It’s good to be the King

FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 38

SEPTEMBER 20, 2024

TRIAL COURT ERRED IN DENYING HOSPITAL DISTRICT’S MOTION TO DISMISS ACTION BASED ON SOVEREIGN IMMUNITY, EVEN WHEN THE PLAINTIFFS’ ALLEGED THE HOSPITAL KNOWINGLY DISCLOSED INDIVIDUALS’ PRIVATE HEALTH INFORMATION ON SOCIAL MEDIA

South Broward Hospital District v. Kaplan, 49 Fla. L. Weekly D1881 (Fla. 4th DCA Sept. 11, 2024): 

The plaintiffs brought a class action against the hospital district alleging that it knowingly disclosed individuals’ private and protected health information on Facebook. The Hospital District moved to dismiss, arguing it was entitled to sovereign immunity. The Circuit court concluded that Florida’s wiretapping statute permitted suit against a person “or entity,” and because the District is an entity, it ruled that the suit could proceed against the District.

The appellate court reversed, finding that sovereign immunity is the rule not the exception. Sovereign immunity bars claims against a governmental entity, except for claims brought under the federal or state constitution, those based on a clear and unequivocal legislative waiver of sovereign immunity, or contractual claims based on express written agreements with government entities.

The plaintiffs argued that the waiver of sovereign immunity could be implied based on the legislature’s amendment to section 934.10, which it amended to include claims against “any person or entity.”

The Fourth District disagreed. It concluded that while the legislature’s amendment applied to a person or entity, it was still not a clear and unequivocal waiver of sovereign immunity. Thus, sovereign immunity barred even this most egregious claim.

EVEN THOUGH THE DEFENDANT’S RETAINED EXPERT EXAMINED THE PLAINTIFF, BECAUSE THE EXPERT WAS NOT LISTED AS A TESTIFYING EXPERT BY THE DEFENDANT, COMPELLING THE DEPOSITION OF THE EXPERT WITHOUT THE PLAINTIFF HAVING MADE A SHOWING OF EXCEPTIONAL CIRCUMSTANCES FOR NEEDING ITWAS A DEPARTURE FROM THE ESSENTIAL REQUIREMENTS OF LAW.

Gomes v. Maniglia, 49 Fla. L. Weekly D1873 (Fla. 3rd DCA Sept. 11, 2024):

The plaintiff’s complaint alleged a variety of claims against the defendant stemming from purported violations of Florida’s Adult Protective Services Act. 

The defendant retained a psychologist who performed a psychological examination of the plaintiff. The plaintiff obtained the doctor’s report and other records relating to the examination and sought to depose the doctor, despite the defendant having not identified the doctor as a testifying expert. The defendant moved for a protective order to prevent the deposition which the trial court denied.

While rule 1.280(b)(5)(B) allows for a party to depose another party’s non-testifying expert witness, the rule plainly requires the party seeking to depose the non-testifying expert, to make a showing of exceptional circumstances.

In denying the motion for protective order, the trial court determined that the compulsory medical examination of the plaintiff in and of itself constituted sufficient exceptional circumstances that entitled the plaintiff to the deposition.

That was an incorrect conclusion, and the court held that the ruling departed from the essential requirements of law, resulting in irreparable harm. 

Contrary to the trial court’s determination, nothing in rule 1.360(b) authorizes the deposition of a non-testifying defense expert who conducted a compulsory medical examination of a plaintiff, when the plaintiff fails to make a showing of exceptional circumstances as required by rule 1.280(b)(5)(B). 

The court concluded that the trial court departed from the essential requirements of law by denying the defendant’s motion for protective order.

TRIAL COURT DID NOT ERR IN DENYING MOTION TO DISMISS FOR FORUM NON CONVENIENS — THE FAILURE TO ARTICULATE FINDINGS ON EACH KINNEY FACTOR IN THE TRIAL COURT’S ORDER DID NOT WARRANT REVERSAL

Ryder Truck Rental v. Adams, 49 Fla. L. Weekly D1866 (Fla. 3rd DCA Sept. 11, 2024): 

This wrongful death arose out of a car accident that occurred in South Carolina and resulted in the death of a man who was survived by his wife and four children.

The plaintiff sued the driver of the truck, as well as his employer and the owner of the semi the driver was driving. The plaintiff filed her case in Miami-Dade County even though she was a resident of South Carolina.

The complaint identified that the defendant driver was a resident of Hialeah, Florida, that the employer was a corporation incorporated in Florida with its principal place of business in Miami-Dade County, and that the owner of the truck was incorporated in Florida with its principal place of business in Miami.

The complaint alleged that the defendant violated South Carolina traffic laws and operated the truck in an unsafe manner. It also alleged that the driver failed to properly plan for the trip, failed to inspect the truck, and that he was working overtime while falsifying his drivers’ logs. 

The complaint also alleged negligent hiring, retention, supervision and training against the employer and alleged that the owner controlled the truck.

The defendants moved to dismiss on forum non conveniens grounds, arguing that under Kinney the most convenient forum was South Carolina. The defendants argued that the vast majority, if not all, the relevant evidence concerning the accident was in South Carolina, and that the expert witnesses would need to inspect the scene in South Carolina. Defendants also argued there was little to no nexus connecting the lawsuit to Florida.

In response, the plaintiff argued that a large part of discovery would take place in Florida and that because the corporate defendants were in Florida, the materials and witnesses related to the company’s hiring, training, and supervision of the driver and ownership and maintenance of the truck would be in Florida. She also argued there was a nexus between the lawsuit in Florida because the negligent actions of the corporate defendants took place in Florida.

At the hearing, the defendants did not submit any affidavits or evidence. At the end of it, the trial court denied the motion and pronounced its findings, but did not include a finding as to each Kinney factor.

There is no per se rule requiring a reversal whenever an order denying a dismissal on forum non conveniens grounds fails to explicitly set forth the trial court’s resolution of the four-step analysis. In this case, while the written order did not detail the trial court’s findings on each factor, the questions, the parties’ answers, the arguments of counsel, and the legal memoranda made clear that the positions of the parties did address each Kinney factor. The court found that the record was therefore adequate.

To persuade the trial court to dismiss the lawsuit, the defendants needed to show that South Carolina was a more convenient forum in which to litigate it. The defendants’ failure to submit affidavits to support their allegations, and the failure to identify any witnesses they intended to call who still resided in South Carolina, also undermined the defendants’ burden.

Meanwhile, there were allegations that a substantial amount of business-related discovery would take place in Florida because the corporate defendants were based there. 

After analyzing the factors based on the evidence in the record, the court concluded there was no abuse of discretion in the trial court determining that Miami-Dade County was a convenient forum. Accordingly, because reasonable people could conclude that Florida was a sufficiently convenient forum, the appellate court concluded that the trial court did not abuse its discretion.