You’re no expert, sir.

FLORIDA LAW WEEKLY

VOLUME 50, NUMBER 1

JANUARY 10, 2025

TRIAL COURT ABUSED DISCRETION BY ALLOWING EXPERT IN BIOMECHANICAL ENGINEERING TO TESTIFY THAT THE ACCIDENT WOULD NOT HAVE GENERATED THE MECHANISMS REQUIRED FOR AN INTERVERTEBRAL DISC HERNIATION IN THE CERVICAL SPINE–THE TRIAL COURT ERRED IN ALLOWING THE EXPERT TO GIVE A “PATIENT SPECIFIC” CAUSATION OPINION THAT HE WAS NOT QUALIFIED TO GIVE

Clark v. Hahn, 50 Fla. L. Weekly D39 (Fla. 5th DCA Dec. 19, 2024):

The defendants in this automobile accident case retained an expert in biomechanics with a Ph.D. The Defendants reported that the expert would provide opinions regarding the dynamic forces and other physical characteristics involved in the subject accident and the comparison and analysis of the injuries and conditions alleged by the plaintiff.

Because the expert was not a medical doctor, plaintiffs sought to prohibit him from giving medical causation opinions. The defense argued that it had no intention of presenting the expert for such opinions.

However, when the expert took the stand, he identified himself as a biomechanical engineer, conceded he was not a medical doctor, but then gave medical causation opinions about the mechanism of injury; opinions that he was not qualified to give and that were outside the scope of his expertise.

Biomechanical engineers apply the principles and mechanics to the facts of a specific accident and provide information about the forces generated in that accident. In the litigation context, they are qualified to opine about accident forces and the general types of injuries those forces may cause.

However, they may not opine about the precise cause of a specific injury because they lack the medical training necessary to identify the different tolerance levels and preexisting medical conditions of individuals, both of which influence the injuries that result from an accident.

Here, defendants asked the expert to give opinions about his conclusions as to the forces applied to the plaintiff’s spine, and whether those forces could create the injury mechanism that the expert had mentioned.

The expert opined that this particular accident would not have generated the mechanism required for an intervertebral disc herniation in the cervical spine for someone of the plaintiff’s height and weight in this particular vehicle.

While biomechanical experts may discuss the forces generated by an accident and how a hypothetical person’s body will respond to those forces, they are not qualified to render medical opinions regarding the precise cause of specific injury. Because the trial court allowed the defendants to ask the expert specifically about the plaintiff (and not about a hypothetical person), which was outside of his expertise, reversal was required.

PLAINTIFF’S FAILURE TO SERVE THE SHERIFF OR THE COUNTY SHERIFF’S OFFICE WITH NOTICE OF HER CLAIM AS REQUIRED BY SECTION 768.28(6), REQUIRED SUMMARY JUDGMENT FOR THE DEFENDANT SHERIFF

Staly v. Izotova, 50 Fla. L. Weekly D44 (Fla. 5th DCA Dec. 20, 2024):

The plaintiff was involved in a car accident with an on-duty Flagler County Sheriff’s deputy. The plaintiff filed a one-count complaint against the sheriff for negligence based on vicarious liability and alleged that all the conditions precedent to the filing of the action had been met.

The evidence showed that the plaintiff had sent notices by certified mail to the Florida Sheriff’s Risk Management Fund, the city of Palm Coast, the city of Burnell, Flagler County and the State of Florida Bureau of Consumer Assistance.

The sheriff filed his answer and affirmative defenses, including his defense about being exempt from liability because the plaintiff failed to meet the conditions precedent pursuant to Section 768.28(6). The sheriff moved for summary judgment specifying that the plaintiff had failed to serve him or the Flagler County Sheriff’s Office with the notice of her claim as required by the statute.

In response to the motion, the plaintiff argued she had fulfilled all conditions precedent and attached emails from an employee of her attorney’s firm to the sheriff’s office which were sent approximately one week after the accident.

The trial court accepted these emails as proper notice. It found that the communications sent to the sheriff’s office were sufficiently direct and specific to reasonably put the agency on notice of the existence of the claim and demand.

The appellate court disagreed. In looking at the statute, it found that unless the claimant presented the claim in writing to the appropriate agency within 3 years, the condition precedent of notice was not met.

Section 768.28 applies to sheriffs as a separate entity or agency of political subdivision. To waive sovereign immunity, the state must receive notice of each claim against it. The purpose of notice is to provide the state and its agencies sufficient notice of claims filed against them and time to investigate and respond.

Here, the court found that the letter that identified the incident did not in any way state a claim or demand against the sheriff, except to advise that the plaintiff planned to file a claim against the sheriff’s office for her injuries. The emails in this case appeared to be nothing more than a request for information about the accident and the relevant automobile insurance provider, falling short of meeting the requirements of section 768.28(6).

The appropriate agency in this case was the Flagler County Sheriff’s Office. The plaintiff was required to present a claim in writing to the sheriff but did not do so. The plaintiff also failed to comply with the statute because she did not serve a notice on the Department of Financial Services. The Bureau of Consumer Assistance is not a subdivision of the Department of Financial Services, its mailing addresses are not the same and the plaintiff failed to cite any case law to support her claims that notice to a subdivision of the Department of Financial Services qualifies as notice for purposes of section 768.28(6)(a). Because the court must strictly construe the statute, the plaintiff’s notice to the Bureau of Consumer Assistance was also insufficient to meet the requirements of the statute.

