FLORIDA LAW WEEKLY

VOLUME 43, NUMBER 8

CASES FROM THE WEEK OF FEBRUARY 23, 2018

WHEN A COMPLAINT CONTAINS SUFFICIENT ALLEGATIONS TO ACQUANT THE DEFENDANT WITH THE PLAINTIFF’S CHARGE OF WRONGDOING SO THAT DEFENDANT CAN INTELLIGENTLY ANSWER THE SAME, IT IS ERROR TO DISMISS THE ACTION ON THE GROUND THAT MORE SPECIFIC ALLEGATIONS ARE REQUIRED.

Payas v. Adventist Health System/Sunbelt, 43 Fla. L. Weekly D398 (Fla. 2nd DCA February 16, 2018):

The complaint alleged that the decedent died from complications following surgery performed by a physician at Celebration Health. The first surgery performed by the defendant physician was a paraesophageal hernia repair using a surgical robot. The doctor did the surgery at Celebration Health, which provided the surgical suite, medical staff, and the medical equipment, including the surgical robot. During the surgery, part of the surgical robot detached and became embedded in the man’s esophagus. This led to several other surgeries and multiple complications which ultimately led to the man’s death.

In plaintiff’s complaint, he alleged that the physician was an employee, agent, or apparent agent of Celebration Health and that Celebration Health through the doctor breached its duty to provide the decedent with the prevailing professional standard of care. It then noted the specific breaches which were alleged to have occurred.

In another county, the personal representative alleged that Celebration Health through its nurses and medical staff involved in the first surgery, breached its duty to provide the decedent with the prevailing professional standard of medical care. It also itemized the various alleged breaches.

The trial judge dismissed the complaint, in part because it failed to contain sufficient allegations for causes of action for vicarious liability.

Because the plaintiff alleged that the surgical staff involved in the surgery and the physician were acting as Celebration Health’s employees or agents, and because the plaintiff also alleged in the alternative the necessary elements to show that the surgical staff and the doctor had apparent authority to act on behalf of Celebration Health ((1) a representation to the plaintiff by the defendant; (2) that the patient relied on the representation; and (3) that the patient changed his position as a result of that reliance), the plaintiff sufficiently charged the vicarious liability in both counts.

Where a complaint contains sufficient allegations to acquaint the defendant with the plaintiff’s charge of wrongdoing so that the defendant can intelligently answer the complaint, it is error to dismiss the action on the ground that more specific allegations are required.

The plaintiff also argued that the trial court erred in dismissing count I of his complaint regarding Celebration Health’s non-delegable duty to properly maintain the surgical robot and ensure that it was used with reasonable care. He claimed that Celebration Health’s ownership marketing and maintenance of the surgical robot created a non-delegable duty of reasonable care.

A non-delegable duty may arise out of a statute, regulation, contract or the common law. Under the common law, non-delegable duties typically arise out of the performance of ultra-hazardous activities.

The plaintiff alleged that the hospital owned, maintained and operated the surgical robot, and then marketed itself by promoting the advantages of surgery using it and permitted the surgeon to perform the first surgery using it. The plaintiff alleged that the hospital had a non-delegable duty when it provided surgical services using a dangerous robotic device, and that because the duty was so vitally important to the community it could not shift its responsibility to the independent contractor. Again, the court found that the allegations were sufficient to state a claim for non-delegable duty, expressing no opinion as to whether the plaintiff would be able to prove the claim or any other.

TRIAL COURT ERRED IN DENYING PLAINTIFF’S MOTION FOR ADDITUR ON PAST NON-ECONOMIC DAMAGES OF “0” WHEN JURY AWARDED NOTHING IN THE FACE OF EVIDENCE THAT PLAINTIFF HAS SUFFERED PAST PAIN AND SUFFERING IN HIS SHOULDER AS A RESULT OF THE ACCIDENT WAS UNDISPUTED.

