What the judge giveth, the court taketh away

FLORIDA LAW WEEKLY

VOLUME 45, NUMBER 27

CASES FROM THE WEEK JULY 10, 2020

AFTER THE TRIAL COURT GRANTED A NEW TRIAL FOR THE PLAINTIFF IN AN AUTOMOBILE ACCIDENT CASE BASED ON INSTANCES OF DEFENDANT’S MISCONDUCT DURING TRIAL, THE FOURTH DISTRICT REVERSED AND REINSTATED THE JURY’S DEFENSE VERDICT.

State Farm v. Medina, 45 Fla. L Weekly D1597 (Fla. 4th DCA July 01, 2020):

The plaintiff was rear-ended and sued for permanent injuries she sustained to her lower back. The plaintiff described the impact as “very strong,” but the court said the evidence at trial established that it was a low impact accident with little physical damage to the plaintiff’s vehicle. The plaintiff’s doctors and experts testified that the injury was caused by the accident, while State Farm’s expert testified it was due to age-related degenerative changes in the fifty-four year old plaintiff.

The jury rendered a defense verdict, finding that the accident was not the legal cause of the plaintiff’s injuries. Plaintiff sought a new trial based on several errors made by defense counsel and a defense expert witness (but not claiming that the verdict was against the manifest weight of the evidence). The trial court granted the plaintiff a new trial finding the cumulative effect of four instances of misconduct necessitated such a ruling. The misconduct alleged was as follows: (1) a comment by the defense expert impugning plaintiff’s counsel; (2) an unpreserved comment by the defense expert that a finding in plaintiff’s expert’s report was “clearly incorrect”; (3) defense counsel’s question to plaintiff about whether she retained an attorney before seeking medical treatment; and (4) an unpreserved comment by defense counsel in closing argument regarding State Farm’s wealth.

The Fourth District noted that the standard of review is abuse of discretion, and reminded us that it takes a stronger showing of error to reverse an order granting a new trial than one denying a new trial.

State Farm’s hired doctor stated on cross that he didn’t know if plaintiff’s attorney was asking him a question “but I’m not a plaintiff’s attorney and I don’t give my opinion based on money.” The Fourth District viewed the comment in context, stating that plaintiff’s counsel “relentlessly and aggressively” questioned the defense expert about how much he charged for one case, and how many cases he had testified in, and how much money he had made over the years. While State Farm conceded the comment was not appropriate, the court found that the comment was inadvertent and the result of “extensive witness badgering on part of plaintiff’s counsel.”

Before trial, the judge had granted a motion in limine prohibiting the defense expert from commenting on other experts. Still, the defense expert testified that the plaintiff’s expert’s conclusions were clearly wrong.

The court said that experts may properly explain their opinions by outlining the claimed deficiencies, along with the opposing expert’s methodology, as long as the expert does not attack the opposing expert’s ability, credibility, reputation or competence. While the plaintiff objected, she failed to move for a mistrial after the objection was sustained, and the Fourth District concluded that while the comment was improper and violated the motion in limine, it did not rise to the level of fundamental error (because without moving for a mistrial, the objection was not preserved—remember that!).

The question about when the plaintiff retained an attorney was also improper and irrelevant. Unfortunately, because plaintiff’s counsel had erroneously introduced an unredacted questionnaire into evidence during the plaintiff’s direct examination, defense counsel was permitted to ask that question, eliminating that as a basis for reversible error.

Finally, State Farm improperly interjected its wealth by noting it has a big name, big lights, big tv commercials, and arguing that just because it was on the other side of the case, the jury should not use that to just give the plaintiff money.

The court stated that the plaintiff did not object to those specific improper comments, and they were made after State Farm’s counsel had detailed how the evidence in the case had failed to support plaintiff’s claim that the accident caused her injuries. The court concluded that in context, the comments were not an invitation to decide the case on the improper basis of financial status of the parties.

Finally, in assessing the assertion of cumulative error, the court stated that where multiple errors are found, even if they are deemed harmless individually, the cumulative effect may deny a fair and impartial trial. However, because the court concluded that the comments were either proper, invited by the plaintiff’s attorney, or not so prejudicial as to warrant a new trial, the cumulative effect could not be said to have denied the plaintiff a fair and impartial trial, and as such, the court reversed the order granting a new trial.

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ERROR TO ENTER SUMMARY JUDGMENT BASED ON OPEN AND OBVIOUSNESS IN PREMISES CASE—FACTUAL ISSUES AS TO WHETHER DEFENDANT, THROUGH DESIGN OR MODE OF CONSTRUCTION, CREATED A HIDDEN DANGER THAT A PRUDENT INVITEE WOULD NOT ANTICIPATE.

Echevarria v. Lennar Homes, 45 Fla. L Weekly D1567 (Fla. 3rd DCA July 01, 2020):

The plaintiff sustained injuries from a fall while exiting a model home. She fell on a single step transition which the defendant asserted was both open and obvious, and not inherently dangerous. The plaintiff asserted that she could not see the step going down, as she descended the raised front porch on the adjacent walkway.

The court explained that an uncommon design, or mode of construction that creates a hidden danger that a prudent invitee would not anticipate, may transform multiple floors into an inherently dangerous condition. In this case, viewing the record and the reasonable inferences therefrom in the light most favorable to the plaintiffs, the court reversed summary judgment, concluding that there was an issue of material fact as to whether the developer had created a hidden danger via an optical illusion, that a prudent invitee would not have anticipated.

SUMMARY JUDGMENT PROPERLY ENTERED FOR DEFENDANT WHEN THERE WAS NO EVIDENCE THAT THE DEFENDANT HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE DANGEROUS CONDITION THAT PURPORTEDLY CAUSED THE FALL.

