You gotta give more before you boot the guy!

FLORIDA LAW WEEKLY

VOLUME 46, NUMBER 40

CASES FROM THE WEEK OCTOBER 8, 2021

ABUSE OF DISCRETION NOT TO MAKE ADEQUATE FINDINGS BEFORE EXCLUDING A PARTY’S EXPERT — THE COURT’S ORAL AND WRITTEN RULINGS WERE CONCLUSORY IN NATURE AND MERELY TRACKED THE STATUTORY LANGUAGE – ALSO THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING MOTION TO STRIKE AN EXPERT FOR VIOLATION OF PRETRIAL DISCOVERY ORDERS, WHEN THERE WAS NO SHOWING OF A WILLFUL FAILURE TO COMPLY OR A DEMONSTRATION OF EXTENSIVE PREJUDICE

State Farm v. Nob Hill Family Chiropractic, 46 Fla. L. Weekly D2121 (Fla. 4^th DCA September 29, 2021):

In this PIP case, the insurer retained both an accident reconstructionist and a causation expert to testify that the insured’s accident involved forces were not sufficient to cause an injury. The trial court granted the plaintiff’s motion for a Daubert hearing and then conducted a two-day hearing involving the biomechanical engineer and the medical doctor, regarding qualifications and methodology.

The plaintiff argued that the doctor’s injury causation analysis was “semi-junk science” and asserted that the doctor was unfamiliar with several significant variables which would have impacted the force applied to the insured. Counsel argued that the doctor never physically examined the insured and had an opinion contrary to other doctors. The trial court concluded the hearing without making an oral ruling.

Two months later, the trial court entered an order granting the Daubert challenge, finding that the insurer had met its prima facie burden to show that the doctor had minimal qualifications, but also finding that the doctor’s data was insufficient and his methodology not reliable. However, the court made no factual findings that would support those conclusions.

As to the insurance company’s other expert, the trial court had ordered the insurer to provide more complete and adequate responses to interrogatories and then awarded $1,000 in sanctions to the plaintiff. When the insurance company moved for reconsideration, the plaintiff contended that the insurance company had not provided compliant responses due to the inconsistencies and discrepancies.

The insurance company argued that despite the discrepancies, the total amount that the insurance company had paid this physician/expert was $1.3 million for the defined four-year period. The court found that there were deliberate violations of its orders, plaintiff suffered absolute prejudice in its ability to prepare cross-examination of the expert, and that the prejudice was only curable by continuance of the case that had been going on for over a decade. The court discussed the factors contained in Kozel, stating that they militated toward striking the doctor due to willful, deliberate, and contumacious disobedience.

The court reversed both rulings. First, it found that the trial court must make specific factual findings on the record sufficient for an appellate court to review a conclusion about whether testimony was scientifically reliable and factually relevant. In the absence of such findings, the court stated that appellate courts are not well-suited to exercise discretion reserved to trial courts in Daubert proceedings. Because the trial court here merely tracked the language of the relevant Daubert statute, §90.702, and only found factually that the doctor was essentially testifying as to the plaintiff’s medical condition without ever having examined the insured, the trial court concluded that the testimony was not reliable or trustworthy.

The court also found that the plaintiff failed to make a showing of willful failure of the defendant to comply or to demonstrate any extensive prejudice with the withholding of the discovery and/or discrepancies. With respect to the prejudice, the court said that it was notable that each time the insurance company filed its unverified responses to the interrogatories, they were identical to the later-filed verified responses, and further found it was significant that the insurance company was willing to stipulate to the $1.3 million payment amount for the period, despite the discrepancies. The court concluded that striking the insurance company’s remaining expert witness was neither an appropriate sanction, nor commensurate with the offense, and reversed.

NEW DISCOVERY RULES

In re: Amendments to Florida Rules of Civil Procedure 1.280 and 1.340, 46 Fla. L. Weekly S286 (Fla. October 7, 2021):

The Supreme Court amended Rule 1.280 (to require that responses to written discovery include both the request, questions, etc., to make it easier for recipients to see what the answers refer to. It is also no longer necessary for interrogatories to provide a big blank space for the answers (in the era of word processing and electronic filing). Not the most major changes to be approved to the rules of civil procedure of late, but changes nevertheless!

PLAINTIFF’S COMPLAINT SEEKING TO SUE THE DECEASED DEFENDANT’S ESTATE RELATED BACK TO ORIGINAL FILING AGAINST THE DEFENDANT HERSELF – HAVING IMPROPERLY NAMED THE DECEASED DRIVER AS THE PARTY, DID NOT RENDER THE PLEADING VOID AB INITIO

Friedel v. Edwards, 46 Fla. L. Weekly D2125 (Fla. 2^nd DCA September 29, 2021):

Plaintiff filed a negligence complaint against the driver who hit her in an accident, doing so over three years after the accident happened. Unbeknownst to the plaintiff, the defendant driver had actually passed away, three months before the complaint was filed.

Upon learning of that, the plaintiff moved to amend her complaint, seeking to add the personal representative who had been appointed for the Estate. By the time the amendment was made, four years had passed from the time of the accident. The trial court then refused to allow the amendment, ruling that the statute of limitations had passed.

The Second District reversed. It found that simply because the original complaint was mistakenly filed against the deceased driver (unknowingly), did not render the complaint a “legal nullity” (as the defendant asserted). Additionally, the court erred in refusing to allow the plaintiff to amend her complaint, because it “related back” to the original filing, changing nothing except to substitute the personal representative of the estate for the late driver. The court allowed the case to proceed.