Sukraj v. Phoeung, 43 Fla. L. Weekly D353 (Fla. 2nd DCA February 14, 2018):

The defendant did not rebut that the plaintiff suffered a permanent painful injury to his shoulder, as well as injuries to his neck and back. The jury awarded the plaintiff $53,431.16 is past medical expenses and $50,000 in future medical expenses, but nothing for past or future pain and suffering.

While it is true that when there is conflicting evidence, the weight to be given that evidence is within the province of the jury, in this case, there was no dispute that the plaintiff had suffered past pain and suffering in his shoulder as a result of the accident. Therefore, the verdict awarding him nothing for past non-economic damages was inadequate, and the court reversed that portion of the order denying his motion seeking additur on that basis.

However, because there was conflicting evidence that the plaintiff had suffered past pain and suffering from injuries to his neck and back, or that he would experience future pain and suffering, the court affirmed the denial of the motion on that basis.

On remand, the court ordered that the additur would be limited to the plaintiff’s past pain and suffering for his shoulder injury.

TRIAL COURT’S AWARD OF CONTINGENT FEE MULTIPLIER WITHOUT A FINDING TO WHETHER THE MARKET REQUIRED THE MULTIPLIER, WAS ERROR ON THE FACE OF THE RECORD, SO IT WAS UNNECESSARY TO HAVE A TRANSCRIPT OF THE EVIDENTIARY HEARING FOR REVIEW AND FOR THE COURT TO REVERSE.

Citizens Property Insurance Co. v. Anderson, 43 Fla. L. Weekly D353 (Fla. 2nd DCA February 14, 2018):

Citizens appealed a final judgment awarding attorney’s fees along with a 1.7 contingent fee multiplier to the plaintiff, based on a verdict rendered in the plaintiff’s breach of contract action for failure to pay a sinkhole loss.

Following an evidentiary hearing that was conducted without a court reporter, the trial court awarded a total of $493,246.50 in fees, which included a 1.7 contingent fee multiplier. Citizens argued that the trial court’s failure to make a finding as to whether the market required a contingent fee multiplier pursuant to Quanstrom was an error apparent on the face of the record, and therefore the transcript of the evidentiary hearing was not required, and reversal of the trial court’s order still proper.

It was undisputed that the plaintiff did not testify at the fee hearing. While the court awarded a multiplier, stating that it was based on Rowe and Quanstrom, the only rationale provided by the trial court involved the plaintiff’s chance at prevailing, and a reference to the number of other sinkhole cases that the trial court had tried where the policy holder had won.

However, the order was fundamentally erroneous on its face because it failed to contain a specific finding regarding whether the relevant market required the application of the contingent fee multiplier. Under the unique facts of this case, the court was unable to determine what, if any, evidence was presented on that issue, or even whether the trial court considered it. In this case, there was nothing to indicate that the trial court made oral findings on the issue either and even though there was no transcript, with the combination of the unusual facts of this case (the court itself italicized “this”), that necessitated reversal.

Seems like a bit of a stretch to reverse a final judgment with no hearing transcript, but apparently that was correct under “those unique facts.”

STRIKING A POTENTIAL JUROR BASED ENTIRELY ON A PARTICULAR RELIGIOUS AFFILIATION WITHOUT ANY EVIDENCE THAT RELIGION WOULD PREVENT HER FROM BEING FAIR AND IMPARTIAL WAS ERROR--IT WAS ALSO AN IMPERMISSIBLE RELIGIOUS TEST IN VIOLATION OF BOTH THE STATE AND FEDERAL CONSTITUTIONS.

Pacchiana v. State, 43 Fla. L. Weekly D367 (Fla. 4th DCA February 14, 2018):

In striking a juror, the state argued that the potential juror’s religion provided a genuine and race-neutral reason for the strike. The trial court agreed.

The court reversed finding nothing in the record showed that the potential juror’s religion would prevent her from being fair and impartial.

