FLORIDA LAW WEEKLY

VOLUME 44, NUMBER 11

CASES FROM THE WEEK OF MARCH 15, 2019

FOURTH DISTRICT REVERSES JUDGMENT FOR THE DEFENDANT WHERE THE TRIAL JUDGE ERRONEOUSLY INSISTED THAT PLAINTIFF PRODUCE DISCOVERY REGARDING THE FINANCIAL RELATIONSHIP BETWEEN HIS ATTORNEY AND TREATING PHYSICIANS (PRE-WORLEY), AND THEN COMPELLED PLAINTIFF’S COUNSEL HERSELF TO TESTIFY ABOUT THAT RELATIONSHIP POST-WORLEY--A POINT WHICH DEFENSE COUNSEL MADE THE FOCUS OF THE TRIAL.

Bellezza v. Menendez, 44 Fla. L. Weekly D630 (Fla. 4th DCA March 6, 2019):

Plaintiff was hit while walking his bicycle across the street. He first saw a chiropractor and later an orthopedist. He had neck surgery which rendered his pain more manageable, and at the time of trial, his medical bills totaled $184,976. The jury apportioned 57.5% of the fault to the plaintiff and determined damages were $20,916.33.

The Fourth District reversed, introducing its opinion by stating that the protection of the attorney-client privilege is what led to its reversal. Before the Florida Supreme Court decided its case Worley v. Central Florida Young Men’s Christian Association, 228 So.3d 18 (Fla. 2017), the trial court had compelled the plaintiff to produce records of all payments made between his attorney’s firm and his treating physicians, which included letters of protection. The trial court had denied plaintiff’s objections to each request based on attorney-client privilege.

When the defendant sought to depose the plaintiff’s attorney, the plaintiff again moved for a protective order arguing that such an inquiry into the attorney’s financial information invaded attorney-client privilege. The court again denied that motion, and the plaintiff’s attorney was deposed.

Before trial, plaintiff moved in limine to preclude the admission of these payments based on the Worley decision which had then been released. The court denied that motion, as well as the plaintiff’s motion seeking to reconsider that ruling.

The defendant then moved to prevent comments about the defendants’ law firm’s relationship with the same treating physicians. That motion, the trial court did grant.

Before trial, defense counsel announced his intention to call the plaintiff’s attorney as a witness at trial. The trial court expressed concern in light of rule 4-3.7 which prohibits attorneys from acting as both counsel and witnesses in the same case. Plaintiff’s counsel again tried to urge the court that Worley had held that certain information concerning the treating physicians and their relationship with trial counsel was protected by the attorney-client privilege and not discoverable. The court responded that it had already gone through that inquiry, that the “horse had left the barn” and then again denied counsel’s request to revisit the issue.

During voir dire, the defense lawyer asked the jurors whether they would have a problem with the plaintiff’s attorney’s credibility because she was both the plaintiff’s attorney and a witness in the trial. One juror expressed that it would be foolish not to question the attorney’s credibility because she knew too much. Plaintiff sought both to strike the juror and move for a mistrial. The court struck the juror but denied that motion for mistrial.

At trial it was revealed that plaintiff’s counsel had referred the plaintiff to his treating physician. Before the defense called plaintiff’s attorney as a witness, the plaintiff renewed his motions to preclude her testimony and for mistrial. Again, both motions were denied.

During counsel’s testimony, the defense attorney questioned plaintiff’s counsel about the letters of protection, her name appearing on plaintiff’s medical records and the amount of money paid by her firm’s trust account to the treating physicians over a five year period. She admitted to having a personal relationship with a couple of the doctors associated with the treating physicians, and admitted to referring some of her clients to those treating physicians, and then negotiating bills with them.

During the jury’s deliberation, it submitted a question asking when the relationship between the attorney and the plaintiff began.

On appeal (after the trial court’s denial of his motion for new trial), plaintiff asserted that the financial relationship evidence and his attorney’s relationship with his treating physicians was not discoverable or admissible at trial and it created insurmountable prejudice because the evidence was irrelevant. The defendant responded that the trial court did not err in admitting the evidence because it did not implicate the privilege, and was relevant to bias.

However, before trial (after discovery) the supreme court in Worley did hold that the financial relationship between a plaintiff’s law firm and the plaintiff’s treating physician is not discoverable because it is protected by the attorney-client privilege. The court noted that Boecher applies to discovery of financial information between law firms and experts but is not applicable to treating physicians.

