May 2014

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Amendment - Relation Back

Caduceus Properties, LLC v. Graney,
Case No. SC12-1474, 2014 WL 763137 (Fla. 1/27/ 2014)

An amendment to add, as a defendant a party that is already a third party defendant relates back to the filing of the third party complaint if the claims arise out of the same conduct, transaction or occurrence as set forth in the third party complaint. See Fla. R. Civ. P. 1.190.


Basulto v. Hialeah Automotive,
Case No. SC09-2358, 2014 WL 1057334 (Fla. 3/20/2014)

The Supreme Court affirmed, as not clearly erroneous, the trial court’s factual finding that the parties, car buyers and a car dealership, did not have a valid agreement to arbitrate. The plaintiffs did not speak English; all the documents were in English; none of the automobile dealership employees who communicated with them in Spanish had any basic understanding of arbitration; some of the documents were blank when the plaintiffs signed them; there was no evidence that anyone explained the arbitration clause to the buyer, and the arbitration provision itself was internally inconsistent and irreconcilable.

The court held that the District Court erroneously reversed the trial court because the District Court did not perform the three part analysis required by Seifert v. U.S. Home Corp., 750 So.2d 633 (Fla. 1999). Seifert requires the court to consider three elements: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived. If there is no showing for each of these elements, the motion to compel arbitration must be denied.

Because the trial court found that there was no arbitration agreement, the Federal Arbitration Act was not triggered and did not require the court to order the parties to arbitrate. The FAA requires the trial court, before ordering arbitration, to be “satisfied that the making of the agreement for arbitration or the failure to comply therewith is not an issue.” 9 U.S.C. §4.

The court also addressed the issue of unconscionability. A party seeking to avoid the terms of an agreement to arbitrate on this ground must show that the agreement is both substantively and procedurally unconscionable. But those factors need not be present to the same degree. “[T]he more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa. One prong may outweigh the other as long as there is at least “a modicum of the weaker prong.” The court must consider the interplay between the two elements and the bargaining power of the parties. “In many cases the meaningfulness of the choice is negated by a gross inequality of bargaining power.”


Dorsey v. Reider,
Case No. SC12-2197, 2014 WL 1239898 (Fla. 3/27/2014)

After an argument in a bar, the plaintiff attempted to leave. The defendant blocked his way as he walked between vehicles in the parking lot, which allowed the defendant’s friend to attack the plaintiff with a tomahawk taken from the defendant’s vehicle. The district court held that the defendant did not owe the plaintiff a duty of care, but the Supreme Court reversed.

Although there usually is no duty to prevent injury by the acts of a third person, the Supreme Court held that a well-established exception applied here. The defendant created a zone of foreseeable risk to the plaintiff by blocking his ability to leave, and also by failing to lock the doors of his truck where the tomahawk was stored, making it available to the assailant.

The defendant left a dangerous tool in his unlocked truck, fully accessible to his friend, who obtained the tomahawk and injured the plaintiff while the defendant was blocking the plaintiff’s escape. The defendant had constructive control over the instrumentality, and had actual control over the area—that is, “the premises”—in which the plaintiff was trapped and injured.

Dangerous Instrumentality Doctrine

Christensen v. Bowen,
Case No. SC12-2078, 2014 WL 1408557 (Fla. 4/10/2014)

The Supreme Court answered the following rephrased certified question in the negative:


The court held that a person whose name is on the certificate of title as co-owner is a beneficial owner with the right to control the vehicle, and therefore is liable under the dangerous instrumentality doctrine for injuries caused by another driver of the vehicle. The court rejected the defendant’s argument that he should be absolved of responsibility because he never used the vehicle and it was his subjective intent to turn ownership of the vehicle entirely over to the co-owner, his ex-wife.

Employment Discrimination

Delva v. The Continental Group, Inc.,
Case No. SC12-2315 (Fla. 4/17/2014)

The Florida Supreme Court held that the Florida Civil Rights Act, §760.10, Fla. Stat., prohibits discrimination on the basis of pregnancy when it prohibits discrimination on the basis of sex.

Evidence - Daubert

Perez v. Bell South Tellecommunications, Inc.
Case No. 3D11-445 (Fla. 3d DCA 4/23/2014)

The Third District held that the 2013 amendment to §90.702, Fla. Stat., adopting the test of Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) for the admissibility of expert testimony, applies retrospectively. The statute expressly makes the test of Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923) no longer applicable, and abolishes the “pure opinion” standard of Marsh v. Valyou, 977 So.2d 543 (Fla.2007). The court held that, because the statute is procedural, it may be applied retroactively.

The docket shows that the appellant filed a Notice to Invoke Discretionary Jurisdiction seeking Florida Supreme Court review on May 22, 2014. In addition, a non-party has filed a separate challenge in the Florida Supreme Court asking the court to exercise its all writs jurisdiction.

