Archive for the ‘Evidence’ Category

New Opinions on Motion to Dismiss for Fraud Reveal That Evidentiary Hearing is Required

Thursday, May 27th, 2010

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.

Florida Nursing Home Case Clarifies Admissibility of Treating Physician Testimony on “Negligence” and “Violations of Resident’s Rights”

Monday, March 22nd, 2010

In long term care cases, it is common for a plaintiff to obtain testimony from treating and expert physicians that certain acts or omissions by the nursing home or ALF was in violation of resident rights (Chapters 400 or 429).  Conversely, it is likewise common for defendant facilities to obtain similar testimony that there were no shortcomings in their care since involved health care practitioners are required by law to report suspected abuse or neglect and the absence of such reporting speaks for itself.

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.”

Opening Statement Remark About Defendant’s Income = New Trial

Monday, March 15th, 2010

The Fifth Circuit held last week that the statement, “in a good week [defendant] may make $1,500,” made by defense counsel in opening statement warranted a new trial.   The court concluded that the jury’s verdict reflected that it was controlled by sympathy.  The presence of a jury member crying during openings also was twice pointed out.

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.

Hospital’s Charges for Perc Disc Procedures Are Discoverable

Thursday, March 11th, 2010

If you perform a Google search for “percutaneous disc decompression” you will obtain a list of care providers detailing their PDD services.

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.

Admissibility of Prior Non-Occurrence

Wednesday, February 24th, 2010

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.

In Closing Argument, Comment on Lack of Evidence, Not Witnesses

Monday, October 12th, 2009

It is so tempting in closing argument to trash your opponent for not proving their points.  But tread lightly, as case law holds that you cannot state or imply fault on a party for failing to call witnesses equally available to both sides.  BUT, you can fault them for not introducing evidence.  So make your point that way and avoid a mistrial.

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.

tPA “Clot Busting” Verdict Reversed Due to Low Statistical Success of the Drug

Monday, September 28th, 2009

A small wave of cases has arisen since the development of tPA, a “clot busting” anti-stroke medication which must be given in the ER under strict medical pathways where the patient has no history of subdural hematomas and the onset of the stroke was within three – six hours (depending on whether it is given intravenously or intra-arterially).

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.

Privileged Documents Sent to Expert Not Waived?

Tuesday, July 28th, 2009

Because so many people are involved in the everyday step of sending records from a law office to an expert, the mistake of inadvertantly including privileged information occurs now and again.  Is it waiver?  Will the jury see it?

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.

How Should A Judge Instruct A Jury Not to Text, Twitter or Google?

Wednesday, July 1st, 2009

Look no further than our brethren in Michigan, who hustled out a June 30, 2009 order providing the anti-Twittering jury instruction for trial judges.  The rule goes into effect in September.

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.

Third DCA Clarifies Damages in Breach of Services Contract

Tuesday, June 9th, 2009

What are the damages when a 5-year landscaping contract for monthing lawn care between a homeowner’s association and lawn mowing company is breached?  The monthly rate?  Total contract fee?  Lost profits?

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.

Fifth DCA Rules Amendment 7 Overcomes Incident Report Work Product… But Maybe Not Attorney-Client Privileges

Sunday, June 7th, 2009

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.

Standard for Admitting Medical Expert Testimony is Mere “Anecdotal Association” Between Conditions, Not Proof of Causation

Tuesday, June 2nd, 2009

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.”

Are AHCA, DCF and other State Agency Reports Admissible in Florida?

Saturday, April 11th, 2009

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.

Admissibility of Co-Defendant’s Settlement: Did the Florida Supreme Court Overrule Ehrhardt’s “Florida Evidence”?

Thursday, February 26th, 2009


Many Florida lawyers, particularly those with Florida school law degrees, clutch to their Ehrhardt “Florida Evidence” text.  And with good reason.  However that grasp should be loosened just enough to take a red pen to section 408.1 of the book.  You may also want to mark up your Florida Statutes 768.041(3) (release or covenant not to sue) and section 90.408 (compromise and offers to compromise).  Because the Florida Supremes ruled that evidence of settlement or dismissal of a former defendant is never admissible, even to challenge bias or credibility.

In Albert Saleeby v. Rocky Elson Construction, the Court tangled with a direct and express conflict between the Third and Fourth DCA on the issue of admissibility of a prior defendants settlement under these two statutes (Fourth District had permitted while the Third had not).  In the Saleeby facts, a defendant had been released from the case and later appeared in trial as an expert, opining a co-defendant had violated building codes.

The High Court cited the 4th District case and its citation to Ehrhardt’s text.  A dissent did as well.  But the opinion was that the plain meaning of both statutes prohibited admission for any reason.  The Court buttressed its opinion with a claim that admitting such evidence was contrary to a strong state public policy in favor of settlement.

A brief discussion was made about “Mary Carter Agreements,” a chimera of a legal theory which gets discussed more frequently than it is actually spotted in the wild.  A Mary Carter agreement, which was forbidden as of a 1993 opinion, involves a secret settlement between plaintiff and defendant where the defendant agrees to remain in the case and try to amplify a co-defendant’s liability.  The Court used words like “charade” and phrases like “unfair and unethical” and “outlawed their use” in describing such agreements.

Canady’s dissent was interesting as it argued that section 90.608(2)(attacking credibility by showing bias) was not subjacent to 768.041(3)(release or covenant not to sue) or 90.408.  He argued that, in this case, the plaintiff created its own situation by hiring the former defendant as an expert and placing him on the stand.  Justice Polston, meanwhile, plainly draw the conflict with Professor Ehrhardt by quoting the book upfront and then opining that the evidence should have been admissible since it was not admitted to prove liability but simply to show bias.

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