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The Week in Torts – Cases From the Week of May 7, 2021
Two-Issues, One Affirmance
FLORIDA LAW WEEKLY
VOLUME 46, NUMBER 18
CASES FROM THE WEEK MAY 7, 2021
TWO- ISSUE RULE SAVES PLAINTIFF FROM REVERSAL ON DAUBERT— COURT REVERSES AND REMANDS FOR CONSIDERATION OF REMITTITUR FACTORS
Royal Caribbean Cruises v. Spearman, 46 Fla. L. Weekly D969 (Fla. 3rd DCA April 28, 2021):
A Royal Caribbean crewmember sued Royal Caribbean for Jones Act negligence and unseaworthiness when her fingers were crushed in the “pinch point” of a semi-watertight door (SWD), causing her significant injuries. The trial court entered a 20.3 million dollar final judgment pursuant to the jury’s verdict. Upon reviewing the Defendant’s request for remittitur, the trial court stated that it gave deference to jury verdicts, and was a firm believer in the work of juries. The trial judge then refused to go through an analysis of the five factors pursuant to section 768.74(5), as part of his consideration of whether the jury’s damage award was excessive as Royal Caribbean asserted.
The appellate court found that consideration of the factors set forth in the remittitur statute contains mandatory language, and the failure of the trial court to consider those factors required consideration of them on remand.
Royal Caribbean also raised a Daubert issue regarding plaintiff’s expert’s testimony on an alternative theory.
The court first explained how notwithstanding its thoughts about the merits of the Daubert issue, the “two-issue” rule barred its consideration.
The two-issue rule provides that where there is no proper objection to the use of a general verdict, reversal is not proper where no error is found as to one of two issues submitted to the jury, because the appellant cannot establish that he or she has been prejudiced. The two-issue rule is based on the principle that reversal is not proper when there is no error alleged as to one of the issues, and that resolution can independently support the jury’s verdict.
The court explained that within the plaintiff’s two causes of action for Jones Act negligence and unseaworthiness, the plaintiff actually presented four theories of liability, which included defective design, negligent training, failure to warn, and negligence of one of the ship’s nurses in improperly overriding a control, which would have prevented the accident.
The general verdict form used only required the jury to resolve the two causes of action, but did not require it to indicate which alternate theories were resolved in favor of which party. As such, the court concluded that the two-issue rule precluded it from reversing on the error claimed that related to the admission of expert testimony, because it did not apply to all of those theories.
The court still addressed the issue feeling a need to provide guidance for when this issue arises again.
The expert testimony the plaintiff introduced that was at issue, involved an alternative design for the door which the expert opined about based solely upon a CAD prototype. The plaintiff’s expert’s affidavits indicated that there was no testing of the CAD prototype. The court said that it also could not ignore that the door was not merely a simple door, but rather a safety door on an ocean-going vessel, that had to be able to withstand water and fire for 60 minutes to ensure passenger safety.
The court noted that the plaintiff’s affidavit included conclusory statements that the design of the CAD prototype would not adversely impact the stiffness or soundness of the existing design, but that the affidavit failed to support the opinion with any type of testing. Such unsupported speculation, the court wrote, was not sufficient to pass muster under Daubert.
Also, the plaintiff’s expert attempted to portray his alternative design as a simple change that would not affect the integrity of the door or the door’s capability to withstand fire and water as required. Because the rigorous testing is there for a purpose, the expert’s opinion that the prototype would be approved was speculative at best, and the alternative design existed only as a CAD prototype; not something that had been subjected to peer review or tested against information known, or the potential rate of error.
This testimony was not sufficiently reliable under Daubert, and although the court did not reverse this particular verdict because of the two-issue rule, it indicated it would have without that procedural protection.
TRIAL COURT PROPERLY ENTERED COST JUDGMENT AGAINST HUSBAND PLAINTIFF AFTER HE DISMISSED HIS CONSORTIUM CLAIM ON THE FIRST DAY OF TRIAL
Emanuel v. Costco, 46 Fla. L. Weekly D959 (Fla. 4th DCA April 28, 2021):
On the first day of trial, the plaintiff-husband dismissed his loss of consortium claim in a case his wife brought against Costco. The jury reached a defense verdict.
Subsequently, the trial court entered a cost judgment against the husband, which plaintiff asserted included costs that were merely duplicative of the costs awarded against his wife, and were not related to his derivative loss of consortium claim.
The court observed that there is no blanket rule that automatically deems a loss of consortium claim as necessarily “inextricably intertwined” with the primary liability claim for the purposes of awarding attorney’s fees and costs, and when allocation is feasible, it should be made.
However, in this case, the defendant presented argument and competent substantial evidence in the form of expert witness testimony, to support the trial court’s finding that the husband’s loss of consortium claim was in fact inextricably intertwined with the wife’s primary liability claim, thereby supporting the cost judgment.
A SUMMARY JUDGMENT THAT PROCEEDS TO A JURY TRIAL WITHOUT A MOTION FOR DIRECTED VERDICT CANNOT BE RAISED FOR THE FIRST TIME ON APPEAL
Strickland v. State Farm, 46 Fla. L. Weekly D1002 (Fla. 1st DCA April 30, 2021):
The plaintiff’s car was rear-ended in two separate accidents within a two-week period. The plaintiff moved for summary judgment on liability, and State Farm opposed, arguing that both accidents involved the plaintiff starting to move forward and then stopping abruptly, raising the possibility of his negligence.
The trial court denied the motion for summary judgment. While State Farm admitted negligence at trial, it still maintained the plaintiff was comparatively negligent.
Notably, the plaintiff never moved for a directed verdict on the issue, and the jury ultimately apportioned a percentage of fault to the plaintiff. It also found that plaintiff had not sustained a permanent injury.
The plaintiff also argued that the evidence was insufficient to allow the jury to apportion negligence to the plaintiff for failing to mitigate his business losses and his pain because he rejected physical therapy.
The court affirmed the final judgment, ruling only that the plaintiff failed to preserve the issue because he never moved for directed verdict.