Adverse inference, even without a duty to preserve.

FLORIDA LAW WEEKLY

VOLUME 46, NUMBER 30

CASES FROM THE WEEK JULY 30, 2021

SPOLIATION JURY INSTRUCTION UPHELD IN TOBACCO CASE WHERE DECEDENT’S HUSBAND ADMITTEDLY DESTROYED HER MEDICAL RECORDS

Adamson v. R.J. Reynolds, 46 Fla. L. Weekly D1679 (Fla. 4th DCA July 21, 2021):

The decedent, who had smoked 50 cigarettes a day, was diagnosed with a lung mass in May of 1992 and died of cancer in 1993. She left behind her husband and 10-year-old daughter. One of the disputed issues in the case was whether the decedent had primary lung cancer (cancer that had originated in her lung and metastasized elsewhere) or secondary lung cancer (cancer that had originated elsewhere but metastasized to the lung).

The only medical records available were 42 pages generated from the decedent’s three-day hospital stay in March of 1993 at a Rhode Island Hospital, where she underwent surgery to treat a metastatic brain tumor. The record stated she had presented with a lung mass in May of 1992. The evidence was that lung cancer is usually diagnosed in people between ages 65 and 75 and that a woman of the decedent’s age would most likely have contracted a gynecological form of cancer at that age.

It was not until July of 2006 that the Florida Supreme Court decided Engle and stated that plaintiffs could file individual claims. In an April 2008 call log, a paralegal at Morgan & Morgan representing the decedent’s husband, memorialized a phone call with him in which the firm was trying to “fill in the blanks on his discovery”. The plaintiff advised that he had shredded the decedent’s medical records two years before because they were so old and he did not think he would ever need them. The defendant sought an adverse inference jury instruction, which the trial court agreed to give.

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First-party spoliation occurs when a party to the action loses, misplaces, or destroys evidence. Prior to the court exercising such a leveling mechanism, the trial court must answer three threshold questions: (1) whether the evidence existed at one time; (2) whether the spoliator had a duty to preserve the evidence; and (3) whether the evidence was critical to an opposing party being able to prove a prima facie case or defense.

The Supreme Court adopted Florida’s Standard Civil Jury instruction 301.11(a) in 2016 as the standard adverse inference instruction. The court analyzed the test and the instruction and found that the evidence certainly could have been relevant, was destroyed, and that even though there may not have been a duty to preserve the medical records, the Supreme Court has made it clear that a duty to preserve is not required for an adverse inference instruction to apply.

On an unrelated note, there is no specific mention about why the defendant would have had access to the plaintiff counsel’s paralegal’s telephone log, but there apparently was a voluntary production advising of the destruction.

The trial court gave the adverse instruction, and the jury reached a defense verdict, which the appellate court affirmed.

WHEN A PARTY CLAIMS PRIVILEGE, THAT PARTY SHOULD BE GIVEN THE OPPORTUNITY TO FILE A PRIVILEGE LOG, AND THE TRIAL COURT SHOULD CONDUCT AN IN-CAMERA INSPECTION OF THE DOCUMENTS CLAIMED AS PRIVILEGED

American Integrity Insurance Co. v. Venable, 46 Fla. L. Weekly D1660 (Fla. 1st DCA July 19, 2021):

In this breach of contract action against an insurance company, the trial court compelled the insurer to produce the documents claimed to be privileged, without giving the insurance company a chance to file a privilege log.

The court instructed that when a party does not produce specifically requested documents because it claims privilege, it must provide a privilege log with the specifically articulated bases for protection from discovery. Upon filing the privilege log, the trial court should then conduct an in-camera inspection of the documents listed.

Finally, the party’s obligation to produce a privilege log does not mature until after its asserted non-privileged objections are resolved.

