FLORIDA LAW WEEKLY

VOLUME 41, NUMBER 50

CASES FROM THE WEEK OF DECEMBER 16, 2016

FUTURE MEDICAL EXPENSE AWARD EXCESSIVE NECESSITATING REMITTITUR--TREATING PHYSICIAN’S TESTIMONY REGARDING COST OF FUTURE MEDICAL EXPENSES WITH NO TESTIMONY REGARDING LIFE EXPECTANCY NECESSITATED NEW TRIAL ON THAT ISSUE ALSO.

General Employees Insurance Co. v. Isaacs, 41 Fla. L. Weekly D2715 (Fla. 4th DCA December 7, 2016):

In this case, the jury awarded the plaintiff $750,000 for her medical expenses and pain and suffering. $360,000 of the award was for future medical expenses.

As a rule, the only medical expenses that are recoverable are those “reasonably certain” to be incurred in the future. There must be an evidentiary basis upon which the jury with reasonable certainty can determine the amount of those expenses. Evidence that certain treatments “might possibly” be obtained in the future, does not merit an award of future medical expenses.

At the trial, one of the plaintiff’s treating physicians opined that the plaintiff would incur up to $2,000 in future medical expenses per year, and recommended she undergo shoulder surgery that would cost between $40,000 and $50,000. However, no testimony about life expectancy was presented to the jury.

Due to the lack of that evidence, in addition to the fact that the amount awarded for future medical expenses far exceeded what the evidence supported, the court granted remittitur, and remanded for a new trial solely on the issue of the life expectancy relating to the $2,000 per year and the amount of the shoulder surgery.

JUDGE WHO ENGAGED IN EX PARTE COMMUNICATIONS WITH OPPOSING PARTY BEFORE ENTERING FINAL JUDGMENT, SUFFICIENT TO DEMONSTRATE THAT A REASONABLY PRUDENT PERSON WOULD BE IN FEAR OF NOT RECEIVING A FAIR AND IMPARTIAL HEARING, THEREBY JUSTIFYING DISQUALIFICATION.

Isan v. Isan, 41 Fla. L. Weekly D2705 (Fla. 5th DCA December 6, 2016):

The petitioner’s motion alleged that the trial judge engaged in ex parte communications with the respondent on several occasions before entering a final judgment that was nearly identical to her proposed final judgment, and included an award of attorney’s fees.

The court held that was sufficient on its face to demonstrate that a reasonably prudent person would be in fear of not receiving a fair and impartial hearing, and justified a writ of prohibition to remove the trial judge from the case.

TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL DUE TO PRIOR REPRESENTATION OF THE DEFENDANT.

Philip Morris v. Caro, 41 Fla. L. Weekly D2722 (Fla. 4th DCA December 7, 2016):

An attorney who had previously worked on certain tobacco-related Engle litigation in D.C., went to work for a Florida law firm representing a plaintiff in a tobacco case.

In assessing the prior representation, the appellate court disagreed with the trial court’s conclusion that the attorney’s work for Philip Morris was not “substantially related” to the issues in the plaintiff’s lawsuit. The attorney had had extensive prior representation of Philip Morris, and even though each tobacco case is a little bit different, the issues regarding defending and strategizing those cases are the same.

Because the case arose out of a products liability issue involving an identical product, and the attorney’s work for the defendant had involved issues “substantially related” to the issues in the case against it, the attorney possessed confidential information.

Consequently, the court also disqualified the attorney’s law firm pursuant to rule 4-1.10(b) which addresses former clients of newly associated lawyers. Once Philip Morris demonstrated that the attorney had actual knowledge of material confidential information, the burden shifted to the plaintiff to prove that the attorney did not actually acquire confidential information material to the case.

The affidavit did not refute the detailed factual assertions made in the Philip Morris affidavit, and failed to show that the attorney did not obtain confidential information material to the claims. Therefore, there was no competent substantial evidence to support the denial of disqualification of the firm by application of this bar rule either.

FINAL THOUGHT AS WE CONCLUDE 2016: As we bring another year to a close, we thank all of you who have helped us to help our mutual clients in their quest for justice. To the many of you out there who have referred our law firm cases over the years, we are truly grateful for your faith in us.

On behalf of everyone at Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin, I want to wish all of you a fun and relaxing holiday season, and much health, happiness and prosperity in the New Year.

Most warmly,

Julie Littky-Rubin