Court cracks Binger whip

FLORIDA LAW WEEKLY

VOLUME 46, NUMBER 23

CASES FROM THE WEEK June 11, 2021

TRIAL COURT ABUSED DISCRETION IN ALLOWING TESTIMONY ABOUT SURVEILLANCE VIDEO WHEN DEFENDANT DID NOT DISCLOSE IT UNTIL THREE BUSINESS DAYS BEFORE TRIAL – TRIAL COURT ADMITTED EVIDENCE WITHOUT CONSIDERING AND ANALYZING THE BINGER FACTORS AND MAKING APPROPRIATE FINDINGS ABOUT WHETHER THERE WAS PREJUDICE DUE TO THE LATE DISCLOSURE

Montero v. Corzo, 46 Fla. L. Weekly D1304 (Fla. 3rd DCA June 2, 2021):

In this rear-end collision case, the case had originally been set for trial in 2017. When the case was not reached, it was reset and all prior orders were left in effect. At a calendar call in 2019, the trial court set the case to begin three weeks later.

Three business days before the trial date, the defendant for the first time provided the plaintiff with a video of surveillance recorded in 2019, as well as a surveillance report prepared by an unnamed and undisclosed investigator. Neither the 2019 surveillance video nor the investigator had been disclosed on the witness or exhibit lists, and instead, the defendant’s list broadly and vaguely indicated “any and all surveillance personnel obtaining surveillance film or videotape of the plaintiff.” The exhibit list sounded similar.

The plaintiff moved in limine to preclude the introduction of the video arguing that the untimely disclosed evidence was an ambush on the eve of trial. The trial court denied the motion without conducting a Binger analysis. The jury reached a verdict for the plaintiff; however, it was for far less than the plaintiff believed it should have been, and took an appeal.

The court reminded us that a primary purpose of the Rules of Civil Procedure is to prevent the use of “surprise, trickery, bluff, and legal gymnastics”. The general rule in Florida is that there will be complete disclosure and the mere general reference to a category of witnesses and evidence does not satisfy the requirement of complete disclosure. The failure of a party to properly disclose evidence bars the use of the information unless the trial court finds that the failure to disclose was not willful, that no prejudice will result, or that any existing prejudice may be overcome by allowing a continuance of discovery during a trial recess.

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In Binger, the Florida Supreme Court reaffirmed that in exercising their discretion in determining whether to permit an untimely disclosed witness to testify, trial courts should be guided largely by whether the testimony will prejudice the opposing party. Prejudice under Binger refers to the “surprise” of the objecting party and is not dependent on the adverse nature of the testimony. The court then noted the three Binger factors (ability to cure the prejudice, the level of bad faith and intent in the non-compliance, and the possible disruption of the trial).

It is incumbent upon trial courts to analyze the Binger factors before exercising their discretion to admit or exclude late disclosed exhibits or witness testimony, and the failure to do so will result in reversal as it did here.

COURT REVERSES DENIAL OF A DIRECTED VERDICT AND ENTERS JUDGMENT FOR DEFENDANT IN A SLIP AND FALL CASE BECAUSE PLAINTIFF FAILED TO PRESENT SUFFICIENT EVIDENCE OF FOREIGN SUBSTANCE – EVIDENCE PLAINTIFF PRESENTED REQUIRED THE STACKING OF INFERENCES

Tallahassee Medical Center v. Kemp, 46 Fla. L. Weekly D1258 (Fla. 1st DCA June 1, 2021):

The plaintiff was visiting someone in the hospital on a stormy day. She brought bags of food and drink and was wearing rubber thong flip-flops. Upon rounding past the nurses’ station, she suddenly slipped and fell.

The defendant asserted that the plaintiff had not presented sufficient evidence that the floor was wet to enable the issue to go to the jury, and sought a directed verdict. The trial court denied the motion and the jury awarded the plaintiff over a million dollars for her fractured kneecap.

