FJA_Journal_May_June_2018 by Florida Justice Association

JOURNAL FLORIDA JUSTICE ASSOCIATION

Florida Justice Association • May/June® 2018 • #602

2018-2019 FJA President LAKE H. “TREY” LYTAL, III

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MAY/JUNE 2018–NO. 602 2014 March

March 2014

CONTENTS HIGHLIGHTS

8, 10

ON THE COVER:

Meet Trey Lytal, a second generation FJA President.

pg 14

Passing the baton — Dale Swope reflects on his past year as FJA President and incoming President Trey Lytal looks to the year ahead

Tune in to the Titans of Trial podcast!

Cardiac heater cooler machines used for open heart surgery can be a breeding ground for lethal bacteria

Keep an eye out for products liability issues in workplace injury cases

Practice tips re curative instructions for improper closing arguments

IN THIS ISSUE

Extensive coverage of the Supreme Court’s decision on the status of treating physicians under the “one expert per specialty rule.” (See also pgs 26, 40 and 46)

pg 50

Congratulations, you won! Here are some tips on what to do next.

pg 60

8 10 12 14 20 26 32 34 40 42 46 50 56 60 62 64 66 72

President’s Message — Dale Swope President’s Message — Trey Lytal Executive Director’s Message — Paul Jess Special Focus: Incoming President Trey Lytal Cases and Commentaries — Kenneth D. Kranz 21 Supplement to 2018 Legislative Wrap-Up 22 Legislative Notes Tips for Auto Practitioners — Brent Steinberg Insurance — Richard Benrubi Mass Torts — Troy Rafferty and Wesley Bowden Medical Malpractice — Scott R. McMillen and Allison C. McMillen Products Liability — Leslie M. Kroeger, Adam J. Langino and Diana L. Martin Evidence — Matt Schultz Civil Procedure — Roy D. Wasson Closing Arguments — Philip M. Burlington, Barbara Green and Christopher V. Carlyle FJA Appellate Practice Section — Maegen Peek Luka FJA Young Lawyers Section — Heather Freeman Jones Member Outreach EAGLE Spotlight Index

FJACLE 15TH FJA AL J. CONE TRIAL ADVOCACY INSTITUTE WALT DISNEY WORLD SWAN AND DOLPHIN • AUGUST 2-4, 2018

2017-2018 FJA OFFICERS, EXECUTIVE COMMITTEE AND BOARD OF DIRECTORS PRESIDENT Dale M. Swope

IMMEDIATE PAST PRESIDENT James W. Gustafson, Jr.

PRESIDENT-ELECT Lake H. (Trey) Lytal, III

EXECUTIVE DIRECTOR Paul Jess

TREASURER Leslie Mitchell Kroeger

EXECUTIVE COMMITTEE Laurie Briggs Nathan P. Carter Tiffany M. Faddis Christopher N. Ligori Todd J. Michaels

SECRETARY Eric Romano

A three-day institute of dynamic presentations and demonstrations plus interactive workshops designed to advance your trial skills. The FJA’s Trial Advocacy Institute is a thorough, credible program that will improve and reinforce your opening statements, closing arguments, cross and direct examinations, and jury selection.

WHAT TO EXPECT

• 25 Hours of General CLE Credit; 25 Hours of Civil Trial Certification • Learn from other attorneys with similar trial experience & years in practicing personal injury law • Lectures, Demonstrations & Workshops • Networking Opportunities • 465 Attorneys Since 2001 Who Have Experienced the Institute! CIVIL TRIAL CE

25 IFIC ATIO

GENERAL CL

E C R E DI T

Location Walt Disney World Swan and Dolphin 1500 EPCOT Resorts Boulevard Lake Buena Vista, FL 32830

DIRECTORS 2017-2019 Hubert R. Brown Richard E. Chait Clifton C. Curry, Jr. Tiffany M. Faddis Jason F. Lamoureux Christopher N. Ligori Damian B. Mallard Todd J. Michaels Curry Pajcic Waylon Thompson Hendrik Uiterwyk Gregory M. Yaffa Mark Zamora DIRECTORS 2016-2018 Laurie Briggs David C. Dismuke Elizabeth Finizio James L. Magazine Daniel A. Mowrey H. L. Larry Perry Matthew N. Posgay Daniel Vazquez Steve Watrel Jason Whittemore DIRECTORS AT LARGE Thomas W. Carey William T. Cotterall Matthew K. Foster Allison McMillen H.K. Skip Pita Anthony Quackenbush Brent G. Steinberg PRESIDENTIAL APPOINTMENTS Nathan P. Carter AMICUS CURIAE COMMITTEE Phil Burlington APPELLATE PRACTICE SECTION Celene Humphries

WORKERS’ COMPENSATION SECTION Richard E. Chait YOUNG LAWYERS SECTION Heather Freeman Jones Christopher Keller WOMEN’S CAUCUS Amber Hall Kerri C. Smith LOCAL TLA REPRESENTATIVES BCJA– Scott L. Henratty CCJA – TBD CFTLA – Glenn M. Klausman JJA – Daniel A. Iracki MTLA – Bernard F. Walsh MDJA – Shannon Del Prado PBCJA – Peter Hunt TBTLA – James W. Guarnieri, Jr. TCJA – Gloria Seidule AAJ OFFICER Julie Braman Kane AAJ BOARD OF GOVERNORS Sean C. Domnick Brenda Fulmer Rodney G. Gregory James R. Holland Adam Langino Ricardo Martinez-Cid Troy Rafferty Herman J. Russomanno Jean Marie Whalen Edward H. Zebersky AAJ STATE DELEGATES Jack Hickey Clancey Bounds Daryl D. Parks

CLE@floridajusticeassociation.org

JOURNAL STAFF FloridaJusticeAssociation.org

EDITOR-IN-CHIEF Kenneth D. Kranz

FJA CLE Dept. 850.521.1097

JOURNAL COORDINATOR Jan Brown

Journal is published by Innovative Publishing for FJA. Innovative Publishing specializes in creating custom publications for associations. Please direct inquiries to Aran Jackson at aran@innovativepublishing.com. www.innovativepublishing.com

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PRESIDENT’SMESSAGE

THANKS FOR A GREAT YEAR! by 2017-2018 FJA President Dale Swope

From the day I was sworn in, people began telling me that it would be over before I knew it. The endless string of nights away from home, the relentless fundraising, and the days squandered trying to cipher the intricate politics of Tallahassee would quickly be a memory. At the end, they said, it would feel like it finished too quickly.

fees under §627.428 and the workers’ compensation statute. They wanted essentially every possible thing they could think of that would reduce accountability, and they got none of it.

And now, tasked to write this final retrospective message while I am still intensely working to complete all that has been started, I get it. Time is running out while I sprint to the finish line, and slowing down to look backward to see what got done this year is hard. But here goes.

Here also, because of the work done in previous years, and because the FJA legislative team is just straight relentless, there wasn’t all that much for your president to do. I was occasionally asked to show up in backroom meetings where I would sit and either look thoughtful or menacing, depending. I also delivered a threeminute script to a committee or two, and that’s just about it.

The easy part was the political and legislative performance. It was absolutely impeccable. There were seven special elections that we participated in, and the people we supported won in every single one. That’s unheard of, but for the FJA it has almost become routine. Our FJA political professionals are the Navy SEALS of Florida politics. Fortunately, all they need is for us to make sure there is money to fund the races in accordance with staff recommendations. We stayed out of their way, and they delivered win after win with uncannily tight margins that affirmed their frugality, efficiency, and respect for the work and sacrifice represented by the money we all contribute. The legislative session was pretty much the same. For yet another year, the civil justice system survived perfectly unscathed even though there were armies of lobbyists and a governor whom we tried our best to defeat, twice, who were on the attack. They wanted to expand the non-joinder rule, to gut our bad faith common law, to de-regulate testing of driverless semis and dump trucks in school zones and public highways, to diminish attorney’s 8 | May/June 2018 | www.FloridaJusticeAssociation.org

To the contrary, your legislative team kept the haters of civil justice on the ropes and came within a hair’s breadth of affirmatively passing the most comprehensive re-organization of the auto reparations system in 40 years. They also came close to creating an incredibly powerful remedy for the victims of human trafficking.

You know the names of the people who deserve the credit for this success — such as Porter, Sweeney, Ducote, McCartney, Murry, Heuchan, Nortelus, Figueroa, Villalobos, Mabry, Garcia, Shuler, and Kottkamp. But of course this team does not operate in a vacuum. They are only a part of a much larger organization, and the internal challenges of that organization this year were at least as serious as the external threats. We started this term without a permanent executive director. A blue ribbon committee chaired by omni player Leslie Kroeger and the world’s best partner, Angela Rodante, spent months in a nationwide search to make the best possible choice for the organization. And the new leader, Paul Jess, took his station just in time. Not only did Paul need to guide his thoroughbred legislative team through session, but almost immediately, our head of accounting for nearly 30 years retired. Until he found Michelle Eagan to replace him, that was kind of scary. Then one of our four fundraisers left for D.C. and Paul landed Elisha Charpentier back again. Bam! He negotiated the addition of Jeff Kottkamp to our legislative team, and he found Sarah Shuler to be our legislative counsel. He wasn’t finished.

He created new positions to take us into the future, appointing Alexis Simoneau as membership growth coordinator, establishing Abi Bayer as our first ever digital coordinator and hiring a virtual IT professional. Finally, he scored big, finding Bill Cotterall to be our new general counsel. With Paul at the helm, I only needed to stay out of the way and learn all the new names while he re-built much of the executive and operational structure, as well as our electronic, technological and informational infrastructure, all in a matter of months. I was hoping we could end our history of inadvertently not including women and minorities in leadership, and a team of Leslie Kroeger, Tiffany Faddis, Allison McMillan, Brenda Fulmer, Laurie Briggs, Nate Carter and others built the first annual convention where every seminar program was run by women chairs and co-chairs. We have much more work to be done, but they laid a foundation to ensure that diverse leadership is going to mean more than just the pioneering presidency of Leslie Kroeger. And, in the meantime, a comprehensive new plan to dramatically expand our membership and bring rationality and fairness to our fundraising system was implemented. After months of work, the “Montana Plan” was adopted by the board in December. Since then, John Brazzell, Michelle Crumbliss and Michelle Eagan’s accounting team have kicked into high gear to fully implement it by the time of the next convention. This massive program includes: • A new ambitious law school outreach program that establishes chapters in every Florida law school, to ensure that newly minted lawyers will enter the profession having been FJA members for years. By graduation they will know the role of attorneys and the FJA in maintaining our civil justice system, and how that truly matters. • A new series of contests and benefits for recruiting new members, including the introduction of “J-Coin” — a currency to incent those who recruit and elevate themselves into higher levels of membership. J-Coin can be redeemed as payment for membership dues, CLE tuition, event attendance and virtually every other product or service that the FJA offers. • Special loyalty benefits for members who have been with us for years or even decades, to show respect and return the commitment to those who have earned it by longevity. • New opportunities for business friends to participate, by joining in our recruiting contests, sponsoring new members, participating in member discount packages and special sponsored member receptions. Recognition, J-Coin rewards and private-access opportunities should make our critical partnership with our sponsors even stronger. • New valuable benefits for the local TLAs who are committed to our growth, including special recruitment contests and rewards, a new joint membership program with discounts available, and cost sharing for joint events that now make the FJA an invaluable partner for our local TLAs. • A new mentorship program chaired by Angela Rodante is already getting rave reviews, and should end the retention problem that has nagged the organization. Protégés can select

mentors who are specialists in areas such as appellate practice, or who are women, or culturally or ethnically diverse minorities, or who are young lawyers themselves, ensuring that new members have a guide to reach all that the FJA offers. • At the heart of the new program is a radical change in how our fundraising is done. Instead of relying on pressure and guilt to increase contributions, we will instead be providing incentives, recognition and solid value. A SINGLE annual selection of a membership level takes the place of the nonstop requests for EAGLE, PAC pledges and contributions. o Membership levels range from $200 for first-year lawyers on up to $50,000 for those who can; o No direct fundraising will be permitted of new members for their first two years in the organization; and o Every increased level of membership will be accompanied by a full panoply of benefits and recognition commensurate with the dues strata they represent. • For the first time, law firms are now also recognized and rewarded based on an average “per eligible lawyer” contribution level, so that small firms can be recognized for their proportionate contributions. • And, a recurrent theme in all of it is that our new members are as valuable to this organization as the largest donors and that the time of inadvertent exclusion of women and minorities is over. Building, vetting and implementing this entire plan in only 12 months has been a monumental undertaking for our staff, but should pay perpetual dividends as membership grows in response to the new unlocked value of the organization. Moreover, as more shoulders bear the burden of funding, our future as the defenders of civil justice should be secured for the foreseeable future. *** The implicit message in all those warnings that the term would feel too short was, of course, that I should search for the daily joy of being president and not let the inevitable frustration and sacrifice wear me down. I am pleased to report that there was plenty of joy in the job and that I never actually had to search for it. The best parts of being president are easy to find. They are our FJA family: past presidents who would randomly check on me and offer me wisdom from their experience; our young lawyers who spent so much time implementing the new programs that I would have been embarrassed to ask for more if they weren’t offering it; our business friends like Janette Carey who was a reliable source of anything I requested (including dozens of new recruits); and our professional staff whose love for the organization shines through in their work. And of course it was you, who treated me like I was someone special even though we all knew that I was not. You answered the calls for your advice, money, time, and pure old friendship and for all of that, I am in your debt. So — one last time — THANK YOU for letting me be your president! www.FloridaJusticeAssociation.org | May/June 2018 | 9

