, recently obtained summary judgment in favor of Publix Super Markets, Inc., in a premises liability case in Seminole County, Florida, arising from an alleged slip on a liquid substance a Publix store. The Plaintiff testified that another customer warned Publix of the substance before the incident and argued that Publix was on actual notice of the condition.  The Court agreed that the Plaintiff’s testimony was based upon inadmissible hearsay, and was not appropriate summary judgment evidence, and granted summary judgment in favor of Publix.

Defense Verdict: Washington County, Tennessee (Medical Malpractice)

Nashville Partners, John Floyd, Sr., and John Floyd, Jr., obtained a defense verdict on behalf of a chiropractor in Washington County, Tennessee. Plaintiff alleged that our client’s treatment was negligent due to her history of a cervical fusion and a discectomy, and that said treatment caused her to undergo a subsequent disc replacement surgery. The defense argued that the Plaintiff had longstanding cervical degenerative disc disease which necessitated surgery and that the care provided by our client was appropriate and within the standard of care. After a three day trial, the jury returned a complete defense verdict in favor of our chiropractor.

Defense Verdict: Volusia County, Florida (Premises Liability)

Orlando Partner, Krista Cammack, and Orlando Associate, Oscar Draughn, obtained a defense verdict in a premises liability matter on behalf of a major department store client in Volusia County, Florida. This case arose from an incident outside the department store’s location at a Daytona Beach shopping mall. While exiting the store on a rainy day, Plaintiff slipped and fell on an access ramp, allegedly sustaining injuries to her back, right knee, right ankle, and right foot. She underwent extensive chiropractic care, a microdiscectomy surgery, nerve root decompression and steroid injections as a result of her alleged injuries. Her medical bills were in excess of $120,000, mostly paid via letters of protection. Plaintiff alleged that our client and the co-defendants failed to maintain the premises in a reasonably safe condition, and also failed to warn of the dangerous condition. We argued, and our experts testified, that we met industry safety standards by painting the ramp yellow and including additives in the paint to give it a non-slip finish. We further argued that Plaintiff failed to prove that the paint or the maintenance of the ramp was the cause of her fall and her subsequent injuries. Plaintiff’s medical records showed that she had sustained prior back injuries and undergone a prior back surgery as a result of a car accident several years ago, and her current injuries were degenerative and not a result of the incident at the store. After a four day trial, the jury found no liability on the part of our client. Due to a pending Proposal for Settlement, our client will be entitled to seek fees and costs.

Favorable Verdict: Broward County, Florida (Premises Liability)

Orlando Partners, Mike Tyson and Kelley Godfrey, obtained a very favorable verdict on behalf of a hotel and resort client in a slip and fall case in Broward County, Florida. Plaintiff’s injuries were a fifth metatarsal fracture in the left foot, and the main driver of the case, an alleged neck injury that culminated in a C3-C6 fusion surgery. She claimed past medical bills of $380,000 and future medicals of $160,000. Throughout the case Mike and Kelley focused on the delayed onset of neck complaints and repeatedly highlighted the four initial visits to healthcare providers following the fall where Plaintiff directly denied neck pain and complained about the foot only. Through a canvassing of local hospital records, a prior car accident which sent Plaintiff into the E.R. in a cervical collar was also discovered. This was featured throughout the trial, as this record indicated not only neck pain after the collision, but a history of “bulging discs x2” and “spinal stenosis” as reported in the E.R. years before the subject slip and fall. After a five day trial, Plaintiff’s counsel asked the jury for $4.6 million. In the Defendants’ closing, the jury was told to disregard the neck injury, and to compensate Plaintiff only for the foot injury—which was comprised of $689.00 in urgent care visits, and whatever pain and suffering the jury found appropriate for a few weeks in a boot. The jury came back with a total damages award of $21,700.00 which included $700.00 in past medicals and just $21,000.00 in past pain and suffering. Efforts to resolve the case in the week leading up to the trial were rejected. Due to the rejection of a prior Proposal for Settlement, our client will be entitled to seek fees and costs dating from October 2023.

