September 2011

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Dismissal – Failure to Prosecute

Chemrock Corp. v. Tampa Electric Co.
No. SC09-2236 (Fla. June 30, 2011)

Pursuant to an amendment enacted in 2005, Rule 1.420(e) provides for a notice of inactivity after 10 months without record activity. It then provides for a 60-day grace period during which a party may avoid dismissal for lack of prosecution by engaging in record activity. Dismissal is precluded if a stay order is entered or a party shows good cause in writing more than five days before a hearing on the motion to dismiss. The court held that any record activity during the grace period is sufficient to preclude dismissal, reasserting the bright line test it first adopted in Wilson v. Salamon, 923 So. 2d 363, 368 (Fla. 2005).

Evidence – Causation

Cox v. St. Josephs Hospital
No. SC09-1771 (Fla. July 7, 2011)

The District Court of Appeal impermissibly reweighed the testimony presented by the plaintiff’s expert witness as to whether the negligence of the hospital and ER doctor caused the plaintiff’s injuries. The court should not have directed a verdict on causation. A directed verdict “is not appropriate in cases where there is conflicting evidence as to the causation or the likelihood of causation.” The conflicting testimony about the significance of the statistics underlying the “NINDS” study on treatment of strokes with tPA, on which the plaintiff’s expert relied, was for the jury, not the court.

Evidence – Expert

Wald v. Grainger
No. SC08-1143 (Fla. May 19, 2011)

A jury is free to weigh the opinion testimony of expert witnesses, and either accept, reject or give that testimony such weight as it deserves considering the witnesses’ qualifications, the reasons given by the witness for the opinion expressed, and all the other evidence in the case, including lay testimony. Easkold v. Rhodes, 614 So. 2d 495, 497-98 (Fla. 1993). However, when medical evidence on permanence is undisputed, unimpeached, or not otherwise subject to question based on the other evidence presented at trial, the jury is not free to simply ignore or arbitrarily reject that evidence and render a verdict in conflict with it.

The jury’s ability to reject the testimony must be based on some reasonable basis in the evidence. This can include conflicting medical evidence; evidence that impeaches the expert’s testimony or calls it into question, such as the failure of the plaintiff to give the medical expert an accurate or complete medical history; conflicting lay testimony or evidence that disputes the injury claim; or the plaintiff’s conflicting testimony or self-contradictory statements regarding the injury.


Bennett v. St. Vincent’s Medical Center
No. SC10-364 (Fla. July 7, 2011)

The District Court of Appeal improperly expanded the coverage of the Florida Birth Related Injury Compensation Act beyond the limits of the express language of the statute. The court improperly interpreted the phrase “immediate postdelivery period in the hospital” to mean “an extended period of days when a baby is delivered with a life-threatening condition and requires close supervision.”

The statute requires parents who wish to sue in tort rather than claim benefits to first seek a determination from the administrative law judge as to whether the act applies to them. Where the parents seek to proceed with litigation, the statute’s rebuttable presumption of coverage does not apply to benefit the defendants. The presumption is intended only to benefit claimants seeking compensation under the NICA plan.

Sovereign Immunity

The Public Health Trust of Miami-Dade County v. Acanda
No. SC 10-302 (Fla. June 23, 2011)

The Supreme Court again condemns “gotcha” tactics, whether they occur at trial or at the pleading stage.

Section 768.28(7), Fla. Stat., requires a plaintiff who sues certain government entities to serve a copy of the complaint on the Department of Financial Services. (This requirement is not to be confused with the presuit notice requirement of §768.28(6)).

The Trust here alleged generally in its answer that the plaintiff had failed to comply with that section but never brought the issue up for hearing. At trial, the Trust moved for a directed verdict. Before the trial court ruled on the motion, the plaintiff served DFS, and the trial court denied the motion.

The Supreme Court held that, because DFS was not a party and because the Trust was not prejudiced, the timing of service was not fatal to the plaintiff’s claim. Service of process was not an element of the plaintiff’s cause of action – in fact, she could not allege it in the complaint because the service could only occur after the complaint was filed. Proving service of process was not an element of her burden of proof at trial.

A defendant must plead noncompliance with this section specifically and with particularity, and must then properly raise it in a pretrial motion.

We reject the use of noncompliance with section 768.28(7) as a “gotcha” tactic to dispose of potentially meritorious causes of action. Although we have more commonly condemned the practice of trial by surprise in the discovery context, see, e.g., Northup v. Acken, 865 So. 2d 1267, 1270-71 (Fla. 2004); Surf Drugs, Inc. v. Vermette, 236 So. 2d 108, 111 (Fla. 1970), we are equally concerned with such tactics in the pleading context. Causes of action should be decided on their merits, and not as the result of “surprise, trickery, bluff, and legal gymnastics.” Surf Drugs, 236 So. 2d at 11.

It was my privilege to represent the plaintiffs in this appeal.

Statutes – Retroactivity

Florida Ins. Guar. Ass’n v. Devon Neighborhood Ass’n, Inc.
No. SC10-347 (Fla. June 30, 2011)

A statute, enacted in 2005, requiring an insurer to provide the insured with a notice of the availability of mediation prior to invoking appraisal, did not apply to an insurance policy issued in 2004. An analysis of retroactivity requires a two-prong test: (1) legislative intent and (2) constitutionality. If the plain language of the statute does not evince an intent that the statute apply retroactively, the Court need not address the second prong.. The court may consider the language, structure, purpose or legislative history of the statue. Although the statute does not discuss retroactivity, the Legislature’s inclusion of an effective date is evidence that it did not intend the statute to be retroactive.

American Optical Corp. v. Spiewak
No. SC08-1617 and SC08-1639 (Fla. July 8, 2011)

The Asbestos and Silica Compensation Fairness Act, §774.202, et seq., Fla. Stat.(2010), cannot be applied retroactively to causes of action already accrued. The Act requires that a minimum level of injury must be demonstrated in order to open the courthouse doors to a plaintiff’s cause of action. But the plaintiffs’ cause of action accrued when “a foreign substance—asbestos fibers—were inhaled and became embedded in the lungs of the plaintiffs without their knowledge or consent. This ... constitutes an actual injury that has been inflicted upon the bodies of the plaintiffs.” At that point, the plaintiffs’ cause of action vested. The Act attempted to obliterate that cause of action. Retroactive application violates the due process clause of the Florida Constitution.