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FLORIDA LAW WEEKLY

VOLUME 44, NUMBER 38

CASES FROM THE WEEK OF SEPTEMBER 20, 2019

NO ABUSE OF DISCRETION IN DENYING DEFENDANT’S MOTION FOR A NEW TRIAL OR REMITTITUR ON A VERDICT IN EXCESS OF $4 MILLION—PLAINTIFF’S STATEMENTS IN CLOSING ARGUMENT WERE NOT GROUNDS FOR A NEW TRIAL – JURY NOT BOUND BY MORTALITY TABLES IN DETERMINING PLAINTIFF’S LIFE EXPECTANCY.

Castle Builders of Miami, Inc., v. Stephanie Rohm Quirantes, 44 Fla. L Weekly D2280 (Fla. 3rd DCA September 11, 2019):

The verdict arose out of a car accident, which had resulted in a $4.3 million verdict. The evidence established that the defendant was driving his employer’s pickup at 50 miles an hour in an area with a 30 mile per hour speed limit and failed to stop at a posted stop sign.

The 73-year-old plaintiff was a front seat passenger in a sedan struck by the truck, and she sustained serious and permanent injuries, including brain injuries. The plaintiff incurred $947,000 in medical bills and had a current life expectancy of 12.94 years.

During closing, plaintiff’s counsel argued that the defendant had not admitted running the stop sign until mid-trial, that his prior testimony was not the truth, and that he had not previously apologized to the plaintiff. These statements were objected to and sustained. Plaintiff’s argument that the defendant’s conduct was not just negligent, but “horrible,” was also objected to and sustained, and followed by a curative instruction.

The court found no abuse of discretion on the court’s ruling that the statements did not necessitate a new trial.

As to the remittitur, the court found there was an absence of “prejudice, passion or corruption,” as evidenced in the jury’s finding of 5% comparative fault on the part of the driver of the vehicle in which the plaintiff was the passenger. There was also competent substantial evidence to support the four interrogatory damage questions, including the past medical expenses which were stipulated to.

The defendant’s primary complaint regarding damages was that the jury awarded future damages based on an anticipated life expectancy of 15 years, rather than 12.94 years as stipulated pre-trial. The court found that the jury is not bound by the mortality tables, and that based on instruction 501.6, was within its rights to award more time than the tables supported.

That ruling was made in conjunction with testimony from the defense medical expert that the plaintiff had done “extremely well” in her recovery, and that it would be highly unlikely for her to lose ground from that point, and where defense counsel also told the jury that the plaintiff had made a “miraculous recovery.”

Because damages are inherently difficult to measure, such a decision is generally one to be made by the jury and not by an appellate court. The court affirmed the final judgment.

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BAR RULES AMENDED TO ALLOW LAWYERS LICENSED IN OTHER STATES TO BECOME REGISTERED PARALEGALS IN FLORIDA.

In re: Amendments to rule regulating Florida Bar 20-3.1, 44 Fla. L. Weekly S217 (Fla. September 19, 2019):

The Supreme Court adopted the Bar’s suggested amendment to Rule 20-3.1, which allows all lawyers licensed to practice law in a state other than Florida to become registered paralegals, irrespective of whether they are members of a state bar association.

TRIAL COURT PROPERLY COMPELLED DISCOVERY ABOUT FINANCIAL AND PROFESSIONAL RELATIONSHIPS BETWEEN THE DEFENDANTS’ INSURER, EXPERT WITNESSES AND THE DEFENDANT’S LAW FIRM.

Angeles-Delgado v. Benitez, 44 Fla. L. Weekly D2278 (Fla. 3rd DCA September 11, 2019):

Plaintiff served defendant with interrogatories and request for production to obtain information about the financial relationships between the defendants’ expert’s the defendants’ law firm and the insurer pursuant to Boecher. The discovery requests were directed to the defendants but sought information in the possession of their experts, lawyers, and insurer who were not named as defendants.

The defendants asserted that pursuant to Worley, Boecher discovery did not apply to non-parties. The court disagreed. It found that Worley holds only that the attorney-client privilege prevents disclosure of whether the plaintiff lawyer referred the plaintiff to a treating physician.

The court denied the defendant's petition, but cited to the cases which have commented that the law of Worley treats plaintiffs and defendants differently.

TRIAL COURT’S OVERLY CIRCUMSCRIBED VIEW OF CERTAIN CODES IN A SLIP AND FALL CASE STYMIED PROPER CONSIDERATION ON THE ISSUE OF DUTY.

Krueger v. Quest Diagnostics, 44 Fla. L Weekly D2318 (Fla. 2nd DCA September 13, 2019):

An elderly and disabled man fell near a curb in a strip mall parking lot in front of the Quest Diagnostics he was visiting that day.

At trial, the plaintiff asserted that the Florida Accessibility Code for building construction required a minimal distance between a handicap parking space (where the plaintiff had parked) and an accessible entrance to Quest via the shortest accessible route. Plaintiff asserted that the subject parking lot did not provide such a route.

The trial court erroneously concluded that there was a difference between building code provisions that addressed “safety,” and those that addressed “accessibility” as part of the Florida Accessibility Code. According to the trial court, even though the Florida Accessibility Code was part of the Florida Building Code, the Accessibility Code was not a safety code, and as such, the trial court excluded the expert’s testimony related to those codes.

With the plaintiff’s claim effectively eviscerated, the trial court then granted the defendant’s motion for directed verdict.

The Second District concluded that by excluding the plaintiff’s evidence and applying an overly circumscribed view of the Florida Accessibility Code, the circuit court effectively stymied a proper consideration of the issue. As a corollary to that, the court also stated that trial courts cannot find a lack of duty if a foreseeable zone of risk more likely than not was created by the defendant.

With the evidence proffered by the plaintiff, he would have reached the minimum threshold for the jury to consider his negligence claim.