October 2002 #2

Civil Rights

Woodham v. Blue Cross and Blue Shield of Florida
27 Fla. L. Weekly S834 (Fla. 2002)

The Florida Civil Rights Act 766.01-11, Fla. Stat, is similar to Title VI of the federal Civil Rights Act, but has different procedures. Both statutes require filing a charge with an administrative agency before filing suit, but from there, the paths diverge, with different procedures and time requirements, creating potential traps for claimants.

The Florida Commission on Human Relations and the Equal Employment Opportunity Commission have a work share agreement, which allows a charge filed with the EEOC to operate as a dual filing with both agencies.

Here, after filing a charge with the EEOC and waiting more than 300 days, the plaintiff received a “right to sue letter” which stated that the EEOC was “unable to conclude” that a violation was established, but did “not certify that the Respondent was in compliance with the statutes.” The plaintiff then filed suit in Circuit court. The trial court granted summary judgment in favor of the employer, because the plaintiff did not request an administrative hearing as required by 760.11(7), Florida Statutes, and the Third District affirmed. The Supreme Court held that the plaintiff was not required to seek an administrative agency hearing because the “right to sue letter” did not constitute a determination that there was no reasonable cause to believe that a violation had occurred.
These statutes are very convoluted. Reading all of the provisions together, the court holds that, whenever the FCHR fails to make its determination within 180 days, even if the untimely determination is made before the filing of a lawsuit, the claimant may proceed to file a lawsuit.

Evidence – Hearsay

Jones v. R.J. Reynolds Tobacco Co.
27 Fla. L. Weekly D1952 (Fla. 2d DCA 2002)

The trial court did not err in granting the defendant’s motion for new trial, after it had allowed the plaintiff to introduce depositions of four witnesses taken in other tobacco litigation under 90.803(22).

That statute allows the use of “former testimony given by the declarant which testimony was given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or in a civil action or proceeding, a predecessor in interest, or a person with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination; provided, however, the court finds that the testimony is not inadmissible pursuant to 90.402 or 90.403.”

The legislature passed that amendment to the evidence code in 2000, but the Supreme Court refused to adopt it, expressing “grave concerns” about the statute’s constitutionality. In re Amendments to the Florida Evidence Code, 782 So.2d 339, 342 (Fla. 2000). The Fourth District has held the statute unconstitutional as applied in a criminal case. Abreu v. State, 804 So.2d 442 (Fla. 4th DCA 2001). The First District held the statute unconstitutional on its face in Grabau v. Department of Health, 816 So.2d 701 (Fla. 1st DCA 2002).
This Court does not go that far, relying instead on the trial court’s ability to evaluate any concerns over the use of the depositions and their potential impact on the trial.

Expert – Impeachment

Manhardt v. Tamton
27 Fla. L. Weekly D2006 (Fla. 2d DCA 2002)

It was error to allow defense counsel to ask plaintiff’s expert on cross examination in a med mal case whether he had ever been sued, whether he thought he had done anything wrong when he got sued, and whether he had defended himself. The questions were irrelevant and an improper attack on his credibility; exacerbated by the fact that this doctor was the only expert that the court allowed to be questioned about prior lawsuits. The defense attorney compounded the harm by announcing in closing argument that this was the defendant doctor’s first lawsuit. Moreover, defense counsel’s comment on the plaintiff’s “Miami Beach accent,” even if in jest, was prejudicial and improper.

Insurance – Appraisal

Johnson v. Nationwide Mutual Ins. Co.
27 Fla. L. Weekly S779 (Fla. 2002)

Where a homeowner’s insurance policy provides for appraisal of “the amount of loss,” the issue of causation is an issue for the appraiser if the insurer admits coverage but disputes the amount of the loss. The issue of causation is for the court if the insurer says there is no coverage for the claim whatsoever.

