FloridaLawCommentary.com

We are fans of Florida Law Weekly as a reliable print and email source of new case law.  Volume 35, Number 20 (May 21, 2010) presents two cases involving Motions to Dismiss for Fraud, suggesting that (a) an evidentiary hearing is required and (b) the motion is limited in application.

In Dany Gilbert v. Eckerd Corporation of Florida, Inc., the Fourth District (Bowman, Farmer, and Hazouri) considered a personal injury case where the Plaintiff claimed lost wages in excess of $420k premised, in part, on a brief two month stint at a concrete company.  During discovery, however, the Plaintiff’s husband and several representatives of the company denied she worked there.  The Plaintiff, in turn, produced two checks and her tax returns.  In response, a representative of the company indicated that the money was for the Plaintiff’s husband and that the payment was for her to run through her business — not because she was an employee.

The Panel held that there was “no rule, statute or case” requiring an evidentiary hearing but that it was a “better practice” so the trial court could make specific findings.

In Ruby Hair v. Richard Morton, the Third District (Ramirez, Gersten, and Lagoa) held that inconsistencies, non-disclosures, and even falseness were better addressed in cross-examination and discovery sanctions than dismissal for fraud — and likewise determined that an evidentiary hearing was needed.

BOTH cases reversed the order of dismissal and noted (a) a motion to dismiss for fraud requires clear and convincing evidence, (b) dismissal for fraud is an “extreme” sanction, (c) proof required (clearly and convincingly) is that a party sentiently set in motion an unconscionable scheme calculated to interfere with justice, and (d) it must go to the core issues.

The Fourth DCA’s opinion suggested the standard of review is a “narrowed” abuse of discretion standard; the Third DCA indicated that, in the first place, trial courts should be granting these sparingly and cautiously.

Proving something didn’t happen  sounds like an impossible task, inside or outside of the courtroom.  Not surprisingly, getting “evidence” of a non-event admitted can be  difficult.

In Robert Hogan v. Gray Gable, Nassau Village Volunteer Fire Dept, Inc. (First District: Wetherell, Lewis and Thomas), the plaintiff lacerated his hand on metal mesh while entering a dunk tank at a charity event.  The tank-owner claimed that there were no prior incidents with the tank going back to its original construction in 1990 and sought to admit the same.

Plaintiff argued that there was evidence of modification in 2000-2002 (including the mesh) and that the Defendant could not establish it was the same equipment under the same circumstances (e.g., used at night under same lighting conditions) going back to 1990.

A trial judge’s decision to admit evidence of occurrence or nonoccurrence of prior accidents under substantially similar conditions is within the sound discretion of the trial court.  It must be the “same type of equipment” under “substantially similar conditions.”  Interestingly, if the item is not modified/changed, one case suggests that a google manufacturer did not have to establish “substantially similar use.”

Herein, the evidence of modification required strict compliance with both parts of the test.

Last month we reported that the Second DCA ruled that Amendment 7 (Patient’s right to know about adverse medical incidents) trumped work product privleges.

The Fifth District has done the same but left the door open as to whether attorney-client privileges may still avoid disclosure.  Will health care providers start having their counsel review piles of past incident reports?

In Florida Eye Clinic v. Mary T. Gmech, the plaintiff sought medical incident reports under article X, section 25 of the Florida Constitution (Amendment 7, when it was put to the voters).  The Panel (Cobb, Torpy, and Cohen) held that “we conclude the plain language of amendment 7 evinces an intent to abrogate any fact work-product privilege that may have existed prior to the passage of amendment 7.”

“Fact work product” includes fact information gathered in connection with a potential case; “opinion work product” is the lawyer’s impressions, conclusions, opinions or theories.  The former can be overcome by a sufficient showing of need.  ”Opinion work product,” on the other hand, has a nearly absolute privilege.

In this case, the lawyers never saw the incident reports AND, likewise, the reports did not include their opinion work product.  The court held that Amendment 7 was intended to overcome the fact work product privilege — not opinion work product.  There was likewise a suggestion that Florida Rule of Civil Procedure 1.280, which included the privilege, can’t be overcome by a constitutional amendment.

Do not expect this, or the Second DCA’s, opinion to be the last word.  There appear to be endless permutations to this issue; meanwhile, given tort  reforms affect on the number of medical negligence cases, med mal lawyers on both sides seem to have endless energy to fight out Amendment 7 technicalities.

A fact-specific issue in this case is the fact that the incident reports were never reviewed by counsel.  Health care providers may consider having all incident reports reviewed by counsel — arguably including impressions as well.  Obviously, that’s not without risk and expense.

Florida follows the 1923 Frye v. United States standard for admitting expert medical/scientific opinions.  The Florida Supreme Court last spoke on the matter in the 2007 case, Marsh v. Valyou.

The Third District recently tackled the issue of admissibility of medical expert testimony where the plaintiff’s expert could prove an anecdotal association between a staph infection and more serious kidney disease.  Causation was not proven, simply an association between the two.  Is that enough for admissibility?

It was in Aulette Andries v. Royal Caribbean Cruises, Ltd. (Cortinas, Salter, and Schwartz).

The Plaintiff developed a boil on her skin when she was on a cruise; it was later diagnosed to be a staphylococcus “staph” infection.  Sometime later, she developed immunoglobin A nephropathy, or IgA nephropathy, an incurable kidney disease.  When suit was filed, she found two physicians, with over 20 years’ experience, who testified that improperly treated staph infections can result in IgA nephropathy.  Defense experts pointed out there was no scientifically proven causal link between the two.

The Third DCA noted there were two types of medical opinion/scientific opinion.  Opinions based upon widely accepted, established scientific principles or methodology can be admissible even if pure opinion.  Opinions based upon new or novel principles or methods must meet the Frye “sufficient indicia of reliability” test which requires preponderance of the evidence that it meets the “general acceptance” standard at the time of the appeal.

Here, the Panel went to great lengths to confirm the professional standing and accomplishments of both sides’ experts.  There was a medical “Bradford Hill” criteria for establishing causation.  There were non-English research studies.

The Marsh opinion, from 2007, does not require scientific literature or other proof regarding the precise etiology or causation.  ”Association studies,” with scientific proof, were enough under these conditions.  Here, there were recognized diagnoses (staph infection and IgA nephropathy) and “anecdotal association between the two has been recognized [to the point it is] worthy of formal and published research.”

Many nursing home and assisted living facility (ALF) lawsuits in Florida make reference to state surveys in the discovery phase in order to bolster a claim or seek leave for punitive damages. Surprisingly, there is little to no direct Florida law on the issue.

Long term care litigation lawyers may want to take note of M.S., the Father v. Department of Children and Families which was issued by the Fourth District in early April.

In that case, the Panel (Warner, Stevenson and Damoorgian) kept out of evidence a DCF welfare record after a detailed discussion of reports, hearsay, and the business records exception.