For the 26th time, that is not an impermissibly stacked inference!

FLORIDA LAW WEEKLY

VOLUME 47, NUMBER 4

CASES FROM THE WEEK JANUARY 28, 2022

ANOTHER MIS-ALLEGATION OF IMPERMISSIBLY STACKED INFERENCES

Dumigan v. Holmes Regional Medical Center, 47 Fla. L. Weekly D270 (Fla. 5^th DCA Jan. 21, 2022):

In this case that “seemed” like a medical malpractice case, but was ruled not to be, the plaintiff sued the hospital alleging that as a result of inadequate pharmaceutical tracking recall procedures, contaminated Heparin remained at the hospital where the patient plaintiff had surgery, and was administered to him by a physician who had not been informed of the contamination or its recall.

There was an earlier appeal where the hospital claimed that the plaintiffs failed to comply with presuit notice requirements, but the Fifth District ruled that the factual elements did not sound in medical malpractice, but rather in ordinary negligence, obviating the need to comply with those requirements. 

At the close of the plaintiff’s case-in-chief, the hospital moved for a directed verdict arguing that the jury could only find for the plaintiff through the impermissible stacking of inferences. The trial court granted the hospital’s motion.

The appellate court looked to LaBarbera v. Millan Builders, Inc., a case which turned on expert testimony. That court had questioned the application of the rule against stacking of inferences to expert testimony, (and found such application problematic) because expert conclusions are often characterized as inferences.

As LaBarbera articulated, there is a fundamental catch 22 situation created with inference stacking in expert testimony, because to generate an opinion, an expert must rely to some degree on an assumption underlying the hypothetical question.  As a result, unless the expert opinion is based on pure speculation, there cannot be said to be impermissible inference stacking.

Because the trial court erred in directing a verdict in favor of the hospital on this basis, the court reversed and remanded for a new trial.

COURTS DECIDE WHETHER DOCUMENTS IN A BAD FAITH CASE ARE “WORK PRODUCT,” BASED ON WHEN THE MATERIAL WAS CREATED AND WHETHER IT APPLIES TO THE LITIGATION OF THE UNDERLYING CLAIM – CANNOT COMPEL PRODUCTION OF SUCH MATERIAL WITHOUT AN IN-CAMERA INSPECTION

Allstate Insurance Co. v. Ray, 47 Fla. L. Weekly D223 (Fla. 2nd DCA Jan. 19, 2022):

In the middle of litigating the underlying claim, Allstate assigned two adjusters for the anticipated bad faith claim, and also retained outside counsel to consult on it. The parties resolved the case after an excess verdict, and the defendant’s estate then sued Allstate for bad faith.

In its first request to produce, the defendant estate sought documents that included communications between the bad faith lawyers and the bad faith adjusters, as well as notes and documents pertaining to those communications. Some of the documents were created before the tort litigation concluded, and others were created post-verdict.

The trial court rejected the claims of work product and attorney-client privilege as to items that existed prior to the conclusion of the underlying litigation, and ordered production of the remaining documents in Allstate’s privilege log for in-camera inspection, so the court could determine whether the documents related to the defense of the underlying tort claim.

It is well established that all materials contained in the underlying claim and related litigation file material created up to and including the date of resolution of the underlying disputed matter, and those that pertained in any way to coverage, benefits, liability, or damages, are not protected by the work product privilege.  Thus, the test is not simply when the material was created, but whether it pertains to the litigation of the underlying claim. However, to make such a determination, the trial court has to examine the materials in-camera to see if they fall within these categories.

While work product may not exist in bad faith cases, the attorney-client privilege still does. There are cases where an insurer hires an attorney to both investigate the underlying claim and render legal advice, and requests for production may implicate both the attorney-client privilege and the work product privilege. In those cases, the trial court should conduct an in-camera inspection to determine whether the requested materials are covered by attorney-client privilege.

Here, the court ruled that the trial judge departed from the essential requirements of law by blankedly refusing to recognize that the pre-judgment attorney-client communications could be protected by the attorney-client privilege, without conducting an in-camera inspection to determine whether the communications did in fact involve materials that were discoverable.

