FLORIDA LAW WEEKLY

VOLUME 42, NUMBER 37

CASES FROM THE WEEK OF SEPTEMBER 15, 2017

TRIAL COURT PROPERLY DENIED MOTION TO DISQUALIFY ATTORNEY REPRESENTING FORMER CLIENTS SUING LAW FIRM ON GROUND THAT ATTORNEY HAD PREVIOUSLY REPRESENTED THE LAW FIRM WHERE THE PRIOR REPRESENTATION WAS ON UNRELATED MATTERS.

Alters v. Villoldo, 42 Fla. L. Weekly D1989 (Fla. 3rd DCA September 6, 2017):

In 2008, an attorney was retained to represent two brothers in a lawsuit against Fidel Castro in Cuba for the acts of terrorism. The attorney obtained a judgment in state court for over $1.1 billion but it was uncollectible under federal law. The plaintiff then terminated the lawyer.

The plaintiff hired a second attorney to correct the first attorney’s work. The first attorney had also hired that same attorney to represent him in a case in which two Argentine nationals were suing him for his share of fees in a major class action against Bank of America.

When the judgment in the Fidel Castro case was properly perfected, the first attorney then sought to enforce his charging lien.

At that point, the first attorney sought to disqualify the second attorney from handling the Castro case, based on his prior representation of their firm. The court rejected the request.

The court reminded us that disqualification of a party’s lawyer in a civil case is a drastic one, and one that may be employed only in limited circumstances. Motions for disqualification are generally viewed with skepticism, because disqualification of counsel impinges on a party’s right to employ a lawyer of choice and such motions are often imposed for tactical purposes.

The Florida Supreme Court has observed that Florida Rules of Professional Conduct provide the standard for determining whether counsel should be disqualified. Because here, the first attorney was not the second attorney’s “current” client when he filed the complaint (he was his former client), and because the lawsuit was approximately two and half years after the second attorney stopped representing the first attorney, the court properly decided that the disqualification motion was governed by rule 4-1.9 of the Bar Rules on former representation. That standard requires that the current dispute turn on a “substantially” related matter. Because that was not the case here, the disqualification was improper as the trial court ruled.

NO ABUSE OF DISCRETION IN DENYING PLAINTIFFS’ RULE 1.540(B) MOTION TO VACATE AN EARLIER 1.420(E) DISMISSAL FOR FAILURE TO PROSECUTE--PLAINTIFFS’ COUNSEL MISSED DEADLINES AND THE DEMONSTRATION OF GOOD CAUSE WAS UNTIMELY.

Lesinski v. South Florida Water Management District, 42 Fla. L. Weekly D1950 (Fla. 4th DCA September 6, 2017):

The trial judge entered a notice for lack of prosecution on August 16, 2016 after ten months of non-activity. The court set a hearing for November 9, 2016. No record activity occurred within the 60 days immediately following the service of the notice, nor was any stay issued or approved before the 60 days expired.

Not until November 7, 2016, two days before the hearing, did Plaintiffs’ counsel file a showing of good cause claiming he had not been prosecuted in the case because the defendant never filed an answer to the pending version of the complaint. Plaintiffs’ counsel also noted that his office had failed to calendar both the 60 day and 5 day deadlines under rule 1.420(e).

The plaintiff’s counsel attended a November 9, 2016 hearing, and apologized to the court. Still, the court dismissed the case without explanation.

The plaintiff then filed a timely motion to vacate the dismissal under rule 1.540(b)(1) based on excusable neglect. In the motion the plaintiff’s counsel alleged that after the court issued its lack of prosecution notice, he only calendared the mandatory status conference/scheduling conference on November 9, 2016, failing to calendar the 60 day deadline regarding record activity, or the five-day deadline for filing a good cause showing motion. Plaintiff’s counsel’s paralegal signed an affidavit supporting the allegations. Still, the trial court denied this motion.