Summary Judgment: U.S. District Court for the Middle District of Florida - Ft. Myers Division (Premises Liability)

Naples Partner, Drew Vogt, obtained summary judgment this week in a slip and fall case pending in the U.S. District Court for the Middle District of Florida – Ft. Myers Division. Our client in this matter was a national retail pharmacy chain. Plaintiff claimed that he slipped and fell in the restroom of a store located near the Naples Pier, and was transported from the scene via EMS. Plaintiff alleged that as a result of this accident, he suffered a broken leg, a torn rotator cuff that required surgery to repair, and injuries to his lumbar back. During his deposition, Plaintiff admitted that he did not see anyone spill anything, nor did he see any cleaning supplies, caution signs, or skid marks before or after the fall. A store employee testified that he had been in the restroom approximately five minutes prior to the subject incident, and that the restroom was clean, dry, and nothing was malfunctioning or out of the ordinary. We moved for summary judgment on the grounds that the store did not have actual or constructive notice of a dangerous condition. The Court agreed, and summary judgment was granted.

Favorable Verdict: Pinellas County, Florida (Auto Negligence)

Tampa Partners, Mike Reed and Donna K. Hanes, obtained a very favorable verdict for their client in an auto negligence case in Pinellas County, Florida, that was transferred to our office just two months before trial. This case arose from an admitted fault auto accident wherein our defendant driver struck the Plaintiff’s vehicle broadside. Plaintiff sought immediate emergency treatment for injuries to her cervical spine, chest, and lower extremities; two months after the accident, she reported lower back pain for the first time. Nearly three years after the accident, she suffered a significant herniation at L5-S1 that required surgery. Mike and Donna argued that the herniation and subsequent surgery was not related to the accident due to how much time had elapsed. They asked the jury to only consider injuries and treatment that occurred within the first 90 days after the accident, and award accordingly. At closing, Plaintiff’s counsel asked for more than $3 million. The jury entered a verdict of $23,472.00.

Ruling Affirmed: Florida Sixth District Court of Appeal (Wrongful Death)

Orlando Partners, Michael D'Lugo and Kurt Spengler, recently prevailed in a matter heard by the Florida Sixth District Court of Appeal. The underlying case was a wrongful death matter that involved a homicide committed 4-5 blocks away from an Orlando hospital by a patient who had left the hospital voluntarily. It was alleged that the patient had voluntarily appeared at the ER complaining of suffering the ill effects of illicit drugs. Plaintiff, the decedent’s personal representative, sued the hospital, alleging in the Amended Complaint that the hospital owed a legal duty to the decedent because the hospital created a zone of foreseeable risk. Spengler filed a Motion to Dismiss the Amended Complaint, arguing that a hospital has no duty to keep patients from leaving or warn surrounding property owners. The hospital could not reasonably be expected to control the actions of a patient who eloped voluntarily, nor did the hospital owe a duty to any third party that patient may have encountered after he eloped. The Court agreed with this position, and granted the Motion to Dismiss with prejudice in September 2022. Plaintiff appealed the ruling to the 6th DCA in May 2023, and Michael D’Lugo filed our Answer Brief that August. In April 2024, the Court issued a per curiam affirmance of all issues raised on appeal, upholding the lower court’s dismissal of the matter.

Favorable Verdict: Volusia County, Florida (Auto Negligence)

Jacksonville Partner, Chris Brown, and Fort Lauderdale Associate, Brandon Polsky, obtained a favorable verdict in an auto negligence case in Volusia County, Florida. This case involved an admitted liability motor vehicle accident in which we represented an insurance carrier for an underinsured/uninsured claim. Plaintiff claimed injuries to his eyes, neck, and shoulder, as well as a traumatic brain injury, with $125,000 in medical bills. After jury selection, Plaintiff dropped the traumatic brain injury claim and all medical bills, and informed the jury they would only be seeking damages for pain and suffering, in the amount of $700,000. Plaintiff was a very likeable retiree, and his counsel leaned heavily on sympathy in the presentation of their case. The Plaintiff’s treating radiologist did not state his opinions were within a reasonable degree of medical probability, and the treating eye surgeon conceded no permanent injury. However, the defense of the case was complicated by the concession of the defense radiologist that Plaintiff had incurred a sprain/strain to the cervical region as a result of the accident, which healed on later films.  After five days of trial, the jury awarded $300,000 in pain and suffering. The final award will be reduced to an amount within the policy limits after the application of various set-offs.

