The Week in Torts – Cases from the Week of December 15, 2017
FLORIDA LAW WEEKLY
VOLUME 42, NUMBER 50
CASES FROM THE WEEK OF DECEMBER 15, 2017
CIRCUIT COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW BY ORDERING THE DISCLOSURE OF TRADE SECRETS WHERE THE PARTY REQUESTING THE DISCLOSURE FAILED TO PRESENT ANY EVIDENCE THAT THE PRODUCTION OF PRIVILEGED INFORMATION WAS REASONABLY NECESSARY.
Niagara Industries v. Giaquinto Electric, 42 Fla. L. Weekly D2576 (Fla. 4th DCA December 6, 2017):
Plaintiff purchased a tankless water heater from Rheem Sales Company designed by Niagara Industries. While the water heater was being repaired, it exploded causing the plaintiff physical injury.
During the pendency of the lawsuit, the court required the defendants to disclose what they described as “their confidential and highly confidential documents, including Niagara’s trade secrets, relating to the manufacturing and testing of the subject tankless water heater.” Pursuant to protective order that permitted only certain people to view the documents, the defendants disclosed them. They were never disclosed to the jury.
At the evidentiary hearing on the objections to the production in a second suit involving these documents, the owner of Niagara Industries testified that the release of the trade secrets “would be devastating” to his company. He was the only witness to testify. He also answered questions regarding the defendant’s belief as to the cause of the water heater’s explosion. The other parties relied upon arguments of its counsel and did not present any evidence or testimony on its behalf.
After the trial court found the documents at issue to be trade secrets, the burden shifted to the other party to establish that disclosure was reasonably necessary. However, because they did not present any evidence whatsoever, the defendants had the only evidence in the record where the witness testified to the devastating impact on its business if the documents were to be released. Thus, it was a departure from the essential requirements of law for the trial court to compel production of the privileged documents.
The court observed that it may have been more efficient if the plaintiff had chosen to bring all of its claims in one lawsuit (different parties were involved in each), but the mere existence of the first lawsuit without more was not sufficient to invade the trade secret privilege. Ultimately, a party cannot obtain documents containing privileged trade secrets without establishing a reasonable necessity for breaching the privilege.
While the court said it did not hold that a requesting party must always present evidence, by failing to do so the party is at risk of being able to overcome the testimony of the movant seeking to keep the documents protected.
WITHOUT A SHOWING THAT THE CIRCUIT COURT SITTING IN ITS APPELLATE CAPACITY FAILED TO AFFORD THE DEFENDANT PROCEDURAL DUE PROCESS IN THE APPEAL, OR FAILED TO APPLY THE CORRECT LAW AND RESULTING IN THE MISCARRIAGE OF JUSTICE, THERE CAN BE NO SECOND TIER CERTIORARI.
United Auto v. Partners in Health Chiropractic Center, 42 Fla. L. Weekly D2567 (Fla. 3rd DCA December 6, 2017):
An insurance company in a PIP appeal sought second tier certiorari review of a circuit court appellate decision affirming the county court’s order denying the insurer’s motion for entitlement to attorney’s fees filed pursuant to a proposal for settlement.
While the case had been pending, United Auto had submitted a nominal proposal for settlement to the medical provider, which did not accept the offer.
After the jury found that the provider’s services to the plaintiff were not related to the accident, United Auto filed a motion seeking an order that it was entitled to attorney’s fees pursuant to section 768.79 and rule 1.442. The provider opposed the motion, arguing the proposal for settlement was not made in good faith.
The county court conducted a hearing to determine whether the nominal proposal for settlement was made in good faith and after the hearing, concluded it was not based on: (1) the extensive and protracted length of the litigation; (2) the prior rulings in favor of the provider during litigation and the fact that a final judgment was issued in favor of the provider; (3) that United Auto had no reasonable expectation that its offer would be accepted; and (4) that the record before the county court at the time of the entitlement hearing failed to show that United Auto had no exposure in the case when it made its proposal for settlement. Thus, the county court entered an order denying the motion for entitlement.
The circuit court affirmed.
In reviewing the circuit court appellate panel’s decision (under an abuse of discretion standard of review), the court concluded that the circuit court had applied the correct law and there was nothing in the record to indicate that United Auto was not afforded due process. As such, the court dismissed the petition for second tier review for lack of jurisdiction.
NO ERROR IN DENYING MOTION FOR ATTORNEY’S FEES BASED ON PROPOSALS FOR SETTLEMENT, BECAUSE THEY WERE UNACCEPTABLY AMBIGUOUS.
Fernandes v. Sovereign Healthcare of Port St. Lucie, 42 Fla. L. Weekly D2572 (Fla. 4th DCA December 6, 2017):
The plaintiff had offered each of the defendants a proposal to settle her wrongful death action. They were rejected. The plaintiff prevailed. However, her subsequent motion for attorney’s fees and costs was denied as a result of the trial court finding the settlement proposals were unacceptably ambiguous.
The court affirmed the ruling (unfortunately without discussing any of the facts), remanding for a finding that the plaintiff was entitled to her costs pursuant to section 57.041(1), even though she was not entitled to fees.
COURT REVERSES A DISMISSAL BASED ON STATUTE OF LIMITATIONS GROUNDS, AS TO A CLAIM BROUGHT FOR TORTIOUS INTERFERENCE WITH HUMAN REMAINS.
Kendron v. SCI Funeral Services, 42 Fla. L. Weekly D2584 (Fla. 5th DCA December 8, 2017):
A man’s mother passed away in October of 1998 and was cremated. Her son wanted her remains to be laid to rest beside her late husband. In 2014, the man learned through a letter that this did not happen and that the funeral home still had his mother’s ashes. He was told to collect them or be charged a storage fee.
The man filed suit against the funeral home for tortious interference with human remains, intentional infliction of emotional distress and negligent infliction of emotional distress, claiming that as a result of the funeral home’s actions he suffered from depression, stress, anger and anxiety, all which required medical attention.
The court dismissed the complaint with prejudice after concluding that the statute of limitations had expired. Concluding that the statute of limitations barred the claim for tortious interference with human remains, the appellate court affirmed the dismissal of that claim without further discussion. However, it reversed the dismissal of the man’s claim for intentional infliction of emotional distress, as well as negligent infliction of emotional distress.
The elements of a cause of action for intentional infliction of emotional distress are (1) the wrongdoer’s conduct was intentional or reckless; (2) the conduct was outrageous; (3) the conduct caused emotional distress; (4) the emotional distress was severe.
The elements of negligent infliction of emotional distress are (1) the plaintiff must suffer a discernible physical injury; (2) the physical injury must be caused by the psychological trauma; (3) the plaintiff must be involved in the event causing the negligent injury to another; and (4) the plaintiff must have a close personal relationship to the directly injured person.
Here, the court found that the plaintiff’s claim for intentional infliction of emotional distress did not accrue until he experienced severe emotional distress. His claim for negligent infliction of emotional distress would not accrue until he experienced a discernible physical injury.
Offering no opinion as to whether the plaintiff would be able to actually prove the elements of the causes of action, the court concluded it was still error to dismiss those claims based on the statute of limitations. The court allowed the plaintiff an opportunity to re-plead his complaint.