FLORIDA LAW WEEKLY

VOLUME 44, NUMBER 1

CASES FROM THE WEEK OF JANUARY 4, 2019

NON-ECONOMIC DAMAGE AWARDS OF $15 MILLION TO SPOUSE AND $6 MILLION TO 22-YEAR-OLD DAUGHTER WERE NOT EXCESSIVE--NO ERROR IN DENYING REMITTITUR OR NEW TRIAL ON DAMAGES.

R.J. Reynolds Tobacco Co. v. Schleider, 44 Fla. L. Weekly D82 (Fla. 3rd DCA December 26, 2018):

On this record, the jury in a tobacco case heard evidence from a wife regarding her husband’s illness, the difficulties they endured, the impact of his suffering and death upon their lives and future plans, and the fact that they had been married for 30 years, and his death had come shortly after they retired to the Keys. It also heard evidence that the daughter had been raised by her father who was a stay at home parent, and she went to live with her parents in the Keys and live near them and she refused to have anyone other than her father walk her down the aisle at her wedding after his death.

In closing, plaintiff’s counsel asked for $11 million in non-economic damages for the wife, and $7 million for the daughter, informing the jury they could go lower or higher within its discretion. The jury then came back with $15 million for the wife and $6 million to the daughter. It apportioned fault against R.J. Reynolds at slightly less than the plaintiff had asked. It also refused to award punitive damages.

The court made certain observations regarding the closing arguments in the case, which it said it did not condone, but which fell short of denying the defendant a fair trial.

The court observed that arguments which may be inappropriate in a simple negligence case, may be appropriate concerning record evidence of a party’s intentional misconduct in the context of a claim for punitive damages. While it is generally reversible error in a simple tort case to ask the jury to send a message and punish or penalize the defendant when the jury is instructed to consider whether there is intentional misconduct, the jury may consider punitive damages as a punishment and a deterrent.

After noting certain smoking case specific references, the court also noted how R.J. Reynolds asserted that plaintiff’s counsel had improperly denigrated the defense. The court said while some of the plaintiff’s counsel’s arguments did “approach the boundary” of what constitutes proper argument, they did not rise to the level of warranting a new trial.

The court also observed that the jury’s refusal to award punitive damages, the award of less than the amount of compensatories requested by the daughter, and the higher percentage of comparative negligence, strongly indicated that the jury was not inflamed, prejudiced or improperly misled by closing arguments.

Citing to the supreme court’s recent decision in Odom, the court said there is an inherent difficulty in measuring non-economic damages, and the jury’s award should not be disturbed unless it is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate. Even though the award of $15 million was indeed higher than the awards previously upheld, awards from other cases do not establish a cap on non-economic damages. Additionally, the award was only a fraction higher--not multiple times higher--than those cases previously upheld.

SUMMARY JUDGMENT ERRONEOUSLY ENTERED BECAUSE FACT QUESTION IS TO WHEN PLAINTIFF SHOULD HAVE DISCOVERED INJURY.

Teehan v. Florida East Coast Railway, 44 Fla. L. Weekly D3 (Fla. 1st DCA December 18, 2018):

Without providing any facts in the opinion, the court reversed a trial court’s finding that the statute of limitations barred the plaintiff’s claim because he knew or should have known that he was injured more than three years before he filed suit. Because the court found a factual dispute as to whether plaintiff should have discovered his injury, it ruled that summary judgment was inappropriate.

INTEREST ACCRUES FROM THE ORIGINAL FINAL JUDGMENT, WHEN THE JUDGMENT ITSELF BASICALLY STAYS INTACT.

Heartland Express of Iowa v. Farber, 44 Fla. L. Weekly D10 (Fla. 1st DCA December 18, 2018):

In this case, while the court had simply reversed the trial court’s order granting a new trial on the issue of punitive damages, it had affirmed the final judgment without further comment, and without any modification of the compensatory damages awarded. As such, the interest award remained intact.

When the appellate court leaves an underlying final judgment intact, interest begins to accrue from the date of that final judgment, even if the trial court on remand enters an amended final judgment to reflect the appellate court’s ruling.

TRIAL COURT MUST FOLLOW THREE-STEP PROCEDURE SET OUT IN MELBOURNE WHEN PARTY OBJECTS TO A PEREMPTORY CHALLENGE FOR DISCRIMINATORY REASONS--AT A MINIMUM, MELBOURNE IMPOSES A DUTY ON TRIAL COURTS AT THE “GENUINENESS” STEP TO REQUEST A RESPONSE TO THE PROFFERED EXPLANATION FROM THE OPPONENT OF THE PEREMPTORY CHALLENGE--NEW TRIAL REQURED WHEN TRIAL COURT FAILS TO DETERMINE GENUINENESS OF FACIALLY RACE-NEUTRAL EXPLANATION.