Med Mal – Limitations

Hillsborough County Hospital Authority v. Coffaro
27 Fla. L. Weekly S791 (Fla. 2002)

Section 766.104(2), Florida statutes allows a medical malpractice claimant to obtain an automatic 90-day extension of the statute of limitations, by filing a petition with the clerk of the court where suit will be filed and paying a $25 filing fee. The med mal statute also provides for 90 days of tolling during the presuit period after the defendant receives the notice of intent. See Boyd v. Becker, 627 So.2d 481 (Fla. 1993). Section 766.106(4) allows for 60 days or the remainder of the statute of limitations, whichever is greater, to file suit after receiving notice of termination of negotiations in an extended presuit period. See Hankey v. Yarian, 755 So.2d 93 (Fla. 2000). The Supreme Court holds that the 90-day extension under 766.104(2) is to be tacked onto the end of the statute of limitations period, “after consideration of all applicable tollings and extensions.”

The statute is extremely complicated and the court is doing its best to construe it in a manner consistent with the constitutional right of access to courts. Patry v. Capps,633 So.2d 9 (Fla. 1994).

Notice for Trial

Precision Constructors, Inc. v. Valtec Construction Corp.
27 Fla. L. Weekly D2057 (Fla. 3d DCA 2002)

It was reversible error to set a case for trial before it was “at issue” under Fla. R. Civ. P. 1.440, where the plaintiff filed an amended complaint and the answer was not due until after the case was tried. The proper procedure would have been to serve a new notice for trial after the defendant filed its answer and any motions directed to the pleadings were resolved; the trial should be set no earlier than 30 days after service of the notice for trial.

Nursing Home

Alterra Healthcare Corp. v. Shelley
27 Fla. L. Weekly S735 (Fla. 2002)

This was a wrongful death and statutory claim against a nursing home that left a patient dangling upside down from the footboard of her bed for six to eight hours. The plaintiff alleged, among other things, that the nursing home did not employ or maintain sufficient staff to properly supervise and assist its residents; that it failed to properly train staff; and that it improperly retained staff; the executor also alleged that the staff failed to check on the patient and failed to provide access to adequate and appropriate health care, protective, and support services, and failed to protect her from foreseeable harm. The plaintiff sought discovery of documents pertaining to each employee who provided care to the deceased at the facility, arguing that the information was relevant to the employees’ qualifications and certification, and to the nursing home’s knowledge of it, and to the employees’ credibility. The plaintiff also pointed out that the nursing home had access to that information to impeach the employees if they were called to testify.

The court held that the constitutional right of privacy in Article I, 23, Fla. Const., may in some circumstances extend to personal information contained in nonpublic employee personnel files. However, the right inures solely to individuals; the non–public employer does not have standing to assert them. Nevertheless, the discovery rules provide for broad discovery while at the same time providing protective measures to minimize the impact of the discovery on competing privacy interests. The trial court’s relevancy analysis may implicate a weighing of competing rights. The trial court may conduct an in camera inspection of the records. Private information that is not relevant may be redacted, but the records custodian must provide the requesting party details concerning the information withheld, to enable the parties to fully address the issues. In addition, the employees may have privacy rights in some of the information, which they may assert as intervenors in the litigation.

For a related issue, see Cedars Healthcare Group, Ltd. v. Freeman, 27 Fla. L. Weekly D1977 (Fla. 3d DCA 2002), holding that the plaintiff was not entitled to discovery of photographs of male patients who were present in the psychiatric ward of the defendant hospital at the time the plaintiff, a patient, was assaulted there by two other patients. The court holds that the plaintiff did not demonstrate that she has a compelling need for the discovery that outweighs the constitutional privacy rights of these non-party psychiatric patients. Cf. Amente v. Newman, 653 So.2d 1030 (Fla. 1995) (allowing discovery of records of other patients, where relevant, redacted to conceal all identifying information).

