FLORIDA LAW WEEKLY

VOLUME 44, NUMBER 13

CASES FROM THE WEEK OF MARCH 29, 2019

WHILE TESTIMONY ADMITTED FOR THE EFFECT ON THE LISTENER AND NOT FOR THE TRUTH WAS NOT HEARSAY, IT WAS MORE PREJUDICIAL THAN PROBATIVE UNDER THE SPECIFIC FACTS OF THIS CASE AND SHOULD HAVE BEEN EXCLUDED.

Phillip Morris v. Gloger, 44 Fla. L. Weekly D744 (Fla. 3rd DCA March 20, 2019):

The plaintiff in a tobacco case was allowed to testify that his wife’s initial treating physicians--who were both oncologists and did not testify at trial--told the plaintiffs that the wife had primary lung cancer caused by smoking cigarettes.

Before the trial, the tobacco defendant filed a motion in limine seeking to exclude as hearsay any out of court statements made to the plaintiffs by non-testifying doctors about the origin and progression of the decedent’s lung cancer. Specifically, the tobacco defendant sought to preclude the surviving husband from testifying that the two oncologists who initially treated his deceased wife for her cancer, had told them that she had lung cancer caused by smoking cigarettes.

The trial court denied the tobacco defendant’s motion in limine, finding that the oncologists’ statements to the plaintiffs were not hearsay, because the statements were being offered not for their truth (i.e., whether the decedent had lung cancer) but to show the effect on the listener (i.e., the emotional impact her diagnosis with cancer had on her surviving husband). The trial court held that the subject statements were relevant to support the husband’s damages claims for pain and suffering, specifically as to when his damages started to flow.

When defense counsel requested that the trial court give a limiting instruction to the jury that the oncologists’ statements be considered only for the explicit purpose of the effect they had on the listener for the damages, the trial court initially denied the request but then gave a minimally limiting instruction when the husband testified about what the oncologists told him and his deceased wife.

Defendant filed a legal memorandum arguing that a limiting instruction would be insufficient, arguing that the proper remedy was to substitute the word “terminal” for the word “lung” when the plaintiff testified about the conversations with the doctors. The lower court denied the tobacco defendant’s request, instead stating its intention to give a limiting instruction (to limit the effect of non-testifying witnesses from giving backdoor evidence in support of plaintiff’s claims).

The trial court gave a limiting instruction, and the plaintiff testified that doctors at the Moffitt Cancer Center told him and his wife that her lung cancer was from smoking.

The court began its analysis by deciding whether the statements were proper because they were relevant to the effect on the listener and therefore not hearsay at all, or whether they were hearsay. Because the subject testimony was not offered to prove the truth of what was told to the plaintiff by the non-testifying doctors, i.e., that his wife’s cancer originated in her lung, it was not hearsay and because such evidence was relevant to a material issue in the case (the plaintiff’s damages) it was admissible.

However, even if these statements were not hearsay, they were subject to the limitation of section 90.403. Before the plaintiff testified about the conversation with the doctors, the trial court gave the jury a limiting instruction directing it not to consider what the doctors told the plaintiff about his wife’s diagnosis for the truth of the matter asserted, just the effect the information had on the husband.

While the court recognized that any prejudicial effect can generally be limited by giving instructions cautioning a jury as to the limited use of the testimony, the court concluded that under the particular circumstances of the case, the limiting instruction was not effective to assuage the significant prejudice to the tobacco defendants of the jury’s hearing that the doctors’ testimony--neither of whom testified at trial--had diagnosed the plaintiff’s wife with primary lung cancer.

The origin of the cancer was the critical fact issue presented to the jury during phase one of the jury trial, and the second amended complaint had alleged that the decedent’s cancer originated in her lungs which if true, would qualify her as a member of the Engle class. The tobacco defendants maintained that the decedent was not an Engle class member because her cancer allegedly originated in her thymus gland.

It is well-settled that expert witnesses cannot testify on direct that the expert relied on consultations with colleagues or other experts in formulating their opinions (Linn v. Fossum). The testimony is inadmissible because it impermissibly permits the testifying experts to bolster their opinions and service conduits for the opinions of others who are not subject to cross-examination.

By allowing the plaintiff to testify about these doctors and that they had “also” diagnosed his wife with primary lung cancer, the trial court unwittingly provided the estate the means of circumventing the court’s limitation on the presentation of cumulative expert testimony on the critical fact issue presented in phase one of the trial, and bolstering the testimony of the plaintiff’s expert.

While the statements were not hearsay, they were subject to being limited under section 90.403 because they were much more prejudicial than probative. The court found the trial court abused its discretion by failing to limit the plaintiff’s testimony in a manner that would have eliminated the substantial prejudice to the tobacco defendants without altering the jury’s understanding of the testimony or diminishing the relevance for which it was offered. Since the error was not harmless, it required a new trial.

