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Mon 26th Oct | 2020

The Week in Torts – Cases from the Week of October 9, 2020

Appellate Litigation Personal Injury Premises Liability Slip and Fall The Week in Torts BY

That Ain’t Diligence…

FLORIDA LAW WEEKLY
VOLUME 45, NUMBER 40
CASES FROM THE WEEK OCTOBER 9, 2020

A PARTY MERELY STATING THAT HE OR SHE DID NOT LEARN OF AN ERROR UNTIL AFTER THE TRIAL, WHEN THE ERROR CAME TO LIGHT, DOES NOT PROVIDE ENOUGH TO CONSTITUTE THE DILIGENCE OR THE VIGILANCE REQUIRED BY RULE 1.540.

Neapolitan Enterprises, LLC v. Fishman, 45 Fla. L Weekly D2244 (Fla. 2nd DCA September 30, 2020):

A jury reached a defense verdict in a case where the plaintiff had fallen and was injured on the defendant’s property. The plaintiff did not move for a new trial, nor did he appeal the final judgment. However, several months later, the plaintiff filed a request with the lower court to view the trial exhibits.

Several months after that, plaintiff filed a rule 1.540 motion stating that after the trial—but not stating exactly when—he contacted his physician’s office to shed light on the defendants’ allegation at trial that he suffered from Parkinson’s disease, when in fact he did not.

The plaintiff’s doctor advised him that some of the medical records belonging to another patient with the same name and Parkinson’s disease, had been inadvertently provided to the defendant.

The plaintiff asserted that he was entitled to relief from the final judgment based on newly discovered evidence. He claimed that he had not discovered that some of his medical records provided by his physician and admitted into evidence belonged to another patient, until after the time to file an appeal had run. After consulting with his physician, the plaintiff alleged that he immediately contacted the lower court clerk to obtain the trial exhibits.

Notably, the plaintiff’s affidavit did not indicate when he first contacted his physician after the trial, nor did he claim that despite exercising due diligence, he was unable to discover that the wrong medical records had been sent to the defendant and relied upon at trial, until several months after the trial.

After an evidentiary hearing, the trial court entered an order granting the plaintiff’s motion for relief from judgment based on newly discovered evidence pursuant to 1.540(b)(2).

Reviewing the ruling for an abuse of discretion, the appellate court found that the plaintiff failed to establish—or assert– that despite exercising diligence, he was unable to discover the error regarding the medical records until months after trial. Rather, his affidavit merely stated that he did not learn of the error until after the trial, and only argued at the evidentiary hearing that the evidence was “brought to his attention” after the trial.

The court stated that those facts hardly constituted the diligence or vigilance required by the law. Because relief from judgment based on newly discovered evidence should be seldom granted, and only when the party seeking relief has exercised due diligence, the trial court abused its discretion in granting the motion.

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