THE WEEK IN TORTS

FLORIDA LAW WEEKLY
VOLUME 39, NUMBER 31
CASES FROM THE WEEK OF AUGUST 1, 2014

A FORUM SELECTION CLAUSE DESIGNATING FLORIDA AS THE FORUM, CANNOT OPERATE AS THE SOLE BASIS FOR FLORIDA TO EXERCISE PERSONAL JURISDICTION OVER AN OBJECTING, NON-RESIDENT DEFENDANT.

Hamilton v. Hamilton, 39 Fla. L. Weekly D1529 (Fla. 4th DCA July 23, 2014):

Although the parties’ agreement contained a choice of law provision designating Florida law as governing, and also included a provision whereby the non-resident agreed to submit to jurisdiction of the Florida courts, the lack of requisite minimum contacts with the state still required dismissal.

AMENDED COMPLAINT WHICH ALLEGED THE SAME OR SIMILAR CAUSES OF ACTION AGAINST THE IDENTICAL PARTIES BUT CLARIFIED THE PLAINTIFF’S STATUS AND CHARACTERIZED THE CLAIMS IN DERIVATIVE TERMS STILL RELATED BACK TO THE TIMELY FILED INITIAL COMPLAINT.

Mender v. Kauderer, 39 Fla. L. Weekly D1537 (Fla. 3RD DCA July 23, 2014):

As long as a amended pleading is based upon the same specific conduct, transaction or occurrence between the parties upon which the plaintiff tried to enforce its original claim, the amendment will relate back. This is the case even though there is a change in the precise legal description of the rights sought to be enforced or a change in the legal theory upon which the action is brought.

TRIAL COURT ERRED IN DENYING A MOTION TO DISMISS A JUROR AND/OR A MOTION FOR MISTRIAL MADE AFTER THE JUROR REVEALED DURING TRIAL HIS KNOWLEDGE OF AND RELATIONSHIP WITH A WITNESS TESTIFYING FOR THE STATE.

Villalobos v. State, 39 Fla. L. Weekly D1544 (Fla. 3rd DCA July 23, 2014):

The parties went through the list of witnesses and asked if anyone had a prior social or business relationship with any of them. On the third day of trial, one of the jurors revealed to the court and counsel that he knew one of the witnesses (used to live in the same building as witness’s boyfriend and had had dinner with her a couple of times). The juror said he did not believe his relationship with the witness would affect his ability to render a fair and impartial decision, but the trial court dismissed this juror.

Later that day, another juror asked to speak with the Court. He too revealed that he had worked for that same witness as a handyman on a few occasions, and would run into her at the grocery store. He also said he knew she had been undergoing cancer treatment. This juror also answered that he could be fair and impartial and that the witness was just another person testifying to him.

The defense moved to excuse this juror based on the fact that he had actually worked for the witness and also knew that she was undergoing cancer treatment. The State distinguished this relationship, saying it wasn’t actually a “relationship” and just some random repair work, etc.

The trial court erroneously focused its inquiry on whether there were any reasonable doubt that the juror could be fair and impartial. The court pointed out that is the standard for determining whether a juror should be stricken for cause.

The trial court instead should have applied the standard for juror non-disclosure as established in De La Rosa. Those prongs make the party establish that the information is relevant material to the jury service, that the juror concealed information during questioning and that the failure to disclose the information was not attributable to the complaining party’s lack of diligence.

The court agreed that the information was material and that the non-disclosure prevented defense counsel from making an informed judgment which have, in all likelihood, resulted in a preemptory challenge had he known about the relationship and interactions between the juror and the witness. The witness was also a significant one for the State. The trial court erred in denying the motion to dismiss the juror and in denying the subsequent motion for mistrial.

NICA – FORMATION OF THE PROVIDER – OBSTETRICIAN PATIENT RELATIONSHIP IS WHAT TRIGGERS THE OBLIGATION TO FURNISH NOTICE

N.R. v. Florida Birth-Related Neurological Injury Compensation Association, 39 Fla. L. Weekly D1557 (Fla. 5th DCA July 25, 2014):

Because the ALJ failed to make a finding as to when the relationship between the patient and the obstetrician commenced, the court had to reverse and remand for a determination of that fact, in order to determine if NICA applied.

IN A MEDICAID REDUCTION CASE THE PLAINTIFF IS GIVEN AN OPPORTUNITY TO SEEK REDUCTION OF THE AMOUNT OF THE MEDICAID LIEN ESTABLISHED BY THE STATUTORY FORMULA OUTLINED IN SECTION 409.910(11)(f), BY DEMONSTRATING WITH EVIDENCE THAT THE LIEN AMOUNT EXCEEDS THE AMOUNT RECOVERED FOR MEDICAL EXPENSES.

Harrell v. State, 39 Fla. L. Weekly D1572 (Fla. 1st DCA July 28, 2014):

The decision in Wos v. E.M.A., 133 S. Ct. 1391 (2013) held that a separate portion of the amount of the state’s reclamation from a beneficiary’s tort recovery was preempted by the Medicaid Act to the extent they require payment beyond that shown to be for all medical expenses.

Ahlborn and Wos make clear that Section 409.910(11)(f) is preempted by the Federal Medicaid statute’s anti-lien provision to the extent that it creates an irrebuttable presumption and permits recovery beyond that portion of the Medicaid recipient’s third-party recovery representing compensation for past medical expenses.

Thus, a plaintiff must be given the opportunity to seek reduction of the amount of a Medicaid lien established by the statutory formula, by demonstrating with evidence, that the lien amount exceeds the amount recovered for medical expenses. When such evidence is introduced, a trial court must consider it in making a determination on whether AHCA’s lien amount should be adjusted to be consistent with Federal law.