The Week in Torts – Cases from the Week of January 10, 2020
Did I Make Myself Clear?
FLORIDA LAW WEEKLY
VOLUME 45, NUMBER 1
CASES FROM THE WEEK JANUARY 10, 2020
OBJECTION IN VOIR DIRE DID NOT PROVIDE A CLEAR OR SPECIFIC ENOUGH LEGAL OBJECTION TO THE CONSTITUTIONALITY OF THE STRIKE BASED ON RELIGION (THE PROSPECTIVE JUROR WAS A JEHOVAH’S WITNESS).
State v. Pacchiana, 45 Fla. L Weekly S2 (Fla. January 09, 2020):
During voir dire, the State sought to exclude an African-American juror who noted that she was a Jehovah’s Witness. The defense asked for a race-neutral reason for the strike, and the State explained that Jehovah’s Witnesses generally say they can’t sit in judgment of others.
The court then brought the juror back for further questioning. It ultimately accepted the State’s strike, (noting the defendant’s objection), but ruled that the record supported a race-neutral reason.
Five days into the trial, the defendant moved for a mistrial arguing it was error to excuse that juror. The State argued that the motion wasn’t timely and that the defendant was attempting to make a separate “religion-based” objection to the strike in addition to his previous race-based objection.
Notwithstanding that the defendant’s attorney explicitly asserted that the strike of this juror was “religion-based”, the court still ruled that it had not been sufficiently brought up during jury selection and that five days into the trial was untimely.
The court then noted how it is the “objection/re-objection” process that is the decisive element in the juror objection/preservation analysis. Although the defendant attempted the re-objection before the jury was sworn, there was no “clear” initial contemporaneous objection that the strike was an improper religion-based strike, therefore waiving the argument. Based on the court’s finding of waiver, it never reached the substantive question of whether striking a Jehovah’s Witness under these circumstances was, in fact, an impermissible religion-based strike.
GENUINE ISSUE OF MATERIAL FACT AS TO WHEN THE STATUTE OF LIMITATIONS BEGAN TO RUN IN A MEDICAL MALPRACTICE CASE INVOLVING THE NEUROLOGICAL INJURY OF A NEWBORN.
Mobley v. Homestead Hospital Inc., 45 Fla. L Weekly D2 (Fla. 3rd DCA December 26, 2019):
A baby was born in September of 2009, seemingly uneventfully. However, the baby was kept in the hospital for 10 days after his birth, purportedly due to an infection (as his mother was told). An ultrasound of his brain done the day after he was born was read as an “unremarkable head ultrasound.”
When the baby was discharged, his mother was told he was healthy and normal. Months later, however, the mother noticed that the baby was not meeting developmental milestones. The mother took the baby to a series of doctors.
One diagnosed him with GERD and a lazy eye. He experienced problems with vomiting. A year later, the mother requested additional Medicaid benefits but was denied. The mother testified that she then met with an attorney to secure additional benefits for him, including therapies and home nursing. The mother denied that she retained the attorney for a medical malpractice case.
The attorney sent a letter to the defendant hospital seeking the baby’s medical records, and shortly thereafter, an attorney filed a NICA claim on the baby’s behalf. This was over two years after his birth. The ALJ denied NICA, finding that there was no apparent “obstetrical event” and that the baby did not have a substantial neurological injury.
Almost three years after his birth, an MRI was performed and the results were normal. Several months later a neurologist diagnosed the baby for the first time with spastic cerebral palsy, which the mother was advised most often came from a lack of oxygen to the infant’s brain during labor and delivery, and delayed C-section.
The defendant hospital argued it was entitled to summary judgment because the statute had expired from the time that the plaintiff’s first attorney had requested medical records from the hospital.
Under these facts, the court determined that there were disputed material facts regarding when the statute began to run and reversed the entry of summary judgment.
COUNTY EXPLICITLY RETAINED CONTROL OVER SECURITY GUARD’S SHIFT SCHEDULE AND NUMBER OF GUARDS ASSIGNED TO THE SUBJECT GARAGE—WITHOUT A DUTY, SECURITY COMPANY COULD NOT BE LIABLE TO THE PLAINTIFF.
Cascante v. 50 States Security Service, 45 Fla. L Weekly D8 (Fla. 3rd DCA December 26, 2019):
Miami-Dade County entered into a contract with defendant to provide security guard services in conjunction with the needs of Miami-Dade Transit. The County retained these services for coverage at the South Miami Metro Rail parking lot. Pursuant to the contract made under the bid for the work, the County was solely charged with determining the number of security officers, the shift schedule, and the level of training required.
The County decided to have a security guard from 7:00 a.m. to 7:00 p.m. However, the plaintiff was assaulted after 7:00 p.m.
Under the unambiguous contractual terms, the County alone was charged with determining the number of officers, the schedule, and the level of training. Although the defendant was charged with the responsibility for identifying evolving and existing crime patterns and trends, the contract was devoid of any reciprocal obligation for the County to take action in reliance to such information. Thus, the responsibility to enact reasonable security measures was borne solely by the County.
The court affirmed the entry of summary judgment, finding that the security company defendant owed no duty. As an additional matter, the court affirmed the trial judge’s rejection of the plaintiff’s “conclusory expert affidavit” (not much was said about the substance of the affidavit, but the admonition is worth heeding.
ERROR TO GRANT PLAINTIFF’S MOTION FOR NEW TRIAL BASED UPON OPPOSING COUNSEL’S CROSS-EXAMINATION OF PLAINTIFF STEMMING FROM READING STATEMENTS TAKEN OUT OF PLAINTIFF’S MEDICAL RECORDS FOR THE PURPOSES OF IMPEACHMENT—PLAINTIFF FILED A MOTION IN LIMINE, BUT NEVER RECEIVED A RULING AND THE MEDICAL RECORDS THEMSELVES WERE NOT ADMITTED INTO EVIDENCE.
Kratz v. Daou, 45 Fla. L. Weekly D10 (Fla. 3rd DCA December 26, 2019):
In this auto accident case, the plaintiff was a valet parker, injured by the defendant as she backed her car into him at her condominium. The jury found she was not negligent.
Plaintiff argued that a new trial was warranted due to the admission of inadmissible hearsay statements at trial that came in the form of defense counsel’s cross-examination of the plaintiff, where he read statements from plaintiff’s medical records solely for the purpose of impeaching him. The records themselves were not admitted into evidence. The trial court agreed.
The trial court relied on cases holding that the statements were hearsay, and the medical records were not admissible unless the statements were made for the purposes of medical diagnosis for treatment. Therefore the court granted the new trial.
The court wrote that it was constrained to reverse the order granting a new trial because, although the motion in limine was filed before trial to exclude the inadmissible hearsay, there was no definitive ruling—either in writing or transcribed—granting the motion.
Without a ruled upon motion in limine, defense counsel was therefore allowed to ask whether the plaintiff had reported injuries to various medical providers in specific terms, and his answers varied from his sworn answers to interrogatories.
Also, because the medical records themselves were not admitted into evidence and cross-exam was limited to what plaintiff told various medical professionals at different points between the emergency room and the date of his answers to his interrogatories, the testimony was fair game. The court reversed for entry of judgment for the defendant.
RULE 1.540(A) IS MEANT TO CORRECT CLERICAL MISTAKES FROM OVERSIGHT OR OMISSION, NOT A BASIS FOR REVERSING THE OUTCOME OF AN ORIGINAL ORDER.
RJ Reynolds v. Howard, 45 Fla. L. Weekly D20 (Fla. 2nd DCA December 27, 2019).
(No further summary.)