FLORIDA LAW WEEKLY
VOLUME 39, NUMBER 3
CASES FROM THE WEEK OF JAN. 17, 2014
PROHIBITION IS THE WRONG REMEDY TO REVOKE AN ORDER ALREADY ENTERED–PROVIDER OF MEDICAL SERVICES IS NOT ENTITLED TO WRIT OF CERTIORARI TO QUASH CIRCUIT COURT DISCOVERY ORDER WHERE A PETITION FOR A CERTIORARI RELIEF ASSERTS NEITHER A MATERIAL INJURY NOR IRREPARABLE HARMMillennium Diagnostic v. State Farm, 39 Fla. L. Weekly D91 (Fla. 3rd DCA January 8, 2014):

The circuit court issued a discovery order, compelling production of MRI equipment used and proof of accreditation. The provider petitioned the court for a writ of prohibition, or in the alternative a writ of certiorari.

The appellate court reminded us that prohibition may not be used to revoke an order already entered. Certiorari was also improper in this instance, because the provider did not allege or prove the elements necessary to obtain such a writ (material injury and irreparable harm).

TRIAL COURT ERRED IN PERMITTING DEFENSE TO INTRODUCE EVIDENCE AND ARGUE TO THE JURY THAT ONE OF THE TRIAL WITNESSES HAD BEEN SUED AND WAS ORIGINALLY NAMED AS A DEFENDANT IN THE CASE - SUCH EVIDENCE LED THE JURY TO CONCLUDE THAT THE WITNESS AND PLAINTIFF HAD REACHED A SETTLEMENT BEFORE THE TRIAL - NEW TRIAL REQUIRED

Bern v. Camejo, 39 Fla. L. Weekly D94 (Fla. 3rd DCA January 8, 2014):

The case involved a three-car collision. The plaintiff sued the drivers of the other two vehicles. Prior to trial, the plaintiff settled her claims against them and proceeded to trial against the owners only.

Before trial, the plaintiff moved in limine to exclude any evidence that one of the drivers, who had previously been sued by the plaintiff, and was were named as a defendant in the action. The defendants argued they should be allowed to present evidence that this person was a prior defendant because her status as a defendant at the time she gave her deposition was relevant in weighing the credibility of her testimony.

The trial court granted the motion in part and denied it in part.

During defendant's opening, he stated that plaintiff had sued the settling defendant driver. Plaintiff moved for a mistrial. Defense counsel repeatedly mentioned that the driver had been sued.

The court reversed for a new trial. §768.041(3) provides that the fact of a release or a covenant not to sue should not be made known to the jury. Further, Florida's public policy favoring settlement is promoted only when such prejudicial evidence is excluded at trial. Despite defendant's argument regarding bias of the defendant driver, the fact that she was sued or had been a defendant was inadmissible under the law.

COURT REVERSES $2.5 MILLION DOLLAR MED MAL VERDICT - TRIAL JUDGE ERRED IN REFUSING TO ALLOW DEFENSE TO ARGUE THAT THIRD TRIMESTER ABORTIONS ARE GENERALLY ILLEGAL IN FLORIDA, WHERE PLAINTIFFS ALLEGED THAT DEFENDANTS' FAILURE TO ADVISE THEM TIMELY THAT FETUS HAD SIGNIFICANT BIRTH DEFECTS PREVENTED THEM FROM MAKING AN INFORMED CHOICE AS TO WHETHER TO TERMINATE PREGNANCY

OB/GYN Specialists of the Palm Beaches v. Mejia, 39 Fla. L. Weekly D110 (Fla. 4th DCA January 8, 2014):

Plaintiffs are the parents of a child born with significant birth defects. During her pregnancy, the mother suffered from episodes of bleeding and was referred to the hospital for ultrasounds. At the first ultrasound on June 4, 2008, the position of the fetus allowed only for limited views of all four extremities, thus making the fetus' anatomy appear normal. The report noted other abnormalities, prompting a referral of the mother for genetic counseling, and for an additional more-detailed Level II ultrasound.

The mother declined an amniocentesis, but on June 30th did have a Level II ultrasound. Again, the views were limited, and the feet supposedly looked normal. The report noted that there were four limbs.

