The Frye vs. Daubert standards – and why they are important to you as a citizen of Florida, and the United States

In our most recent article we discussed the recent ruling by Florida’s Supreme Court to halt the enactment of a state statute enacted in 2013 that would have required much more stringent standards for admission of expert medical testimony in medical malpractice lawsuits. Politicians and attorneys alike are familiar with both legal standards that are being pitted against one another in this legal battle – the older Frye Standard versus the newer and more stringent (and therefore more defendant-friendly) Daubert Standard. But most of the general public are not.

 

Here is a quick synopsis of each standard, and where they originated from:

 

According to Wikipedia, the Frye standard: “To meet the Frye standard, scientific evidence presented to the court must be interpreted by the court as “generally accepted” by a meaningful segment of the associated scientific community. This applies to procedures, principles or techniques that may be presented in the proceedings of a court case.” The case this test comes from, Frye v. United States, was originally tried in 1923. https://en.wikipedia.org/wiki/Frye_standard

 

From that point forward the Frye standard became the widely-used and cited case law for the admissibility of evidence in civil court, particularly medical malpractice cases. Until 1993, that is.

 

In 1993, a ruling in the case of Daubert v. Merrill Dow Pharmaceuticals held that “the Federal Rules of Evidence did not incorporate the Frye “general acceptance” test as a basis for assessing the admissibility of scientific expert testimony, but a flexible reliability and relevancy standard instead,”  https://en.wikipedia.org/wiki/Daubert_standard

 

What does this mean to the average American? Using the Daubert standard over the last two decades has given judges more latitude to rule some expert testimony inadmissible before that testimony is seen by the jury. According to a 2002 RAND study cited in the Wikipedia article, “post Daubert, the percentage of expert testimony by scientists that was excluded from the courtroom significantly rose. This rise likely contributed to a doubling in successful motions for summary judgment in which 90% were against plaintiffs.[16] Beyond this study, there is little empirical evidence of the impact of Daubert. However, some critics argue that Daubert has disrupted the balance between plaintiffs and defendants.”

 

Florida was, in fact, one of the last states to have its Legislature try to adopt the Daubert Standard through statute enactment. As we previously noted, the state currently has a Republican majority in its Legislature, a Republican Governor (Rick Scott) and a Democrat-leaning Supreme Court. And since the ruling in February by the Supreme Court was not definitive, expect this tug-of-war to continue in our state government and others moving forward.

At Slinkman, Slinkman & Wynne, P.A. we will keep an eye on this and all other legislation that could affect you and your family if you are ever faced with having to sue for medical malpractice, defective products, or practically any other personal injury situation where either you or a loved one has suffered a wrongful death or serious injury.  We have been practicing personal injury law in south Florida for over 40 years.

For more information or for a free initial consultation, contact us at http://www.sswlawfl.com or at (561) 686-3400.

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Daubert standard rejection for Medical Malpractice cases makes for key future case law in upcoming trials in Florida

Florida Supreme Court Building

The Florida Supreme Court issued an important ruling recently that looks to be turning back scientific evidence admission standards in civil lawsuits to an older, more plaintiff-friendly requirement.

 

In its 4-2 ruling last month, the state’s highest court cited “grave constitutional concerns” as raised by the Florida Bar’s code and rules of evidence committee regarding the more stringent expert testimony admission rules under the Daubert standard that were put in place by the Florida Legislature on July 1, 2013 and endorsed by Governor Rick Scott.

 

The more lenient standard is known as the Frye standard, named after a case in 1923 (Frye v. United States) that was ruled upon by the Court of Appeals of the District of Columbia. The ruling in that case was then adopted throughout the United States and used for the next 70 years. The move to the more stringent Daubert standard happened in 1993 when the U.S. Supreme Court ruled upon the admissibility of expert testimony in the case of Daubert v. Merrell Dow Pharmaceuticals.

 

Currently Republicans hold a majority in the state Legislature and Governor Scott is a Republican, as well. Meanwhile there are 4 Liberal and 3 Conservative leaning judges on the Florida Supreme Court. In this case all 4 Liberal judges voted against the 2013 statute, while 2 of the 3 Conservative judges voted for it while 1 obstained.

 

As was pointed out in several other articles on this ruling, the move by Florida’s Supreme Court here does not definitively resolve the issue. In fact, the court left open the question, to be decided by a “proper case or controversy.” – meaning that it will be decided by a ruling in a future case.

