It’s been several months since I did a Case Law Update. These Updates are prepared for the monthly meetings of the Dade County Trial Lawyers Association, and the DCTLA hasn’t had a meeting in a while. In this Update, I will try to bring you up to date on some of the major decisions issued since March.
An assignee or subrogee may assert a claim against an independent auditor for malpractice in preparing an audit. The court rejects an argument that the claim should be prohibited by the rule against assignment of personal claims.
25 Fla. L. Weekly D2130 (Fla. 3d DCA 2000) The trial court properly refused to dismiss a seaman’s action against a cruise line for maintenance and cure based on the forum selection clause in the employment form. It was also proper to deny the motion to dismiss based on forum non conveniens where the defendant did not show that the Philippines was an adequate alternative forum and private interests favored Miami because the defendants were American companies with headquarters here, and the defendant provided the plaintiff with maintenance and cure for approximately two years, including extensive medical treatment, in Miami, and all the medical witnesses were located here.
An amendment to add a new party plaintiff relates back to the filing of the original complaint if the new and former parties have an identity of interest so as not to prejudice the adverse party. Here, pleadings filed before the statute of limitations ran put the defendant on notice of the operative facts, including the fact that the claim was in effect being brought by the party eventually added, a corporation that had been dissolved but was reinstated. The plaintiffs did not bring a stranger into the lawsuit, and did not attempt to amend to state new facts giving rise to new and separate causes of action. The defendant had adequate notice of the claims against it and the party or parties who had an identity of interest in bringing those claims.
Amendment of a complaint to substitute the name of the corporate defendant relates back to the filing of the original complaint where the original defendant was the parent of the new defendant, the parent actively defended the lawsuit in the trial court for nine months, both corporate defendants are represented by the same law firm, share the same address, have several common directors and the same registered agent. The defendant failed to demonstrate any prejudice from the substitution.
Even if it annoys the judge or the jury, you must object to any improper closing arguments by opposing counsel, or risk waiver. This issue has been kicking around the DCAs for several years, with conflicting results. The Supreme Court has now resolved the conflict. The court holds that, in civil cases, if you don’t object to an improper argument, you can’t raise it on appeal unless you at least raise it in a motion for new trial. The standard for the trial court to apply in granting a new trial is (1) the argument must be improper; (2) it must be harmful; (3) it must not be curable by an appropriate instruction; (4) it must so damage the fairness of the trial that the public’s interest in the system of justice requires a new trial.It is not improper for counsel to state during closing argument that a witness is a liar if the record supports it. The use of the pronoun “I” is not by itself improper — the law prohibits expressions of personal opinion by the attorney, but not casual use of terms like “I think” or “I believe.” A closing argument that violates ethical rules does not necessarily constitute harmful error. An argument is harmful if it is so highly prejudicial and of such collective impact as to gravely impair a fair consideration of the case by the jury.
On appeal, the appellate court must apply the abuse of discretion standard in reviewing a trial court’s decision to grant or deny a new trial based on a closing argument that has not been objected to.
This decision means that you have to make a reasoned decision at trial when the opposing counsel makes an improper argument. You have to weigh the risk of what you believe the impact of your objection will be on the judge or jury and the momentum of the trial against the knowledge that, if you don’t object, you have probably waived it.
The court grants certiorari to quash an order bifurcating a trial in a slander case in such a way that the issue of liability would be tried before one jury and damages would be tried before another jury, with no net worth discovery until the second phase. The court holds that W.R. Grace & Co. - Conn. v. Waters, 638 So.2d 502 (Fla. 1994) requires that “‘the same jury’ that determines liability also hear evidence on the amount of punitive damages.” The court also cites Maris Distributing Co. v. Anheuser-Busch, Inc., 710 So.2d 1022 (Fla. 1st DCA 1998), where the court granted cert when a trial court separated three counts for trial, staying discovery as to the other claims, where the facts underlying all the counts were interrelated.
This case is an important reminder that there are limits to the judge’s discretion in bifurcating a trial. In my opinion, this is being done too often automatically, without a careful evaluation of its impact on the individual case. The court should exercise its discretion depending on the facts and issues in each case, and the presumption is in favor of a single trial on all issues. See, e.g., Wood v. Wood, 610 So.2d 71 (Fla. 4th DCA 1995), Hardee Mfg. v. Josey, 535 So.2d 655 (Fla. 3d DCA 1988).
