Is a video the "be all end all"?

FLORIDA LAW WEEKLY

VOLUME 44, NUMBER 29

CASES FROM THE WEEK OF JULY 19, 2019

ERRED TO GRANT SUMMARY JUDGMENT IN A REAR-END COLLISION CASE.

Lopez v. Wilson Art, LLC and Rosario, 44 Fla. L. Weekly D1808 (Fla. 5th DCA July 12, 2019):

In this rear-end case plaintiff appealed entry of final summary judgment in favor of the defendant who rear-ended him. The defendant was driving a truck, and the plaintiff crashed into the rear of it, pushing it into another vehicle. The plaintiff died as a result of his injuries.

The defendant testified that he traveled in the center of the three eastbound lanes, and began to slow down when he felt the impact of the plaintiff’s vehicle. He said that his truck was equipped with a forward-facing dashboard camera showing that the defendant’s truck came to a stop, and then experienced a large impact.

When responding to the defendant’s motion for summary judgment, the plaintiff presented the deposition of a witness to the collision who testified that the truck suddenly changed lanes just prior to the impact. The defendants argued that because the plaintiff rear-ended the truck, he is presumed negligent under Florida law. Plaintiff responded that the expert’s affidavit created a genuine issue of material fact as to whether defendant kept his vehicle in one lane, and that this conflict in the evidence created questions of fact. The expert concluded in his affidavit that part of the truck was in the right lane of the eastbound side when the collision occurred.

The trial court erred in concluding that the video evidence “blatantly contradicted” the eyewitness testimony and opinion of the plaintiff’s expert. While the video evidence showing that the driving pattern was compelling and directly contradictory to the plaintiff’s evidence, the trial court completely negated the plaintiff’s evidence based on its perceived strength of the video evidence improperly encroaching on the jury’s province.

Still, in light of technological advancements that increase the likelihood of video and visual evidence being more frequently used, the Fifth District certified a question as one of great public importance, regarding whether there should be an exception to summary judgment standards when video evidence completely negates or refutes other evidence.

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EVIDENCE PROPERLY EXCLUDED UNDER SECTION 90.403--DENIAL OF DEFENDANT’S MOTION FOR REMITTITUR ALSO AFFIRMED.

R-L Sales, LLC v. Hoce, 44 Fla. L. Weekly D1753 (Fla. 1st DCA July 09, 2019):

After an e-cigarette exploded in the plaintiff’s mouth and damaged several of his teeth, he sued the company that manufactured and sold it.

The defendant who sold the lithium-ion battery used in the e-cigarette was the only remaining defendant at the time of trial, and the jury found it 100% responsible for the injury. It then awarded the plaintiff $48,000.00 in medical expenses and $2 million for his pain, suffering, disfigurement, inconvenience, etc. The trial judge denied defendant’s motion for remittitur.

At the trial, the defendants sought to introduce evidence that the plaintiff had been a meth user to show that his need for extensive restorative dental work was largely attributable to that, and not to the e-cigarette explosion. The trial court excluded the evidence as both irrelevant, and more prejudicial than probative.

The appellate court agreed that although the fact the plaintiff had already had extensive dental problems was relevant to the jury’s determination of the extent of damages attributable to the explosion, the cause of the preexisting dental problems – whether it was meth, too many sugary drinks, or poor dental hygiene – was not relevant to the issue the jury had to decide. Additionally, because evidence of a legal drug is inherently prejudicial even if the preexisting cause has some marginal relevance, the probative value was outweighed substantially by the prejudicial effect.

EVEN IF IT IS A PLANNING LEVEL DECISION, IF THE CITY CREATES A DANGEROUS CONDITION OF WHICH IT KNEW OR SHOULD HAVE KNOWN ABOUT, IT CAN BE LIABLE, AND SOVEREIGN IMMUNITY DOES NOT APPLY.

Bejarano v. City of Coral Gables, 44 Fla. L. Weekly D1769 (Fla. 3rd DCA July 10, 2019):

A crash happened between an SUV and the plaintiff motorcyclist. The defendant driver testified that his view of oncoming traffic was obstructed by recently planted palm trees with wooden supports at their base, located at the end of the median.