Summary Judgment: Rutherford County, Tennessee

Nashville Partner, John Floyd, obtained summary judgment in a medical malpractice matter in Murfreesboro, Tennessee. Plaintiff was a 54 year old woman under the care of our client, a foot and ankle surgeon, for a wound on her foot. Plaintiff became aware that her wound was not healing properly in the middle of October 2016. Although she documented the poor healing of the wound, she did not present back to the podiatrist’s office to have the wound reassessed until mid-November, almost three weeks later. At that time, it was determined that sepsis had set in, requiring amputation of Plaintiff’s right leg below the knee in November 2016. Plaintiff filed an initial Complaint against our client in February 2018, non-suited that Complaint in June 2018, and finally filed her Second Amended Complaint in October 2019. We moved for summary judgment, arguing that since Plaintiff’s Second Amended Complaint was filed a full three years after the cause of her injury, the statute of limitations for bringing such a claim had expired. The Court agreed, granting summary judgment in favor of our client and authorizing our client to seek fees and costs.


III. We Are Wicker: Announcements, Recognition and Honors

Congratulations to Our New Partners

We are pleased to announce the following new partners, effective May 1, 2024.

James Foster, Fort Lauderdale

Matthew Ouellette, Melbourne

▶ Eric Sage, Fort Lauderdale

Cory Stephenson, West Palm Beach

James and Matthew have been with the firm for several years, and Eric and Cory just joined us recently. We are excited to welcome them as partners and look forward to many more successful years to come!

Phoenix Partner Selected to Southwest Super Lawyers®

We are pleased to announce that Mandi Karvis, the managing partner of our Phoenix office, has once again been named to Southwest Super Lawyers®!

Congratulations Mandi!

Orlando Partner Completes Second Boston Marathon

Congratulations to Orlando Partner, Kurt Spengler, who competed in the 128th Boston Marathon on April 15. The Boston Marathon is considered one of the most historic marathons in the world, and requires participants to qualify by running another marathon under a stated time. An avid runner, this was Kurt’s second time completing the race. He finished with a time of 03:43:37, and a pace of 08:32/mile.

He was cheered on in Boston by his wife Tolly, daughter Megan, and son Jake; and in Orlando by his legal support team and colleagues at the office, who tracked his progress on the marathon’s app throughout the race and decorated his office for his return. Kurt has been making us proud for 30 years, and this is just one of the many reasons why. Congratulations Kurt on this outstanding achievement! 


Orlando Office Supports Legal Aid Society Toy Drive

Our Orlando office was proud to support the Legal Aid Society of the Orange County Bar Association, Inc. by providing gifts for the Spring Toy Drive. These toys and other items will be used to gift to foster children in Orange County for birthdays, good grades, and other special occasions. Gifts were collected throughout the office for several weeks, and delivered to the Orange County Bar Association on April 17. We are grateful to the Legal Aid Society for all of their hard work and happy to give back to such a worthy cause!


April Speaker Spotlights

Several Wicker Smith partners presented at the USLAW NETWORK, Inc., Spring Client Conference in Phoenix, Arizona.

In addition to Miami Partner Oscar J. Cabanas, who is the 2024 Chair of USLAW NETWORK, Inc., the following individuals also presented at the event:

Krista Cammack (Orlando) presented during the Litigation Academy Seminar.

Nichole Koford (Tampa) co-facilitated "Artificial Intelligence and Underwriting."

Constantine "Dean" Nickas (Miami) co-facilitated "Navigating Legal and Professional Boundaries in Witness Prep."

Jacob Liro (Orlando) served as the Co-Chair of the Transportation Track

Wicker Smith attorneys are available to present continuing education seminars for our clients on a variety of topics. For more information or to schedule a presentation, reach out to Sandy Stokes, Director of Marketing, at sstokes@wickersmith.com


Wicker Smith Celebrates 72 Years

In 1952, Idus Q. Wicker and James A. Smith recognized the need for a law firm that not only offered quality representation, but also prioritized integrity and creativity. Today, we serve clients in 16 offices and four states, holding fast to those same values. We are honored to serve you, and to continue to defend the future.


Join our team in 2024! Check out all our current job postings at www.wickersmith.com/contact/careers


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