The Florida Civil Rights Act, Chapter 760, Florida Statutes, requires a plaintiff to first file a claim with the Florida Commission on Human Relations before filing suit in circuit court. The Commission is supposed to make a determination of reasonable cause within 180 days. The claimant then has 1 year to file a civil actions. (Actually, it’s much more complicated than that). Where the Commission fails to act within 180 days, the court holds that the general four-year statute of limitations for statutory violations is applicable, not the one- year period. “A claimant should not be penalized for attempting to allow a government agency to do its job.”
On rehearing, the court interprets the term “payable” in 627.736(3) (the PIP setoff statute) to mean that “only PIP benefits ‘currently payable’ or owed by the PIP carrier as a result of expenses incurred by the plaintiff should be set off from a verdict that includes an award of future medical expenses.” Congratulations to Julie Littky-Rubin for not giving up and achieving this wonderful result on rehearing.
The court abolishes the archaic “standing train doctrine” which provided that one who drives headlong into a train standing across the highway cannot complain of negligence because of the absence of any special warning, because the position of the train itself is the warning. The court holds that the issues in such a case should be determined under principles of comparative negligence.
The court holds that parents claiming loss of consortium due to their child’s severe, permanent injury can only recover damages from the date of the child’s injury through the date the child attains majority, and certifies the question to the Supreme Court.
Receding from Executive Car & Truck Leasing v. DeSerio, 468 So.2d 1027 (Fla. 4th DCA), rev. denied, 480 So.2d 1293 (Fla. 1985), the court holds that there is no blanket prohibition of testimony by psychologists concerning the causation of brain injury. Instead, the judge is to determine whether the particular expert has sufficient education, training and experience under §90.702, Florida Statutes, to render the opinion.
Even though the plaintiff failed to meet her burden of proof on causation, it was error to direct a verdict for the defendants because the trial court erroneously limited the plaintiff to only one expert on causation, while allowing the defendants two experts on causation. Although the trial court has broad discretion in limiting the number of witnesses, the plaintiff should have been allowed a number of causation witnesses equal to the number granted to the defendants. The trial court’s ruling “unfairly limited the plaintiff’s ability to prove her case.”
Where the plaintiff sued a UM carrier and the DOT, and settled with the DOT before trial, dismissing the claim against the DOT, it was error to put the DOT on the verdict form and to allow the UM carrier to introduce the expert testimony of the plaintiff’s former expert against the DOT, where the UM carrier had not specifically pled the negligence of the DOT. The court rejects the UM carrier’s argument that the plaintiff was not prejudiced because the UM carrier stated on its witness list that it reserved the right to call witnesses on the other parties’ pretrial catalogs.
“When confronted with the fact that State Farm intended to proceed to trial on an unpled Fabre theory, the trial court could either sustain plaintiff’s objection and exclude the unpled theory, or continue the case and allow State Farm to amend its pleadings.”
It was also error to allow State Farm to elicit from the expert that he had originally been hired by the plaintiff. But if a plaintiff opens the door by challenging the expert’s qualifications on cross examination, the defendant can bring out the fact that he was originally hired by the plaintiff. Similarly, if the plaintiff took the position that DOT’s negligence played no part in the accident at all, the defendant could bring out on redirect that the witness was originally hired by the plaintiff to testify that DOT was negligent. In my opinion, this does not mean that if the plaintiff argues that the defendant was the sole cause of the accident, the plaintiff opens the door to testimony that the DOT was negligent.
And it was improper for State Farm to argue in closing that the plaintiff was hiding facts from the jury because the plaintiff did not call this expert witness.
The court certifies to the Supreme Court the question:
“Where the plaintiff had delivered a written release or covenant not to sue to a settling defendant allegedly jointly and severally liable for economic damages, should the settlement proceeds apportionable to economic damages be set off against any award for economic damages even if the settling defendant is not found liable?”
This court allows the setoff for economic damages. However, the third district reached the opposite result in Gonzalez v. Veloso, 702 So. 2d 1366 (Fla. 3d DCA 1997), ordering the judgment to be entered in favor of the plaintiff in the “aggregate full amount.”
