April 2001

Accident Privilege

Galgano v. Buchanan
26 Fla. L. Weekly D859 (Fla. 4th DCA 2001)

The court reverses for improper admission of evidence of defendant’s traffic citation and mailed-in guilty plea. Section 318.14(4), Florida Statutes, proves that “such admission shall not be used as evidence in any other proceeding. The court rejects the argument that 318.19 makes a court appearance mandatory if the accident causes “serious bodily injury”; and that consequently the defendant should not have been allowed to mail in her guilty plea. In the Third District, this evidence would have been admissible under Figueredo v. Keller Industries, 583 So.2d 432 (Fla. 3d DCA 1991).

Appeals — Stays

Shake Consulting LLC v. Suncruz Casino
26 FLW D862 (Fla. 4th DCA 2001)

The trial court did not abuse its discretion in granting a stay pending the outcome of several related cases, to avoid inconsistent rulings, and to promote judicial economy. The court has broad discretion to grant or deny a stay, although a delay in the entire proceedings may sometimes constitute a departure from the essential requirements of law. This case may prove useful to those of you who are waiting for rulings from the Supreme Court that are relevant to cases you have pending.

Arbitration — Attorney’s Fees

Moser v. Barron Chase Securities, Inc.
26 Fla. L. Weekly S195 (Fla. 2001)

The court disapproves the NASD’s policy of discouraging arbitrators from stating the reason for their decision. The Florida arbitration code has been interpreted to allow the court, not the arbitrators, to determine the issue of fees, unless the parties waive that right. Where a claimant brings an arbitration claim on several theories, some of which support an award of attorney’s fees and some of which don’t, and the parties have not agreed to arbitrate attorney’s fees, the arbitrators must state in their decision whether it is based on one of the theories that would support an award of attorney’s fees. If the decision does not state whether the claimant has prevailed on a theory that would support an award of fees, the circuit court may remand the case to the arbitration panel for the purpose of resolving the issue. Thereafter, the court may determine the fee issue in accordance with the finding of the arbitrators.

Sullivan v. Sears Authorized Termite and Pest Control, Inc.
26 Fla. L. Weekly D855 (Fla. 4th DCA 2001)

A negligence claim for personal injury was not subject to arbitration. The complaint alleged breach of the pest control company’s duty to use reasonable care in applying chemicals to eradicate spiders, and also alleged breach of the duty to warn the plaintiff that the chemicals were known to be inadequate to exterminate spiders. None of the allegations in the complaint referred to the agreement, and nothing in the agreement indicated any intent to include, in the arbitration provision, common law tort claims for personal injury. The court reversed the order compelling arbitration, citing Seifert v. U.S. Home Corp., 750 So.2d 633 (Fla. 1999), correctly, in my opinion. The court certified conflict with Terminix Int’l Co. v. Ponzio, 693 So.2d 104 (Fla. 5th DCA 1997). In my opinion, Ponzio was decided before Seifert and is no longer good law.

Environmental Law

Flo-Sun, Inc. v. Kirk
26 Fla. L. Weekly S189 (Fla. 2001)

Former Governor Kirk, individually and on behalf of the State, sued several sugar companies alleging that they have maintained a public nuisance by growing and processing sugar cane in a manner that annoys the community and injures the health of the community at large and plaintiffs in particular, and that they violated Chapter 823, Florida Statutes. Chapter 403, Florida Statutes is comprehensive pollution control legislation which gives power and duty to control air and water pollution to the DEP. Section 403.191 provides that it does not supersede common law and other remedies. The court held that Chapter 403 does not supersede Chapter 823 or common law remedies, but that the doctrine of primary jurisdiction counsels in favor of having an administrative agency with expertise address the plaintiffs’ complaints. The doctrine of primary jurisdiction requires the court to postpone or suspend judicial determination of the issues. The trial court erroneously dismissed the plaintiffs’ complaint with prejudice.