TRIAL COURT DEPARTED FROM THE ESSENTIAL REQUIREMENTS OF LAW AND CAUSED IRREPARABLE HARM BY AFFIRMING A MAGISTRATE’S FINDINGS ESSENTIALLY OVERRULING ATTORNEY-CLIENT AND ACCOUNTANT-CLIENT PRIVILEGES WITHOUT CONSIDERING THEM

Brinkman v. Petro Welt Trading, 46 Fla. L. Weekly D2126 (Fla. 2^nd DCA September 29, 2021):

Asserting claims for fraud, civil RICO, and other civil remedies, the defendants turned over some documents in discovery, but filed a privilege log with regard to others. The nonparties, all of whom were represented by the same attorney who was representing the defendants, also turned over documents and voluntarily filed privilege logs as to the other requests. The plaintiffs argued that all of the privilege logs were insufficient, because they failed to accurately describe the documents withheld.

The motion to compel was referred to a general magistrate, who overruled the privilege objections that listed any third party. With regard to the nonparties, the magistrate ordered them to produce all withheld and redacted documents referencing the privilege log, because they failed to establish a basis for the privileges in the logs. The defendants filed exceptions to the report recommendations, but the nonparties did not. At the hearing, counsel argued that the exceptions applied to both nonparties and the parties (because counsel represented the nonparties also).

The trial court affirmed the magistrate’s recommendations which found that many of the asserted privileges were not recognized by Florida law and were items the nonparties just wanted to keep confidential. The nonparties petitioned for writ of certiorari.

However, as both the accountant-client and attorney-client privileges have long been recognized, and it was unclear as to whether the magistrate had considered that the privileges had been properly raised or not, the trial court adopting the privileges without any findings or analysis was a departure from the essential requirements of law, potentially creating irreparable harm.

TRIAL COURT ERRED IN DENYING SCHOOL BOARD’S MOTION FOR SUMMARY JUDGMENT BASED ON SOVEREIGN IMMUNITY

School Board of Palm Beach County v. Edwards, 46 Fla. L. Weekly D2132 (Fla. 4^th DCA September 29, 2021):

A child was hit by a motor vehicle while crossing the road to reach her school bus stop (and is now brain injured) which the plaintiff alleged had been inadvertently placed (i.e., not in its designated location) by the School District on the wrong side of the road. The court found the case to be similar to its decision in Francis v. School Board of Palm Beach County, 29 So.3d 441 (Fla. 4^th DCA 2010) where a lawsuit was filed against the school board after a child was killed while walking across the street to the bus stop.

While it is well settled that a governmental entity that creates a known, dangerous condition that might not be readily apparent, and has the knowledge of the presence of people likely to be injured, does have a duty to avert the danger or properly warn those who might be injured, that duty is limited and arises only where the dangerous condition is so inconspicuous that it virtually constitutes a trap.

The court found that the school board here did not have a duty to warn because it did not create the busy roadway, and the child was not in the custody of the school board when the accident occurred. Without a duty, there can be no action in negligence and so the court did not reach the question of whether sovereign immunity barred the suit. But was there no duty under these circumstances? (the mother’s boyfriend had actually advised the transportation coordinator of the misplaced bus stop—those facts are not in the decision, but this “may”—purely hypothetically be this author’s case—fingers crossed on rehearing)!

TWO-DISMISSAL RULE DOES NOT APPLY UNLESS THERE ARE TWO FULL DISMISSALS

Associated Energy v. Costa, 46 Fla. L. Weekly D2142 (Fla. 3^rd DCA September 29, 2021):

Florida’s two-dismissal rule embedded in Rule 1.420(a)(1) provides that a party gets to dismiss once. However, a second dismissal operates as an adjudication on the merits, when served by a plaintiff who has once dismissed in any court an action based on or including the same claim.

In this case, while there was a second voluntary dismissal without prejudice, the action could not operate under the two-dismissal rule as a bar to the third suit because only part of the action (and not the entire action against all named defendants in this case), which the rule requires.

TRIAL COURT ABUSED DISCRETION IN FAILING TO GIVE AGGRAVATION JURY INSTRUCTION

Turner v. Gamiz, 46 Fla. L. Weekly D2153 (Fla. 1^st DCA September 29, 2021):

The only issues in this case of admitted liability were damages, causation, and permanency. The jury found for the plaintiff but did not address whether the plaintiff was entitled to damages relating to the aggravation of a pre-existing condition, because the trial court excluded that instruction and testimony on the issue.

Plaintiff’s expert testified that her record showed that she had headaches before the accident that became more frequent and persistent after the accident. There was testimony about the discussion of migraines before the accident, and also that plaintiff learned that her migraines were permanent three days after the accident. The plaintiff testified that before the accident, she did not know what a migraine was, but had experienced headaches on the left side of her head. After the accident, she experienced chronic migraines on the right side of her head and experienced them four to five days a week.

The trial court mistakenly found that there was no evidence regarding aggravation of a pre-existing condition, and then refused to give the aggravation jury instruction.

The appellate court reversed, finding the trial court abused its discretion in failing to give the jury instruction. The instruction contained an accurate statement of law, the facts supported it, and the instruction was necessary for the jury to properly resolve one of the issues in the case.