"It's Frye…no, it’s Daubert"

FLORIDA LAW WEEKLY

VOLUME 44, NUMBER 21

CASES FROM THE WEEK OF May 24, 2019

DAUBERT REDUX.

In re: Amendments to Florida Evidence Code, 44 Fla. L. Weekly S170 (Fla. May 23, 2019):

Pursuant to its exclusive rulemaking authority, the Florida Supreme Court decided to “revisit the outcome of the recommendation on the Daubert amendments.” Its reason for so doing in this matter was that it did not want to require the process to be repeated, or have the parties or the Bar, spend any more time or resources.

In a somewhat of a surprising way, the Court stated that it was receding from it prior decision not to adopt the Legislature’s Daubert amendments to the Evidence Code due to constitutional concerns, which it stated it now believes, were actually unfounded.

The court then wrote that as outlined in the committee’s minority report, the Daubert amendments actually remedy the deficiencies of the Frye standard. Whereas Frye only applies to expert testimony based on new or novel scientific techniques and general acceptance, Daubert provides that trial judges will ensure that any and all scientific testimony or evidence admitted is not only relevant but reliable.

Additionally, the Court expressed that the Daubert amendments will create consistency between the state and federal court with respect to the admissibility of expert testimony, which will promote fairness and predictability within the legal system and lessen forum shopping.

After the court had already decided the issue one way in the DeLisle v. Crane Co., 258 So. 3d 1221, 1229 (Fla. 2018) last year, the Supreme Court has now changed the law with no prompting and one stroke of its judicial pen.

PASSENGER IN RENTAL CAR INJURED IN AN ACCIDENT INVOLVING AN UNINSURED/UNDERINSURED VEHICLE WAS NOT AN “INSURED PERSON” ENTITLED TO UM COVERAGE UNDER THE DRIVER’S POLICY BECAUSE THE RENTAL CAR DID NOT MEET THE POLICY’S DEFINITION OF “COVERED AUTO.”

Progressive Insurance Co. v. Pawelczyk, 44 Fla. L. Weekly D1279 (Fla. 2nd DCA May 15, 2019):

The Plaintiff was injured in an automobile accident while riding as a passenger in a rental car driven by her sister. The sister was insured under a policy issued by Progressive.

The sister was driving the rental car while her vehicle -- which was listed on the Declarations page of her policy with Progressive -- was getting a new transmission. After Progressive settled her sister’s claim, the Plaintiff filed a declaratory judgment action seeking a determination that there was coverage under the policy for her claim.

The policy permitted recovery of damages due to bodily injury sustained by an “insured person” caused by an accident involving an uninsured motor vehicle. An insured person is defined under the UM portion of the policy as a named insured, relative, or any person occupying but not operating the covered auto. A “covered auto” means: (a) any auto or trailer shown on the declaration page, (b) any additional auto; (c) any replacement auto, or (d) any trailer owned by the named insured.

Plaintiff argued the rental vehicle was a “covered auto.” However, to be a covered auto a rental vehicle must be either an additional or a replacement auto. A replacement auto means one that permanently replaces an auto shown on the dec page. Because the rental vehicle was not such a vehicle, or “a permanent replacement” for the Jeep, it was not that.

It was also not an “additional auto” where someone becomes an actual beneficial owner during the policy period.

The Plaintiff contended that her sister was the beneficial owner of the rental vehicle because she had dominion and control over the vehicle. The Court rejected that because if that were the case, the UM coverage would be triggered for every passenger in any vehicle ever driven by a named insured, which would effectively destroy the longstanding distinction between Class I and Class II insureds.

Because the Plaintiff did not meet the policy’s definition of covered auto, there was no coverage for her injuries.

COURT QUASHES ORDER ALLOWING PLAINTIFF TO AMEND HER COMPLAINT BASED ON DEFAMATION – PLAINTIFF DID NOT CLAIM OR PROFFER EVIDENCE THAT EITHER HOSPITAL OR CORPORATE MANAGEMENT PARTICIPATED IN, OR CONDONED, THE ALLEGED DEFAMATION.

Tallahassee Memorial Healthcare v. Dukes, 44 Fla. L. Weekly D1306 (Fla. 1st DCA May 16, 2019):

The Plaintiff worked for TMH as a patient care assistant in the emergency room until she resigned. She then sued TMH for whistleblower retaliation and defamation. The Plaintiff based her defamation claim on the conduct of an emergency room supervisor who allegedly told Plaintiff’s co-workers that she had been terminated for stealing. The real reason was because she was making personal long-distant phone call using TMH’s telephone codes.

Plaintiff moved to amend her defamation count against the hospital to assert a punitive damages claim, and attached an amended complaint alleging the emergency room supervisor was an agent of the principal/employer, and caused false statements about the Plaintiff to third parties to be published. The Plaintiff did not add any evidence that either the hospital or its corporate management participated or condoned the defamation, and said that the director of the emergency room (Plaintiff’s second level supervisor) could not be analogized to the board of directors or a CEO as the case law suggests is needed.

Plaintiff sought to add punitive damages against the hospital based on the conduct of the “director” of the emergency room. The Plaintiff moved pursuant to section 768.72(3)(b) which specifically includes misconduct condoned by the directors of a corporation.

The court observed that the Plaintiff’s motion and proffer lacked any allegation or evidence that corporate management knowingly condoned, ratified or consented to the alleged misconduct. The Plaintiff did not allege that the emergency room employee had a role in corporate management. Nor did she allege, or provide evidence, that corporate management knew about the alleged defamatory conduct by its emergency room director.

On that basis, the hospital argued that the Plaintiff’s punitive damages claim could not go forward without claiming or providing evidence that the hospital’s corporate management “knowingly condoned, ratified or consented to [the] conduct.,” as required by the statute.

Because the Plaintiff failed to allege or cite evidence that corporate management knowingly condoned, ratified or consented to the alleged defamation, the Court should have denied the Plaintiff’s motion to amend.

TRIAL COURT ERRED IN REFUSING TO ALLOW PLAINTIFF TO AMEND COMPLAINT FINDING THERE WAS NOT A “RELATION BACK”.

Halveland v. Florida Department of Corrections, 44 Fla. L. Weekly D1320 (Fla. 1st DCA May 21, 2019):

The Plaintiff, who was the mother and personal representative of the estate of an inmate who died while incarcerated, sued several defendants, including the Department of Corrections for her son’s death. The complaint alleged that the inmate had passed away, and that the autopsy revealed that he had died of blunt force head trauma as result of assault. The decedent’s cellmate was later charged with manslaughter.

As to the wrongful death count against the officers, the complaint alleged that the decedent had noticeable injuries that the officers failed to timely investigate, which led to the delay in necessary medical treatment.

At some point, the Plaintiff sought to amend her complaint to add counts against the officers and the Department of Corrections for cruel and unusual punishment pursuant to Section 1983. The officers defended that the motion was being brought beyond the statute of limitations and that the amended complaint did not relate back to the original complaint. The trial court agreed and dismissed.

The appellate court reversed. While it was undisputed that the statute of limitations had run on the Federal claim, and even when the two complaints allege slightly different facts or theories, as long as the initial complaint has given the defendant fair notice of the general factual scenario of the claim and was timely, amendments stating a new legal theory do relate back. This is true even when the legal theory of recovery has changed, or where the original and amended claims require the assertion of different elements.

It is only when a newly added claim is factually distinct because it does not arise out of the same conduct or transaction as the original, that will not relate back.