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The Week In Torts – Cases from November 5, 2021
So, what was the prejudice?
FLORIDA LAW WEEKLY
VOLUME 46, NUMBER 44
CASES FROM THE WEEK NOVEMBER 5, 2021
TRIAL COURT ABUSED DISCRETION IN STRIKING SUPPLEMENTAL EXPERT DISCLOSURE AS UNTIMELY WITHOUT ANALYZING WHETHER THE LATE DISCLOSED EXPERT WOULD PREJUDICE THE OBJECTING PARTY–NEW TRIAL REQUIRED ON THE ENTIRE VERDICT (BOTH COMPENSATORY AND PUNITIVE DAMAGES), BECAUSE COURT FAILED TO MAKE FINDINGS THAT PLAINTIFF WAS PREJUDICED
Callari v. Winkeljohn, 46 Fla. L. Weekly D2325 (Fla. 3rd DCA October 27, 2021):
The accident arose when the defendant crossed the centerline and struck the plaintiff’s vehicle, causing it to flip one-and-one-half times. The plaintiff and her children filed a negligence complaint, and she later moved to amend for punitive damages based on allegations that the defendant was under the influence of heroin when he struck her vehicle.
Before trial, defendant filed an expert disclosure for his CPA expert, describing the subject of her testimony as “the Plaintiff’s economic damages.” The trial court notified the parties that trial was scheduled two weeks later. On that day, the defendant filed a supplemental expert disclosure stating that the economist would also testify regarding the defendant’s net worth and the amount of money he would need to sustain himself, as well as punitive damages that would bankrupt/economically castigate him.
The plaintiff filed an emergency motion seeking to strike the untimely disclosure, and the trial court entered an order limiting the testimony to the plaintiff’s economic damages only. The order did not address whether the testimony on punitive damages or net worth would prejudice the plaintiff in any way.
As it turned out, the trial did not go forward for almost another month, and the defendant moved for reconsideration of the order limiting the testimony. The trial court again denied the motion concluding that the jury could figure out the defendant’s net worth without expert testimony.
The jury returned an almost $5 million verdict, with approximately $1 million in punitive damages.
The court reversed. It found that a trial court’s failure to analyze the Binger factors before exercising discretion to admit or exclude late disclosed exhibits or witness testimony would result in reversal. Because the trial court failed to make any findings of prejudice or analyze the Binger factors in any way, the court had to reverse the entire judgment.
WHEN TRIAL COURT COMPLIES WITH PROCEDURAL REQUIREMENTS OF §768.72 CERTIORARI REVIEW IS NOT AVAILABLE
Moss & Associates, LLC v. Lapin, 46 Fla. L. Weekly D2316 (Fla. 3rd DCA October 27, 2021):
The record reflected that the trial court complied with the procedural requirements of §768.72. The plaintiff proffered evidence in support of his claim for punitive damages, and following a hearing, the trial court entered an order finding that the proffer was sufficient to support the claim.
Without an argument that the trial court failed to comply with the procedural requirements of §768.72, certiorari review is not available to review the order.
TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR MEDICAL PROVIDER ON ISSUE OF REASONABLENESS OF PIP CHARGES – AFFIDAVIT AND DEPOSITION WERE CONCLUSORY AND SELF-SERVING AND INSUFFICIENT TO SUPPORT SUMMARY JUDGMENT, WHEN OWNER DID NOT HAVE ACTUAL KNOWLEDGE OF REASONABLE PRICES – TRIAL COURT INCORRECTLY STRUCK AFFIDAVIT OF INSURER’S EXPERT CODING WITNESS
State Farm v. Hollywood Diagnostic Center, 46 Fla. L. Weekly D2338 (Fla. 4th DCA October 27, 2021):
To support the reasonableness of the prices it charged, the provider relied upon the affidavit and deposition testimony of its owner, where the owner asserted that the prices were reasonable. However, when questioned at his deposition, the owner did not have actual knowledge of reasonable market prices.
Testimony is conclusory and self-serving when it amounts to no more than a “net opinion.” The court agreed that this testimony was conclusory and self-serving.
The court also ruled that it was error for the trial court to strike the affidavit of the expert coding witness. The expert had based her opinion on her experience of helping medical billing staff establish fees, a review of thousands of CMS 1450 and CMS 1500 claims, experience with Medicare Part B schedules, OIR market investigations of benefit plans and a review of explanation of benefits. The expert’s affidavit also explained her methodology of comparing the Florida Worker’s Compensation Fee Schedule, Medicaid, and providers’ charges in the community, and then comparing those figures to the amount charged by the provider in question and the amount allowed by the insurer. This affidavit was sufficient to defeat summary judgment.
Finally, the trial court erred in granting summary judgment when there were competing expert affidavits regarding necessity and relatedness.
WHEN JUROR DISCLOSED SIGNIFICANT MEMORY DEFICITS, TRIAL COURT PROPERLY STRUCK HIM FOR CAUSE
Craven v. State, 46 Fla. L. Weekly D2339 (Fla. 1st DCA October 27, 2021):
During voir dire, the potential juror said multiple times that he “did not remember a lot of stuff,” and indicated he had several memory deficits. Following the juror’s admissions about his poor memory, the State moved to excuse him for cause.
The trial court granted the motion over the defendant’s objections. The defendant appealed, arguing that the cause challenge was not well taken, because the juror’s memory issues were exaggerated, and did not provide grounds to support the strike.
The court found that while the juror’s memory problems may not have risen to the level of mental incapacity, they were significant enough to render him unable to perform the duties of a juror. Thus, the court upheld the cause challenge.
TRIAL COURT REVERSIBLY ERRED WHEN IT PREVENTED PLAINTIFF FROM PUBLISHING THE DEPOSITION TESTIMONY OF THE INSURER’S CORPORATE REPRESENTATIVE TO THE JURY PURSUANT TO RULE 1.330(a)(2)
Demoura v. The Travelers Home & Marine Insurance Co., 46 Fla. L. Weekly D2343 (Fla. 5th DCA October 29, 2021).