Be careful what you wish for.

FLORIDA LAW WEEKLY

VOLUME 44, NUMBER 25

CASES FROM THE WEEK OF June 21, 2019

ERRONEOUS JURY INSTRUCTION ON INFORMED CONSENT STRIPS PLAINTIFF OF 15M VERDICT AND REQUIRES A NEW TRIAL.

Sherrer v. Hollingsworth, 44 Fla. L. Weekly D1494 (Fla. 4th DCA June 12, 2019):

After a three-week jury trial, a doctor appealed an over 15 million dollar verdict in a medical malpractice case involving the alleged failure of the physician to properly treat the victim’s condition with a drug known to help eradicate it.

At trial, the only issue was the negligence arising out of that set of facts. The issue of an informed consent was not pled nor tried.

Originally, during the charge conference, the parties agreed to the general negligence instruction. However, the next day, the victim sought to add an instruction concerning informed consent based on the doctor’s failure to give the patient sufficient information regarding the drug.

The doctor objected arguing that an informed consent should not be given because the issue was never raised during the trial, the theory of liability requires expert testimony, and there was no expert testimony to support lack of informed consent.

The trial court did instruct the jury on two distinct theories of liability (general negligence and informed consent). Notwithstanding that informed consent had been pled as an affirmative defense, the appellate court found it was not tried by consent, there was no evidence presented, and there was no expert testimony presented.

While the trial court’s decision to give or withhold jury instruction is reviewed under the abuse of discretion standard, in this case, the doctor never proposed the drug as a possible treatment, and therefore, her purported failure to offer the treatment to the patient had no connection with any kind of informed consent theory of liability. Instead, the failure to propose the drug was “adjunct and supplement” to the general negligence theory.

Thus, the trial court erred in instructing the jury concerning informed consent, because it contributed to the jury’s finding the doctor negligent, allowing the jury to find the doctor negligent even if it found the doctor’s decision not to administer the drug fell within the standard of care. As the added theory of negligence prejudiced the doctor, the instruction warranted reversal and a new trial.

THE PROTECTION FROM INVASIVE DISCOVERY THAT IS AFFORDED TO INDIVIDUAL EXPERTS UNDER RULE 1.280 (b)(5)(A)(iii) APPLIES EQUALLY TO THE BUSINESS ENTITY WITH WHICH THE EXPERT IS AFFILIATED--TRIAL COURT ERRED IN PERMITTING EXCESSIVE DISCOVERY WITH NO FINDING OF AN UNUSUAL OR COMPELLING CIRCUMSTANCE; A BUSINESS ENTITY WITH NINE DOCTORS THAT THE DEFENSE LAW FIRM HAD HIRED FOR 120 CASES IN 3 YEARS DID NOT SUPPORT “UNUSUAL AND COMPELLING” CIRCUMSTANCES NEEDED TO OBTAIN THE REQUESTED INFORMATION IN THE EYES OF THE COURT.

Orthopedic Center of South Florida v. Sode, 44 Fla. L. Weekly D1480 (Fla. 4th DCA June 12, 2019):

In another take on the Elkins/Boecher debate, the Orthopedic Center, the business entity with which the defense expert was affiliated, petitioned for a writ of certiorari after the trial court ordered it to produce an extensive series of documents regarding the medical practices business model and primary business activities, its revenues, its acceptance of letters of protection, its history of performing defense CME’s, PIP CME’s, its consulting, the types of marketing and advertising it does, and whether it performs IME’s for workers’ compensation cases.

While appellate courts will generally not review orders denying a party’s overbreadth or burdensomeness objections to discovery, disclosure of otherwise private financial information can result in the kind of irreparable harm that necessitates a writ of certiorari.

Concluding that the protections from invasive discovery afforded to individual experts apply equally to the business entity with which the expert is affiliated, the court explained that it was granting certiorari relief for that reason. Also, because the plaintiff used an inappropriate methodology for discovery, the proposed subpoena duces tecum to the entity sought unauthorized information.

The court hearkened back to Elkins, where the Supreme Court attempted to strike a balance between the party’s need for information to demonstrate a medical expert’s potential bias and the expert’s right to be free from burdensome and intrusive discovery requests. Rule 1.280(b)(5)(A)(iii) was adopted with limitations deemed necessary to prevent overly intrusive and harassing financial discovery that serves only to emphasize unnecessary detail that would be apparent to the jury on the simplest cross-examination: that certain doctors are consistently chosen by a particular side in personal injury cases to testify for them.

