FLORIDA LAW WEEKLY
VOLUME 39, NUMBER 12
CASES FROM THE WEEK OF MAR. 21, 2014

THE SUPREME COURT ADOPTS AN AMENDED CAUSATION INSTRUCTION (501.5(c)) TO ADDRESS SUBSEQUENT INJURIES CAUSED BY MEDICAL TREATMENT

In Re Standard Jury Instructions in Civil Cases – Report No. 13-02, 39 Fla. L. Weekly S146 (Fla. March 20, 2014):

Prompted by Stuart v. Hertz, the case which ruled that a treating doctor’s negligence in rendering medical care to a victim for the initial injuries sustained in an accident are part of the consequences caused by the original actor’s negligence, the supreme court agreed with the jury instruction committee, and found there was a need for a specific instruction on this complex legal subject. The new instruction states:

If you find that (defendant(s)) caused [loss] [injury] [or] [damage] to (claimant), then (defendant(s)) [is] [are] also responsible for any additional [loss] [injury] [or] [damage] caused by medical care or treatment reasonably obtained by (claimant).

The notes state that courts should use the instruction in cases involving additional injury caused by subsequent medical treatment.

SIMPLY BECAUSE PLAINTIFF WANTS OR NEEDS TO HIRE A MORE AGGRESSIVE LAWYER AND THE SECOND LAWYER DOES THE LION’S SHARE OF THE WORK, IS NOT A BASIS TO DEPRIVE A DISCHARGED LAWYER OF A QUANTUM MERUIT LIEN

Courtney v. Hall-Edwards, 39 Fla. L. Weekly D540 (Fla. 3rd DCA March 12, 2014):

This fee dispute case arose out of a major products liability case, where the jury obtained a 60 million dollar verdict against Ford, that the Third District reversed because of the improper introduction of similar incident evidence by the plaintiff. After several more attempts at trying the case, it was later settled after a second jury reached a 19 million dollar jury verdict (12 years after the accident).

The plaintiff argued with her first lawyer regarding an agreed upon quantum meruit lien for $114,000. The trial judge had agreed that while the original lawyer had done a good job, his efforts were “dwarfed” by the subsequent efforts of successor counsel.

Still, the Third District quashed that order finding that a client’s desire to hire a more aggressive lawyer with greater expertise than the lawyer initially hired, does not deprive the initially discharged attorney of entitlement to be paid for his or her work, because that would make charging liens, all but superfluous.

The court also went on to note that many of the delays in finally obtaining the verdict, could be charged to the successor counsel, and then looked at the original lawyer’s early efforts, where he interviewed witnesses, located and preserved the automobile involved in the accident, crafted meaningful and appropriate discovery, located, interviewed and educated two experts (both of whom testified at the first trial where the $60 million dollar verdict was entered and one of whom testified at the fourth trial where a $19 million dollar verdict was entered), and sent Ford a $10 million dollar demand letter. Collectively, the Third District found those actions established that the first lawyer’s efforts were of some significance, and entitled him to a fee award.

Additionally, no one made any argument that the $114,250 that the parties stipulated to be a reasonable fee for the original lawyer’s efforts was in any manner disproportionate to the amount the respondent and her lawyers received. Thus, the court quashed the order, and remanded for entry of an award in the amount stipulated by all parties to have been a reasonable fee.

TRIAL COURT ERRED IN DENYING NON-RESIDENT DEFENDANT’S MOTION TO DISMISS FOR LACK OF JURISDICTION WITHOUT AN EVIDENTIARY HEARING, WHEN THERE WAS CONTRADICTORY EVIDENCE AS TO WHETHER THE PLAINTIFF MET THE BURDEN OF PROVING JURISDICTION OVER THE DEFENDANT

Airamid Health Services, LLC v. The Anita Sechler Personal, 39 Fla. L. Weekly D554 (Fla. 5th DCA March 14, 2014):

When jurisdictional facts cannot be harmonized, the trial court should hold a limited evidentiary hearing on jurisdiction to determine whether it exists.

ERROR TO ENTER SUMMARY JUDGMENT PREMATURELY WHEN DISCOVERY IS PENDING

Harper v. Wal-Mart Stores, 39 Fla. L. Weekly D556 (Fla. 5th DCA March 14, 2014):

Although a non-moving party cannot attempt to thwart summary judgment by initiating discovery after the motion for summary judgment is filed and the hearing is scheduled, sometimes logical additional discovery does flow, which should prevent the entry of summary judgment.

A PERSONAL REPRESENTATIVE ACTING UNDER A DURABLE POWER OF ATTORNEY AUTHORIZING HER TO ACT ON THE DECEDENT’S BEHALF WITH RESPECT TO “CLAIMS AND LITIGATION” AND “ALL OTHER MATTERS,” HAD AUTHORITY TO ENTER INTO THE NURSING HOME’S ARBITRATION AGREEMENT–ERROR TO FIND ARBITRATION AGREEMENT SUBSTANTIVELY UNCONSCIONABLE SIMPLY BECAUSE THE STATE DID NOT HAVE ABILITY TO PAY COSTS OF ARBITRATION

Zephyr Haven Health v. Clukey, 39 Fla. L. Weekly D561 (Fla. 2nd DCA March 14, 2014).

Please feel free to contact me with any questions about appellate issues you may have.

Best Regards,

Julie Littky-Rubin