Additionally, even if the strike had been genuinely based on the juror’s religion, a member of a religion that is a cognizable class, is protected from being struck from a jury based solely on her faith, when there is no evidence that her faith would prevent her from being a fair and impartial juror.

Finally, striking a potential juror based entirely on her particular religious affiliation without any evidence that her religion would prevent her from being fair and impartial, is an impermissible “religious test” and violates both the United States and the Florida Constitutions.

TRIAL COURT PROPERLY EXCLUDED DEFENSE EXPERT AFTER CONDUCTING THOROUGH DAUBERT ANALYSIS--NO ERROR IN DIRECTING A VERDICT IN FAVOR OF THE PLAINTIFF ON THE ISSUE OF COMPARATIVE NEGLIGENCE IN THE FACE OF NO EVIDENCE OF IT--NO ERROR IN DENYING DEFENDANT’S MOTION FOR REMITTITUR IN THE FACE OF THE EVIDENCE--TRIAL COURT DID ERR IN REFUSING TO ENFORCE THE PLAINTIFF’S PROPOSAL FOR SETTLEMENT WHEN TAKEN AS A WHOLE NO AMBIGUITY EXISTED THAT WOULD HAVE AFFECTED THE DEFENDANT’S ABILITY TO MAKE A DECISION.

Sanchez v. Cinque, 43 Fla. L. Weekly D359 (Fla. 4th DCA February 14, 2018):

The plaintiff who suffered from mild rosacea, went to a day spa for a chemical peel, resulting in severe and permanent aggravation to her pre-existing skin condition. The testimony revealed that before the procedure, she completed a form stating she had rosacea. The esthetician performed the chemical peel admitting she did not read the form before performing the procedure. She testified that she had known the plaintiff had rosacea, she would have used a different product or done a test sample.

During the procedure the plaintiff could feel her face burn, and immediately after, her face continued to burn and turn bright red. Her face became blistered, bruised and scabbed, and three years later at the time of trial, was still bumpy and turning red easily from various triggers such as sun and increase in temperatures. The plaintiff is a firefighter paramedic and wearing her bunker gear causes her face to turn red. She gets flare ups anywhere from two times a week to every day, and people often ask if she is ok because her face is red, and ask what is wrong with it.

The plaintiff testified that before the incident her rosacea merely gave her cheeks a rosy appearance, and that she had smooth skin and received compliments all the time, wearing makeup only on special occasions. Two coworkers confirmed that before the procedure she had a beautiful complexion and never wore makeup, and further testified that as a result of the procedure she is no longer confident and outgoing and has become shy and antisocial.

Multiple experts testified for both sides. Before trial, the parties took the deposition of the defendant’s expert dermatologist, who testified that he conducted an independent medical examination 22 months after the chemical peel. He also reviewed plaintiff’s medical records including those of several of the plaintiff’s dermatologist and the records of her plastic surgeon. The defendant’s expert’s examination of the plaintiff lasted only 20 minutes and she was on medication at the time of his exam. He noted mild red patches and mild dilation of the vessels and diagnosed her with mild rosacea because there was not anything pronounced.

On cross, the expert admitted he had not reviewed any photos of the plaintiff before the peel, and conceded it would have been helpful to have known what she looked like before the procedure. Still, he maintained it was not necessary. He said he did not observe any scarring or anything of long-term consequence, and felt it was not important to review photos taken before the procedure because the findings of the exam were so minimal that her prior appearance did not affect his opinion.

Before trial, plaintiff moved in limine to exclude the defendant’s expert’s testimony on the ground that his opinion failed to meet the admissibility requirements under Daubert. She asserted that the expert’s opinion as to causation lacked reliability and an evidentiary foundation because he had no knowledge of her appearance prior to the peel. The trial court excluded the testimony after an extensive hearing.

The court affirmed this ruling. Finding that the trial judge had conducted a thorough Daubert analysis before excluding the testimony, the trial court found that the doctor failed to apply reliable methodology and that his opinions were based on unfounded assumptions that lacked evidentiary value.