Evidence — Fry

Poulin v. Fleming
26 Fla. L. Weekly D748 (Fla. 5th DCA 2001)

The trial court properly excluded the plaintiff’s expert testimony linking the child’s birth defect to radiation and medication administered to the mother while she was pregnant. The court continues to apply the standard of Frye v. United States, 293 F. 1013 (D.C. Dir. 1923). Frye holds that courts will admit expert testimony deduced from a well-recognized scientific principle, but the principle from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. The court rejects the federal standard set out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The court describes the Daubert standard as more lenient than Frye. I believe this is true; Daubert’s language suggests that the federal rules of evidence should be appliedliberally to allow the introduction of scientific or expert evidence. However, Daubert has not been applied liberally in the federal courts, which now hold lengthy “Daubert hearings”, sometimes lasting for days or even weeks, at which it sometimes is necessary to hire an expert to validate the basis of your expert’s opinion. Scary stuff, if the Florida courts think that is a more liberal standard than the Florida standard.

Kaelbel Wholesale, Inc. v. Soderstrom
26 Fla. L. Weekly D544 (Fla. 4th DCA 2001)

The trial court erred in admitting novel scientific opinion — from two experts — about the link between Guillane-Barre Syndrom and ciguatera poisoning. The court cites Frye, rejecting the argument that the testimony was “pure opinion” that did not need to be analyzed under Frye. The court says that the scientific principles and methodology used by the experts to arrive at their opinion of causation were not generally accepted in the relevant scientific community and were actually based on contradictory principles.

Federal Preemption

Doe v. America Online, Inc.
26 Fla. L. Weekly S141 (Fla. 2001)

Section 230 of the Communications Decency Act, 47 U.S. C. 230, prohibits civil actions that treat an interactive computer service as the publisher or speaker of messages transmitted over its service by third parties. The court holds that the Act preempts an action against America Online, an Internet Service Provider, alleging violation of the Computer Pornography and Child Exploitation Act, and negligence, by allowing pictures of the plaintiff’s minor child to be marketed in AOL’s chat rooms.


Villazon v. Prudential Health Care Plan, Inc.
26 Fla. L. Weekly D723 (Fla. 3d DCA 2001)

In Pegram v. Herdrich, 120 S.Ct. 2143 (2000), the U.S. Supreme Court held that mixed eligibility and treatment decisions made by an HMO, acting through its physician employees, were not fiduciary acts within meaning of ERISA and, thus, could not form the basis for a breach of fiduciary duty claim under ERISA. (The court did this in the context of defeating the plaintiff’s claim; the court held that there was nothing wrong with rationing care; that is what HMOs are set up to do, and that is what Congress wanted them to do when it authorized them).

In Pappas v. Asbel, 2001 WL 327888 (Pa. April 3, 2001), the Pennsylvania Supreme Court held that Pegram’s holding means that a state law medical negligence claim is not preempted by ERISA. However, the Third District holds in this case that the plaintiff’s claim of medical malpractice and vicarious liability for the negligence of an HMO doctor is pre-empted by ERISA, where the claim is related to the administration of the employee benefit plan. The HMO controlled the referral process, required authorization before performing procedures, and required contracted care through the HMO and its contracted physicians.

The doctors in this case were not employees of the HMO as in Pegram, but were independent contractors. The court also holds that the HMO had no nondelegable duty to render proper medical care, because it undertook only to provide care through participating health care providers, not to provide care itself.

Insurance — PIP

Auto Owners Ins. Co. v. Marzulli
26 Fla. L. Weekly D734 (Fla. 2d DCA 2001)

Based on Derius v. Allstate Indemnity Co., 723 So.2d 271 (Fla. 4th DCA 1998), the court holds that , because a PIP insurer is not liable for any medical expenses that are not both reasonable and necessary, the insurance company acted properly in relying on a chiropractor’s report that the plaintiff reached maximum medical improvement and no further treatment was necessary, to withdraw authorization for plaintiff’s future chiropractic treatment.

Jury Instructions

Standard Jury Instructions — Civil Cases
26 Fla. L. Weekly S151 (Fla. 2001)

The court has revised the preliminary voir dire instruction to emphasize the importance of disclosure by jurors. The court has also revised the defamation instructions, and added a paragraph to the prejudice and sympathy instruction to tell the jury it should not be swayed by what it thinks the judge thinks about the case. The court has added an instruction on discharging the jury, to tell them that the lawyers are not allowed to contact them, but they are allowed to talk to anyone they want to.

Thomason v. Gordon
26 Fla. L. Weekly D642 (Fla. 5th DCA 2001)

It was error to fail to hold the charge conference prior to closing argument. It deprived the parties of the knowledge, while making their arguments, of what instructions and verdict form the jury would be given. The court erred in refusing to give the instruction on concurring cause, where the court gave an instruction on aggravation of pre-existing condition. The aggravation instruction is a damage instruction. The jury doesn’t reach it until it decides causation. In order to decide causation, it must be instructed on concurring cause.