TRIAL COURT ERRED IN DISMISSING COMPLAINT WITH PREJUDICE FOR LACK OF JURISDICTION WITHOUT PERMITTING JURISDICTIONAL DISCOVERY, WHERE PLAINTIFFS CARRIED INITIAL BURDEN BY PLEADING LONG ARM JURISDICTION AND PARTIES’ AFFIDAVITS CONFLICTED ON THE ISSUE.

Rizack v. Signature Bank, 44 Fla. L. Weekly D773 (Fla. 4th DCA March 20, 2019).

THE RECORD DOES NOT COMPEL A CONCLUSION THAT THE TRIAL COURT FAILED TO CONDUCT A GENUINENESS ANALYSIS IN APPLYING MELBOURNE OR THAT DEFENSE CARRIED ITS BURDEN TO DEMONSTRATE PRETEXT OR PURPOSEFUL DISCRIMINATION--OBJECTION MADE NEVER SPECIFIED JUROR’S RACE, DEFENDANT NEVER CONTENDED STATE’S REASONS WERE PRETEXTUAL, AND NOTHING IN THE RECORD TO SUGGEST DISPARATE OR “NON-RACE NEUTRAL” TREATMENT.

Helfrich v. State, 44 Fla. L. Weekly D748 (Fla. 3rd DCA March 20, 2019):

Melbourne holds that throughout all three steps of a challenge (that a peremptory strike is not race-neutral) the burden on persuasion never leaves the opponent of the strike to prove purposeful discrimination.

While the colloquy in this case was less than precise, the court could not say that the trial court abused its discretion or that the defense carried its burden to demonstrate pretext or anything approaching “purposeful discrimination.” One judge dissented disagreeing.

ERROR TO PERMIT ARGUMENT SUGGESTING THAT TROOPER DID NOT ISSUE A CITATION TO DEFENDANT--ESPECIALLY BECAUSE DEFENDANT OBTAINED ORDERS IN LIMINE PROHIBITING REFERENCE TO TRAFFIC CITATION AND CONTENTS OF ACCIDENT REPORT--DEFENDANT FAILED TO SHOW ERROR WAS HARMLESS.

Rierson v. Devau, 44 Fla. L. Weekly D752 (Fla. 3rd DCA March 20, 2019):

The plaintiff suffered catastrophic injuries after she was struck by the defendant’s vehicle while trying to traverse a three-lane roadway. The impact from defendant’s vehicle propelled plaintiff into another lane of traffic where she was struck a second time.

The FHP trooper concluded that defendant was at fault for failing to avoid the accident under section 316.130(15). The defendant pled nolo contendere to the citation and was later adjudicated guilty.

The defendant obtained orders in limine prohibiting any and all references to the traffic citation and the contents of the report. At trial, defendant contested both liability and damages.

Plaintiff relied heavily on the trooper’s testimony, but during closing argument, defense counsel told the jury that the trooper had not rendered a single opinion about fault in the accident (a specific and contemporaneous objection was overruled by the trial court). Following deliberations, the jury returned a defense verdict.

The court initially concluded that the statements defense counsel made in closing were not reasonable inferences from the evidence because clearly the defendant was cited for the accident and defense counsel made it appear as though he had not been. To show that an error was harmless, the beneficiary of the error must then prove that there is no reasonable possibility that the error contributed to the verdict.

In this case, where liability was vigorously disputed, plaintiff was rendered comatose and unable to communicate immediately following accident and the trooper was then the sole witness who could advance her theory of the case, the intimation that the trooper did not find fault or any assignment of negligence with the defendant was not only untrue, but improperly implied the imprimatur of a perceived objective authority on the defendant’s conduct, effectively divesting the jury of the need to conduct an independent analysis of this dispositive preliminary issue.

Because the prejudice resulting from those statements was further compounded by the orders in limine that defendants attained, the case had to be reversed for a new trial.

It is axiomatic that it is improper for a lawyer who has successfully excluded evidence to seek an advantage before the jury because the evidence was not presented. Thus it was an abuse of discretion for the trial court to deny plaintiff’s motion for a new trial.

ISSUES OF FACT PRECLUDED SUMMARY JUDGMENT FOR WAL-MART WHEN A PLAINTIFF TRIPPED OVER A RAISED MANHOLE IN THE PARKING LOT--DANGEROUSNESS OF MANHOLE REMAINED AN ISSUE OF FACT THAT WAS NOT CONCLUSIVELY DETERMINED WHERE THE PLAINTIFF’S EXPERTS SUPPORTED THE CLAIM THAT THE MANHOLE WAS DANGEROUS BECAUSE IT WAS RAISED AND ELEVATED HIGHER THAN PERMITTED BY CODE AND EXCESSIVE ELEVATION RENDERED IT A FALL HAZARD.

