FLORIDA LAW WEEKLY

VOLUME 41, NUMBER 30

CASES FROM THE WEEK OF JULY 29, 2016

DEFENSE COUNSEL’S MISCONDUCT WAS SO PREJUDICIAL AS TO WARRANT A NEW TRIAL FOR THE PLAINTIFF.

Boyles v. Dillard’s, 41 Fla. L. Weekly D1709 (Fla. 1st DCA July 25, 2016):

Plaintiff was involved in a traffic accident with a Dillard’s delivery van. The defendant was driving directly behind the plaintiff in the same lane of a two-lane highway, and then hit the right rear of the plaintiff’s vehicle while she was making a right turn into her driveway. The defendant alleged that the plaintiff left her lane and abruptly turned back, leaving him without enough time to avoid the collision.

Before the trial, the plaintiff moved to strike or limit the testimony of Dr. Ipser regarding his opinions on the Delta-v (the change in velocity of the cars on impact) as inadmissible and scientifically unreliable. At a daylong hearing on the matter, Dr. Ipser testified he was not retained by the defendant to offer an opinion on whether the forces produced by a given Delta-v would have caused the plaintiff to suffer injury. Instead, he had reconstructed the accident and would testify as to the nature of the physical forces at work, to help the jury understand the levels of those forces on the human body. The trial court allowed the testimony on the calculation of the Delta-v over plaintiff’s objections.

During closing, defense counsel referred to Dr. Ipser’s testimony and argued that this was not the type of accident the plaintiff wanted the jury to believe it was because the speed and velocity of the impact were minor.

Plaintiff argued it was an error to admit Dr. Ipser’s testimony because the only relevance it could have possibly had was to imply that the plaintiff could not have suffered the degree of injury that she alleged and that Dr. Ipser was unqualified to offer testimony that would lead to such a conclusion.

The court rejected that argument. It found that while a biomechanic is not qualified to give a medical opinion regarding the extent of an injury, he is to offer an opinion as to the causation if the mechanism of injury falls within the field of biomechanics. Because Dr. Ipser’s testimony was well within those parameters, his opinions were admissible regarding the forces involved in the accident. Thus, defense counsel did not act improperly when he implied during closing that the jury should take relevant physical forces into account when determining the effect on the injuries plaintiff suffered.

However, during closing, defense counsel also referred to plaintiff’s testimony that she had tapped her brakes to take her vehicle off cruise control before turning into her driveway. Defense asked why that was important, and noted that he had taken her deposition for hours and it never came up. When plaintiff’s counsel objected and requested a sidebar, defense counsel replied by turning to the jury, raising his hands in the air and exclaiming “Well, that lasted about 12 minutes,” whereupon plaintiff moved for a mistrial. Plaintiff argued that it was improper to refer to the deposition because it had not been introduced into evidence, and defense counsel was using the characterization of extra-record evidence to accuse the plaintiff of dishonesty. The trial court denied the motion for mistrial but gave a curative instruction.

The court noted that it was undisputed that the defense attorney’s attempted impeachment of plaintiff’s credibility by reference to alleged inconsistencies between her trial testimony and her pretrial deposition was improper, as was his open disparagement of the plaintiff’s counsel after plaintiff’s counsel registered an “eminently reasonable objection” to the impropriety. The court said that while a single improper remark properly and immediately cured by an instruction by the trial court will not necessarily constitute adequate grounds for a mistrial, in this case, defendant’s liability essentially hinged on the comparative credibility of the two opposing witnesses, the plaintiff and the defendant.

The court then explained that this finding was especially appropriate because the context suggested that an error was made “intentionally.” The defendant also failed to demonstrate there was no reasonable possibility that the error had contributed to the verdict, rendering it harmless. The court said the defense counsel’s violation--if not intentional--was at least grossly reckless, particularly because it was committed during closing arguments when such improper statements are especially likely to inflame the minds and passions of the jurors, encouraging an emotional response rather than a logical analysis of the evidence in light of the applicable law.

There were several other issues also addressed by the court: First, in voir dire, counsel may question prospective jurors on their ability to follow the law.

Additionally, the defendant--perhaps inadvertently--testified that “both he and the police officer” asked about an ambulance in violation of the accident report privilege. The court observed that answer evinced a failure to adequately prepare the witness, which was more pronounced in light of the defense’s other improprieties.

There was also an improper insinuation that the plaintiff had previously received a speeding ticket, as well as a violation of the court’s order regarding a motion in limine on how one of the doctors had been paid.

