FLORIDA LAW WEEKLY

VOLUME 43, NUMBER 30

CASES FROM THE WEEK OF JULY 27, 2018

DISMISSAL OF COMPLAINT TOO SEVERE A SANCTION FOR THE PLAINTIFF’S ATTORNEY’S FAILURE TO COMPLY WITH COURT ORDERS, WHEN THE PLAINTIFF WAS NOT PERSONALLY INVOLVED WITH THOSE VIOLATIONS AND THERE WERE MITIGATING CIRCUMSTANCES REGARDING THE NON-COMPLIANCE.

Gordon v. Gatlin Common Property Owners Association, Inc., 43 Fla. L. Weekly D1620 (Fla. 4th DCA July 18, 2018):

In June 2012, the plaintiff filed her personal injury complaint against various defendants. After fifteen months of discovery, she amended the complaint in September 2013 to add a defendant. The plaintiff alleged that the new defendant owned, leased, operated, possessed, controlled and/or maintained the premises where she had slipped and fell in a hole.

In December 2014, the plaintiff filed a notice of trial indicating the case was at issue and ready for trial. The trial court entered an order setting calendar call for a non-jury trial on a March trial docket. In early February, the trial court entered an amended order admonishing that any failure to comply with the pretrial order could be reported by filing a suggestion of non-compliance.

Defendant filed an ex parte motion to compel the plaintiff to answer interrogatories that were served four months earlier. The defendant also filed the suggestion of non-compliance with the pretrial order alleging several of the plaintiff’s missteps.

The plaintiff did not respond to the order on the motion to compel, and when the trial court conducted the hearing on the amended suggestion of non-compliance, plaintiff’s counsel did not appear. Defendant’s counsel advised that the plaintiff was experiencing some difficulties because an attorney from her law firm who was handling the plaintiff’s case at the time of the pretrial order, had left the firm. Defendant’s counsel complained that the plaintiff’s failure to file a witness or exhibit list prevented defendant from completing preparation for trial. Defendant then moved to strike the pleadings and enter judgment in its favor.

The trial court granted the motion to strike, dismissed the case and reserved ruling on sanctions. The Fourth District reversed initially, because the court failed to undertake a Kozel analysis.

On remand, the trial judge did engage in that analysis, and then still dismissed the case, even though the judge acknowledged that she considered less severe sanctions but determined that those options could not have cured the plaintiff’s counsel’s failure to comply with the court’s orders or the prejudice to the defendants.

The Fourth District reversed a second time. It found that the dismissal of the plaintiff’s lawsuit was unwarranted, and that a lesser sanction should have been imposed.

Based on the record where the trial court expressly found that there were no facts showing that the plaintiff was personally involved in any of the discovery violations, and that plaintiff’s counsel had not been previously sanctioned in the case, the court still concluded that dismissal was appropriate based in part on what the court found were plaintiff’s counsel’s repetition of willful, deliberate and contumacious acts and disregard to the court’s orders.

The trial judge did not take into consideration, however, the mitigating circumstances surrounding the plaintiff’s counsel’s non-compliance with portions of the pretrial order. Such circumstances were based on the apparent theft and deletion of files by former attorneys of the law firm, which caused considerable disruption and disarray of the law firm’s office and operations. Moreover, the record did not show a protracted history of discovery abuses, clear prejudice to the defendant, evidence of significant problems with judicial administration or other circumstances to warrant the ultimate sanction of dismissal.

Based on the circumstances of the case, the Fourth District found that a less draconian sanction should have been imposed, and that any prejudice to the defendant could have been cured through an award of fees, a continuance of the trial, an enlargement of time to file the witness and exhibit lists or something else.

TRIAL COURT PROPERLY DISMISSED COMPLAINT WHERE THERE WAS A FAILURE TO COMPLY WITH STATUTORY PRESUIT REQUIREMENTS FOR INVESTIGATION, CORROBORATION AND WRITTEN NOTICE, AND NO REASONABLE BASIS FOR CLAIMS OF MEDICAL MALPRACTICE AGAINST DEFENDANTS--BECAUSE STATUTE OF LIMITATIONS HAD ALREADY RUN, DISMISSAL WITH PREJUDICE WAS PROPER.