The Fourth District concluded that the protections afforded to an expert under the rule in Elkins should extend to the non-party corporate entity with which the expert is affiliated, because to hold otherwise would render both Elkins and the rule meaningless and would create the same “chilling effect” from which Elkins sought to protect experts.

The court also opined that the plaintiff’s notice of proposed subpoena duces tecum presented unusual methodology. The subpoena was a document asking questions or requesting descriptions, rather than listing the types of documents sought.

The plaintiff had served the corporate entity with a proposed subpoena duces tecum in conjunction with the oral deposition of a corporate representative. However, the use of a proposed subpoena duces tecum for the production of documents for a deposition is authorized under rule 1.310(b)(1).

But neither that rule nor rule 1.351(b), which requires the designation of materials to be produced under the subpoena, allows for a subpoena to ask questions or request descriptions, rather than simply list the types of documents sought. To allow such a discovery vehicle, the court found, would be fraught with problems, not the least of which would be the onslaught of motions addressing objections or compliance issues revolving around interpreting the actual information sought by propounding a question.

Additionally, in this case, the subpoena sought information at the limits of rule 1.280(b)(5)(A) in Elkins. The court rejected the plaintiff’s argument that proof that the defense law firm had hired the business entity with nine doctors for 120 cases in three years supported “unusual or compelling” circumstances required to seek the requested information.

The court concluded its decision by referring to Judge May’s special concurrence in the decision of Coopersmith v. Perrine, 91 So. 3d 246 (Fla. 4th DCA 2012), admonishing both plaintiffs and defendants for exceeding the bounds of the rules of civil procedure, confidentiality law, and professionalism by engaging in “irrelevant, immaterial, burdensome, and harassing” discovery. She observes that this type of discovery not only creates unnecessary burdens on our over-strained justice system, but it further taints the public’s view of our profession. Judge May and the court cautioned trial counsel from employing and trials courts from approving novel discovery methods that exceed the limits of authorized discovery.

TRIAL COURT ABUSED DISCRETION IN STRIKING PLAINTIFFS’ PLEADINGS AND IMPOSING SANCTIONS ON PLAINTIFFS’ LAW FIRM BASED ON ITS ALLEGED FAILURE TO PRODUCE NON-PARTY WITNESS FOR DEPOSITION – PLAINTIFFS AND THEIR LAW FIRM CANNOT BE HELD ACCOUNTABLE FOR THE FAILURE OF A NON-PARTY TO APPEAR FOR A DEPOSITION.

Williams v. Prepared Insurance Co, 44 Fla. L. Weekly D1486 (Fla. 4th DCA June 12, 2019):

In a breach of a homeowner’s insurance contract suit, the insurer was unable to procure the presence of an initial witness listed by the plaintiffs, but then later omitted from their witness list. The insurance company, and ultimately the trial court, faulted the plaintiffs and their law firm for the witness’s refusal to appear for a deposition. As a sanction, the trial court (1) struck the plaintiffs’ pleadings, and (2) imposed sanctions on the plaintiffs’ law firm for bad faith litigation.

The witness at issue was a public adjuster retained to assess damage to the plaintiffs’ home. The plaintiffs held the adjuster out as their “loss consultant”, and provided contact information for her.

Before the plaintiffs filed their witness list, the insurance company sought to depose the adjuster, who never appeared. After multiple attempts to re-notice the deposition, the insurance company moved for sanctions and to strike the plaintiffs’ pleadings, alleging in part that the plaintiff failed to appear for deposition, failed to provide discovery, and that their own loss consultant failed to appear for a deposition.

This pattern went on, and ultimately, the trial court entered a written order striking the plaintiffs’ pleadings, and imposing fees and sanctions against the plaintiffs’ law firm. The court found that based on the letter of representation sent by the law firm to the insurance company, the public adjuster was there as an “agent” of the law firm. The court then recounted the history of the insurance company’s attempt to depose the witness, including its order compelling the plaintiffs to provide another address and put her on notice that she’d be served with a subpoena. The court then struck the plaintiffs’ pleadings, finding it was the only sufficient remedy, and applied the Kozel factors stating that plaintiffs conduct was willful and deliberate.