SUMMARY JUDGMENT IN SLIP AND FALL CASE REVERSED ON THE ISSUE OF NEGLIGENT MAINTENANCE

Dudowicz v. The Pearl on 63, 46 Fla. L. Weekly D1662 (Fla. 1st DCA July 20, 2021):

The plaintiff was a registered guest at the defendant’s hotel when she tripped and fell in her hotel room, and suffered serious permanent injuries. The parties agreed that the photographs taken by the plaintiff’s husband accurately depicted the area which showed an unbeveled, 3/8 inch change in elevation between the tiled entryway and the carpeted floor of the hotel room. Plaintiff sought damages from her fall, asserting that the defendant breached both its duty to warn and its duty to maintain the premises in a reasonably safe condition.

The hotel moved for summary judgment alleging that the open and obvious difference in the floor levels did not constitute a dangerous or hazardous condition sufficient to create a duty to warn or to take necessary corrective action.

The plaintiff opposed summary judgment arguing that the change in the floor level was not open and obvious because it was subtle and disagreed that they had conceded that the change in elevation was obvious. They further argued that the change was a violation of the applicable building codes and prima facie evidence of negligence.

The court explained that there is no duty to warn of open and obvious conditions. The difference in floor levels does not automatically constitute a failure to use due care for safety, however, the accompanying circumstances may transform the change into a dangerous situation. Those circumstances include uncommon design, or mode of construction, which create a hidden danger, which a prudent invitee would not anticipate.

Although the plaintiff claimed she did not notice the change in floor levels, there was no dispute that she did initially cross the transition area and did not trip until she walked back from the carpeted area into the tiled entryway; a vantage point, which clearly showed change in floor levels.

However, even though the court concluded there was no duty to warn, that did not discharge the defendant’s duty to maintain its premises in a reasonably safe condition.

Because building codes are designed to protect the general public, rather than a particular class of individuals, a violation constitutes prima facie evidence of negligence but does not establish negligence per se. The building code violations did support plaintiff’s case that changes in the elevation were required to be beveled, and the hotel’s was not. Also, there was evidence that the defendant had constructive notice of the allegedly dangerous condition because it existed for a sufficient length of time.

This conclusion led the court to reverse the entry of summary judgment on the negligent maintenance claim.

ISSUES OF EXPERT EXPERIENCE AND THE SUFFICIENCY OF AN AFFIDAVIT ADDRESSED IN THE CONTEXT OF A PIP CASE

United Automobile Insurance Co. v. Progressive Rehab, 46 Fla. L. Weekly D1669 (Fla. 3rd DCA July 21, 2021):

In this PIP case, the medical provider clinic filed a motion for summary judgment on the issue of the reasonableness of its charges. The clinic filed an affidavit of its owner and corporate representative asserting that the charges were reasonable.

The insurance company then filed an affidavit of its claims adjuster and records custodian who asserted the charges were not reasonable. The clinic challenged the sufficiency of the affidavit, and the trial court concluded it was insufficient as a matter of law, solely presenting conclusions of law without supporting facts, and containing a purely speculative opinion.

According to Rule 1.510(e), which became effective on April 30, 2021, affidavits that support or oppose summary judgment must be made on personal knowledge, must set forth facts as would be admissible in evidence, and must show affirmatively that the affiant is competent to testify to the matters stated therein. When considering the legal sufficiency of an affidavit, the focus is on whether the affidavit shows evidence of a nature that would be admissible at trial. Affidavits based entirely upon speculation, or supposition and conjecture, are inadmissible at trial, and legally insufficient to create a disputed issue of fact to oppose a motion for summary judgment.

In her affidavit, the claims adjuster stated she had over 20 years of experience reviewing bills from medical providers in South Florida. She further outlined her educational experience and stated she had knowledge of the Medicare Fee Schedule, the CHAMPUS/Tricare Fee Schedule, and the Workers’ Compensation Fee Schedule under which providers in South Florida accept payment. She stated she was familiar with the CPT codes billed by Plaintiff in the case, and then concluded the charges billed were unreasonable.

The appellate court found that this opinion was not speculative and was not comprised of bare assertions. Instead, it was based on the witness’ education, experience, and her review of various relevant documents.

The court noted how the Daubert standard for expert opinion does not prohibit expert opinion based on experience as was argued. Indeed, the plain language of § 90.702 permits an expert to be qualified by knowledge, skill, experience, training, or education.