The First District noted that while a trial court’s ruling is entitled to substantial deference, there is a point where the “totality of all errors and improprieties are pervasive enough to raise doubts as to the overall fairness of the trial court proceedings.” The cumulative effect of the repeated improprieties did unduly prejudice the jurors by casting improper aspersions on the plaintiff’s credibility and the integrity of her counsel.

The court did note, however, that while not wanting to enter a discussion of “who started it,” the plaintiff’s counsel’s “snide denigration” of Dr. Ipser’s professional occupation in the presence of the jury, and the postings by plaintiff’s counsel on his own public Facebook page, which commented on the proceedings and evidence and made derogatory references to one of the defendant’s attorneys, were well outside the bounds of professional conduct to which members of our profession are expected to adhere. Food for thought for sure.

DISMISSAL WITH PREJUDICE IS A SEVERE SANCTION WHICH SHOULD BE GRANTED ONLY WHEN THE PLEADER HAS FAILED TO STATE A CAUSE OF ACTION, AND IT CONCLUSIVELY APPEARS THAT THERE IS NO POSSIBLE WAY TO AMEND THE COMPLAINT TO STATE A CAUSE OF ACTION.

McAlpin v. Roberts, 41 Fla. L. Weekly D1675 (Fla. 1st DCA July 20, 2016):

Plaintiffs sued the Sheriff complaining that he and his deputies were interfering with their business, by unlawfully attempting to enforce a county ordinance. The Sheriff moved to dismiss for numerous reasons, including failure to comply with presuit requirements of section 768.28, failure to allege sufficient facts to determine whether the case was brought within the applicable statute of limitations, lack of standing, and failure to include an indispensable party. The trial court denied the plaintiffs’ requests for leave to amend.

On appeal, the plaintiffs alleged that the denial was an abuse of the trial court’s discretion. The First District agreed. Dismissal with prejudice is a severe sanction which should be granted only when the pleader has failed to state a cause of action, and it conclusively appears that there is no possible way to amend the complaint to state a cause of action. The opportunity to amend should be liberally granted and should not be denied unless the privilege has been abused. In this case, it was not and therefore the court reversed the dismissal.

TRIAL COURT CORRECTLY RULED THAT THE AGENCY FOR HEALTH CARE ADMINISTRATION WAS ENTITLED TO RECOVER THE FULL AMOUNT OF ITS MEDICAID LIEN BECAUSE THE FEDERAL MEDICAID ACT’S “ANTI-LIEN” STATUTE APPLIES ONLY TO LIVING MEDICAID RECIPIENTS.

Goheagan v. Swaby, 41 Fla. L. Weekly D1680 (Fla. 4th DCA July 20, 2016):

<>The plaintiff personal representative appealed from a final order denying the Estate’s motion for equitable distribution, and ordering the Estate to reimburse the Florida Agency for Health Care Administration in the full amount of its Medicaid lien. The issue was whether the trial court erred in applying section 409.910(11)(f), and in turn refusing to reduce the Medicaid lien to an amount equal to the amount recovered by the Estate for past medical expenses.

The Fourth District held that the section of Florida’s Medicaid Third Party Liability Act is not preempted by the anti-lien provision of the federal Medicaid law and is not applicable in wrongful death actions.

In this case, a woman was severely injured in a car accident, suffering significant injuries and ultimately dying after being in a coma for three months. The medical expenses totaled close to $1 million, of which Medicaid paid $95,000. The Estate brought a wrongful death action against the driver, which resulted in a multi-million dollar verdict at trial. After final judgment was entered, the Estate brought a third-party bad faith claim against the driver’s automobile insurance carrier, eventually settling the case for $1 million. AHCA then asserted a lien for the full $95,000 against the settlement proceeds of the bad faith claim based on section 409.910(11)(f).

The Estate moved for equitable distribution to reduce the Medicaid lien arguing that the section was preempted by federal law. It argued the Estate could not reimburse from monies recovered by a beneficiary for any category of damage but for past medical expenses. The Estate argued that the amount Medicaid paid was only 3.5% of the jury’s verdict and as such asserted that the lien should be reduced to an amount equal to 3.5% of the actual settlement proceeds.

After an extensive analysis, the Fourth District concluded that the plain language of the federal Medicaid law clearly reflects Congress’s intent that the anti-lien provision should apply only to living Medicaid recipients. Because this was a wrongful death case, the anti-lien statute did not apply. The Fourth District affirmed the trial court that ruled to that effect.

FAILURE TO COMPLY WITH MEDICAL MALPRACTICE PRESUIT REQUIREMENTS PROPERLY RESULTED IN DISMISSAL--CASE INVOLVED MEDICAL JUDGMENT AND NOT ORDINARY NEGLIGENCE.

