Kelsky Law

Going Green

admin — Wed, 10 Feb 2010 20:43:01 +0000

Our firm prides itself in being “green” and we strive to be as paperless a law firm as possible. In addition to scanning all of the documents that we generate, we also receive all of our faxes as email attachments thereby eliminating the need to print. When producing larger documents to other attorneys, we put those files on CD in a pdf format. In the past three years, our firm has saved tens of thousands of pieces of paper from being printed and, consequently, we’ve significantly reduced the need for storage. The legal profession is heading in the “paperless” direction and we believe that our firm has taken a strong step forward in protecting the environment and readying itself for the future of litigation.

Personal Injury Log

admin — Thu, 14 Jan 2010 14:44:38 +0000

Bodily injury may not become apparent for days or weeks after an accident. For this reason, even if it is uncertain whether a personal injury claim may ultimately exist, we suggest that accident victims keep a diary or log of their pain and/or other symptoms in the days and weeks following the incident. In litigation, it is not uncommon for a defendant to make the claim that “the victim must not have been injured because he/she did not immediately seek treatment for their pain.” Having a diary/log helps to document the progression of the pain/injury is a useful tool that will assist in overcoming this defense.

Major Victory in Mold-Related Personal Injury Claims

admin — Thu, 08 Oct 2009 14:49:34 +0000

Attorney Brad Kelsky was able to overcome a legal challenge to the admissibility of Dr. Ritchie Shoemaker’s opinion on mold-related personal injury claims thereby allowing the doctor to testify at trial. As seen elsewhere in this blog, mold-related personal injury claims are very difficult to prove. In any case where these types of personal injury claims are claimed, the defense usually challenges the propriety of the plaintiff’s expert’s medical opinion. In Florida, this is called a Frye challenge. Under Frye, the plaintiff must prove that the expert’s methodology is generally accepted by the scientific community. In a recent case in Collier County, Florida, two of the defendants challenged Dr. Shoemaker’s opinions and each brought their own expert witness to testify at the Frye hearing. Brad E. Kelsky Esq., counsel for the plaintiffs, was able to establish that Ritchie Shoemaker, M.D.’s methodology in reaching his opinion was generally accepted by the scientific community. For this reason, the court ruled against both defendants and ruled that Dr. Shoemaker will be able to offer his medical opinions about the plaintiffs’ personal injuries and how those injuries were related to exposure to a water damaged building. This is a very significant victory for the case in Collier County and for those cases in other states where Dr. Shoemaker’s methodology has been challenged.

Chinese Drywall & Mold

admin — Thu, 21 May 2009 16:01:35 +0000

The news media has generated tremendous fear associated with health problems caused by Chinese Drywall. However, this widespread fear may be entirely misplaced. Headaches, cough, sinus problems and breathing problems are also associated with the presence of mold. Given the fact that Chinese Drywall was installed in a vast minority of homes, it is far more likely that problems associated with the symptoms identified above are caused by mold as a result of water intrusion. For example, roof leaks, window leaks and door leaks will allow water to enter into a home possibly leading to the development of mold. Likewise, if there is a fault – even a small fault—in an air conditioning system, the collision of warm air and cold air will result in condensation which, very likely, will result in mold growth. It should also be noted that it is not uncommon for air conditioning coils to turn black due to the presence of mold (this issue is also known to occur in Chinese Drywall cases).

The point is this: if anyone has the symptoms mentioned above, the public should also be aware that there may be a culprit other than Chinese Drywall. If there is a concern over the presence of Chinese Drywall, we would recommend that a home be tested for the presence of mold as well. We also suggest that homeowners discuss problems with other homeowners in their community to find out if there are common complaints and issues. We would not be surprised to find out that other individuals have issues with, for example, their air conditioning systems or windows. If there are common complaints like these, homeowners should not limit their investigation solely to the existence of Chinese Drywall. Instead, we believe it is imperative that the home be tested for mold as well.

We are not downplaying the presence of Chinese Drywall and we continue to be interested in pursuing these claims. However, we feel it important for the public to understand that health problems may be caused by something other than Chinese Drywall, e.g., mold, and that determining the source of the problem in a home should not be limited to one cause only.

This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

Delayed Pain After a Car Accident

admin — Tue, 19 May 2009 19:47:57 +0000

At an accident scene, many people believe that low impact automobile collisions do not require medical treatment. However, it is very common for people to experience increasing pain in the days after a collision. Keeping this in mind, even in a small collision, we would suggest going to a physician as soon as possible if for no reason other than to make sure that nothing serious occurred in the accident. In the event that there is an injury related to the collision, this early medical treatment will generate a well-documented history of the symptoms after the accident. Of course, each individual should freely discuss their injures and the medical care they received with their physicians.