 

At Slinkman, Slinkman, & Wynne, P.A., we know that these types of rulings have a substantial effect on future medical malpractice and other personal injury civil lawsuit cases. We help clients obtain payment for medical bills, lost wages, and pain and suffering due to medical malpractice. If you want to learn more about how to go about hiring the right attorneys for you in a situation where you have been injured by a defective product, then go to http://sswlawfl.com/areas-of-practice/medical-malpractice/. We also specialize in Accident & Serious Injury, Wrongful Death, Defective Products and many other types of legal situations where injury or death has occurred.

 

Whether you are in Jupiter, Palm Beach Gardens, Stuart, West Palm Beach or any other location throughout the state of Florida, you need to find and hire a law firm that has the level of knowledge and experience that will yield you maximum results, while also working with you throughout your particular situation until it is resolved. With over four decades of experience, that firm is Slinkman, Slinkman, & Wynne.

 

Our main office is located in south Florida in Jupiter at 1015 W. Indiantown Road, Suite 101A. You can contact us directly at (561) 686-3400, or via email at info@sswlawfl.com. Contact us today for a FREE initial consultation.

 

The following articles were used to help in the writing of this article:

http://www.mscesq.com/wp-content/uploads/sites/317/2017/02/sc16-181.pdf

http://www.hptylaw.com/media-publications-florida-supreme-court-rejects-daubert-statute.html

https://blog.expertpages.com/research-trends/florida-supreme-court-rejects-daubert-rule.htm

http://floridapolitics.com/archives/232254-supreme-court-rejects-daubert

http://www.dailybusinessreview.com/id=1202780342439/Florida-May-Be-Reverting-to-Frye-Standard-for-Admissibility-of-Expert-Testimony?slreturn=20170229213337

http://www.jdsupra.com/legalnews/florida-supreme-court-rejects-daubert-64301/

 

U.S. House Judiciary Committee proposes bill that will curtail rights of injured parties in medical malpractice lawsuits

U.S. House Judiciary Committee

Over the last several days the media has been focusing its coverage of healthcare debates on the new bill that is just coming out of several committees in the U.S. House of Representatives that is meant to repeal and replace the Affordable Care Act (more popularly known as Obamacare). But this, in fact, is not the only bill that the U.S. House has proposed to roll back previous legislation meant to help lower and middle income Americans.

On February 26th the U.S. House Judiciary Committee announced that they would be marking up and voting upon bill H.R. 1215, the “Protecting Access to Care Act of 2017”. According to Huffington Post contributor Joanne Doroshow, this legislation aimed at capping potential lawsuit settlements brought by anyone who receives their health care through a “federal program, subsidy or tax benefit.”

In other words, if you are receiving your healthcare through Obamacare, or from practically any other government entity, this bill will propose to significantly lessen or curtail your rights as the injured party.

 

The article lists other restrictive provisions in this bill which include:

  • Lessening the amount of time that you have to file a lawsuit.
  • Restricting the amount of money you can receive if you are involved in a case of medical malpractice.
  • Federal repeal of state joint and several liability laws, putting the onus of payment of medical bills back on the injured party if one of the perpetrators is unable to pay.
  • Restricting who you can sue in a case against a drug company over an unsafe drug.

The Huffington Post points at this and other pieces of recent legislation proposed by the U.S. House Judiciary Committee as examples showing that this Congress is scheming to “strip Americans of their legal rights. We are not sure if we would go that far – yet.

 

 

We believe that all Americans need to keep a close watch on what bills get proposed over the next 2 years in Congress – and be willing to voice your opinion if there is a bill that goes against the protection of the rights of your fellow Americans when they have been wrongfully injured or killed.

 

At Slinkman, Slinkman, & Wynne, P.A. we realize that the combination of a Republican President and Republican-controlled Congress could have a negative effect on the rights of injured people. We help our clients obtain payment to cover hospital and other medical expenses, pain and suffering, and more, if the situation warrants it. If you want to learn more about how we can help you in a situation where you or someone you love has been in an accident or the victim of malpractice, then go to this page on our website: http://sswlawfl.com/areas-of-practice/accidents-serious-injury/.

 

We specialize in Wrongful Death and Serious Injury, Automobile Accidents, Motorcycle Accidents, Boating Accidents, Medical Malpractice, Defective Products, and many other types of legal situations where injury or death has occurred. Whether you are in Palm Beach Gardens, Jupiter, Stuart, West Palm Beach or any other city in the state of Florida, you need to find and hire a law firm that has the level of knowledge and experience that will get you the financial results you deserve, while also working with you throughout your case until some type of resolution has been reached.