Haslett v. Broward Health, 41 Fla. L. Weekly D1684 (Fla. 4th DCA July 20, 2016):

The estate of a former patient sued a mental health facility and its attending psychiatrist for the wrongful death of the patient. While the third amended complaint alleged ordinary negligence, the trial court dismissed it because the complaint was actually for medical negligence, and the plaintiff had not complied with the presuit requirements of Chapter 766.
According to the factual allegations, the decedent, who had previously been diagnosed as paranoid schizophrenic, was “Baker Acted” by the Fort Lauderdale Police Department for suicidal ideations and bizarre behavior. At the time he was transported to the hospital, he was hearing voices and hallucinating and told a nurse that he had a suicide plan to take pills to kill himself. The defendant psychiatrist was given the responsibility for the care and treatment of the decedent. The complaint specifically alleged that the doctor’s care did not fall below the medical standard of care and the action was not based on medical malpractice.

However, the complaint factually alleged that the doctor had the decedent sign a consent form for voluntary admission to the facility, as opposed to involuntary admission, solely for the convenience of the doctor and the facility. That procedure allowed it to avoid Baker Act hearings and to keep the Estate out of the man’s care and treatment. The form was attached to the complaint and included a certification by the doctor that he had personally examined the decedent, and concluded he was competent to provide express and informed consent.

Thirteen days later the decedent was discharged, given prescriptions, a taxi cab voucher, and his money. The next day the decedent was found dead from an overdose of his medication.

The plaintiff claimed that the complaint was not based upon medical negligence because it involved a consent form signed by the decedent which it alleged was orchestrated by the doctor to avoid involuntary commitment procedures, the lack of which directly led to the man’s suicide. However, the court noted that the form showed that the doctor personally evaluated the decedent and found him competent to consent to treatment. Therefore, it was the doctor’s medical evaluation which led to the signing of the consent form, without which the decedent would not have been admitted on a voluntary basis.

Additionally, because at the time of his death the decedent was not in the custody or control of the facility and the plaintiffs alleged that there was no negligence, there was arguably no negligence then because he was entitled to be discharged, and therefore there was no necessity for a hearing under the Baker Act. Thus, there was no common law duty to protect the patient once he left the custody and control of the facility. In that instance, the complaint would fail to state a cause of action.

As to the count alleging a violation of section 415.1111, the Fourth District found the statute did not apply. Other than merely stating that the doctor was a “caregiver,” there were no allegations to show that the doctor and the facility were caregivers within the meaning of section 415.102(5), which defines “caregiver” as a person who has been entrusted with or has assumed the responsibility for frequent or regular care of or services to a vulnerable adult on a temporary or permanent basis, and who has a commitment agreement or understanding with that person, or that person’s guardian, that a caregiver role exists.

In this case, the decedent was in the facility for treatment of a medical condition, namely his mental illness. There was medical judgment involved, thus necessitating compliance with presuit requirements. Additionally, because the facility’s caregiver role, if any, would have ended with the discharge of the patient if he had improved to the point that he did not need to be in the facility, there would be no basis for liability in that instance either.

TRIAL COURT DID NOT ABUSE ITS DISCRETION BY DISMISSING A COMPLAINT WITH PREJUDICE AS A SANCTION FOR THE PLAINTIFF’S WILLFUL VIOLATION OF COURT ORDERS, AND FOR LYING UNDER OATH DURING HER TWO DEPOSITIONS AND TWO SETS OF INTERROGATORIES.

Cal v. Forward Air Solutions, 41 Fla. L. Weekly D1690 (Fla. 3rd DCA July 20, 2016):

The plaintiff was injured in an auto accident in 2011. She later claimed that she had injured her lower back and neck in a prior slip and fall in 2010 and that the accident had exacerbated her injuries.

The trial court compelled plaintiff to attend a CME, and also entered an order requiring her to produce documents related to the settlement of the slip and fall case, and to provide better responses to the interrogatories regarding the settlement.

The plaintiff failed to attend the CME and the defendants moved for sanctions, including dismissal of the case. Defendants argued that plaintiff not only failed to attend the CME and comply with the orders compelling better responses, but she also provided false testimony regarding her medical history in her depositions and gave false answers in interrogatories.