This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

Chinese Drywall

admin — Mon, 06 Apr 2009 18:33:00 +0000

Our office continues to get many inquiries concerning Chinese drywall. As most homes have drywall throughout the premises, the potential construction defect claims for the use of this material can be staggering. In order to determine whether a home has been constructed with the Chinese drywall, the homeowner needs to find out the identity of the manufacturer. If it all possible, it makes sense to remove some drywall from an un-noticeable area to determine the ‘s identity (unless, of course, the homeowner already knows who the manufacturer is). (It is important to replace and seal the drywall that was removed once the manufacturer can be identified.) Drywall from The Knauf Group, Banner Supply and Rothchilt International, Ltd., have been linked to the sulfuric-smelling problem drywalls in homes. If the removed drywall references any of these manufacturers, the homeowner may face the prospect of needing to replace a substantial amount of drywall (perhaps all of the drywall in a home). As explained elsewhere in this blog, a homeowner would need to go through the Chapter 558 process before seeking legal redress from the general contractor or subcontractor. Either way, if a homeowner believes that they may be exposed to the Chinese drywall, it is better to be proactive then to take a “wait and see” approach.

This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

Mold Remediation Contractors

admin — Thu, 26 Mar 2009 16:42:58 +0000

Individuals in search of mold remediation contractors should note that, presently, there are no Florida statutes regulating this profession. For that reason, it is very important to gather as much information as possible about the qualifications of a mold remediation contractor. At a minimum, we suggest that individuals request a copy of the proposed contractor’s insurance policy and a statement (preferably in writing) about the warranty or guarantee that the contractor will provide for the remediation work to be performed. Additionally, we suggest that an individual specifically inquire of the mold remediation company whether the contractor has determined that the source of the water intrusion has been found and fixed. The failure to remedy the source of the water intrusion prior to conducting the remediation could very well result in the mold returning thereby causing the individual to spend, perhaps, thousands of dollars for a failed remediation. Thus, if a remediation company cannot provide an individual with this specific information, we suggest consulting with a mold professional who can confirm the absence of the water intrusion source before doing any remediation.

This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

Claims Regarding Defective Chinese Drywall

admin — Fri, 13 Feb 2009 21:42:24 +0000

Recently, there has been a tremendous amount of news concerning the use of drywall originating in China. Specifically, drywall manufactured by The Knauf Group, Banner Supply and Rothchilt International, Ltd., have all been accused of selling/distributing drywall containing “fly ash” which can emit a sulfuric-type smell. Under Florida law, claims for defective construction materials such as the “fly ash” drywall may be required to go through the Chapter 558 presuit construction defect statutes prior to filing suit against the manufacturer, seller and/or builder/subcontractor. Because drywall is often used throughout a home, the extent of the “fly ash” contamination may be significant. Claims for defective materials like the fly ash” drywall must be analyzed on a case-by-case basis to determine whether the presuit construction defect statutes apply as there may be some exceptions (notably personal injury) to the process.

This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

Mold Exposure & Related Claims

admin — Fri, 30 Jan 2009 16:56:52 +0000

Mold-related health claims can be very difficult from a litigation standpoint. Our firm receives many inquiries from people seeking personal injury damages because of mold exposure. As is often the case, however, people have not tested their condominium units/homes/apartments for the presence of mold. Mold testing will provide a person with a detailed analysis showing exactly the types of mold that a person has been exposed to. The advantage of this information is that a doctor can than specifically test, for example, the allergic reaction caused by the particular mold exposure. Without specific testing, though, proving a personal injury case will be extremely difficult. Irrespective of any type of mold-related legal action, it is important to at least know what someone has been exposed to in order to seek the appropriate medical care.

This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

Mold in a Condominium Unit

admin — Mon, 15 Dec 2008 18:57:47 +0000

Condominium unit owners who rent their units need to take tenant complaints about the existence of mold very seriously. While the landlord must maintain the unit, the condominium association has a statutory obligation to maintain the common elements. In the event that the mold is caused by water intrusion stemming from a common element, the unit owner cannot just wait for the Association to take care of the problem. Instead, the landlord must demand the Association to fix the common elements as quickly as practicable and should stay on top of the Association until the common elements are fixed. Because Associations often take time to address situations like this, the landlord should make every effort to accommodate their tenant. This may mean that the landlord should agree to end the lease and pay for the tenant’s moving costs. While this may be an extreme situation, the landlord must understand that the existence of mold in the unit can expose the landlord to liability. If the Association drags its feet to correct the common element problem, the unit owner would have a potential claim against the Association for lost rent. Of course, each situation is different and needs to be addressed on its own merits.

This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.