The expert rendered an opinion that the chemical peel the defendant applied to the plaintiff’s face did not cause any permanent exacerbation of the plaintiff’s rosacea, but his opinion was based only on a brief medical examination of the plaintiff, her medical records, and photographs taken after the peel. As the trial court pointed out, the expert never reviewed any photographs of the plaintiff taken before the chemical peel to determine her pre-incident condition. Although courts have recognized that a physical exam and review of medical records may qualify as an acceptable and reliable methodology, an expert’s opinion should not, as it was here, be based on assumptions not rooted in any facts actually contained in the medical records relied upon. Therefore, it was proper to exclude the defendant’s expert.

The defendants also sought to reverse the judgment based on the trial court’s entry of a directed verdict on their comparative negligence defense. The trial court properly granted this motion because the defendants offered no evidence to support the defense. The defendants failed to present any evidence that plaintiff’s failure to follow her doctor’s advice contributed to the permanent aggravation of her rosacea, and no medical expert testified that the plaintiff’s alleged failure to seek medical treatment caused or contributed to her injury.

The defendants next argued that the trial court abused its discretion in refusing to grant their motion for remittitur. In this case, the jury had awarded the plaintiff $2,684.22 for past medical expenses, $29,000 for future medical expenses, $23,000 for past pain and suffering, and $760,000 for future pain and suffering for a total damage award of $814,694.22.

Reminding us that the jury is awarded wide latitude in determining the amount of non-economic damages, and the fact that a damage award is large, does not in itself render it excessive, or indicate that the jury was motivated by improper considerations in arriving at the award, the court affirmed.

A verdict should not be declared excessive merely because it is above the amount which the court itself considers a jury should have allowed. The verdict should only be disturbed when it is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate.

The record did not show any impropriety that may have led to the size of the verdict for the plaintiff’s future pain and suffering, nor was there any evidence that the jury was influenced by considerations outside the record. The plaintiff introduced ample evidence of how the effects of the procedure caused physical impairment, disfigurement, mental anguish, inconvenience, aggravation of her rosacea, and a loss of capacity for the enjoyment of life. Her skin is no longer smooth and her rosacea is no longer mild. She has permanent scarring, bumpy skin and regular flare ups in the shape of a burn. In short, the defendants failed to show that the award was so inordinately large as to obvious exceed the maximum limit of a reasonable range within which the jury may operate. The award of future medical expenses was also supported.

After the verdict, the plaintiff moved for fees and costs pursuant to a proposal for settlement. She had offered to settle her case for $175,000. Paragraph 2 of the release however, mistakenly named individuals who were not parties to the litigation. The defendants argued that the proposal was ambiguous because of its reference to unknown non-parties and the trial court agreed.

The plaintiff argued that the trial court erred in denying her motion for fees because the proposal for settlement and release were not ambiguous, and the typographical error in the release was not inconsistent with the proposal. Any possible ambiguity would be resolved by looking at the proposal and release as a whole.

Although a proposal for settlement should be as specific as possible leaving no ambiguities so the recipient can fully evaluate its terms and conditions, this general principal does not make the proposal for settlement invalid when the proposal and release are not ambiguous.

There was no doubt that the plaintiff was offering to settle the case against the defendant for $175,000, and that the release would prevent the defendant from ever being sued again by the plaintiff for the injuries relating to the subject procedure. Read as a whole, the proposal and release did not have any ambiguities that prevented the defendant from fully evaluating the terms and conditions. Although the release contained a reference to non-parties, it was clearly a “cut and paste” typo that did not create an ambiguity that could have reasonably affected the defendant’s decision as to whether to accept the proposal. The pendulum has certainly swung I’d say!

AWARD OF ATTORNEY’S FEES IN AN AMOUNT INCONSISTENT WITH THE PREDICATE FINDINGS AS TO THE REASONABLE NUMBER OF HOURS SPENT AND THE REASONABLE HOURLY RATE WAS REVERSIBLE--HOWEVER; COSTS WERE MORE DISCRETIONARY AND AFFIRMED WITHOUT A TRANSCRIPT.

