Apparently, any ol’ affidavit will do!

FLORIDA LAW WEEKLY

VOLUME 50, NUMBER 29

CASES FROM THE WEEK OF JULY 25, 2025

TRIAL COURT ERRED IN DENYING INSURER’S MOTION TO TRANSFER VENUE – AFFIDAVIT OF CORPORATE REPRESENTATIVE SHOWED WHY CONVENIENCE OF THE PARTIES, CONVENIENCE OF THE WITNESSES AND THE INTERESTS OF JUSTICE SHOULD HAVE RESULTED IN TRANSFER IN THE FACE OF NOCONTRAVENING EVIDENCE PRESENTED BY THE INSURED

Progressive Select v. Walden, 50 Fla. L. Weekly D1554 (Fla. 4th DCA July 16, 2025):

The insured sued the insurer and the underinsured motorist in Broward County after an underinsured motorist caused an accident in Polk County.

The complaint properly alleged that the insurance company was doing substantial business in Florida, with representatives and agents in Broward County and that venue was proper in Broward County because the insurer had an agent or other representative there.

However, the insurer filed a motion to transfer venue from Broward to Polk County where the accident occurred. The motion, relying upon section 47.122, Florida Statutes, outlined that Polk County was the most convenient forum for the witnesses because most of them were located there, along with the medical providers, the underinsured motorist and the insured herself.

The insurer submitted an affidavit of a claims manager, who affied that it would be more convenient for all those witnesses and parties to try the case in Polk County, and the only tie to Broward was that the insurer had an agent there. The affidavit also stated that the interests of justice favored Polk County because the accident occurred there, the insured resided there, the medical providers were there, the underinsured motorist resided there and pointed out that the Broward County community had no ties and virtually no connection to the lawsuit.

The insured did not file any contravening evidence. Instead, plaintiff’s counsel argued that the statute requires the witnesses to be the ones to file affidavits to advise of their own inconvenience and does not allow some corporate representative from the insurance company to opine about other people’s inconvenience in an affidavit. The insurer’s attorney responded that there was no statutory requirement that an actual witness had to file the affidavit, and that it was within the court’s discretion to consider the weight of the affidavit.

The trial court expressed a concern about being able to rely on the representative witness’s affidavit opining on what was convenient or not inconvenient to the witnesses. The insured asserted that the record lacked record evidence to support the claims about the convenience of witnesses and parties and further asserted that witnesses could testify by deposition or remotely via Zoom.

The appellate court reversed the denial of the motion to transfer. It found that the trial judge abused her discretion in denying the insured company’s motion, because once a defendant challenges venue with an affidavit controverting a plaintiff’s venue allegations, the burden then shifts to the plaintiff to prove the venue selection is proper.

Here, the insurer filed its claims manager’s affidavit to challenge the insured’s selection of venue in Broward County. The affidavit alleged the accident had occurred in Polk County, and that the insured and uninsured motorist both resided there, as did the insured’s medical providers, and that Broward County had no nexus to the lawsuit.

With that, the burden then shifted to the insured to prove the convenience of her venue selection. The insured presented no evidence by affidavit or other source to satisfy that burden.

The court noted in dicta that it was not aware of any cases requiring a venue transfer movant to file multiple witness affidavits, stating the witnesses would be inconvenienced if the action remained in the original venue. While there are cases that have such affidavits, the court said it did not believe there was any requirement for multiple witness affidavits.

The court did acknowledge, however, that the insurer’s claims manager’s affidavit was based on speculation and opinion without firsthand knowledge. Still, the court said its precedent is clear that the way the insured should have confronted those allegations was through her own evidence which she failed to provide.

Finally, the court said it did not view Zoom or any similar video communications platform as a means by which to overcome an otherwise meritorious venue transfer motion. It applied the three criteria for such determinations, along with the preference for in-person testimony, citing a case stating there is a perception that material witnesses should be located near the courtroom to permit live testimony.

Finally, upon reversing the circuit court’s order denying the motion to transfer venue, the court ruled that the insured would not be permitted a second bite at the apple to present evidence to counter the insurer’s venue transfer motion and the affidavit, and remanded to send the case to Polk County.

