The Week in Torts – Cases from the Week of October 27, 2017

FLORIDA LAW WEEKLY

VOLUME 42, NUMBER 43

CASES FROM THE WEEK OF OCTOBER 27, 2017

“ADVERSE MEDICAL INCIDENTS” UNDER AMENDMENT 7 ARE NOT LIMITED TO THOSE PREVIOUSLY PROTECTED BY STATUTE–AMENDMENT 7 WAS INTENDED TO BE MUCH BROADER THAN THAT.

Edwards v. Thomas, 42 Fla. L. Weekly S870 (Fla. October 26, 2017):

After a physician unwittingly cut the plaintiff’s bile duct during gallbladder surgery and failed to notice that he did so, which necessitated emergency surgery several days later and caused future problems, the plaintiff sued both the hospital and the doctor for medical negligence, and negligent hiring and retention.

The plaintiff served a request to produce on the hospital pursuant to Article X, section 25 of the Florida Constitution, more commonly known as “Amendment 7,” requesting a number of records related to adverse medical incidents that occurred at the hospital.

The hospital objected to the discovery, maintaining that the records did not relate to adverse medical incidents, were “not made in the course and scope of business,” and were protected by attorney-client and/or opinion work-product privileges.

The plaintiff filed a motion to compel, and after being ordered on two occasions to produce the requested redacted documents, the hospital provided only the internal peer review documents. It then filed a petition for writ of certiorari challenging the trial court’s order requiring the production of the external peer review reports at issue which had been reviewed by an external company.

The Second District granted the petition in part and quashed it in part, finding that because the external reports had not been “made or received in the course of business” pursuant to Amendment 7’s requirements, they did not relate to any adverse medical incident. The Second District did not fully address the arguments of attorney-client and work-product privilege but indicated that there was a suggestion that Amendment 7 does preempt attorney-client privilege.

In the court’s detailed analysis of the language of Amendment 7, it observed that because the language states that adverse medical incidents are those “including, but not limited to, those incidents that are required by state or federal law to be reported to any government agency or body,” it is clear that it was meant to be quite broad.

The language “any record” under Amendment 7 relating to “any adverse medical incident” necessarily includes, but is not limited to those adverse medical incidents required to be reported by state or federal law. The court admonished that the language “including but not limited to” was not mere surplusage and instead was meant by Florida voters to be very broad.

In analyzing its prior decision in Buster, the court made clear that as the plain language of the amendment mandates, it now holds that “Amendment 7 was aimed at eliminating all discovery restrictions on “any records…relating to any adverse medical incident.”

Additionally, the court held that based on the express language and principles of constitutional analysis, the external peer review committee at issue in the Edwards case did qualify as a “similar committee” under Amendment 7, and as such, are discoverable.

The court then looked at the “in the course of business” requirement, noting that unlike “adverse medical incident” the amendment does not define “in the course of business.” Apropos of the tenor of the rest of the decision, the supreme court explained that simply because the hospital had voluntarily outsourced its peer review needs, did not place the reports produced outside or beyond the scope of Amendment 7 out of reach.

Any contrary conclusion, the court explained, would provide hospitals with a blue print as to the method to evade their constitutionally mandated discovery requirements. The hospital got no relief from arguing that these reports were made outside of the course of business by a health care facility or provider, even though a different external organization did the peer review.

Finally, on the issue of work-product and attorney-client privilege, the court relied on a prior Third District decision to explain that the plain language of Amendment 7 evinces an attempt to abrogate any fact work-product privilege that may have attached to adverse medical reports prior to its passage. As such, any argument that the reports were protected by fact work-product was rejected by the court. The court wondered how these records could contain an attorney’s mental impressions, conclusions, opinions or theories anyway, as the dissent asserted.

Ultimately, based on the record before it, the supreme court did not address the issues of opinion work-product or attorney-client privilege as related to Amendment 7 because there was no asserted basis that opinions of counsel were involved or communications between counsel and client. The conclusion of the supreme court was limited only to the fact that fact work-product is discoverable under Amendment 7.

COURT FINDS CERTAIN GOLDEN RULE-TYPE ARGUMENTS IMPROPER BUT DOES NOT REVERSE BASED ON LACK OF PRESERVATION–CUMULATIVE EFFECT DID NOT DEPRIVE DEFENDANT OF A FAIR TRIAL.

Phillip Morris v. Ledoux, 42 Fla. L. Weekly 2191 (Fla. 3^rd DCA October 18, 2017):

In this tobacco case, plaintiff’s counsel made several arguments during closing which the court found were improper, but did not ultimately reverse based primarily on lack of preservation.