The plaintiff sued the City, claiming it was negligent, and that the design and placement of those palm trees obstructed the driver’s view of oncoming traffic.

The City moved for summary judgment based on sovereign immunity, claiming the placement of those trees was a planning decision. Plaintiff argued it was an operational-level decision. The trial court granted summary judgment.

The court reversed, finding issues of fact existed about whether the City had created a dangerous condition that it knew or should have known about, based on the conflicting evidence submitted by the parties. Even if this was a planning-level decision, if the City created a dangerous condition amounting to a trap, there would no longer be sovereign immunity.

Both parties submitted evidence in support of their positions, and plaintiff’s expert affidavit stated the palm trees violated the applicable light of sign visibility standards, and because the condition restricted the driver’s view, it created a dangerous condition.

TRIAL COURT ABUSED DISCRETION IN ALLOWING LATE TESTIMONY AFTER PLAINTIFF’S INTENTIONAL NON-COMPLIANCE WITH THE PRE-TRIAL DISCOVERY ORDER.

Gurin Gold, LLC v. Dixon, 44 Fla. L. Weekly D1789 (Fla. 4th DCA July 10, 2019):

The court began its opinion referencing a 1993 decision where it had first noted that civil trials are not to be ambushes and that it would not tolerate such tactics.

In this case, plaintiff’s expert testified regarding the plaintiff’s MRI exam from 2014 during his deposition. The expert specifically stated that he had not viewed the MRI’s from the plaintiff’s prior accident in 2010.

In his opening, defense counsel told the jury that his expert had reviewed both the 2010 and 2014 MRI results. Only then, long after the discovery deadlines had passed and in the middle of the trial after defense counsel committed to its defense, did the plaintiff’s attorney show his expert the 2010 MRI. After this mid-trial review, plaintiff’s expert compared the two MRIs and opined to the jury that the herniation depicted in the 2010 MRI had in fact worsened in the later MRI due to the accident.

Needless to say, the defense had planned its strategy based on the facts as they were when trial started. The court observed that when a witness is undisclosed, or there is new testimony at trial, the focus should be on the potential prejudice to the objecting party. Prejudice is surprise in fact, and not dependent on the adverse nature of the testimony.

The Binger rule has been extended from undisclosed witnesses to witnesses who offer previously undisclosed testimony. In this case, the defendants were confronted with new and additional undisclosed testimony during trial after opening statements, which pertained to the comparison of two different MRIs, as well as the witnesses’ conclusion regarding the content of those MRIs.

The bigger analysis considers the objecting parties’ ability to cure the prejudice. Contrary to the trial court’s conclusion in this case, the change in the doctor’s opinion went to more than just the weight issue, or to the fact that the defendant’s attorney was able undercut the defendant’s ability to testify on MRI technology and did not remove the prejudice in allowing the doctor to open up an entirely different area of testimony.

The record demonstrated that the defendants were prejudiced by the plaintiff’s intentional non-compliance with the pretrial discovery order and reminded us that once a trial starts, lawyers are engaged in the unfolding of the evidence already collected; that is why there are discovery cutoffs.

The court concluded its opinion stating:

We reiterate and state the obvious: once trial has commenced, it is no longer the time for gathering evidence or presenting new evidence to a party’s own physician witness in order to get additional testimony. After opening statements, unless there exists extraordinary circumstances, the time for development of new testimony has long passed.

ERROR TO ENTER SUMMARY JUDGMENT WHERE DISCOVERY HAS YET TO BE COMPLETED AND THERE WAS NO FINDING THAT THE REQUEST WAS INTENDED TO CAUSE DELAY.

Skydive Space Center, Inc. v. Pohjolainen, 44 Fla. L. Weekly D1817 (Fla. 5th DCA July 12, 2019):

NO ERROR IN DIRECTING VERDICT ON PERMANENCY.

