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FLORIDA LAW WEEKLY

VOLUME 51 NUMBER 5

CASES FROM THE WEEK OF FEBRUARY 6, 2026

VOLUNTARY DISMISSAL OF THE EMPLOYEE DRIVER IS NOT AN “ADJUDICATION ON THE MERITS,” AND THUS DOES NOT TRIGGER THE “EXONERATION RULE” AND DOES NOT WIPE OUT THE VICARIOUS LIABILITY CLAIM AGAINST THE EMPLOYER

Roe v. NPC International, Inc., 51 Fla. L. Weekly D189 (Fla. 5th DCA Jan. 30, 2026).

The plaintiff was on a bicycle when he was struck by a car driven by the defendant employer’s pizza-delivery employee in the course and scope of work. The plaintiff sued both the employee driver and the employer, asserting only vicarious liability against the employer.

On the eve of trial, Plaintiff voluntarily dismissed the employee driver under Rule 1.420, expressly keeping the vicarious liability claim pending against the employer. The employer then argued that because the employee could no longer be found liable due to the dismissal and the expired statute of limitations) the “exoneration rule” barred vicarious liability, based on the Florida Supreme Court’s decision in Tsuji v. Fleet. The trial court agreed.

However, the appellate court reversed. It held the exoneration rule requires an adjudication on the merits exonerating the employee, and the first voluntary dismissal under Rule 1.420(a) is without prejudice, and by the language of the Rule, does not operate as an adjudication on the merits. Because the plaintiff timely filed suit and the dismissal was not an adjudication, Tsuji did not apply to insulate the defendant employer from vicarious liability.

COURT AFFIRMS DAUBERT EXCLUSION OF PLAINTIFF’S CAUSATION EXPERTS; “NO LIVE HEARING” DOES NOT MAKE THE APPELLATE COURT’S REVIEW DE NOVO, AND THE TRIAL COURT DID NOT ABUSE DISCRETION IN FINDING THE OPINIONS UNRELIABLE OR UNHELPFUL TO THE JURY ON “MORE LIKELY THAN NOT” CAUSATION

Williams v. Leesburg Regional Medical Center, Inc., 51 Fla. L. Weekly D191 (Fla. 5th DCA Jan. 30, 2026).

The plaintiff brought a medical malpractice wrongful death case arising from the emergency care of a two-month-old infant which tragically resulted in her death. The plaintiff’s case depended on experts opining that an alleged delay in giving the baby antibiotics more likely than not caused the death.

The trial court excluded the plaintiff’s causation experts under section 90.702 and Daubert.

On appeal, the plaintiff argued the appellate court should apply de novo review because the trial judge relied on deposition transcripts and documents rather than a live evidentiary hearing in reaching his ruling. The plaintiff also argued the trial court “oversimplified” the opinions.

The court rejected both points and affirmed, finding that whether a hearing is live or not does not change the “abuse of discretion” standard of review, so long as the trial court conducts the correct Daubert analysis.

On the merits, the court concluded a reasonable judge could find the opinions were not sufficiently reliable and/or would not assist the jury in deciding whether the alleged delay in antibiotics more likely than not caused the death. The court noted for example, problems such as the lack of literature tying the specific delay window to improved outcomes at the stage of disease the experts assumed, and experts’ inability to move beyond generalities like “earlier is better” to a case-specific, more reliable causal link.

Because a reasonable judge could conclude that the expert testimony was not sufficiently reliable enough to support the plaintiff’s assertion that a delay in antibiotics more likely than not caused the baby’s death, there was no abuse of discretion, and the court affirmed the ruling below.

COURT REVERSES ORDER ALLOWING PUNITIVE DAMAGES AMENDMENT; PLAINTIFFS DID NOT MAKE THE REQUIRED “REASONABLE SHOWING” OF ACTUAL KNOWLEDGE TO SUPPORT INTENTIONAL MISCONDUCT OR THAT THE CONDUCT CLEARED THE HIGH BAR FOR GROSS NEGLIGENCE

Turo, Inc. v. Mobley, 51 Fla. L. Weekly D195 (Fla. 6th DCA Jan. 30, 2026).

The plaintiffs rented a vehicle through the defendant’s on-line rental platform, which matched drivers with owners willing to “rent” their vehicles on a short-term basis. The defendant promoted the subject vehicle on its platform.

When they picked up the vehicle, a tire pressure sensor warning light was illuminated. The plaintiff driver messaged the vehicle owner through the in-app messaging and was told the sensor “is on all the time” and the tires were “great.” Shortly after, the right rear tire blew out, the vehicle fishtailed, left the road, and flipped multiple times, killing one passenger and injuring the others.