TRIAL COURT CORRECTLY ENTERED SUMMARY JUDGMENT CONCLUDING THAT THERE WERE NO GENUINE ISSUES OF MATERIAL FACT AS TO WHETHER THE SURGEON WAS AN AGENT OF THE DEFENDANT HOSPITAL

Moore v. Toub, 50 Fla. L. Weekly D75 (Fla. 5th DCA Dec. 27, 2024):

The decedent underwent elective abdominal surgery. Following the surgery, she developed abdominal pain and other problems. Imaging revealed air in her abdomen. The decedent underwent an exploratory surgery performed by a different doctor who found 7 or 8 holes in her small bowel. Following that surgery the decedent developed complications and spent months in the hospital and a rehab facility until she ultimately died almost 2 years later.

The plaintiff asserted that the original physician was an agent or an apparent agent of the hospital. As to actual agency, the court found there was no contract or other employment relationship between the physician and the hospital or evidence of acknowledgment by the hospital that the doctor would act on its behalf (the contract was with the physician’s employer).

As to apparent agency, the court found that the record was devoid of evidence of any representation made by the hospital to suggest that the doctor was its agent, or that the decedent had relied on an alleged representation. On the contrary, the decedent had chosen the physician as her surgeon before presenting to the hospital for her surgery, with no input or representation from the hospital.

As to non-delegable duty, the court found that the plaintiff failed to cite any statute or regulation to support her theory of liability and that the employment agreement between the physician and the hospital established a contractual non-delegable duty on the part of the hospital.

Generally, hospitals are not liable for the negligence of independent contractor physicians. The hospital’s granting of staff privileges without more is insufficient to create a jury question about whether a health care provider was acting as an agent of the hospital.

Under an agency theory, the right of control rather than the relationship between the parties determines whether the agency relationship exists. If the employer’s right to control the activities of an employee extends to the manner in which the task is to be performed, then the employee is not an independent contractor.

Here, the only evidence the plaintiff provided as evidence of agency was the employment agreement between the physician and his employer (not the agreement between the hospital and the surgeon’s employer). Per the employment agreement, the surgeon’s employer and not the hospital would provide professional liability coverage, and indemnify and defend the doctor, bill the patients, etc. There was no indication in the agreement that the hospital had a hand in selecting or hiring the surgeons.

The plaintiff relied on a section in the agreement that said that the physician would treat all patients as determined by the hospital and that the hospital reserved the right to determine who would be accepted as patients.

However, that provision did not require the physician to receive permission from the hospital regarding who to treat, nor did it give, at the hospital, the ability to control how the medical services were rendered by the doctor to the patients.

The plaintiff also argued that the agreement required the hospital to provide various supplies and an office for the doctor and asserted that the surgeon’s employer was responsible to ensure that such services were provided by the physician to the hospital. The customer service pledge that the doctor signed was a general customer service code of conduct not about standards and procedures for his method of treatment or employment.

Because the plaintiff failed to provide sufficient evidence to create a genuine dispute of material fact as to whether the physician was an actual agent of the hospital when he performed the surgery, the trial court correctly granted summary judgment for the defendant hospital.

NO ERROR IN ENTERING FINAL SUMMARY JUDGMENT IN FAVOR OF RIDE-SHARING COMPANY IN ACTION SEEKING TO HOLD IT LIABLE FOR NEGLIGENCE OF DRIVER –EVIDENCE ESTABLISHED THAT THE DRIVER WAS OPERATING HIS PRIVATE VEHICLE ON PERSONAL BUSINESS AND HAD BEEN LOGGED OFF THE COMPANY’S APP FOR NEARLY FIVE MONTHS PRIOR TO THE ACCIDENT

Campo v. Uber Technologies Inc., 50 Fla. L. Weekly D93 (Fla. 3rd DCA Jan. 2, 2025):

The plaintiff sued Uber and a driver after a tragic accident in which the driver struck and killed the man’s daughter. Uber sought summary judgment, contending that while the driver had contracted and worked as an Uber driver in the past, he was driving his private vehicle on personal business and wasn’t working for Uber at the time of the accident.

Florida law is well settled that an employer is not vicariously liable for an employee’s actions when the employee is acting outside the scope of his or her employment. In Florida, merely going to or from work in one’s own car is not considered to be in the course of employment.

The plaintiff argued there was a genuine dispute of material fact as to whether the driver was logged into the Uber app on the date of the accident.

However, Uber’s internal data records and supporting affidavits indicated that the driver was offline from the Uber app on the day of the accident and had not logged on for months. Additionally, Uber’s data expert attested that upon reviewing internal records. The driver had logged off the Uber app for months before logging back on.

While the plaintiff argued that the Uber data expert did not have communication with the driver in generating the affidavit and that Uber’s records were undated, unsigned, and lacked unique identifiers creating a genuine issue of material fact, the trial court properly considered the evidence and found that the plaintiff offered no evidence, only argument in opposing the data and evidence presented.

The record thus conclusively showed that the driver was offline on the date of the accident and there was nothing in the record to contradict that fact supporting summary judgment.