Water Bridge 5 v. Davis, 43 Fla. L. Weekly D380 (Fla. 4th DCA February 14, 2018):

The prevailing party moved for attorney’s fees attaching a motion and affidavit of fees and costs reflecting an hourly attorney’s fee rate of $195 per hour and 31.7 hours expended for $6,181.50 in fees. In addition, the party sought $1,056.63 in costs.

Even though the court found that 31.7 hours was reasonable, and $195 was a reasonable hourly rate, the trial court awarded only a fraction of the amount as fees, which was error.

There was no transcript of the fee and cost hearing. Therefore, it was unclear as to what the trial court’s ruling at the hearing actually was. Given the hand written and initialed changes in the order, it is likely that the trial court only found $1,500 to be a reasonable amount of attorney’s fees. In this case (again), the court again says it was able to discern the error without the need of a transcript. On its face, the order awarding fees was facially erroneous and the amount of fees in an amount inconsistent with predicate findings was reversible. However, without the transcript, the cost award was not challengeable.

ANY MOTION FOR SUBSTITUTION SATISFIES THE REQUIREMENT UPON A SUGGESTION OF DEATH.

Feller v. R.J. Reynolds, 43 Fla. L. Weekly D392 (Fla. 3rd DCA February 14, 2018):

In this tobacco case, a man filed suit on his behalf, and while the case was pending, died. His counsel notified the tobacco companies of his death. An email reflected that the parties acknowledged that a suggestion of death had not yet been filed, and agreed that the depositions of the man’s son and wife would be rescheduled following the appointment of a personal representative.

Almost a year following the man’s death, the trial court issued a notice of lack of prosecution and set a hearing. In response, plaintiff’s counsel filed a notice of record activity advising about the difficulty with getting the estate open.

Almost a year after the email announcing the death, the wife who had been the proposed personal representative filed a motion to substitute herself as party and to amend the complaint.

In looking at the unique circumstances of the case, the court found that the initial motion for substitution by plaintiff’s counsel served and filed with the clerk one week after the trial issued the notice of lack of prosecution constituted a suggestion of death upon the record because it contained a “statement of the fact of the death.” Nothing in the rule requires a sufficient and formal suggestion of death upon the record, and the motion for substitution satisfied the requirement that the death be suggested on the record under rule 1.260(a)(1), because it was specifically filed pursuant to that rule and stated that the plaintiff had died on April 30, 2015 and further stated that as a result, his wife was seeking to be appointed the personal representative.

Additionally, even though the decedent’s wife had not actually been appointed the personal representative at the time she filed a motion for substitution, she was still a “proper party” within the language of rule 1.260(a)(1). The rule does not require that the motion for substitution actually be made by the “proper party” to be substituted; only that it be made 90 days after the death is suggested on the record.

ABUSE OF DISCRETION TO DENY INSURER’S MOTION FOR ATTORNEY’S FEES PURSUANT TO OFFER OF JUDGMENT STATUTE BASED ON NOMINAL PROPOSAL--INSURER HAD REASONABLE BASIS AT THE TIME OF THE PROPOSAL TO CONCLUDE THAT ITS EXPOSURE WAS NOMINAL.

Mount Vernon Fire Insurance Co. v. New Moon Management, 43 Fla. L. Weekly D395 (Fla. 3rd DCA February 14, 2018).

DEPARTURE FROM THE ESSENTIAL REQUIREMENTS OF LAW TO DETERMINE THAT PARTIES’ AGREEMENT TO “ANSWER” DISCOVERY REQUESTS CONSTITUTED EXPRESS WAIVER OF ALL PRIVILEGES.

Newman v. Hirst, 43 Fla. L. Weekly D402 (Fla. 5th DCA February 16, 2018):

When a witness agrees to “answer” discovery requests, this does not constitute an express waiver of all privileges.