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The Week in Torts – Cases from the Week of July 24, 2020
Nothing Good Comes From An Opened Door At Trial
FLORIDA LAW WEEKLY
VOLUME 45, NUMBER 29
CASES FROM THE WEEK JULY 24, 2020
TRIAL COURT PROPERLY ALLOWED DEFENDANT TO IMPEACH PLAINTIFF WITH EVIDENCE OF THE REFERRAL RELATIONSHIP BETWEEN HER CHIROPRACTOR AND HER FORMER ATTORNEY, BECAUSE HER ATTORNEY OPENED THE DOOR TO SUCH EVIDENCE.
Ruchimora v. Grullon, 45 Fla. L Weekly D1675 (Fla. 3rd DCA July 15, 2020):
In this minor impact rear-end collision case, the trial court entered partial summary judgment for the plaintiff on negligence, and conducted a trial on causation and damages.
Before trial, plaintiff moved in limine to exclude reference to how plaintiff came to her chiropractor based on Worley.
During opening statement, defense counsel, without objection, implied that plaintiff’s former attorney referred her to a chiropractor. This contradicted plaintiff’s deposition testimony that she was referred to the chiropractor by the emergency room doctor.
On direct examination, plaintiff’s counsel then specifically asked plaintiff who referred her to her chiropractor. Plaintiff also entered the chiropractor’s LOP into evidence, which stated that it was the attorney that referred her.
“Opening the door” allows the admission of otherwise inadmissible testimony to explain or limit evidence previously admitted. Here, despite the motion in limine seeking to exclude the evidence, plaintiff’s counsel opened the door, thereby allowing the defendant to properly challenge the credibility as to the referral.
This ruling caused the court to affirm the jury’s verdict, awarding the plaintiff only a fraction of the past medical expenses that she sought, and finding no permanent injury (and thus no non-economic damages).
COURT NEEDS A PROPER RECORD OF WHAT WAS REVIEWED IN CAMERA BEFORE IT CAN REVIEW THE RULING ORDERING PRODUCTION
USAA v. Bay Area Injury Rehab, 45 Fla. L Weekly D1714 (Fla. 2nd DCA July 17, 2020):
Plaintiff sued USAA for engaging in unfair and bad faith practices in denying its PIP claims.
When USAA objected to producing even a single record, and after several machinations in front of the special master, the trial court decided to conduct an in camera inspection of the documents in dispute. The court concluded that about one-third of them were not subject to production under the attorney-client privilege, but ordered USAA to produce the rest. USAA disagreed with the court’s ruling, finding that the attorney-client privilege precluded production.
However, USAA never filed the documents in question under seal in the record, despite its obligation to demonstrate error on the part of the trial court. USAA never demonstrated that it followed the proper procedure for filing the documents reviewed in camera.
Because the documents in this case were not in the trial court’s records, they could not be transmitted to the appellate court for review under Rule 9.220(a). Thus, that rule could not save USAA (permitting a party to cure an incomplete appendix) because the records were never made part of the record.
When challenging documents that have been submitted to the trial court in camera, it is necessary to move the trial court for an order transmitting under seal those documents to the appellate court.
COURT REVERSED FOR A NEW TRIAL IN A MED MAL CASE, BECAUSE THE TRIAL JUDGE IMPERMISSIBLY CONFLATED THE PLAINTIFF’S TWO INDEPENDENT CLAIMS INTO ONE QUESTION ON THE VERDICT FORM.
Haynes v. Blackshear, 45 Fla, Weekly D1721 (Fla. 2nd DCA July 17, 2020):
The plaintiff was treating with the vascular surgeon defendant for high blood pressure. The plaintiff reluctantly underwent a series of invasive, diagnostic tests the defendant suggested, suffering a number of complications, ultimately being left with only one functioning kidney.
In one count of her second amended complaint, the plaintiff alleged that the doctor was negligent in performing unnecessary tests, and failing to advise the plaintiff of known risks, resulted in injury and damage.
In another count, she alleged that the doctor violated §766.111 by performing an unnecessary renal vein renin test.
All the parties understood that the plaintiff’s claim under §766.111 was based on defendant’s decision to order and perform the allegedly unnecessary renal vein renin test, which was a separate and distinct claim from the general medical negligence claim.
At the close of the evidence at trial, defendant raised the issue of whether §766.111 actually created an independent cause of action, asserting that it was only there to provide a basis for attorney’s fees.
In contrast, plaintiffs asserted that the statute did create an independent cause of action that did not require her to prove that the defendant was negligent; only that he ordered, procured and administered a diagnostic test that was not reasonably calculated to assist him in arriving at a proper diagnosis and treatment, and that she suffered injuries and damages from taking the test.
At the charge conference, both the parties and the trial court agreed to use the plaintiff’s proposed verdict form, which would have asked the jury two questions, and allowed the jury to find the doctor independently liable on either claim.
The next morning, the trial court advised that it had read the appellate decision in Dean v. Vazquez and determined that there was no need to have two questions on the verdict form, instead preparing one question that involved both causes of action.
Finding first that §766.111 does create an independent cause of action, the court found that plaintiff should have been able to have the jury return a separate verdict on that claim and one for the medical malpractice claim.
Because the verdict form conflated the two claims into one and gave the jury the option of answering only one question “yes or no,” it did not comport with the law or the jury instructions, and the error necessitated a new trial.