FLORIDA LAW WEEKLY

VOLUME 43, NUMBER 14

CASES FROM THE WEEK OF APRIL 6, 2018

TRIAL COURT ERRED IN DENYING DEFENDANT PUBLIX’S MOTION FOR DIRECTED VERDICT, WHERE THERE WAS NO EVIDENCE ESTABLISHING THE DEFENDANT EITHER HAD ACTUAL NOTICE OF A DANGEROUS CONDITION, OR THAT DEFENDANT’S EMPLOYEE CAUSED A DANGEROUS CONDITION IN A SLIP AND FALL CASE--JURY MAY NOT STACK INFERENCES TO DETERMINE ACTUAL KNOWLEDGE OF A DANGEROUS CONDITION AND THE MERE POSSIBILITY OF CAUSATION IS NOT SUFFICIENT TO ESTABLISH LIABILITY.

Publix Super Markets v. Bellaiche, 43 Fla. L. Weekly D673 (Fla. 3rd DCA March 28, 2018):

A couple was shopping at Publix and after arriving at the checkout counter, the wife realized she had forgotten a couple of items that she wanted. She sent her husband to retrieve the items. He decided to pick up a few other things, and also ordered a sandwich from the deli. When he finally returned to the checkout aisle, his wife was sitting in a chair crying.

The husband testified that when he returned, he saw a man with a mop in his hand but did not know what the man was doing. The husband learned that after he had left to go get the forgotten items, his wife left her cart next to the cashier and started walking up a nearby aisle to find him because he was taking so long. While walking up the aisle, the wife plaintiff slipped and fell on some water which she did not see.

The plaintiff asserted that after falling, she subsequently saw a Publix employee with a mop in his hand. However, no one testified that the mop was wet or that the employee had been using it either in that aisle, or anywhere else in the store. Additionally, at the time of the plaintiff’s fall, Publix’s store manager testified that Publix had used dry rayon mops to mop its floors, and not presoaked cotton mops that could create puddles of water. The manager also testified that the only custodian on duty at the time of the incident whose duty it was to mop, was shown only to be using a broom and dust pan before the woman’s fall (on the video surveillance).

Plaintiff suffered a shoulder injury which necessitated surgery. After a second fall unrelated to this case, she was advised to attend physical therapy, but did not do so. Several years after the fall, she had a constrained range of motion and increased pain, but it was not determined whether her increased pain was due to the subsequent fall or the fall at Publix.

The jury returned a verdict for the 70-year-old Plaintiff for $1.5 million. The jury had awarded the woman $60,000 in past medical expenses, $500,000 in past pain and suffering and $1,000,000 in future pain and suffering.

On appeal, Publix claimed the trial court erred in denying its motion for directed verdict regarding its actual knowledge of the dangerous condition that caused the plaintiff’s fall. Pursuant to section 768.0755, the plaintiff was required to prove that Publix had actual or constructive knowledge of the dangerous condition created by a transient foreign substance. However, at trial, the plaintiff maintained she was not proceeding under a theory of constructive knowledge; only on a theory of actual knowledge because “the man standing with the mop” had caused the water to be on the floor.

The court observed that the plaintiff’s testimony was that after she fell, she saw a man holding a mop and that he was standing there and doing nothing more. The court found that this required a stacking of inferences for the jury to determine that defendant had actual knowledge of a dangerous condition, and further opined that a mere possibility of causation is not sufficient to establish liability.

The court found there was no evidence that Publix had actual knowledge of the dangerous condition, which was presumably water on the floor, based on her testimony that her pants were wet. The only evidence that the plaintiff presented to support her position that Publix had actual knowledge, was that she saw a man holding a mop standing in front of her after her fall.

However, the video evidence demonstrated that the only janitor on duty at the time had not been using anything other than a broom and dust pan to clean. Not one person testified that the mop that the man was holding was wet. In fact, the Publix store manager testified that his store uses dry rayon mops to spot mop its floors. At best, the court found a reasonable jury could have only arrived at a verdict for the plaintiff by stacking inferences drawn from purely circumstantial evidence which it is not allowed to do.

Because of the reversal, the motion for remittitur was not addressed by the court.

REMINDER ON HOW TO PRESERVE A DENIAL OF A CAUSE CHALLENGE.

