FLORIDA LAW WEEKLY

VOLUME 42, NUMBER 26

CASES FROM THE WEEK OF JUNE 30, 2017

TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW IN GRANTING PLAINTIFF’S MOTION FOR POST TRIAL INTERVIEWS BASED ON ALLEGED FAILURE OF TWO JURORS TO DISCLOSE LITIGATION HISTORY WHERE PLAINTIFF FAILED TO ESTABLISH RELEVANCE, MATERIALITY, CONCEALMENT AND DUE DILIGENCE.

Children’s Medical Center v. Kim, 42 Fla. L. Weekly D1403 (Fla. 4th DCA June 21, 2017):

The plaintiffs filed a medical malpractice action, alleging a failure to diagnose their infant son’s skull fracture and brain bleed allegedly related to his birth. After being delivered with the assistance of a vacuum extraction device, the child experienced a severe brain bleed and suffered permanent brain-related and neurological injuries.

Plaintiffs moved to interview three jurors alleging that they failed to disclose their litigation histories in responding to the question about whether they or any family member had ever “been sued” or “sued someone else,” including suits which were settled after being filed.

Two jurors answered no. A public records search revealed potential previous encounters with the legal system. Records revealed that one juror may have sought to register a restraining order against her ex-husband in 2008, which the docket characterized as a case involving domestic violence with children.

The plaintiffs asserted that the concealment of that information provided grounds to interview that juror because a salient, if not dispositive, issue in the case was the proximate cause of the child’s injury--either child abuse or so-called “non-accidental injury.” The defendants had theorized that the child’s injury was actually caused by abuse.

The records also revealed that the other juror was the respondent in numerous domestic violence actions, including a stalking case.

The plaintiffs’ affidavits notably did not state that counsel would have exercised peremptory challenges on these two jurors had the information been disclosed. The defendants argued that the plaintiffs failed to demonstrate entitlement to juror interviews, because the alleged non-disclosures were not material, the information had not been concealed, and plaintiffs’ counsel was not diligent in his inquiry during voir dire.

At the hearing, plaintiffs’ counsel then argued he would have used his remaining peremptory challenges on those two jurors, but the defendants argued the prior litigation was not only too remote in time, but it was not even clear that the individuals in those cases were the two jurors.

The trial court then granted interviews of these jurors. The defendants petitioned for a writ of certiorari, arguing that the granting of the interview was a departure from the essential requirements of law.

The case reminds us that post trial juror interviews should rarely be granted, and the sanctity of the jury process as well as the privacy rights of the jurors themselves should be closely guarded and protected. Although those interviews are generally disfavored, where there is adequate proof that a juror may have failed to disclose material information, a party is entitled to conduct an interview.

The trial court has to analyze the totality of the circumstances to determine whether a juror interview is warranted, going through the three-prong test of relevance materiality, concealment, and due diligence.

In this case, it was not clear that the litigation histories even belonged to these two jurors and the history was remote. Also, another prospective juror had noted a domestic violence incident in her family, but plaintiffs’ counsel did not ask a single follow-up question. The court said that the litigation question itself was also not straight forward, and was reasonably subject to misinterpretation by prospective jurors to the point where the court could not say the jurors concealed the information.

Finally, because plaintiffs’ counsel failed to provide a sufficient explanation for the type of information potential jurors were being asked to disclose, the plaintiffs failed to satisfy the due diligence prong. The court noted that the lack of diligence was even more evident in the delay in researching the litigation history of the prospective jurors, because the plaintiffs had ten days between the conclusion of their voir dire and the start of the defendant’s voir dire to run a public records search, and an additional eleven days between the closing of evidence and the closing argument to do it. While the diligence test does not require counsel to discover concealed facts prior to the return of a verdict, the supreme court has said that counsel should check juror records without delay where possible.

This case makes it very clear that courts do not want post trial juror interviews except in the most extreme circumstances.

