I want the top guy.

FLORIDA LAW WEEKLY

VOLUME 44, NUMBER 36

CASES FROM THE WEEK OF SEPTEMBER 6, 2019

CHAIRMAN OF THE BOARD OF SUZUKI COULD BE DEPOSED BASED ON THE UNIQUE KNOWLEDGE AND SPECIFIC FACTS HE POSSESSED RELEVANT TO THE ALLEGATIONS IN THE COMPLAINT – CHAIRMAN’S DEPOSITION WAS REASONABLY CALCULATED TO LEAD TO THE DISCOVERY OF ADMISSIBLE EVIDENCE.

Suzuki Motor Corp. v. Winckler, 44 Fla. L. Weekly D2219 (Fla. 1st DCA August 29, 2019):

The brakes on a man’s Suzuki motorcycle allegedly failed while he was riding it. As a result, he crashed and was paralyzed from the waist down. Four months after the accident, Suzuki issued a recall on the brakes of the subject motorcycle.

In the course of discovery, plaintiff’s counsel sought a letter rogatory from the trial court seeking to depose the Chairman of the Board of Suzuki in Japan. The application stated that the Chairman “possessed unique knowledge about the specific facts relevant to the allegations,” citing the Chairman’s involvement with a document addressing the brake issue and a related email.

Suzuki objected and sought a protective order under the “apex doctrine.” Its position was that such a top-level corporate executive should not be subject to examination when others in the corporation could testify as to the relevant issues. It also filed a declaration from the Chairman, stating he had no independent memory of reviewing or signing the documents regarding the brake issue, and no personal knowledge.

The trial court granted the motion for a letter rogatory and found that the “apex doctrine” hadn’t been applied outside of a governmental context, and could not be applied to a corporate officer in this case. The court also found the Chairman had personal involvement and could uniquely provide case-relevant information due to having personal involvement with the issue.

Suzuki petitioned for a writ of certiorari. The court rejected the “apex doctrine” argument, noting that the essence of the doctrine is that an agency head should not be subject to deposition over objection until the opposing parties have exhausted other discovery and can demonstrate that the agency head is uniquely able to provide relevant information that cannot be obtained from other sources. No Florida court has adopted the “apex doctrine” in the corporate context.

The court also found that there was no demonstration that the trial court’s finding of the Chairman’s deposition being reasonably calculated to the discovery of admissible evidence ­­­departed from the essential requirements of law. Petitions may only be granted where there is a violation of a clearly established principle of law that results in miscarriage of justice.

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ALJ PROPERLY GRANTED PARENTS’ MOTION FOR VOLUNTARY DISMISSAL OF THEIR CLAIM FOR BENEFITS UNDER THE PLAN, WHERE PARENTS EXPRESSED THEIR INTENTION NOT TO ACCEPT ANY FUTURE AWARDS AND PURSUE CIVIL REMEDIES.

Florida Birth-Related Neurological Injury Compensation Association v. Jimenez, 44 Fla. L. Weekly D2193 (Fla. 3rd DCA August 28, 2019):

After their baby was born prematurely and diagnosed with cerebral palsy, the parents filed a “Petition Under Protest” to NICA, based on their baby’s birth-related neurological injury. The parents asserted that the plan is unconstitutional, and stated that they intended to file a lawsuit without pursuing their statutory remedies set forth by the exclusive administrative route established by the Legislature.

A year later, the ALJ issued a partial summary final order determining that the child had sustained a qualifying birth-related neurological injury under the plan and that the parents' claim was compensable under NICA.

The ALJ then issued a summary final order, determining that the statutory notice requirements were excused under §766.316 because of the child’s emergency medical condition at the time of treatment. The ALJ gave the parties 30 days to agree on the amount and payment of an administrative award, and without such an agreement, the ALJ indicated that a hearing would be scheduled, and an award made consistent with §766.31.