 

With over four decades of experience, that firm is Slinkman, Slinkman, & Wynne. Contact us directly at (561) 686-3400, or via email at info@sswlawfl.com.

How to spot a drunk driver in Jupiter and Palm Beach Gardens

Summer is here which also means the summer driving season is here. Many families pack up their belongings and the children and head to points all over the United States to visit friends and relatives. Of course there are also 3 major holidays that happen during this time, as well. Memorial Day has come and gone, while Independence Day is only a few weeks away with Labor Day to follow at the beginning of September.

Statistics tell us that the incidence of drunk driving rises significantly on and around these holidays. In fact, July 4th and Labor Day turn out to be two of the three or four days with the most drunk driving deaths in America every year, according to yearly surveys by the National Highway Traffic Safety Administration (NHTSA).

With that in mind here are ways for you to spot a drunk driver out on the road during this time, and any time. Spotting a drunk driver in enough time to get away may just save your life, and the life of your family.

From MADD: “While we work hard to turn cars into the cure and eliminate drunk driving forever, families must continue to be vigilant on our roadways.  You can help protect your family from drunk drivers by looking for these signs of intoxication among other motorists.” This full list is shared directly from the Mothers Against Drunk Driving (MADD) website:

  1. Quick acceleration or deceleration
  2. Tailgating
  3. Weaving or zig-zagging across the road
  4. Driving anywhere other than on a road designated for vehicles
  5. Almost striking an object, curb, or vehicle
  6. Stopping without cause or erratic braking
  7. Drifting in and out of traffic lanes
  8. Signaling that is inconsistent with driving actions
  9. Slow response to traffic signals (e.g. sudden stop or delayed start)
  10. Straddling the center lane marker
  11. Driving with headlights off at night
  12. Swerving
  13. Driving slower than 10 mph below the speed limit
  14. Turning abruptly or illegally
  15. Driving into opposing traffic on the wrong side of the road

To read more, please go to: http://www.madd.org/drunk-driving/how-you-can-help/how-to-spot-a-drunk-driver.html?referrer=https://www.google.com.ph/

Unfortunately, there can be occasion where no matter what you do you can not avoid getting into an accident with a drunk driver, or another automobile driver. If you or someone you know is injured or dies as a result of an auto accident caused by a drunk driver, or someone else’s negligence, contact us at Slinkman, Slinkman & Wynne, P.A. immediately. We offer a free initial consultation, and we will try to help you through this very difficult and emotional time. Our phone number is (561) 686-3400.

At Slinkman, Slinkman, & Wynne, we know that automobile accidents involving drunk drivers happen, particular over the holidays. We help our clients obtain payment to cover hospital and other medical expenses, pain and suffering, and more, if the situation warrants it.

If you want to learn more about how we can help you in a situation where you or someone you love has been in an auto accident, then go to this page on our website: http://www.sswlawfl.com/areas-of-practice/auto-accident/. We also specialize in Slip and Fall accidents, Wrongful Death & Serious Injury, Medical Malpractice, Boating Accidents, Motorcycle Accidents, Defective Products, and many other types of legal situations where injury or death has occurred. We have worked to protect families in Jupiter, Palm Beach Gardens, Stuart, West Palm Beach, and throughout south Florida for over 40 years, and we look forward to helping you!

Tips for safe boating during the summer season in Florida

Family in Life jackets on a boat on a lake

Memorial Day weekend has come and gone, and schools are on summer vacation. The summer boating season has begun. Now is a great time to remind all of you out there who plan on boating this summer here in Jupiter, Palm Beach Gardens and throughout south Florida of some important boating safety tips to help keep you, your family and friends healthy and happy out on the open water this year.

Here is a list of 8 boating safety tips that you, your family should follow each and every time you go out on a boat here in south Florida at this time of year:

  1. Do not drink if you are driving or planning to drive the boat. First of all, it is just as illegal to drink and drive a boat as it is an automobile or motorcycle. Furthermore, drinking dulls your senses, greatly increases your response time if something happens. And boats do not maneuver as fast as cars to begin with. Leave the drinking for later.
  2. Check the weather before you go – have an idea what is supposed to happen throughout the time you are out on the ocean. People who have lived here a while already know this, but the summer season on the east coast of Florida sees many afternoon rain storms that also go out over the Atlantic Ocean. If you are unaware or not paying attention, you can be caught in a dangerous rain squall in a relatively short amount of time.
  3. Make a “float plan” and share it with someone. Let at least one other person (several, optimally) know of your travel plans for that day. Include your name, address, phone number, make and model of the boat, departure and arrival time and any stops you are planning along the way.