A NON-RESIDENT DEFENDANT’S AFFIDAVIT REFUTING JURISDICTIONAL ALLEGATIONS, SHIFTS THE BURDEN OF THE PLAINTIFF TO JUSTIFY JURISDICTION.

County of Cumberland v. Kwap, 42 Fla. L. Weekly D1389 (Fla. 4th DCA June 21, 2017):

The County of Cumberland had hired an international prisoner extradition company to transport Kwap from Palm Beach County to New Jersey. Mr. Kwap was injured in an accident during transport.

Following the accident, Kwap sued the two defendants in Florida. The County filed a motion to dismiss for lack of personal jurisdiction, and attached an affidavit from the Sheriff. The affidavit stated that the third party company operated as an independent contractor, used its own equipment, hired its own personnel and that the County had no control over the transport. The court denied the defendant’s motion to dismiss.

However, the judge did not consider the affidavit. Instead, he simply ruled based on the allegations of the complaint. The court must consider jurisdictional evidence to determine if the long arm statute is sufficiently implicated. If the court finds that the affidavits and other evidence cannot be reconciled, a limited evidentiary hearing may be needed.

When a complaint includes sufficient jurisdictional allegations, the burden shifts to the defendant to rebut those allegations through an affidavit or other evidence. Once the defendant files an affidavit sufficient to rebut those allegations, the burden shifts back to the plaintiff to clearly establish a factual basis to justify the exercise of personal jurisdiction.

TRIAL COURT ERRED IN FINDING PROPOSAL FOR SETTLEMENT AMBIGUOUS AND UNENFORCEABLE-THE DISMISSAL CONDITION IN THE DEFENDANT’S PROPOSAL WAS SUFFICIENTLY CLEAR TO ALLOW THE PLAINTIFF TO MAKE AN INFORMED DECISION WITHOUT REQUIRING ADDITIONAL CLARIFICATION.

Sherman v. Savastano, 42 Fla. L. Weekly D1405 (Fla. 4th DCA June 21, 2017):

The defendant’s proposal offered $200,000 to settle, and provided that the parties would execute a joint stipulation for dismissal with prejudice of the action.

Plaintiff argued that the defendant’s proposal was unenforceable, because it was ambiguous and did not strictly comply with rule 1.442. Plaintiff noted the proposal was contingent on the execution of a joint stipulation for dismissal even though there was only one plaintiff. He also complained that the defendant failed to provide the language of the stipulation of the dismissal.

The court relied on Nichols, where the Florida Supreme Court outlined what is necessary to meet the particularity requirement as it pertains to a general release. As long as the summary eliminates any reasonable ambiguity of its scope, and provides either the language or a summary of the proposed release, it will not be ambiguous. Rule 1.442 does not demand the impossible. It merely requires that the settlement or proposal be sufficiently clear and definite to allow the offeree to make an informed decision without clarification.

Here, the dismissal condition contained in the defendant’s proposal was sufficiently clear to make an informed decision. The court said there was no question about what “joint dismissal” in this instance meant, and the only possible ambiguity concerned whether the action would be dismissed with prejudice. Still, the proposal was sufficiently clear to allow the plaintiff to make an informed decision.

TEMPORARY CONTROL OF CAR BY A NON-OWNER WHO WAS DRIVING THE VEHICLE WHILE OWNER WAS PRESENT IN PASSENGER’S SEAT, FELL WITHIN THE PARAMETERS OF A LOAN FOR THE PURPOSES OF THE STATUTE LIMITING STRICT VICARIOUS LIABILITY.

Richbell v. Toussaint, 42 Fla. L. Weekly D1407 (Fla. 4th DCA June 21, 2017):

In this case where a young woman was killed in a bizarre sequence of events, and the first vehicle in the rear-ending sequence, was being driven by a permissive user. The main issue on appeal was whether the owner--who had allowed the driver to drive while the owner sat as a passenger--had the “loaned” the vehicle to the permissive user, entitling the owner to a limit on the judgment of $100,000 pursuant to section 324.021(9)(b)(3).

