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Catastrophic Injuries

Former Mayor’s Sister Wins $56.6. Million Against Tobacco Giant Philip Morris International Incorporation

August.12. 2010

For nearly 25 years, a woman was addicted to smoking cigarettes due to nicotine, the highly addictive drug found in many tobacco-related products. The woman explains that had Philip Morris International Incorporation, an American cigarette and tobacco company, informed her of the highly-addictive ingredients, she would have never begun smoking. She states that the company concealed the truth about such products and should be held responsible for her ill condition.

Although the woman was able to stop smoking when the patch was introduced, her condition severely worsened over the years, and she is now unable to walk more than a few steps without having to stop to catch her breath. Attorneys Robert W. Kelley, Todd R. Falzone, and Todd R. McPharlin of Kelley/Uustal represented the woman as she battles Philip Morris International Inc.

Due to a severe case of emphysema, the woman must remain attached to an oxygen tank and travel via wheelchair, since walking has become an extremely exhausting task. Philip Morris International Inc. has refused responsibility for the woman’s harms despite their deceitful acts of hiding the realities and danger of cigarettes and not providing warning labels on the cigarette packages despite their knowledge of potential harm.

The jury assessed a verdict of $56.6 million against Philip Morris International Inc. for the woman’s past and future medical expenses, physical pains, and emotional suffering. Additionally, the jury passed punitive damages in the amount of $244 million to punish Philip Morris International Inc. for its misbehavior and dishonesty.

Jury Awards Doctor $33 Million

August.14. 2010

A jury in Los Angeles awarded a University of Miami urology surgeon and professor $33 million Wednesday after finding the Los Angeles Police Department and Budget Rent-a-Car Co. liable for hand, wrist and shoulder injuries the doctor suffered during a 2001 traffic stop.

Jurors deliberated for more than two days before siding with Dr. Angelo E. Gousse, an assistant professor at the University of Miami School of Medicine’s Department of Urology who performs complicated procedures to treat women with urology disorders. The panel ordered Los Angeles to pay 43 percent of the award and Budget 57 percent, said Bob Kelley, Gousse’s attorney. The jury… has spoken very clearly, Gousse said. “They will not tolerate any degree of police brutality and mistakes, and they will not tolerate improper conduct by Budget Rent-a-Car.”

Eric Moses, a spokesman for the Los Angeles City Attorney’s Office, said his office will likely appeal the decision. “The verdict and assessment of damages are very disappointing,” Moses said. “The city believes that under the circumstances, the officers’ actions were consistent with department policy.”

The trial lasted about a month.

Gousse, 40, was in Los Angeles for a symposium at the UCLA Medical Center on Feb. 11, 2001. He was driving back to his hotel in a rented Ford Taurus when police pulled him over because the license tag on the Taurus belonged to a vehicle that was reported stolen a year earlier.

Officers forced Gousse to the ground and handcuffed him as multiple police cars arrived and a helicopter hovered overhead. He was taken to the Los Angeles police station and remained handcuffed until he complained of pain in his hands, Kelley said.

Gousse, of Miramar, accused police of refusing to inspect his rental car documents, which were in the glove compartment, and denying him medical attention. Police officials said he refused medical help.

Kelley said the improperly applied handcuffs damaged nerves in Gousse’s hands and officers injured his left shoulder. His client now relies on help from other doctors during surgeries because he has a hard time keeping his hands and fingers still.

“Although that injury may not have an impact on the average person, it had a dramatic impact on his career,” Kelley said.

Budget officials have acknowledged that the license tag had inadvertently been assigned to Gousse’s car. They could not be reached for comment late Wednesday.

Gousse said his injuries haven’t caused him to err during surgeries. He said he intends to go back to work when he returns from Los Angeles within a week.

“I love being a doctor,” said Gousse, a native of Haiti who graduated valedictorian from City University of New York and attended the Yale University School of Medicine. “I will continue being a surgeon and I will continue doing it as long as I can do it safely.”

Attorneys Painstakingly Prove Artist’s Fall Was Half Builder’s Fault

December.06. 2010

Attorneys for Colombian muralist Mercedes Zota said analyzing her 14-foot fall onto a marble staircase was a bit like trying to unscramble an egg.

There were no witnesses to the February 2004 accident in which she fell from a catwalk while finishing work on a second-floor ceiling of a $3.2 million Lighthouse Point spec mansion.