The first objectionable comment was the attorney telling the jury that if in 1996, someone had put an ad in the paper that plaintiff had read, and said that it would pay him $10 million if he would sit and watch his wife choke, and struggle, and die in front of him, he would not have taken it. Defense counsel objected based on the fact there was no evidence of this and the objection was overruled.

Shortly thereafter, plaintiff’s counsel told the jury that if the ad continued that he would have to bury his wife and live alone for the next 19 years and the rest of his life, counsel submitted that the plaintiff would have said thank you, but keep your money. That comment was objected to and sustained.

For the third comment, plaintiff’s counsel said if there were a way that the plaintiff could have a magic wand and bring his wife back and she would walk in the door, he would take her hand and they would leave the courtroom and go home. But he was not given that option based on what the defendants had done and for that he was asking the jury to hold them accountable.

There was no objection to that comment but it was raised in the post-trial motion for new trial.

These comments, while improper, did not necessitate a new trial in this case. Additionally, the court ruled that a $10 million award in compensatory damages in this case was not “obviously” excessive or above the reasonable range within a jury might have properly operated. Therefore the court did not abuse its discretion in refusing to grant a remittitur.

TRIAL COURT DID NOT ABUSE DISCRETION IN NOT DISMISSING JUROR AND DENYING DEFENDANT’S POST-TRIAL MOTION FOR NEW TRIAL BASED ON THE JUROR’S ALLEGED FAILURE TO DISCLOSE BIAS AGAINST TOBACCO COMPANIES DURING JURY SELECTION–ALTHOUGH THE JUROR’S SOCIAL MEDIA POSTS DID SUGGEST BIAS RELEVANT TO HIS JURY SERVICE, THERE WAS NO SHOWING THAT THE JUROR HAD CONCEALED THAT BIAS AND THE DEFENDANT ALSO FAILED TO EXERCISE DUE DILIGENCE IN INQUIRING INTO THE BIAS.

R.J. Reynolds Tobacco Co. v. Allen, 42 Fla. L. Weekly D2206 (Fla. 1^st DCA October 18, 2017):

The trial judge gave all the prospective jurors a detailed questionnaire prepared by the defendants and told the jurors to take it seriously and answer the questions as truthfully as they could. One juror checked areas stating that he had worked or received education or training including tobacco/cigarette industry, addiction or substance abuse and smoking cessation. He stated he was a former smoker and gave details of his former smoking behaviors. The man indicated that he thought his minor son had suffered from smoking-related asthma and when asked about his opinion of other smokers, he explained he felt they were addicted but accountable for their choices.

Over three days of jury selection, the prospective juror was only questioned once. On the fourth day of trial, the tobacco company’s trial counsel raised allegations of juror misconduct in a written motion and sought to have him removed from the jury. The motion alleged that the defendants believed the juror had personal and deep-seated antagonism and bias against the defendants based on social media postings the juror had purportedly made on the internet and in the past. Several days passed, before the trial court heard argument. After taking the matter under advisement, the court denied the motion.

In denying the dismissal of the juror and in denying a new trial, the judge issued a very detailed order based on the De La Rosa three-part test.

As to the second prong of De La Rosa, the trial court found that the juror had not concealed any bias against the defendants, and that his answers were not equivocal. The trial court also found that there was insufficient due diligence exercised by the defendants to meet the third prong of De La Rosa, and therefore denied the motion for new trial.

The First District affirmed. Because the juror had disclosed personal family history with smoking, along with his answers regarding his feelings on the tobacco companies, the court found no abuse of discretion in determining that the defendants should have asked the juror more clear and direct questions during their voir dire.

TRIAL COURT PROPERLY DENIED MOTION FOR ATTORNEY’S FEES UNDER SECTION 57.105 WHERE ALTHOUGH THE PLAINTIFF’S CLAIMS WERE TENUOUS, THERE WAS AT LEAST AN ARGUABLE BASIS FOR PLAINTIFF’S CLAIMS–SIMPLY BECAUSE A LITIGANT LOSES A CASE IS NOT A BASIS FOR SANCTIONS UNDER SECTION 57.105 AND COURTS SHOULD APPLY THE STATUTE WITH RESTRAINT SO AS NOT TO RISK CHILLING ACCESS TO THE COURTS.

MINTO PBLH, LLC v. 1000 Friends of Florida, Inc., 42 Fla. L. Weekly D2223 (Fla. 4^th DCA October 18, 2017):

The plaintiffs below unsuccessfully brought a case, and the defendant had moved for §57.105 fees which the trial court denied.