PRESIDENT’SMESSAGE

OPPORTUNITY KNOCKING! by 2018-2019 FJA President Trey Lytal

As the son of a past FJA president, many of you know I have a father who is an outstanding trial attorney. What most of you don’t know is that he may have been a better fisherman. As both of us were born and raised in Palm Beach County, fishing was learned at a young age. I had a great teacher on the water and in the courtroom. I often run into childhood friends who grew up with my father who call him “the luckiest fisherman” they have ever met. Working with my father for two decades has made me realize his friends were wrong. Would you call a successful fisherman “lucky” if you knew he had spent the last five years studying where to fish, the correct wind and tide to fish, where to cast and the proper baits to use? Of course not. The truth is that preparation and opportunity remove the entire concept of luck from the picture. Opportunity wastes no time with those who are unprepared. This is the same thing for fishing, the same thing for our battles in the courtroom, and the same for our political and legislative goals. As I write this President’s Message, we can all hear opportunity knocking. My goal as FJA president is to do everything possible to make certain we are prepared to take full advantage of this opportunity. Throughout history, opportunity and crisis often go hand in hand. “The Chinese use two brush strokes to write the word ‘crisis.’ One brush stroke stands for danger; the other for opportunity. In a crisis, be aware of the danger — but recognize the opportunity.” – John F. Kennedy On February 14 of this year, students and faculty at Marjory Stoneman Douglas High School faced horrific danger that resulted in the death of 17 innocent individuals being murdered. The result of this crisis has been nothing short of amazing. Our state Capitol in Tallahassee has been energized with the passion of youth who have promised this emotion will carry to Election Day on Tuesday, November 6, 2018. 10 | May/June 2018 | www.FloridaJusticeAssociation.org

We have President Donald Trump, who is a daily crisis. No Republican or Democrat can truly say this is how the president of the United States should behave. Sure, there are those who will side with him just because he is a Republican. However, polling and recent elections show that the majority of our citizens are fed up and are looking for change. The idea of change leads me to the governor’s race. The erosion of our civil justice system began when Gov. Jeb Bush was sworn in on January 5, 1999. As a young attorney, I represented an innocent young mother who suffered catastrophic injuries as a result of being run over by a Palm Beach County Sheriff’s deputy while sitting on a park bench. I was able to get a claims bill passed on her behalf through both the House and Senate three years in a row. Every year it was vetoed by Gov. Bush. This was an eye-opening lesson of how important the governor is to our client’s ability to achieve justice. For the next eight years Gov. Bush attacked our civil justice system and the legislature. Gov. Rick Scott took office on January 4, 2011. For the past seven years there may as well have been a sign posted on the governor’s door: “Judicial appointments and JNC appointments – plaintiff trial lawyers need not apply.” Our next governor appoints three new Supreme Court justices as soon as he or she is sworn into office. What does one of the candidates for governor say about our civil justice system? “I think that litigation abuse is an important issue. In place of ObamaCare I would support market-based reforms designed to enhance consumer choice, foster lower insurance rates and relieve pressure on premiums through tort reform. Florida is continually referred to as a ‘judicial hell hole’ because we serve as a ‘plaintiff lawyer’s paradise.’ We need to get serious about tort reform and explore proposals such as ‘loser pays’ so Florida can end the cycle of frivolous lawsuits and become a place where businesses want to operate.” – Ron DeSantis

The good news is that this hatred reminds me of picking a jury. It is much easier to pick who you want when those on the panel are not afraid to let you, your client and the judge know how much they dislike trial attorneys and the civil justice system. This candidate’s dislike for us makes our path in the elections crystal clear. We must take advantage of this wave of change in order to have a friend in the governor’s mansion and continue with our legislative and political agenda to put members in both the House and Senate who believe in protecting our civil justice system. At our last FJA board meeting, all four Democratic gubernatorial candidates spoke to our members. All four did an outstanding job, and I am confident that any of them would be very good on our issues, including but not limited to court appointments. For over a decade, the FJA has done a great job of identifying and electing candidates who are pro-civil justice, regardless of party. That will certainly be our priority moving forward. The FJA has numerous opportunities in the Florida Senate to elect pro-civil justice candidates. This “wave” of change is far from speculation. It has been seen in every special election this past year both in Florida and nationwide. In order to seize the opportunity of this movement, we must be prepared. No other organization in Tallahassee can match the FJA team led by our Executive Director Paul Jess and our Legislative and Political Director Jeff Porter. You as a member put a tremendous amount of trust in determining where your PAC dollars are invested. The easy decision is to determine the candidate we want to win. Oftentimes the much more difficult decision is to determine if that candidate can win. In the 2016 cycle alone, FJA had 34 Florida House victories and 14 Florida Senate victories. This continued into 2017-2018 with six special election wins in a non-election year. These amazing results from our FJA team were achieved under the leadership of Past Presidents Jimmy Gustafson and Dale Swope. This is the strongest group of civil

justice champions we have had in a generation and includes our very own Past President Gary Farmer, who could be in play to be a real leader in the Senate. These elections are proof that our FJA team is far from lucky. Each political race is similar to fishing. Is this the right candidate? Is this the right location for him or her? Can he or she get funding outside of our organization? Can we win fishing in this pond, or should we move our money where the odds of catching fish are better? Our political and legislative team’s victories are the result of preparation and hard work. The proof is in the results. Unfortunately, in Tallahassee we cannot be prepared for this opportunity of people wanting change without raising money sufficient to win on Election Day. As your president-elect, I have been traveling the state the last few years with our Director of Fund Development Rob Paulk. I can assure you that our fundraising team is just as prepared under Rob’s leadership. We currently have our largest political budget in FJA history to accomplish our goals. Due to an early start we have already raised almost half of the budget. This is our best start ever at this point in our fundraising cycle. Every FJA president appreciates taking over when things are looking good. I am fortunate to be in that position. President Dale Swope has developed a program that will continue to keep membership numbers strong for decades to come. Both our Mentorship Program and Law School Outreach program are underway due to Dale’s leadership. Paul Jess has done an outstanding job since taking over as executive director. The recent election results speak for themselves. Last year, we set an EAGLE record of raising over $3,100,000. Our Business EAGLE Program is stronger than ever. Our fundraising team is on pace to exceed our largest political budget in FJA history. The Florida Justice Association is in a very good place. I am excited to be your president and look forward to being fully prepared to take advantage of the opportunity that is knocking.

www.FloridaJusticeAssociation.org | May/June 2018 | 11

EXECUTIVEDIRECTOR’SMESSAGE

FJA’s Titans of Trial Podcast Shares Legendary Achievements of Leading Trial Lawyers by Paul Jess, Executive Director

Florida has a rich legal history where huge players have made groundbreaking achievements to advance civil justice for all. To preserve that history, the Florida Justice Association Research and Education Foundation sponsors the Titans of Trial podcast. The program brings to listeners stories about the lives and careers of the state’s most prominent trial attorneys. In its first three programs, the series has featured profiles of: Fred Levin: He’s the father of the Florida tobacco lawsuits. Pensacola’s Fred Levin inspired the rewrite of the Florida Medicaid Third Party Recovery Act in 1993 to allow the state of Florida to sue the tobacco industry, eventually reaching a settlement valued at billions of dollars paid to the state in perpetuity. The case forever changed the face of tobacco litigation in the United States. Sammy Cacciatore: Every trial lawyer in Florida — and their clients — owes a debt of gratitude to Melbourne attorney Sammy Cacciatore. In the early 1970’s, fresh out of law school, Sammy Cacciatore made his most successful argument before the Florida Supreme Court: that damage awards should not be disallowed simply because the victim bore some fault, but rather awarded based on each party’s percentage of fault for the act in question. The standard of comparative negligence has been the law of the land ever since, not only here in Florida but also in most other states.

12 | May/June 2018 | www.FloridaJusticeAssociation.org

Howard Coker: He’s described as being a trial lawyer with a teacher’s heart. From that one morning in fourth grade he woke up and declared he wanted to be a trial lawyer, Jacksonville’s Howard Coker also very much wanted to be an athletic coach. In his law career, he’s created the perfect blend of his two huge talents. Listeners will hear about the careers of many more legendary trial lawyers in the first season of Titans of Trial, including Steve Yerrid, Bob Kerrigan, Chris Searcy, Wayne Hogan and others. Titans of Trial features spellbinding stories revealing what inspired these prominent trial attorneys to choose law as a career path, first-hand details of groundbreaking cases, and their practical advice and lessons that are applicable to your own law firm practice. These legal legends also discuss how they’ve balanced historic careers with their personal lives. For example, Fred Levin shares how he might not have chosen to become a trial lawyer if not for a stubborn client who refused to settle an insurance case nearly 60 years ago. Howard Coker discusses why he stresses the value of honesty in his practice. No matter where you fall in your legal career — interested in the law, an L1 student, a junior associate, a sole practitioner, a partner, managing partner, or a living legal legend — there is something for you in every Titans of Trial episode. We invite you to listen to the series, give it a ranking, and please leave a comment. The Titans of Trial podcast is available at www.floridajusticeassociation.com and, for IOS users, the podcast is posted on iTunes.

www.FloridaJusticeAssociation.org | May/June 2018 | 13

SPECIALFOCUS:INCOMINGPRESIDENTTREYLYTAL

Here Comes the Son by Ryan Banfill, Communications Director Everyone calls him Trey, but his given name is Lake Henry Lytal, III.

Attorney and childhood friend Eric Romano can attest to Lytal’s competitiveness.

Like tennis champion Jimmy Connors once said, “I hate to lose more than I love to win.” Trey’s friends say when it comes to any competition, he has the same drive to win.

“Whether it’s law school basketball, high school football, wrestling, or golf on weekends, Trey wants to win,” says Eric Romano. “He is an extremely driven and competitive person. Everything he does — athletics, academics, fun activities — he wants to win. That’s what’s made him a successful trial lawyer. That’s what’s going to make him a successful president.”

“Playing sports growing up reminds me of the practice of law. Every team you play is different, just like every case,” Trey Lytal says. “My favorite part is that at the end of the day, preparation for the game and trial is the key to both. There is no such thing as a guaranteed win, but the side that has worked the hardest in preparation will come out on top most of the time.”

Romano should know. Romano and Lytal have known each other since they were middle-school-aged children attending FJA events with their families. They will both follow in their fathers’ footsteps when they become FJA presidents, Trey in June and Eric in 2020. They played football together at Cardinal Newman High School — Lytal was a quarterback and Romano played tight end. “I threw lots of TDs to him,” Lytal recalls. “We had a play called tight end corner pass that we would only use once inside the 10yard line. Every defense was expecting a run, so I would fake a toss sweep to the right while the entire team (except Eric) would be moving right. After the fake, the defense would follow, and Eric was often left alone in the left corner of end zone. It would only work one time per game as the other team would catch on. That play was certainly a ‘stat padder’ for Eric’s touchdown totals in high school.” Lytal says Past President John Romano videotaped every game and probably can share a replay. Lytal and Romano graduated high school together in 1990, attended Florida State University, and went to the Stetson College of Law together. While Romano and Lytal share the same unique perspective of FJA. Trey says it provides him with an advantage. “During my childhood, The Academy of Florida Trial Lawyers leadership retreat was our summer vacation. Eric Romano and I may have more hours logged at seminars and programs than

14 | May/June 2018 | www.FloridaJusticeAssociation.org

anyone else in FJA history if you are counting childhood years,” Lytal says. “When you grow up understanding how important this organization is for our clients and our law practices you will never take it for granted. Being the first son of a past president is truly an honor.” Eric Romano concurs and has high hopes for Lytal’s term leading FJA. “Trey is going to bring a lot to his presidency — having grown up in this organization, he’s got a tremendous long-term view of not only where we’re going next year, but in a decade beyond,” Romano says. “He will bring his own unique vision to realize our enormous potential going forward.” Being a leader comes naturally to Lytal, beginning back in his teen years. With a new wrestling coach — and a program that had fallen from 35-40 wrestlers to 24 — the Cardinal Newman team had to rely more on leadership from the upper classmen. As a senior, competing at 152 pounds, Lytal stepped up. Quoted in the Fort Lauderdale Sun-Sentinel in January of 1990, Trey had this to say about challenges facing the team. “Having a new coach every year makes it hard, but I think Bob’s (Matyskiel) been our best,” young Trey Lytal told the paper in 1990. “He’s helped us a lot, and he’s especially helped the younger kids. I`ve seen other older guys in the past be leaders, so I think when you get to be a senior yourself, you want to follow in their footsteps. We have a lot of first-year wrestlers who’ll get better.”

The Lytal Way: Giving Back to the Community

It’s difficult to discuss Trey Lytal and the future without looking at the past and the history of the Lytal family. The Lytal family has deep roots in the Palm Beach community. His great grandfather moved from Louisiana in 1918. He gave his son — Trey’s grandfather — the name Lake Henry Lytal, Sr. It’s a name that embodies much of Palm Beach County’s 20th Century progress. With 32 years of service, grandfather Lake Lytal, Sr. holds the record as the longest-serving commissioner in Palm Beach County history. He’s described as a public servant who believed in using government to help the less fortunate. One weekend in the early 1960s, Lake Lytal, Sr. single-handedly integrated Palm Beach County’s courthouse facilities when he asked workers to paint over the “white” and “colored” signs at the courthouse. Today, Lake Lytal Park on Gun Club Road in Palm Beach County is named after Commissioner Lytal. At the park dedication, the 68-year-old commissioner jumped from the high dive to mark the occasion. His wife, Ruth — Trey’s grandmother — was a school teacher. Together, the couple instilled the strong value of helping others in their children, which passed on to their grandchildren.