While one of the stated purposes for amending §90.702 was to prohibit “pure opinion” testimony, the Florida Legislature did not create a per se prohibition. It simply brought Florida in line with the Federal Daubert standard, which requires all expert testimony including experienced-based testimony to satisfy Daubert’s reliability inquiry.

Because the adjuster’s affidavit, in this case, was not purely speculative and therefore not legally insufficient, the court reversed the summary judgment entered for the provider and remanded for additional proceedings.

DISMISSAL FOR FAILURE TO ATTEND MEDIATION TOO SEVERE A SANCTION

Alvarez v. Citizens, 46 Fla. L. Weekly D1670 (Fla. 3rd DCA July 21, 2021):

While it is axiomatic that trial courts enjoy broad discretion and flexibility in fashioning sanctions to enforce court orders, including the authority to strike pleadings, it is imperative that courts strike the appropriate balance between the severity of the infraction and the impact the sanction will have, when exercising the discretion to discipline parties in an action.

Dismissal here was not commensurate with the dereliction it sought (failing to attend mediation) and a less draconian alternative was readily available to remedy the delay.

AWARDS OF FIVE THOUSAND DOLLARS FOR PAST PAIN AND SUFFERING AND ZERO FOR FUTURE PAIN AND SUFFERING IN THIS SLIP AND FALL CASE NOT SHOWN TO BE INADEQUATE OR A PRODUCT OF OTHER ERROR

Gelin v. CFH Group, LLC, 46 Fla. L. Weekly D1674 (Fla. 3rd DCA July 21, 2021):

The plaintiff slipped and fell in the stairwell of her apartment building. The jury awarded her a verdict of $44,500.00 comprised of $32,000.00 for past medical expenses, $7,500.00 for future medical expenses, $5,000.00 for past pain and suffering, and $0 for future pain and suffering.

The plaintiff asserted the trial court erred in denying her motion for additur or, alternatively, for new trial in connection with the pain and suffering awards. She asserted the awards were inadequate or the product of other errors committed during the trial.

The court cited cases for the proposition that zero awards for future non-economic damages are warranted where the defendant has presented evidence disputing such damages, or where future non-economic damages are uncertain or speculative, and then concluded that there was no abuse of discretion in denying the plaintiff’s motion for additur or her motion for new trial.

TRIAL COURT ABUSED DISCRETION IN ENTERING SANCTIONS ORDER AGAINST DEFENSE ATTORNEYS FOR ENGAGING IN BAD FAITH LITIGATION IN CONNECTION WITH THE CLIENT’S PURPORTEDLY FALSE TESTIMONY DURING DEPOSITION

Cousins v. Duprey, 46 Fla. L. Weekly D1685 (Fla. 4th DCA July 21, 2021):

In this medical malpractice case with a complex procedural history, the plaintiff suffered from Crohn’s disease and underwent surgery in 1990 to remove diseased tissue. The defendant's doctor first started treating the plaintiff nine years later. In 2007, the plaintiff’s gastroenterologist referred her to a doctor to surgically remove a stricture and reconnect the small bowel. The client had surgery in 2008, and in the summer of 2009 suffered another flare-up of her Crohn’s disease.

The plaintiff sued the doctor who performed the 2008 surgery for failing to remove the stricture.

During his deposition, the defendant's doctor testified that he had taken out all of the strictured areas, and everything that looked like disease. He said he believed he took out all of the disease. Plaintiff’s counsel impeached the defendant's doctor with the fact that the surgical report did not mention that fact. At a subsequent deposition, the doctor’s standard of care expert testified that the doctor did not remove any stricture at the disputed site and that the doctor was mistaken in his deposition.

During opening, defense counsel advised the jury that the doctor would say he did not remove the stricture and that he had said many things in his deposition because he was being harangued to the point where he would have said anything. When asked, defense counsel admitted there was no errata sheet filed. The plaintiff argued that given the time and money expended in preparing for trial, the only appropriate remedy would be to strike the doctor’s pleadings and have them pay attorneys’ fees and costs because there was no way to un-ring the bell. The trial court suspended the trial and asked for written motions.