§768.0755(1) allows plaintiffs to prove constructive knowledge with circumstantial evidence if they can show the dangerous condition existed for a sufficient length of time or occurred with regularity and was therefore foreseeable. In this case, the plaintiff felt something wet but did not see a wet substance on the floor before or after her fall. Nor had anyone else. Witnesses believed plaintiff fell on a wet substance, but no one observed it.

While a plaintiff may use circumstantial evidence like the video evidence showing the fall to prove the case, there are limits to the inferences that may be drawn. Plaintiffs may not stack inferences upon debatable inferences drawn from circumstantial evidence. The rule against stacking inferences protects litigants from verdicts based on conjecture and speculation.

Based on the evidence, the jury would have had to rely on improperly stacked inferences to find the hospital negligent. The plaintiff asserted that the video evidence showed employees dragging bags of used linens and trash into the utility room right near where she fell and argued that if one of those bags contained wet contents and the bag spilled or leaked, that could have caused the fall. The liquid could have also been imperceptible, such that the hospital staff would not have seen it to clean it up and the plaintiff and her boyfriend would not have seen it. The trial testimony indicated that the dragged bags did have the potential to leak and create a safety hazard, or one of the housekeeping carts or metal trays could have spilled the liquid.

However, none of these inferences could be established to the exclusion of other reasonable inferences. The court found it was just as plausible to infer that the wetness came from the plaintiff’s own flip-flops and clothes after she walked into the hospital through a rainstorm. The court reversed and ordered the trial court to enter a directed verdict for the defendant.

NO PREJUDICE TO PLAINTIFF BY LATE DAUBERT CHALLENGE – PLAINTIFFS WERE NOT PREJUDICED WHEN THEY FAILED TO REQUEST A CONTINUANCE OR ACQUIRE A NEW EXPERT – TRIAL COURT PROPERLY EXCLUDED TESTIMONY OF EXPERT UNDER DAUBERT

Huggins v. Siegel, 46 Fla. L. Weekly D1309 (Fla. 1st DCA June 3, 2021):

The plaintiffs asserted that the mother was exposed to dangerous mold during her pregnancy, and this resulted in her child being born with one kidney and suffering a brain injury causing her to suffer emotional distress. Plaintiffs retained a physician to support their claim. Almost two years later, the defendant moved to exclude the physician’s testimony under Daubert. Plaintiff argued the motion was untimely and the court struck plaintiffs’ expert.

While the defendant waited approximately 230 days after deposing the doctor to challenge his testimony, the defendant’s motion was still filed before the deadline provided in the pretrial order. Although the defendant could have challenged the testimony earlier, the plaintiffs were not prejudiced by the delay, because they failed to request a continuance or to acquire a new expert. Thus, there was no abuse of discretion based on the ruling of timeliness.

On a review for abuse of discretion of the Daubert ruling itself, the court agreed that while the expert was a qualified and accomplished doctor, he was not qualified to testify on the issue of causation in this particular case. The physician’s expertise was in infertility. As such, he did not typically treat patients like the plaintiffs and had not been involved in cases involving the disappearance of a kidney in an unborn child.

Additionally, the doctor admitted his opinion was based on the presence of mold in the home during the pregnancy, but the doctor was never provided information stating there was mold. While the doctor speculated that mold does not happen overnight, he still lacked the education and experience to testify as to the presence of mold in the home and his opinion was “a classic example of a common fallacy of assuming causality from temporal sequence.”

COURT REVERSED ORDER DENYING APPELLANT’S MOTION FOR RELIEF FROM ADVERSE FINAL JUDGMENT ENTERED BY A RECUSED JUDGE UNDER CIRCUMSTANCES SHOWING THE JUDGE ENGAGED IN MORE THAN THE MERE MINISTERIAL ACT OF REDUCING A PRIOR ORAL RULING TO WRITING

Olson v. Eco Marine, 46 Fla. L. Weekly D1318 (Fla. 5th DCA June 4, 2021)