Something old something new

FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 32

AUGUST 9, 2024

ERROR TO DENY DIRECTED VERDICT IN SLIP AND FALL CASE WHEN EVIDENCE SUPPORTED ACTUAL NOTICE– EXPERT’S OPINION GIVEN DURING A DEPOSITION MID-TRIAL WAS A “NEW OPINION,” NECESSITATING A NEW TRIAL ON DAMAGES

Seven Restaurants, LLC v. Tuleck, 49 Fla. L. Weekly D1625 (Fla. 1st DCA July 31, 2024):

In this incident at a Burger King, a man reported a slippery, “greasy” floor to the manager after he fell. The manager inspected and found the floor clean and not greasy, though she instructed an employee to “touch it up.” The plaintiff and his wife recorded a video showing the slippery condition, which they presented during the trial.

Following the fall, the plaintiff experienced back pain and, two weeks later, he began treating with a doctor, which ultimately led to back surgery. He suffered bad constipation after the surgery and used an enema to relieve it as the doctor advised. Unfortunately, it appeared that the “forceful enema” use led to a perforated colon, necessitating a second (emergency) surgery, a prolonged hospital stay, and four months of wearing a colostomy bag.

During the discovery deposition, the plaintiff’s treating physician suggested the perforation “could have been” caused by the enema but testified it would be difficult to prove that definitively. When he gave his testimony for trial during an afterhours video deposition on the second day of trial, the doctor revised his opinion, testifying that the colon issues were in fact, linked to the post-surgical enemas within a reasonable degree of medical probability.

The defense sought to exclude the mid-trial evidence, but the trial court denied the motion. The jury reached a verdict in excess of $7 million.

On appeal, the court found that the trial court had properly denied the defendant’s motion for directed verdict on liability. The court concluded that under section 768.0755(1), there was enough evidence of the defendant’s “actual knowledge” of the greasy floor to go to the jury.

However, the court found the trial judge erred in allowing the plaintiff’s surgeon to testify to what it deemed to be a “new opinion,” when the surgeon at first testified the perforated colon “could possibly” have been caused by the enema use post-surgery, and then later said so much more definitively.

In determining how to best handle the issue on re-trial, the appellate court outlined the two approaches: the first, in accordance with the Belmont v. North Broward case, says that when there is an erroneous admission of changed expert testimony at trial, the party may still admit the “new opinion” on re-trial, as part of encouraging the trial’s “truth seeking function.”

The other approach under Keller v. Volk prohibits the use of the new opinion on re-trial, finding that the “freeze frame” approach is a deterrence to intentional or bad faith compliance with the rules and court orders.

The appellate court advised the trial judge to reconcile the two approaches by determining if there has been intentional or bad faith noncompliance with the rules or the court’s order, and depending on the answer to that question, rule on whether the plaintiff could admit the new opinion on retrial.

TRIAL COURT ABUSED ITS DISCRETION IN DENYING PLAINTIFF’S MOTION FOR ADDITUR IN THIS CASE, AFTER JURY AWARDED THE PLAINTIFF NO DAMAGES FOR HIS PAIN AND SUFFERING, DESPITE SUFFERING SECOND-DEGREE BURNS (WHICH DID HEAL)

McGary v. Pacific Daytona, LLC, 49 Fla. L. Weekly D1632 (Fla. 5th DCA August 2, 2024):

The plaintiff suffered second-degree burns after stepping into overheated water in a hotel Jacuzzi. The evidence established that the temperature should have been 110 degrees but was actually 160 degrees.

The plaintiff sought medical expenses and lost wages in the amount of $25,000, and pain and suffering.

The jury found the plaintiff 60% at fault (the hotel 40%), and awarded him $1857 for past medical expenses, $1620 for past lost wages, and nothing in the future for medical expenses and no pain and suffering.

The appellate court concluded that while additurs for pain and suffering are atypical, and rarely appropriate, here there was clear undisputed evidence that he experienced some “at least nominal” pain and suffering in the past.

The court reversed for the trial judge who tried the case to reconsider the motion and award something, and if the trial judge was no longer available, ordered a new trial on past pain and suffering damages only (a real barn burner of a trial for sure).