FLORIDA LAW WEEKLY

VOLUME 41, NUMBER 20

CASES FROM THE WEEK OF MAY 20, 2016

TRIAL COURT ERRED IN DISMISSING COUNT AGAINST COMPOUNDING PHARMACIST FOR NEGLIGENCE--HOWEVER, CLAIM FOR NEGLIGENCE PER SE WAS PROPERLY DISMISSED UNDER THESE FACTS.

Sorenson v. Professional Compounding Pharmacists of Western Pennsylvania, 41 Fla. Law Weekly D1119 (Fla. 2nd DCA May 16, 2016):

Plaintiff’s complaint alleged that the decedent suffered from chronic low back pain caused by a car accident. His doctor had prescribed hydromorphone through a pain pump inserted in the spinal canal. At one point the decedent’s physician wrote a prescription which increased the concentration. The pharmacist compounded the medication and released it to the physician, who then administered it to the decedent through his pain pump. He died the same day.

Plaintiff’s alleged a count against the pharmacist for negligently preparing and dispensing a prescription of hydromorphone that was unreasonable on its face due to the dosage and strength. The second count alleged negligence per se, for filling the unreasonable prescription without being registered or licensed in Florida as required.

As for the negligent/wrongful death count, courts have determined that the duty to use due and proper care may involve more than simply filling a prescription as written. A pharmacist may breach the duty of care even when he or she fills a prescription and in accordance with the instructions, if the prescription is unreasonable on its face. Quoting to the Fifth District, the court noted that “robotic compliance” with a prescribing physician’s instructions will not shield a pharmacist from liability when the prescription is unreasonable on its face. Thus, it was error to dismiss the negligence count.

Plaintiff also alleged negligence per se for filling the prescription without being registered or licensed, as required. The complaint alleged that the decedent fell within the statute’s protected class, namely a Florida resident who received treatment from an unlicensed health care provider that resulted in his death.

The trial court believed that the failure to be licensed or permitted may be evidence of negligence, but found no language in either the Pharmacy Act or Chapter 446, enacted to regulate lawful professions was intended to cause a private cause of action for violation of its requirements. Rejecting that any of those statutes provided for a private cause of action, the appellate court affirmed the dismissal of the negligence per se cause of action.

CIRCUMSTANTIAL EVIDENCE INSUFFICIENT TO SHOW PRECISELY WHERE PLAINTIFF WAS WHEN SHE FELL, WHAT SHE WAS DOING WHEN SHE FELL, OR WHAT CAUSED HER TO FALL IN THE FIRST PLACE; JURY COULD NOT REASONABLY CONCLUDE THAT THE PRESENCE OF GUARDRAILS WOULD HAVE ALTERED THE OUTCOME--COURT REMANDED FOR ENTRY OF A DIRECTED VERDICT AGAINST THE PLAINTIFF.

Broward Executive Builders v. Zota, 41 Fla. Law Weekly 1126 (Fla. 4th DCA May 11, 2016):

A woman was painting the ceiling above a second story catwalk in a home under construction when she fell and suffered serious injuries. No one witnessed the fall, but she was found shortly thereafter lying at the foot of the staircase below the catwalk. At the time of the accident, she was using a step ladder and two scaffolds situated upon the catwalk to reach and paint the ceiling. The evidence showed that the woman was responsible for setting up at least one of the scaffolds, and that neither of them, nor the catwalk itself had guardrails in place.

The plaintiff alleged that the defendant general contractor for the construction project breached its duty to maintain a safe work environment, by failing to install minimum mandatory guardrails on the catwalk as required by OSHA guidelines.

The defendant claimed that the woman fell from the catwalk itself, while the plaintiff countered that the woman likely fell from either the step ladder or one of the scaffolds. However, because there were no witnesses to the fall, and the plaintiff was unable to testify, the parties compensated for this lack of direct evidence by engaging experts who served as the principal witnesses in their respective attempts to reconstruct the accident. The trial court initially denied the defendant’s motion for directed verdict, and the jury found the defendant fifty-percent responsible for the injuries, and the woman herself fifty-percent.

The Fourth District reversed the denial of defendant’s motion for directed verdict, ordering that it should have been entered. The only way that an inference based on circumstantial evidence can defeat a motion for directed verdict, is if the basic inference is established to the exclusion of all other reasonable theories. The purpose of the rule against stacking inferences is to protect litigants from verdicts, based on conjecture and speculation.