Where the trial court directed a verdict in favor of a co-defendant, so that only one defendant remained on the verdict form, the principles of 768.81, Fabre and Wells v. Tallahassee Memorial, 659 So.2d 249 (Fla. 1995) did not apply. Judgment should be entered against the defendant in the full amount of the verdict, minus a setoff for a settlement with another former defendant, whose name did not appear on the verdict form.
Filing a notice of taking deposition is record activity that precludes dismissal for failure to prosecute, even if the deposition does not take place because the deponent did not show up. Rule 1.420(e) serves a narrow purpose: to move cases forward toward a conclusion on the merits. “Trial courts do not have the inherent right to dismiss cases for failure to prosecute under the rule as a case management tool. Dismissal under 1.420(e) is limited to cases where there is a lack of record activity for periods of more than a year.” (Court’s emphasis).
The plaintiffs alleged that the defendant fraudulently induced them to enter settlement agreements. They sued to for damages. The settlement agreement contained a choice of law provision stating that Delaware law governed the release. The court held that plaintiffs who chose to sue for damages ratified the settlement agreements and therefore Delaware law applied. However, Florida law applied to those plaintiffs whose settlement agreements did not contain the Delaware choice of law provision.
Certifying conflict with the 3d DCA decision in Perez v. State Farm Fire & Cas. Co., 746 So.2d 1123 (Fla. 4th DCA 1999), which is presently pending before the supreme court, the 4th DCA holds that an insurance carrier does not lose its right to contest the necessity of care or the reasonableness of the bill where the carrier fails to obtain a written report stating that such care is unnecessary or the bill is unreasonable within 30 days of the carrier’s receipt of the bill. The court says that §627.736(4) means that if PIP benefits are payable, they are due within 30 days after notice. If the insurer has refused to pay the bill within 30 days and does not have reasonable proof to establish that it is not responsible, the insurer is liable for ten percent interest when the bill is paid. Failing to obtain proof that it is not responsible for the payment does not deprive the insurer of its right to contest it.
It seems to me that this conflicts with the underlying premise of PIP that payment of bills will be prompt and “virtually automatic.” This was the quid pro quo for taking away the right to sue the tortfeasor. Without it, in my opinion, the statute would be an unconstitutional denial of the right of access to courts.
The court holds that the defendant failed to properly preserve any error in denial of a challenge for cause where the defendant had peremptory challenges remaining and did not use any of them to excuse that juror, but instead skipped over that juror and used up all of its peremptories on other jurors whom it had not tried to challenge for cause. The court held the error was waived even though the defendant used all of its peremptories on other jurors and then asked for an additional peremptory instruction. The court finds that the defendant made a tactical decision that resulted in the juror remaining on the panel; therefore the trial court did not abuse its discretion in denying the challenge for cause or in denying additional peremptories.
The “delayed discovery” doctrine, also sometimes called the “blameless ignorance” doctrine, provides that a cause of action does not accrue until the plaintiff either knows or reasonably should know of the tortious act giving rise to the cause of action. It was adopted in Florida in City of Miami v. Brooks, 70 So.2d 306 (Fla. 1954). Tolling of a statute of limitations is different. It applies after the cause of action has already accrued, and temporarily stops its running.
The statute of limitations runs from the time the cause of action accrues. A determination of whether a cause of action is barred by a statute of limitations involves two different questions: first, whether the cause of action accrued and if so, when; and second, whether a statutory tolling provision applies.
The Legislature has limited the circumstances under which a statute of limitations may be tolled under §95.051; but it has not limited the circumstances under which accrual may be delayed. Therefore, delayed discovery may prevent the cause of action from accruing and the statute may not begin to run. However, once it starts to run, it may be tolled only for those reasons enumerated in the statute.
In this particular case, the court holds that the plaintiff’s traumatic amnesia might have delayed the accrual of the cause of action under the delayed discovery doctrine.
Section 768.21(8), Florida Statutes, adopted in 1988 as a compromise, prohibits recovery of noneconomic (pain & suffering) damages by the decedent’s adult children in a medical malpractice wrongful death case, but allows recovery by the adult children in other wrongful death actions. The court holds that this does not violate equal protection, because it bears a rational relationship to the legitimate state interests of limiting increases in medical insurance costs. The court relies on legislative “findings” about the dramatic increases in medical malpractice liability premiums and resulting increased costs to patients, and that the primary cause of the increase has been “tremendous increases in the amounts of paid claims.” Justice Pariente, dissenting, (joined by Justice Quince) says that the court should not “blindly accept the Legislature’s conclusions, especially when such conclusions may no longer be valid due to changed conditions.”