When the mother gave birth on October 15th, she learned for the first time that the baby had no hands, only one leg, and a fraction of a foot attached to the hip on the other leg. Plaintiffs subsequently filed suit, stating the doctors fell below the standard of care by failing to advise the plaintiffs in a timely manner that the fetus had limb defects, preventing them from making an informed decision as to whether to terminate the pregnancy.

The defendants moved before trial to prevent the plaintiffs from presenting any evidence that the Level II ultrasound caused any damages citing §390.0111, Florida Statutes, which provides that termination in the third trimester is not allowed except under certain circumstances. The Level II ultrasound was performed one day into the mother's third trimester. Therefore, the defendants argued that even if it had been reported accurately, the mother could not have obtained a lawful abortion.

The trial court denied defendants' motion concluding that the mother was not within the third trimester based on date of conception, and that admitting the evidence of the statute would create a trial within a trial. Also, the case did not involve a claim that the defendants should have performed a recommended termination of the pregnancy.

At trial, plaintiff's expert testified the ultrasound performed on June 4th fell below the standard of care and was reported inaccurately. He testified the June 30th Level II ultrasound was also incorrectly reported. The defendants moved for a directed verdict based on their argument that the plaintiff could not have had a legal abortion, so it was not a legal cause of damage for the defendants to have misread the Level II ultrasound. The trial court denied the motion reasoning that the mother could have obtained a legal abortion in another state.

After a tortured analysis, the court concluded that the "third trimester" is a term with a particular medical meaning, designed to give effect to its application. Therefore, under Roe v. Wade, the court had to determine the gestational age of the fetus, using that case's viability analysis.

The court rejected the plaintiff's argument that the court should calculate "weeks of pregnancy" as the definition of the third trimester (as used in the definition section of §390.011(8)). The court found that the Level II ultrasound was performed 24 weeks and one day–just past the statutory deadline–for when a lawful abortion could have been performed in Florida.

The court then said even if it were to agree that the statute should be interpreted to measure pregnancy from the alleged time of conception, which would have given the mother another two weeks after the June 30th ultrasound to obtain a lawful abortion, the existence of the statute would still be relevant as to whether the mother could have legally obtained an abortion in Florida before the statutory deadline. Still, there was no expert testimony regarding the proximity of the disclosure to the end of the plaintiff's second trimester, namely about whether the medical provider could have earlier disclosed the information concerning the increased possibility of birth defects, the practicality of scheduling an abortion within the second trimester, and the availability of third trimester abortions in other states and whether the plaintiffs would have met the criteria.

There was also a question, according to the court, about the credibility of the mother's claim that she would have sought to terminate her pregnancy, the relative ease or difficulty in locating a provider willing to perform it, and the mother's ability to travel within the window of opportunity to have the procedure performed.

The court said its holding was consistent with the well-settled principle that parties are entitled to have the trial court instruct the jury on their theory of the case when the evidence, even though controversial, supports that theory.

While the evidence of the availability of abortions in other states and the possibility that the mother might have been able to obtain a third-trimester abortion in Florida or elsewhere may also be relevant to a jury on the issue of causation, those considerations did not constitute valid reasons for excluding evidence that third-trimester abortions are generally illegal in Florida.

In light of the trial court's failure to permit the jury to consider the relevance of §390.0111 to the plaintiff's specific situation which led to the exclusion of other relevant evidence on that factual issue, the court ruled a new trial on the issues of liability and causation were required. Judge Taylor dissented.

PORTION OF ORDER GRANTING MOTION FOR SUMMARY JUDGMENT WAS NOT FINAL OR APPEALABLE–PORTION OF ORDER TRANSFERRING CASE TO COUNTY COURT WAS NOT APPEALABLE WHERE UNDERLYING DAMAGE AMOUNT WAS NOT YET ADJUDICATED AND REDUCED TO FINAL JUDGMENT

First Priority Restoration v. Salame, 39 Fla. L. Weekly D126 (Fla. 3rd DCA January 8, 2014).

