Are we bound for more Joerg erosion?

FLORIDA LAW WEEKLY

VOLUME 45, NUMBER 50

CASES FROM THE WEEK DECEMBER 18, 2020

TRIAL COURT DID NOT ERR IN LIMITING PLAINTIFF’S EVIDENCE OF PAST MEDICAL EXPENSES TO THE AMOUNT OF THE MEDICARE BILLS, EVEN THOUGH JOERG PROHIBITS THE INTRODUCTION OF THIS LIMITATION AS IT APPLIES TO FUTURE MEDICAL EXPENSES —QUESTION CERTIFIED.

Dial v. Calusa Palms Master Association, 45 Fla. L Weekly D2783 (Fla. 2nd DCA December 11, 2020):

In this slip and fall case, the plaintiff asserted that the trial court should not have limited evidence of the plaintiff’s past medical expenses to the Medicare bills that were indisputably tendered and paid, based on its past decision in Cooperative Leasing, Inc v. Johnson.

In discussing Joerg, the court stated that the Florida Supreme Court had cited to Cooperative Leasing favorably for certain propositions, therefore undermining the argument that it had been overruled by the Florida Supreme Court. The court addressed the tension between the risk of a windfall to the plaintiff, versus the need for full compensation and an understanding by the jury of the plaintiff’s damages.

Because the evidentiary issue raised by the plaintiff was one that frequently arises in negligence cases, and because the court recognized the tension between the competing policies the issue implicated (the balance between limiting evidence of collateral sources to avoid jury confusion while ensuring litigants can present relevant evidence to aid the jury in determining the reasonable value for medical expenses), it certified a question to the Florida Supreme Court asking whether Joerg also prohibits the introduction of past medical expenses, as it does future medical expenses.

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FOURTH DISTRICT AFFIRMS VERDICT EVEN THOUGH COMMENTS AND CLOSING ARGUMENTS WERE GROSSLY IMPROPER, AND THE TRIAL COURT INCORRECTLY OVERRULED THE DEFENDANT’S OBJECTIONS—COURT ADMONISHED PLAINTIFF’S COUNSEL-- TO A FIVE TIME NOTED CLOSING ARGUMENT VIOLATOR -- WHILE LETTING THE CLIENT KEEP THE VERDICT.

R.J. Reynolds v. Kaplan, 45 Fla. L Weekly D2728 (Fla. 4th DCA December 9, 2020):

In this tobacco case, the plaintiff’s counsel made a thinly veiled comparison between tobacco and the Nazis, by referencing Schindler’s List. Counsel also made reference to the horrors from the George Orwell classic, 1984.

The court explained that comments in closing arguments that are designed to appeal solely to passion and sympathy compel a new trial only when the error complained of has resulted in a miscarriage of justice. In this case, because the jury awarded only a quarter of what was requested for compensatory damages, and a much bigger fraction of what was requested for punitive damages, the court believed there was no evidence that a miscarriage of justice had taken place.

That said, the court came down hard on the plaintiff’s lawyer, noting four other cases where his comments did cause reversal, and stating that it will be difficult in the future not to punish an innocent client for the acts of his or her attorney, because that is the only way to curb such behavior.

AN AFFIDAVIT OF A COLOMBIAN LEGAL EXPERT OPINING THAT IT WOULD BE A LEGAL IMPOSSIBILITY TO LITIGATE THE CLAIMS IN COLOMBIA, RENDERED CORRECT THE TRIAL COURT’S DECISION NOT TO TRANSFER THE CASE TO COLOMBIA BASED ON FORUM NON-CONVENIENS CORRECT—REVERSAL, HOWEVER, TO DETERMINE IF INDIANA WAS A PROPER ALTERNATIVE FORUM.

Poultry and Industrial Supplier, Inc v. Incubacol, 45 Fla. L Weekly D2753 (Fla. 3rd DCA December 9, 2020):

A Colombian company that breeds poultry filed suit in Miami Dade County against a Florida Corporation, following its distribution of allegedly faulty farm equipment to the Colombian company. In its original complaint, the plaintiff sued the Florida defendant, as well as an Indiana company that manufactured the equipment, and a North Carolina company that manufactured the failed alarm system.

The defendant sought to dismiss the case based on forum non-conveniens, contending the case should be litigated in either Indiana or Colombia but not Florida. The plaintiff filed the affidavit of a Colombian attorney and law professor who averred that it was not legally possible for a Colombian court to hear the alleged claims against the defendant, because those courts would have no jurisdiction to hear claims against producers of goods from foreign countries. The defendant filed no evidence to controvert those specific arguments relying only upon general case law stating that Colombia was an available and adequate forum.

The court agreed with the plaintiff about Colombia based on the affidavit. However, because there was no evidence filed and no argument made regarding Indiana, the court remanded for further consideration as to whether Indiana was an adequate alternate forum.

WITHOUT DISCUSSING ANY OF ITS REASONING, THE COURT FOUND IT WAS IMPROPER FOR PLAINTIFF TO SUGGEST TO PROSPECTIVE JURORS THAT EMPATHY WAS A PROPER CONSIDERATION, BUT ALSO FOUND IT WAS NOT AN ABUSE OF DISCRETION FOR THE TRIAL JUDGE TO DENY THE INSURER’S MOTION FOR MISTRIAL IN THIS UM CASE.

State Farm v. Knapp, 45 Fla. L Weekly D2767 (Fla. 5th DCA December 11, 2020):

The court agreed with State Farm that it was improper for the plaintiff’s attorney to suggest to prospective jurors that empathy was a proper consideration in reaching a verdict.

However, the court also concluded (without explaining why) why the trial court’s denial of State Farm’s motion for mistrial was not an abuse of discretion.