While letters of protection can establish bias by showing that a physician has an interest in the litigation’s outcome or providing evidence that a physician’s practice is based entirely on patients covered by letters of protection, the attorney-client privilege protects whether a plaintiff’s lawyer referred the plaintiff to a particular physician. Also protected are documents pertaining to agreements between a law firm and treating physicians, and the names of other clients who have been referred to treating physicians.

The court specifically stated that even though Worley discussed discovery and not the admissibility of evidence, it was still dispositive of the issue of admissibility.

The court also found the trial court erred in compelling the plaintiff’s attorney to testify at trial. While the plaintiff’s attorney was initially identified as the person with the most knowledge of the financial records, the firm identified an alternative individual who could testify prior to the deposition. In compelling plaintiff’s attorney to testify, the court forced her to testify regarding her trust account payments made to treating physicians and her personal relationship with these physicians. In short, she was compelled to testify to the prejudice of her own client.

Notably, rule 1.310(b)(6) does not require or contemplate that a corporation produce the witness with the “most knowledge” on a specified topic. In fact, witnesses are not required to possess any personal knowledge at all, allowing corporations being deposed to have more control by permitting them to select and prepare a witness to testify on their behalf.

Additionally, once the testimony of the plaintiff’s attorney was admitted, it became the focal point of the defendant’s case.

On appeal, the plaintiff argued that the trial court also erred in excluding evidence that the defendants’ law firm had made similar referrals and had similar financial relationships with the treating physicians. The court wrote that it agreed with that argument, but based on its holding regarding the privilege with respect to the plaintiff’s attorney’s referral of the plaintiff to his treating physicians and other payments, it was unnecessary for the court to address that issue further, but to say that such evidence is similarly protected by the attorney-client privilege.

Readers of The Week in Torts may recall the case of Younkin v. Blackwelder, a Fifth DCA case reported on March 1st. There, the Fifth District certified to the Florida Supreme Court the question about whether Worley also applies to preclude defense law firms who are not parties to the litigation, from having to disclose its financial relationship with experts that it retains for compulsory medical examinations. The court does not mention the Younkin decision, but in dicta does seem to reach the conclusion which led the Fifth District to certify that explicit question (i.e., whether defense firms have to disclose the information that the supreme court has said plaintiffs’ firms do not have to).

FOURTH DISTRICT REVERSES TRIAL JUDGE’S REFUSAL TO GRANT PLAINTIFF’S RULE 1.540(b) MOTION SEEKING RELIEF AFTER PLAINTIFF MISSED THE COURT’S DEADLINE TO FILE A DEMAND FOR ARBITRATION.

Shah v. Transdermal Delivery Solutions Corp., 44 Fla. L. Weekly D625 (Fla. March 6, 2019):

The plaintiff sought to rescind a stock sale pursuant to Florida Statutes, Chapter 517. Defendants responded with a demand for arbitration pursuant to the sales contract.

Because mediation was a precondition to the right to arbitration, the parties agreed to attend mediation first. Accordingly, the court issued an order abating the trial proceedings pending mediation, noting that if mediation resulted in an impasse and the parties did not file for arbitration by August 1, 2017, the case would be dismissed for lack of prosecution.

The parties reached an impasse, and plaintiff failed to file a demand for arbitration by the court’s deadline. The trial judge then dismissed the case.

Nine days after the missed deadline, plaintiff moved for relief from the dismissal. Plaintiff’s counsel asserted that he missed the deadline due to excusable neglect because of a misunderstanding between him and his legal assistant.

In support of the motion, counsel submitted an affidavit from his legal assistant wherein she explained that it was her first time handling an arbitration case with the American Arbitration Association (AAA). Based on a misreading of the AAA form, the legal assistant believed that the initial request for mediation she filed, also served as a demand for arbitration.

When counsel asked her if she had filed the demand for arbitration before the deadline, she mistakenly informed the attorney that she had. The legal assistant learned that a separate demand for arbitration was required, and that plaintiff had missed the deadline when she contacted the AAA to obtain a list of potential arbitrators.

The trial court denied plaintiff’s motion for relief, concluding that the missed deadline was not excusable neglect under the law because it was not a case of secretarial or clerical mistake, but rather that counsel should not have entrusted the task to the assistant when it was her first time handling an AAA arbitration.

