Sometime it really is too late

FLORIDA LAW WEEKLY

VOLUME 45, NUMBER 28

CASES FROM THE WEEK JULY 17, 2020

NO ABUSE OF DISCRETION IN EXCLUDING PLAINTIFF’S EXPERT UPDATED OPINIONS DISCLOSED ON THE EVE OF TRIAL—EVEN THOUGH THE PRETRIAL ORDER DID NOT EXPRESSLY REQUIRE UPDATES, THE DISCLOSURE VIOLATED THE JOINT PRETRIAL STIPULATION.

Krysiak v. Dawson, 45 Fla. L Weekly D1613 (Fla. 4th DCA July 08, 2020):

A woman paralyzed on one side of her body, who used a power chair to get around, was hit crossing a road being widened. The plaintiff was thrown from her chair and suffered a fractured ankle, requiring hardware. She was also left with scars that would occasionally break open. The plaintiff lost the movement she had in her ankle before the accident, and this led to difficulty in standing and additional falls.

The defense CME opined that plaintiff had no permanent psychological impairment from the accident. Plaintiff’s expert testified that Plaintiff suffered from PTSD.

The plaintiff listed the treating psychotherapist as a witness, but did not state her anticipated testimony. The trial court’s pretrial order stated that 90 days before trial, all information regarding expert testimony required by Rule 1.280(b)(5)(A) had to be disclosed, further noting that 10 days prior to trial, all discovery had to be completed. The order also required a pretrial stipulation.

To comply, plaintiff adopted the Defendant driver’s witness list, which included the plaintiff’s psychotherapist, but also did not state the substance of the testimony. The case was not reached until February of 2019 (it had been set originally for February 2018). The trial court gave the parties 24 hours notice, and on the morning the court advised about trial, plaintiff’s counsel sent defense lawyers an email stating that the psychotherapist had performed an assessment on the plaintiff in October of 2018, and determined that she suffered from PTSD. Counsel advised that the information on the testimony came in a meeting with the witness several days before trial. Defendants moved to exclude such testimony based on Binger.

During the argument on the issue, defense argued that plaintiff’s counsel waited until after the case was called for trial to disclose the opinion, and that late disclosure would require new depositions of both the plaintiff’s expert and the defense expert, in a case that had been litigated for six years.

Plaintiff’s counsel asserted that because the doctor was a treating psychotherapist and not an expert, that plaintiff’s counsel had no obligation to seek an update, and that excluding the evidence would deny plaintiff the right to put on her testimony. When the trial judge asked plaintiff’s counsel if he wanted a continuance, counsel refused, asking that the expert be permitted to testify to her full opinions. Defense counsel also argued that the court should not reopen discovery in the middle of trial, and urged that the case needed to go forward because it had been pending for so long and the parties were now prepared for trial.

The trial court ruled that it would allow testimony concerning the plaintiff’s symptoms and how the accident affected her, but would not allow discussion of the PTSD diagnosis because of the untimely disclosure.

The jury found the defendant driver 25% responsible, the plaintiff 75% responsible, and found that the defendant construction company had no liability.

The Fourth District found no abuse of discretion in this trial court’s ruling to exclude the new opinion. Reminding us that civil trials are not the “wild west,” where one side ambushes the other at trial, and stated that a Binger analysis also applies to treating physicians, the court ruled that the circumstances resulted in a failure to timely disclose the substance and scope of the doctor’s testimony. The court further stated that while a plaintiff does have the right to present all relevant evidence supportive of her claim at trial, the right is subject to reasonable procedural restrictions to ensure that the process is fair.

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COURT FINDS JURISDICTION OVER FOREIGN DEFENDANT.

International University of the Health Sciences v. Abeles, 45 Fla. L Weekly D1616 (Fla. 4th DCA July 08, 2020):

IUHS is an offshore for-profit private medical school located in St. Kitts and Nevis. It operated a medical school where students take some classes locally, but also attend classes via video conferences in other locations.

Notably, the defendant administered its business in Florida, and to assist with the development and management of its operations, defendant hired the appellee—a resident of Palm Beach County—and entered into an employment agreement with him for his services as a medical education consultant. The underlying lawsuit involved a breach of contract claim.