In considering plaintiff’s counsel’s argument regarding an excusable neglect, the Fourth District explained how plaintiff’s argument would erase rule 1.420(e)’s bright lines, by ignoring the deadlines and then seeking relief from the resulting dismissal by arguing excusable neglect under rule 1.540(b)(1). The court found the plaintiff simply failed to establish the kind of reasons which would afford plaintiff relief.

The court explained that if it relieved plaintiff from the mandatory dismissal under rule 1.420(e) because of excusable neglect, it would effectively be deleting the current rule’s deadlines. The court would then allow the plaintiff, who did not satisfy any of rule 1.420(e)’s deadline, to avoid dismissal simply by filing a rule 1.540(b)(1) motion to vacate based on excusable neglect. Because the court found no support for such a position, and found it illogical, it upheld the dismissal.

COURT ENFORCES FORUM SELECTION CLAUSE REQUIRING CASE BE BROUGHT IN NEW YORK.

Inspired Capital, LLC v. Conde Nast, 42 Fla. L. Weekly D1966 (Fla. 3rd DCA September 6, 2017):

The contract entered into between the parties explicitly provided that any action or proceeding “relating to” the agreement, whether pertaining to the interpretation or enforceability of it, would be brought in the state of New York.

Because the claims clearly related to the license agreement, they fit within the broad language of “relating to” the agreement. The trial court properly granted the motion to dismiss without prejudice to the plaintiff’s right to file the claims in the courts in the state of New York.

DECEDENT’S WIFE’S MOTION FOR SUBSTITUTION FOR DECEDENT AFTER DECEDENT’S DEATH WAS NOT UNTIMELY WHERE A MOTION WAS FILED WITHIN 90 DAYS AFTER THE DEATH WAS SUGGESTED “UPON THE RECORD”--AN EMAIL AND LETTER TO THE TRIAL JUDGE AND PARTIES ADVISING THEM OF THE DEATH THAT WAS NOT FILED WITH THE COURT DID NOT COMMENCE THE 90 DAY PERIOD-TRIAL COURT ALSO PROPERLY ADMITTED TESTIMONY OF PLAINTIFF’S EXPERT REGARDING THE EXPOSURE TO ASBESTOS AND THE ASBESTOS FIBER ANALYSIS REPORT--NO ERROR IN FAILING TO INCLUDE FABRE DEFENDANTS ON THE VERDICT FORM WHEN THERE WAS NO EVIDENCE THAT ASBESTOS WAS ON THE PREMISES OF THE ENTITIES AT THE TIME DEFENDANT VISITED THEM.

Northrop Grumman Systems Corp. v. Britt, 42 Fla. L. Weekly D1985 (Fla. 3rd DCA September 6, 2016):

In this mesothelioma case brought by the plaintiffs, the injured plaintiff had died while the case was pending. His wife was substituted as the personal representative of his estate. At the end of a week-long trial, the jury awarded the plaintiff over $9 million in damages.

On appeal, the defendant made several arguments: (1) that the personal representative had failed to substitute herself as PR within 90 days of her husband’s death being suggested upon the record; (2) that she failed to prove that his exposure to asbestos was a substantial cause of his mesothelioma, and therefore it was err to have denied directed verdict; (3) that the trial court erred in admitting expert testimony of plaintiff’s expert based on a methodology that had been discredited; (4) that a 2013 asbestos fiber analysis and report were prepared by a physician in Italy was a late-disclosed and prejudicial expert opinion; and (5) that the trial court should not have excluded evidence regarding non-parties that may have exposed the decedent to asbestos during his career, which deprived the defendant of an apportionment of liability under Fabre.

The decedent was an employer benefits advisor between 1978 and 1997 and as part of that work visited commercial and industrial facilities to speak with and enroll employees at the facilities. These facilities included workplaces owned and operated by the defendant and its subsidiaries. The allegations were that the decedent had been exposed to and inhaled the asbestos fibers while on the premises of those facilities, which was a substantial cause of his ultimately fatal mesothelioma.