The court reverses summary judgment entered in favor of the nurses and the hospital that had been entered in the basis of a pediatrician’s testimony that, even if they had given him certain information, he would not have done anything different. The pediatrician’s testimony was too speculative. It was admissible, but could not be deemed conclusive. “[I]t is not for the defendants, who putatively violated their standard of care by failing to warn [the doctor], to argue that their not doing so had no effect on the situation, when their doing the appropriate thing would have removed all doubt.” “[R]esolution of issues of negligence and causation, in the light of all the circumstances, are what jury trials, and not motions for summary judgment, are for.”
Section 458.320(2)(b), Florida Statutes, requires a physician, as a condition of having staff privileges at a hospital, to maintain professional liability coverage of not less than $250,000 per claim, or to provide an escrow account or letter of credit in a similar account. The statute imposes a “duty on the hospital to assure the financial responsibility of its staff-privileged physicians who use the hospital for medical treatment and procedures.” The trial court erred in dismissing the plaintiffs’ claim against the hospital arising out of malpractice of a doctor who had staff privileges but no medical malpractice insurance. Beam v. University Hospital, 486 So.2d 672 (Fla. 1st DCA 1986), which rejected such a theory, held only that there was no common law cause of action, and did not mention the statute. The cause of action against the hospital does not accrue until the injured party can establish that the physician is liable to him or her for medical malpractice. After the cause of action accrues, it will be necessary to establish what portion of the judgment the doctor cannot satisfy. The limit of the amount recoverable from the hospital will be $250,000.
The court has alleviated somewhat the harshness of the med mal arbitration statute. The court holds that the $250,000 cap on noneconomic damages in arbitration claims for wrongful death applies to each claimant individually, and is not a cap on the total aggregate award to the estate on behalf of all claimants. The court notes that this interpretation of the ambiguity in §766.207(7)(b) provides predictability and also encourages early resolution of claims because it provides an equitable result which encourages claimants to seek resolution through arbitration. Moreover, the elements of economic damages available in arbitration proceedings are controlled by the medical malpractice act, not by the wrongful death act. The medical malpractice act in §766.207(7)(a) and 766.202(3), as well as 766.209, allows for past and future medical expenses, 80 percent of wage loss and loss of earning capacity. The court says the broader range of damages awardable through arbitration gives claimants an added incentive to use arbitration rather than litigation to resolve these claims.
Reversing summary judgment in favor of a pediatrician, the court holds that notice to the mother that her newborn was suffering from the same infection as the mother - a situation classically within the expertise of the obstetrician - could start the statute of limitations running against the obstetrician, but did not necessarily start the statute running against the pediatrician for negligent treatment of the illness. The issue is one of fact for the jury. The court distinguishes the situation of multiple medical practitioners acting in concert, such as in a surgical procedure, from the situation here, with different practitioners performing at different times.
Here’s another trap in the med mal statute. The hospital’s failure to provide medical records when requested by the plaintiff does not waive the requirement that the plaintiff obtain a presuit affidavit against the doctor, where the plaintiff never requested medical records from the doctor. Section 766.204(2) says that the failure to provide copies of requested medical records “shall waive the requirement of written medical corroboration by the requesting party.” The court says the waiver only applies to the party who failed to provide the records.
In Tanner v. Hartog, 696 So.2d 705 (Fla. 1997), the Supreme Court held that parents of a stillborn child could recover for pain and anguish caused by the negligence of another, even if there was no evidence that the stillbirth caused physical impact or injury to the mother. Here, the court holds that the plaintiffs were properly allowed refer to the fetus by name or as “their child”; to present testimony that they were eagerly anticipating his birth, or that the wife was unable to conceive after the stillbirth, even though the stillbirth did not cause the sterility. The evidence was relevant to the mental anguish that the plaintiffs suffered.
The court holds that, under §400.023(1), Florida Statutes, a personal representative may bring suit on behalf of a deceased nursing home resident for alleged infringement of the resident’s rights only when the infringement has caused the resident’s death. The court overrules its decision in Greenfield v. Manor Care, Inc., 705 So.2d 926 (Fla. 4th DCA 1997). The result is that any other action for violation of a resident’s rights does not survive the resident’s death. In a subsequent decision, the court certified the question to the Supreme Court as one of great public importance. The court noted that there were numerous claims pending affected by its decision, that Florida has one of the largest populations of elderly persons in the country, and that the nursing home statute was enacted to protect them.
