June 2002

Attorney Disqualification

Allstate Ins. Co. v. Bowen
27 Fla. L. Weekly D1267 (Fla. 4th DCA 2002)

The trial court properly refused to disqualify an attorney who directly contacted a former managerial employee of the defendant. The attorney apparently did not know that the employee was now employed by an affiliate of the defendant. The issue was not whether the line between the separate entities was blurred enough that the employee could still be considered an employee of the defendant. The real issue was whether the attorney acted in good faith.Otherwise, “entities could bury the identity of the actual employer and controlling entity under layers of corporate affiliates, thereby seeking to insulate witnesses from pre-suit investigation and information gathering. Such a circumstance would be contrary to the civil justice system’s preference for access to information that is not privileged.”

Here, the lawyer researched Rule 4-4.2 and tried to comply with it as explained in H.B.A. Management v. Estate of Schwartz, 693 So.2d 541 (Fla. 1997), which held that the rule does not apply when the witness is no longer employed by the opposing party. No evidentiary hearing is required when there is no showing that confidential information has been disclosed and the defendant relies merely on the appearance of impropriety. “Such motions should be viewed with extreme caution for they can be used as techniques of harassment.”

Attorney’s Fees — 57.105

O’Grady v. Potash
27 Fla. L. Weekly D1310 (Fla. 3d DCA 2002)

Under the new 57.105, the equities of the situation are not a factor to consider in determining entitlement to fees. I have real concerns about whether this statute, if not narrowly construed, may amount to an unconstitutional denial of access to courts. I recommend raising that constitutional issue if someone tries to use the statute in one of your cases.

Attorney’s Fees — Charging Lien

Samuel L. Heller P.A. v. Held
27 Fla. L. Weekly D1323 (Fla. 4th DCA 2002)

An attorney who moved for leave to withdraw included in his motion language asserting that he was entitled to a charging lien and asking the court to reserve jurisdiction to impose it. The court granted the motion to withdraw, and in the order reserved jurisdiction to determine a charging lien that the attorney “may” file. The court held this was sufficient to give the former clients notice of the lien.


Dan Cytryn, Bifurcation in Personal Injury Cases:
Should Judges be Allowed to Use the "B" Word?

26 Nova L. Rev. 249 (2002)

This is an excellent article on bifurcation. It responds to some of the arguments made by Judge Tobin in his article on bifurcation in the Florida Bar Journal, and collects cases, statistics and arguments on the issue. A very thorough and thoughtful job, with a rather different perspective on the subject.

Discovery — Privilege Log

Allstate Ins. Co. v. Latimer
27 Fla. L. Weekly D1135 (Fla. 3d DCA 2002)

Rule 1.280(b)(5) requires a party asserting a privilege in discovery to prepare a list of the things not disclosed, to enable other parties to assess the applicability of the privilege. This list is referred to as a “privilege log”. In TIG Ins. Corp. of America v. Johnson, 799 So.2d 339 (Fla. 4th DCA 2001) the Fourth District held that a party’s failure to prepare a privilege log waived the privilege. Here, the Third District holds that the rule only applies to parties. Because the insurance company was not a party to the litigation, it was not required to prepare a privilege log and did not waive the privilege.

It seems to me that there must be some way for a non-party to assert a privilege in discovery while giving the other side enough information about the privileged material to enable the judge to make an intelligent decision about the privilege. If the court can’t require a non-party to prepare a privilege log, how is the court to rule on the privilege?

Evidence — Frye Test

United States Sugar Corp. v. Henson
27 Fla. L. Weekly S551 (Fla. 2002)

This is a thoughtful and scholarly effort by Justice Lewis to set straight some of the mess that has been made of the Frye test. The court reiterates that under Frye v. United States, 293 F. 1013 (D.C.Cir. 1923), “the injury must focus only on the general acceptance of the scientific principles and methodologies upon which an expert relies in rendering his or her opinion. Certainly, the opinion of the testifying expert need not be generally accepted as well.”

The court expressly disapproves E.I.DuPont De Nemours & Co. v. Castillo, 748 So.2d 1108, Fla. 3d DCA 2000) to the extent that it holds that both the basis for the expert’s opinions and the opinions and deductions themselves must be generally accepted. “We reaffirm our dedication to the principle that once the Frye test is satisfied through proof of general acceptance of the basis of an opinion, the expert’s opinions are to be evaluated by the finder of fact and are properly assessed as a matter of weight, not admissibility.”