Johnson v. State, 44 Fla. L. Weekly D34 (Fla. 4th DCA December 19, 2018):

During jury selection, the state exercised a peremptory challenge on an African-American male juror. At defendant’s request for a race-neutral reason, the state responded that the juror would prefer CSI evidence and also that the defense had stricken two black females in their first round of strikes as well as black individuals for cause.

The court cut the state’s attorney off, summarily finding the reason to be race-neutral. The defendant did not make any further objection or argument at that time, but at the conclusion of jury selection, when asked if each side accepted the panel, the defense advised the panel was not acceptable because the court overruled defendant’s Melbourne v. State objection to the peremptory strike of the African-American juror.

The decision to uphold or deny a peremptory challenge is reviewed for an abuse of discretion. Generally, there is a presumption that peremptory challenges are exercised in a nondiscriminatory manner.

A party who uses a peremptory challenge is limited only by the rule that the challenge cannot be used to exclude members of a distinctive group. To strike the appropriate balance between a party’s right to exercise a peremptory challenge and the attempt to eliminate invidious discrimination from jury selection, the Melbourne court enunciated a three-step procedure to be followed:

Step 1 – Objection to the peremptory. Here, a party’s objection to the other side’s use of a peremptory challenge on racial grounds must (a) make a timely objection on that basis; (b) show that the venire person is a member of a distinct protected group; (c) request that the court ask the striking party its reason for the strike.

Step 2 – A race-neutral explanation. Here, the court must ask the proponent of the strike to explain the reason for the strike. At that point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation.

Step 3 – The determination of genuineness. If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained. The court’s focus is not on the reasonableness of the explanation but on its genuineness.

In this case, the defendant contended that the record did not support a conclusion that the trial court properly conducted a step 3 genuineness analysis. Specifically, the defendant argued that the trial court did not review, analyze or conduct a judicial assessment of the reasons given by the state for striking the juror, and instead summarily ratified the peremptory challenge. The defendant argued that the cold record was devoid of any indication that the trial court considered or weighed any relevant circumstances in deciding whether the strike was discriminatory.

The state argued there was a lack of preservation because the defendant failed to raise an issue of noncompliance with Melbourne, and the state contends that the record shows that the trial court complied with step 3. The state argued that trial judges are not required to perform a genuineness analysis or articulate a basis for the ruling, and then argued that the defense had stricken two black females itself after the state had accepted the panel, which helped the trial court to implicitly find that there was no pretext in the strike.

The court explained that the case law has focused increasingly on step 3 of the Melbourne procedure, because there are still questions about how to properly apply the genuineness analysis.

Noting that it is still not completely clear in our law, the court wrote that Melbourne is still a three-step procedure. The elements of Melbourne impose a duty on trial courts separate and apart from the duties of the advocates for similar reasons.

The court concluded that at a minimum, Melbourne imposes a duty on trial courts at step 3 to request a response to the proffered explanation from the opponent of the peremptory challenge, once step 2 has been completed. The court said it will continue to adhere to prior case law, and that the Melbourne procedure does not require the trial court to recite a perfect script or incant specific words in order to properly comply with its analysis. Still, Step 3 of the Melbourne analysis is the key in a protection against improper discrimination.

In this case, the court concluded that the record was devoid of any indication that the trial court had considered circumstances relevant to whether the peremptory challenge was exercised for a discriminatory purpose. The trial court did not request a response by the defendant to the explanation proffered by the state for the peremptory challenge, and instead cut off the state when it was proffering its explanation for the strike and justification for its genuineness, bringing the analysis to an end with the statement that the court found the challenge to be race-neutral. The Fourth District found there was not a genuineness inquiry that was actually conducted, which would have allowed it to defer to the trial court.

Simply because the defense had stricken two black females in the defendant’s first round of strikes was not some kind of an implicit finding that there was no pretext, but perhaps if the trial court had gone into that, that would have been a better basis. However, the trial court had curtailed the procedure on ascertaining genuineness.

The Fourth District certified conflict with two decisions which hold that a trial court is not required to perform a full genuineness analysis on the record every time a party initiates a Melbourne challenge.