The Fourth District affirmed. In a rather strongly worded opinion, the court said that where there is an arguable basis in law and fact for a party’s claim, a trial court may not sanction that party under section 57.105. Instead, courts must apply section 57.105 “with restraint to ensure that it serves its intended purpose of discouraging baseless claims without casting a chilling effect on use of the courts.”

The Fourth District admonished that merely losing a case is not a basis for sanctions under section 57.105. Similarly, a court’s finding that a party’s interpretation of a legal document is incorrect “does not mean that the other party is necessarily entitled to section 57.105 fees.”

The court declined to address in detail the lengthy factual and procedural history of the case, noting that it although the plaintiff’s claims were tenuous with respect to the alleged inconsistency they were arguing between documents, there was at least an “arguable” basis for the claims.

The Fourth District even noted that its decision was not intended to suggest that the plaintiff’s claims were even persuasive. However, even though the plaintiff’s contentions were not particularly strong and were ultimately determined to be incorrect, the court affirmed the denial of §57.105 sanctions, advising that the statute needs to be applied “with restraint.” To rule otherwise, would risk chilling access to courts. As the court observed, if the defendant’s argument were taken to its logical extreme, a losing party would be subject to sanctions under section 57.105 every time a court found that a statute or a legal document was unambiguous and a losing party’s interpretation was incorrect (and taken to its logical extreme, any time any litigant loses).

TRIAL COURT ERRED IN ENTERING FINAL SUMMARY JUDGMENT IN FAVOR OF INSURER ON THE GROUND THAT INSURER DID NOT TIMELY SEND THE CIVIL REMEDY NOTICES REQUIRED BY STATUTE–RECORD INDISPUTEDLY SHOWED THAT THE INSURER HAD RECEIVED THE CIVIL REMEDY NOTICE NEARLY FOUR YEARS BEFORE THE BAD FAITH SUIT WAS FILED, AND HAD RESPONDED TO IT WITHOUT CHALLENGING ITS SERVICE.

Evergreen Lakes HOA v. Lloyd’s Underwriters at London, 42 Fla. L. Weekly D2226 (Fla. 4^th DCA October 18, 2017):

A condition precedent to an insured filing a bad faith lawsuit against the insured’s own insurance company requires the department and the authorized insured be given sixty days’ written notice of the violation pursuant to section 624.155(3)(a). As of 2006, when the statute at issue was in effect, the statute did not contain any guidance as to how the insurer had to be given the civil remedy notice (email? certified mail? etc.). The statute did clarify that the CRN is meant to serve as an opportunity for the insurer to cure the alleged violation and avoid litigation.

In this case, there was no dispute that both insurers were “given” a copy of the CRN which was on a form provided by the Department of Financial Services more than sixty days before plaintiff filed its bad faith suit. This gave the insurer almost four years to cure the alleged violation before it was sued for bad faith.

While the insurer acknowledged that fact, it still argued that summary judgment was appropriate because of the plaintiff’s mailing error, and argued that it did not have the benefit of the full sixty-day cure period.

However, the court found that the insurance company waived compliance with any such requirement by responding to the CRN within sixty days of the acceptance date without challenging its timely receipt. Thus, the trial court erred in granting the insurance company’s motion for summary judgment based on lack of proper notice.

SANCTIONS AWARDED PURSUANT TO SECTION 57.105(1) MAY NOT INCLUDE COSTS–THE FEE CHARGED BY A LAWYER TO APPEAR AS AN EXPERT WITNESS IS CONSIDERED A COST NOT AN ATTORNEY’S FEE, AND IS AWARDABLE ONLY WHEN COSTS ARE PROPERLY AWARDED–CONFLICT CERTIFIED.

Lana v. Assimakopoulos-Panuthos, 42 Fla. L. Weekly D2232 (Fla. 2^nd DCA October 20, 2017):

A party appealed the court’s order awarding sanctions against her pursuant to section 57.105, as well as two other judgments against her, awarding expert witness fees to the other party’s attorney and the curator of the estate.

Zeroing in on the plain language of section 57.105(1), the court stated that the sanction permits an award of attorney’s fees only.

Instead, costs are only included in section 57.105(2) which provides for a sanction of damages for reasonable expenses incurred in obtaining the order when a court finds that an action taken by the opposing party was done primarily for the purpose of unreasonable delay. The language about costs in subsection (2), is absent from subsection (1), however.

Expert witness fees are taxed as costs pursuant to section 92.231(2), and supreme court law. When an attorney is serving as an expert witness, that is considered a cost, not an attorney’s fee.

Thus, the court concluded that the attorney’s expert witness fee could not be considered part of the sanctions judgment entered against the non-movant under section 57.105(1), and reversed the award to the extent that it included such costs.