“There is no question that the differential diagnosis technique ... is generally accepted in the scientific community. ... [I]t is well settled that a lack of epidemiological studies does not defeat submission of expert testimony and opinions as expressed in this case.”


Bogosian v. State Farm Mut. Auto Ins. Co.
27 Fla. L. Weekly D1241 (Fla. 3d DCA 2002)

This case clarifies some of the ramifications of settling with one of multiple defendants in the post-Fabre era. The plaintiff settled with one of two defendants. The second defendant had not asserted the fault of the settling defendant as a defense in its pleadings. On the morning of trial, the nonsettling defendant notified the plaintiff it would blame the settling defendant and ask to have it put on the verdict form as a Fabre defendant. The court held it was reversible error to allow this. The defendant must give the plaintiff fair notice that the defendant intends to try to prove culpability on the part of a nonparty Fabre defendant. Even though the plaintiff was familiar with the evidence of the settling defendant’s fault, the plaintiff had no opportunity to plan a response or gather evidence and witnesses to oppose this defense.

The trial court should have either excluded the evidence or continued the trial and allowed the defendant to amend its pleadings. It was also error to allow the defendant to call as its own witness the expert the plaintiff originally had retained to testify against the settling defendant, where the defendant did not list him in its pretrial catalog. It was not enough that the defendant’s catalog had a catchall for witnesses listed by the other parties, because the plaintiff had dropped the witness when it settled with the settling defendant.

It also was error to allow the expert to testify that he originally was the plaintiff’s expert, and to allow the defense to argue in closing that the plaintiff had not called its own expert, but left it to the defendant to give the whole story to the jury. See Sun Charm Ranch, Inc. v. City of Orlando, 407 So.2d 938 (Fla. 5th DCA 1981). The court distinguished Broward County v. Cento, 611 So.2d 1339 (Fla. 4th DCA 1993), because there, the defendant originally presented the expert for a video deposition as its own witness on damages. The expert testified that the plaintiff sustained a permanent injury, and the defendant then disavowed that expert and tried to take the position that there was no permanency. The court held that, under those circumstances, it was not an abuse of discretion to allow the jury to be told who originally hired the expert.

Finally, the court stated that if, on retrial, on cross examination, the plaintiff opens the door to further inquiry by attacking the expert’s credentials, or takes the position that the settling defendant’s fault played no part in the accident, the defendant then could reveal to the jury that the plaintiff originally hired the expert.

Insurance — Auto

Siegle v. Progressive Consumers Ins. Co.
27 Fla. L. Weekly S492 (Fla. 2002)

An automobile collision policy which provides that the insurer must repair or replace the damaged vehicle “with other of like kind and quality” does not obligate the insurer to compensate the insured for any diminution in market value after the insurer completes a first-rate repair which returns the vehicle to its pre-accident level of performance, appearance and function. The policy gave the insurer two options: (1) reimburse the insured by paying the insured money or (2) repair or replace the car. It did not cover the loss of the automobile’s value due to an accident. The court does not define a “first-rate” repair.

Insurance — Misrepresentation

Flores v. Allstate Ins. Co.
27 Fla. L. Weekly S499 (Fla. 2002)

The submission of a fraudulent bill under the PIP portion of a divisible automobile liability insurance policy does not void the uninsured motorist coverage under the policy where the policy contains a general condition that provides that the insurer “will not provide coverage for any loss that occurs in connection with any material misrepresentation, fraud or concealment of material facts, or if any material misrepresentation or omission was made in the auto insurance application.” The plaintiff, in his PIP claim, submitted three false prescription bills and altered one doctor’s bill from $30 to $130. The court held this did not preclude a claim under the UM portion of the policy. The policy provision did not clearly state that a misrepresentation, before or after a loss, would void the policy. The court notes that UM coverage is required by statute and is not to be “whittled away” by exclusions or exceptions.