At the sanctions hearing, the trial court advised the doctor of his Miranda rights and then the doctor testified that the ileocolonic anastomosis did not appear to be clinically significant at the time of his operation, and he did not testify as such during the deposition. He testified that it was not the first time he was offering the testimony because he testified that it was his intention to testify that he had purposely left this stricture because it was not clinically significant.

When asked why he denied allegations that he did not remove the culprit stricture in his answer and affirmative defenses, he testified he did not recall telling the plaintiff he had removed the stricture, but that normally he would say they took care of the disease. His interrogatories also were not updated. Defense counsel testified when he met with his expert, he realized the doctor had made some misstatements in his deposition.

The trial court entered an order partially granting the plaintiff’s motion for sanctions and precluding the doctor and his experts from claiming that “he did not remove the culprit stricture” at the ileocolonic anastomosis as a matter of medical judgment because it was not pled as an affirmative defense.

The court found that the doctor did not tell the truth during the deposition and then in turn concealed other elements of his defense. The trial court found that both defense counsel, upon learning of false testimony, purposely did not bring the testimony to the attention of the plaintiff, her attorney, or the court prior to the second day of trial to gain an unfair advantage. The court also found there was an abundance of evidence that the stricture had not been removed that mitigated the false testimony.

Still, the trial court awarded attorneys’ fees and costs against the doctor and defense counsel, jointly and severally, and awarded almost $300,000.00 to the plaintiff in sanctions. Plaintiff then settled with the doctor and the sanctions order was pending against defense counsel only.

The defense attorneys argued they did not engage in fraudulent or litigation misconduct because the doctor’s sworn testimony was not perjurious. There was no evidence that defense counsel suborned the false deposition testimony in interrogatory responses, and defense counsel was not required to file an errata sheet or update discovery responses. The court also found no prejudice to the plaintiff in light of the settlement.

Because the plaintiff had admitted that they thought the doctor was mistaken and was not committing fraud, the court found there could not be sanctions for fraud. Also, because defense counsel reasonably believed the interrogatory answers were true, they could not have acted in bad faith or fraudulently as to those.

The Fourth District found that the trial court had misapplied the rules regulating the Florida Bar, namely Rule 4-3.3(a)(2) which provides a lawyer shall not knowingly fail to disclose a material fact to a tribunal when disclosure is necessary to avoid asserting a criminal or fraudulent act. The court found this was somewhat gray as to the violation. It also found that the court had misapplied a Florida Bar ethics opinion because there was no evidence, let alone clear and convincing evidence, that defense counsel engaged in fraud or willful misconduct regarding the interrogatory responses. Medical judgment is also not an affirmative defense according to the court, because the doctor did not admit negligence and therefore medical judgment could not have been an affirmative defense.

The court finally found that the monetary sanctions were excessive and the award neither directly related to the allegedly sanctionable conduct, nor reflected a reasonable number of hours expended which is necessary. Instead, the award encompassed three time periods, the time plaintiff and her counsel expended in the two weeks preparing for trial, the aborted trial time, and time expended in connection with the sanctions motion. Because no new trial was required thanks to the settlement, the pretrial and aborted trial time should not have been awarded as sanctions.

ALLOWING DEFENDANT TO INTRODUCE AMOUNT PAID TO STATES UNDER TWO TOBACCO-LITIGATION SETTLEMENT AGREEMENTS AS MITIGATION EVIDENCE NOT AN ABUSE OF DISCRETION – SETTLEMENTS WERE RELEVANT TO THE JURY’S JOB OF DISCERNING APPROPRIATE DEGREE OF PUNISHMENT AND DETERENTS TO BE IMPOSED DUE TO THE DEFENDANTS ENGLE – RELATED MISCONDUCT

Blundell v. R.J. Reynolds, 46 Fla. L. Weekly D1695 (Fla. 1st DCA July 21, 2021):