Chappell v. Clark, 44 Fla. L. Weekly D1825 (Fla. 1st DCA July 15, 2019):

There was little dispute at trial that plaintiff had suffered permanent injuries in a rear-end crash with the defendant. Following the presentation of evidence, plaintiff moved for a directed verdict on the issue of permanency, citing Wald v. Grainger. Defendant opposed the motion stating that the jury could disregard the testimony of the doctor. However, because the jury could not ignore undisputed expert testimony without a reason, the trial court correctly rejected that argument.

On appeal, the defendants argued that the DV on permanency was error because causation was disputed.

In refusing to rule on the issue of whether a DV on permanency is appropriate when causation is disputed (because it was not preserved), the court observed that the defendant only opposed the DV on the basis that the jury could disregard the testimony of the doctors and the other experts in the case. That argument was rejected by the Supreme Court in Wald, and thus the court affirmed the ruling.

AN ALLEGATION OF MEDICAL MALPRACTICE UNDER CHAPTER 766 CANNOT FORM THE BASIS OF A CLAIM UNDER SECTION 415.1111—ERROR TO REDUCE JUDGMENT BY NEGLIGENCE OF DEFENDANT WHO PROVIDED POSTOPERATIVE TREATMENT.

Specialty Hospital Gainesville v. Barth, 44 Fla. L. Weekly D1819 (Fla. 1st DCA July 15, 2019):

The hospital appealed a final judgment awarding the plaintiff damages under section 415.111, which provides a cause of action for a vulnerable adult against any perpetrator where the vulnerable adult has been “abused, neglected, or exploited as specified in this chapter.”

After suffering paralysis during an aortic-aneurism operation at Shands, plaintiff was transferred to Select Specialty Hospital in Gainesville, a long-term acute care facility providing medical treatment to wean patients off breathing ventilators and wound care. Generally, such hospitals focus on patients who are not healthy enough to return home or enter an ALF but need medical treatment for extended time periods.

After plaintiff was treated at defendant’s facility, where he suffered a deep-tissue pressure ulcer, he was transferred back to Shands and eventually to another facility for treatment of the injury, including surgery to replace necrotic skin and further infections.

Plaintiff sued the acute-care facility. That defendant pled comparative fault of the subsequent facility. Plaintiff then moved for summary judgment on the comparative fault defense, arguing that under Stuart v. Hertz the second facility could not be a Fabre defendant, because the first facility was responsible for it.

At the end of trial, the defendant moved for a DV. The trial judge allowed both of the plaintiff’s claims to go to the jury, and the jury found the defendant liable and awarded damages of about $560,000.00. It also found that there was comparative fault on part of the second facility, apportioning 70% to that facility. The jury also found that the defendant was a caregiver under Chapter 415 and that it neglected or abused the plaintiff by the improper use of restraints, and failed to respond to his calls for medical assistance.

Chapter 415 was not intended by the Florida Legislature to provide an alternative cause of action for medical negligence. The court observed in the Bohannon case that the court held that Chapter 415 was not intended to provide this kind of cause of action, and since the decision, which was rendered a decade ago, has not been abrogated by the legislature, that indicates the legislature’s approval. Also, Chapter 766 provided the exclusive remedy for claims “arising out of, or the failure to render medical care services.”

The court also wrote that the overarching and critical sentence in section 415.1111 has to do with a vulnerable adult being abused, neglected, or exploited and is a cause of action against any perpetrator. That person is defined as a person who knowingly and willingly fails to report a case of known or suspected abuse, neglect, etc.

The legislative scheme of Chapter 415 is to protect vulnerable adults not to provide a duplicable remedy for medical malpractice. As such, as a matter of law, the court ruled there is no cause of action under 415.1111.

As to the cross-appeal, the court found that the physicians alleged negligence in the post-operative treatment of a patient does not diminish or absolve the negligence of the original physician and that the facts established that the subsequent provider was a subsequent independent tortfeasor that may have aggravated the injury caused by the original treatment. However, under Stuart v. Hertz, the original tortfeasor is liable for all the damages resulting from the negligent treatment that caused the plaintiff’s deep tissue sores. Thus, whether a subsequent treaters medical treatment may have exacerbated the injury, is not legally relevant.