The Week in Torts – Cases from the Week of May 6, 2016
FLORIDA LAW WEEKLY
VOLUME 41, NUMBER 18
CASES FROM THE WEEK OF MAY 6, 2016
COURT DID NOT ERR IN DISMISSING MEDICAL MALPRACTICE CASE ON BASIS THAT PLAINTIFF FAILED TO PROVIDE INFORMATION DURING PRESUIT, REGARDING THE PLAINTIFF’S PRESUIT EXPERT’S QUALIFICATIONS.
Morris v. Muniz, 41 Fla. Law Weekly D1010 (Fla. 1st DCA April 27, 2016):
The trial court dismissed the plaintiff’s wrongful death medical malpractice complaint because plaintiff failed to satisfy the presuit requirements, by failing to provide reasonable access to information during presuit. Based on said failure, the record did not support that her medical expert was qualified.
Even though the court liberally noted that the medical malpractice statutory scheme must be interpreted so as not to unduly restrict a citizen’s constitutionally guaranteed access to courts, the presuit process requires the claimant to investigate whether the defendant was negligent, and whether such negligence resulted in the injury. A medical expert must corroborate such findings in a verified written opinion, and must then meet the qualifications set forth in the statute.
As section 766.205(2) provides, the failure to provide reasonable access to information during presuit shall be grounds for dismissal of any applicable claim or defense. Likewise, section 766.206(2) requires dismissal of the claim where the court finds that the notice of intent does not contain a verified written medical expert opinion by an expert as defined under the statute.
The court acknowledged that dismissal for failure to comply with presuit notice requirements is an extraordinary sanction, justified only in extreme situations. However, the court explained that the plaintiff repeatedly ignored requests for presuit discovery regarding her expert’s statutory qualifications.
Despite the parties agreeing to extend the 90-day presuit, and the defendant sending several letters expressing their concerns regarding the qualifications, the plaintiff filed the medical negligence action without sufficiently responding to the request for information. Even after the trial judge imposed sanctions, the plaintiff continued to obstruct the presuit process by failing to timely respond to the subpoena concerning her expert’s background.
Because the court found the record contained ample evidence to support the trial court’s conclusions that the plaintiff failed to offer sufficient proof of her proffered expert’s statutory qualifications, and found that plaintiff failed to cooperate with the defendant’s attempts to verify the qualifications, the dismissal was warranted.
CONVERSION OF DEFENDANT FROM CORPORATION TO LIMITED LIABILITY COMPANY HAD NO EFFECT ON DEFENDANT’S POTENTIAL LIABILITY UNDER A PROPOSAL FOR SETTLEMENT.
Vanguard Car Rental v. Suttles, 41 Fla. Law Weekly D1016 (Fla. 3rd DCA April 27, 2016):
The defendant corporation changed its corporate status during the pendency of the litigation, and the plaintiff revised his complaint to name the proper party. This occurred after the original corporate party had served the proposal for settlement.
After final summary judgment was entered for the corporate defendant, the plaintiff claimed the corporation could not recover its attorney’s fees because it was not the “same” party that served the proposal. The trial court agreed.
The Third District reversed. It said that there was no question that a qualifying offer was made by a named defendant in the case, that the offer was not accepted, and that a defense judgment, which was at least 25% less than the offer made, was entered.
At the same time the proposal was made, only the original corporate form was the named defendant. Although it had converted into another type of corporation, the plaintiff had not named the new corporation as a defendant by the time the original version of the corporation served its proposal.
After some legal machinations and stretching by the court, the court found that under both Delaware and Florida law, pre-imposed converted entities could be treated as the same entity for all purposes, and then found that the party which made the proposal for settlement could be treated as the same entity as the one in whose favor judgment was entered.
The court then reversed and awarded fees. One judge concurred writing solely to encourage The Florida Bar Civil Procedure Rules Committee to consider a rule along the lines as suggested by Judge Emas in a prior opinion, espousing that a party who does not accept a proposal for settlement due to a procedural defect or deficiency should be required to serve a limited response identifying the defect thus, allowing the offer to correct the defect after which the offeree could then consider the proposal on its merits.
ERROR TO AWARD ATTORNEY’S FEES PURSUANT TO PROPOSAL FOR SETTLEMENT WHERE THE PROPOSAL, ALTHOUGH IT INCLUDED ATTORNEY’S FEES, DID NOT INCLUDE A STATEMENT THAT ATTORNEY’S FEES WERE PART OF THE LEGAL CLAIM.
Deer Valley Realty, Inc. v. SB Hotel Associates, 41 Fla. Law Weekly D1036 (Fla. 4th DCA April 27, 2016):
In this failed real estate investment deal, the plaintiff sued for, among other things, misleading advertising. The defendants had moved for attorney’s fees and costs pursuant to section 768.79 and section 817.41(6) (Misleading advertising statute).
On appeal, the plaintiff argued that the proposal for settlement did not comply with the rule or the statute because it failed to state whether attorney’s fees were part of the claim for relief (and did not specify what portion of the proposal would settle punitive damages).
The court stated it had de novo review of orders awarding attorney’s fees pursuant to the statute and rule.
Under strict construction, the proposal did not state that part of it did include statutory fees which were part of the legal claim, and was enough to invalidate the proposal.
WAITING 22 MONTHS TO SET A HEARING JUSTIFIED DISMISSAL OF THE CLAIM.
Ramos v. Deutsche Bank, 41 Fla. Law Weekly D1041 (Fla. 4th DCA April 27, 2016):
The trial court did not abuse its discretion in deeming the appellant’s post-dismissal motion for costs abandoned where it languished on the docket for 22 months without a request for a hearing or other final resolution by the movant.
