Sometimes they are just good ol' fashioned permissible inferences

FLORIDA LAW WEEKLY

VOLUME 46, NUMBER 19

CASES FROM THE WEEK MAY 14, 2021

WITHOUT A MOTION FOR DIRECTED VERDICT, THE TRIAL COURT ERRED IN GRANTING A JUDGMENT NOTWITHSTANDING VERDICT—WOULD HAVE BEEN ERROR TO ENTER ANYWAY BECAUSE RECORD EVIDENCE INCLUDING A KEY STIPULATION, PRECLUDED THE COURT’S RESOLUTION OF THE ISSUES AS A MATTER OF LAW

Martinez v. Lobster Haven, LLC, 46 Fla. L. Weekly D1012 (Fla. 2nd DCA May 5, 2021):

The plaintiffs had a seafood dinner at the Lobster Haven Restaurant, and consumed contaminated oysters. Mr. Martinez experienced severe gastrointestinal symptoms for ten days, and after recovering briefly, began experiencing pain, numbness, and weakness in his legs and feet, two weeks later. He was diagnosed with Guillain-Barre´ Syndrome (GBS), a disorder where the body’s immune system attacks the nerves. He was in the hospital for almost two months.

The defendant unsuccessfully moved for a directed verdict, and the first trial ended in a mistrial due to a hung jury. Before the second trial, the parties discussed various evidentiary stipulations, including a preservation of issues from the first trial.

A major difference between the first trial and the second trial was the defendant’s stipulation that the food it served to the plaintiffs did have a defect in it. The main issue for the jury was causation of the GBS.

The defendant failed to move for a directed verdict at the second trial. This time, the jury reached a verdict for the plaintiffs. The defendant then moved for a judgment notwithstanding verdict, which the trial court granted.

The Second District reversed. Contrary to the defendant’s arguments that the motion for directed verdict had been preserved as part of the stipulations made at the first trial, the court observed that the stipulation regarding the defectiveness rendered the evidence different, and was certainly not susceptible to a motion for directed verdict that had been made previously. Even if it was, the stipulations applied to evidentiary matters, and not to an assessment of the evidence.

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Additionally, the court found that defendant’s argument that the plaintiffs’ expert had relied on stackable inferences was erroneous. The trial judge identified the “purportedly” stacked inferences as follows:

(1) The gastrointestinal illness caused the GBS;

(2) The gastrointestinal illness that led to GBS came from a meal served

at Lobster Haven;

(3) There was only one Lobster Haven gastrointestinal illness, to the exclusion of a second unrelated gastrointestinal illness;

(4) The gastrointestinal illness was caused by the bacteria most associated with raw oysters; and

(5) Plaintiff’s GBS was caused by that gastrointestinal illness.

According to the trial court, since the first three of the experts’ original inferences could not be established to the exclusion of all other reasonable inferences, there was no reasonable evidence for the jury to have found for the plaintiffs.

The Second District explained that the first and fifth inferences were identical, and while Lobster Haven argued that the experts’ testimony began and ended with the inferences that the December 21st GI infection caused the GBS, that inference addressed the ultimate issue on which the expert was permitted to give his opinion.

Utilizing the imagery often associated with inference stacking (a pyramid), the court explained that whether the infection caused the GBS was the vertex of the pyramid.

Conversely, whether Lobster Haven served defective food was the base or foundation of the pyramid. The trial court identified the same inference as both the vertex and the base, leading to the court erroneously creating an inferential step that was not required.

The trial court then noted that the GI illness that led to the GBS came from a meal served at Lobster Haven was an inference, and by doing that, the trial court erroneously combined the ultimate issue – the cause of the GBS – with a stipulated fact for which no inference was required (that the restaurant’s defective food caused the infection).

Importantly, the jury was not required to infer the existence of a defect (as is often the case where there has been impermissible stacking), because here the defect was established through stipulation.

The trial court also identified as a third inference that there was only the December 21st GI infection, meaning that no second GI infection was a third inference that had to be drawn. That too was wrong, because plaintiffs were not required to disprove an alternate causation theory; they just had to introduce evidence that the defective food more likely than not caused the GBS. The fourth inference was also not necessary to the plaintiffs’ case in light of the parties’ stipulation.

There was no stacking of inferences in this case. Instead, the singular inference made by the plaintiffs’ expert was the ultimate conclusion that the GI infection caused the plaintiff’s GBS (something the expert opined about and articulated a factual basis for so doing). As such, the jury was entitled to determine that the defective food was the legal cause of the GBS.