Guided by this mission, over four decades, Trey’s father, Lake Lytal, Jr., has had an inspiring career as a trailblazing attorney. With Robert Montgomery and Joe Reiter, Lake Lytal, Jr. transformed their insurance defense practices and became plaintiff’s attorneys. Lytal, Jr. explained the change to the South Florida Legal Guide, “We felt that Palm Beach County could use an aggressive plaintiff’s firm, so we took the risk and went out on our own.” In 1985, Lytal, Jr. and Reiter left Montgomery and opened their own firm where Lytal concentrated on medical malpractice and Reiter put a focus on products liability. Lytal, Jr. went on to serve as president of the Florida Justice Association in 1994-1995. Like his father, he also married an educator, Susan. These outstanding individuals laid the foundation for 47-year-old Lake “Trey” Lytal, III, to stand. “All three of us (Lake Lytal, Sr., Lake Lytal, Jr. and Trey) love sports. To be successful in sports the most important thing to focus on is preparation for gameday,” Trey Lytal says. “In the practice of law gameday is when we head to the courtroom to try our cases. I have had the opportunity to try cases with lots of amazing trial attorneys. I have never seen anyone more prepared for trial than my father.” While Lake Lytal, Jr. has been retired for eight years, he still does take time to give his son a hand. “Before my last trial a month ago, he left me a notepad with questions for every witness after reviewing the entire file at our office,” Trey Lytal noted. “This was done without me ever knowing or asking for help. He apparently enjoys trial prep eight years into his retirement!” Lytal may follow in his father’s footsteps, but he leaves his own unique mark as he laudably aims to make things better than he found them. “Everyone who’s grown up in Palm Beach County has some connection to Lake Lytal. Trey’s very humble and down to earth about it. You never hear him talk about himself or his family’s legacy. A lot of people in his shoes would coast — and rest on their family’s laurels. Trey’s never done that,” Romano says. “He’s made it a point to step out from that shadow. To be his own person. To succeed in his own right. To make significant contributions to the Lytal family reputation.”

Trey Meets Jennifer

In the early years just after graduating law school, Lytal found himself in Atlanta for a weekend with friends. Little did he know this weekend would change his life. Fate would introduce him to the woman who would become his wife. A woman named Jennifer Wehler. “Trey and I both grew up in Palm Beach County and both went to FSU, but our paths didn’t cross until a night out in Atlanta in www.FloridaJusticeAssociation.org | May/June 2018 | 15

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The Strip Club Case

Trey Lytal has handled personal injury cases that have returned verdicts worth millions of dollars. Yet, one 2010 case captured the public’s attention and drew the spotlight to him.

1999,” Jennifer remembers. “I had just moved there after graduating college. One of the guys living in my apartment complex was from my hometown. He invited me and my roommates to Dixie Tavern in Buckhead to meet up with some of his high school buddies that were flying in for a visit. Trey was one of those buddies.” Jennifer shares the story of how the couple first met: “The first time I saw him he was in a U-shaped booth with three girls on either side of him. To my surprise, he was single. We hung out that weekend. Trey and I kept in contact and I would see him on my numerous visits home to Palm Beach. We quickly started dating and did so long distance for almost two years until I moved home.” The couple were married at The Breakers on February 7, 2004. Today they have two children, son Lake, IV and daughter Jordan.

Successful Practice

Lytal attended Florida State University and is an avid Seminole sports fan. He graduated with a B.S. in 1994. His father recalls this is the point where his son chose law as his career path. “Trey was in college in Tallahassee when I was (FJA) president, and it was during this time that he decided he wanted to be an attorney. While this decision was obviously well thought out it came as a complete surprise to me,” his father remembers. “As thrilled as I was that he wanted to follow in my footsteps, my first thought was ‘what law school will accept him with his C+ average?’ Typical of Trey, once he set his goal he did what was necessary to achieve it.” That school was the Stetson University College of Law. Trey received his J.D. in 1997 and was admitted to the Florida Bar that year. “When we were in law school together, no matter how much I studied, he always got better grades. He studied, and it paid off,” Eric Romano says.

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A roofer named Michael Ireland was injured at the Cheetah strip club in suburban West Palm Beach when a dancer wearing platform shoes with metal heels turned around while walking on a bar and her shoe hit Ireland in the eye. The man suffered a broken nose, a broken orbital bone, chronic double vision and had to have surgery because of the incident. The dancer said she was wearing “chunky” platform shoes and noted, “It was the heel. That was the thing that did the damage.” It was a case that initially drew chuckles because of where the injury occurred, but a significant injury was at the heart of the case. The insurance company refused to pay, and the injured man was forced to sue. In the end, Lytal won a $650,000 judgment against the club. “When this case was first filed, many people criticized it simply because it occurred at a strip club,” Lytal told the Palm Beach Post in 2010. “But we feel the $650,000 settlement goes to show that this was a serious case with serious injuries.” This is only one of many victories the firm has won for its clients. Since its founding in 1985, the firm has recovered more than $2.5 billion for its clients. Former Florida Bar Association President Joe Reiter is the founding partner of this firm along with Lake Lytal. He describes Trey as “a great trial lawyer, family man, law partner, and he will be a great president for FJA.” In 2011, the West Palm Beach-based Lytal & Reiter law firm merged with Palm Beach Gardens-based Smith, Ivey & Fronrath to form Lytal, Reiter, Smith, Ivey & Fronrath. Scott Smith rejoined the firm as a partner, along with Lance Ivey and Todd Fronrath. At the time of the merger, none of the new attorneys joining the firm was older than 45 — giving the firm a shot of youthful vigor. “It makes our firm stronger, and it gives us the opportunity to be here a long time,” Trey Lytal told the Palm Beach Post. Under Trey’s leadership, the Lytal, Reiter, Smith, Ivey & Fronrath firm has taken personal service to a higher level. All the firm’s partners are Board Certified Civil Trial Lawyers. In 2018, Martindale-Hubbell® gave Lytal a peer-review rating of AV/Preeminent — the highest peer-rating standard of professional excellence. According to Martindale-Hubbel, this rating demonstrates that many of his peers in the legal community rank him or her at the highest level of professional excellence for their legal knowledge, communication skills and ethical standards.

“Not many attorneys have an opportunity to work with their sons, so I consider myself privileged to do so,” Lake Lytal, Jr., says. “For me, this law firm is an extension of the family. It’s a pleasure to see our younger attorneys grow in their careers and do excellent work.”

Setting the Stage for FJA Success

Lytal has been working to build the Florida Justice PAC’s political war chest in preparation for the 2018 election. The stakes are high for civil justice advocates.

to the crime, promote judicial efficiency, and address other civil justice issues important to FJA’s members. “I expect to move this organization to fundraising levels that will accomplish the change in the legislature that is desperately needed to protect our civil justice system,” Lake Lytal, Jr. says. “We must put a friendly governor in Tallahassee. We must continue to work with leadership in both the House and the Senate to accomplish our goals. Last, there has been a report of a wave, we need to ride it.”

In August and November, Floridians will select the next governor. The next governor will appoint at least three new Florida Supreme Court Justices, as well as many other judges. There also will be many open and contested seats in the Florida Legislature. Lytal has been working over the past year to raise funds to help protect and elect friends of justice from both political parties to the Florida Legislature. For the past couple of years, FJA has supported passage of proactive legislation to increase individual responsibility on the roadways, empower human trafficking survivors to bring accountability to businesses that turn a blind eye

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Very powerful corporate and big insurance interests are working to thwart FJA’s efforts and skew Florida’s civil justice system in their favor. Success in the 2018 election is critical if FJA wants to continue the offensive for justice. Eric Romano says Lytal has put his heart into preparing for election season. “Over the past couple of years, he has put in an unbelievable effort on the fundraising front. It has been very important to him.” As for having an experienced counselor in his pocket, his father is ready with advice, but is not pushing it on his son. “I have always thought it best to avoid overloading Trey with advice on how to practice law, run a law firm, and that now applies to what to do as president of FJA,” says Trey’s father, Lake, Jr. “If asked, I would suggest that he respect the excellent staff of FJA, never ask others to do anything he would not do himself and maintain the well-earned reputation of FJA of outworking and outsmarting our political adversaries.”

Family Keeps Him Grounded

Being an incoming president of a leading association and relentlessly fundraising in a critical election year — on top of having a career as a successful trial attorney with a growing practice — you must find something to keep you grounded. “This is a very demanding profession on your family. Your family has to make a lot of sacrifices for you to succeed as a trial lawyer,” says Trey’s lifelong friend Eric. “Trey, in his role as dad, he would tell you his greatest accomplishment is his family. Every professional success he’s had is due to his wife and children.” And Trey Lytal finds peace with his family. “As I am close friends with all the recent FJA past presidents, I [have] always seen how much time away from the family this sacrifice involves. Fundraising across the state with Rob [Paulk] and our team for the past three years has been difficult but rewarding,” Trey says. “I certainly could not do it without a great wife. Jen is always there for my kids and makes this all possible. We love the outdoors and the Bahamas in our backyard by boat is our family getaway.” Trey’s wife, Jennifer, notes how he always makes time for family activities. “Trey is a wonderful father and very active in our children’s lives especially when it comes time for their soccer and baseball games,” his wife says.

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He will also find some time to cheer on the Florida State Seminoles. “I bleed garnet and gold. I plan to watch the Noles beat the Irish at Notre Dame the Saturday in November after our big 2018 election day,” Lytal says. “The last time FSU played at Notre Dame was 1993. My partner Joe Reiter is a big Irish fan and we went together along with my dad. The Irish came out on top that day, but FSU went on to win their first national title.” When it’s not game day for the Noles, you can expect to find Trey enjoying the outdoors with his family. “Trey is an avid fisherman and hunter! At a young age, Trey learned from his father how to hunt. He has been on numerous big game hunts throughout the USA and Canada,” wife Jennifer says. “He participates in several local fishing tournaments throughout the year and enjoys crossing to the Bahamas in our boat whenever the weather permits.” And keeping in sync with his family, getting outdoors whenever possible are the fuel that drives Trey’s hard work, vision, and ultimate success. Trey’s father, Lake, Jr., sums up what FJA can expect from Trey’s presidency. “He will be a good listener, consider all of the alternatives, and yet be decisive when making even the toughest decisions. Once those decisions have been made he will motivate others to work along with him to make sure things work out in the best interests of FJA. I have no doubt that I will be as proud of Trey when his year as president ends as I am now as he assumes the many challenges of the year ahead.”

CASES&COMMENTARIES

In Brief by Kenneth D. Kranz, Editor-in-Chief

The Florida Supreme Court adopted extensive Bar-proposed amendments to the rules relating to lawyer referral services “to ensure that all services that connect prospective clients to lawyers conform to the Rules Regulating the Florida Bar and operate in a manner consistent with the public interest.” In Re: Amendments to the Rules Regulating The Fla. Bar—Subchapter 4-7 (Lawyer Referral Services), So.3d , 43 FLW S125 (Fla. 3-8-2018). The Court noted that, although comprehensive, “[t]hese amendments do not, however, resolve our concern with how some lawyer referral services operate in Florida, especially those that refer clients to other professionals and occupational disciplines for services arising from the same incident.” The Court also directed the Bar to submit an additional proposal addressing the issue of referrals from services that refer to multiple disciplines, noting: “The findings of the Special Committee [on Lawyer Referral Services] are troubling and we continue to believe additional measures are needed to ensure the public is not exposed to harm.” An attorney was disbarred for failure to supervise a non-lawyer employee with a known history of wire fraud and embezzlement who was hired, fired after embezzling $20,000 from the firm’s operating account, and then rehired and eventually given responsibility for administering the firm’s trust accounts from which he embezzled more than $5 million over the next few years. The Fla. Bar v. Gilbert, So.3d , 43 FLW S148 (Fla. 3-22-2018). “Whether [the attorney] was aware of or personally involved in the theft is not the critical inquiry. Indeed, this case gives new meaning to the phrase ‘turning a blind eye.’ [The attorney], as an attorney and fiduciary, was directly responsible for his firm’s trust account and for the supervision of employees. As an attorney, he owed a duty to the public and to his clients to safeguard their money.” 20 | May/June 2018 | www.FloridaJusticeAssociation.org

The Supreme Court held that “for a claim to sound in medical malpractice, the act from which the claim arises must be directly related to medical care or services, which require the use of professional judgment or skill.” The National Deaf Academy, LLC v. Townes, So.3d , 43 FLW S193 (Fla. 4-26-2018). The case involved an injury suffered by one of the defendant’s residents allegedly due to negligence by employees while attempting to physically restrain her using Therapeutic Aggression Control Techniques (TACT). The Court approved the decision of the Fifth DCA, which had concluded that the action sounded in ordinary negligence rather than medical malpractice because the employees’ actions were not for the treatment or diagnosis of any condition, were not intended to meet the resident’s daily needs during care and did not require medical skill or judgment. “[T]he fact that a medical doctor made the decision to include TACT holds in [the resident’s] care plan does not automatically transform the claim into one for medical malpractice because, as the Fifth District reasoned, administration of the TACT hold ‘did not require medical skill or judgment as non-medical staff were taught the procedure and were authorized to decide whether to employ it.’” The Court disapproved the First DCA’s conflicting decision in Shands Teaching Hospital & Clinics, Inc. v. Estate of Lawson, 175 So.3d 327 (Fla. 1st DCA 2015), which held that a claim arising out of a psychiatric hospital employee leaving her keys and badge unattended, ultimately resulting in a patient’s death, sounded in medical malpractice. Because these cases sound in ordinary negligence they are not subject to the statutory restrictions applicable to medical malpractice cases, such as the complex presuit requirements of Ch. 766, Fla. Stat., the specific qualifications required of medical experts testifying on standard of care, and a shortened statute of limitations.