The plaintiff served an offer of judgment on three defendants jointly. The three defendants were not joint tortfeasors.The court held that because they were not joint tortfeasors, “they each had the right to evaluate the ... demand independently based on their individual liability situations. The form of the ... demand, however, made this impossible.” The demand was invalid because it did not apportion specific amounts to each defendant, making it impossible for each defendant to evaluate it independently. Therefore, the plaintiff was not entitled to fees pursuant to the offer.
Where a joint offer of judgment is made by two defendants, the failure to specify the amount to be contributed by each defendant may be harmless if one of the two defendants is only vicariously liable so that fault will not be apportioned between them, because the plaintiff’s ability to evaluate the offer was not impaired by the lack of apportionment. In my opinion, however, the plaintiff’s ability to evaluate the offer was impaired by the uncertainty of the law, because the plain language of the rule requires apportionment between defendants making an offer.
The defendant church was not entitled to first amendment immunity in an action arising out of alleged sexual assaults by a priest on the premises of the defendant church, where the issue to be determined at trial was whether the defendant had reason to know of the priest’s misconduct and did nothing to prevent reasonably foreseeable harm from being inflicted on the plaintiffs (one of whom was a minor). The inquiry is one governed by tort law and does not require inquiry by the court into the doctrines and practices of the church. There was a strong dissent. This issue is pending before the Florida Supreme Court.
Reversing a defense summary judgment, the Supreme Court, answering a certified question, holds that a university may be found liable for negligence where it assigns a student to an internship site which it knows to be unreasonably dangerous, but gives no warning, or inadequate warning to the student, and the student is subsequently injured while participating in the internship.
The evidence showed that the university knew of several other criminal incidents which had occurred in the parking lot of the Family Services Agency where the student was accosted. The student was an adult and the “in loco parentis” doctrine did not apply. Nevertheless, the university had control over the students’ conduct by requiring them to do the internship and assigning them to a specific location. Therefore, it had the duty to use reasonable care in making the assignments. Where the university had knowledge that the location was unreasonably dangerous, “it should be up to the jury to determine whether the university acted reasonably in assigning students to do internships in that location.” The duty includes, but “is not necessarily limited to” the duty to warn of the known dangers at the site. Cf. the somewhat inconsistent reasoning in Ewing v. Sellinger, 25 Fla. L. Weekly D1112 (Fla. 4th DCA 2000)
Florida has waived sovereign immunity for public employers for causes of action brought in state court under the Florida Civil Rights Act,. §760.01-11, Florida Statutes. The statute specifically refers to government entities and to §768.28.
Where a plaintiff is involved in two unrelated accidents and sues only the tortfeasor in the first accident, the principles of apportionment contained in C.F. Hamblen, Inc. v. Owens, 172 So. 694 (Fla. 1937) and Washewich v. LeFave, 248 So.2d 670 (Fla. 4th DCA 1971) are applicable. Those cases hold that, where there are two successive accidents, and the defendant is only responsible for the second accident, the burden is on the plaintiff to prove to the extent reasonably possible what injuries were proximately caused by each of the two accidents. The jury should be instructed to make an apportionment of the damages between the two accidents if it is reasonably possible, but if an apportionment is impossible, the jury may charge the defendant with all damages flowing from the entire injury. The court holds that this reasoning applies to the responsibility of the first tortfeasor as well. The principle is “making the plaintiff whole”.
The court holds that where the plaintiff sues the first of two successive tortfeasors and establishes liability, but the jury cannot apportion the injury between the two after both parties have that the opportunity to present evidence on the issue, the first tortfeasor will be liable for the entire injury.
The court holds that this is not inconsistent with 768.81(3) and Fabre, because “the indivisible injury rule and the apportionment of damages based on fault are not mutually exclusive. Here, for example, petitioner was the sole legal cause for the accident; therefore, if that accident was a substantial factor in causing respondent to suffer an indivisible injury, then petitioner would be liable for the entire damage.”
Reversing summary judgment in favor of the employer, the court holds that the employer was not entitled to workers comp immunity if his conduct constitutes an OSHA violation for which the employer may be subject to six months imprisonment. The court certifies the question to the supreme court.