TRIAL COURT ERRED IN COMPELLING ARBITRATION IN SUIT BROUGHT AGAINST ALF ALLEGING DECEDENT SUSTAINED INJURIES RESULTING IN HIS DEATH, WHERE ARBITRATION AGREEMENT PLACED CAP ON RECOVERY OF NON-ECONOMIC DAMAGES AND PRECLUDED RECOVERY–ENTIRE AGREEMENT INVALID, NOTWITHSTANDING PRESENCE OF SEVERABILITY CLAUSE.
Reinshagen v. WRYP ALF, LLC, 41 Fla. Law Weekly D1047 (Fla. 5th DCA April 29, 2016):
In this case, the arbitration agreement between the parties placed a cap on the recovery of non-economic damages and precluded punitive damages.
Even though the agreement contained a severability clause, those caps were void as against public policy, and it was impossible to sever the unenforceable provisions of the contract without invalidating the entire agreement. The court relied on its recent case of Novosett v. Arc Villages, and again certified the question as one of great public importance.
ERROR TO DISMISS SECTION 1983 CLAIMS AGAINST INDIVIDUAL DEFENDANTS.
Toney v. Courtney, 41 Fla. Law Weekly D1054 (Fla. 1st DCA April 29, 2016):
A prisoner with celiac disease brought a claim for inadequate medical care as the basis for his Eighth Amendment cruel and unusual punishment section 1983 claim. The allegations were that he had a documented wheat allergy requiring a gluten-free diet which the prison would never give him.
There are two aspects to a deliberate indifference standard: one objective and one subjective. The objective prong is met by evidence of serious medical need which includes the existence of chronic and substantial pain. The subjective prong requires a prison official to know the facts that could have shown the prisoner’s health was in danger (and the official must actually believe the prisoner’s health is in danger).
Taking all of the factual allegations as true, the court found that plaintiff had stated a claim for deliberate indifference against the individual defendants. However, the court affirmed the portion of the order dismissing the state law claims for negligence and gross negligence.
TRIAL COURT ABUSED DISCRETION IN REFUSING TO ALLOW THE EXPERT BIOMECHANICAL ENGINEER WHO WAS ALSO AN EXPERT MEDICAL DOCTOR TO RENDER AN OPINION AS TO THE SPECIFIC CAUSATION OF THE PLAINTIFF’S INJURY–HOWEVER, LIMITATION OF THE TESTIMONY WAS HARMLESS ERROR; IT WAS ALSO ERROR TO AWARD ATTORNEY’S FEES TO THE PLAINTIFF PURSUANT TO PROPOSAL FOR SETTLEMENT, WHERE PROPOSAL WAS AMBIGUOUS WITH REGARD TO WHETHER THE PROPOSAL WAS INCLUSIVE OF ATTORNEY’S FEES AND COSTS.
Maines v. Drasko, 41 Fla. Law Weekly D1062 (Fla. 1st DCA May 3, 2016):
This case arose out of an auto accident that occurred when the defendant ran a red light and hit two cars. The jury returned a verdict for $143,000 and plaintiff moved for an award of fees under her proposal for settlement.
Both sides presented expert testimony as to the cause of the injury. The plaintiff presented evidence from her two treating doctors regarding the causation of her injury. The physician explained that he had extensive expertise not only as an orthopedic surgeon but also as a biomechanical engineer with specialized knowledge regarding the effect of external forces on the spine.
He opined that the plaintiff suffered a permanent neck injury, a disc herniation as a result of a traumatic event which caused her to need neck surgery and would likely require a second one in the future. He testified that such injury could be caused by a minimal amount of force and trauma.
The defendants presented two experts: one a medical doctor, one a biomechanical engineer. The doctor testified he did not believe the accident caused the injury, but rather believed it was from a pre-existing injury. The biomechanical engineer/medical doctor planned to offer expert causation testimony that the forces at play in the accident were too minimal to cause the specific injury.
The plaintiff challenged the reliability of that witness’s causation testimony pursuant to Daubert. She alleged that the doctor’s method of using force analysis results to come to specific medical causation conclusions was not reliable, because medical doctors when determining causation do not usually rely on force analyses.
The trial court found the doctor had improperly bridged the fields of biomechanical engineering and medicine by relying on his own force analysis and therefore, limited his testimony under Daubert.
Still, the jury was allowed to hear from the doctor that part of his job as a biomechanical engineer and accident reconstructionist was to determine what the specific forces were. The jurors also learned that the doctor believed only an extraordinarily fragile person could suffer a cervical disc injury at the force level caused by this accident. He was able to testify to five key facts, including the miniscule amount of force, and that this amount of force was roughly the equivalent to riding public transportation or riding over railroad tracks and other such factors.
The court said it was undisputed that the underlying biomechanical calculations of this doctor were reliable, undisputed and unobjected to, and that the doctor–as a biomechanical engineer–could testify that the forces involved in the accident would not generally cause the type of injury. Biomechanical experts are not, however, allowed to render opinions that require medical expertise. Still, medical experts may give opinions as to specific causation.
Importantly, the plaintiff did not challenge the underlying methodology of the way the doctor calculated biomechanical force analysis factors. Without that, there were only inaccurate measures of factors normally relied upon by medical doctors to determine specific causation. The court found that the trial court’s limitation of the testimony was an abuse of discretion.
However, under Special, where the beneficiary of the error has to prove there is “no reasonable possibility that the error contributed to the verdict,” or it will be deemed harmful, the court did find harmless error.
In this case, the doctor was able to present to the jury all relevant factors he deduced from his force analysis and thus, the error was harmless.
Finally, because of some patent ambiguities, the court found that the proposals for settlement were invalid and vacated the award for fees.