The inferences in this case were that the woman fell, that she fell from a significant height, that she fell from a certain area on the catwalk, that the appropriate and required guardrails would have prevented a fall from that area on the catwalk, and that she suffered injuries from the fall.

The court explained that the fact that the woman fell could be presumed to be established to the exclusion of all other reasonable inferences based on the evidence, and elevated for the purpose of a further inference to the dignity of an established fact.

The fact that the fall occurred from a height of several feet was also a reasonable inference given the nature and extent of the injuries in the medical testimony. That inference too could be elevated to the same level as an established fact. That the woman had suffered injuries as a result of her fall, also could have fallen into that category.

However, the court said that the plaintiff could not attach liability to the defendant unless plaintiff could show that the guardrails would have prevented the woman from falling. That determination relied upon the inference that the woman fell from a place and in such a manner that would have made the presence of the guardrails on the catwalk efficacious. However, the circumstantial evidence did not exclude the reasonable possibility that she fell from many equally likely locations in the catwalk area, such as the step ladder or one of the scaffolds. In fact, there was no evidence presented at trial that would permit any inference about precisely where the woman was when she fell, what she was doing, or what caused her to fall in the first place.

While the circumstantial evidence in the case supported a finding that the woman fell on her head from a height of several feet with no clear indication of how or why, it did not establish that it was more likely than not that she fell from a certain location on the catwalk, because no guardrails were in place to prevent the fall. The plaintiff believed that under the circumstances it was more likely than not that this occurred, as opposed to some other explanation. The Fourth District disagreed. It found there were a myriad of plausible explanations and reasonable inferences that could be drawn from the circumstantial evidence.

The court reminded us that the burden of proof rests upon the plaintiff to prove the defendant’s negligence, and where there is evidence that the harm could have occurred even in the absence of the defendant’s conduct, proof of causation simply cannot be based on mere speculation, conjecture or inferences drawn from other non-exclusive inferences. Although the court recognized that it must at least introduce evidence which affords a reasonable basis for the conclusion that “more likely than not” the conduct of the defendant was a substantial factor bringing about the result, proof that raises mere speculation, supposition, suspicion or conjecture is simply not enough to sustain a plaintiff’s burden of persuasion.

The court said it would not allow a jury to derive inferences from unproven allegations, and that courts require more than just “dartboard decision-making” by juries to sustain verdicts.

IN DENYING THE AWARD OF ATTORNEY'S FEES TO THE DEFENDANT PURSUANT TO A PROPOSAL FOR SETTLEMENT, THE TRIAL COURT ERRED IN FINDING THAT THE AMENDMENT TO ADD AN AFFIRMATIVE DEFENSE DURING THE PENDENCY OF THE PROPOSAL MOOTED THE PROPOSAL--PROPOSAL NOT AMBIGUOUS SIMPLY BECAUSE PROPOSAL DID NOT SPECIFY WHETHER CLAIMS WOULD BE RESOLVED BY FULL OR PARTIAL RELEASE, DISMISSAL OR ANY OTHER MEANS.

Manuel Diaz Farms, Inc. v. Delgado, 41 Fla. Law Weekly D1143 (Fla. 3rd DCA May 11, 2016):

The defendant served a proposal for settlement proposing to resolve all issues and claims for damages asserted against the defendant, as conveyed in the plaintiff’s complaint for a certain payment. Plaintiff won the case at trial, but secured a verdict of only one dollar.

The plaintiff argued that the proposal had failed to properly address non-monetary relief resulting in an impermissibly ambiguous proposal that was invalid as a matter of law. Plaintiff also complained that the proposal did not specify whether the claims would be resolved by full or partial release, dismissal or any other means. Because the proposal contained clear language indicating that if accepted, the settlement would have ended the litigation and disposed of all pending claims, there was no further particularity required as to how the claims would be settled.

The plaintiff also argued that the defendant’s amendment to add an affirmative defense during the pendency of the proposal mooted it. The court distinguished a New York case cited by plaintiff, which the court said had to do with an offer of judgment not a proposal for settlement (?), and turned on the fact that the plaintiff had entirely abandoned the cause of action that was subject to the offer.

In contrast, the defendant’s proposal for settlement was for a fixed amount to settle all issues and claims for damages in the plaintiff’s complaint. Because the plaintiff did not amend the complaint, or change his claim for damages following the proposal, there was no basis in rule 1.442 or section 768.79 to support the argument that the affirmative defense somehow mooted or otherwise vitiated a clear, timely, good faith and straight-forward proposal for settlement.