NOMINAL OFFER OF JUDGMENT UPHELD

City of Miami v. Bencomo, 47 Fla. L. Weekly D243 (Fla. 3^rd DCA Jan. 19, 2022):

The City in this case made a nominal offer of judgment based on its belief that sovereign immunity would bar the plaintiff’s claim. 

Nominal offers may be made in good faith, but to decide that, the trial court must consider whether the offeror has a reasonable basis to conclude that its exposure is minimal at the time of making the offer.

Here, because the plaintiffs’ claims arose from actions of an off-duty police officer, and such actions do not overcome the protection of sovereign immunity, there was a reasonable basis for the nominal offer, because the undisputed record strongly indicated that the defendant City had no exposure in the case.  Because the trial court abused its discretion by making a finding the City’s offer of judgment was made in bad faith without competent and substantial evidence to support it, the court reversed.

IN DETERMINING THE FEE CUSTOMARILY CHARGED IN THE LOCATION FOR SIMILAR LEGAL SERVICES, TRIAL COURT USED THOSE TRYING “ENGLE PROGENY” CASES AS THE PROPER LOCALE, NO MATTER WHERE THOSE ATTORNEYS’ PRIMARY OFFICES WERE LOCATED

Phillip Morris v. Jordan, 47 Fla. L. Weekly D259 (Fla. 1^st DCA Jan. 19, 2022):

In ascertaining the meaning of “the fee customarily charged in the locality for similar legal services” requirement of the multiplier analysis, the defendant asserted that the relevant community was restricted only to attorneys who tried complex product liability cases primarily in Jacksonville (where this case was tried). Conversely, the plaintiffs asserted that Engle litigation is unique among civil litigation, and creates its own relevant legal community. Under these discrete circumstances, the court agreed with the plaintiff.

ERROR TO COMPEL PRODUCTION OF NOTES MADE BEFORE A DEPOSITION BY THE DEFENDANT PURSUANT TO SECTION 90.613, WHERE THE RECORD DOES NOT REFLECT THAT DEFENDANTS CONSULTED THEIR NOTES DURING THEIR DEPOSITIONS – ALSO, ATTORNEY-CLIENT COMMUNICATIONS IMBEDDED IN NOTES SHOULD NOT BE PRODUCED WITHOUT AN IN-CAMERA INSPECTION

Cowan v. Gray, 47 Fla. L. Weekly D274 (Fla. 5^th DCA Jan. 21, 2022):

The defendant driver brought ten pages of handwritten notes to her deposition (her co-defendant husband also brought notes), but did not review them to refresh her recollection. Instead, she said she took the notes to help her recall the crash before her deposition and did it on her own, not at counsel’s direction.  She explained, however, that some of the notes did contain or reference summarized communications that she had with her attorney.

The plaintiff sought to obtain copies of the notes, to which the defendants invoked the attorney-client privilege and work product doctrine. Plaintiff argued that the defendants had used those notes to refresh their recollections. Because the defendants had changed their testimony, the trial court compelled the production of those notes.

The court ruled that the trial judge departed from the law’s essential requirements in three ways:  (1) by not applying the correct law when it ordered production of the notes pursuant to Section 90.613, Fla. Stat. (which allows the production of writings used by a witness to refresh memory while testifying); (2) by ordering production of attorney-client privilege communications embedded in the notes without an in-camera inspection; and (3) by rejecting the work product claim.

Because the defendants did not consult their notes during the deposition, Section 90.613 was inapplicable. Also, there should always be an in-camera inspection when a party asserts protection by the attorney-client privilege.

In this case, an in-camera inspection was unnecessary because it was clear that the defendants had prepared their notes in preparation for their depositions and no other reason, which made those notes protected by the work product doctrine.

Rule 1.280(b)(4) governs discovery requests involving work product, and includes documents prepared in anticipation of litigation.  It is irrelevant for work product purposes that the defendants prepare their notes at their own behest and without counsel’s direction.

Work product is only discoverable based on a showing that the party has a need for the materials in question for the preparation of the case, and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In this case, plaintiff made no effort to meet this burden, instead erroneously relying on Section 90.613. Therefore, the court granted the petition and quashed the trial court’s order.