Sometimes, what's in writing isn't enough

FLORIDA LAW WEEKLY

VOLUME 45, NUMBER 44

CASES FROM THE WEEK NOVEMBER 6, 2020

REVERSIBLE ERROR FOR THE TRIAL COURT TO EXCUSE EIGHT PROSPECTIVE JURORS BASED SOLELY ON THEIR WRITTEN RESPONSES TO A JURY QUESTIONNAIRE, WITHOUT ALLOWING ANY QUESTIONING BY COUNSEL.

Frogel v. Philip Morris, 45 Fla. L Weekly D2436 (Fla. 4th DCA October 28, 2020):

To winnow the jury pool of 189 prospective jurors, the trial court granted Philip Morris’s request to dismiss eight prospective jurors over plaintiff’s objection, based entirely on their written answers in their questionnaires. Philip Morris had argued that the prospective jurors could not be rehabilitated based on their answers to the written questions.

Fla. R. Civ. P. 1.431(b) confers a right on parties to conduct a reasonable examination of each juror orally. The Fourth District reaffirmed that right, and held it was error to dismiss those prospective jurors without allowing the plaintiff to orally question them. The court found the error especially significant because the record failed to establish that it was “conclusively clear” that the released prospective jurors could not be impartial.

The court explained that while the standard of review for excusing a juror for cause is normally an abuse of discretion, discretion is generally afforded because the trial court has the ability to observe and evaluate the prospective juror’s demeanor and credibility.

However, here, where the trial court did not have a superior vantage point from the appellate court, and where the trial court’s ruling was based entirely on written evidence that the appellate court was in the same position as the trial court in weighing the evidence. Thus, the court used the de novo standard of review as to the written questionnaires.

The court explained how important a reasonable examination of jurors by the parties is to the jury system. The rule is also clear and unequivocal that the right of parties to conduct a reasonable examination of each juror orally must be preserved unless it is “conclusively clear” that a prospective juror is partial (in which case the failure to allow an oral examination will be reversible error).

The court also addressed the admission of a photograph depicting the decedent dining at the Celebrity Room in Palm Beach, as well as testimony that she could go into hotels owned by her family and sign for things without paying. The trial court admitted that evidence over objections based on both relevancy and violation of an order in limine prohibiting evidence of the decedent’s family’s wealth.

Philip Morris introduced the photograph purportedly to refute evidence that the decedent smoked ten hours a day. The court found that such evidence was not relevant to any material issue, nor was the evidence that the decedent could go into hotels and sign for things without paying.

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NO MEETING OF THE MINDS ON A PROPOSAL FOR SETTLEMENT—TRIAL COURT PROPERLY REFUSED TO ENFORCE A SETTLEMENT.

Suarez Trucking v. Souders, 45 Fla. L Weekly D2417 (Fla. 2nd DCA October 28, 2020):

Plaintiff served a $500,000 proposal for settlement on the defendants. It required payment within ten (10) days. Sometime before the proposal was filed, the worker’s compensation carrier had filed its notice of lien.

Upon receipt of the offer, defense counsel contacted plaintiff’s counsel, asking if the $500,000 settlement amount could also include the satisfaction of the worker’s compensation lien. Plaintiff’s attorney unequivocally said no. Still, the defendant issued the check making it payable to the plaintiff, his attorneys, and the worker’s compensation carrier. Defendants then filed a notice of acceptance of the proposal.

After the plaintiff refused to accept the check and “counteroffer,” the defendant filed a motion to enforce the settlement agreement, which the trial court denied. The defendant raised the issue of the settlement on appeal after a verdict for the plaintiff.

The court said that the record clearly demonstrated that the parties differed on certain essential terms of the settlement, and therefore there was no meeting of the minds and no enforceable settlement agreement. A cornerstone of contract law is that to form a binding agreement, the parties must have a meeting of the minds. The court affirmed the trial court’s refusal to enforce the purported settlement.

UNIVERSITY ENTITLED TO SOVEREIGN IMMUNITY FOR SERVICES RENDERED BY ITS EMPLOYEE PHYSICIAN AT A PUBLIC HEALTH TRUST TEACHING HOSPITAL—THE UNIVERSITY PROVIDED HEALTH CARE SERVICES THERE PURSUANT TO THE UNIVERSITY’S AGREEMENT WITH THE HOSPITAL, RENDERING IT AN AGENT AT THE TIME THE PHYSICIAN TREATED THE PLAINTIFF, AND THEREFORE IMMUNE FROM SUIT.

Lazzari v. Guzman, 45 Fla. L Weekly D2426 (Fla. 3rd DCA October 28, 2020):

The plaintiff sued Jackson Memorial Hospital (Public Health Trust d/b/a JMH) as well as the University of Miami. Since 1952, the University has provided healthcare services at Jackson’s teaching hospitals. In 2004, Jackson and the University executed a Basic Affiliation Agreement governing the relationship between the parties pertaining to the treatment of indigent patients.

The defendant doctor was a faculty member and an employee of the University, and treated the plaintiff at his office at Jackson. Plaintiff alleged that the doctor’s negligence resulted in disabilities.

In response to the claim for vicarious liability, the University pleaded entitlement to immunity under §768.28(9)(a)(10)(f). Under these sections, agents acting on behalf of the State cannot be held personally liable in tort or even named as a party defendant in any action, for any injury or damage suffered as a result of any act, event, or omission in the scope of his or her employment or function.

Pursuant to §768.28(10)(f), a private medical school and its physicians are agents of the State when the institution is a nonprofit independent college or university located and chartered in this state, which owns or operates an accredited medical school and has agreed in an affiliation agreement to permit employees to provide patient services as agents of a teaching hospital, and is acting within the scope and guidelines.

The 2011 Basic Affiliation Agreement at issue clearly and unambiguously conferred sovereign immunity on the University by stating that the University or faculty member was an agent of the Trust while acting pursuant to the agreement. As such, the University was entitled to sovereign immunity.

NO ABUSE OF DISCRETION IN GRANTING PLAINTIFF’S MOTION FOR A NEW TRIAL WHERE DEFENSE COUNSEL INTENTIONALLY MISREPRESENTED THAT SOMETHING WAS NOT IN EVIDENCE, WHEN IT ACTUALLY WAS.

We The Best Music v. Stafford, 45 Fla. L Weekly D2428 (Fla. 3rd DCA October 28, 2020):

After defendant’s trial attorney intentionally misrepresented to the trial court that a fire rescue report had not been admitted into evidence, thereby prohibiting it from going to the jury, and after defense counsel made improper and inflammatory arguments during closing argument, the trial judge granted plaintiff’s motion for new trial.

Defense counsel boldly argued to the jury that no one from fire rescue showed up, asserting that the plaintiff never really made such a call to fire rescue. Even when plaintiff’s counsel objected and told the judge there absolutely was a fire rescue report that was in evidence, defense counsel brazenly argued there was not.

The trial court granted the motion for new trial on this basis, and also referenced certain improper statements defense counsel made in closing, about the plaintiff having a “lying mouth” and also stating that he was a “fraud”. The court found there was no abuse of discretion in granting the plaintiff’s motion for a new trial.