** There are mobile phone apps available for just this purpose. Here is a list of a few of them from Discover Boating.com:

http://www.discoverboating.com/appsandtools.aspx?c=681

  1. Check the boat for sea-worthiness before putting it in the water. The middle of the ocean is no place to figure out that your boat has a problem that you could have detected before leaving.
  2. Make sure you have all the proper safety equipment onboard. In addition to having and wearing life jackets, make sure to carry at least the minimum required equipment by the U.S. Coast Guard. Here is a list, depending upon the length of your boat: http://www.boatus.org/guide/equipment_6.html
  3. Once onboard, wear a properly fitting life jacket; make sure to outfit any children with life jackets as well. The United States Coast Guard recently released estimates stating that over 80% of the people who died in boating accidents could have been saved if they had been wearing a life jacket.
  4. Ensure the safety of every child on board your boat:
    1. Make sure they have a life vest made for their size
    2. Teach them not to run around the boat; to stay seated while the boat is moving, and to keep their hands and feet inside the boat at all times
    3. If they are your children and you plan on having them out on the water with any consistency, have them enrolled in swimming and boater safety classes.
  5.  Watch for swimmers and other smaller water craft. You are in control of a vehicle that can turn into a deadly weapon very easily. You can neither slow down, reverse or maneuver anywhere near as quickly as you can when manning most other types of vehicles, particularly in the canals and Intracoastal Waterway areas. Therefore, you need to anticipate what moves anyone else within your vicinity might make at least 8 to 10 seconds in advance, if possible.

Our Board Certified lawyers from Slinkman, Slinkman, & Wynne, P.A. are the right lawyers to get you the best legal advice based upon your unique set of circumstances when you have been involved in a boating accident or any type of incident out on the water.  We have more than 40 years of experience specializing in protecting families here in Jupiter, Palm Beach Gardens, West Palm Beach, Stuart and throughout Florida. We make sure to ask the right questions of all companies and interested parties in your case. We represent clients anywhere in the state of Florida.

If you or someone you know is involved in a boating accident or any other marine legal issue, contact us at Slinkman, Slinkman & Wynne. We offer a free initial consultation, and we will try to help you through this very difficult and emotional time. Our phone number is (561) 686-3400. Or go to our website at http://www.sswlawfl.com.

Accidents can and do happen. We help our clients and their children obtain payment to cover hospital and other medical expenses, pain and suffering, and more, if the situation warrants it. We also specialize in Slip and Fall accidents, Automobile accidents, motorcycle accidents, Wrongful Death & Serious Injury, Medical Malpractice, Defective Products, and many other types of legal situations where injury or death has occurred.

The following additional articles were referenced in the compilation of this blog:

https://blog.boatsetter.com/boating-safety-tips/

http://www.coit.com/blog/boating-safety-tips

Car seat laws improved but need to go further in Florida to protect more of our children

Beautiful happy girl with teddy bear sleeping in the car

Schools across the state of Florida are letting out for summer break this coming week. That means that the summer driving season is upon us, where families will be driving around the state of Florida and to much more far-flung places around the country to visit relatives, friends and the multitude of tourist attractions that this great country of ours has to offer. Now is the perfect time to remind all of you who will be traveling this summer Florida’s most up-to-date car seat and restraint laws for children.

 

The most recent changes went into effect about a year and a half ago, on January 1st, 2015. Here is a quick refresher of the series of requirements, as stated in the 2015 Florida Statutes:

  • Children through the age of 3 must be secured in a federally-approved car restraint seat.
  • Children through the ages of 4 and 5 must be secured in a car seat or booster seat. Which one depends upon their size.

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0300-0399/0316/Sections/0316.613.html

 

These additions to the state law increased requirements up through the age of 5. Before the beginning of last year, car seat requirements for children in the state of Florida only covered up through the age of 3. Although this is certainly an improvement, a number of child safety advocates continue to lobby for Florida state politicians to bring our laws in line with other states or to the standards recommended by the American Academy of Pediatrics’ that children by restrained in a booster seat until they are at least 4 feet, 9 inches (57 inches) tall.

 

St. Joseph’s Children’s Hospital child advocacy supervisor Bevin Maynard was quoted as saying by the Tampa Bay Times that the magic number “is not weight or age. It is height.”

