Is the crisis over?

FLORIDA LAW WEEKLY

VOLUME 44, NUMBER 43

CASES FROM THE WEEK OF OCTOBER 25, 2019

COURT PONDERS WHETHER THE “CRISIS” WHICH RESULTED IN THE ONEROUS MEDICAL MALPRACTICE LAW PRECLUDING ADULT CHILDREN FROM RECOVERING FOR THE MEDICAL MALPRACTICE WRONGFUL DEATH OF A PARENT STILL EXISTS.

Santiago v. Caceres, 44 Fla. L Weekly D2562 (Fla. 2nd DCA October 18, 2019):

In this medical malpractice wrongful death case brought by two adult children, the court found that unless the complaint on its face conclusively shows that the action is time barred, a motion to dismiss based on the statute of limitations or based on the statute of repose cannot be granted.

More importantly, the case looked at the decision in Mizrahi v. North Miami Medical Center, 761 So. 2d at 1043(Fla. 2000), which upheld the constitutionality of §768.21(8), which excludes adult children from being able to pursue wrongful death cases when their parents die due to medical malpractice. In Mizrahi, the Supreme Court found that the class limitations created by that section did not violate the “equal protection guarantees of the Florida Constitution, because the exclusion was rationally related to controlling healthcare costs and accessibility, in the face of what the Legislature deemed a medical malpractice crisis.”

Relying on McCall and North Broward v. Kalitan, the court observed that “crises” are not permanent conditions, and that conditions can change which remove or negate the justification for certain laws. While finding that neither of these cases explicitly abrogated the decision in Mizrahi because the statutes at issue were materially different, the court did find the issue close enough and important enough to certify a question of great public importance to the Florida Supreme Court, asking whether these cases now demonstrate that §768.21(8) violates the equal protection clause of the constitution.

TRIAL COURT ABUSED ITS DISCRETION IN DENYING MOTION TO DISMISS FOR FORUM NON-CONVENIENS WITHOUT CONSIDERING THE KINNEY FACTORS.

Mahinbakht v. Mahinbakht, 44 Fla. L Weekly D2531 (Fla. 4th DCA October 16, 2019):

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COURT QUASHES AMENDMENT FOR PUNITIVE DAMAGES FINDING THAT THE TRIAL COURT FAILED TO INSURE THERE WAS “SUFFICIENT ADMISSIBLE EVIDENCE” TO PROVIDE A REASONABLE BASIS FOR PLAINTIFF TO DEMONSTRATE BY “CLEAR AND CONVINCING EVIDENCE” THAT PUNITIVE DAMAGES WERE WARRANTED.

Carpenters Home Estates, Inc. v. HMS of Lakeland, 44 Fla. L Weekly D2533 (Fla. 2nd DCA October 16, 2019):

Pursuant to §400.0237(1), a claim for punitive damages under the nursing home statute may not be brought, unless there is a showing by “admissible evidence” that plaintiff has a reasonable basis for recovery. The statute creates a substantive legal right for punitive damages in nursing home proceedings, but plaintiff cannot be subject to punitive damages and financial discovery until the trial court makes a determination that there is a “reasonable evidentiary basis” for the recovery of punitive damages.

Because a final appeal cannot restore a defendant’s statutory right under this section, the court said it had certiorari jurisdiction to determine whether the trial court complied with the procedural requirements of the statute in granting the motion for leave to amend.

To establish direct liability, the plaintiff had to show evidence that the nursing home defendants “actively and knowingly participated in intentional misconduct or engaged in contact that constitutes gross negligence and contributed to the loss, damages, or injuries suffered by the claimant.”

To establish vicarious liability, the evidence has to show that an employee or agent of the nursing home has engaged in such conduct, and that an officer, director or manager of the nursing home defendant condoned, ratified or consented to this specific conduct.

While the trial court’s order in this case gave multiple “appalling examples” of staff dropping the ball when it came to the decedent’s care, and while it seemed logical that such incidents could only result from an institutional breakdown, because the trial court’s order identified no admissible evidence to support the attribution of the staff’s conduct to the nursing home defendant under a theory of either direct or vicarious liability, there was no admissible evidence to implicate the nursing home defendants.

Without that, the trial court failed to ensure a reasonable basis to believe that the plaintiff would be able to demonstrate by clear and convincing evidence that the recovery of punitive damages was warranted. Concluding that the trial court failed to follow “the procedural requirements of §400.0237,” the court granted the nursing home’s petition for cert, and quashed the order granting leave to amend the complaint to add punitive damages.