STATUTE OF LIMITATIONS IN LEGAL MALPRACTICE CASE BEGAN TO RUN WHEN TRIAL COURT'S ORDER DISMISSING UNDERLYING LITIGATION BECAME FINAL–NOT ON THE DATE THE SETTLEMENT AGREEMENT WAS EXECUTED–ERROR TO GRANT DEFENDANT'S MOTION TO DISMISS

Arrowood Indemnity Co. v. Conroy, Simberg, 39 Fla. L. Weekly D128 (Fla. 4th DCA January 8, 2014):

A contractor sued several parties involving a project alleging construction defects. Several insurers, including the appellant, Arrowood, became involved in the litigation.

Arrowood was represented by Conroy, Simberg for two years when it terminated it and retained new counsel. The plaintiff and the defendant's insurers reached a settlement in December of 2008. Between December 15th and December 18, 2008, the plaintiff, the insurers, and the other parties, executed documents which memorialized the settlement. A stipulation for dismissal with prejudice was filed with the court, and the trial court entered dismissal on January 12, 2009.

On December 22, 2010 (two years to the day from the time the money was wired), the insurance company filed a legal malpractice case in federal court against Conroy, Simberg. Two months later, it filed a legal malpractice case in state court. The insurer asserted that if Conroy, Simberg had not been negligent in its representation, it would have been able to settle the litigation for at least a million dollars less than it did, and would have saved over a million dollars in legal fees. Conroy, Simberg moved to dismiss on the grounds that the statute of limitations had run.

In Florida, according to the Florida Supreme Court in Silvestrone v. Edell, the two year statute of limitations for legal malpractice begins to run when the final judgment becomes final. In this case, the order dismissing the underlying litigation became final 30 days after the entry of the dismissal was not appealed (30 days from January 12th). Thus, the case filed in February of 2012 was timely, and therefore the dismissal was improper.

ERROR TO PREVENT DEFENDANT FROM PRESENTING EVIDENCE OR TESTIFYING AT TRIAL AS SANCTION FOR FAILING TO COMPLY WITH DISCOVERY DEADLINES, GIVEN LACK OF EVIDENCE OF WILLFULNESS AND DEFENDANT'S ASSERTIONS THAT SANCTIONED BEHAVIOR WAS FAULT OF PRIOR COUNSEL

Scott v. Reflections of Sebastian, 39 Fla. L. Weekly D130 (Fla. 4th DCA January 8, 2014):

The trial court's original sanctions order did not find that the plaintiff's failure to meet the discovery deadlines was willful or contumacious, and although the court ultimately made a finding of such willfulness in its final judgment, it was not supported by any evidence of the record. Such sanctions were too harsh under the circumstances, and thus the trial judge's ruling was reversed.

ERROR TO ENTER SUMMARY JUDGMENT IN FAVOR OF DEFENDANT ON GROUND JURY COULD NOT REACH A VERDICT FOR THE PLAINTIFF WITHOUT IMPERMISSIBLY STACKING INFERENCES–THERE WAS NO STACKING OF INFERENCES IN THE CASE

O'Malley v. Ranger Construction, 39 Fla. L. Weekly D130 (Fla. 4th DCA January 8, 2014):

Plaintiff sued Ranger Construction for negligence and failure to warn after plaintiff was involved in a single car accident in an area of I-95 that Ranger was contracted to resurface. The trial court granted the motion for summary judgment, agreeing that plaintiff's theory of liability required the impermissible stacking of inferences.

The evidence showed that the accident occurred at dusk on a three-lane portion of I-95. At the time of the accident, it was raining and had been raining most of the day. Plaintiff could not remember any details of the accident. The only witness to the accident was another driver, who testified in deposition that he was driving in the far right lane and saw plaintiff traveling in the far left passing lane and at a rate of speed the witness thought was unsafe for the weather conditions. Seconds later, the witness saw the plaintiff's vehicle flying sideways through the air, testifying that there was a thin sheet of water on the road, but no visible standing water. He did not remember whether there were any puddles in the road. Plaintiff's vehicle came to rest on the grass next to the far right lane.

Within minutes of the accident, a trooper arrived. Plaintiff was taken to the hospital, and the trooper was not able to speak with him. The trooper testified that there was standing water in the middle of the far left lane and believed plaintiff was driving in excess of the speed limit.

Up until the point of the accident, Ranger had not performed any work in the middle and far left lanes but had resurfaced the far right lane. Ranger's expert opined that Ranger did not do anything that changed the flow of water from the outside far right shoulder to the inside far left shoulder. The expert could not say with certainty what caused the plaintiff to lose control of his vehicle.

