Wrongful death -- Automobile accident -- Intersection collision occurring at intersection adjacent to residential property owned by defendant -- Duty of care -- Foreseeability -- Foreseeable zone of risk analysis established in McCain v. Florida Power Corp. does not apply to private owners of residential property containing foliage that does not extend into the public right-of-way so as to create a duty by the landowner to adjacent motorists -- Owners of private property do not owe a duty to motorists on abutting roadways as to the maintenance of foliage located wholly within the bounds of the property -- Property owners owe a duty, under a McCain analysis, not to permit the growth of foliage on their property to extend outside the bounds of the property and into the public right-of-way so as to interfere with a motorist's ability to safely travel on the adjacent roadway     Reported at 32 Fla. L. Weekly S745a

Torts -- Automobile accident -- Causation -- Fibromyalgia -- Evidence -- Novel scientific evidence -- Frye v. United States does not apply to expert testimony causally linking trauma to the onset of fibromyalgia -- Testimony causally linking trauma to fibromyalgia was based on experts' experience and training and, accordingly, is “pure opinion” admissible without having to satisfy Frye -- Challenge to conclusions of plaintiff's experts as to causation, rather than the methods used to reach those conclusions, is proper issue for trier of fact -- Even if Frye did apply, the testimony in the case at issue satisfied it -- Lack of studies conclusively demonstrating causal link between trauma and fibromyalgia and calls for further research do not preclude admission of the testimony     Reported at 32 Fla. L. Weekly S750a

Torts -- Medical malpractice -- Trial court erred in finding that National Childhood Vaccine Injury Compensation Act barred medical malpractice action in state court -- Claims raised in complaint alleging that doctor negligently injected needle into child's buttocks causing nerve damage to sciatic nerve and leading to permanent injury to her leg were not associated with physical effects of the vaccine, as that noun is used in Act, because injury did not flow from inoculant injected into her body -- Remand with instructions to reinstate complaint     Reported at 32 Fla. L. Weekly D2790a

Torts -- Medical malpractice -- Settlement -- Enforcement -- Trial court did not err in granting claimants' motion to enforce insurer's settlement of medical malpractice claims against physicians -- Physicians' bad faith arguments are insufficient as matter of law to prevent claimant and insurance carrier from settling medical malpractice action -- Only bad faith action available to insured when carrier settles a claim against insured within policy limits is one alleging prejudice to a pending counterclaim of insured or exposure of insured to additional damages above policy limits arising from same covered claim being settled -- Higher insurance premiums and damages to insured's reputation are not examples of bad faith by carrier in settlement of covered claim within policy limits
Reported at 32 Fla. L. Weekly D2784a

Wrongful death -- Medical negligence -- Action against hospital alleging nurse failed to properly monitor child's condition following open heart surgery and that nurse gave child an excessive amount of medication known as Digoxin, which ultimately resulted in child's death -- Evidence -- Routine practice -- Trial court erred in excluding evidence that hospital had routine practice of requiring attendance of two nurses when drugs such as Digoxin are administered in order to ensure that patient receives prescribed dosage -- Evidence of this practice may have made a difference in the outcome of the case given absence of direct evidence that nurse gave child more than prescribed dose -- Abuse of discretion to deny hospital's motion to continue trial until such time as nurse whose alleged negligence was centerpiece of case could appear in court to testify in person before jury -- New trial required
Reported at 32 Fla. L. Weekly D2755a           Courtesy of Florida Law Weekly       Subscriptions (800) 351-0917