The Second District’s analysis very helpfully illustrates the difference between “impermissible” inference stacking and “permissible” deductions from inferences, and is worth having in your files when this issue comes up (as it invariably does).

AN AMBIGUITY IN THE FORUM SELECTION CLAUSE PREVENTED DEFENDANT FROM RESTRICTING VENUE TO THE COUNTY SPECIFIED

Robles v. United Automobile Insurance Company, 46 Fla. L. Weekly D1009 (Fla. 1st DCA May 4, 2021):

The insured lived in Escambia County and kept his car there. The car was totaled in a hit-and-run accident there. After the insured filed a claim, the insurer cancelled the policy retroactively to its inception, asserting that the insured had failed to disclose prior personal injury protection claims. The insured then sued in Escambia County for declaratory relief.

The trial court transferred venue, to Miami-Dade County based on the forum selection clause, which put venue there based on where the policy was “issued.”

In the insurance context, the term “issued” can mean different things. It can mean delivery to an insured where the insured risk is located, or it can be “issued” where the insurer prepares and signs it. If a term can mean more than one thing, it is ambiguous.

Here, the insurer could have easily made such a restriction more clear if that were its intent. Instead, the language simply reflected the possibility that multiple proper venues for the insurer’s customers would be appropriate throughout Florida, and the court remanded the case back to Escambia County.

ERROR FOR SUCCESSOR JUDGE TO SET ASIDE JURY VERIDICT FOR THE PLAINTIFF AND DIRECT A VERDICT FOR THE DEFENDANT INSTEAD

Hernandez v. Mishali, 46 Fla. L. Weekly D1016 (Fla. 3rd DCA May 5, 2021):

In this case where the multiple plaintiffs brought three separate negligence actions against the defendant, there was evidence that the driver seemed to have zoned out and was unresponsive before rear-ending the plaintiffs’ vehicle. Although there was a great deal of evidence to support that the defendant driver had a syncopal episode right before the accident occurred, causing him to suffer from a loss of control and consciousness, there was no evidence supporting that the driver had turned his head, or had experienced vertigo, which is what generally leads to such an episode.

At the close of the evidence, the defendant moved for a directed verdict. The trial court reserved ruling and submitted the case to the jury, instructing it on the plaintiffs’ claims for negligence and on the defendant’s defense of sudden and unexpected loss of consciousness and believability of witnesses. The jury returned a verdict for the plaintiffs.

Subsequent to the trial, five months later, a successor judge ruled to enter the directed verdict.

Irrespective of whether it was the original or successor judge who made that ruling, when the evidence presented was viewed in a light most favorable to the plaintiffs, it could support a reasonable inference made by the jury that the defendant had not lost consciousness or experienced a syncopal event prior to the accident, and therefore, the directed verdict was improper and the court reversed.

TRIAL COURT PROPERLY QUASHED SUBPOENA AND ISSUED PROTECTIVE ORDER TO PROHIBIT DEFENDANT FROM TAKING DEPOSITION OF PLAINTIFF’S FORMER COUNSEL, WHERE DEFENDANT FAILED TO ALLEGE OR ESTABLISH THAT NO OTHER MEANS EXISTED TO OBTAIN THE INFORMATION SOUGHT

Central Concrete Supermix v. Cancio, 46 Fla. L. Weekly D1022 (Fla. 3rd DCA May 5, 2021):

Taking the deposition of opposing counsel in a pending case is an extraordinary step, which will rarely be justified.

To do so, however, the party must first exhaust less intrusive discovery methods, and then make a showing of necessity and materiality and show that the interest of justice requires such an extraordinary step.

Because that step was not made in this case, the court properly issued the protective order.

TRIAL COURT ERRED IN FAILING TO EXCUSE PROSPECTIVE JUROR WHO EXPRESSED PREVIOUS NEGATIVE EXPERIENCE WITH A SIMILAR TYPE OF CLAIM

Rivas v. Sandoval, 46 Fla. L. Weekly D1024 (Fla. 3rd DCA May 5, 2021):

The plaintiff had been struck by the defendant while turning left. One of the prospective jurors advised during voir dire that he and his son had been in a similar collision, and had been sued. He explained that the plaintiff in his son’s case never even went to the hospital, and that he did not believe that the plaintiff was sufficiently injured to receive the $100,000 policy limits. The juror also explained he was threatened by the plaintiff’s law firm, claiming it would put a lien on his house if he refused to pay the policy limits.

