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Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982

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Archives for June 2017

June 30, 2017 by admin

Workers’ compensation — Temporary partial disability — Evidence — Expert medical advisor’s opinion — Judge of compensation claims erred in rejecting EMA’s opinion that claimant is at maximum medical improvement and that accident was not major contributing cause of claimant’s neck condition without articulating findings of clear and convincing evidence to reject opinion

42 Fla. L. Weekly D1450cTop of Form Workers’ compensation — Temporary partial disability — Evidence — Expert medical advisor’s opinion — Judge of compensation claims erred in rejecting EMA’s opinion that claimant is at maximum medical improvement and that accident was not major contributing cause of claimant’s neck condition without articulating findings of clear and Read More »

Filed Under: Articles

June 30, 2017 by admin

Workers’ compensation — Judge of compensation claims — Disqualification — JCC erred in denying motion to disqualify on basis that motion was legally insufficient — Motion to disqualify which alleged that claimant fears that he will not receive a fair hearing because JCC found claimant’s attorney to be not credible in another case was legally sufficient — Petition for writ of prohibition granted

42 Fla. L. Weekly D1449bTop of Form Workers’ compensation — Judge of compensation claims — Disqualification — JCC erred in denying motion to disqualify on basis that motion was legally insufficient — Motion to disqualify which alleged that claimant fears that he will not receive a fair hearing because JCC found claimant’s attorney to be Read More »

Filed Under: Articles

June 30, 2017 by admin

Wrongful death — Automobile accident — Vicarious liability — Temporary control of car by non-owner, who was driving vehicle at time of accident while owner was present in passenger’s seat, fell within parameters of a loan for purposes of statute limiting strict vicarious liability of owner who “loans” a motor vehicle to a permissive user — Statute makes no distinction as to whether use of vehicle occurs with or without the presence of the owner — Trial court erred in denying motion to limit owner’s total liability under the judgment

42 Fla. L. Weekly D1407aTop of Form Wrongful death — Automobile accident — Vicarious liability — Temporary control of car by non-owner, who was driving vehicle at time of accident while owner was present in passenger’s seat, fell within parameters of a loan for purposes of statute limiting strict vicarious liability of owner who “loans” Read More »

Filed Under: Articles

June 30, 2017 by admin

Torts — Automobile accident — Evidence — Hearsay — Trial court abused discretion by excluding from evidence statements made by plaintiff to emergency medical technician at accident scene and contained in EMS report — Evidence was admissible as an admission — Error in excluding evidence was not harmless — Defendant entitled to new trial on liability

42 Fla. L. Weekly D1426aTop of Form Torts — Automobile accident — Evidence — Hearsay — Trial court abused discretion by excluding from evidence statements made by plaintiff to emergency medical technician at accident scene and contained in EMS report — Evidence was admissible as an admission — Error in excluding evidence was not harmless Read More »

Filed Under: Articles

June 30, 2017 by admin

Trial court departed from essential requirements of law when it granted plaintiff’s motion for post-trial juror interviews based on alleged failure of two jurors to disclose litigation history in their responses to jury questionnaire where plaintiff failed to establish relevance and materiality, concealment, and due diligence, the three elements necessary to warrant post-trial interviews

42 Fla. L. Weekly D1403aTop of Form Civil procedure — Torts — Medical malpractice — Trial court departed from essential requirements of law when it granted plaintiff’s motion for post-trial juror interviews based on alleged failure of two jurors to disclose litigation history in their responses to jury questionnaire where plaintiff failed to establish relevance Read More »