At trial, the plaintiff introduced evidence that the defendant’s facilities contained asbestos. While his deposition had included that he had also visited non-party facilities owned by others, there was no evidence that the pipes or boilers at those facilities contained asbestos.

1. THE SUBSTITUTION ISSUE

Rule 1.260(a)(1) states that a case must be dismissed as to a deceased plaintiff if a motion for substitution is filed over 90 days “after the death is suggested upon the record by service of a statement of the fact of the death and the manner provided for the service of the motion.”

Three days after the man passed away, plaintiff’s counsel sent an email and attached the letter to the judge and the parties advising them of his death. The communication was not filed or recorded, however, and the circuit court docket did not reflect any filing. The motion for substitution was then “filed” within 90 days of the time when the death was actually suggested on the record (there, where the motion for substitution included a statement of fact of the death and was the first time the record contained the information).

2. CAUSATION

While the defendant contended that plaintiff’s expert failed to establish the amount of asbestos her husband had inhaled over the years, there was evidence that the defendant had no exposure monitoring records from employees engaged in maintenance-type functions on asbestos containing fire-proofing or pipe-lagging materials, nor was there routine air sampling done. As such, the court said the defendant was hardly in a position to demand the quantification from the plaintiff.

3. ADMISSIBILITY OF PLAINTIFF’S EXPERT’S TESTIMONY

The plaintiff’s expert’s “any exposure” or “single fiber” testimony was properly admitted under either Frye or Daubert. The expert had conducted and published studies of workers exposed to asbestos, and other materials and he was invited to be an epidemiologist at the Asbestos Science Advisory Board established by the EPA.

Regarding the decedent’s exposure to asbestos, the physician testified that in the aggregate, the defendant’s presence for at least 150 days of exposure to asbestos at the defendant’s facilities was a substantial cause of his ultimately fatal mesothelioma. The doctor rejected the defendant’s invitation to opine that any, every or any single exposure to airborne asbestos could be a contributing cause to a patient’s mesothelioma, noting that the removal of asbestos containing insulation would involve millions of asbestos fibers and the cumulative exposure was significant.

The court found that the plaintiff’s expertise, his application of reliable methodology and peer review published studies, and the general acceptance by the scientific community of the relationship between the inhalation of asbestos fibers and mesothelioma, distinguished the case from those cases where courts had rejected opinions for impermissible methodologies or bases.

4. THE ASBESTOS FIBER ANALYSIS REPORT

Plaintiff introduced the testimony of a medical professional who prepared a pathology report and could authenticate it as a business record. Her deposition was permitted when the defendant declined to stipulate to the authenticity of the document.

The defendant ultimately received the report, certified translation and a summary of the methodology used in analyzing the lung tissue samples. The defendant did not ask for other relief, even after the trial court invited counsel to let the court know if it needed additional consideration of the issues following the deposition. There was no abuse of discretion in admitting the report.

5. PROSPECTIVE FABRE DEFENDANTS

While the defendant maintained that two non-party entities should have been included on the verdict form because the decedent had been exposed to asbestos during visits to other facilities, there is simply no evidence to establish that asbestos was present at those non-party sites at the time the decedent visited them. As such, the ruling not to include them was correct.

The court affirmed the judgment in favor of the plaintiff.

TRIAL COURT IMPROPERLY GRANTED PLAINTIFF’S MOTION TO AMEND COMPLAINT TO ADD A CLAIM FOR PUNITIVE DAMAGES WHERE PLAINTIFF FAILED TO ATTACH THE PROPOSED AMENDED COMPLAINT TO THE MOTION AND FAILED TO MAKE A PROFFER.

Fetlar, LLC v. Suarez, 42 Fla. L. Weekly D1988 (Fla. 3rd DCA September 6, 2017):

Because the plaintiff failed to comply with rule 1.190(f) by attaching a copy of her amended complaint to the motion for leave, and also failed to make a proffer against the corporate defendant pursuant to section 768.72(3), the court quashed the trial judge’s granting of the amendment to add punitive damages.