There was evidence that the school’s CFO had run the company from his Florida residence for eighteen years, that the corporation had a business bank account in Florida, that the board of directors conducted meetings in Florida, and that tuition payments were deposited into a bank account used to pay salaries, make purchases, etc. The court found that all of these contacts were enough for Florida to assert personal jurisdiction over the defendant, because they showed that the defendant conducted substantial and ongoing activity in the State (and both specific and general jurisdiction thresholds were met under these facts).

A STAMP FROM A COURT’S SUMMARY REPORTING SYSTEM (SRS) DOES NOT RIPEN A NON-FINAL ORDER INTO A FINAL ONE, FOR ATTORNEY’S FEES PURPOSES.

Coral Gables Imports v. Suarez, 45 Fla, Weekly D1618 (Fla. 3rd DCA July 08, 2020):

The trial court granted summary judgment, but did not issue a “final” order, with the language of finality. However, the same day, the court affixed an SRS stamp to the order, reflecting that it was final as to all parties, and closing the case. Six days later, the court entered final judgment. Thirty days from that date, the prevailing party filed its motion for attorney’s fees.

Because affixing the SRS stamp does not have the effect of transforming an order that is not final into a final one, the motion for attorney’s fees was, in fact, timely.

AN ATTORNEY WHO PROVIDED LEGAL SERVICES FOR PLAINTIFF IN A CONTINGENCY CASE, BUT WITHDREW DUE TO ETHICAL CONCERNS ABOUT THE CLIENT’S CONDUCT, WHICH COUNSEL BELIEVED WAS DESIGNED TO UNDERMINE THE JUDICIAL PROCESS, WAS STILL ENTITLED TO ENFORCE HIS CHARGING LIEN TO RECOVER FEES IN QUANTUM MERIT.

Hernandez v. Philip Morris, 45 Fla. L Weekly D1625 (Fla. 3rd DCA July 08, 2020).

TRIAL COURT ABUSED ITS DISCRETION IN DISMISSING THE PLAINTIFF’S INITIAL COMPLAINT WITH PREJUDICE, WITHOUT AFFORDING THE PLAINTIFF AN OPPORTUNITY TO AMEND.

Drish v. Bos, 45 Fla. L Weekly D1626 (Fla. 2nd DCA July 08, 2020):

While courts review motions for leave to amend complaint under an abuse of discretion standard, amendments should be freely granted when justice requires, and public policy favors resolving cases on their merits. Courts should be especially liberal when leave to amend is sought, or before a hearing on a motion for summary judgment, and all doubts should be resolved in favor of allowing the amendment.

Refusal to allow the amendment generally constitutes an abuse of discretion, unless it clearly appears that allowing it would prejudice the opposing party, the privilege had been abused, or the amendment would be futile.

While the trial court concluded that all three factors were present in this case (and there was no transcript from the hearing), the court found that the record did not support those conclusions, and therefore the dismissal erroneous.

ERROR TO GRANT SUMMARY JUDGMENT FOR DEFENDANT ON CLAIMS FOR NEGLIGENCE AND NEGLIGENCE PER SE BASED ON VIOLATION OF ELEVATOR SAFETY ACT, WHEN ISSUES OF FACT EXISTED.

Vogel v. Cornerstone Doctors Condominium, 45 Fla. L Weekly D1630 (Fla. 2nd DCA July 08, 2020):

Plaintiff rode up to an office in an elevator. When he was leaving, he called for the elevator again. When it came, he stepped in, not noticing that it was not level. He then fell, injuring his back and neck.

Plaintiff brought three counts: one for negligence, one for a violation of Florida’s Elevator Safety Act (§399.025(5)(b)), and a count for res ipsa loquitur.

During discovery, the owner of the building produced documents showing that it had a maintenance contract with ThyssenKrupp, and showed that the elevator had been inspected each month.

There was also evidence that there had been repeated complaints about the elevator not working properly, and when they would come in, the owner would put an “out of order” sign on the elevator. The owner stated he would then ride the elevator after one of those complaints, and if it worked properly, he would remove the sign.