Although the determination of the amount of reasonable attorney’s fees to be awarded to an attorney who renders services to a ward or to a guardian on a ward’s behalf is within the discretion of the trial court, the question of entitlement to fees is subject only to the limitation that the services must have benefited the ward or the ward’s estate. Schlesinger v. Jacob, So.3d , 43 FLW D419 (Fla. 3rd DCA 2-21-2018). Where there was competent substantial evidence that the services benefitted the ward, the trial court erred in denying an award of fees. See §744.108(1) and (2), Fla. Stat.

Supplement to 2018 Legislative Wrap-Up

In a slander suit brought by one Miami Dade College professor against another, the trial court erred in granting a motion to dismiss based on the defendant’s assertion that he allegedly had status as a “public official” who was entitled to absolute immunity. Pino-Allen v. Santelises, So.3d , 43 FLW D427 (Fla. 3rd DCA 2-21-2018). The court found that dismissal with prejudice at this stage of the proceedings was not appropriate as it was not discernible from within the four corners of the complaint whether the defendant occupied a high-ranking political position within a governmental entity, that he was required to evaluate the plaintiff’s job performance, or that his allegedly defamatory statements were all made within the course and scope of his supervisory or other duties and some special position or status.

AUTO/PIP HB 215; Motor Vehicles; Ch. 2018-130; 7/1/18

Question certified: “Does Rule 9.130 permit an appeal of a non-final order denying [sovereign] immunity if the record shows that the defendant is entitled to immunity as a matter of law but the trial court did not explicitly preclude it as a defense?” Fla. Highway Patrol v. Jackson, So.3d , 43 FLW D451 (Fla. 1st DCA 2-23-2018). The question arose in an interlocutory appeal of an order denying a motion for summary judgment filed by the FHP that argued, among other things that it was immune from suit. Because the order did not explicitly determine as a matter of law that a party was entitled to sovereign immunity, as is required under Fla.R.App.P. 9.130(a)(3)(C)(xi), the First DCA concluded that it did not have jurisdiction to hear the interlocutory appeal. In certifying the question, the court called on the Supreme Court to clarify the issue: “It is unclear if the Florida Supreme Court has departed from narrowly interpreting ‘as a matter of law’ to permit appellate review of orders denying sovereign immunity when the record demonstrates that the defendant is entitled to such immunity and was erroneously required to continue to defend itself. If the Court did not intend to signal a departure, appellate courts will continue to dismiss interlocutory appeals that will ultimately be reversed on appeal after trial, and parties will continue to defend themselves from suits they are ‘immune’ from.” See also Fla. Agency for Health Care Admin. v. McClain, So.3d , 43 FLW D810 (Fla. 1st DCA 4-182018), wherein the First DCA certified the same question. An express severability clause in a nursing home residency agreement containing an arbitration provision “strongly indicates” that other clearly unenforceable provisions in the agreement that purported to limit the home’s liability “were not the essence of the arbitration agreement between the parties.” Obolensky v. Chatsworth at Wellington Green, LLC, So.3d , 43 FLW D482 (Fla. 4th DCA 2-28-2018). Because the offending limitations on liability did not go to the essence of the agreement, the court found the agreement to be otherwise enforceable and affirmed the order compelling arbitration.

Below is an update reflecting the final status of the bills covered in the 2018 Legislative Wrap-Up that appeared in the March/April Journal. The listing reflects the bill number, subject, assigned Laws of Florida Chapter Number and effective date (none of the bills covered in the article were vetoed).

COURT SYSTEM, PROCEDURE, DAMAGES AND EVIDENCE HB 623; Out-of-Country Foreign Money Judgments; Ch. 201837; 3/19/18 HB 875; Limitations of Actions Other Than for the Recovery of Real Property; Ch. 2018-97; 7/1/18 HB 1361; Clerks of Court; Ch. 2018-71; 7/1/19 GENERAL TORT, PRODUCTS LIABILITY AND CONSUMER SB 4; Higher Education; Ch. 2018-4; 3/11/18, except as otherwise provided HB 21; Controlled Substances; Ch. 2018-13; 7/1/18 SB 740; Department of Agriculture and Consumer Services; Ch. 2018-84; 7/1/18 INSURANCE — GENERAL, PROPERTY AND MISC. HB 465; Insurance; Ch. 2018-131; 3/30/18 HB 483; Unfair Insurance Trade Practices; Ch. 2018-149; 7/1/18 HB 533; Unfair Insurance Trade Practices; Ch. 2018-153; 7/1/18 SB 660; Florida Insurance Code Exemption for Nonprofit Religious Organizations; Ch. 2018-25; 7/1/18 HB 1011; Homeowners’ Insurance Policy Disclosures; Ch. 201863; 1/1/19 HB 1073; Department of Financial Services; Ch. 2018-102; 7/1/18 HB 1127; Public Records and Meetings/Citizens Property Insurance Corporation; Ch. 2018-65; 3/21/18 MEDICAL MALPRACTICE AND HEALTH CARE-RELATED SB 510; Reporting of Adverse Incidents in Planned Out-ofHospital Births; Ch. 2018-21; 3/19/18 HB 735; Mammography; Ch. 2018-59; 7/1/18 NURSING HOME, ELDERLY AND CHILDREN HB 1059; Exploitation of a Vulnerable Adult; Ch. 2018-100; 7/1/18 WORKERS’ COMPENSATION SB 376; Workers’ Compensation Benefits for First Responders; Ch. 2018-124; 10/1/18

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The trial court erred in concluding that an enforceable settlement agreement had been established where the insurer accepted the plaintiff’s offer and provided the plaintiff with all requested documents but additionally included a proposed release to which the plaintiff objected. Tovar v. Russell, So.3d , 43 FLW D487 (Fla. 4th DCA 2-28-2018). The plaintiff’s settlement offer asked the insurer to tender its policy limits, reimburse the plaintiff an additional amount for property damage, provide an affidavit from the defendant stating she had no other insurance coverage, and provide a certified copy of the defendant’s insurance policy, but the offer was silent as to a release. The insurer accepted the offer, tendered the requested documents and provided a proposed release. In its transmittal letter responding to the plaintiff, the insurer specifically stated that execution of the proposed release was not a condition of settlement or intended to constitute a counter-offer or add any new terms or conditions to the settlement agreement. The letter further asked the plaintiff to contact the insurer if the release was not acceptable so that they could attempt to reach a mutual agreement as to the release language. The Fourth DCA found that the insurer had accepted the identical terms of the plaintiff’s offer and thereby created an enforceable settlement agreement prior to any discussion concerning a release. An arbitration provision in a nursing home residency agreement that required the use of the Alabama Rules of Evidence was unenforceable because it precluded the plaintiff from presenting evidence at the arbitration hearing as to its compensatory damages. Northport Health Services of Fla., LLC v. Louis, So.3d , 43 FLW D505 (Fla. 5th DCA 3-2-2018). The court noted that the agreement allowed the application of Florida substantive law relating to remedies and allowed both compensatory and punitive damages, and it found that the offending provision requiring the application of the Alabama Rules of Evidence was severable because it concerned procedure rather than the substantive law or remedies under Florida law to which the parties had specifically agreed. Thus it did not go to the “very essence” of the agreement. Finding that no convincing argument to the contrary had been raised, the court allowed a provision requiring the application of the Alabama Rules of Civil Procedure to the parties’ conduct of pre-hearing discovery.

Where the jury in a slip and fall case awarded damages for future medical expenses in an amount equal to twice the amount the plaintiff’s doctor testified would be the maximum cost of a “potential future knee replacement surgery,” the trial court should have granted a remittitur. Wal-Mart Stores, Inc. v. Thornton, So.3d , 43 FLW D521 (Fla. 4th DCA 3-7-2018). The court fund there was no reasonable relationship between the amount awarded and the damages proved. In a suit against the builder of a cruise ship for injuries suffered by a professional dancer who was injured during an onboard rehearsal when a stage lift crushed his foot, the only connection to Florida identified by the plaintiff — that similar cruise ships have been sold in Florida — was “far too remote to satisfy the connexity requirement under both the long-arm statute and the Due Process Clause.” Fincantieri-Cantieri Navali Italiani, S.p.A. v. Yuzwa, So.3d , 43 FLW D544 (Fla. 3rd DCA 3-7-2018). The court found that the ship-builder’s contacts were not sufficiently “continuous and systematic” as to render it “at home” in the state for purposes of general jurisdiction, and there was no specific jurisdiction because there was no apparent connection between the plaintiff’s claims and the defendant ship-builder’s business in Florida: “The [ship] was not constructed in Florida; it was not purchased in Florida; it is not owned by a Florida entity; it did not embark from a Florida port; and the injury, to a non-Florida resident, occurred thousands of miles away from Florida in the Pacific Ocean.” A nursing home successfully challenged the Agency for Health Care Administration’s revocation of its license for failure to timely provide proof of its financial ability to operate on the grounds that, although §408.810(8), Fla. Stat., requires a licensee to provide such proof upon the request of the Agency, it does not establish a time frame within which such proof must be provided. TR & SNF, Inc. v. Agency for Health Care Admin., So.3d , 43 FLW D552 (Fla. 1st DCA 3-8-2018). “Thus, while the failure to provide the requested proof at all would be a violation of the statute that could justify a license revocation, the mere failure to timely provide it is not. … The fact that an Agency employee sent the nursing home a letter with a deadline to provide the requested proof is immaterial because,

LEGISLATIVE NOTES Things are quiet in Tallahassee, at least on the legislative front. Barring an unexpected Special Session, the legislature will not be back in town until the Organizational Session, which is held two weeks after the November general election. As you know, every House seat and half the Senate (even-numbered districts) will be up this year, not to mention the governor and cabinet, a U.S. Senate seat, and all the U.S. House seats in this important “mid-term” election. The 2019 Regular Session will be back in its regular March time slot, but it is possible that the 2020 Session will be held early 22 | May/June 2018 | www.FloridaJusticeAssociation.org

again as it was this year. Art. III, Sec. 3(b), Fla. Const., requires the 60-day annual sessions in odd-numbered years to start in March, but it gives the legislature the discretion to specify a different starting date for even-numbered years. Calendar August 28 �� Primary Election November 6 ��General Election November 20 �� Organizational Session March 5-May 3 ��2019 Regular Session

under the penalty statute applicable to this case, the license revocation had to be based on a violation of a statute or rule.” Question certified re: the handling of PIP deductibles: “Pursuant to Fla. Stat. §627.739, is an insurer required to apply the deductible to 100 percent of an insured’s expenses and losses prior to applying any permissive fee schedule payment limitation found in §627.736(5)(A)(1), Fla. Stat. (2013)?” State Farm Mutual Automobile Ins. Co. v. Care Wellness Center, LLC, So.3d , 43 FLW D573 (Fla. 4th DCA 3-14-2018). The court held that “an insurer must reduce the provider’s charges to the statutorily-approved permissive fee schedule before applying the deductible.” It certified conflict with the Fifth DCA, which in Progressive Select Ins. Co. v. Fla. Hospital Medical Center, So.3d , 43 FLW D318 (Fla. 5th DCA 2-9-2018), certified substantially the same question after reaching the opposite conclusion. See also the companion cases of Progressive Select Ins. Co. v. Blum, So.3d , 43 FLW D569 (Fla. 4th DCA 3-14-2018) and USAA General Indemnity Co. v. Gogan, So.3d , 43 FLW D570 (Fla. 4th DCA 3-14-2018), in which the Fourth DCA certified the same conflict and question. The trial court erred in concluding that a volunteer at a dog park, who sued a dog owner pursuant to §767.01, Fla. Stat, for injuries sustained when the owner’s dog collided with her while chasing another dog, was barred from liability by an actual consent or assumption of the risk defense. Davison v. Berg, So.3d , 43 FLW

D641 (Fla. 1st DCA 3-22-2018). The plaintiff suffered a broken leg requiring extensive medical care and sued the dog owner under Florida’s damage by dogs statute. The trial court granted summary judgment in favor of the defendant on the bases that: 1) the signs outside the park sufficiently warned the plaintiff of the risks inside; and 2) the plaintiff actually consented to, or assumed the risk of, potential injuries. The First DCA noted that §767.01 is a strict liability statute and the only total defense to liability under the statute is for the dog owner to have prominently displayed an easily readable sign on his or her premises including the words “Bad Dog.” Here, the trial court had found that the plaintiff was aware of two signs at the entrance to the park listing various rules and that these adequately advised her that she entered the park at her own risk. However, the First DCA concluded that the purpose of the signs at the park was inconsistent with the statutory purpose of signs warning visitors not to enter the premises because of the presence of dangerous dogs and thus was not sufficiently equivalent to a statutory “Bad Dog” sign to preclude liability. The court also found that the trial court erred in concluding that the suit was barred by actual consent or assumption of the risk. The court held that while there was evidence that the plaintiff was well aware of the risk of injury, the statute requires this to be presented to the jury for a determination of any comparative negligence on her part. In a slip and fall on an allegedly wet floor in a grocery store, a directed verdict should have been granted for the defendant because,