After conducting two hearings on the matter, the trial court entered another order granting the defendants’ motion for sanctions and dismissing the case with prejudice. The trial court’s detailed order found that the plaintiff had been involved in a prior accident in May of 2008 that resulted in injuries to her shoulder and back. Because she had received treatment for the injuries at a facility that had gone out of business, it was not possible to get records from the facility (and therefore no way to corroborate her claims with records). The court also found that the plaintiff had lied under oath several times when answering questions in two depositions and two sets of interrogatories by failing to disclose that accident, as well as the injuries or treatments about them. The trial court finally found that the plaintiff had willfully violated a court order by failing to produce discovery and attend the CME.

Ruling that the record fully supported the trial court’s findings that the plaintiff willfully violated an order of the court by failing to attend the CME, and that she lied under oath--in a manner that was particularly prejudicial because of the similarity of the injuries, and also because it would be impossible to obtain the records from the 2008 accident because the facility had closed precluding discovery--the appellate court upheld the dismissal. The court observed that the plaintiff’s explanation for her false testimony (faulty memory) was unconvincing. It said this was not a single moment of forgetfulness, but rather a consistent attempt by the plaintiff to provide incomplete answers, or intentionally omit significant information. For the second week in a row, a court upheld the dismissal.

ONCE PLAINTIFF PRODUCED MEDICAL RECORDS, NO CLAIM OF PRIVACY REGARDING THINGS CONTAINED WITHIN THOSE RECORDS--HOWEVER, OVERLY BROAD QUESTIONS TOUCHING ON ATTORNEY-CLIENT PRIVILEGE ISSUES CANNOT BE ASKED.

Mobley v. Homestead Hospital, 41 Fla. L. Weekly D1694 (Fla. 3rd DCA July 20, 2016):

Plaintiff filed a lawsuit in 2013, alleging that her son’s disabilities were due either to medical malpractice during her pregnancy or to medical malpractice during her son’s 2009 birth.

During discovery, the hospital sought information as to when the plaintiff first became aware of the possibility that her son’s disabilities could be related to medical malpractice. The hospital asked when she had first retained legal counsel (there had been a NICA petition filed, and a request for the hospital’s records sent by a law firm), and also why she filed a NICA petition. The trial court found these facts were not privileged and ordered the plaintiff to answer “all questions related to…when she first sought legal counsel, the names of the attorneys with whom she consulted and the reasons why she first sought legal counsel and any subsequent counsel.”

The court found that “all questions” and the reasons why she sought counsel were overly broad and had the potential to stray into privileged and confidential communications. While the court agreed that the plaintiff could be required to answer factual questions about what she learned at various points in time concerning the nature and potential causes of her child’s condition from sources other than the attorney she consulted, she could not be forced to answer questions that would require her to reveal contents of advice or information she received from any attorneys.

However, once she disclosed her medical records which contained information regarding prior pregnancies and terminations of those pregnancies, the plaintiff was no longer able to assert an objection based on a violation of her right to privacy regarding those questions.

NO ABUSE OF DISCRETION IN GRANTING A MOTION TO DISMISS A NEGLIGENCE SUIT FILED BY A CANADIAN CITIZEN AGAINST ANOTHER CANADIAN CITIZEN FOR INJURIES THE PLAINTIFF SUSTAINED WHILE ATTEMPTING TO SECURE ITS SAILBOAT TO A DOCK IN FLORIDA DURING A TEMPORARY STOP ON A VOYAGE FROM CANADA TO THE BAHAMAS--IT WAS UNDISPUTED THAT THERE WAS AN ADEQUATE ALTERNATIVE FORUM IN CANADA WHICH POSSESSED JURISDICTION OVER THE CASE AND THAT THE PLAINTIFF COULD BRING THE SUIT IN THAT FORUM WITHOUT UNDUE CONVENIENCE.

Archibald v. Burke, 41 Fla. L. Weekly D1707 (Fla. 1st DCA July 25, 2016):

Two Canadian citizens (and residents of Canada) were involved in an accident which injured the plaintiff while the defendant attempted to secure the plaintiff’s sailboat to a dock at a Jacksonville Marina. The boat had made a temporary stop on the voyage from Canada to the Bahamas. Plaintiff sued in Florida and the defendant filed a motion to dismiss the complaint based on forum non-conveniens grounds.

The trial judge went through the proper four-step Kinney analysis and concluded that there was no dispute that there was an adequate alternative forum in Canada which possessed jurisdiction and that the plaintiff could bring his suit in that forum without undue convenience or prejudice. The private interest factors also showed that the parties’ access to evidence and witnesses, and the ease of enforcing judgments were in Canada.

The dismissal order specifically found that the convenience of the parties and the witnesses and the interests of justice favored litigating the case in Canada. Therefore there was no error in the trial court dismissing the lawsuit on the basis of forum non-conveniens.