Lawyers Matthew Weissing and Robert Kelley pieced together the events from circumstantial evidence because she was left in a coma for months and lost 25 percent of her brain mass.

Then they had to convince a jury that home-builder Broward Executive Builders was at fault because Zota’s catwalk was not flanked by guardrails as the building code required. Her family reached confidential pretrial settlements with the property owner, its insurer and subcontractors.

In early June, Zota was awarded $5.4 million after the jury found her 50 percent at fault, reducing the $10.8 million verdict.

“The problem and challenge here was that nobody saw her fall,” said Weissing, a partner in the Fort Lauderdale firm of Farmer Jaffe Weissing Edwards Fistos Lehrman. “She was found at the bottom of the staircase after a construction worker heard the impact of her hitting the marble.”

The last time Zota was seen before that, she was sitting on scaffolding attached to the catwalk that stretched from one end of the room to the other, said Kelley/Uustal’s Robert Kelley, a partner in the Fort Lauderdale firm who helped try the Broward Circuit Court case.

“Nobody knew if she was climbing up or down, and it was difficult to prove what happened,” he said.

Her attorneys brought in expert witnesses to analyze blood spatter patterns and recreate the events based on where her earrings and cell phone landed.

“We needed to create a compelling case where the jury could understand she wasn’t responsible for her injuries and that the general contractor could have and should have put up guardrails,” Weissing said. “In the course of discovery the contractor [Broward Builders' Jack Farji] admitted the rails were down, and I was able to demonstrate that they weren’t [in place] for at least a two-month period prior to the accident.”

A mechanical engineer at the University of Miami testified simple guardrails made of plywood would have prevented Zota’s accident, and a former Broward County medical examiner testified the artist’s injuries were consistent with a high-energy fall — refuting defense claims she fell while walking down the staircase.

“He testified that she must have come from at least second-floor height,” said Weissing

He noted there was little physical evidence — save for a disputed scuff mark on one wall — on the home’s second floor.

Zota was rushed to a hospital before the first pictures were taken at the scene, and protective paper covering the staircase, which theoretically could have helped illustrate how and where Zota landed, had been removed the morning of the accident.

“We had to make sense of what was available,” Weissing said.

He and Kelley, who joined the case in 2008, said they also countered defense claims that Zota could have refused to get up on the catwalk and walked off the job rather than work without rails.

The defense also claimed the mural’s completion wasn’t a priority for the builder.

“We showed that they were pushing her to come in and keep going,” Weissing said. “These guys were just pushing this house through. … I went through every bill and every contract, and not one had anything to do with safety.”

Kelley concurs. “This could have been prevented with a really simple fix,” he said. “What makes it worse is that the day after the accident, the guardrails were nailed back up.”

To Weissing, the real tragedy is that Zota, previously a vibrant artist, is now unable to paint, take an active part in her life or live a normal family life. “One of the most challenging parts of my job is how to present to a jury the value of what has been lost,” he said.

The jury did not award any money to Zota’s family, which Weissing and Kelley say they are entitled to. But Broward Circuit Judge Peter Weinstein granted a request for a second trial that is restricted to a loss of consortium claim.

Attorneys Win Verdict for Artist Whose Fall at Work Caused Coma

September.29. 2010

Case: Mercedes Zota, et al v. Lighthouse Intracoastal Inc., et al
Case no: CACE-04-003388
Description: Negligence
Filing date: Feb. 26, 2004
Trial dates: May 17-June 2, 2010
Jury award: $5.4 million
Judge: Broward Circuit Judge Peter M. Weinstein
Plaintiff attorneys: Matthew Weissing, Farmer Jaffe Weissing Edwards Fistos Lehrman, Fort Lauderdale; Robert Kelley, Kelley/Uustal, Fort Lauderdale
Defense attorney: Jack T. Frost, Green Ackerman & Frost, Boca Raton

Details: Shortly before the sale of a $3.2 million Lighthouse Point mansion, Colombian artist Mercedes Zota was commissioned to lend her talents to the home’s interior, including a painting of an elaborate scene on a second-floor ceiling.

No one else was in the room when the woman returned to complete her piece, crossing a catwalk and climbing onto scaffolding Feb. 5, 2004. She fell 14 feet onto a marble staircase. The impact was heard by nearby construction workers and the site’s general contractor, Broward Executive Builders’ Jack Farji.

Plaintiff case: As Zota lay in bed in a coma missing a quarter of her brain mass, her husband and daughter sued those involved in the home’s construction. They blamed the builder because guardrails that lined the catwalk had been taken down before Zota’s fall — and installed again after her fall.