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CASES&COMMENTARIES

at best, a reasonable jury could only arrive at a verdict for the plaintiff by improperly stacking inferences drawn from purely circumstantial evidence. Publix Super Markets, Inc. v. Bellaiche, So.3d , 43 FLW D673 (Fla. 3rd DCA 3-28-2018). Pursuant to §768.0755, Fla. Stat., the plaintiff was required to prove that the store had actual or constructive knowledge of a dangerous condition created by a transitory foreign substance on the floor. Here, the plaintiff proceeded under a theory of actual knowledge based upon the plaintiff’s testimony that, after she fell, her pants were wet and she saw a man standing in front of her holding a mop, whom she alleged caused the water to be on the floor. However, no one testified that the mop the man was holding was wet, video evidence showed that the only janitor on duty at the time was using a broom and dust pan to clean, and the store manager testified that the store uses dry rayon mops, not pre-soaked cotton mops, to spot mop its floors. In reversing for entry of a directed verdict, the court noted: “A jury may not stack inferences to determine that a party had actual knowledge of a dangerous condition, nor is the mere possibility of causation sufficient to establish liability.” A contingency fee agreement signed by a car wreck victim’s mother while he was in a coma was unenforceable where he had not executed a power of attorney, had not been declared legally incompetent, and had not been appointed a legal guardian. O’Malley v. Freeman, So.3d , 43 FLW D701 (Fla. 4th DCA 4-4-2018). After awakening from the coma, the victim eventually terminated the representation without explanation and hired other counsel. The attorney claimed that he had several phone conversations with the victim and that the victim knew the attorney had filed suit on his behalf; however, the attorney did not show the fee agreement to the victim or attempt to have him ratify it. Nevertheless, the trial court held that the victim had ratified the agreement and that the attorney was entitled to a contingency fee, minus the amount attributable to work performed by the successor attorney after his discharge. The Fourth DCA disagreed, finding that the agreement was void because there was no testimony, much less competent substantial evidence, that the victim ever signed the fee agreement as is required by R. Regulating Fla. Bar 4-1.5(f)(2). The court held that the attorney was, however, entitled to recover on a quantum meruit basis and remanded for a hearing to determine the appropriate amount. Where the plaintiff filed a lawsuit for false arrest and false imprisonment against a city, and she prevailed and recovered damages on the false imprisonment claim but the city prevailed on the false arrest claim, the trial court erred in awarding the city its court costs incurred in defending against the false arrest claim. City of Boca Raton v. Basso, So.3d , 43 FLW D702 (Fla. 4th DCA 4-4-2018). The court noted that pursuant to §57.041(1), Fla. Stat., a party recovering judgment is entitled to recover all of his or her legal costs. Here, the trial court erred in awarding each party their respective costs with regard to the claim on which each prevailed, which happened to result in a net assessment against the plaintiff. The Fourth DCA held that since she recovered a monetary judgment against the city on one of her two claims, the plaintiff was entitled to recover all of her costs, and the city was not entitled to recover any of its costs from the plaintiff. 24 | May/June 2018 | www.FloridaJusticeAssociation.org

Question certified: “Does the private cause of action contained in Section 376.313(3), Florida Statutes, permit recovery for personal injury?” Simon’s Trucking, Inc. v. Lieupo, So.3d , 43 FLW D805 (Fla. 1st DCA 4-18-2018). The statute in question imposes strict liability for the discharge of certain types of pollutants. The plaintiff in the case was a tow truck operator who was injured after coming into contact with battery acid that had spilled onto the highway when one of the defendant’s tractor trailers was involved in an accident while transporting batteries. After tracing the legislative history of the statute and litigation surrounding it, the First DCA concluded that it was required to apply a definition of damages from the 1970 version of the statute, which precluded damages for personal injuries, rather than the 1983 version, which permits recovery of “all damages.” Parsing the Supreme Court’s opinion in Curd v. Mosaic Fertilizer, LLC, 39 So.3d 1216 (Fla. 2010), led the court to conclude that it had to apply the more restrictive earlier definition of damages that barred the personal injury suit. “However, because it is difficult to discern whether the Curd court actually intended for this definition of damages from the 1970 act to be applied to all causes of action brought under the 1983 act” the court certified the question as one of great public importance. A company that paid for the right to use several softball fields for a tournament at a county park had no control over other common areas of the park open to the public outside of the rented field and dugouts and thus no duty to provide adequate security to protect its invitees in those areas. Competitive Softball Promotions, Inc. v. Ayub, So.3d , 43 FLW D833 (Fla. 3rd DCA 4-18-2018). The plaintiff’s team had a heated altercation with another team during a game in the tournament, resulting in the umpire declaring a forfeit by both teams. Later in the evening, another fight broke out between members of the two teams in a common area of the park, and the plaintiff was injured while allegedly trying to keep the other players from fighting. He filed a premises liability action against the defendant, alleging that the promotion company had a duty to keep its business invitees safe and that it breached its duty by failing to provide adequate security during the tournament. The defendant countered that it had no duty to provide security in the common area where the fight occurred because it had no control over that area. Eventually the plaintiff obtained a favorable verdict, and the defendant’s motions for directed verdict and a new trial were denied. In reversing, the Third DCA agreed with the defendant that there was no evidence that it exercised any control over the premises where the plaintiff was injured; it also agreed that the defendant’s limited use of common areas to collect fees did not demonstrate the type of control necessary to give rise to a duty. It noted that, while a duty can arise where the defendant’s conduct creates conditions that cause injuries to invitees that occur beyond the limits of the premises within the defendant’s control, here there was no evidence that the defendant’s conduct led to the fight in the common area.

KEN KRANZ, FJA JOURNAL EDITOR-IN-CHIEF

is editor-in-chief and columnist for the FJA’s bimonthly Journal. He has 40 years of legislative experience and formerly served as the senior legislative counsel with various responsibilities related to the FJA legislative activities.

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TIPSFORAUTOPRACTITIONERS

Blurred Lines: When Are Treating Physicians “Expert” Witnesses? by Brent Steinberg

Most trial lawyers have been forced to grapple with the question of whether a plaintiff’s treating physician offers medical opinion testimony as a “fact” witness, an “expert” witness, or some sort of hybrid of the two. Although the lines of demarcation are often less than clear, a recent Florida Supreme Court opinion should help unravel the morass. In Gutierrez v. Vargas, So.3d , 43 FLW S143, 2018 WL 1417553 (Fla. 3-22-2018), a failure to diagnose medical malpractice case, the pretrial order provided that each party could only call one expert per specialty. At trial, the court permitted the plaintiff to call in her case in chief not only her expert pathologist (who was retained solely for the purposes of litigation), but also her two treating pathologists. After the plaintiff obtained a judgment of more than $4 million, the Third DCA reversed, holding the trial court abused its discretion in allowing the treating pathologists to testify. But, exercising conflict jurisdiction, the Florida Supreme Court quashed the Third DCA’s opinion, holding the trial court acted within its discretion in permitting the testimony of all three pathologists. At the outset, the Supreme Court recognized that “[t]estimony given by treating physicians blurs the boundary between fact testimony and expert testimony because treating physicians and expert medical witnesses both possess ‘scientific, technical, or other specialized knowledge’ which informs their testimony.” Nevertheless, the Court attempted to clarify the “fact” versus “expert” witness distinction as follows: [T]he determination turns on the role played by the witness: if the treating physician gives a medical opinion 26 | May/June 2018 | www.FloridaJusticeAssociation.org

formed during the course and scope of treatment in fulfillment of their obligation as a physician, then the physician is a fact witness, albeit a highly qualified one. If, however, the treating physician gives an opinion formed based on later review of medical records for the purpose of assisting a jury to evaluate the facts in controversy, the physician acts as an expert witness, and should be considered as such. Thus, because the two treating pathologists were offering opinions “formed during the course and scope of treatment in fulfillment of their obligation as a physician,” their testimony did not violate the pretrial order and the trial judge did not abuse his discretion. Although the Gutierrez holding was only addressing the “one expert per specialty” limitation, its significance should be much, much broader. For example, if the treating physician is testifying only as a fact witness, it logically follows that Worley v. Cent. Florida Young Men’s Christian Ass’n, Inc., 228 So.3d 18 (Fla. 2017) would protect the physician from any discovery regarding his or her financial relationship with the plaintiff’s law firm. Similarly, Rule 1.280(b)(5)’s discovery requirements should not apply to treaters offering “fact witness” medical opinions either. But if the treating physician crosses the line and starts testifying as an expert, then presumably financial relationship and Rule 1.280(b)(5) discovery would be fair game. Only time will tell whether Gutierrez will resolve disputes about the role played by treating physicians, or whether it just lays the foundation for more litigation. In the meantime, practitioners would be wise to print a copy of Gutierrez for their trial notebook.

UM Permissible Notice Yields Stacked UM Coverage

In a significant victory for policyholders, a recent Fourth DCA case reaffirmed that if an insurance company fails to comply with the UM statute’s written notice requirements, the insured cannot “knowingly” select non-stacking coverage. In Jervis v. Castaneda, So.3d , 43 FLW D908a, 2018 WL 1952980 (Fla. 4th DCA 4-25-2018), the plaintiff, a GEICO insured, bought UM and filled out an online form which GEICO claimed was a valid non-stacking election. But the form was not actually signed by the plaintiff, the plaintiff could not “reject or deselect non-stacked coverage,” and the “signature” page lacked warning language which the trial judge held was required by statute. As such, the trial court held the form was void — a ruling that GEICO did not challenge on appeal. Therefore, without a valid non-stacking election, it could not be “conclusively presumed that there was an informed, knowing acceptance” of the non-stacking coverage (like there would be if the form had complied with §627.727(9)). So that’s that — GEICO loses and the insured gets stacking UM, right? Not so fast, my friends. After the trial court declared GEICO’s form invalid, GEICO began arguing that the insured had orally rejected stacked UM coverage. The case proceeded to trial on the issue of whether the insured had orally rejected stacking benefits, and the jury found in favor of GEICO. On appeal, the Fourth DCA reversed, holding that the insured could not orally select non-stacking UM unless he was first provided with valid written notice of the limitations allowed by subsection (9) on a form approved by the Office of Insurance Regulation. It explained:

Without [the] notice [required under 627.727], there can be no informed and knowing acceptance of the limitations on stacking. To allow an insurance company to prove that an insured orally and knowingly rejected stacked coverage in the absence of the statutory notice would undermine the legislature’s determination that such written notice is mandatory. Although the actual holding of Jervis is focused on non-stacking elections, its rationale should apply equally to UM waivers and selections of lower limits. That means an insured cannot make an “informed, knowing rejection of coverage or election of lower limits” if the insurer fails to provide the notice required by §627.727(1). So, moving forward, the real question will be whether the insurer’s forms for UM rejection, selection of lower limits, and non-stacking election provide the notice required by §627.727(1) and (9). Unfortunately, the answer to that question can get pretty complicated, particularly if the forms were only shown to the insured online.

It’s My Body and I Need It Now!

In Faris v. Southern-Owners Ins. Co., So.3d , 43 FLW D555, 2018 WL 1219074 (Fla. 5th DCA 3-9-2018), the plaintiff advised his UM insurer that he would be undergoing surgery to fix a herniated disc. The insurer requested the plaintiff undergo a CME before the surgery. When the parties could not find a mutually convenient date before the scheduled surgery, the trial court ordered the plaintiff to postpone the procedure. But dealing with extreme pain on a daily basis, the plaintiff disregarded the order and went under the knife anyway. As a sanction for violating the court’s order, the trial court dismissed the plaintiff’s UM action with prejudice.

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TIPSFORAUTOPRACTITIONERS

On appeal, the Fifth DCA reversed. The court held that dismissal with prejudice was too harsh a sanction for the alleged infraction. More importantly, the court also noted that the plaintiff was under no obligation to inform the insurer of the surgery in the first place, meaning that the insurer was in no worse position post-surgery than it would have been had the plaintiff not volunteered his treatment schedule. Faris should serve as an important reminder to both courts and insurers alike that the injured person — not the insurer — should get to dictate his or her own treatment schedule.

Fourth DCA Stumbles in Slip and Fall Case

Can a store’s flooring and lighting choices constitute a negligent mode of operation for purposes of a slip and fall? The Fourth DCA doesn’t seem to think so. In Target Corp. v. Kaufer, So.3d , 43 FLW D935a (Fla. 4th DCA 4-25-2018), the plaintiff contended Target’s high gloss “wet looking” floors combined with its bright lights constituted a negligent mode of operation that contributed to the plaintiff’s slip and fall. The Fourth DCA rejected this argument, concluding that a negligent operation claim only presents a jury question when the presence of the transitory foreign substance resulted from the negligent operation. Therefore, because the high-gloss floors and lighting did not cause the detergent to spill, Target was entitled to directed verdict on the negligent operation claim. Problematically, Kaufer may well create a conflict with the only two cases it relies upon as support. In Markowitz v. Helen Homes of Kendall Corp., 826 So.2d 256 (Fla. 2002), the court outlined the mode of operation elements as follows: “Whether the specific method of operation was negligent and whether the accident occurred as a result of that negligence.” Similarly, in Etheredge v. Walt Disney World Co., 999 So.2d 669 (Fla. 5th DCA 2008), the court held that that a business will be liable where it “knew or should have known that its mode of operation” could expose invitees to danger. Kaufer purports to add an additional element: whether the negligent mode of operation resulted in the presence of the transitory foreign substance. And that does not make any sense, practically speaking. What if Target had pitch-black aisles? When your client slips and falls on the triple mocha orange raspberry frappuccino spilled by the oblivious patron walking in front of him (which, despite its colorful name, cannot be seen in the darkness), does he have a claim against Target for negligent mode of operation? Not according to the Kaufer panel. Because the lack of lighting didn’t cause Starbucks’ latest concoction to end up on the floor, Target is likely immune — at least if the store is in Palm Beach, Broward, St. Lucie, Martin, Indian River or Okeechobee County.