In response to that order, the parents advised NICA and the ALJ that they had affirmatively elected not to accept any compensation, and instead decided to pursue the civil action pursuant to §766.303 that provides an exception to NICA if there is clear and convincing evidence of bad faith, malicious purpose, or disregard of human rights or safety, (provided that such suit is filed prior to and in lieu of payment of an award). The parents’ response also stated that they unequivocally expressed their intent to not accept any future award under the plan.

NICA and the hospital moved to strike the parents’ notice of voluntary dismissal. Still, the ALJ entered it, acknowledging the parents’ rights to pursue their civil action. Because the parents properly interpreted §766.309(4) to permit the bifurcation of NICA administrative proceedings to consider compensability/eligibility before determining any amount, they properly maintained that - for reasons of futility, efficiency, and economy - they could not be forced to go through a compensation determination that they had already decided to reject. As such, the court affirmed the dismissal.

ONCE A JUDGE RECUSES HIM OR HERSELF IN ONE OF MULTIPLE PENDING LAWSUITS BASED ON A FAMILY RELATIONSHIP WITH THE DEFENDANT, THE JUDGE SHOULD GRANT THE MOTION TO RECUSE IN OTHER CASES INVOLVING THE SAME DEFENDANT.

Rosales v. Bradshaw, 44 Fla. L. Weekly D2201 (Fla. 4th DCA August 28, 2019):

Any time a judge feels it is necessary to recuse him or herself from a case because of a personal friendship with the attorney, he or she should do so in all of the attorney’s cases. That same principle applies when a judge recuses him or herself based on a relationship with the defendant. As such, the court granted the wit of prohibition.

TRIAL COURT ERRED IN CONCLUDING THAT FOREIGN CORPORATION HAD SUFFICIENT CONTACTS WITH FLORIDA TO JUSTIFY THE EXERCISE OF GENERAL JURISDICTION BASED ON MAINTAINING AN OFFICE IN FLORIDA WITHOUT CONSIDERING WHETHER THE DEFENDANT’S CONTACTS WITH THE STATE WERE SO “CONTINUOUS AND SYSTEMATIC” AS TO RENDER IT ESSENTIALLY “AT HOME” – CASE REMANDED FOR THE TRIAL JUDGE TO APPLY THE CORRECT DUE PROCESS STANDARD.

Imperial Capital, LLC v. Tradewinds LTD., 44 Fla. L. Weekly D2202 (Fla. 4th DCA August 28, 2019):

The defendant is a Delaware corporation with its principal place of business in California. It maintains a small office in Palm Beach County, but the majority of its employees, including most of the executive officers, and all the employees involved in the dispute, worked in California.

Plaintiff alleged that defendant tortiously interfered with its contract with a non-party, based on the actions of an employee during a trade show in New York.

The plaintiff alleged that the defendant was subject to personal jurisdiction in Florida because it maintained an office and conducted regular business in Palm Beach County. The defendant moved to dismiss, arguing that it was not subject to jurisdiction because Florida is not its “home residence.”

The court denied the motion to dismiss finding that there was personal jurisdiction because the defendant maintained “systematic, regular contact” with the state, by conducting “regular continuous business activity” through its office in Palm Beach County.

To determine whether a court can exercise personal jurisdiction over a foreign defendant involves a two-step inquiry: (1) the court must determine whether the complaint alleges sufficient jurisdictional facts to bring the action within the reach of Florida’s long-arm statute; (2) the court must determine whether the defendant has sufficient minimum contacts with the state to satisfy federal constitution due process requirements.

The case involved general, rather than specific, personal jurisdiction because the plaintiff’s claims did not arise from defendant’s activities in Florida. While the defendant conceded that plaintiff alleged sufficient facts to bring the action within the reach of the long-arm statute for general jurisdiction (§48.193)(2), the question was really whether the defendant had sufficient contacts with the state to satisfy constitutional due process requirements.

The trial court concluded that the contacts were sufficient for general jurisdiction because the defendant maintained an office in Palm Beach County where it employs Florida residents and serves Florida clients.

However, in recent years, the Supreme Court has heightened the constitutional due process standard for exercising general jurisdiction over a foreign corporation. The inquiry is no longer whether the corporation’s contacts with the state are “continuous and systematic,” but whether they are “so continuous and systematic as to render the corporation at home in the forum state.”