Manzaro v. HCA, Inc., 43 Fla. L. Weekly D1626 (Fla. 3rd DCA July 18, 2018):

The decedent died on April 23, 2013. The death certificate listed the manner of death as “natural,” and the cause as “three pre-existing medical conditions arising three months, six months and six years before her death.” An autopsy listed the cause of death as “undetermined.”

Although the death certificate and autopsy did not suggest medical malpractice or a violent crime, the complaint against 22 defendants alleged that the decedent “mysteriously and suspiciously died,” and that her death was a result of her murder or manslaughter, hospital homicide or attempted involuntary euthanasia.

Two of the doctor defendants moved to dismiss the complaint. Plaintiff had mailed one of the doctors a notice of intent to initiate litigation on April 13, 2015, but it contained no allegations as to any wrongful acts or omissions by that doctor, and did not contain an expert affidavit.

The plaintiff’s notice of intent mailed to the other doctor was returned unclaimed and there was no indication of any subsequent attempt or successful delivery of the presuit notice to the doctor.

Those circumstances, coupled with the passage of the two-year statute of limitations applicable to the claims against them, culminated in an order dismissing the complaint with prejudice as to each of them.

The plaintiff also served notice of intent on HCA (the Hospital) on April 4, 2015, contending that his obligation to submit a verified written medical expert opinion was inapplicable, because HCA failed to provide relevant medical records within ten days as required by section 766.204(1). The sole attachment, however, was the autopsy stating that the decedent’s cause of death was undetermined.

The trial court conducted a two-hour hearing to afford the plaintiff an opportunity to demonstrate that he conducted a good faith investigation, and that there was a reasonable basis for the claims in the complaint. However, the court concluded that the plaintiff failed to fulfill those requirements.

In analyzing whether the complaint dismissed with prejudice was proper, the court said it assumed that all of the factual allegations were true, and construed all reasonable inferences in the plaintiff’s failure.

However, in cases involving allegations of medical malpractice by health care providers, there is an additional threshold, set forth by the objective statutory requirements within chapter 766.

In this case, the court properly concluded there was no reasonable basis for the plaintiff’s claims of medical malpractice against the eight defendants, and that there was a failure to comply with the statutory presuit requirements for investigation and corroboration of written notice.

Finally, the trial court’s conclusion that the complaint lacked any cognizable allegations to establish a tolling of the statute of limitations further warranted the dismissal with prejudice.

CLAIM OR DEFENSE NOT SUPPORTED BY MATERIAL FACTS--MOTION FOR SANCTIONS SERVED PURSUANT TO SECTION 57.105(4) MUST BE SERVED IN STRICT COMPLIANCE WITH RULE OF JUDICIAL ADMINISTRATION 2.516, EVEN THOUGH THE MOTION ITSELF DOES NOT GET FILED UNTIL AFTER THE EXPIRATION OF THE SAFE HARBOR PERIOD--CONFLICT CERTIFIED.

Goersch v. City of Satellite Beach, 43 Fla. L. Weekly D1629 (Fla. 5th DCA July 20, 2018):

While the Second District recently held that strict compliance with Rule 2.516 was not necessary when it came to a 57.105 motion, the Fifth District certified conflict on electronic service of such a motion.

The Fifth District began with F.R.Civ.Pro. 1.080 as a starting point. That rule says that pleadings, orders and “every other document filed in the action” must be served in conformance with rule 2.516. Thus, pursuant to that rule, all documents must be served electronically, including the preliminary motion for section 57.105(4) fees.

In Isla Blue Dev. v. Moore, 223 So.3d 1097, 1099 (Fla. 2nd DCA 2017), the Second District found that because section 57.105 motions and proposals for settlement share a similar characteristic (that neither are filed contemporaneously with the initial service), that rule 2.516(a) which requires “contemporaneous” filings, does not apply to those kinds of filings.

The Fifth District rejected the Second District’s reasoning. It found that the plain language of rule 2.516 led it to the inescapable conclusion that the timing of the “filing” is of no consequence to the requirement of service under the rule. The rule says “filed”--not immediately filed or contemporaneously filed--and thus, because there is no other rule or statute that governs the procedure for service of documents, the court believed that revised rule 1.080 which incorporates rule 2.516 applies to the service of any document regardless of the timing of the filing.