The jury in this case ruled that the insured’s injury was 100% his own fault because he was not wearing a seat belt. The court holds that the burden is on the insurance company to demonstrate that the evidence on the PIP fraud did not unduly prejudice the jury, and remands for a determination of that question.

Insurance — No Fault

Giles v. Luckie
27 Fla. L. Weekly D1126 (Fla. 1st DCA 2002)

Cases have been circulating in the courts for a couple of years now on the issue of whether the no-fault statute allows recovery for damages for loss of the capacity for enjoyment of life, loss of consortium, disability and disfigurement, even when the permanency threshold has not been satisfied. The plain language of 627.737(2) lists only pain, suffering, mental anguish and inconvenience. Early cases interpreting the statute did not address this question. The First DCA has agrees with the Second and Fourth DCAs that the legislature intended to bar all non-economic damages. See Smiley v. Nelson, 805 So.2d 870 (Fla. 2d DCA 2001); Gill v. McGuire, 806 So.2d 629 (Fla. 4th DCA 2002); Welch v. Fega, 800 So.2d 327 (Fla. 4th DCA 2001).

The court certifies the question to the Supreme Court.


Amerace Corp. v. Stallings
27 Fla. L. Weekly S566 (Fla. 2002)

After you get your verdict, get that judgment entered even if post trial motions are pending. No postverdict prejudgment interest is awardable between the date of the verdict and the date of the judgment in a personal injury case, except where the plaintiff can establish that he or she has suffered the loss of a vested property right (such as, I believe, out of pocket payments for medical expenses). See Alvarado v. Rice, 614 So.2d 498 (Fla. 1993).

Jurisdiction — Longarm

Wendt v. Horowitz
27 Fla. L. Weekly S572 (Fla. 2002)

Making a telephonic, written or electronic communication into this state can constitute committing a tortious act within Florida to subject a nonresident defendant to personal jurisdiction under the longarm statute, 48.193(1)(b), if the alleged tort arose from the communication.

Jury Instructions

Standard Jury Instructions - Civil
27 Fla. L. Weekly S555 (Fla. 2002)

The court has issued new standard jury instructions. The aggravation instruction has been modified, and a new instruction is included for “subsequent injuries / multiple events” in accordance with Gross v. Lyons, 763 So.2d 276 (Fla. 2000), where the plaintiff is injured by the defendant and then is subsequently injured by another tortfeasor. There, the court held that the first of two successive tortfeasors is liable for the entire injury if the jury cannot apportion the injury.

The comment recognizes that a different instruction may be required for situations such as Stuart v. Hertz, 351 So.2d 703 (Fla. 1977), where the initial tortfeasor is liable for any damages caused by medical negligence in treating the injury caused by the tortfeasor.There are also new model verdict forms to deal with the different “tort reform” acts of 1986 and 1999, one with past and future damages apportioned, and one not apportioned.

Offer of Judgment

Island Hoppers, Ltd. v. Keith
27 Fla. L. Weekly D1257 (Fla. 4th DCA 2002)

A contingency fee multiplier may be awarded under the offer of judgment statute and rules. The court agrees with Lewis v. Bondy, 752 So.2d 1225 (Fla. 1st DCA 2000) and Pirelli v. Armstrong, 752 So.2d 1225 (Fla. 2d DCA 2000) and certifies conflict with Allstate Insurance Co. v. Sarkis, 809 So.2nd 6 (Fla. 5th DCA 2001). Additionally, although the plaintiffs’ expert on fees did not conduct a detailed review of the file, that went to the weight of his testimony, not the admissibility. The court questions whether there should be a hard and fast rule requiring expert testimony at all, although it recognizes that it may be necessary to establish the need for a multiplier in the relevant market, because the judges may not be sufficiently familiar with the current market conditions.

Rescue Doctrine

Reeves v. North Broward Hospital District
27 Fla. L. Weekly D1265 (Fla. 4th DCA 2002)

The plaintiff, a home health care nurse, was injured when she tried to prevent her patient from falling off a bed in the hospital when the emergency room technician instructed the patient to roll from his gurney onto the hospital bed without securing the railing. It was error to grant summary judgment against her because the ER technician created a situation of peril for the patient and, it was reasonably foreseeable that the patient would be injured, and a jury could conclude it was reasonable for the plaintiff to act as she did to protect the patient.