The plaintiffs argued that no “loan” had occurred, and instead there was a joint undertaking by the owner and the driver, because both were in the car at the time of the accident. Although the statute does not define the word “loan,” generally speaking, the court said it means to give temporary control of property to another without relinquishing ownership, with the intent that you would regain control over the property.

Because the statute provides that the owner is a “natural person” who “loans” a motor vehicle to any permissive user in order to qualify for the $100,000 limitation, these facts satisfy the statute. The driver was a permissive user, and the owner had relinquished temporary control of the vehicle while maintaining his ownership interest. The case did not involve a co-owner, or someone who had consigned the vehicle to another. Instead, it involved the permissive grant of temporary use of the vehicle without transfer of title. Thus, the trial court should have limited the owner’s total liability under the judgment pursuant to the statutes.

PLAINTIFF’S COUNSEL MAY RECEIVE A FEE OF UP TO 25% WHEN JUDGMENT IS RECOVERED BY WAY OF A CLAIMS BILL.

Grossman Roth v. Mellen, 42 Fla. L. Weekly D1412 (Fla. 4th DCA June 21, 2017):

Since the Searcy Denney v. State, 190 So.3d 120 (Fla. 4th DCA 2015) case, attorneys on contingency fees may receive their fee based on 25% of the judgment, even as to the portion of the judgment satisfied by the legislature in a claims bill. Otherwise there is an unconstitutional impairment on a pre-existing contract.

THE PROPER REMEDY IN AN IMPROPER VENUE CASE IS TO TRANSFER THE CASE, NOT DISMISS IT.

Russomano v. Maresca, 42 Fla. L. Weekly D1416 (Fla. 4th DCA June 21, 2017):

Rule 1.060(b) provides that when an action is filed in the wrong county, the court may transfer the action to the proper county. Even though the wording of the rule is “may,” the court said it functions like the word “should.”

The widely accepted practice in Florida courts is that where venue is improper, the case should be transferred and not dismissed.

SUMMARY JUDGMENT IN A CASE ALLEGING A “PATENT” DEFECT PROPER--NO ERROR IN REFUSING TO CONTINUE THE SUMMARY JUDGMENT HEARING UNDER THE CIRCUMSTANCES.

Vancelette v. Boulan South Beach Condominium Association, 42 Fla. L. Weekly D1422 (Fla. 3rd DCA June 21, 2017):

The plaintiff fell on an unmarked curb at the far side of a sidewalk access ramp at her condo. DOT had issued a permit to the developer to repair the crosswalk and the work was performed by subcontractors. The engineer drew up plans and inspected the work.

There was no genuine dispute that the DOT had accepted the work in August of 2010, 14 months before the plaintiff suffered her injury. There was also no dispute that the alleged defect in the project was “patent” rather than “latent.”

The plaintiff had moved to continue the summary judgment hearing less than two weeks before the scheduled hearing and three months after her attorney notified the trial court she was ready for trial (almost three years into the lawsuit). Because plaintiff failed to advance any reason why she could not complete the discovery before the summary judgment hearing, particularly in light of her own announced readiness for trial, the court did not abuse its discretion in refusing to continue it. Also, absent a non-moving party’s demonstration of diligence, good faith and the materiality of the discovery sought to be completed, a trial court cannot be faulted for denying a motion to continue a long-scheduled hearing on a motion for summary judgment.

On the summary judgment issue itself, despite plaintiff’s argument that the Slavin doctrine does not apply, the plaintiff’s reliance on a punch list email by the engineer was misplaced. The email was dated five months before the DOT accepted the completed work. Because Slavin applies when work is accepted, summary judgment was proper.

A BOARD CERTIFIED PODIATRIST WAS NOT QUALIFIED TO SERVE AS A CORROBORATING EXPERT IN LITIGATION AGAINST A MEDICAL MALPRACTICE DEFENDANT WHO WAS A BOARD CERTIFIED ORTHOPAEDIC SURGEON.