St. Angelo v. Healthcare and Retirement Corp. of America
27 Fla. L. Weekly D1944 (Fla. 4th DCA 2002)

The trial court erroneously granted the defendant nursing home’s motion for summary judgment. The patient suffered a fall while a resident at the defendant’s nursing home, and the defendant argued that a single fall resulting from the negligence of a nursing home employee was not covered under the nursing home statute. The trial court wrongly concluded that the legislature did not intend to include actions such as this in Chapter 400. The trial court should not have looked at legislative history where the language of the statute is clear and unambiguous. A single fall, as here, may support a claim for violation of the statute. The statute states that its remedies are “cumulative,” which means they are intended to be “in addition to” other available remedies such as an action for negligence

Premises Liability

Markowitz v. Helen Homes of Kendall Corp.
27 Fla. L. Weekly S724 (Fla. 2002)

The plaintiff, while visiting her mother at the defendant’ nursing home, slipped and fell on a grape on the floor of the main area of the facility. The plaintiff alleged that even though the residents were elderly and infirm, the defendant allowed them to carry food from the dining room to their rooms after their meals; and that three employees were nearby and should have been aware of the grape on the floor. The Supreme Court reversed the summary judgment in favor of the defendant, holding that the plaintiffs’ claim of negligent mode of operation created a genuine issue of material fact. The basis for the negligent mode of operation theory is that the specific mode of operation selected by the owner or operator resulted in the creation of a dangerous condition; constructive or actual notice of the specific transitory substance is not at issue. In addition, plaintiff presented some evidence of constructive knowledge of the condition because of the presence of employees nearby.

Premises Liability

Silvers v. Wal-Mart Stores, Inc.
27 Fla. L. Weekly D2120 (Fla. 4th DCA 2002)

It was reversible error in a slip and fall case to refuse to allow the plaintiff to introduce into evidence the defendant’s interrogatory answers which admitted that defendant’s personnel were mopping the area where the plaintiff fell at the time of her fall. This answer showed that the store had knowledge of the dangerous condition; therefore it was error to direct a verdict in favor of the defendant. The court declines to apply Owens v. Publix Supermarkets, Inc., 802 So.2d 315 (Fla. 2001) because it was not retroactive to cases tried before the decision. The court notes that Owens may apply on remand, but that it may have been abrogated to some extent by 768.0710, Florida Statutes (2002), but does not decide the issue. The court also does not decide whether the statute may apply retroactively to this case, but notes that the general rule is that substantive statutes will not apply retroactively absent clear legislative intent.

Punitive Damages

Cypress Aviation, Inc. v. Bollea
27 Fla. L. Weekly D2158 (Fla. 2d DCA 2002)

Section 768.72, Florida Statutes, requires a party wishing to plead a claim for punitive damages to proffer evidence that would support a reasonable basis for such an award. Here, the court holds that, even when the complaint alleges fraud, the plaintiff must make the proffer.


Bradley v. Brotman
27 Fla. L. Weekly D2078 (Fla. 4th DCA 2002)

Shortly before trial, defense counsel called one of plaintiff’s treating doctors, who was going to testify on causation, without notifying plaintiff’s counsel. Defense counsel also issued trial subpoenas to two treating doctors for all of their records on the plaintiff, without notifying plaintiff’s counsel as required by 455.667(5), Florida Statutes. The records of one of the doctors contained a note made after the doctor’s deposition, reflecting doubt about causation. Plaintiff’s counsel read this deposition at trial. Plaintiff stipulated to the admission of the doctor’s medical records because they were attached to the doctor’s deposition. However, what defense counsel gave the clerk for the exhibit was a copy of the records that included the note doubting causation made after the deposition. Defense counsel did not notify plaintiff’s counsel of this additional note. Plaintiff’s counsel discovered the note before the records went to the jury, but the trial court denied the plaintiff’s request to remove it from the exhibit. Defense counsel used the note in a blow-up in closing argument.
The court held that the trial court should not have allowed the defense to use the post-deposition medical note. The medical records admitted were not the same records attached to the deposition, to which the plaintiff stipulated. Even if this were interpreted as a unilateral mistake, it was highly prejudicial and fundamentally unfair, requiring a new trial.

Whether additional sanctions should be entered for the ex parte conversation with theother doctor should be determined on remand, depending on the prejudice, and whether that prejudice requires striking the defendant’s pleadings or some other sanction.