After waking several months later, Zota was never the same. Her brain injury left her with the mental capacity of a young child.

Zota’s family sued property owner Lighthouse Intracoastal, its commercial liability insurer Essex Insurance, subcontractor Diamond Renovation & Construction and Farji.

The family reached a confidential resolution with Lighthouse and Essex and a settlement with Diamond. Farji was dismissed because he was covered by his building company, the only defendant to go to trial.

Weissing brought in Kelley months before trial. They argued Zota’s fall would have been prevented by the catwalk guardrails, which should have been in place under federal, state and county building regulations and codes.

With no eyewitnesses, Weissing and Kelley relied on circumstantial evidence to prove their case.

They called expert witnesses to piece together what happened and show how even the simplest of guardrails, wooden 2-by-4s, would have stopped Zota from falling. Ronald Wright, who served as Broward’s chief medical examiner for 14 years, helped reconstruct the accident by analyzing how Zota’s blood spattered when her head hit the marble. A mechanical engineer and University of Miami professor, Ronald Zollo, showed a guardrail would have prevented her fall.

They also put Zota on the stand. She spoke but had trouble communicating. The judge determined her testimony was unreliable because of her brain injury.

The judge blocked attorneys from telling jurors the builder’s decision to reinstall the guardrails because it was considered a subsequent remedial measure.

Defense case: Broward Executive maintained Zota was responsible for her injuries because she chose to work knowing there were no guardrails. The company also argued she could have put up her own guardrails. The company also argued it was impossible to determine whether guardrails could have even prevented Zota’s fall because no one saw it.

Outcome: The jury awarded $10.8 million but determined Zota was 50 percent responsible for the incident, lowering the total to $5.4 million.

Quote: “They spent an enormous amount of money building this magnificent mansion on the water, and they could have put up the guardrails for next to nothing,” Weissing said.

Post-verdict: Both sides have filed motions for retrial. A lack of consortium claim was on the verdict form, but the jury awarded no money to Zota’s husband and children. Family attorneys argue the family members are entitled to an award. The company’s attorney contends there was insufficient evidence to determine whether guardrails would have prevented Zota’s fall.

— Jose Pagliery

Mother and Baby Awarded $4 Million in Birth Injury Case

October.21. 2013

Medical errors are far too common in America, especially in the delivery room. On what is supposed to be the happiest day of an expectant couple’s life, mistakes can and do happen. And when they do occur, it is up to a judge and/or jury to decide if medical malpractice was to blame. Such was the case in a recent trail that resulted in a $4 million verdict.

Although the names have been kept from the public for reasons of privacy, we do know that the jury determine that the obstetrician that delivered a baby the wrong way. Attorneys and expert witnesses established that the doctor should have recognized that a cesarean delivery was a much safer option than a traditional, vaginal birth.

Because the doctor ignored obvious warning signs that resulted in injury to both the mother and her new daughter, the jury decided that he or she was negligent. Compensatory and punitive damages were awarded because both mother and daughter are now dealing with chronic medical issues that cannot be corrected.

Unfortunately, it is unclear how much longer the family must suffer without justice, as the doctor, or his/her insurance providers have appealed the verdict.

Jury Awards $3.4M to Snorkeler Run Over By Boater

September.10. 2010

Case: David Walker v. Eric Elliott
Case no: 0857802ca30
Description: Personal injury
Filing date: March 31, 2008
Trial dates: Jan. 11-19, 2010
Judge: Miami-Dade Circuit Judge Lester Langer
Jury decision: $3.38 million
Plaintiff attorney: Todd McPharlin, Todd Falzone and Eric Rosen, Kelley Uustal, Fort Lauderdale
Defense attorneys: Jonathan Liss, Bernstein Chackman Liss & Rose, Hollywood

Details: David Walker, 51, of Yorkville, Ill., and his family were vacationing in Paradise Island in the Bahamas on April 5, 2007. They were snorkeling in a protected cove when Eric Elliott ran over Walker with a Waverunner. Walker suffered two fractured vertebrae and a neck injury. He needed many hours of physical therapy, 27 pain injections and surgery to fuse his spine and remove a neck disc.

A drywall installer, Walker can no longer work and is losing his business, according to the plaintiff attorneys. They originally filed suit in Broward County, but the case was transferred to Miami-Dade County, where Elliott lives. Defendants offered $107,000 in settlement talks, but the plaintiffs demanded $3 million.