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While Kaufer strikes a serious blow to negligent mode of operation claims, note that the fall in Kaufer occurred before §768.0755 went into effect — the statute which could be the knockout punch. Although the Fourth DCA did not address the effect of that statute, it mentioned, in a footnote, that “[s]ome courts have concluded that §768.0755 eliminated the statutory mode of operation claim.”

The Myth of “Claims File Privilege”

“If you say something enough times, it may eventually become true” has become something of a mantra for insurance defense lawyers. Sometimes it actually works — i.e., some federal courts’ adoption of its own heightened standard for insurance bad faith claims, in violation of the Erie doctrine. And sometimes it doesn’t work, as illustrated by two recent courts’ rejection of the ubiquitous “claims file privilege” objection — a privilege that does not exist under Florida law. See, e.g., Bankers Sec. Ins. Co. v. Symons, 889 So.2d 93, 96 (Fla. 5th DCA 2004) (“Even if the court agrees that a ‘claims file’ is work product, it is not necessarily true that every document in a claim file is work product. Putting a document in a claim file doesn’t make it immune; it is only immune if it is work product.”) In Ranger Constr. Indus., Inc. v. Allied World Nat’l Assurance Co., 17-81226-CIV, 2018 WL 1701913 (S.D. Fla. 4-6-2018), a federal judge held that GEICO could not claim privilege over its entire claims file in a case with both coverage and bad faith issues. Rather, if an insurer wishes to claim privilege over the contents of its claims file, it must demonstrate work product protection with respect to each particular document. Similarly, in Homeowners Choice Prop. & Cas. Ins. Co. v. Avila, So.3d , 43 FLW D885a (Fla. 3rd DCA 4-25-2018), while the Third DCA reversed the trial court’s order requiring the insurer to produce certain documents in its claims file in a first-party coverage case (with no bad claim claim), the court expressly noted that there is no such thing as a “claims file privilege ... in the cited cases or Florida’s Rules of Procedure or Evidence Code.”

“This Is Not an Insurance Case”

In the 1970s, the Florida Legislature, in its infinite wisdom, passed the Non-Joinder Statute, with the goal of keeping the availability of insurance secret from juries in tort actions. As a result, trial lawyers and judges alike must lie to juries over and over again, pretending as if the liability insurer is not the real party in interest, pulling the puppet strings at defense counsel’s table. After all, a lie of omission is a lie nonetheless. There are stacks of cases talking about how the existence or amount of insurance coverage, or lack thereof, are not proper issues in a personal injury case. So, it stands to reason that if defense counsel suggests during voir dire that his client does not have insurance, that should be grounds for a mistrial, right? Especially if the client did actually have liability coverage?

Not always, according to a recent Fourth DCA case. In Black v. Cohen, So.3d , 43 FLW 903e, 2018 WL 1952924 (Fla. 4th DCA 4-25-2018), defense counsel told the venire that “this is not an insurance case.” Although plaintiff’s counsel moved for a mistrial, the court never issued (and counsel did not push the court for) a ruling. Instead, the court offered a curative instruction to the jury, which plaintiff’s counsel accepted. The opinion does not reveal what the curative said, but unless it told the jury that the defendant did have liability coverage, one wonders how it could possibly “cure” the prejudice caused. After a “grossly inadequate” verdict for the plaintiff, the plaintiff moved for a new trial. As grounds, the plaintiff argued that the “insurance” comment by defense counsel during voir dire unfairly prejudiced the jury, among other reasons. The trial court agreed and granted a new trial. On appeal, the Fourth DCA reversed and ordered judgment entered in accordance with the jury’s verdict. The court held that because the plaintiff “never expressed dissatisfaction with the jury chosen and accepted the jury without reservation,” the plaintiff failed to properly preserve the objection to defense counsel’s comment. Black should serve as a stern reminder that an objection during voir dire will not preserve the issue for appeal all by itself. It is incumbent upon a party dissatisfied with the jury as finally composed to object again before the jury is sworn. See, e.g., Ter Keurst v. Miami Elevator Co., 486 So.2d 547, 550 (Fla. 1986). As an aside, this past legislative session, Sen. Greg Steube and Rep. Heather Fitzenhagen filed companion bills to repeal Florida’s Non-Joinder statute, §627.4136. See Fla. SB 1452 and HB 6075 (2018). But neither got off the ground, meaning we all must keep ignoring the 800-pound insurance gorilla in the courtroom for the foreseeable future.

Fee Award Sans Amount Is a Non-Final, Non-Appealable Order

Two cases in the span of two weeks remind us that an order awarding entitlement to attorney’s fees but not establishing the amount of fees to be awarded is a non-final, non-appealable order. See Igberaese v. Vill. of Stoneybrook II Condo. Ass’n, Inc., So.3d , 43 FLW D668, 2018 WL 1513098 (Fla. 2nd DCA 3-28-2018) and Acosta v. Tower Hill Signature Ins. Co., So.3d , 43 FLW D779, 2018 WL 1733906 (Fla. 3d DCA 4-11-2018) (both dismissing appeal of fee order for lack of jurisdiction).

Accrual of Third-Party vs. First-Party Bad Faith Claims

It is well established that a third-party bad faith claim (the ones against the tortfeasor’s insurer) does not generally accrue until an excess judgment or the functional equivalent thereof (i.e., a

Cunningham agreement) is entered against the insured. See, e.g., GEICO Gen. Ins. Co. v. Martinez, So.3d , 43 FLW D86 (Fla. 3rd DCA 1-3-2018). The rationale, of course, is that an insured has not suffered any damages because of the insurance company’s failure to settle unless and until he is required to pay the injured claimant more than his liability policy limits. Moreover, the Non-Joinder Statute prohibits joinder of the tortfeasor’s liability insurer in the tort action until there is a “settlement or verdict against” the insured tortfeasor. But the same does not hold true in first-party bad faith actions (i.e., the ones against the injured claimant’s UM insurer). Unlike with third-party claims, a UM bad faith claim accrues upon the expiration of a valid Civil Remedy Notice and a determination that the insured is owed the UM policy limits. In fact, as the Fifth DCA recently reaffirmed, an underlying UM lawsuit is not even a prerequisite to a first-party bad faith claim. When the UM carrier pays the policy limits after a CRN expires but before a UM lawsuit is filed, the UM bad faith claim is ripe for prosecution. See Demase v. State Farm Florida Ins. Co., So.3d , 43 FLW D679, 2018 WL 1525851(Fla. 5th DCA 3-29-2018).

Getting (and Keeping) Future Meds … Again

Last month, we discussed a two-step process for proving up future meds. The issue has reared its ugly head again in WalMart Stores, Inc. v. Thornton, So.3d , 43 FLW D521, 2018 WL 1180537 (Fla. 4th DCA 3-7-2018). There, the Fourth DCA reversed a $150,000 future meds award because the only evidence supporting the award was the doctor’s testimony that the cost of “a potential future knee replacement surgery” would not exceed $75,000. Interestingly, despite emphasizing the doctor’s use of the word “potential,” the Fourth DCA remanded for the trial court to reconsider Wal-Mart’s motion for remittitur. Doing so, the appellate court did not hold that the doctor’s testimony about the “potential surgery” was insufficient to support a $75,000 award. Regardless, practitioners should strive to present 1) expert testimony that the future medical treatment is “reasonably certain” to occur, and 2) evidence of the cost of such treatment.

BRENT STEINBERG

is a shareholder at Swope, Rodante P.A. in Tampa. He is a proud graduate of the University of Florida and UF College of Law, where he was a member of the Florida Law Review. Steinberg is an EAGLE member of the FJA, has served as the Chair of the FJA Auto Insurance Committee since 2016, and is an FJA Director at Large for 2017-18. He represents victims of catastrophic personal injury, wrongful death, insurance bad faith, legal malpractice and wrongful coverage denials, handling cases throughout Florida and Georgia at both the trial and appellate levels.

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An attorney should not discuss non-recourse advance funding with a client unless it is done in compliance with Florida Bar Ethics Opinion 00-3. The Florida Bar discourages the use of non-recourse advance funding companies. An attorney may provide a client with information about companies that offer non-recourse advance funding if it is in the clientâ&#x20AC;&#x2122;s interest and done in compliance with Florida Bar Ethics Opinion 00-3. The individual lawyer is responsible for ensuring that his or her conduct is in compliance with the Rules Regulating The Florida Bar and comports with Florida Ethics Opinion 00-03. The Florida Justice Association recommends that attorneys who do provide names of non-recourse advance funding companies to clients should provide only names of companies that are in conformity with the guidelines contained in the agreement between the New York Attorney General and certain companies dated Feb. 17, 2005. The Florida Justice Association makes no determination or representation as to whether any particular non-recourse advance funding company is in conformity with Florida Bar rules or opinions, or any other guidelines.

INSURANCE

Insurance Cases by Richard M. Benrubi

Insurer’s Failure to Obtain Insured’s Written Rejection of Stacked UM Coverage Precludes Insurer from Claiming the Insured Made an Oral Rejection

Jervis v. Castaneda and Geico Gen'l Ins. Co., So.3d , 43 FLW D908 (Fla. 4th DCA 4-25-2018). The core issue in this case was whether an insurance company that completely fails to comply with the written notice provisions of section 627.727(1) & (9), Florida Statutes (2010), is entitled to establish that an insured knowingly rejected stacked coverage or knowingly accepted non-stacked uninsured motorist coverage. Appellant John Jervis purchased uninsured motorist coverage from GEICO General Insurance, Co. for two vehicles. He completed an online form that, in the circuit court, GEICO argued was an election of non-stacked coverage. The first circuit judge assigned to the case ruled on summary judgment that GEICO’s online form was void; the form was not actually signed by Jervis, Jervis had no ability to reject or deselect non-stacked coverage, and the signing page did not have the warning language required by statute. GEICO did not challenge this order on appeal. Rather, after summary judgment was granted, GEICO amended its affirmative defenses to assert that Jervis “made an oral rejection of stacked UM coverage.” The case proceeded to trial on the issue of oral rejection, and the jury found in GEICO’s favor. 32 | May/June 2018 | www.FloridaJusticeAssociation.org

Jervis appealed. The Fouth DCA held that the failure to serve the mandatory notice precludes the insurance company from claiming that the insured orally made a knowing choice regarding the stacking of UM coverage. The Court reasoned that the record reflects that GEICO’s notice was void, which means that, in the eyes of the law, there was no section 627.727 notice at all. Without such notice, there can be no informed and knowing acceptance of the limitations on stacking. To allow an insurance company to prove that an insured orally and knowingly rejected stacked coverage in the absence of the statutory notice would undermine the legislature’s determination that such written notice is mandatory. Accordingly, the Court reversed the final judgment in favor of GEICO and remanded the action to the trial court to enter final judgment in favor of the appellants, entitling them to stacked UM coverage.

Insured Entitled to Attorney’s Fees Under §627.428 Only Where the Claims Adjusting Process “Breaks Down” and the Parties Are No Longer Working to Resolve the Claim Goldman v. United Service Automobile Assoc., So.3d , 43 FLW D854, 2018 WL1865027 (Fla. 4th DCA, 4-18-2018)

After a plumbing leak damaged their house, the homeowners notified their insurer, which investigated the claim and issued payment.

Without informing their insurer that they disputed the amount of payment, the homeowners filed a lawsuit for breach of the insurance policy. The insurer immediately moved to compel appraisal, an appraisal took place, and the insurer timely paid the appraisal award. Because the appraisal process established the amount of damages, and the insurer paid that amount, the court granted summary judgment in the insurer’s favor. The homeowners appealed, relying on the recent Florida Supreme Court decision in Johnson v. Omega, 200 So.3d 1207 (Fla. 2016). However, the Fourth DCA found Johnson to be inapplicable. The Court noted that in Johnson, the insurer denied the homeowner’s claim in its entirety, leaving the homeowner with few options other than a lawsuit. Id. at 1210. Here, the insurer valued the loss and paid the claim based on that valuation. The homeowners did not object. Until the filing of the complaint, the insurer was unaware of a disagreement with the damage valuation. Once informed, the insurer demanded appraisal and paid the appraisal. In affirming the summary judgment, the court cited Hill v. State Farm Fla. Ins. Co., 35 So.3d 956, 960 (Fla. 2nd DCA 2010) as follows: “It is only when the claims adjusting process breaks down and the parties are no longer working to resolve the claim within the contract, but are actually taking steps that breach the contract, that the insured may be entitled to an award of fees under section 627.428, Florida Statutes.” The homeowners attempted to distinguish Hill on the basis that it is the incorrect denial of benefits and not some sinister concept of wrongfulness that triggers fees. The court rejected this argument, finding that in Hill, and here, the insured never gave the insurer the opportunity to incorrectly deny the benefits before filing a lawsuit. Concluding that there was never a breakdown in the adjusting process and that the lawsuit was filed solely to trigger fees, the summary judgment was affirmed.