THE SECOND DISTRICT VIEWS WAIVER OF THE PERSONAL JURISDICTION DEFENSE DIFFERENTLY THEN THE THIRD, FOURTH, AND FIFTH DISTRICTS DO, RULING THAT THE FAILURE TO RAISE PERSONAL JURISDICTION IN THE ORIGINAL MOTION TO DISMISS WAIVES IT UNDER RULE 1.140(g) and (h).

Gannon v. Cuckler, 44 Fla. L Weekly D2543 (Fla. 2nd DCA October 16, 2019):

The out-of-state defendant filed a motion to dismiss the plaintiff’s complaint based on forum non-conveniens, and to dismiss counts of the complaint for failure to state a cause of action. The motion did not assert that the court lacked personal jurisdiction over any of the defendants. At the same time, two of the other defendants filed separate answers, which also failed to raise lack of personal jurisdiction.

After some procedural machinations, the defendants filed an amended motion to dismiss, arguing that the claims had to be dismissed for lack of personal jurisdiction. The plaintiff objected, arguing that the defendant’s failure to include personal jurisdiction in its original motion to dismiss resulted in a waiver of that defense under Rule 1.140.

After a very thorough analysis, the Second District agreed with the plaintiff, and found that because the defendant had filed a motion to dismiss and omitted the defense of lack of personal jurisdiction in that initial motion, that the unambiguous terms of Rule 1.140, the defendant waived the ability to raise that defense, and an amended motion could not correct it. The court certified conflict with cases from the Districts as set forth above.

DEFENSE VERDICT AFFIRMED IN SLIP AND FALL – NO ERROR IN ADMITTING CERTAIN RECORDS OR TO UNOBJECTED COMMENTS IN CLOSING – DOCTOR PROPERLY IMPEACHED WITH FINANCIAL BIAS – NO BASIS FOR SPOLIATION INSTRUCTION.

Araujo v. Winn Dixie Stores, 44 Fla. L Weekly D2551 (Fla. 3rd DCA October 16, 2019):

Plaintiff fell at a Winn Dixie and the jury found Winn Dixie 50% negligent and plaintiff 50% negligent, and awarded her $231,000 in damages.

Plaintiff had moved for mistrial during defendant’s opening, when counsel asserted that if plaintiff did not recover, her doctors would not get paid because they were treating under Letters of Protection. While the objection was sustained, the court found the comment was not so inflammatory and prejudicial as to vitiate the fairness of the rest of the trial.

Additionally, plaintiff argued that certain workers’ compensation documents were erroneously admitted over objection, causing irresponsible prejudice, and requiring a new trial. However, the court stated that the record indicated that the documents admitted had redactions made to the workers’ comp and plaintiff agreed to them.

During its cross-examination of one of the plaintiff’s doctors, defendant inquired about the relationship the doctor had with plaintiff’s counsel to ask whether he received income from cases that plaintiff’s firm referred to him. The court ruled that there could be impeachment based on the LOP’s, and that defendant could inquire as to the number of plaintiff’s cases the doctor handled, and the number of times he testified for the plaintiff’s law firm.

The court rejected plaintiff’s reliance on Worley, which involved a defendant asking the plaintiff in deposition if she was referred to a medical specialist by her attorney (which the court found not allowable). The Third District said this case was different, because Worley allows the defendant to establish bias on the part of a treating physician with evidence of an LOP, the percentage of the doctor’s practice that treats plaintiff’s or does CME’s, and income derived from referrals from the plaintiff’s law firm.

Plaintiff also moved for a burden-shifting instruction or an adverse jury instruction based on the fact that Winn Dixie was only able to produce 20 minutes before the incident and 20 minutes after the incident of video footage, even though it had actually taped an hour before and after. The court affirmed that trial court’s denial of these instructions, finding that Winn Dixie had no duty, statutory or otherwise, to maintain the video for the one hour prior and post, and there was no showing that Winn Dixie intentionally destroyed or withheld any evidence and no indication that the plaintiff was significantly prejudiced by showing the footage that was available, having no significant impairment in her ability to prove her underlying lawsuit.

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NO ABUSE OF DISCRETION IN DENYING PLAINTIFF’S REQUEST TO AMEND COMPLAINT ON EVE OF SUMMARY JUDGMENT HEARING IMMEDIATELY PRECEDING SCHEDULED TRIAL DATE TO ALLOW PLAINTIFF TO INJECT A NEW THEORY INTO THE CASE – NO ABUSE IN DENYING PLAINTIFF MOTION TO CONTINUE SUMMARY JUDGMENT HEARING TO PERMIT FURTHER DISCOVERY, WHERE PLAINTIFF FAILED TO SHOW THE AVAILABILITY OF EVIDENCE, ITS RELEVANCE, OR DUE DILIGENCE IN SEEKING IT.