The Fourth District reminded us that excusable neglect includes inaction resulting in clerical or secretarial error, reasonable misunderstanding, a system gone awry or other of the foibles to which human nature is heir. The court also found it was a gross abuse of discretion for the trial court to deny relief upon a timely application accompanied by a reasonable and credible explanation for such inaction.

Although the trial court faulted counsel for entrusting his legal assistant to complete the demand for arbitration form, the form does not even require an attorney’s signature and instead only requires basic case information.

Moreover, counsel had asked his legal assistant before the deadline if she had filed the demand for arbitration and she mistakenly represented that she had. The court said this was the type of secretarial error and reasonable misunderstanding encompassed by rule 1.540(b)’s excusable neglect provision, causing the court to reverse the court’s order denying plaintiff’s motion for relief.

AN ORDER DENYING DISMISSAL UNDER RULE 1.070(j) IS NOT ONE DETERMINING “JURISDICTION OF THE PERSON” AND THEREFORE IS NOT APPEALABLE.

Deep Sea Atlantic N.V. v. Mical Sea Food, 44 Fla. L. Weekly D637 (Fla. 4th DCA March 6, 2019):

Rule 1.070(j) addresses service of process on a defendant within the 120-day time period, or for an extended period upon a showing of good cause. When the trial court denies a motion to dismiss under this rule, the order is not appealable as a non-final order, because it is not an order determining “jurisdiction of the person.”

AN ORDER DISMISSING A COMPLAINT WITH PREJUDICE IS A FINAL APPEALABLE ORDER, AND A MOTION SEEKING TO VACATE THE ORDER DOES NOT CHANGE THE ORDER’S FINALITY.

Lanson v. Reid, 44 Fla. L. Weekly D650 (Fla. 3rd DCA March 6, 2019):

The trial court dismissed the plaintiffs’ amended complaint, and the plaintiffs did not seek rehearing or file the notice of appeal within 30 days.

In this case, the plaintiffs had timely filed a motion to vacate the judgment itself six months later alleging that the dismissal order was void, as it was obtained through fraud on the court.

However, that motion seeking to vacate the judgment did not change the original order’s finality, so the ruling made on that motion (which was 20 months from the date of the dismissal) did not suspend rendition of the final order. The appellate court dismissed the appeal as untimely.

ERROR TO GRANT PARTIAL SUMMARY JUDGMENT FINDING DEFENDANT SOLELY LIABLE FOR REAR-END COLLISION AS A MATTER OF LAW--SUFFICIENT EVIDENCE FOR JURY TO INFER THAT PLAINTIFF WAS PARTIALLY LIABLE.

Restal v. Nocera, 44 Fla. L. Weekly D660 (Fla. 5th DCA March 8, 2019):

In this rear-end collision, the plaintiff testified she was attempting to make a U-turn on an unfamiliar road and began to move toward the median, before realizing that she could not make a U-turn there. She stated that she slowed down somewhere as she was in heavy traffic, but maintained a speed of around 33 mph. The plaintiff testified she did not use her brakes at all or move into the turn lane and shortly thereafter she was hit from behind by the defendant.

The defendant gave a different account. He testified that the plaintiff had slammed on her brakes to try to turn into the median which was not a U-turn median, and that is when the defendant hit her. Defendant said she saw the plaintiff’s brake lights on, that the vehicle had come to stop and that the left tire was a little bit over the dotted median when plaintiff was hit. Defendant admitted he was following closely.

The trial court ultimately ruled that the plaintiff was entitled to partial summary judgment on the rear-end presumption, noting that the defendant admitted he had failed to remain a proper distance behind the plaintiff.

The court reversed the trial court’s decision to grant partial summary judgment on the rear-end presumption of negligence, without allowing consideration of the plaintiff’s comparative fault.

That presumption can be rebutted if there is evidence from which a jury can infer that the front driver was also negligent. It is not a substantive rule of law that supersedes Florida’s comparative negligence system, nor does it completely insulate a negligent lead driver from liability for any comparative negligence. Issues of disputed fact regarding negligence and causation should be submitted to the jury.

In this case, there was undisputed evidence establishing that the defendant struck the plaintiff because defendant was following plaintiff too closely just before the collision. However, while plaintiff was entitled to a partial summary judgment on that issue, there had to be a new trial on the issue of the plaintiff’s comparative negligence, because it was not considered by the jury and should have been.