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FLORIDA LAW WEEKLY

VOLUME 44, NUMBER 37

CASES FROM THE WEEK OF SEPTEMBER 13, 2019

A MATERIAL WITNESS MAY BE RE-DEPOSED IN A RELATED CASE WHEN PLAINTIFF WAS NOT A PARTY IN THE FIRST CASE WHERE WITNESS WAS DEPOSED, EVEN THOUGH THE ISSUES ARE BASICALLY THE SAME.

Clarke v. Coca-Cola Refreshments, Inc., 44 Fla. L. Weekly D2245 (Fla. 3rd DCA September 4, 2019):

A truck owned by Coca-Cola was involved in a two-vehicle accident that caused the truck to crash into a home where the plaintiff lived. Members of the plaintiff’s family who either occupied or owned the house filed a negligence suit against Coca-Cola, but on the eve of the first lawsuit, those plaintiffs voluntarily dismissed the lawsuit.

After the dismissal, the plaintiff who was not a party to the first action, but who was represented by the same counsel, filed her own negligence lawsuit. She sought damages for lost personal property and displacement from her home as a result of the accident.

During the pendency of her lawsuit, plaintiff sought to depose the Coca-Cola truck driver and obtain production of documents from him. Coca-Cola sought a protective order on the ground that the driver had already responded to multiple discovery requests in the first lawsuit and had sat for two lengthy depositions on the same matter. The trial court granted the protective order.

While the appellate court understood the practical efficiencies that the trial court sought to advance, it concluded that the trial court did not sufficiently consider and balance the plaintiff’s due process rights to full discovery. Oral depositions are considered essential by most trial attorneys, and the plaintiff had not participated in the earlier case in which the driver was deposed; a factor too important to disregard in the granting of the motion for protective order.

Simply because a material witness has undergone extensive questioning in an earlier deposition in a related case is not a justification under the facts of a new case to deny the plaintiff an opportunity to probe further. Depositions are an essential part of discovery practice, and the mere existence of a deposition transcript from an earlier lawsuit involving similar issues does not necessarily preclude a new deposition of a material witness.

While the court acknowledged the hardship on the witness driver to have to sit for another deposition and acknowledges the trial court’s goal of judicial efficiency, plaintiff’s due process rights required another deposition.

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DEPARTURE FROM ESSENTIAL REQUIREMENTS OF LAW TO DENY DISQUALIFICATION OF ATTORNEY REPRESENTING AN OPPOSING PARTY IN A CASE RELATED TO COUNSELS PRIOR LEGAL WORK FOR THE MOVANT.

Blamey v. Menadier, 44 Fla. L. Weekly D2246 (Fla. 3rd DCA September 4, 2019):

A company repairing and selling aircraft parts owned by another company had hired the respondent Menadier to manage the corporation. While working for the corporation, the respondent formed his own corporation. The respondent claimed that the parent company orally agreed to give him 50% of the stock of the other company.

The attorney was hired by the respondent to draft a term sheet in anticipation of the meeting. The attorney had previously performed legal work for the respondent who brought him on board as the corporations’ lawyer. He had never had a formal retainer agreement with the aircraft parts company, and his sole contact with that company was with the respondent.

The lawyer went from representing the aircraft parts company to just representing the respondent in his new corporation. The original corporation then moved to disqualify him. The trial court denied the motion.

The appellate court reversed. Quoting Rule 4-1.9 providing that a lawyer cannot represent a person against a former client where that person’s interests are materially adverse to the former client’s the court found that these matters were “substantially related”, (the work drawing up the term sheet for the transfer was substantially related the lawsuit over the failure to consummate the transfer). As such, the court found the attorney had to be disqualified from the suit against his past client.

NO ABUSE OF DISCRETION IN STRIKING PLAINTIFF’S LATE DISCLOSED AND PURPORTED EXPERT WITNESS ON LIABILITY – PLAINTIFF DID NOT PROVIDE ANY LAW OR JUSTIFICATION FOR THE LATE DISCLOSURE.

Alvarenga v. Milos Enterprises, Inc., 44 Fla. L Weekly D2247 (Fla. 3rd DCA September 4, 2019):

The case arose out of a slip and fall on a wet floor at a McDonald’s franchise.

The trial court had struck the plaintiff’s late disclosed and purported expert witness on liability. The lawsuit was filed in April 2015, and the expert witness disclosures were ordered for February of 2018. The plaintiff complied three weeks later in March of 2018, which was four weeks before the scheduled trial.

The defendant moved to strike the liability expert from the witness list, which the trial court granted without prejudice to the plaintiff to provide for the court’s consideration case law on the necessity of a liability expert in the case. Plaintiff also never filed additional case law, a statement regarding the expert’s proposed testimony, or justification for the untimely disclosure.

The trial court then tried the case without the purported liability expert’s testimony and the jury found for the defendant.

The court affirmed, finding that the plaintiff failed to demonstrate reversible error. In addition to the absence of a proffer and a sufficient record, the court found expert witness issues are within the sound discretion of the trial judge.