The plaintiffs sought leave to add punitive damages, which the trial court granted, relying heavily on (1) the corporate representative’s testimony that the defendant had the ability to could restrict vehicles before renting them on line, including vehicles where warning lights were illuminated; (2) evidence that in 53 of the 79 pre-trip inspections before the plaintiff rented the vehicle, it had the warning light on; and (3) there was evidence that included four post-trip reviews (before the plaintiff rented the vehicle) that reflected low tire pressure issues.

The appellate court reversed the order allowing the amendment. It reiterated that section 768.72 requires a reasonable showing by evidence or proffer and that punitive damages require intentional misconduct or gross negligence.

The court found that the plaintiff could not show “actual knowledge,” since the plaintiffs theorized that the defendant failed to review the pre-trip inspections. Additionally, the post-trip reviews did not provide actual knowledge because in the “feedback” section where they were left, there were no comments made by the defendant. Finally, while the plaintiffs asserted that the driver had messaged the defendant about the tire pressure light, the driver’s message was sent to the actual owner of the vehicle (a non-party to the case), and NOT to the defendant, again fatally undermining the “actual knowledge” claim. The court  rejected plaintiffs’ assertion that they could impute the owner’s knowledge to the defendant based on some type of employer-employee relationship, which the evidence did not bear out.

Sadly, despite these facts, the court further held that even assuming constructive knowledge of a faulty warning light and a failure to restrict the listing, that the plaintiffs could still not meet the high bar for demonstrating gross negligence.

THE COURT ORDERS DISMISSAL OF COUNTS WHERE THE PLAINTIFF’S PRESUIT EXPERT OPINION FAILED TO CORROBORATE ALL OF HIS CLAIMS

Wells v. Quintero, 51 Fla. L. Weekly D162 (Fla. 5th DCA Jan. 23, 2026).

The plaintiff filed a wrongful death medical malpractice case alleging the defendant doctor was negligent in treating a uterine tumor that caused the plaintiff’s wife’s death. In presuit, the plaintiff served a notice of intent that included a corroborating expert opinion that only addressed the defendant doctor’s alleged clinical negligence.

As the case progressed, the plaintiff added new claims, including both an informed consent count as well as a direct negligence count against the defendant group, based on alleged negligence by other employees or agents. The defendants moved to dismiss those new counts, arguing the presuit expert opinion never corroborated them.

The court addressed Florida’s legislative policy relating to medical malpractice, which (allegedly) aims to promote the settlement of meritorious claims at an early stage. The presuit affidavit corroborates the belief that there has been negligence in the care or treatment of the claimant at an early state. The purpose is not just to generally notify a defendant, but to “assure the defendants and the court that that a medical expert has determined that there is justification for the plaintiff’s claim” (citation omitted).

Here, the affidavit contained no opinion about the negligence of the group or its medical staff, meaning that the group defendant received no advanced notice of the claims against it. It also failed to provide notice to the doctor about the claim of the lack of informed consent.

As such, the court reversed the trial court’s denial of the motion to dismiss and directed dismissal of those uncorroborated claims.

SECTION 766.204 “WAIVER” FOR FAILURE TO PRODUCE RECORDS DOES NOT AUTOMATICALLY EXTEND TO A SEPARATE PROVIDER WHO WAS NEVER SERVED WITH A 766.204(1) REQUEST; TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS BY IMPUTING WAIVER TO THE NURSE BASED ON A “LEGAL RELATIONSHIP” THEORY

Bystrak v. McLean, 51 Fla. L. Weekly D185 (Fla. 6th DCA Oct. 6, 2025).

The plaintiff sued multiple providers, including the defendant nurse and the facility entities, asserting that after a colonoscopy she was still sedated, was left alone to dress, and then fell at a surgery center.

The court wrote about Florida’s comprehensive statutory scheme which requires a corroborating medical opinion before a plaintiff may file a medical malpractice lawsuit.

In presuit, the plaintiff argued she was excused from providing the verified written medical expert opinion because the facility entities failed to timely comply with her medical records request. That failure meant that her case could proceed against the facility entities, but the trial court also erroneously found that the waiver extended to the defendant nurse also.

The court granted certiorari in part and quashed the order as to the defendant nurse. The court held the statutory waiver language in section 766.204(2) applies to “that party” who fails to comply, and it was error to impose those statutory consequences on the nurse when the Plaintiff never served him with a 766.204(1) records request. The court specifically rejected the attempt to import the “legal relationship” language (from Rule 1.650) into the statute to expand the waiver.