Vella v. Salaues, 44 Fla. L Weekly D2553 (Fla. 3rd DCA October 16, 2019):

A man was hired to assist the primary restoration contractor to restore and repair the owners’ boat. The owners did not actively oversee or supervise the contracted tasks.

While reinstalling a generator inside the engine room, plaintiff detected the odor of gas, and while his boss assured him nothing was wrong, shortly thereafter an explosion occurred causing him to suffer significant burning on his face and body.

Plaintiff sued the property owners and the man who hired him for negligence, arguing that they failed to maintain both the vessel and generator in a reasonably safe condition.

About two months before trial, the defendants filed a motion for summary judgment scheduled four days before the trial was supposed to begin. Two weeks before that hearing, plaintiff filed a motion for leave to file an amended complaint seeking to add a theory that the owners had engaged in negligent hiring practices. The trial court denied leave to amend, along with the subsequent ore tenus motion for continuance of the summary judgment hearing and ultimately granted summary judgment for the defendants.

In explaining why it affirmed these rulings, the court observed that while the policy in Florida is to liberally allow amendments to pleadings where justice so requires, a trial court may exercise its sound discretion, and deny amendments that materially vary from the relief initially sought, or where a case has progressed to a point that the liberality ordinarily to be indulged has diminished.

In this case, following two years of contentious litigation, the plaintiff sought to inject an entirely “novel theory of prosecution” on the eve of the summary judgment hearing. As property owners who employee independent contractors to perform work on their property are generally not held liable for injuries sustained by the employee of an independent contractor, and because this record was devoid of the active participation, exercise of direct control, or failure to warn of concealed conditions by the owners, the newly invoked theory was not grounded in the law. As such, the court concluded that denying the motion for leave to amend was within the trial court’s discretion.

The plaintiff also asserted that the trial court should have granted the continuance of the summary judgment hearing. The court explained that a party seeking a continuance bears the burden of showing by affidavit, the existence, and availability of other evidence, its relevance, the efforts taken to produce it, and that any failure to do so is not the result of the movant’s inexcusable delay. Here, the plaintiff offered no such support, and thus the court found no abuse of discretion in the denial of the continuance.

WITHOUT PROPER AUTHENTICATION, A GOOGLE MAPS PHOTOGRAPH IS NOT ADMISSIBLE.

City of Miami v. Kho, 44 Fla. L Weekly D2555 (Fla. 3rd DCA October 16, 2019):

In a slip and fall case against the City, the plaintiff sought to introduce a Google Maps photograph from an earlier time, to show that the City was on constructive notice of the dangerous condition. The City argued that the plaintiff could not lay the proper foundation to authenticate the image, because no one with knowledge of the sidewalk’s condition on the date the photograph was taken would be testifying.

The trial court refused to find the photograph was self-authenticating under §90.902, but allowed the plaintiff to introduce the photograph through her expert, who testified there was no substantial difference between the Google Maps photograph and a photograph taken of the same location on the date of plaintiff’s fall, even though the expert had not visited the subject location prior to the fall. No testimony was presented by anyone with personal knowledge of the sidewalk’s condition in November of 2007, and plaintiff did not introduce testimony from a Google Maps representative or anyone with control over or personal knowledge of the Google Maps system.

There are two ways to authenticate photographic evidence. First, is the “pictorial testimony” method, which requires a witness with personal knowledge to testify that the image fairly and accurately depicts a scene.

The second is the “silent witness” method, under which the photograph may be admitted upon proof of the reliability of the process which produced the tape or photo. A trial judge may admit a photo under the “silent witness” method after considering the following factors: (1) evidence establishing the time and date of the photographic evidence;

(2) any evidence of editing or tampering; (3) the operating condition and capability of the equipment producing the photographic evidence as it relates to the accuracy and liability of the photographic product; (4) the procedure employed as it relates to the preparation, testing, operation, and security of the equipment used to produce the photographic product, including the security of the product itself; (5) testimony identifying the relevant participants depicted in the photographic evidence.

Because the photograph was not properly authenticated, it should not have been admitted.

Notably, the court reversed and remanded with instructions that judgment be entered for the City because the plaintiff was “not entitled to the second bite of the apple."