Limitations — Civil Rights

Ellsworth v. Polk County Board of County Commissioners
26 Fla. L. Weekly S95 (Fla. 2001)

Based on Joshua v. City of Gainesville, 768 So.2d 432 (Fla. 2000), the court holds that the general four-year statute of limitations for statutory causes of action in 95.11(3)(f) applies when the Commission on Human Relations fails to make a reasonable cause determination within 180 days.

Limitations — Legal Malpractice

Gilbride, Heller & Brown, P.A. v. Watkins
26 Fla. L. Weekly S173 (Fla. 2001)

In a legal malpractice action, the two-year statute of limitations period of 95.11(4)(a), Fla. Stat. Begins to run only after a timely filed appeal to, or petition for review by, the Supreme Court is resolved. If the Supreme Court denies review in the underlying action, the statute begins to run only at that time.

Med Mal — Presuit

De La Torre v. Orta
26 Fla. L. Weekly D776 (Fla. 3d DCA 2001)

The trial court erred in striking the defendant doctor’s pleadings for his failure to respond to plaintiff’s presuit notice and request for documents, where the doctor did not respond because he thought the statute of limitations had run, and where, after suit was filed, the doctor notified his carrier and responded to the discovery and filed an opposing expert affidavit. The court held that striking pleadings was too harsh a sanction and remanded for a lesser sanction. It seems to me that this interpretation of the statute violates equal protection, because a plaintiff who fails to comply with presuit is bounced out of court. I agree that the right of access to courts should not be denied on a technicality, but that principle should apply to plaintiffs and defendants.

Torrey v. Leesburg Regional Medical Center
26 Fla. L. Weekly D632 (Fla. 5th DCA 2001)

This is an example of the unequal treatment of plaintiffs and defendant’s under the statute. The court reverses the trial court’s denial of the defendant’s motion to dismiss for failure to comply with presuit. The plaintiff did not cure the failure to timely provide the expert affidavit by providing one before the statute of limitations ran, because the affidavit did not specify whether any previous opinions of the expert had been disqualified. Moreover, during presuit, the plaintiff did not make discoverable information available upon request without resorting to formal discovery motions. It sounds a lot like the actions of the defendant in the De La Torre case. However, in this case, the court orders that the plaintiff’s case must be dismissed.

Rodriguez v. Campbell
26 Fla. L. Weekly D593 (Fla. 4th DCA 2001)

The plaintiff’s complaint was dismissed for failure to conduct a reasonable presuit investigation, and the court awarded attorneys fees to the defendant. The court held that 766.206(2) limits the plaintiff’s liability to “all attorney’s fees ... incurred during investigation and evaluation of the claim.” It was error to tack on fees for litigating the issue of presuit noncompliance and for litigating the amount of fees to be awarded.

Gutierrez v. Peralta
26 Fla. L. Weekly D539 (Fla. 4th DCA 2001)

A plaintiff with a derivative loss of consortium claim does not have to provide presuit notice of intent to initiate litigation. Here, the presuit notice and affidavit sent by the plaintiff’s husband did not mention the plaintiff’s claim, but the court holds that is unnecessary. I think this decision is correct, but I would be very careful about relying on it until the Supreme Court resolves the issue.

Medical Records

Continucare Corp. v. Cruz
26 Fla. L. Weekly D583 (Fla. 3d DCA 2001)

In this eminently sensible opinion, the court affirms the trial court’s order requiring the custodian of the records of the plaintiff’s deceased spouse to provide the records to the plaintiff. The court relies on 456.057(4), Florida Statutes, which requires any health care practitioner to provide copies of all records “upon request of such person or the person’s legal representative.” The court criticizes the 5th DCA’s opinion in Cardiovascular Surgeons v. Anthony, 773 So.2d 633 (Fla. 5th DCA 2000) which held that a surviving spouse is not automatically deemed a “legal representative” of the deceased spouse under the statute; that a judicial determination is required. The court points out that it should not be necessary to open a probate estate in every case just to get the records; the intent of the statute is to allow access to the records, “inexpensively, informally, and ‘without delays for legal review.’” The court makes its opinion effective immediately whether or not a motion for rehearing is filed.