Filed Under: Articles

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  • Winn-Dixie, website, customers, prescription, place of public accommodation, coupons, refills, privileges, disabled, advantages, accommodations, visually-impaired, auxiliary, public accommodation, inaccessible, barrier, offerings, sighted, majority opinion, intangible, enjoyment, locator, rewards, card, district court, facilities, shopping, software, communicate, in-store – The difficulties caused by the customer’s inability to access much of the store’s website constituted a concrete and particularized injury that was not conjectural or hypothetical, and would continue if the website remained inaccessible; [2]-The statutory language in Title III of the ADA defining “public accommodation” was unambiguous and clear, and public accommodations were limited to actual, physical places, and websites were not a place of public accommodation under the statute; [3]-The store’s website did not constitute an intangible barrier to the customer’s ability to access and enjoy fully the physical grocery store; [4]-Absent congressional action that broadened the definition of “places of public accommodation” to include websites, the appellate court could not extend ADA liability to the facts presented.
  • Civil rights — Employment discrimination — Pharmacist employed by Department of Veterans Affairs brought action against Secretary, alleging that her managers at VA medical center discriminated against her based on her gender and age, retaliated against her because she engaged in protected activity, and subjected her to hostile work environment in violation of Title VII and Age Discrimination in Employment Act — Retaliation — Title VII’s federal-sector retaliation provision requires personnel actions to be made free from any discrimination — Supreme Court’s decision in pharmacist’s case, which held that federal-sector provision of ADEA did not require plaintiff to prove that age was a but-for cause of a challenged personnel action, undermined to the point of abrogation Eleventh Circuit’s prior panel precedent holding that Title VII’s federal-sector retaliation provision requires but-for causation — Standard that Supreme Court articulated for claims under ADEA’s federal-sector provision controls cases arising under Title VII’s nearly identical federal-sector provision — Retaliatory hostile work environment — An actionable federal-sector Title VII retaliatory-hostile-work-environment claim must describe conduct that rises to the level of personnel actions and must be evaluated under “might have dissuaded a reasonable worker” standard rather than the more stringent “severe or pervasive” standard
  • Insurance — Personal injury protection — Reasonable, related, and necessary medical treatment — Civil procedure — Summary judgment — Opposing affidavit — Trial court abused its discretion in granting motion to strike affidavit of independent medical examiner based on plaintiff’s claim that affidavit “baldly repudiated” affiant’s deposition testimony regarding relationship between injuries and accident and medical necessity of chiropractic treatment — Because affiant’s testimony raised genuine issue of material fact, as it clearly conflicted with testimony of treating chiropractor, order granting summary judgment in favor of assignee/medical provider reversed
  • Wrongful death — Automobile accident — Jurors — Peremptory challenge — Race neutral explanation — Genuineness — New trial — Evidence — Trial court did not abuse its discretion in granting a new trial based on its improper denial of plaintiff’s peremptory challenge of juror — Trial court failed to apply proper legal standard in denying plaintiff’s peremptory strike of juror where it failed to recognize the presumption that plaintiff was exercising her peremptory challenge in a nondiscriminatory manner and hold defendants to their burden of proving purposeful discrimination — Fact that juror was sole African American juror left on the panel is, standing alone, insufficient to override a genuine race-neutral challenge — Trial court erred in granting a new trial based on its determination that verdict finding one of the defendants 100% liable for the fatal accident was against the manifest weight of the evidence — Order shows that trial court improperly re-weighed the evidence and acted as a seventh juror in doing so — Trial court erred in permitting jury to hear evidence related to defendant’s driving history where not only was the evidence unduly prejudicial, but the citations bore no similarity to the circumstances at issue and had no relevance to defendant’s alleged negligence at the time of the accident — Trial court erred in granting defendant’s motion notwithstanding verdict which asserted that defendant should not be liable for the total amount of damages to co-defendant’s tractor-trailer — A new-trial order and order for judgment notwithstanding verdict are mutually inconsistent and may not be granted simultaneously unless granted on the express condition that the order granting the judgment notwithstanding verdict only becomes effective if the order granting new trial is reversed on appeal, which did not happen in this case
  • Workers’ compensation — Prosthetic devices — Limitation of actions — Claimant who had screws and rods inserted in her spine as a result of an injury occurring in 1990 — Judge of compensation claims erred in rejecting employer/carrier’s statute of limitations defense to claim for pain management and a replacement mechanical bed — While applicable 1989 version of workers’ compensation law contained an exemption from its statute of limitations to the right for remedial attention relating to the insertion or attachment of a prosthetic device, there is no evidence that either the prosthesis, or the surgery required to insert it, is causing the need for the requested benefits as opposed to the underlying condition that necessitated the prosthesis in the first place — Fact that claimant may have a prosthetic device is not, standing alone, sufficient to prevent statute of limitations from accruing

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