Cruz v. Wal-Mart Stores East, 44 Fla. L. Weekly D765 (Fla. 4th DCA March 20, 2019):

A man tripped and fell over a raised manhole cover in a Wal-Mart parking lot sustaining serious head injuries. The circuit court granted Wal-Mart’s motion for summary judgment without elaboration, which the Fourth District reversed because of disputed issues of fact.

Wal-Mart’s motion for summary judgment raised several issues. First, it contended the store did not breach its duty to maintain the premises in a reasonably safe condition, because the manhole was inspected and improved by various government entities. Second, the store argued that the customer’s accident was not foreseeable because there were no prior accidents involving the manhole. Third, the store contended the manhole was open and obvious and it had no duty to warn the customer. Fourth, the store asserted the customer was the sole and proximate cause of this accident because the manhole was open and obvious and the customer failed to look where he was going.

The plaintiffs responded attaching excerpts from seven depositions along with three photographs of the fall captured by the store’s security camera. The plaintiff argued that the manhole was never determined to be safe and that inspections by the governmental entities were made to determine if the manhole was built according to specifications--there was no evidence that the manhole was ever inspected for safety.

The plaintiff also argued there were genuine issues of fact as to whether the store kept the premises in a safe condition, arguing that the store’s safety checks did not resolve the factual issue because there were issues as to the thoroughness of the checks and the competency of the employees performing them. Third, there were genuine issues of fact as to whether the store should have known of the dangerous condition of the manhole in light of the elevated nature and nonconformance with the applicable codes. Fourth, the manhole itself, combined with the area around the manhole, was a dangerous condition and finally, the danger of the manhole was not open and obvious.

One of plaintiffs’ deposition excerpts was of their expert civil engineer, who testified that manholes are required to be flush with the pavement and that this was in violation of Broward County code. The expert also testified that because of the elevation and uneven surface, the manhole did not comply with Broward codes either. He opined that the customer tripped on the manhole due to an improperly maintained paving surface and that there was insufficient lighting combined with traffic conditions that caused a distraction contributing to the fall.

The plaintiffs also attached a deposition of a second expert who said the store did not properly maintain the manhole, leaving a gap between the top of the surface and the pavement making it a tripping hazard.

Despite all of this, the circuit court granted defendant’s motion for summary judgment without explanation, which was error.

On this record, the court found there were issues of fact and reversed the summary judgment.

FOURTH DISTRICT CERTIFIES QUESTION REGARDING LEGAL MALPRACTICE ACTION INVOLVING INSURER AND ITS ATTORNEY TO THE FLORIDA SUPREME COURT.

Arch Insurance Co. v. Kubicki Draper, 44 Fla. L. Weekly D766 (Fla. 4th DCA March 20, 2019):

Back in January, the court affirmed the circuit court’s final judgment granting the law firm defendant’s motion for summary judgment against the plaintiff insurer on the basis that the insurer lacked standing to sue the law firm because the insurer is not in privity with the law firm (the law firm represents the client), and therefore the insurer lacks standing to sue the law firm for legal malpractice.

The court, upon the plaintiff’s counsel’s request, certified the following question to the supreme court:

Whether an insurer has standing to maintain a malpractice action against counsel hired to represent the insured where the insurer has a duty to defend.

NO ERROR IN TRIAL COURT COMPELLING DEFENDANT TO DISCLOSE DOCUMENTS CONCERNING FINANCIAL ARRANGEMENTS BETWEEN DEFENDANT’S ATTORNEY, INSURANCE COMPANY AND RETAINED EXPERT WITNESS--COURT CERTIFIED THE QUESTION ABOUT WHETHER WORLEY ALSO APPLIES TO NON-PARTY DEFENSE FIRMS FROM HAVING TO DISCLOSE FINANCIAL RELATIONSHIPS WITH EXPERTS.

Dhanraj v. Garcia, 44 Fla. L. Weekly D785 (Fla. 5th DCA March 22, 2019):

As it did in its decision in Younkin v. Blackwelder back in February, because the court found that the defendant had raised a compelling argument that the law in this area is not being applied even-handedly to all litigants, the court certified the following question to the Florida Supreme Court:

Whether the analysis and decision in Worley v. Central Florida Young Men’s Christian Association, 228 So.3d 18 (Fla. 2017) should also apply to preclude a defense law firm that is not a party to the litigation from having to disclose its financial relationship with experts that it retains for purposes of litigation including those that perform comprehensive medical examinations under Rule of Civil Procedure 1.360?