Plaintiff case: Plaintiffs produced four expert witnesses — Walker’s orthopedic surgeon and neurosurgeon, an economist and Hobe Sound water safety expert Dennis Smith, who testified about Elliot’s operation of the Waverunner. Walker took the stand along with his wife, two teenage sons and brother-in-law, former Buffalo Bills player Don Beebe.

Defense case: Liss did not return calls for comment. McPharlin said the defense tried to blame the Atlantis resort, where the family was staying, and Walker for not putting up a flag to show he was snorkeling in the area.

Outcome: Jurors deliberated for two hours before awarding $3,379,000 to Walker, including $2,145,000 in past and future pain and suffering, $845,000 in past and future lost earnings and $388,724 in past and future medical expenses. Atlantis, which was not a defendant, was included on the verdict form, but jurors ascribed no liability to the resort or Walker, only Elliott.

Quote: “We weren’t surprised by the verdict at all,” McPharlin said. “The case was about taking responsibility, which the defendant refused to accept. The jury saw through the defenses and came back with the correct verdict.”

Post-verdict: No documents have been filed.

— Julie Kay

Baseball Mishap Nets Jury Award

August.14. 2010

Kelley/Uustal secured a verdict of $2.7 million for a Boca Raton woman who was hit in the face by a warm-up pitch at a baseball game. The victim, 48-year-old Linda Postlethwaite, a former stockbroker with PaineWebber, will receive $972,000 in compensation for her injuries, in addition to a confidential amount from other settlements. Her bullpen-side seat and a poorly-placed net were shown to have contributed to the accident, which occurred at a Florida Marlins game in August of 1993.

The pitch resulting in her injury was thrown by Mitch Williams, the Phillies’ late-inning relief pitcher. Williams, who has a history of beaning other players and an unruly throwing arm, had previously earned himself the nickname “The Wild Thing.” The pitch hit the victim between the eyes, breaking her nose. According to her attorney, Bob Kelley, she still continues to experience impaired concentration and headaches, and has not been able to work since the accident.

According to testimony, the net over the bullpen was lowered down from 13 feet to 10 feet so that it would not block fans’ views. Huizenga then ordered it to be further lowered to 8 feet. Because it was moved, the net failed to protect Postlethwaite, who was seated in the founders’ field seat beside the Phillies’ bullpen on the first base line.

After the trial, which took nine weeks, the jury agreed that H. Wayne Huizenga (the then-owner of the Marlins), the teams, and the owner of Joe Robbie Stadium were responsible for the injury.

The jury apportioned blame for the accident as follows:

  • Williams and HOK Sports: free of culpability
  • Huizenga: 36.5 percent
  • Robbie Stadium Corp.: 31.5 percent
  • The Florida Marlins: 27.5 percent
  • The Philadelphia Phillies: 4.5 percent

All the defendants settled confidentially with the exception of the Phillies and Robbie Stadium Corp. Unless they win an appeal, the Phillies will owe the victim $121,500 and Robbie Stadium Corp. will owe her $850,500.

Only the parties who opted for the settlement and their lawyers know if their deals were more or less favorable than what they would have owed Postlethwaite had they stayed in the case. The Marlins would have owed $742,500, and Huizenga would have been responsible for paying $985,500.

Kelley / Uustal Wins More Than $1 Million in Back Pay for Former Alamo Employee

July.17. 2008

McDonald Clark was the marketing genius behind Alamo-Rent-a-Car’s glory days. When Alamo was taken over by Republic Industries in 1996, Republic entered into a new employment contract with Clark which provided for certain payments to Clark for 10 years if his contract was not renewed. Republic later changed its name to AutoNation and spun off Alamo into a separate company. When Alamo went bankrupt, AutoNation refused to make the payments.

Clark hired the attorneys at Kelley / Uustal to fight to enforce the agreement. After six years of litigation, the jury found that Clark was entitled to $1,098,800. The jury deliberated for only a few minutes after the four-day trial, which included testimony from a host of former Republic executives, including Steve Berrard and Michael Karsner.

“McDonald had a contract which was negotiated by Republic, written by Republic on Republic letterhead, and signed by Republic’s CEO, Steve Berrard,” explained John Uustal, who tried the case with his partner, Todd Falzone. “Republic tried to use Alamo’s bankruptcy as an excuse to avoid responsibility. But the jury didn’t buy it. A deal’s a deal.”