The trial court had observed that the plaintiffs’ counsel’s own failure to appear at the second deposition indicated that plaintiffs’ counsel was aware or strongly suspected that the deposition would not proceed.

In evaluating the trial court’s ­­­­­­rulings, the Fourth District noted that the closest the trial court came to identifying a discovery violation related to the plaintiffs’ law firm, was by finding that the law firm repeatedly failed and or refused to assist the insurer in obtaining the deposition of a public adjuster, despite admonitions to warn her that ignoring or dodging a subpoena would have consequences, the failure of counsel to appear for duly noticed depositions, and the failure to participate in meaningful discovery as it pertained to the loss consultant witness.

The appellate court observed that to the extent the trial court was focused on the law firm’s failure to produce the adjuster for a deposition, the trial court did not cite any authority requiring the firm to do so, and the court said it was unaware of any. The adjuster was not the type of witness that a party is required to produce, such as an expert or corporate representative.

The trial court also erred in basing a finding of noncompliance on the determination that the adjuster was an agent of the law firm. The original letter of representation sent by the firm to the insurer, provided that the insurance company could speak to the adjuster or to any of the firm’s agents about specified topics, and while that suggested an agency relationship, the adjuster’s failure to appear was not shown to have fallen within any agency relationship.

Because the trial court’s finding of a discovery violation was erroneous in the first place, there was no need for a Kozel inquiry. There was also no proper application of the inequitable conduct doctrine, which permits an award of attorney’s fees as a sanction for egregious conduct.

TRIAL COURT PROPERLY ENTERED SUMMARY JUDGMENT IN FAVOR OF THE LANDLORD ON DUTY TO WARN, BUT ERRED IN GRANTING MOTION ON THE FAILURE TO MAINTAIN.

Leon v. Pena, 44 Fla. L. Weekly D1492 (Fla. 4th DCA June 12, 2019):

For ten years the plaintiff traversed an area in her condominium complex with a broken sidewalk. She did this fully aware of the damage to the pathway, never taking special care to avoid it, and always traversed it without incident.

One day she fell on the fractured concrete and sued her landlord for the injuries, alleging failure to warn and a failure to maintain. The trial court granted summary judgment on all claims based on plaintiff’s undisputed knowledge of the path’s condition, its open and obvious nature, and her assumption of the risk.

As slip and fall case law keeps reminding us, landowners/occupiers owe invitees two independent duties (1) to maintain the premises in a reasonable safe condition, and (2) to give warning of concealed perils.

The open and obvious danger doctrine provides that an owner or possessor of land is not liable for injuries caused by a dangerous condition when the danger is known and obvious to the injured party, unless the owner should have anticipated those injuries.

However, while the obvious danger doctrine may discharge the duty to warn in certain circumstances, it does not automatically discharge the duty to maintain.

The plaintiff’s knowledge of the deteriorating condition of the sidewalk merely raised an issue of fact as to her own comparative negligence. Thus, while the trial court did properly enter summary judgment in favor of the landlord as to the duty to warn, it erred in granting summary judgment on the failure to maintain.

TRIAL COURT ERRED IN COMPELLING THE PRODUCTION OF PURPORTEDLY PRIVILEGED INFORMATION THAT WOULD RESULT IN IRREPARABLE HARM BEFORE CONDUCTING AN IN CAMERA HEARING—CERTIORARI APPROPRIATE.

American Airlines v. Cimino, 44 Fla. L. Weekly D1495 (Fla. 4th DCA June 12, 2019):

This case reminds us that parties can suffer irreparable harm that cannot be remedied on an appeal of a final order if they are compelled to produce privileged materials and witness testimony pursuant to a discovery order, without an in camera inspection to illuminate the scope of a purported waiver.

In this case, the trial court found that the defendants had waived the privilege by virtue of their affirmative defenses, but still, the trial court must delineate the scope of the waiver before compelling the discovery of allegedly privileged information.

PARENTAL IMMUNITY IS NOT A BAR TO A WRONGFUL DEATH CLAIM BROUGHT BY A SON’S ESTATE AGAINST THE ESTATE OF HIS DECEASED FATHER – WHEN BOTH PARENT AND CHILD ARE DECEASED, THE STATED BASES FOR CAPPING DAMAGES BY THE AMOUNT OF AN EXISTING LIABILITY POLICY IS UNDERMINED BY THE ABSENCE OF ANY NEED TO MAINTAIN DOMESTIC HARMONY.