TRIAL COURT PROPERLY DISMISSED PLAINTIFF’S MEDICAL MALPRACTICE CLAIM WHEN PRESUIT AFFIDAVIT WAS FACTUALLY INCONSISTENT WITH THE PLAINTIFF’S OWN TESTIMONY

Hermoso v. New Life Plastic Surgery, 50 Fla. L. Weekly D1541 (Fla. 3rd DCA July 16, 2025):

The plaintiff brought a medical malpractice action after an allegedly negligent breast lift and implant replacement surgery. In her notice, she alleged that the physician negligently placed her breast implants above the muscle rather than beneath it and then failed to provide adequate postoperative care for any vascular compromise resulting from the implant misplacement.

The plaintiff included an affidavit from her expert who opined that reasonable grounds existed to support a medical negligence claim, because a plastic surgeon exercising reasonable care under similar circumstances would have placed the implants beneath the muscle, and would have provided appropriate post operative care. The defendant submitted an affidavit of an expert who opined that the treatment was appropriate and within the standard of care.

Following the denial of the claim, the plaintiffs filed their medical malpractice case. During her deposition, the plaintiff admitted that the doctor had in fact placed the implants beneath the muscle and not above.

Based on this admission, the defendants moved to dismiss, arguing that the facts directly contradicted the plaintiff’s presuit affidavit. The trial court denied the motion without prejudice.

The defendant then sought to coordinate an independent medical examination of the plaintiff, whereupon plaintiffs advised them that no exam could proceed because the plaintiff had already had the implants removed without notice to the defendant. Defendants deposed the physician who removed them, who testified that they had indeed been properly placed beneath the muscle during the plaintiff’s original implant surgery.

In response to an amended complaint, the defendants’ answer and affirmative defenses asserted that the plaintiff failed to conduct a reasonable presuit investigation, and failed to obtain an appropriate expert opinion.

Following the evidentiary hearing on the defendant’s second motion to dismiss, the trial court dismissed the case with prejudice, concluding that the plaintiff failed to satisfy the statutory requirement of a reasonable presuit investigation, further finding that no separate claim for negligent preoperative care could proceed because it was inextricably linked to the improper placement of the implants.

Under the Medical Malpractice Act, plaintiffs are required to conduct a presuit investigation sufficient to ascertain reasonable grounds for their claims and to corroborate those grounds with a verified written medical expert opinion before they issue a notice of intent. The plaintiff here failed to do that, premising her notice of intent on improper facts.

The appellate court went so far as to say that its “conscience was shocked” by a medical expert who under oath and penalty of perjury, would assure the court that there was justification for the plaintiff’s claim about the improper placement of the implants, when both the plaintiff and the subsequent treating physician testified the implants were in fact placed correctly.

Because the record clearly showed that the plaintiffs failed to conduct a reasonable investigation, their actions frustrated the legislative purpose of Chapter 766, and mandated the elimination of the claim and affirmance of the trial court’s dismissal.

IN A PURE BILL OF DISCOVERY ACTION, PRETRIAL DISCOVERY IS PREMATURE WHEN IDENTICAL TO THE DISCOVERY SOUGHT BY THE ACTION

GSS v. 3217 Corrine LLC, 50 Fla. L. Weekly D1567 (Fla. 6th DCA July 18, 2025):

The plaintiff petitioned the court for writ of certiorari, to quash the trial court’s order compelling her responses to respondent’s pretrial discovery request before the lower court determined the merits of the respondent’s pure bill of discovery action in the first place.

In the specific context of a pure bill of discovery, the trial court’s discovery order put the proverbial cart before the horse, and the order was akin to cat out of the bag discovery that can cause irreparable harm.

In a pure bill of discovery action, pretrial discovery is premature when identical to the discovery sought by the action. The broad discovery provisions of the rules of civil procedure which apply to all actions of a civil nature under Rule 1.010, do not compel a different conclusion. Under the scope limitations to the rules, discovery must be relevant to any party’s claim or defense and proportional to the needs of the case.

The discovery the respondents sought under the rules was the same discovery they ultimately sought by their pure bill of discovery action and thus was not relevant to any claim until the respondents prevailed on the merits of their action for the discovery.