Clark’s five-year contract with Alamo included a 10-year, $100,000-a-year salary continuation benefit that would begin at the end of the contract. One year into the contract, Alamo was sold and Republic, now AutoNation, renegotiated the contract. In 2000, the contract was not renewed, and Clark began receiving his salary continuation payments. By November of 2001, however, Alamo filed bankruptcy and the payments stopped.

“AutoNation’s CEO gave Mr. Clark his word that this contract would be fully honored. But when it came time for them to make good on that promise, AutoNation turned its back,” said Falzone. “Thanks to the Judge and Jury, we had a fair trial and a just verdict.”

Mr. Clark’s claim for attorney’s fees is still pending.

Attorneys Help Redneck Competitor Win $1 Million

April.09. 2014

Despite signing liability waivers, a former mud racer disabled in a racing accident obtained a $1 million settlement.

Kelly/Uustal attorneys Todd Falzone and Kristin Bianculli of Fort Lauderdale represented Tommy Walker Jr., 45, a single father who was injured in the 2009 Redneck Games in Bithlo.

The Altamonte Springs man sued Orlando-based Bithlo Motorsports LLC, Bithlo Racing Sports LLC and race organizers William Pixley, Chris Duckett and Margaret Hensinger in Orange Circuit Court in 2011. Because of the signed waivers, the defendants argued Walker had no right to sue for negligence. His cause of action was gross negligence, which Bianculli noted is much more difficult to prove. The circumstances of the race, however, and the catastrophic result justified a gross negligence claim, Walker’s attorneys insisted.

The rear tires of six races had cut into the dirt. Rather than level the track, the race operators reversed the direction of travel for the seventh race.

Walker was in his customized pickup on the U-shaped track and leading the three-truck race. He approached the end of the dirt track at about 50 mph, Falzone said.

Walker’s truck jumped the rut dug in an earlier race, flew through the air and slammed head-on into a bulldozer set as a barricade about 100 feet from the finish line for the safety of the fans.

“The thing that was the most shocking was, given the direction he’s facing at the starting line, Tommy couldn’t see the bulldozer. They moved the bulldozer after he was at the start line,” Falzone said. During depositions by the defendants, Falzone recalled they kept correcting him when he referred to the bulldozer as a tractor.

“They refused to call the bulldozer a bulldozer, they kept calling it a mobile barricade,” he said.

Over the past four years, Walker underwent 17 hip surgeries. Doctors finally removed his hip.

“They tried multiple times to put in a prosthetic hip, each one failed due to infection,” Falzone said. “He now literally has no bone connection between his leg and his pelvis.”

Falzone said Walker cannot walk and will be wheelchair-bound for life. Walker was a welder and did some construction work. He can no longer work, Falzone said.

The trial was set for March, but the parties settled on Feb. 24 for $1 million, the limit of the insurance policy.

“The award will help Tommy take care of himself and his son,” Falzone said. “We cannot undo the damage, but we can make his life better.”

Falzone said of the bulldozer is still being used as a mobile barricade.

“They had a race there a month ago, and they did the same thing,” he said.

Fans of the event recorded video on their cell phones, and the crash can be seen on YouTube at “Bithlo 9-13-09 Truck Crash.

Settlement Reached in Nursing Home Case

April.15. 2011

A considerable settlement was won in a recent Florida nursing home neglect case in which our client fell and suffered serious injuries. These injuries resulted when the nursing home caregivers failed to install a bedrail to protect our client while sleeping.

It is sad to think that senior citizens, living out the last years of their lives, are sometimes abused or injured by the very people entrusted with their care. In 2003, Long Term Care Ombudsman programs across the country investigated 20,673 complaints of nursing home or other long-term care facility abuse and neglect, including physical abuse, neglect, and psychological abuse. Unfortunately, many cases of nursing home abuse or neglect often go unreported. According to statistics from the National Center on Elder Abuse, it is estimated that only 1 out of every 6 cases of elder abuse is reported

With baby boomers retiring, the National Institute for Justice expects the trend of elder abuse to increase. Nursing home abuse and nursing home neglect cases have developed as a specialized subset of medical malpractice law in which the Kelley/Uustal personal injury lawyer legal team has substantial experience. If your loved one has been the victim of nursing home abuse or neglect, or you have questions regarding the safety and well-being of a loved one in a nursing home, please call a dedicated Florida nursing home accident lawyer at Kelley/Uustal today.

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