ERROR TO FIND VIOLATION OF PARKING RULES WAS THE “PROXIMATE” CAUSE OF A REAR-END COLLISION WHICH OCCURRED WHILE PLAINTIFFS WERE STOPPED WAITING FOR ANOTHER VEHICLE TO PASS THROUGH PARKED CARS ON THE STREET--DEFENDANT’S FAILURE TO ENFORCE PARKING RULES WAS A CAUSE IN FACT OF THE INCIDENT, BUT NOT THE PROXIMATE CAUSE.

Seminole Lakes Homeowner’s Association v. Esnard, 44 Fla. L. Weekly D43 (Fla. 4th DCA December 19, 2018):

The case arose out of a car accident between the plaintiffs and another driver, which occurred inside the defendant’s community. The driver rear-ended the plaintiffs while they were stopped, waiting for two trucks to pass between two parked cars on the street.

Plaintiffs sought damages against the homeowner’s association on the basis that it was negligent, and proximately caused the plaintiffs’ damages by permitting homeowners and their guests to park on both sides of the community’s streets contrary to its own governing documents. The jury found that the homeowner’s association’s negligence was a legal cause of the plaintiffs’ damages, and apportioned 30% of the fault to the homeowner’s association (and 70% to the rear-ending driver).

At the close of the plaintiffs’ case, the homeowner’s association had moved for a directed verdict maintaining that its policy of allowing cars to park on the street was not a proximate cause of the accident. While the issue of proximate causation is generally an issue for the trier of fact, there are instances where it should be decided as a matter of law, e.g., where there is an active and efficient intervening cause.

The court explained that harm is “proximate” in the legal sense “if prudent human foresight would lead one to expect that similar harm is likely to be substantially caused by the specific act or omission in question.” If the defendant’s conduct merely furnishes an occasion for the negligence, then it is not the proximate cause.

In this case, while the vehicles parked on the side of the street caused traffic to slow or even to stop, it could not be said that that was the proximate cause of the plaintiffs’ damages. It is within the common experience that while driving, drivers will encounter traffic that is slowed or stopped for any number of reasons, and the law requires each driver to maintain a safe distance from the traffic to avoid rear-end collisions.

In this case, the evidence showed that the plaintiffs had been stopped for a period of time before the defendant collided with them. The parking situation was patently obvious to any and all drivers using the streets in the community. There was no evidence that the plaintiffs were forced to make a sudden emergency stop or otherwise take evasive action to avoid parked vehicles. The court said it saw no difference between this situation and a car being stopped behind a city bus waiting to pick up passengers. While the homeowner’s association’s failure to enforce the parking rules was a cause in fact of the accident, its negligence only furnished the occasion for the defendant’s negligence.

In light of the evidence, including the lack of any prior incidents of this nature, and the general conditions of the neighborhood, the court upheld that the defendant’s negligence was not reasonably foreseeable by the homeowner’s association, and its failure to enforce its parking rules was not the proximate cause of the plaintiffs’ injuries.

AN ATTORNEY IS NOT REQUIRED TO PROVIDE AN INDEPENDENT EXPERT WITNESS TO CORROBORATE THE REASONABLENESS OF FEES IN SITUATIONS WHERE FEES ARE AN ELEMENT OF COMPENSATORY DAMAGES IN A BREACH OF CONTRACT ACTION AGAINST THE CLIENT, AND THE CLIENT ACKNOWLEDGED THE OBLIGATION.

Valentine Rodriguez, P.A. v. Altomare, 44 Fla. L. Weekly D45 (Fla. 4th DCA December 19, 2018):

An attorney sued his client for unpaid legal fees. The client had entered into a retainer agreement for representation in a federal court fraud case, and the client was required to pay $50,000 as an initial non-refundable retainer, as well as an initial $50,000 if the case went to trial (if the trial lasted no more than four days) and then another $3,000 per day if it lasted longer, plus an additional $5,000 for sentencing. At the conclusion, the attorney billed the client pursuant to the agreement and the client paid a portion, leaving a balance of over $80,000. The attorney ultimately sued the client for breach of contract.

The client stipulated that he entered into the retainer agreement, and that he did not pay. To establish the amount of damages, the attorney introduced the retainer agreement, and the invoice listing the flat fees billed. The client never objected to the evidence.

After the attorney rested, the client moved for a directed verdict on the grounds that the attorney failed to present independent expert testimony to establish the reasonableness of his fees, which the trial court granted.

The Fourth District reversed. It explained that when a party seeks to recover previously incurred fees as an element of compensatory damages in a breach of contract action, that party is not required to provide an independent witness to corroborate the reasonableness of the fees.

The court contrasted the rule with the well-established rule that where a party seeks to have the opposing party in a lawsuit pay for attorney’s fees incurred in that same action, then independent expert testimony is required.