There is a substantial argument that this decision is incorrect. Under Art V, §2(a), Fla. Const., only the Supreme Court has the power to enact procedural rules. The legislature did not have power to enact this statute if it is procedural, and the District Court usurped the power of the Supreme Court and acted in excess of its jurisdiction in giving effect to the statute. The legislature violated the Separation of Powers clause, Art. II, §3, Fla. Const., by exercising a power allocated exclusively to the Supreme Court.

Although the legislature has enacted rules of evidence in the past, the Supreme Court usually has avoided the separation of powers problem by enacting the Evidence Code, and the legislature’s amendments to it, as rules of procedure. See In re Florida Evidence Code, 372 So. 2d 1369, clarified at 376 So. 2d 1161 (Fla. 1979). However, the Court has sometimes refused to adopt rules of evidence enacted by the legislature. In re Amendments To Florida Evidence Code, No. SC13-98, __ So. 3d ___, 2013 WL
6500888 (Fla. 12/12/2013) (see below); In re Amendments to the Florida Evidence Code, 782 So. 2d 339 (Fla. 2000).

Evidence - Expert - Med Mal

In re Amendments to Florida Evidence Code,
Case No. SC13-98, 2013 WL 6500888 (Fla. Dec. 12, 2013)

The Supreme Court declined to adopt, to the extent it is procedural, §766.102(12), Fla. Stat., which requires expert witnesses in medical malpractice cases either to be licensed or to obtain a certificate. The Florida Bar Board of Governors overwhelmingly recommended against its adoption, after the Florida Bar Code and Rules of Evidence Committee voted 14-13 to recommend its adoption to the extent it is procedural.

The Court based its refusal to adopt the rule on concerns expressed that the provision is unconstitutional, will have a chilling effect on the ability to obtain expert witnesses, and is prejudicial to the administration of justice.

Insurance - Bad Faith

Fridman v. Safeco Ins. Co.,
Case No. SC13-1607

The Florida Supreme Court has granted review of Fridman v. Safeco Ins. Co., 117 So.3d 16 (Fla. 5th DCA 2013). The lower court held that a trial court was required to accept a UM insurer’s confession of judgment in the amount of the policy limits and should not have allowed the case to be tried to a verdict in excess of policy limits once the insurer had confessed judgment and agreed to entry of judgment in the amount of the policy limits.

Insurance - CME

State Farm v. Curran,
Case No. SC12-157, 2014 WL 1010658 (Fla. 3/13/2014)

A UM insured’s failure to attend a CME did not result in automatic forfeiture of coverage. The policy provision is not a condition precedent to coverage. It is an affirmative defense. The insurer has the burden of pleading and proving that it was prejudiced by the breach; otherwise, it may seek to abate the action until the insured complies with the CME.

Here, the insurer was not prejudiced. The trial court found that the insured did not unreasonably refuse to attend the CME, the insured subsequently was examined by the same doctor, and the insurer did not call that doctor to testify at trial.

Medical Malpractice - Amendment 7

Ampuero-Martinez v. Cedars Healthcare Group,
Case Nos. SC11–2208, SC11–2336, 2014 WL 321822 (Fla. 1/30/2014)

Under Art. X, §25, Fla. Const., also known as Amendment 7 or the Patient’s Right To Know amendment, “patients have a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.”

The Third DCA had quashed a trial court decision allowing discovery under this amendment, based on §381.028(7)(a), Fla. Stat. That statute required that discovery be limited to incidents involving the same or substantially similar condition, treatment or diagnosis. The Supreme Court reversed because, in Florida Hospital Waterman, Inc. v. Buster, 984 So.2d 478 (Fla. 2008), the court already had held that provision invalid as an unconstitutional infringement of the rights granted by Amendment 7.

Medical Malpractice - Caps

Estate of McCall v. United States of America
134 So.3d 894 (Fla. 2014)

The Florida Supreme Court held that the medical malpractice caps in §766.118, Fla. Stat., violate the equal protection clause of the Florida Constitution, Art. I, §2, Fla. Const.

The Supreme Court answered in the negative the following question certified by the Eleventh Circuit:


The question the court answered is a very broad one.

Justice Lewis’ equal protection analysis in the plurality opinion stresses that

[I]t has never been demonstrated that there was a proper predicate for imposing the burden of supporting the Florida legislative scheme upon the shoulders of the persons and families who have been most severely injured and died as a result of medical negligence. Health care policy that relies upon discrimination against Florida families is not rational or reasonable when it attempts to utilize aggregate caps to create unreasonable classifications. Accordingly, and for each of these reasons, the cap on wrongful death noneconomic damages in medical malpractice actions does not pass constitutional muster.

Justice Labarga concurred. Justice Pariente wrote a separate opinion, concurring in part, in which she was joined by Justice Quince and Justice Perry. All of these justices concurred in the answer to the certified question.

