The Week in Torts – Cases From the Week of April 2, 2021
Hmm, Not Race-Based, Really?
FLORIDA LAW WEEKLY
VOLUME 46, NUMBER 13
CASES FROM THE WEEK APRIL 2, 2021
PLAINTIFFS’ VERDICT IN WRONGFUL DEATH CASE AFFIRMED – TRIAL COURT PROPERLY DENIED RACE-BASED PEREMPTORY CHALLENGE AND FOUND PREJUDICIAL TESTIMONY NOT PREJUDICIAL ENOUGH TO VITIATE ENTIRE TRIAL
Hialeah Hospital, Inc. v. Hayes-Boursiquot, 46 Fla. L. Weekly D633 (Fla. 3d DCA March 24, 2021):
In this wrongful death, medical malpractice case, a woman died due to the hospital’s failure to properly assess and treat her pneumonia, which had caused or contributed to her death.
During voir dire, the hospital’s attorney sought to exercise peremptory challenges on three jurors who were in protected classes: one Haitian-American and two African-Americans. As to the first juror, the hospital’s counsel proffered the reason for the challenge as the potential juror’s devotion to policies and procedures in the context of her employment as a baker at Whole Foods. Counsel explained that he exercised the peremptory challenge because policies and procedures would feature heavily. The trial court found the explanation was race-neutral, and allowed the challenge.
For the second potential juror, defense counsel proffered that the potential juror’s employment as hospital staff and his relationship with a nurse, rendered him unsuitable for service. The trial court rejected this explanation and allowed that juror to serve.
Finally, the hospital’s attorney tried to strike a juror due to his training and experience in the medical field as a LPN. The trial court found that explanation was not genuine due to an impermissible pattern of seeking to excuse potential jurors based on race, and sustained the objection. The hospital only appealed that ruling as to the jurors.
The appellate court reminded us that the focus of a Melbourne challenge is not the reasonableness of the asserted nonracial motive, but rather the genuineness of the motive. This is a finding which turns primarily on an assessment of credibility, and gets reviewed under a clearly erroneous standard.
Because this record demonstrated that the hospital’s attorney exercised three peremptory challenges in a row on members of a race-protected class matching the decedent’s identification, and because the trial court found the proffered reasons for two of the three challenges to be pretextual, there was sufficient record evidence to support the trial court’s credibility assessments, so that they should not be disturbed.
There was also an issue of both parties admitting into evidence testimony that the trial court had ruled to be inadmissible pretrial. The trial court found that both parties had violated the pretrial agreement on multiple occasions, but the testimony never became the focus of the trial, and never deprived the non-movant of a fair trial.
The trial court gave an appropriate curative instruction which helped diffuse the prejudicial effect of the objectionable comment, and the appellate court affirmed the jury’s verdict for the plaintiff.
WRIT OF CERTIORARI ISSUED AS TO THE DISCLOSURE OF POTENTIALLY WORK-PRODUCT PROTECTED DOCUMENTS – THE COURT MUST DETERMINE IF ANY EXCEPTIONS APPLY
Onward Living Recovery Community v. Mormeno, 46 Fla. L. Weekly D637 (Fla. 3d DCA March 24, 2021):
There were documents prepared after a tragic incident (unspecified), which lead to the death of the decedent in the case. The court observed that such documents may be prepared in the ordinary course of business, while at the same time having been prepared in the anticipation of litigation. That was the case here, where the records were created after a “sentinel event”.
After determining that work-product privilege applies, a trial court may then examine issues of waiver and/or the inability of the party to procure such information that is relevant and needed without undue hardship. A trial court must examine evidence (in the first instance, the deposition where the corporate representative was alleged to have waived the privilege) by reviewing the deposition, and the second instance (the need for documents) by conducting an evidentiary hearing.
To the extent that the trial court determines on remand that some or all of the records are protected from discovery, the trial court should then conduct an evidentiary hearing to determine whether the incident report at issue contained information that would present an undue hardship for the plaintiffs to otherwise obtain.
DEPARTURE FROM THE ESSENTIAL REQUIREMENTS OF LAW TO REQUIRE PRODUCTION OF PLAINTIFF’S MENTAL HEALTH RECORDS WITHOUT LIMITATION OR IN CAMERA INSPECTION, SO AS TO INSURE THAT ONLY RELEVANT INFORMATION IS DISCLOSED
Ern v. Springer, 46 Fla. L. Weekly D653 (Fla. 4th DCA March 24, 2021):
The plaintiff in this automobile case sought certiorari review of an order requiring production of his mental health records. The order permitted the production of the records without limitation or an in camera inspection. The court granted the petition without prejudice, ordering the trial court to conduct an in camera inspection to insure that only relevant information would be disclosed connecting the mental health records either in substance or time to the claim at issue.
ERROR TO JOIN INSURER IN ACTION AGAINST INSURED FOR PURPOSE OF ENFORCING JUDGMENT – FACT THAT INSURER PROVIDED A “COURTESY” DEFENSE FOR A PERSONAL INJURY CLAIM AFTER RESOLVING PROPERTY DAMAGE CLAIM DID NOT CREATE COVERAGE FOR PERSONAL INJURY BY EQUITABLE ESTOPPEL
Security National Insurance Co. v. Gonzalez, 46 Fla. L. Weekly D679 (Fla. 2d DCA March 26, 2021):
An insurance company providing only property damage coverage for the plaintiffs appealed the trial court’s order determining that it was jointly liable with the defendant driver. The insured’s minor daughter was driving a vehicle owned by him, and collided with the plaintiff’s vehicle injuring the plaintiff. At the time of the accident, the insureds had coverage for four vehicles for property damage only. There was no bodily injury coverage or additional or supplemental coverage.
After plaintiff sued defendant, his insurance company wrote to inform him that the policy did not provide coverage for the bodily injury or the loss of consortium claims. In the same correspondence, the insurance company claimed its reservation of rights to disclaim coverage, citing the policy language. The insurer advised that it had no duty to defend the claims not covered by the policy, and based its rejection of the bodily injury coverage on that fact, advising that the insured himself would become legally responsible for the damages.
Thereafter, the insurance company resolved the plaintiff’s property damage claim. For reasons unclear from the record, the insurance company still continued its “courtesy defense” of the defendants for the bodily injury claim. After an almost $800,000 verdict for the plaintiffs, and a final judgment, the plaintiffs filed a supplemental motion to join the insurance company as a party defendant in the final judgment, arguing estoppel as the basis for coverage.
The court found this was error. In this case, where all parties understood that there was no coverage for bodily injury claims despite the “courtesy defense” of those claims, it was an improper application of equitable estoppel to find coverage in a case where there clearly was none.