Morales v. Ross Dress For Less, 45 Fla. L Weekly D1569 (Fla. 3rd DCA July 01, 2020):

Pursuant to §768.0755(1), if a person slips and falls on a transitory foreign substance in a business establishment, the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition. Constructive notice may be inferred from either (1) the amount of time a substance has been on the floor; or (2) the fact that the condition occurred with such frequency that the owner should have known of its existence.

In this case, the plaintiff had initially attributed her loss of footing to pieces of smashed plastic, which purportedly originated from a clothes hanger. However, in her deposition, which directly contradicted her verified answers to interrogatories, plaintiff stated she had no knowledge as to the cause of the fall, or the origin of the hanger. Due to this major incongruity, the trial court rejected any reliance upon the written discovery.

Because the case was devoid of facts which would have shown the length of time the pieces were on the floor, or any other salient factor that would have lawfully imputed constructive notice to Ross, the limited evidence presented would have only been enough if the court stacked inferences, and therefore, the trial court’s entry of summary judgment was appropriate.

THE SECOND DISTRICT STANDS BY ITS PRECEDENT (CONFLICTING WITH OTHER DISTRICTS) THAT PLAINTIFF MUST HAVE EVIDENCE THAT A PROSPECTIVE DEFENDANT RECEIVED THE NOTICE OF INTENT BY CERTIFIED MAIL, IN ORDER TO TRIGGER THIS TOLLING OF STATUTE OF LIMITATIONS UNDER §766.106(4).

Boyle v. Samotin, 45 Fla. Weekly D1577 (Fla. 2nd DCA July 01, 2020):

Plaintiff purchased a ninety-day extension of the statute of limitations by filing a petition for an automatic extension pursuant to §766.104(2). One day before the expiration of the extended limitations period, the plaintiff served a notice of intent for medical negligence via certified mail (return receipt requested) to the defendant, pursuant to §766.106(2)(a) and Florida Rule of Civil Procedure 1.650(b)(1). The defendant signed the return receipt three days after the expiration of the extent of the limitations. Plaintiff filed suit thirty-four days after the defendant rejected the claim.

The defendant moved for summary judgment, arguing that plaintiff failed to timely file his lawsuit within the four-year statute of repose. While the trial court initially denied summary judgment, it later granted it based upon the Second District’s prior ruling in Bove v. Naples HMA, 196 So. 3d at 411 (Fla. 2nd DCA 2016). That case stated that the defendant has to sign the return receipt of the presuit notice of intent within the applicable limitations period, in order to toll the statute of limitations.

The court stood by Bove analysis, reiterating that the statute of limitations period is tolled upon the date of receipt, because it is only with that construction of the statute, that the defendant gets the full benefit of the ninety-day investigation period.

However, the court recognized that both the Fourth and Fifth Districts have ruled to the contrary. While it declined to recede from Bove, the court certified conflict with the other two courts.

OBJECTIONS TO THE PRODUCTION OF ATTORNEY-CLIENT AND WORK PRODUCT PRIVILEGE MATERIALS SHOULD BE REVIEWED IN CAMERA.

MiMedx Group, Inc. v. Perring, 45 Fla. L Weekly D1591 (Fla. 4th DCA July 01, 2020):

The Circuit Court compelled production of a report authored by an outside law firm. The Defendant’s audit committee had retained the firm to investigate and advise regarding corporate misconduct.

The trial court departed from the essential requirements of law in overruling its attorney-client privilege and work product objections without first conducting in camera review.

The court admonished that on remand the trial court should carefully reconsider its analysis of Southern Bell Telephone & Telegraph Co. v. Deason, 632 So. 2d 1377 (Fla. 1994) and consider the multiple classifications of documents.

TRIAL COURT PROPERLY DENIED OFFICER’S MOTION TO DISMISS IN PARKLAND SCHOOL SHOOTING CASE—THE CONDUCT ALLEGED IN THE COMPLAINT COULD BE CONSIDERED WANTON AND WILLFUL, AND THEREFORE OUTSIDE THE PARAMETERS OF SOVEREIGN IMMUNITY.

Medina v. Pollack, 45 Fla. L Weekly D1592 (Fla. 4th DCA July 01, 2020):

This case involved the action of an unarmed school security guard who failed to take action to report the fact that he observed Nicholas Cruz exiting an Uber with a gun bag and making a “bee-line” toward the school. The security guard having not only recognized Cruz, but had predicted the year before in a school security meeting, that if anyone was going “to shoot up the school,” it would be Cruz.

The amended complaint asserted that the security guard cared only about himself and a fellow coach, and that his reasons for not calling the Code Red (because he didn’t actually visualize a gun) were “unforgivably despicable” and showed “willful and wanton disregard for the safety of the students and staff on campus”. The officer’s reason for not calling a Code Red was strictly for himself. He said he didn’t want to be the “guy” who might call in a “million cops” for nothing. “Something” told him not to do it. Instead, he allowed Cruz to cross the campus and enter the building where the carnage began.

The court concluded that taken together, and knowing the extreme danger Cruz posed, the security guard’s actions as alleged could constitute conscious and intentional indifference to the consequences of his actions and that he knowingly and purposely failed to call the Code Red. The court properly denied the motion to dismiss the complaint.

ANOTHER RULING FINDING THAT AN IN CAMERA INSPECTION OF DOCUMENTS NECESSARY BEFORE ORDERING PRODUCTION OF” HOSPITAL DISCHARGE PAPERWORK.

Concannon v. Schnotala, 45 Fla. L Weekly D1601 (Fla. 5th DCA July 02, 2020):

Trial court’s order in this case departed from the essential requirements of law because it ordered the production of the plaintiff’s hospital discharge paperwork, without an in camera inspection to prevent the disclosure of irrelevant information.