Campbell v. State, 43 Fla. L. Weekly D661 (Fla. 4th DCA March 28, 2018):

While the facts in this criminal case are not pertinent to the rule in the case, for our purposes, the Fourth District reminded us that when a trial court denies a cause challenge on a juror, the procedure to preserve this denial in the hopes of getting a new trial is as follows:

1. The party must then exercise a peremptory challenge on that particular juror;

2. The party must then exhaust all of his or her peremptory challenges; and

3. The party must then request additional challenges to exercise against specifically identified objectionable jurors, and have then denied.

When this procedure is followed, the party has properly preserved his or her right to the denial of the original cause challenge which ultimately results in the seating of a juror objectionable to the party.

FIFTH DISTRICT REVERSES TRIAL JUDGE’S GRANTING OF NEW TRIAL IN A MEDICAL MALPRACTICE CASE.

Hashmi-Alikhan v. Staples, 43 Fla. L. Weekly D685 (Fla. 5th DCA March 29, 2018):

In this medical malpractice case, a 60-year-old man presented to the hospital with a platelet count of 10,000. A platelet count of 10,000 is considered critically low, where a normal count is about 250,000 for a 60-year-old. Such a low platelet count is concerning because the body cannot adequately form blood clots with so few platelets.

The man was diagnosed with a rare blood disorder which was in its acute stages.

One of the defendant doctors ordered that the decedent receive prednisone as well as an intravenous immunoglobulin (IVIG) to treat his condition. A platelet transfusion was not ordered immediately.

When the man began having his IVIG, he experienced an adverse reaction so it was discontinued. The nurse conceded she never administered the ordered prednisone. Approximately 12 ½ hours after presenting at the hospital, the man was found unresponsive and without a pulse, and died later that day. His cause of death was acute cerebral hemorrhage from the condition he was diagnosed with.

Experts on both sides agreed that the IVIG and prednisone took at least 24 hours to take effect and usually longer, and that the man had died within 12 hours. They all agreed that a platelet transfusion would have been the only thing to save his life.

The experts did not agree, however, on the propriety of ordering a platelet transfusion. There are medical risks to ordering it, but the plaintiff’s expert testified that the proper course of action was to order it “stat” immediately upon his admission.

The jury returned a defense verdict. The trial judge agreed with the plaintiff, however, that the verdict was against the manifest weight of the evidence.

The court observed that a trial judge should grant a new trial if the jury has been deceived as to the force and credibility of the evidence or influenced by considerations outside the record, but may not sit as a seventh juror substituting its own verdict for that of the jury and should only intervene when the manifest weight of the evidence dictates such action.

Here, the court found the trial judge had abused his discretion because its reasons for granting the new trial were not supported in the record. The trial court found that the plaintiff’s experts were clearly “more credible” than the defendant’s experts and that plaintiff’s experts clearly “zeroed in” on the relevant facts and applied them to the standards of care, where the defendant’s experts gave more general opinions and were not as knowledgeable on the hematological intricacies of the case.

In reviewing the expert testimony, the Fifth District found there was no support for the trial court’s conclusion that the plaintiff’s expert zeroed in on the relevant facts more than the defendant’s did.

Because the case turned on whether the decedent’s treating physician should have ordered a platelet transfusion, the IVIG and prednisone issues were irrelevant to the cause of the decedent’s death.

The court found that the order granting the new trial was also an abuse of discretion as to the nurse who cared for the decedent because she could not have caused the death since she was involved with the IVIG and prednisone.

Additionally, the court found the court abused its discretion as to the treating physicians. On the critical issue of the platelets, the defendant’s expert testified at length and in significant detail. Contrary to the trial court’s reasons for granting a new trial, this expert applied his opinions, standard of care and causation regarding platelet transfusions directly to the plaintiff’s condition.

The Fifth District also wrote:

We readily acknowledge that [defendant’s] expert hematologist was unable to answer, based on his memory, some detailed factual questions about the case during cross-examination. However, counsel’s questions were either unimportant or irrelevant to the expert’s hematological opinions. While this effort to discredit an expert by testing his memory regarding factual minutia in the case may be a permissible trial tactic, it does not demonstrate that an expert lacks knowledge of the “hematological intricacies of the case.

At most, it demonstrates that appellant’s expert hematologist did not prepare to answer questions that were unnecessary to support his proffered opinions.”

This case presents somewhat of an oddly detailed factual “re-analysis,” and in my humble opinion, veers slightly off course from a strict application of legal standards and deference to the trial judge who found the verdict was against the manifest weight of the evidence.