Select Page

For more than twenty years I have filed civil cases in Florida on behalf of families who have lost mothers, fathers, husbands, wives, and sadly even children–all because of the carelessness or recklessness of a negligent person or company. After such lawsuits have been filed and while they are pending in court, if the injured clients die, their cases convert from personal injury cases to wrongful death cases.

For example, I recently represented the family of a beautiful woman whose breast cancer was not diagnosed by either her primary care doctor or the radiologist who misread her mammograms. When she first came to see me, it was hard to believe she was even sick, as she was so beautiful and healthy looking. She reminded me very much of a younger Demi Moore. Perhaps–and it is not an excuse for their carelessness–her beauty and healthy appearance also confused her doctors.

Over the course of the next two years, her trial was continually delayed by clever defense lawyers and a heartless judge. Meanwhile, she deteriorated into an unrecognizable living corpse, unable even to lift her head from her pillow. She was too sick to come to the courthouse for her trial and died during the third day of the jury trial.

The trial judge declared a mistrial and ordered that I amend the complaint from a medical malpractice case to a wrongful death case.

I had thought the legal procedure for amending a complaint from a negligence case to a wrongful death case when a plaintiff dies during pending litigation was clear in Florida. But this week Florida’s Supreme Court issued two separate opinions on this issue in two cases involving plaintiffs who died in the course of suing for their injuries in personal injury cases.

The Procedural History of the Florida’s Wrongful Death Laws

Until the statutory creation of the Wrongful Death Act in 1972, Florida law did not recognize a cause of action for wrongful death; when a person died from the injuries caused by the acts of another, so did that person’s legal rights to sue for personal injuries. This created a situation where defendants would be liable for the injuries caused to others, so long as the injuries were not so severe as to kill the victims.

This paradox led to the creation of a separate cause of action where a decedent’s widow could sue for loss of support, comfort, companionship, protection, marital rights, and the children could sue for support, care, companionship, and both could sue for their respective pain and suffering.

The legislation leading to the creation of Florida’s Wrongful Death Act merged the two causes of action into one lawsuit–transferring the items of damage for loss of earnings, medical expenses, and funeral expenses into the same claim for pain and suffering for the survivors. The express purpose of the act was to prevent anyone from escaping accountability for misconduct when such misconduct results in death.

What makes the application of the Wrongful Death Act complicated is that in some cases the plaintiff may have suffered from pain and injuries that did not result in his or her death, and a second count for wrongful death damages when the injury to the plaintiff ultimately resulted in death. Such was the case for my client, who suffered indescribable pain for nearly two years before ultimately dying from cancer.

And pursuant to Florida Statute §768.20, when a plaintiff dies in the middle of a case, the court should “abate” or pause the proceedings long enough for an Estate to be created and the pleadings to be amended to include the new allegations that the injuries now include death. Simple enough–but two trial courts and two appellate courts got this wrong, nearly 30 years after the creation of the Wrongful Death Act. Those errors required Florida’s Supreme Court to issue two separate opinions last week. In the cases of Karen Capone v. Philip Morris USA, Inc., and Joan Ruble v. Rinker Materials Corp., the plaintiffs both died while their cases were pending, and both courts erroneously dismissed the suits, misapplying the rules and requiring the survivors to file unnecessary independent lawsuits for wrongful death actions. Note the defendants in both cases: Philip Morris, the world’s leading cigarette manufacturer, who boasts the highest revenues, income, volume, and market share; and Rinker (a multinational building materials company headquartered in Palm Beach).

Fortunately for the families and survivors of the claimants in these cases, the Supreme Court stepped in and granted them each their much-deserved day in court. I am painfully aware of how ready many of Florida’s trial judges and appellate courts seem to be to slam the courthouse doors in the faces of those who need help the most.

With virtually no help from our governor, legislature, or appellate courts, Florida’s juries remain the only hope we have for holding corporations like drug manufacturers, insurance companies, and hospitals accountable for putting their profits ahead of the wellbeing of people. Our Miami personal injury lawyers are committed to helping the families of those who have been killed by the carelessness of others. If you have a question regarding your potential claim, Email me, Spencer Aronfeld, or call our Florida wrongful death attorneys for a free legal consultation at 305-441-0440 or 1-866-597-4529.