 

She has had quite a bit of experience working with children and their families when a child has been seriously injured in an automobile accident. She knows that statistics from the National Highway Traffic Safety Administration state that the leading cause of death for children between the ages of 5 and 14 in the United States is improper restraint when in a traffic accident.

 

Some information for this blog post including the quote from Bevin Maynard was shared from the following article:  http://www.tbo.com/news/politics/new-florida-car-seat-law-takes-effect-jan-1-20141221/

 

If your child or the child of someone you know is injured in an auto accident you probably need a lot of comfort, in addition to expert legal advice on what to do. Call us at Slinkman, Slinkman & Wynne, P.A. We offer a free initial consultation, and we will try to help you through this very difficult and emotional time. Our phone number is (561) 686-3400.

At Slinkman, Slinkman, & Wynne, we know that car accidents unfortunately happen all the time. We help our clients and their children obtain payment to cover hospital and other medical expenses, pain and suffering, and more, if the situation warrants it.

If you want to learn more about how we can help you in a situation where someone you love has been in an auto accident, then go to this page on our website: http://www.sswlawfl.com/areas-of-practice/auto-accident/. We also specialize in Slip and Fall accidents, Wrongful Death & Serious Injury, Medical Malpractice, Defective Products, Premises Liability, Boating Accidents, Motorcycle Accidents and many other types of legal situations where injury or death has occurred.

Our main office is in Jupiter, Florida at 1015 W. Indiantown Road, Suite 101A. We have litigated cases in Palm Beach County and throughout the state of Florida.

 

Teens still need to be pushed to wear their seat belts in cars in Jupiter, Palm Beach Gardens and everywhere else in America

Safety: Female Driver Fastening Seat Belt

Even with the additional emphasis by practically everyone – the media, automobile companies, the government (through their “Click It or Ticket” campaign) and even society in general – the percentage of teenagers who drive without wearing their seatbelts has remained largely unchanged over the last decade and a half. That according to statistics published by the CDC (Centers for Disease Control and Prevention).

Approximately 20% do not wear their seat belt now, or 15 years ago; the percentage of male teen drivers not wearing seat belts is still about 10% higher than female teen drivers; and the percentage of teens who died in motor vehicle accidents who were not wearing their seat belt still hovers around 50%. To read more on these sobering and sad statistics, please go to the following articles:

http://www.cdc.gov/motorvehiclesafety/teen_drivers/teendrivers_factsheet.html

and

http://www.gallup.com/poll/6145/teens-buckling-up.aspx

Advocates of increasing teenage driver safety point to driving programs that “Driving programs that combine education, peer-to-peer strategies, publicized enforcement, and parental monitoring may show potential for increasing teen seat belt use.” – See more at:

http://www.teendriversource.org/stats/support_teens/detail/59#sthash.0KQmDMyw.dpuf

At Slinkman, Slinkman & Wynne, P.A. we agree that driving programs that emphasize better education combined with stricter laws for those who refuse to wear seat belts could work to lower the numbers of teenager injuries and deaths in auto accidents. Ultimately, though, the greatest effect can most likely come from responsible parents, and peers who help to make wearing seat belts fashionable, and a must for all teenagers. WE applaud websites like the CDC and Teen Driver Source that are pushing every day to educate teenagers and their parents on the dangers of not wearing seat belts.

If you are injured in an auto accident because you or someone you love was not wearing a seat belt, you may have a right to bring a claim for various damages and injuries incurred. Call us at Slinkman, Slinkman & Wynne. We offer a free initial consultation, and our phone number is (561) 686-3400.

At Slinkman, Slinkman, & Wynne, we know that automobile accidents involving people not wearing their seat belts happen all of the time. If you are in an accident where someone got hurt because they were not wearing their seat belt, then you need to contact us right away. We help our clients obtain payment to cover hospital and other medical expenses, pain and suffering, and more, if the situation warrants it.

If you want to learn more about how we can help you in a situation where someone you love has been in an auto accident, then go to this page on our website: http://www.sswlawfl.com/areas-of-practice/auto-accident/. We also specialize in Slip and Fall accidents, Wrongful Death & Serious Injury, Medical Malpractice, Defective Products,  Motorcycle accidents, Boating accidents and many other types of legal situations where injury or death has occurred.

Our main offices are located in Jupiter, Florida at 1015 West Indiantown Road, Suite 101A. We service Jupiter, Palm Beach Gardens, West Palm Beach and anyone who needs help with their potential personal injury case anywhere throughout the state of Florida.

  • 1015 W. Indiantown Road, Suite 101A
  • 1015 W. Indiantown Road, Suite 101A