Jerrels v. Kenyon, 44 Fla. L. Weekly D1514 (Fla. 2nd DCA June 12, 2019):

A father was piloting his private plane, when it crashed and killed his 17-year old son and his girlfriend.

The father’s daughter petitioned for the intestate administration of his estate. The son’s estate and the girlfriend’s estate filed statements of claim asserting that the father’s negligence was the cause of the fatal crash.

The girlfriend’s estate objected to the claim filed by the son’s estate because he was an unemancipated minor at the time of his death. The girlfriend’s estate argued that the claim was barred by the doctrine of parental immunity for any amounts beyond the limits of liability insurance held by the deceased father.

The trial court agreed with the girlfriend’s estate based upon a strict reading of §768.19, explaining that had the son survived there would be no dispute that his recovery would have been limited to the father’s insurance policy limits. Thus, although the doctrine of parental immunity may no longer exist, a wrongful death suit is still limited by Ard v. Ard, and therefore the court sustained the objection to the claim.

The son’s estate countered that parental immunity is inapplicable when both parties are deceased, and the public policy purpose underling parental immunity disappears. The son’s estate also asserted that because of the deaths of the son and the father, the trial court erred in capping the estate’s claim to the amount of the available insurance.

Analyzing the competing legal issues, the court first looked at §768.19, which defines the right of action for wrongful death. Upon reading that plain language, the wrongful death statute seems to foreclose a deceased child’s estate from recovering in a wrongful death action against the deceased parent, despite the apparent legislative intent to the contrary.

The parental immunity doctrine resolves the apparent incongruity, and the court found that because the doctrine carries no weight under the facts of this particular case, it did not serve to limit the son’s estate claim.

While parents are generally immune from tort cases brought by their children for reasons of family harmony and the need to avoid fraud or collusion, those issues do not exist when both parties are deceased. In Dressler v. Tubs, 435 So. 2d at 795, the court characterized interfamily immunity as a “disability to sue,” which is extinguished when the basis for the immunity disappears.

Although the son in this case may have had a disability to sue his father while he was alive, the policy rationale underlying the disability disappeared upon both their deaths, and the disability evaporated. As such, the trial court erred and sustained the objection to the son’s estate wrongful death claim against the father’s estate.

TRIAL COURT DID NOT FOLLOW PROCEDURAL REQUIREMENTS WHEN IT ALLOWED THE PLAINTIFF TO AMEND THE COMPLAINT FOR PUNITIVE DAMAGES AGAINST A NURSING HOME.

Carpenters Home Estates v. Sanders, 44 Fla. L. Weekly D1524 (Fla. 2nd DCA June 12, 2019):

Pursuant to section 400.0237(1), a claim for punitive damages may not be brought unless there is a showing of admissible evidence that provides a reasonable basis for recovery of such damages when the criteria in the section are applied. Because a plenary appeal cannot restore a defendant’s statutory right under section 400.0237, appellate courts may use certiorari jurisdiction to review whether the trial court complied with the procedural requirements of the law.

The court then went on to analyze the evidence and concluded that the incident could have resulted from an institutional breakdown without supporting an attribution of the staff’s conduct to the nursing home defendants under a theory of either direct or vicarious liability. The court rejected the expert’s assertion, and explicitly ruled that “none of the admissible evidence implicated the nursing home defendants even in ordinary negligence” for the failure to adequately train staff, let alone for intentional misconduct or gross negligence. Thus, the evidence could not support an amendment for punitive damages.

As such, the court ruled that the trial judge had failed to insure based on sufficient admissible evidence that there was a reasonable basis to believe that the plaintiff could demonstrate by clear and convincing evidence that the recovery of punitive damages could be warranted.

NOTES: Until recently courts were very consistent in looking only at the compliance with the procedural requirements needed before amending to add a punitive damages claim on certs and refrained from assessing the actual evidence that was presented. This case certainly seems to be a far departure from the procedure of yesteryear.

TRIAL COURT PROPERLY CONCLUDED THAT THE CITY WAS IMMUNE FROM SUIT UNDER SECTION 768.28(9)(d)(1), WHICH PROVIDES THAT THE EMPLOYING AGENCY OF A LAW ENFORCEMENT OFFICER IS NOT LIABLE FOR INJURIES CAUSED BY A PERSON BEING PURSUED, AND BASED ON UNDISPUTED FACTS THAT NO REASONABLE JURY COULD HAVE FOUND THAT THE OFFICER ACTED RECKLESSLY OR WITH A DISREGARD FOR HUMAN LIFE.