DELAWARE CORPORATION WITH PRINCIPAL PLACE OF BUSINESS IN CALIFORNIA AND NO CONTACTS WITH FLORIDA, NOT SUBJECT TO PERSONAL JURISDICTION EVEN WHERE THE COMPLETED PRODUCT CONTAINING THE COMPONENT PART WAS ULTIMATELY SOLD IN FLORIDA.

Imerys Talc America, Inc. v. Ricketts, 44 Fla. L. Weekly D48 (Fla. 4th DCA December 19, 2018):

The plaintiff sued several defendants based on allegedly dangerous and defective talcum powder which caused her ovarian cancer. The defendant, a Delaware corporation with its principal place of business in California, was engaged in the business of mining and distributing talcum powder.

When moving to dismiss the case for lack of jurisdiction, the defendant filed an affidavit stating that it does not mine talc in Florida, does not directly sell talc to Johnson & Johnson in Florida, does not directly ship talc to J & J in Florida and does not directly distribute talc to J & J in Florida. Plaintiff did not file an affidavit in response.

Plaintiff originally asserted general jurisdiction, but then agreed it was specific jurisdiction. To find specific jurisdiction, the defendant’s suit-related conduct must create a “substantial connection with the forum state” and arise out of the defendant’s own activities, not those of a plaintiff or a third party. The inquiry is whether the defendant intentionally availed itself of the privilege of doing business in the forum state.

The court said that the defendant producing a component in one state, and selling it in a different state without directing action or activities to Florida as established through an affidavit, was enough to refute the jurisdictional allegations of the plaintiff’s complaint, requiring plaintiff to file a counter-affidavit to support her position.

The court wrote that a manufacturer’s sale of a “component” to a party in a second state is insufficient, without more, to subject the manufacturer to the jurisdiction of a third state where the completed product was ultimately sold. Foreign businesses whose products are sold in the forum state by third parties cannot be subjected to personal jurisdiction in the forum merely because they knew, should have known or even expected their products would reach that forum.

Judge Taylor dissented. She wrote that the defendant’s affidavit failed to dispute the key jurisdictional allegations in the plaintiff’s complaint, which demonstrated that Florida’s assertion of personal jurisdiction over the defendant is constitutional.

Because the plaintiff’s undisputed allegations established that the defendant placed its talc into the stream of commerce over a period of decades with the knowledge and intention it would be sold in Florida as the main ingredient in Johnson & Johnson’s widely available baby powder, defendant had sufficient minimal contacts with Florida, according to the dissent, to satisfy due process.

CLAIMS OF CIVIL CONSPIRACY, AND AIDING AND ABETTING A BREACH OF FIDUCIARY DUTY ARE NOT INDEPENDENT OF THE INSURANCE CONTRACT, AND MAY NOT BE BROUGHT AGAINST A THIRD PARTY INSURER BECAUSE OF THE NONJOINDER STATUTE WITHOUT A VERDICT OR SETTLEMENT.

Progressive Select Insurance Co. v. Bigney, 44 Fla. L. Weekly D62 (Fla. 5th DCA December 21, 2018):

The plaintiff was injured, and sued the negligent driver, her own insurer and the defendant’s insurer, Progressive. The complaint alleged negligence against the driver, an underinsured claim against plaintiff’s own company, civil conspiracy between the defendant’s insurer and her insurer, tortious interference with contract against plaintiff’s own insurer, and aiding and abetting the UM carrier and the breach of its fiduciary duty to the plaintiff against the defendant’s insurer, Progressive.

Progressive moved to dismiss based on the nonjoinder statute, section 627.413(6)(1) which states that an injured third party may not file a direct action against a liability insurer for a cause of action covered by a liability insurance policy, without first obtaining a settlement against the insured or a verdict.

Even though the plaintiff’s counts were based on claims of fiduciary duties and legal obligations, the court concluded that pursuant to the statute they were still not “independent” of the insurance contract, and thus could not be maintained until the plaintiff obtained a verdict or settlement against the defendant.

This was on a petition for certiorari, and the court concluded that forcing Progressive to litigate counts before they were ripe would somehow result in irreparable harm, thus granting the petition.

FACTUAL ISSUES STILL EXISTED AS TO WHETHER THE DEFENDANT’S EMPLOYEE WAS GROSSLY NEGLIGENT, AND BECAUSE THE RELEASE THE VICTIM SIGNED DID NOT RELEASE ACTS OF GROSS NEGLIGENCE, IT WAS ERROR FOR THE TRIAL COURT TO ENTER SUMMARY JUDGMENT.