The owner argued it was entitled to summary judgment because there was no evidence that it was negligent in the maintenance of the elevator. The court observed that notably absent from the statute was any language permitting the owner’s responsibility to be assigned or delegated to a service provider. Therefore, an owner who has not assigned its responsibility for an elevator by a lease, is responsible for the elevator’s safe operation.

The court reversed the summary judgment, finding that there were genuine issues of material fact about whether the owner had responded to the intermittent elevator problems reasonably. It also found that under the Elevator Safety Act, an elevator owner is responsible for the safe operation and proper maintenance of an elevator.

While the owner argued that the Elevator Safety Act did not create a private right of action by an injured party against a property owner, case law holds to the contrary.

Because the plaintiff did not raise any issue on appeal regarding summary judgment under the res ipsa loquitur doctrine, the court did not address it at all.

ERROR TO INCLUDE SHARING PROVISION IN PROTECTIVE ORDER WITHOUT PROOF OF RELEVANCE OF THE PROTECTIVE DISCOVERY TO THE COLLATERAL LITIGATION, AND DISCOVERABILITY OF THE MATERIALS IN THE COLLATERAL JURISDICTION—MAGISTRATE’S ORDER ERRONEOUSLY SHIFTED BURDEN TO DEFENDANT TO DISPROVE PLAINTIFF’S NEED FOR THE SHARING PROVISION.

Samsung SDI, Co. v. Hildreth, 45 Fla. L Weekly D1637 (Fla. 2nd DCA July 08, 2020):

Plaintiff had been injured while using a Samsung battery in conjunction with a vaping device. During the course of litigation, the plaintiff sought discovery materials from Samsung, which Samsung asserted implicated trade secrets or confidential business information. Samsung sought a protective order to which the plaintiffs agreed.

The plaintiffs wanted to include a sharing provision in the protective order that would have allowed him to share the discovery information with other lawyers representing similarly situated plaintiffs. Samsung objected. It argued that before plaintiff could share confidential information, the plaintiff had to show the relevance of the protected discovery materials to the collateral proceedings, as well as the discoverability of the materials under the law of the collateral jurisdiction.

The magistrate had ruled that the materials could be shared under limited circumstances, with lawyers who had currently pending litigation against Samsung involving the same batteries and similar facts.

Citing to two distinguishable decisions where sharing provisions were addressed, the court observed that while courts sometimes favor access to discovery materials for parties engaged in collateral litigation, such access should not be automatically granted. Rather, it should be based on “whether a collateral litigant has established relevance of the protective discovery to the collateral proceedings and discoverability therein.”

In this case, the plaintiffs had presented affidavits from lawyers representing collateral litigants with pending cases against Samsung. But, while it could be argued that the plaintiffs demonstrated relevancy, there was still an issue of discoverability in a foreign jurisdiction. Because the plaintiffs proffered nothing to establish whether the protected materials in the case would be discoverable in the jurisdictions of the collateral litigants, and because none of the collateral litigant lawyers intervened in the current action to establish the need for protected materials, they failed to meet their burden.

Finally, because the magistrate addressed issues arising out of the Sunshine in Litigation Act—a matter outside of the magistrate’s scope—and then made findings that related to the Act, the trial court’s adoption of the remaining portion of the magistrate’s recommended order also constituted a departure from the essential requirements of the law, independent of the sharing provision.

TRIAL COURT ERRED IN ALLOWING PLAINTIFF TO AMEND COMPLAINT FOR PUNITIVE DAMAGES IN A NURSING HOME CASE, WITHOUT EVALUATING ADMISSIBLE EVIDENCE PRESENTED AGAINST THE CRITERIA SET FORTH IN §400.0237(2)(3).

Life Care Centers of America. v. Croft, 45 Fla. L Weekly D1640 (Fla. 2nd DCA July 08, 2020):

Pursuant to §400.0237, a trial judge must evaluate admissible evidence for punitive damages either under a claim for direct liability as specified in subsection (2) of the Statute, or a claim for vicarious liability as specified in subsection (3).

The trial judge in this case did not do that, which the court found was a procedural failure reviewable on certiorari.

The court also took an opportunity to express what it deemed as “the impracticality and in effectiveness of certiorari review of orders permitting punitive damages claims to be added to pleadings.”