Lucky 13 – Coverage Exists for Damage Caused by Water During First 13 Days Hicks v. American Integrity Ins. Co. of America, So.3d , 43 FLW D446, 018 WL1020272 (Fla. 5th DCA, 2-23-2018)

Hicks purchased an “all risks” policy from AIIC, which covered his home from May 31, 2012, until May 31, 2013.1 In September 2012, while Hicks was out of town, the water supply line to his refrigerator began leaking, slowly at first, then steadily increasing, until, by the time Hicks returned on October 25, the supply line was discharging almost one thousand gallons each day. Hicks filed a claim with AIIC, but after AIIC’s expert determined that the pipe had been leaking for five weeks or more, AIIC denied the claim, quoting the following provision of the policy: “We do not insure … for loss … [c]aused by … [c]onstant or repeated seepage or leakage of water … over a period of 14 or more days.”

over a period of more than 14 days, the provision unambiguously excluded coverage for all of Hicks’s losses. Hicks filed his own motion for summary judgment, on three issues: that Hicks sustained a physical loss during the policy period, that all losses occurring within the first thirteen days were covered, and that Hicks was entitled to $40,926.77 for losses occurring within the first 13 days of the leak. Hicks attached to his motion an extensive report from a forensic general contractor, which attempted to calculate the amount of damage to Hicks’s home within the first 13 days of the leak. At a hearing on the motions, the trial court told Hicks, “Basically, you’re asking [this court] to say whether the policy covered the loss in the first 13 days … It might, but I’m not so sure that the time frame of these particular facts would allow for that determination.” The trial court then granted summary judgment in AIIC’s favor. On appeal, Hicks contended that the exclusion only applies to losses “caused by water on day 14 and onward.” The Fifth DCA reversed the summary judgment in the insurer’s favor and ordered that summary judgment be entered in Hicks’ favor on the sole issue of coverage within the first 13 days of the leak, the extent of the losses to be determined at trial. As for losses occurring after the first 13 days, the Court correctly placed the burden on the insurer to prove that a particular loss was sustained after the 13th day and is therefore excluded from coverage. See Mejia v. Citizen Prop. Ins., 161 So.3d 576, 578 (Fla. 2nd DCA 2014) (In an all-risks policy, once the insured establishes a loss within the terms of a policy, the burden shifts to the insurer to prove that a particular loss arose from an excluded cause.)

1An all-risks insurance policy covers “all losses not resulting from misconduct or fraud unless the policy contains a specific provision expressly excluding the loss from coverage.” Hudson v. Prudential Prop. & Cas. Ins., 450 So. 2d 565, 568 (Fla. 2nd DCA 1984).

RICHARD M. BENRUBI

is the founding partner of The Law Office of Richard M. Benrubi, P.A. and of counsel to Rosenthal, Levy, Simon & Ryles in West Palm Beach, and has over 25 years of experience representing and counseling individual and corporate clients in the areas of insurance coverage, insurance bad faith, personal injury and wrongful death. He has been a Board Certified Civil Trial Lawyer since 1995 and has been named a Top Florida Lawyer annually since 2005.

Hicks sued for breach of contract, and AIIC pleaded in an affirmative defense that this provision excluded Hicks’s loss. AIIC then filed a motion for summary judgment, arguing that because the leak occurred www.FloridaJusticeAssociation.org | May/June 2018 | 33

MASSTORTS

Stockert 3T - Cardiac Heater Cooler A Breeding Ground for Lethal Bacteria by Troy Rafferty and Wesley Bowden

Introduction

More than a quarter million Americans will undergo open heart surgery this year. The routine is the same in hospitals throughout the country. As patients count backward from 10 under the supervision of anesthesiologists, their surgeons will count how many times they scrub each finger as they lather soap up to their elbows before entering the operating room, hands raised, touching nothing. Medical staff will assist in donning sterile gowns and two sets of latex gloves for each surgeon while every effort is made to eliminate contamination of the surgical field and reduce the chance of the patient developing an infection during the three hour surgery. Check lists are completed and journal entries made detailing the disinfection procedures for equipment throughout the operating room in a coordinated effort to improve patient outcomes. Yet, despite these efforts to curtail infections, hospitals have unwittingly introduced a quiet killer into the operating room in the guise of an unassuming device used to heat and cool patients’ blood during bypass surgery. Previously unknown to the medical community, the Stockert 3T cardiac Heater Coolers used in the vast majority of hospitals throughout the United States and Europe provide the ideal breeding ground for a life-threatening superbug. While these devices hum away in the operating room, their exhaust fans emit clouds of deadly M. chimaera bacteria that carries a 50 percent mortality rate for those contracting it. 34 | May/June 2018 | www.FloridaJusticeAssociation.org

The Role of Cardiac Heater Cooler Units

The first successful cardiopulmonary bypass was performed in the 1960s.1 Advancements in imaging of heart vessels led to the modern coronary artery bypass grafting (CABG) procedure by the mid-1960s.2 The more complex CABG procedure led to longer surgeries, which in turn led to hypothermic bypass requiring the use of heater cooler devices (HCD), which became the standard of care in the early 1970s.3 HCDs play an essential role in cardiopulmonary bypass surgeries by helping to keep a patient’s circulating blood and organs at a specific temperature during the procedure. In the typical CABG procedure, a patient’s body temperature is gradually lowered. The cooling of the patient’s blood is used to stop the heart and allows the surgeon to perform the operation. This medically induced hypothermia further helps to mitigate damage to myocardial tissue and protects the brain from injury resulting from insufficient blood flow and oxygen supply. Much like our home refrigerators, HCDs operate by simple heat convection. A patient’s warm blood passes through a heartlung machine where it expels carbon dioxide and becomes oxygenated. It is also transferred through a heat exchanger where chilled water from the HCD, separated by a barrier, cools the warm blood from the patient, which is then pumped back into the body, thereby cooling all organs. The process is reversed at the end of the operation to raise the blood back to a normal

by LivaNova, conducting daily water changes, filtering all water going into the replacement units with bacteria filters and performing regular water and air surveillance cultures.12 Despite these enhanced safety precautions, within three months of receiving new cardiac heater coolers from LivaNova, a University Hospital of Zurich’s heater-cooler tested positive for M. chimaera, demonstrating that the 3T cardiac Heater Coolers are incapable of being thoroughly disinfected.13

temperature. As designed, HCDs contain non-sterile water circuits that are not intended to come into contact with the patient or the patient’s blood during surgery. It is for this reason that HCDs are located outside of the sterile surgical field. However, Stockert 3T cardiac Heater Coolers contain a unique design flaw: they cultivate nontuberculous mycobacteria (NTM), aerosolize water containing NTM, and emit the bacteria-laden aerosols with sufficient force to contaminate the entire operating room.

3T Linked Outbreaks

In 2012, researchers at University Hospital of Zurich were notified of two patients who suffered from invasive M. chimaera infections following open-chest surgeries. The infections involved bacteria with identical DNA patterns leading the researchers to believe that a single contamination source at the hospital was likely.5 One of the most puzzling pieces of information was that these two patients had surgeries more than two years apart.6 The researchers then reviewed the cases of six patients who suffered from an M. chimaera infection following an open-chest surgery at the University Hospital of Zurich between 2008 and 2012.7 Two of the patients died of their infections by the time of the study, three underwent valve replacement surgery, and one patient had required repeated surgical debridement.8 In an effort to pinpoint the bacterial source, and knowing that M. chimaera is typically found in water, the team of researchers sampled all of the water they could find in the hospital and were surprised when they found it in 3Ts used by the hospital.9 What was even more perplexing is that they were unable to find any M. chimaera in the hospital’s tap water, despite repeat testing spanning years.10 Further, when they sampled 3T units at other hospitals they similarly found them to be contaminated with M. chimaera.11 After preparing several hundred cultures, the researchers found an alarming trend — the samples taken at the hospitals were only positive for M. chimaera if the 3T cardiac Heater Coolers were turned on at the time the samples were taken. Over the course of its investigation, University Hospital of Zurich implemented enhanced cleaning procedures that exceed the level of disinfection required by LivaNova’s IFUs. These precautions included replacing all 3T systems with new units supplied

Since 2014, outbreaks have been identified globally. DNA testing has linked M. chimaera outbreaks in Switzerland, Germany, the Netherlands, the United Kingdom, Australia, and the United States to the LivaNova’s 3T system.14 The genetic fingerprint of the bacteria found in these infections points to a common point of contamination — the manufacturing floor at LivaNova’s 3T factory.15 As evidence continues to mount, LivaNova’s management has now begun offering a “no-charge deep disinfection service for 3T device users who have reported confirmed M. chimaera mycobacterium contamination.”16 The process only became available to U.S. customers as of April 20, 2018.17 Yet for the patients who have already been exposed to contaminated 3T cardiac Heater Coolers during surgery, this remedial action is too little too late. The prognosis for invasive M. chimaera is poor. Signs and symptoms of the infection are nonspecific and include fatigue, fever, and weight loss.18 The infection can lay dormant for up to five years, and a median delay of 17 months between exposure and presentation of symptoms further impedes physicians’ ability to quickly diagnose and begin antibiotic treatment.19 Despite increased awareness within the medical community of the link between 3T cardiac Heater Coolers and invasive M. chimaera infections, the mortality rate for infected patients remains 50 percent.20

3T’s Fatal Design Flaws

In 2005, LivaNova sought approval of the 3T cardiac Heater Cooler claiming that it was safe and effective, and substantially equivalent to other HCDs already on the market.21 The 3T C\ardiac Heater Cooler received 510(k) approval on June 6, 2006.22 As a Class II device, the FDA only reviewed the information submitted by LivaNova to determine if the device could be compared to another similar device on the market, and whether it met certain performance criteria.23 LivaNova’s submission claimed that the device contained a temperature-controlled closed water circuit, meaning that the device was not intended to come into contact with the patient.24 Due to this claimed lack of patient contact, 3Ts were not required to be sterile as the health risks to the patient were considered very low.25 At the time of LivaNova’s application process, cleaning and disinfection protocols were not required to be submitted to gain FDA approval. Instead, the FDA relied essentially on an honor system — LivaNova needed to have validated disinfection data within their own files, but did not have to provide the data to the FDA in their premarket submission.26 Thus, the cleaning www.FloridaJusticeAssociation.org | May/June 2018 | 35

MASSTORTS

procedures were not independently verified nor were they subject to scrutiny of the FDA until well after fatal outbreaks of NTM infections were linked to the 3T system. In June 2016, the FDA convened the Circulatory System Devices Panel of the Medical Devices Advisory Committee to discuss and make recommendations on the effectiveness of cleaning and disinfection methods for heater-cooler devices, as well as the type of premarket data and information needed to demonstrate validation of disinfection of HCDs in support of labeling claims.27 During the industry presentation, LivaNova described the mechanism in which NTM is cultivated, aerosolized, and emitted from the 3T cardiac Heater Cooler.

The water tanks within the 3T cardiac Heater Cooler, and all HCDs on the market in the U.S., contain design aspects which agitate the water and create bubbles.29 The medical community has known since at least 2002 that NTM, including M. chimaera, are capable of being disbursed via aerosolization.30 Importantly, NTMs are hydrophobic, meaning that they are attracted to any bubbles formed within the water tanks of HCDs. As more bubbles are created, the risk of aerosolized NTM increases as well.31 Furthermore, the HCDs are designed to generally operate at a temperature range spanning 32 to 107 degrees Fahrenheit, a temperature range that is ideal for NTM growth and proliferation.32 The 3T cardiac Heater Cooler is not a sealed system. NTM is able to escape through the housing of the device as well as through features that were intended to limit contamination of the operating room. One such safety feature is the overflow bottle. This bottle is designed to trap any excess water that is drained back into the tank, such as water within the hosing connecting the 3T Heater Cooler to a heart lung machine, minimizing the potential spills and contamination of the operating room.33 However, when the overflow bottle is empty, it allows air from the inside of the 3T Heater Cooler to flow directly into the operating room.34 Additionally, the water tank within the 3T cardiac Heater Cooler is designed to be only partially filled, which allows for a pocket of stagnant air to form at the top of the water tank. Because the disinfectants described in LivaNova instructions for use (IFU)

36 | May/June 2018 | www.FloridaJusticeAssociation.org

are added only to the water itself, none of the disinfectants reach the entrapped air at the top of the water tank. This air pocket provides a safe harbor for bacteria to grow and thrive. Testing has demonstrated that the NTM located at the top of the interior of the 3T water tank is capable of, and in fact does, move from the tank into the internal housing directly above the tanks.35 The problem is then further compounded by the internal cooling fans used by the 3T cardiac Heater Cooler. Situated directly above the water tank is a fan used to cool internal pumps.36 When the system is on, the cooling fan blows the aerosolized NTM of the housing of the 3T cardiac Heater Cooler, as well as through the overflow bottle, directly into the operating room.37

of a 3T-related NTM outbreak in 2014, LivaNova conducted testing and was able to immediately verify the water tanks within its device contained NTM, despite its own strict adherence to the disinfection protocol detailed in the IFUs. Further, LivaNova was able to confirm the mechanism by which patients were being exposed. Water within the 3T cardiac Heater Cooler is agitated, which causes air bubbles to form. NTM present within the water tank is attracted to these bubbles, which then pop and create aerosols that are expelled by system fans in sufficient quantities to be measured in the air surrounding the 3T system.42

During its presentation to the Advisory Committee, LivaNova claimed to have first received notice of the problem in 2014 following reports of an outbreak associated with the 3T system from a hospital in Zurich.38 The report was allegedly met with skepticism and disbelief by company management.39 However, the mechanism for aerosolization of mycobacterium has been understood and recognized as a major pathway for human infections since at least 1980.40 Furthermore, contaminated water from heater-cooler devices has been recognized by the medical community as a potential source of patient infections since 2002.41 It comes as no surprise that, after receiving reports

www.FloridaJusticeAssociation.org | May/June 2018 | 37

MASSTORTS

In response to this “newly identified risk,” LivaNova sent letters to its customers in July 2014 advising them of the risk and “to remind them about the importance of performing cleaning and disinfection of the water circuit of the device according to [the] IFU.”43 In June 2015, a follow up letter was sent to customers reiterating that they should follow the disinfection procedures detailed in the owner’s manual.44 Perhaps intentionally, this letter failed to inform customers of key information uncovered by researchers at University Hospital Zurich and known to LivaNova.

in annual sales, LivaNova executives continue to tell shareholders that they recognize “no liability with respect to any lawsuits related to the 3T cardiac Heater Cooler.”47 However, that message is expected to change as the first cases go to trial this fall.