Ross v. City of Jacksonville, 44 Fla. L. Weekly D1534 (Fla. 1st DCA June 12, 2019):

The plaintiff’s vehicle was struck by a fleeing suspect eluding law enforcement. Plaintiff sued the Jacksonville Sheriff’s Office alleging that the officer’s overly aggressive pursuit breached the duty to conduct law enforcement activities in a manner that does not needlessly endanger citizens.

The City filed a motion for summary judgment stating it was immune under section 768.28(9)(d)(1), because that statute grants immunity if: a) the pursuing officer does not act in a manner in which is so reckless or wanting in care as to constitute a disregard of human life, b) that the pursuing officer who initiated the pursuit reasonably believed the person fleeing had committed a forcible felony as defined in section 766.08, and c) the pursuit was conducted in accord with a written agency policy that contained specific procedures concerning the proper methods to initiate and terminate a high-speed pursuit.

Based upon the evidence presented, and a view of the undisputed facts in a light most favorable to the plaintiff, the court concluded that the trial court was correct, and that no view of the facts could establish that the initial officer’s actions exceeded the bounds of the immunity.

TRAIL COURT ERRED IN DISMISSING COMPLAINT WITH PREJUDICE ON STATUTE OF LIMITATIONS GROUNDS WHERE NOTHING IN THE FOUR CORNERS OF THE COMPLAINT CONCLUSIVELY SHOWED THAT IT HAD RUN–ATTACHMENT OF DOCUMENTS TO A MOTION TO DISMISS DOES NOT ALLOW FOR THEIR CONSIDERATION IN DECIDING THE MOTION.

Enlow v. Wright, 44 Fla. L. Weekly D1543 (Fla. 5th DCA June 14, 2019):

The court began by reminding us that a motion to dismiss is not a motion for summary judgment, and that a trial court may not rely upon depositions, affidavits, or other forms of evidence or speculation as to whether the allegations in the complaint will ultimately be provable. Moreover, the attachment of documents to the motion to dismiss does not allow for their consideration in deciding the motion.

While the statute of limitations may be raised as an affirmative defense on a motion to dismiss for failure to state a claim, it is only successfully raised if its violation appears on the face of the complaint or on the exhibits to the complaint.

In this case, the cause of action for legal malpractice accrued on the date that the plaintiff’s appeal was dismissed, but that date was not included in the complaint or its attachments, and was not incorporated by reference.

Because nothing within the four corners of the complaint conclusively showed the statute had run, it was error to grant the motion to dismiss on those grounds. (Even though that seems like a lot of court time and money to get to when the statute had obviously run).

TRIAL COURT ERRED IN AWARDING PLAINTIFF’S ATTORNEY’S FEES PURSUANT TO SECTION 768.79(6)(b) WHERE COSTS UTILIZED IN DETERMINING ENTITLEMENT TO FEES OF AN EXPERT WHO WAS RETAINED, BUT NEVER DEPOSED AND WHO NEVER TESTIFIED–A TRIAL COURT MAY ONLY CONSIDER THE COSTS TAXABLE ON THE DATE OF THE PROPOSAL, AND BASED ON THE LANGUAGE OF THE GUIDELINES FOR TAXATION OF COSTS—HOWEVER, TRIAL COURT ERRED BY DENYING PREJUDGMENT INTEREST ON THE AWARD OF COSTS.

RJ Reynolds Tobacco Co. v. Lewis, 44 Fla. L. Weekly D1544 (Fla. 5th DCA June 14, 2019):

Fleshing out some of the amorphousness of computing the amount of a proposal for settlement to determine entitlement as well as of prejudgment interest, this case gives insight on both.

First, the court made clear that in computing costs from the date the offer was made (before determining the “judgment obtained” amount), the cost must be taxable and in keeping with the Uniform Guidelines. Thus, the plaintiff could not use the non-testifying expert’s costs in the computation, because such costs are not taxable.

Additionally, the court further ruled that taxable costs are indeed subject to prejudgment interest.

The interest accrues from the date the plaintiff paid the costs, and is in turn recoverable. The case also mentions that prejudgment interest is a lot on attorney’s fees, stating that those are clearly litigation costs also.