Plaintiff's expert opined Ranger failed to immediately remove the standing water as required by the contract, failed to provide adequate drainage and was responsible for creating a dangerous condition.

The court found that the jury could not reach a verdict for the plaintiff without impermissibly stacking the following inferences: (1) that there was a puddle or area of standing water in the far left lane at the time of the accident; (2) that plaintiff's vehicle came into contact with it; and (3) that this contact caused the accident. The court found no direct evidence supported any of the inferences, and that each inference did not exclude any other reasonable inferences. The court found both theories of causation reasonable.

In civil cases, a fact may be established by circumstantial evidence as conclusively as by direct evidence, unless a party depends upon the inferences drawn from circumstantial evidence as proof of one fact. Also, it cannot construct a further inference upon the initial inference in order to establish a further fact unless it can be found that the original basic inference was established to the exclusion of all other reasonable inferences.

There is an important exception to this rule. When a predicate inference is the only reasonable inference that can be made from the evidence, it is no longer an inference but deemed an established fact. An inference may be admissible into evidence even though it is based upon another inference, if the other inference has been shown to exist beyond a reasonable doubt.

This case did not involve the stacking of inferences. Ranger took what was essentially one inference–the standing water caused the accident–and attempted to stretch it into multiple inferences. Where there is only one inference relating to causation, the non-movant for summary judgment does not have to establish that the sole inference is the only reasonable inference.

Additionally, summary judgment should not be granted based on a non-movant's failure to meet its trial burden of proof on the issue of causation (it is an erroneous shift of the burden of proof).

ORDERS PERMITTING DISCOVERY OF BILLING RECORDS OF COUNSEL WHICH WERE SOUGHT BY OPPOSING PARTY IN SUPPORT OF HER OWN CLAIM FOR ATTORNEY'S FEES, QUASHED BY THE COURT

Geico General Insurance Co. v. Paton, 39 Fla. L. Weekly D132 (Fla. 4th DCA January 8, 2014):

The records of one's opponent are at best only marginally relevant to the general issue of determining appropriate amount of attorney's fees in a given case. When the billing records of opposing counsel are sought solely for the purpose of supporting a claim for fees, the party seeking production must establish that the requested material is actually relevant to a disputed issue, that the records sought are needed to prepare for the attorney's fees hearing, and that substantially equivalent material cannot be obtained from another source.

In this case, the plaintiff wanted the discovery to support her award of a multiplier but failed to make the requisite showing.

TRIAL COURT VIOLATED PLAINTIFF'S DUE PROCESS RIGHTS BY DISMISSING ACTION ON STATUTE OF LIMITATIONS WHERE THE DEFENDANT CITY NEVER ALLEGED SUCH A DEFENSE–TRIAL COURT FURTHER ABUSED DISCRETION IN DENYING PLAINTIFF'S MOTION FOR LEAVE TO AMEND COMPLAINT WHERE AMENDMENT COULD HAVE CURED STATUTE OF LIMITATIONS ISSUE AND WOULD NOT HAVE BEEN FUTILE

Phillips v. City of West Palm, 39 Fla. L. Weekly D135 (Fla. 4th DCA January 8, 2014).

PROPOSAL FOR SETTLEMENT OF TITLE INSURER'S COUNTERCLAIM AGAINST ITS INSURED CLEARLY DELINEATED WHICH CLAIMS IT INTENDED TO EXTINGUISH – NO ERROR IN AWARDING FEES FOR TRAVEL TIME AS AWARD FOR FEES UNDER §768.79, AS THAT STATUTE WAS INTENDED AS A SANCTION AGAINST A PARTY WHO UNREASONABLY REJECTS A SETTLEMENT

Palm Beach Polo v. Stewart Title, 39 Fla. L. Weekly D139 (Fla. 4th DCA January 8, 2014):

Most notable to this case was the court's ruling that while travel time is generally not compensable, it may be awarded as part of a sanction under certain circumstances, such as where a party was aware that his actions could result in unnecessary litigation. Because §768.79 is a sanction against a party who unreasonably rejects a settlement offer, there was no error in awarding fees for travel time.