MacGregor v. Daytona International Speedway, 44 Fla. L. Weekly D64 (Fla. 5th DCA December 21, 2018):

The plaintiff was injured when she was run over by a tow truck at the Daytona Speedway, while the truck was backing up in the counter-race direction. The tow truck driver had been instructed by an employee of the defendant, to back up in that direction.

Before she was allowed to enter the non-spectator restricted area of the speedway during the race, pursuant to section 549.09(2), the plaintiff had to sign a release and waiver of liability for injuries potentially sustained in the restricted area. The release addressed defendant’s negligent acts.

The trial court found that the negligence mentioned in the release also barred the “gross negligence” claims plaintiff made. Referencing to the statute, the court noted that the legislature had explicitly excluded gross negligence from the definition of negligence for injuries occurring in the non-spectator areas of the facility and thus the release could not bar the gross negligence claim.

The trial court had also ruled as a matter of law that the defendant had not engaged in gross negligence. The appellate court said the record made it a question of fact.

TRIAL COURT ERRED IN ALLOWING THE PLAINTIFF TO PRESENT AN MRI EXHIBIT TO THE JURY WITH THE OPINIONS OF THE EXPERT SUPERIMPOSED ON THE IMAGES--ALTHOUGH THE IMAGES THEMSELVES WERE ADMISSIBLE, THE EXPERT’S ANNOTATIONS REPRESENTING HIS OPINIONS WERE NOT “FACTUAL FINDINGS”--ERROR TO PRECLUDE THE INSURER FROM USING THE EXHIBIT WITH ITS OWN EXPERT. HOWEVER, ERROR HARMLESS.

State Farm v. Wallace, 44 Fla. L. Weekly D67 (Fla. 5th DCA December 21, 2018):

The plaintiff was injured in an accident with an uninsured motorist. At trial, a board-certified radiologist specializing in magnetic resonance imaging testified as his retained expert. The doctor interpreted the MRI and to explain his findings used an exhibit consisting of two images with typed labels restating his findings. Plaintiff sought to introduce the two image exhibit with the labels into evidence.

Later, State Farm asked its expert questions about those images, and the plaintiff objected arguing it was improper for a witness to comment on another witness’s testimony.

The court explained that State Farm correctly contended that the trial court erred in allowing the plaintiff to present the exhibit to the jury with the opinions superimposed on the images. Contrary to the plaintiff’s argument, the exhibit should not have been admitted into evidence with the annotated opinions. The images were admissible, but the annotations were not “factual findings” and not admissible.

Similarly, the trial court erred in precluding State Farm from using the admitted exhibit to obtain its own expert’s opinion of the same images.

Ultimately, the court found the errors were harmless. Because defendant had an expert who was permitted to offer his opinion using substantially similar MRI images, the court found the error did not necessitate reversal.

DEPARTURE FROM ESSENTIAL REQUIREMENTS OF LAW TO COMPEL DEPOSITIONS OF OPPOSING COUNSEL AND PARALEGAL, WHERE PARTY SEEKING DEPOSITION FAILED TO SHOW THAT NO OTHER MEANS EXISTED TO OBTAIN INFORMATION, THE INFORMATION SOUGHT WAS RELEVANT AND NON-PRIVILEGED AND THE INFORMATION WAS CRUCIAL TO THE PREPARATION OF THE CASE.

Iacono v. Santa Elena Holdings, LLC, 44 Fla. L. Weekly D82 (Fla. 3rd DCA December 21, 2018):

The case stemmed from a board meeting where one person was voted out as manager and the petitioner was voted in. Two attorneys and a paralegal were present at the meeting.

Respondents subpoenaed those lawyers and the paralegal for deposition. He argued they were necessary to prepare for the upcoming hearing on the motion to disqualify the attorneys that he had filed, and that the information could be obtained by any other means. The court compelled the depositions over the petitioner’s emergency motion for protective order.

The court reminded us that taking depositions of opposing counsel in a pending case is an extraordinary step that will rarely be justified, and is reviewable on certiorari. Where the deposition of opposing counsel is at issue, the party seeking the deposition has the burden of meeting the three factor test which requires a showing that: (a) no other means exist to obtain the information than the deposition of the opposing counsel; (b) that the information sought is relevant and non-privileged, and finally, (c) that the information is crucial to the preparation of the case.

The record demonstrates that the respondent failed to satisfy these requirements. In fact, the trial court did not even allow the opposing counsel to respond to the allegation that no other means existed to obtain the information. As such, the court quashed the trial court’s order below.