In an attempt to rehabilitate the prospective juror, the defendant’s counsel got the juror to state that he was “open-minded,” and realized that every case is different.

The plaintiff was forced to use a peremptory challenge on that juror after the trial court denied his cause challenge, and then had to accept a juror who had worked for several insurance companies (the request for an additional peremptory challenge was denied).

Once a juror clearly expresses negative feelings, especially in a case where there is a similar type of claim or plaintiff, a later expression that the juror can be fair is insufficient to indicate unequivocally that he or she can set aside those feelings and be impartial. The court reversed for new trial.

TRIAL COURT ABUSED DISCRETION IN DENYING DEFENDANT’S ORE TENUS MOTION MADE AT THE SUMMARY JUDGMENT HEARING TO AMEND ANSWER AND ASSERT AN AFFIRMATIVE DEFENSE

Mishpaja Shajine, Inc. v. Granada Insurance Co., 46 Fla. L. Weekly D1027 (Fla. 3rd DCA May 5, 2021):

Because the defendant had not abused the privilege to amend, the plaintiff would not have been prejudiced by the amendment and the amendment would not have been futile, so it was error to deny the leave to amend.

TRIAL COURT ERRED IN DISMISSING NEGLIGENCE COUNTS AGAINST THE SHERIFF – DUTY OF CARE WAS OPERATIONAL – NO ERROR IN DISMISSING NEGLIGENCE CLAIMS AGAINST INMATE MEDICAL SERVICES BASED ON CLEAR LANGUAGE IN THE CONTRACT PROVIDING NO RIGHT OR CAUSE OF ACTION TO THIRD PARTIES

Williams v. Tony, 46 Fla. L. Weekly D1038 (Fla. 4th DCA May 5, 2021):

An inmate alleged excessive force against Sheriff’s deputies (he had brought food into his cell against policy, put his fists up and refused to get rid of it and the deputies inflicted serious injuries during the process of restraining him).

The trial court had dismissed plaintiff’s negligence counts with prejudice for failure to state a cause of action. Because the plaintiff had alleged an independent common law duty of reasonable care owed by the Sheriff, and because the activities alleged were operational and not barred by sovereign immunity, the court found the negligence count should have survived dismissal.

As far as the claim against Armor, the correctional health services company that was also a defendant, its contract explicitly stated that there would be no right or cause of action for any third party or entity. The court found that language prevented the claim against it.

TRIAL COURT PROPERLY ENTERED SUMMARY JUDGMENT FOR DEFENDANT ON CLAIM OF FALSE ARREST WHERE THE COURT BELIEVED THERE WAS PROBABLE CAUSE TO ARREST THE PLAINTIFF FOR OBSTRUCTION WITHOUT VIOLENCE – ONE JUDGE DISSENTED FINDING THE FACTS WERE PALPABLY SIMILAR TO SO MANY POLICE ENCOUNTERS CAUGHT ON VIDEO OR CELL PHONES

Ford v. City of Boynton Beach, 46 Fla. L. Weekly D1042 (Fla. 4th DCA May 5, 2021):

Law enforcement arrested the plaintiff’s minor son for trespassing at a theater. The woman’s son was accused of sneaking into the movie theater without paying, was caught and was ordered to leave. As he was leaving, he was stopped, and believing the officer to be a security guard, asked him why the forced removal was necessary, until the officer forcibly arrested him by slamming him against the hood of the car.

When the plaintiff mother arrived, her son and the police officers were on a public sidewalk across the street from the movie theater entrance. As she approached the police officers, she was recording with her cell phone. The officers made numerous requests for her to stop recording, and asserted that she was being confrontational in her approach and refused to comply with their instructions to stop recording. After much back and forth about the filming, the mother refused. She was arrested, booked for intercepting oral communications and obstruction without violence, and no charges were ever filed.

The majority found that the plaintiff’s approach to the officers was designed to impede what “should have been a short uneventful exchange of her son’s custody.” It said, rather than discuss the circumstances, she immediately became confrontational and began recording the officers. The majority agreed with the trial court that found the video provided probable cause for the arrest. The court affirmed the summary judgment on the plaintiff mother’s claims.

Judge Warner wrote a detailed dissent reflecting on the state of the world, similar incidents, the reality of filming these encounters, and concluded that it was error to find that these officers had probable cause for the arrest.