Clare v. Florida Orthopaedic Institute, 42 Fla. L. Weekly D1423 (Fla. 2nd DCA June 21, 2017):

Section 766.203 requires the claimant to conduct a presuit investigation, and requires corroboration of reasonable grounds which includes a submission of a verified written medical expert opinion by a medical expert as defined in section 766.202(6), the court had to look to that definition which requires an expert who meets the requirements of an expert witness.

According to section 766.202(6), when defendants are “specialists,” there must be a corroborating affidavit from other specialists who specialize in the same specialty as the health care provider against whom or on behalf of the testimony is offered. Under the plain language, the corroborating affidavit must come from a provider who specializes in the same specialty.

Even though these doctors both practiced in feet and ankles, as the plaintiff asserted, the change in the statute in 2013 now requires a “similar specialty” to qualify an expert witness, and not simply a “similar specialty that includes the evaluation, diagnosis or treatment of a medical condition that is the subject of the claim.” The court granted certiorari for the defendant doctor.

TRIAL COURT ABUSED DISCRETION BY EXCLUDING STATEMENTS MADE BY THE PLAINTIFF TO THE EMT AT THE ACCIDENT SCENE AND CONTAINED IN THE EMS REPORT--EVIDENCE ADMISSIBLE AS AN ADMISSION AND THE EXCLUSION WAS NOT HARMLESS.

Ring Power Corp. v. Condado-Perez, 42 Fla. L. Weekly D1426 (Fla. 2nd DCA June 21, 2017):

In this accident caused by a felled mattress in the northbound lanes of I-75, the plaintiff alleged he did nothing to contribute to the accident. He said he had been driving in the left lane for two or more miles prior to the accident and saw traffic slowing ahead of him, so he did not suddenly swerve from the right lane into the left lane in front of the defendant’s vehicle. He also testified that the defendant was driving directly behind him and was driving too fast and following too closely. The defendant claimed the plaintiff suddenly and unexpectedly swerved from the right lane into the left shoulder, right into the defendant’s path of travel.

The plaintiff told an EMT who provided treatment on the scene--according to the EMS report--that he swerved to avoid a mattress in the road and lost control of the car and went off the road.

The plaintiff moved in limine to prevent that statement from coming into evidence based on its incompetence (the fact that the statement stated that plaintiff was the passenger’s husband but the two were not married). Plaintiff also said the statement was inadmissible because it lacked a proper foundation, that he was not proficient in English because he never made the statement at all. The judge granted the motion in limine.

The Second District reversed. It found that this business record--introduced into evidence by the plaintiff--may have contained hearsay, and was not admissible for the purposes of medical diagnosis or treatment, and was admissible as an admission.

Not only was it error to exclude that statement, but the error could not be said to be harmless, thus requiring a new trial on liability.

WHEN A PARTY SUBMITS A MOTION FOR DISQUALIFICATION CONTAINING FACTS THAT IF TRUE WOULD CAUSE A REASONABLE PERSON TO HAVE A WELL-FOUNDED FEAR THAT HE OR SHE WOULD NOT RECEIVE A FAIR TRIAL--i.e., AN OBJECTIVELY REASONABLE FEAR OF JUDICIAL BIAS--THE MOTION REQUIRES DISQUALIFICATION.

Stitzel v. Cham-Cap, 42 Fla. L. Weekly D1433 (Fla. 5th DCA June 23, 2017).

STATUTE OF LIMITATIONS FOR A NEGLIGENCE ACTION AGAINST A PRIVATE ENTITY PROVIDING CORRECTION SERVICES IN FLORIDA IS FOUR YEARS--TRIAL COURT ERRED IN RELYING ON ONE YEAR STATUTE WHEN DISMISSING THE CLAIM.

Parker v. The Geo Group, 42 Fla. L. Weekly D1435 (Fla. 1st DCA June 23, 2017):

Pursuant to section 95.11(3)4, the applicable statute of limitations for an action in negligence against a private entity providing correction services in Florida is four years, not one as the defendant alleged under a different section of the statute.