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.

The case of Estate of Caulie Jackson Murray, Sr. v. Delta Health Group, Inc. and P. Carolyn Antone involves the question of what statements an expert can make before a jury (for the purposes of this review, consider “treating physicians” as experts).  The Second District Panel (Morris, Northcutt, and Villanti) held that the defendant could not introduce testimony by a treating physician that the facility was “not negligent” because that specific testimony applies a legal standard.

The Panel likewise appears to indicate that a treating physician’s (or anyone’s) testimony about whether something “violated a resident’s rights” may also be excluded as invading the province of the jury.

Instead, the court suggests that treating physicians should be listed/disclosed as “experts” when they are offering opinions based upon their training and experience AND that the magic words involve whether the physician feels there was a “violation of the standard of care.”  As the court pointed out, “the distinction is to some degree a matter of semantics but that it is a necessary distinction nonetheless.”

The case is Robin Samuels v. William L. Torres (Sawaya, Orfinger, and Jacobus).  In this personal injury case, liability was admitted and the dispute was over the amount of damages.  Through medical and economist experts, the plaintiff sought over $600,000.  The only medical expert referenced in the opinion reportedly stated that the plaintiff “definitely needed [future] cervical spine surgery.”

In closing, defense counsel argued that the jury should neither award significant pain and suffering nor award money for future surgery.   In the end, the jury awarded past medicals, $5,000 pain and suffering, and $34,000 for future neck follow-up.  The opinion states, “there is absolutely no evidentiary support for such an award.”

Interjection of a party’s wealth or poverty is considered both irrelevant and highly prejudicial.  Here, the court noted that counsel revealed his client’s meager income, a jury member began to cry, and the jury returned a verdict which was not consistent with the evidence (thus suggesting they were swayed by sympathy).

What is unclear is whether counsel’s entire statement in opening was improper.  In the opinion, the “in a good week he makes $1,500″ is italicized.  So we know that such a blunt statement is improper.  However, a prior portion of counsel’s comment involves the lawyer “introducing” his client to the jury by explaining he is a truck driver “who does work for whoever he can get work from” and that he is responsible for costs like gas and maintenance.  The opinion does not address whether an introduction — which seems appropriate and commonplace in opening statements — may actually reveal signs of someone’s wealth (or lack thereof) without being prejudicial.

Add the word “fraud” to your search and, at the top of the Google results, will be articles (here and here) questioning these procedures and allegedly inflated costs — with reference to Palm Beach County practitioners.

Enter the Fourth District’s opinion this week in Columbia Hospital (Palm Beaches) Limited Partnership d/b/a Columbia Hospital v. Catherin Hasson, Mark Hasson and Hourhan Elsawy (per curiam).

A personal injury plaintiff claimed she suffered injuries and received medical treatment (including a “perc disc” procedure) at the hospital, for which she was billed $19,000.

Defendants sent a subpoena to the hospital for the plaintiff’s records as well as the amount the hospital has charged patients with and without insurance vs. those with letters of protection and for differences in billing for litigation vs. non-litigation patients.  The Defendants’ purpose was to determine the reasonableness of the charges.  The hospital claimed a trade secret sought a protective order.

The court held that the defendants were entitled to discover whether non-litigation patients were charged a lower fee for the same procedure.  However, the trial court was instructed to take protective steps under F.S. 90.506 to ensure the trade secret(s) were protected with a confidentiality order or agreement.

Taken differently, the opinion sets out steps to obtain this kind of information:

1.  Determine if it is a trade secret via in camera inspection.

2.  Pursue hearing on compulsion to produce and/or produce in camera.

3.  Follow F.S. 90.506 regarding confidential production, if ordered.

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.

In Community Asphalt Corp. and Alfredo Martinez v. Joaquin Bassols, the parties argued over whether the injured plaintiff had missed out on a business deal with the energy drink manufacturer, Red Bull.  The plaintiff himself admitted he was unaware he might have even had such a deal which his lawyer had introduced through his sister.  In closing, opposing counsel said, “You should expect more evidence than his sister  coming into court.  You should expect something from Red Bull.”

The Third District (Ramirez, Cope and Salter) concluded that counsel’s remarks permissibly addressed evidence as lacking, not witnesses.

These cases are attractive to plaintiffs’ lawyers because the damages are typically high (the plaintiff is either a stroke victim or dead).  However, defense counsel are often emboldened since the liability standards are increased since ER doctors have a higher threshold of liability (recklessness) under Florida Statute 768.13(2)(b)(1).

In St. Joseph’s Hospital v. William and Martha Cox and Eric Castellucci, M.D. and Emergency Medical Associates of Florida, LLC v. William and Martha Cox, the Second District reversed a verdict of “substantial damages” finding lack of causation.  Thus, the plaintiff lawyer at trial had convinced a jury of the higher liability standard (reckless, rather than simple negligence) but the expert faltered on causation.

tPA achieved medical recognition after a December 14, 1995 New England Journal of Medicine report on the National Institute of Neurological Disorders and Stroke Recombinant Tissue Plasminogen Activator Stroke Study Group (NINDS study) results were published.  In the study, however, 20% of patients recovered from strokes on their own and the timely administration of tPA only increased recovery by 11%.  Thus, the study found patients who received tPA stood a 31% chance of a successful outcome.

In the Cox case, plaintiff’s expert Dr. Eddy Futtrell testified that she disregarded the plaintiff’s past history of a subdural hematoma (for case-specific reasons) and she subscribed to the NINDS study result.  Defendants’ expert, of course, felt the plaintiff’s history of a subdural hematoma was a contraindicator.

The Panel (Northcutt, Kelly, and Dakan) concluded that Florida follows the “more likely than not” standard of causation which amounts to requiring facts which support a 51% or better probability.  If the causation evidence is pure speculation or conjecture, or if the probabilities are even, a directed verdict is required.

Here, since the plaintiff’s expert agreed with the NINDS study that only 31% of patients who received tPA would recover successfully, that did not meet the causation threshold.

Thus, practitioners want to look for medical testimony or evidence which establishes that 51% probability.  Plaintiff needed an expert who either distinguished the patient from the study population OR advanced a better statistical outcome based upon the expert’s experience.

In Nan H. Mullins, D.M.D. v. Alice Tompkins (Benton, Webster and Roberts),  the unfortunate defense counsel faced this discovery catestrophe and it lead to an appeal.  In this case, the defense expert received a copy of defense counsel’s evaluation letter sent to the defendant and insurance company as well as emails between defendant and lawyer.

The court held that the documents were ordinarily privileged and that mere accidental production does not automatically waive the privilege, see Fla.R.Civ.P. 1.280(b)(4)(B).  Since, here, the expert testified he never read nor relied upon them, there was no breach and no reason for disclosure (although we are curious how this was not caught during the expert’s review of what was sent to him and the lawyer’s pre-deposition conference).

The Panel further pointed out that even if it was discoverable, it may not be admissible to be paraded in front of the jury.

No, it may not be required here in Florida yet, but isn’t it a good idea?  Why not offer to the judge for your next trial?

Would the other side actually disagree?

The rule is here.  The Detroit Free Press article is here.

Lost profits, according to the Third District in Marbella Park Homeowner’s Association, Inc. v. My Lawn Service, Inc. (Gersten, Cortinas, and Salter).  

“The measure of damages for breach of a services contract is the non-breaching party’s lost profits.”  Those are calculated by taking the performance costs and subtracting them from the contract price.  Here, it would be the price of the monthly mowing minus the cost of that service.  The burden is on the non-breaching party and thus an evidentiary hearing is required.