Negligence — Duty

Poleyeff v. Seville Beach Hotel Corp.
26 Fla. L. Weekly D534 (Fla. 3d DCA 2001) (en banc)

A beachside hotel has no duty to warn or safeguard its guests against the dangers of a riptide in the waters at the beach next to the hotel, if it does not control the area or undertake a particular responsibility to do so, even if the dangers are hidden, if they are naturally occurring. The entity which rented chairs and umbrellas has no duty, either. However, if an entity undertakes a responsibility by, for example, renting swimming equipment or watercraft, the entity may be liable. See McKinney v. Adams, 68 Fla. 208, 66 So. 988 (1914).


Fluet v. Florida Birth-Related Neurological Injury Compensation Association
26 Fla. L. Weekly D689 (Fla. 2d DCA 2001)

The plaintiff’s child was delivered by a nurse midwife in a hospital. The hospital’s protocol required the nurse midwife to be under the supervision of an attending obstetrical physician to whom the nurse midwife was responsible and who would be readily available for consultation. During delivery , the nurse midwife called the attending doctor and obtained his permission to administer Pitocin. The child died four days after birth. The mother filed a claim under NICA. NICA denied the claim and the mother appealed.
NICA is a no-fault system which provides a lesser recovery and a “streamlined” administrative hearing. In order to claim under NICA, the claimant must prove that obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital; or by a certified nurse midwife in a teaching hospital supervised by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital.” 766.309(1)(b), Florida Statutes.

The court held that the doctor who authorized Pitocin over the phone “delivered” obstetrical services “in the course of” the delivery of this baby, and therefore the mother was eligible for a NICA claim. The statute does not require that the member doctor deliver the baby, only that he or she deliver services.

Nursing Homes

Alterra Healthcare Corp. v. Estate of Shelley
26 Fla. L. Weekly D670 (Fla. 1st DCA 2001)

The nursing home did not have standing to assert the privacy rights of its employees who were not parties to the suit. Consequently, the trial court did not depart from the essential requirements of law in ordering production of employee personnel files containing “confidential” information. The court certifies conflict with Beverly Enterprises - Florida, Inc. v. Deutsch, 765 So.2d 778 (Fla. 5th DCA 2000).

Integrated Healthcare Services, Inc. v. Lang-Redway
26 Fla. L. Weekly D699 (Fla. 2d DCA 2001)

The plaintiff was not required to comply with the medical malpractice presuit requirements where the plaintiff chose to allege only a statutory claim under 400.022 and did not also allege a common law claim for medical negligence. “Although there may be some overlap between he statutory right to ‘receive adequate and appropriate health care’ and the common law claim for medical negligence, ... the presuit requirements of chapter 766 must be narrowly construed to apply only to common law medical negligence claims and not to the separate statutory rights created by chapter 400.” The court certifies the question to the Supreme Court.
Until the Supreme Court resolves this issue, I recommend that you comply with the med mal presuit requirements, but don’t rely on the tolling provisions when calculating the statute of limitations.

Delta Health Group, Inc. v. Williams
26 Fla. L. Weekly D878 (Fla. 5th DCA 2001)

The trial court improperly granted plaintiff discovery of the identity of all residents who resided at the facility on a number of specified dates. The court held that the interrogatory was overbroad, where the plaintiff had not shown that there was “an overriding need for the names and addresses of every resident for the extensive periods of time designated by the plaintiff between January 12, 1994 and January 26, 1999.” However, the opinion is written in a way that suggests that a narrower interrogatory might be appropriate. The court notes that “the privacy concerns of the nonparty residents must be balanced against the need for disclosure of their identities in a lawsuit.” Therefore, if you want this kind of information, carefully tailor your interrogatories and explain to the court why you need this information..

Somberg v. Florida Convalescent Centers
26 Fla. L. Weekly D779 (Fla. 3d DCA 2001)

A claim for damages for pain and suffering before the victim’s death under Chapter 400, Florida Statutes, survives the death of the nursing home patient. The court agrees with Beverly Enterprises Florida, Inc. v. Spillman, 661 So.2d 867 (Fla. 5th DCA 1995), and certifies conflict with First Healthcare Corp. v. Hamilton, 740 So.2d 1189 (Fla. 4th DCA 1999).