The court certified conflict to the extent that the case conflicts with other cases that hold that costs may be properly awarded under section 57.105(1).

AWARD OF ATTORNEY’S FEES RESEMBLES SANCTION FOR INDIRECT CRIMINAL CONTEMPT BECAUSE THE PURPOSE OF THE AWARD OF THE FEES IS TO PUNISH RATHER THAN TO COERCE COMPLIANCE–ERROR TO AWARD ATTORNEY’S FEES AS PUNISHMENT WITHOUT REQUIRING AN ORDER TO SHOW CAUSE, OPPORTUNITY TO RESPOND, FULL CONTEMPT HEARING AND JUDGMENT SUPPORTED BY RECITATION OF FACTS.

Powell v. Washington, 42 Fla. L. Weekly D2253 (Fla. 5^th DCA October 20, 2017):

Geico disclosed Dr. Powell as an expert. He initially objected to the plaintiff’s subpoena duces tecum asserting that he is employed by the Department of Defense as the only neurosurgeon east of the Mississippi and required to file a formal notice of leave of at least six weeks in advance. Despite the objection, the trial court compelled the doctor’s attendance.

The plaintiff later discovered that the Air Force had two neurosurgeons and that the doctor had provided only some of the requested records at his deposition. Yet, he emailed the rest of the records directly to Geico’s attorneys. The trial court then ordered the doctor to attend a second deposition to provide the remaining records.

The plaintiff moved to strike the doctor for fraud on the court and asked the court sanction him and his counsel for continuously and knowingly perpetrating a fraud. The court declined to strike Powell twice but did ultimately order him to pay the plaintiff fees based on statements that caused the plaintiff to double check on him and determine that he was not in fact being truthful.

The court observed that because the award of attorney’s fees most resembles a sanction for indirect criminal contempt (where the purpose of the fine is to punish the expert witness rather than to coerce his compliance) and the order contains no provision permitting him or her to avoid paying the fine. Because criminal contempt is a crime in the ordinary sense, imposition of criminal contempt sanctions requires that a contemnor be afforded the same constitutional due process protections afforded to criminal defendants.

In this case, the plaintiff moved for the trial court awarded sanctions as punishment without the proper prosecution which requires an order to show cause, an opportunity to respond, a full contempt hearing and a judgment supported by a recitation of the factual basis.

Because the court imposed attorney’s fees as a sanction against the doctor without the correct procedure without the requisite finding of contempt, the court reversed for further proceedings.

TRIAL COURT ERRED IN GRANTING NEW TRIAL BASED ON CONCLUSION THAT VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE GIVEN CONFLICTING TESTIMONY FROM A NUMBER OF WITNESSES REGARDING LIABILITY AND INJURY CAUSATION–NOTHING IN THE RECORD INDICATED THAT THE JURY’S VERDICT WAS A RESULT OF ANYTHING OTHER THAN ITS CONSIDERATION OF DISPUTED EVIDENCE AND WHICH GREATLY UNDERMINED THE PLAINTIFF’S CASE.

Allstar Cleaning Service v. Grinwis, 42 Fla. L. Weekly D2254 (Fla. 5^th DCA October 20, 2017):

This was a slip and fall failure to warn case. The trial court erroneously concluded that the verdict was against the greater weight of the evidence.

There was conflicting testimony regarding liability and injury causation from multiple witnesses in a case where plaintiff’s case was questionable.

The Fifth District held that a jury verdict is contrary to the manifest weight of the evidence only when the evidence is clear, obvious and indisputable (citing to Jones v. Stevenson, 598 So.2d 219, 220 (Fla. 5^th DCA 1992)). A jury’s verdict is also not against the manifest weight of the evidence generally if the record shows conflicting testimony from two or more witnesses.

Where there is significant conflicting evidence the weight to be given that evidence is within the province of the jury. The order here could not be sustained based on the juror’s questions alone as suggested by the trial court, as there was nothing in the record to indicate that the jury’s verdict was a result of anything other than the consideration of disputed evidence and the trial court’s instruction on the law.

AUTHOR’S NOTE: When shepardizing the Jones case, it does reflect being good law. However, in Brown v. Estate of Stuckey, 749 So.2d 490, 497–contrary to the Fifth District opinion and reliance on Jones–the Florida Supreme Court explicitly wrote:

The trial judge’s discretion permits the grant of a new trial although it is not ‘clear, obvious and indisputable that the jury was wrong.’

Irrespective of how wrong the trial court may have been to grant a new trial in a slip and fall case where plaintiff’s evidence was so far outweighed by defendant’s evidence, the court did seem–with all due respect–to rely on/cite to a standard which was overruled by the Florida Supreme Court.