The Week in Torts – Cases from the Week of September 14, 2018

FLORIDA LAW WEEKLY
VOLUME 43, NUMBER 37
CASES FROM THE WEEK OF SEPTEMBER 14, 2018

TRIAL COURT DID NOT DEPART FROM ESSENTIAL REQUIREMENTS OF LAW IN DISQUALIFYING LAW FIRM REPRESENTING PLAINTIFF, WHERE AN ATTORNEY IN THAT FIRM HAD PREVIOUSLY REPRESENTED THE DEFENDANT TOBACCO COMPANY WHILE WORKING FOR A DIFFERENT FIRM–EVEN THE TERMINATION OF THAT ATTORNEY IN THIS CASE DID NOT CURE THE CONFLICT IN THIS CASE.

Russ v. Philip Morris, 43 Fla. L. Weekly D2042 (Fla. 1^st DCA September 5, 2018):

An attorney working for the plaintiff’s law firm had previously worked for a firm representing Philip Morris. Having been disqualified on another case, plaintiff’s law firm then fired the attorney.

Philip Morris argued that the firing was too little, too late. The court observed that the issue of the firm’s disqualification was a complicated one, and did not turn on clearly-established legal principles.

The court also observed that the law at one time had allowed formerly conflicted law firms to represent new clients after the conflicted attorney left the firm. However, it likened the un-imputing of a conflict to the un-ringing of a bell, un-scrambling of an omelet and/or pushing toothpaste back in the tube.

In this case, because there were no clearly-established principles of law governing, the First District denied plaintiff’s petition, which sought to challenge the trial judge’s disqualification of her lawyers.

The court compared its ruling to the Fourth District’s decision in Baleban v. Philip Morris, where the Fourth District held that once the disqualified attorney left the firm, the Rules of Professional Conduct did allow the formerly conflicted law firm to continue with its representation in some circumstances (that case was remanded for an evidentiary hearing).

The court further observed that the cases illustrate that there is not yet any clearly-established principle of law that would have compelled the trial court to deny the disqualification motion, which made certiorari relief unavailable.

MEDICAL MALPRACTICE JURY INSTRUCTION 402.4 EDITED BY THE SUPREME COURT.

In Re: Standard Jury Instructions in Civil Cases – Report No. 18-01, 43 Fla. L. Weekly S362 (Fla. September 13, 2018):

The court removed the second paragraph from this jury instruction which–according to it–left too much room for interpretation.

The court also revised the instruction 402.9 to include a few extra words to make it clear that the labels used by the parties (agent, employee, etc.) do not dictate issues of vicarious liability.

ON REHEARING, FOURTH DISTRICT REVERSES FOR A NEW TRIAL IN A CASE FINDING RESPONSIBILITY AGAINST A PHYSICIAN FOR NEGLIGENT SUPERVISION AGAINST A DETOX FACILITY.

Defilippo v. Curtin, 43 Fla. L. Weekly D2063 (Fla. 4^th DCA September 5, 2018):

A man went into a detox facility and died there the same night. The physician who served as the detox facility’s medical director supervised approximately eight nurse practitioners (ARNPs) at five to seven different facilities.

The patient arrived at approximately 8:00 p.m., and the ARNP was at the facility. The staff told the ARNP that the patient had track marks consistent with intravenous drug use, and later that evening when she checked on the patient he was sitting upright, speaking and his vital signs were improving. The ARNP’s clinical assessment was that the patient was experiencing withdrawal. Her plan was to begin the detox process the next morning.

The ARNP did not contact the physician for consultation, rendering the doctor unaware of the patient’s existence.

When she left the facility around 11:00 p.m., the ARNP instructed the facility’s staff to do a bed-check every 15 minutes and to take his vital signs every 30 minutes. However, sometime in the early hours of the morning the patient died. That fact was not discovered until the staff checked him hours later.

The patient’s estate sued the physician, the ARNP and the detox facility (settling with the latter two). The physician moved for partial summary judgment, arguing that he owed no duty of care under section 464.012, because ARNPs are the subject of that statute. That motion was denied.

Before trial, the doctor moved in limine to exclude evidence of having exceeded the maximum number of offices he could supervise under section 458.348. The trial court denied that motion as well.

During closing argument, the plaintiff argued that the physician should be held liable because he violated duties under both of those sections.

The Fourth District concluded the trial court erred in two respects: (1) by precluding the doctor from testifying that he was not at the detox facility when the patient was admitted, that he was not notified of the patient’s existence until after the patient died; and (2) by instructing the jury that the physician’s alleged violation of section 458.348 was evidence of negligence, because the estate did not present any evidence that the violation caused or contributed to his death.

The court focused on the definition of relevancy, defining it as evidence tending to prove or disprove a material fact, and then finding that the physician’s absence from the facility and his lack of knowledge was relevant to a key point in the case.

The court also found error in the giving of the jury instruction based on the statute. There was no evidence to support that the violation of 458.348 caused or contributed to the patient’s death. The court noted that error was not harmless, because the trial court gave the jury instruction, therefore creating a reasonable possibility that the jury who believed the estate did not prove its negligent supervision claim may have nevertheless have held the physician liable simply because he violated that section.

SOUTH FLORIDA FAIR ENTITLED TO LIMITED SOVEREIGN IMMUNITY.

South Florida Fair and Palm Beach County Expositions, Inc. v. Joseph, 43 Fla. L. Weekly D2078 (Fla. 4^th DCA September 5, 2018):

A man was attacked by a group of teenagers at the South Florida Fair while waiting with his children to ride the bumper cars. He sued the Fair and its operator, and also served a notice and official claim pursuant to section 768.28 regarding waiver of sovereign immunity in tort actions.

The Fair moved for partial summary judgment. It claimed limited sovereign immunity under section 768.28(5). The trial court, however, denied the motion, concluding that the state did not have the sufficient structural power over the South Florida Fair to render it an instrumentality of the state.

The court ruled that once a Fair association is created, the statute controls its core purpose and activities. The legislature effectuated the limited waiver of sovereign immunity for Fairs in section 768.28, and there was no dispute that the Florida State Fair was entitled to limited sovereign immunity as is a fair association under section 16.19. Thus it was error to deny summary judgment on that issue.