Justice Pariente set out the following analysis of the points on which a majority of justices agree:

1. There are two prongs to the rational basis test, requiring the Court to consider both (1) whether the statute serves a legitimate governmental purpose and (2) whether the Legislature was reasonable in its belief that the challenged classification would promote that purpose.

2. The Court's role is not to simply “rubber stamp” the Legislature's actions. Although deference to the Legislature's factual determinations is required, the Legislature's findings “must actually be findings of fact” and are not entitled to the presumption of correctness “if they are nothing more than recitations amounting only to conclusions.”

3. The statutory cap on noneconomic damages is unconstitutional as applied to wrongful death actions. In Justice Pariente’s view, the Court's controlling precedent in St. Mary's Hospital, Inc. v. Phillipe, 769 So.2d 961, 971 (Fla.2000), is directly on point in holding that this type of statutory scheme is improper because “[d]ifferentiating between a single claimant and multiple claimants bears no rational relationship to the Legislature's stated goal of alleviating the financial crisis in the medical liability insurance industry.” Id.

The rationale of Phillipe is particularly applicable in this case given that, in capping wrongful death noneconomic damages regardless of the number of survivors, the only asserted legitimate State interest is the alleviation of rising medical malpractice insurance premiums paid by the affected doctors. However, as the plurality explains, there is no mechanism in place to assure that savings are actually passed on from the insurance companies to the doctors. See plurality op. at 911–12 (Lewis, J.) (explaining that section 766.118 contains no requirement that insurance companies use the acquired savings to lower malpractice premiums, discussing how subdivision (8) was subsequently repealed, and reviewing the reasoning of other courts that have expressed concern about the constitutionality of a damages cap in light of this missing link).

Neither the victims nor the doctors and hospital are benefitting; the only benefit is to insurance companies.

4. Even if a crisis existed when §766.118 was passed, it is not a permanent condition and there is no indication that it is continuing.

There has been a lot of discussion about footnote 2 of the main opinion, which says that “The legal analyses for personal injury damages and wrongful death damages are not the same. The present case is exclusively related to wrongful death, and our analysis is limited accordingly.”

This footnote should not be construed to suggest that there are fewer rights in personal injury cases than in wrongful death cases. Personal injury cases existed at common law. Wrongful death cases did not, and are wholly a statutory creation. See Mizrahi v. North Miami Med. Ctr., 761 So.2d 1040 (Fla. 2000). Therefore, personal injury plaintiffs should get more protection, not less, and a strict scrutiny standard should apply in personal injury cases.

It was my privilege to work on the amicus brief for the FJA with Joel Perwin. We argued, among other things, that the statutory scheme discriminates against people who are more severely injured by giving them a smaller percent of their damages, and that it discriminates against children, the poor and the elderly, who are likely to have noneconomic damages constitute a larger proportion of their damages. See Finley, The Hidden Victims of Tort Reform: Women, Children and the Elderly, 53 Emory L.J. 1263, 1280-81 (2004). That is still a viable argument, I think, in cases that do not involve multiple claimants.

Other arguments that the Court did not address include the right of access to courts, the right to trial by jury, and separation of powers. These arguments should still be available in all med mal cases. Neil Roth’s firm has recently written an excellent memo on these issues. Contact him for more information.

Bob Peck and Valerie Nannery of the Center for Constitutional Litigation did an excellent job on the Plaintiff’s briefs, working with Henry Courtney and Sara Courtney-Baggiori. Lincoln Connolly, John Mills, Steve Zack, Andrew Manko, Herman Russomanno and George Christian all worked on amicus briefs supporting the Plaintiff’s position. The If I have left out anyone, I apologize. This was a huge group effort. The briefs are available on the Florida Supreme Court website,

Post Trial Motions

In Re: Amendments to the Florida Rules of Civil Procedure
131 So.3d 643 (Fla. 2013)

Effective January 14, 2014, Rule 1.530(b) has been amended to allow service of a motion for new trial not later than 15 days from the return of the verdict in a jury action, or the filing of a judgment in a non-jury action. The previous time limit was 10 days.

Rule 1.480(b) also was amended to allow service of a motion for judgment in accordance with motion for directed verdict within 15 days from the return of the verdict instead of 10 days

Successive Tortfeasors

In re Standard Jury Instructions in Civil Cases
135 So.3d 281 (Fla. 2014)

The Florida Supreme Court has adopted a new standard jury instruction based on Stuart v. Hertz, 351 So.2d 703 (Fla. 1977): FSJI 501.5(c) now reads:

c. Subsequent injuries caused by medical treatment:
If you find that (defendant(s)) caused [loss] [injury] [or] [damage] to (claimant), then (defendant(s)) [is][are] also responsible for any additional [loss] [injury] [or] [damage] caused by medical care or treatment reasonably obtained by (claimant).