Because the trial court applied the wrong constitutional due process standard and because the record did not demonstrate or reveal whether the contacts were so continuous and systematic as to render the defendant essentially “at home” in Florida, the court reversed the dismissal and remanded for an evaluation pursuant to the due process standard set forth in the case.

NO ERROR IN ORDERING DEFENDANT TO PRODUCE WRITTEN STATEMENTS MADE BY DEFENDANT’S EMPLOYEES TO ITS IN HOUSE COUNSEL – NOTHING ABOUT THOSE STATEMENTS OR THE AFFIDAVITS SO CLEARLY DEMONSTRATED THAT A MISCARRIAGE OF JUSTICE OCCURRED – THE AFFIDAVIT OF IN HOUSE COUNSEL TRACKING THE FACTORS TO ESTABLISH ATTORNEY-CLIENT PRIVILEGE WERE MERELY CONCLUSORY, AND DID NOT SUSTAIN DEFENDANT’S BURDEN.

The Nemours Foundation d/b/a Nemours Children’s Hospital, Orlando v. Arroyo, 44 Fla. L. Weekly D2225 (Fla. 5th DCA August 30, 2019):

The plaintiffs requested all amendment seven records from the hospital defendant where their child was allegedly injured as a result of medical malpractice. The trial court conducted an in camera review of five employees’ statements and concluded that the hospital failed to sustain its burden of proving that the statements were protected by attorney-client privilege.

Florida’s attorney-client privilege protects only those disclosures necessary to obtain informed legal advice. While the privilege applies to corporations to promote full and frank conversations between them and their counsel, claims of privilege in the corporate context are subject to a heightened level of scrutiny.

To establish whether a document is protected by the attorney-client privilege in the corporate context, the corporation must show: (1) the communication would not have been made but for the contemplation of legal services; (2) the employee making the communication did so at the direction of his or her corporate superiors; (3) the superior made the request of the employee as part of the corporation’s effort to secure legal advice or services; (4) the content of the communication related to the legal services being rendered, and the subject matter of the communication, is within the scope of the employee’s duties; (5) the communication is not disseminated beyond those persons who, because of the corporation structure, need to know its context. The burden of establishing the privilege rests with the party claiming it.

The trial court reviewed the statements and considered an affidavit from the in house counsel. After said review, the courts determined that the statements did not constitute confidential attorney-client communications.

The court noted that the statements were created shortly after the procedure at issue, said nothing about the attorney involvement, did not mention in-house counsel in any way and included no legal analysis. The court found that there was nothing contained in any of those documents that indicated a lawyer’s involvement that it was in a furtherance of the renditions of legal services to the client or that they were in response to an inquiry from in-house counsel.

In denying the petition, the appellate court found there was nothing about the statements, or the affidavit at issue, that so clearly demonstrated that they were made in a rendition of legal services as to compel the court to clear that a miscarriage of justice had occurred. Departure from the essential requirements of law is more than mere legal error and only occurs when there is a violation of clearly established principle of law that results in the miscarriage of justice. Also, the in-house counsel’s affidavit simply tracked the elements of privilege in a conclusory way. Based on the court’s holding, declining to address whether Amendment seven mandated a production of documents that were allegedly protected by the attorney-client privilege.

COURT QUASHES ORDER DENYING DEFENDANT HOSPITAL’S MOTION TO HAVE EX PARTE COMMUNICATION WITH DOCTORS ACCUSED OF NEGLIGENCE AND IN THE HOSPITAL’S EMPLOYEE.

Promise Hospital Florida v. Pringley, 44 Fla. L. Weekly D2226 (Fla. 5th DCA August 30, 2019):

Plaintiff alleged negligence by two doctors employed by the defendant hospital. Defendant moved for an order authorizing ex-parte communication with those doctors, specifically seeking permission to conduct voluntary interviews because they were its employees. The trial court denied the motion.

Under these circumstances, the court granted the petition allowing these interviews.