Parental Immunity

Herzfeld v. Herzfeld
26 Fla. L. Weekly S156 (Fla. 2001)

The court abolishes the doctrine of parental immunity in cases of sexual abuse of a child by his or her parent.

Value Rent-A-Car v. Grace
26 Fl. L. Weekly D737 (Fla. 2d DCA 2001)

A child was injured in a car accident in which his father was driving a rental car. The mother brought an action against the rental car company under the dangerous instrumentality doctrine. The rental car company filed a complaint against the father for indemnity. The court held that the rental car company was not required to plead that the father was insured in order to pursue its indemnity claim. It is the burden of the father to plead parental immunity, including pleading that he is uninsured. Parental immunity is an affirmative defense.


Amerada Hess Corp. v. Federated Dept. Stores, Inc.
26 Fla. L. Weekly D731 (Fla. 4th DCA 2001)

Relying on Hurt v. Leatherby Ins. Co., 380 So.2d 432 (Fla. 1980), the court holds that a release that, in the printed portion, contained broad, general language releasing all entities from liability, but also contained handwritten language that released only the driver and her insurer, contains a latent ambiguity about whether the plaintiff intended to release the driver’s employers, as well.


Cheverie v. Geisser
26 Fla. L. Weekly D769 (Fla. 4th DCA 2001)

The trial court erroneously dismissed the plaintiff’s complaint based on an alleged settlement that was never agreed to. The defendant insurer included language in the release requiring the plaintiff to indemnify it and hold it harmless against all claims; the insurer also failed to provide the plaintiff with an affidavit verifying the amount of the policy limits. The court held that there was no agreement. Compliance withthe statutory requirement to provide an affidavit of policy limits is not a mere technicality. See 627.4137, Florida Statutes. The insistence on the indemnification language to which the plaintiff’s counsel objected also prevented a meeting of the minds.


Grand Hall Enterprise Co. v. Mackoul
26 Fla. L. Weekly D661 (Fla. 3d DCA 2001)

The plaintiff was seriously injured when the gas tank on his barbecue grill leaked from the regulator and the heat from the grill ignited the gas. Nine months after the accident, his expert inspected the regulator by taking it apart. He took photographs of the disassembly process and made a videotape of most of it. The defendant was not entitled to sanctions based on spoliation of evidence, because there was no violation of a court order and no intentional destruction or loss of evidence, and all of the parts recovered were introduced at trial.

Strasser v. Yalamanchi
26 Fla. L. Weekly D605 (Fla. 4th DCA 2001)

The trial court did not err in allowing the plaintiff’s claim for spoliation of evidence to go to the jury, “following a vain and costly attempt by [the plaintiff] to obtain relevant and critical information vital to his claim,” at the conclusion of which the plaintiff’s expert was informed for the very first time that the computer hard drive he had been seeking had been severely damaged by lightning and thrown out by the defendant’s employee more than a year before. There was also testimony that defendant’s employees shredded documents after the plaintiff requested them. A party has an affirmative duty to preserve all items or documents that are the subject of a duly served discovery request. Figgie International v. Alderman, 698 So.2d 563 (Fla. 3d DCA 1997).

The court’s instruction to the jury that the negligent destruction of evidence may be inferred from defendant’s failure to preserve and maintain it erroneously shifted the burden of proof to the defendants on the issue of breach of due care, but was harmless because the evidence was such that the verdict was not likely affected. I’m a littleconcerned about this part of the decision, because it is rather cryptic. It does not discuss the possibility that the trial court could have shifted the burden of proof to the defendant as a sanction for discovery violations.

It was proper for the court to allow evidence of the defendant’s discovery violations that were relevant to the negligent spoliation of evidence claim. Although evidence of pretrial discovery conduct is not usually a matter for the jury’s consideration, cf. Emerson Electric Co. v. Garcia, 623 So.2d 523 (Fla. 3d DCA 1993), there is an exception where the misconduct alleged is the destruction or unexplained disappearance of crucial evidence.

Finally, the trial court properly refused to recuse himself based on comments he made about the defendant’s conduct that were based on the record, including the sudden revelation that the evidence had been destroyed a year before.

Workers Comp Immunity

Pacheco v. Florida Power & Light
26 Fla. L. Weekly D715 (Fla. 3d DCA 2001)

Section 553.84, Florida Statutes, which creates a cause of action for violation of the State Minimum Building Codes does not overcome worker’s compensation immunity under 440.11.