TROY RAFFERTY

is a partner in the Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A. firm in Pensacola. He litigates mass tort, pharmaceutical and major personal injury cases throughout the country. He has been appointed to handle some of the nation’s largest pharmaceutical and mass tort cases.

Conclusion

The scope of deadly infections caused by LivaNova’s lax manufacturing standards has yet to be fully understood. As LivaNova’s sales have risen, so too have the number of diagnosed invasive M. chimaera infections attributed to the 3T cardiac Heater Cooler.4546 To date, LivaNova continues to deny the clear link between the 3T cardiac Heater Cooler manufacturing plant and the invasive M. chimaera found in the necrotic tissue of patients exposed to their device despite a DNA match. In an effort to protect stock price and a product worth more than $100 million

Head et al, Coronary artery bypass grafting: Part 1 – the evolution over the first 50 years. Eur Heart J, October 2013. 2 Id. 3 Medical Devices Advisory Committee, Circulatory Devices Panel June 2, 2016 Transcript at 19, available at www.fda. gov/downloads/AdvisoryCommittees/ CommitteesMeetingMaterials/ MedicalDevices/ MedicalDevicesAdvisoryCommittee/ CirculatorySystemDevicesPanel/ UCM509590.pdf 4 FDA Executive Summary: Nontuberculous Mycobacterium (NTM) Infections Associated with Heater-Cooler Devices (HCD) during Cardiothoracic Surgery, at 20, available at www.fda. gov/downloads/AdvisoryCommittees/ CommitteesMeetingMaterials/ MedicalDevices/ MedicalDevicesAdvisoryCommittee/ CirculatorySystemDevicesPanel/ UCM503716.pdf 5 Hugo Sax et al., Prolonged Outbreak of Mycobacterium chimaera Infection After Open-Chest Heart Surgery, 61(1) Clinical Infectious Diseases 68 (2015). 6 Circulatory Devices Panel June 2, 2016 Transcript, at 165. 7 Hugo Sax et al., Prolonged Outbreak 1

of Mycobacterium chimaera Infection After Open-Chest Heart Surgery, 61(1) Clinical Infectious Diseases 69 (2015). 8 Id. 9 Circulatory Devices Panel June 2, 2016 Transcript, at 165-166. 10 Id. 11 Id. 12 Hugo Sax et al., Prolonged Outbreak of Mycobacterium chimaera Infection After Open-Chest Heart Surgery, 61(1) Clinical Infectious Diseases 72 (2015). 13 See Id. 14 J Ingen et al., Global outbreak of severe Mycobacterium chimaera disease after cardiac surgery: a molecular epidemiological study, 17(10) Lancet Infect Dis. 1033-1041 (2017). 15 Id. 16 LivaNova 2017 Form 10-K Annual Report at 94. 17 LivaNova Medical Device Correction Letter – April 20, 2018. Available at www.livanova.sorin.com/products/ cardiac-surgery/perfusion/hlm/3t 18 Rami Sommerstein et al., Global Health Estimate of Invasive Mycobacterium chimaera Infections Associated with Heater-Cooler Devices in Cardiac Surgery. 24(3): Emerging Infectious Diseases (2018). 19 Id.

38 | May/June 2018 | www.FloridaJusticeAssociation.org

WESLEY BOWDEN

is a partner at Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A. His practice focuses on litigating mass tort, pharmaceutical, and medical device cases on a nationwide basis.

Id. Traditional 510(k) Premarket Notification, 501(k)Summary, Sorin Group Deutschland GmbH, Stockert Heater-Cooler System 3T, available at www.accessdata.fda.gov/cdrh_docs/pdf5/ K052601.pdf 22 Id. 23 Circulatory Devices Panel June 2, 2016 Transcript, at 19. 24 Id. at 19-20. 25 Id. 26 Id. at 20. 27 Id. at 7. 28 Taken from LivaNova’s presentation to the Circulatory Devices Panel on June 2, 2016, publicly available at www.fda.gov/ downloads/Advisory Committees/CommitteesMeeting Materials/MedicalDevices/Medical DevicesAdvisoryCommittee/ CirculatorySystemDevicesPanel/ UCM505802.pdf 29 Id. at 20-21. 30 HH Weitkemper et al., The heatercooler unit—a conceivable source of infection. 34(4): J. Estra Corpor Technol. 1033-41(2002). 31 Medical Devices Advisory Committee June 2, 2016 Transcript, at 23. 32 Id. at 24. 33 Id. at 74.

Id. Id. at 94. 36 Id. 37 Id. 38 Id. at 67. 39 Id. at 68. 40 Wendt et al., Epidemiology of Infection by Nonturberculous Mycobacteria III. Isolation of Potentially Pathogenic Mycobacteria from Aerosols, 122(2) Am Rev Respir Dir. (1980). 41 See HH Weitkemper et al., The heatercooler unit—a conceivable source of infection. 34(4): J. Estra Corpor Technol. 1033-41(2002). 42 Circulatory Devices Panel June 2, 2016 Transcript, at 68-69. 43 Id. 44 Id., also available at www.livanova.sorin. com/products/cardiac-surgery/perfusion/ hlm/3t 45 LivaNova 2017 Form 10-K Annual Report at 44. 46 Rami Sommerstein et al., Global Health Estimate of Invasive Mycobacterium chimaera Infections Associated with Heater-Cooler Devices in Cardiac Surgery. Emerging Infectious Diseases 2018; Vol 24:3. 47 LivaNova 2017 Form 10-K Annual Report at 87.

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An attorney should not discuss non-recourse advance funding with a client unless it is done in compliance with Florida Bar Ethics Opinion 00-3. The Florida Bar discourages the use of non-recourse advance funding companies. An attorney may provide a client with information about companies that offer non-recourse advance funding if it is in the client's interest and done in compliance with Florida Bar Ethics Opinion 00-3. The individual lawyer is responsible for ensuring that his or her conduct is in compliance with the Rules Regulating The Florida Bar and comports with Florida Ethics Opinion 00-03. The Florida Justice Association recommends that attorneys who do provide names of non-recourse advance funding companies to clients should provide only names of companies that are in conformity with the guidelines contained in the agreement between the New York Attorney General and certain companies dated Feb. 17, 2005. The Florida Justice Association makes no determination or representation as to whether any particular non-recourse advance funding company is in conformity with Florida Bar rules or opinions, or any other guidelines.

MEDICALMALPRACTICE

MEDICAL MALPRACTICE:

RECENT DECISIONS

by Scott R. McMillen & Allison C. McMillen

Florida Supreme Court holds claim against residential treatment facility school does not sound in medical malpractice. The National Deaf Academy, LLC v. Townes, So.3d , 43 FLW S193, 2018 WL 1959642 (Fla. 4-26-2018). This case involves a minor student at a school and residential treatment facility for deaf and autistic students with psychological or behavioral disorders. A school psychiatrist made a care plan for her that included physical restraint methods called Therapeutic Aggression Control Techniques, or TACT. The care plan required the senior employee present who was trained in TACT to decide if it was appropriate to use at any given time. TACT-trained employees at the school included non-health care providers like signlanguage interpreters. One day when school employees used TACT methods on her, the student suffered a leg injury that eventually led to an above-knee amputation. The student’s aunt sued the school on her behalf. The trial court granted the defendant’s motion for summary judgment, finding that the negligence claims sounded in medical malpractice. As we reported in the March 2016 Journal, the Fifth District in Townes v. The National Deaf Academy, LLC, 197 So.3d 1130 (Fla. 5th DCA 2016) reversed the summary judgment. The defendant petitioned the Florida Supreme Court for review based on conflict with the First District’s opinion in Shands Teaching Hospital & Clinics, Inc. v. Estate of Lawson, 175 So.3d 327 (Fla. 1st DCA 2015). The Supreme Court granted review, disapproving Shands and affirming the Fifth District’s decision below. The Court held that, “for a claim to sound in medical malpractice, the act from which the claim arises must be directly related to medical care or services, which require the use of professional judgment or skill.” This inquiry, explained the Court, involves determining whether the 40 | May/June 2018 | www.FloridaJusticeAssociation.org

plaintiff must show a breach of the prevailing professional standard of care in order to prove her claim. In this case, the Court noted, non-medical personnel could both make the decision to use a TACT hold and employ the hold itself, so there would be no need to use medical expert testimony about the professional standard of care. Therefore, the claim sounded in ordinary negligence, and the trial court erred in granting summary judgment. Florida Supreme Court quashes Fourth District decision which allowed subsequent treating physician’s testimony that he would not have acted differently even if defendants had not been negligent. Cantore v. West Boca Medical Center, Inc., So.3d , 43 FLW S188, 2018 WL 1959479 (Fla. 4-26-2018). A child with a history of successfully treated hydrocephalus was scheduled for another surgery to treat a recurrence. Several weeks before the surgery was to take place, she was taken to the emergency room for a headache and vomiting, and a CT scan confirmed worsening hydrocephalus. The pediatrician in the ER consulted a pediatric neurosurgeon at a nearby children’s hospital and, after some delay, the child was transferred there by helicopter. During the helicopter ride, the child’s brain herniated, and she decompensated quickly. The child underwent emergency surgery as soon as she arrived at the children’s hospital, but suffered severe brain damage. The child’s parents sued both hospitals, alleging that if the child had been transferred sooner, she could have been treated before her brain herniated and caused the severe damage. At trial, the pediatric neurosurgeon testified over the plaintiffs’ objections that even if the child had been transferred sooner, he would have scheduled surgery for the following morning, and she still would have suffered

the herniation. The jury found for the defendants on all counts, and the plaintiffs appealed. The plaintiffs argued that the trial court had erred in admitting the pediatric neurosurgeon’s testimony, because it violated the rule in Saunders v. Dickens, 151 So.3d 434 (Fla. 2014), that “a physician cannot insulate himself or herself from liability for negligence by presenting a subsequent treating physician who testifies that adequate care by the defendant physician would not have altered the subsequent care.” As we reported in the November 2015 issue of the Journal, the Fourth District disagreed, and attempted to distinguish Saunders on its facts. Cantore v. West Boca Medical Center, Inc., 174 So.3d 1114 (Fla. 4th DCA 2015). But the Florida Supreme Court quashed the Fourth District’s decision, holding that the testimony in question was prohibited by Saunders and inadmissible, and the trial court had abused its discretion by allowing it. Finding that the error was not harmless, the Court remanded for a new trial. Justice Polston wrote a concurring opinion, and Justice Canady wrote a dissenting one in which he argued the Court had no jurisdiction because there was no express conflict. Florida Supreme Court quashes Third District decision regarding testimony by multiple doctors in same specialty. Gutierrez v. Vargas, So.3d , 43 FLW S143 (Fla. 3-22-2018). A child’s parents sued her former pediatrician for failing to diagnose and treat her kidney disease in time to prevent kidney failure. At trial, the two main issues of fact in dispute were what specific disease had caused the kidney failure, and whether earlier diagnosis and treatment could have prevented the need for dialysis and a kidney transplant. Before trial, the judge issued an order that each side would be limited to one expert per specialty. At trial, the plaintiffs presented testimony from four different pathologists, over the defendant’s objection. Two of the pathologists had examined the child’s kidney tissue in connection with hospitalizations, and had provided written reports to her treating doctor in connection with her treatment. A third pathologist testified as an expert during the plaintiffs’ case in chief, and a fourth testified as an expert on rebuttal when the original expert was unavailable. The jury awarded the plaintiffs over $3 million, and the defendant moved for a new trial, claiming he had been unfairly prejudiced by the plaintiffs’ use of four pathologists. The trial court denied the motion, but the Third District Court of Appeal reversed in Vargas v. Gutierrez, 176 So.3d 315 (Fla. 3rd DCA 2015), which we reported in the September 2015 issue of the Journal. The Third District agreed with the defendant that the four pathologists called by the plaintiff had all been expert witnesses, while the defendant had been limited to one, causing material prejudice. The Florida Supreme Court granted review on the grounds that the Third District’s opinion expressly and directly conflicted with other district court decisions, including Cantore v. West Boca Medical Center, Inc., 174 So.3d 1114 (Fla. 4th DCA 2015). The Supreme Court quashed the Third District’s opinion below, holding that the trial court did not abuse its discretion in allowing all four pathologists to testify. The Court conducted a lengthy analysis of the differences between treating doctors and expert witnesses, and found that the first two pathologists who testified were clearly treating doctors. The Court found further that none of the pathologists’ testimony was cumulative enough to warrant exclusion, and the rebuttal expert testimony was not improper. Justices Canady and Polston dissented, arguing that the decision below did not expressly and directly conflict with Cantore, so the Court did not have jurisdiction.

Fourth District holds claimants may not recover damages for lost companionship and guidance in addition to $250,000 limits for non-economic damages under arbitration statute. Plantation General Hospital Limited Partnership v. Division of Administrative Hearings, So.3d , 43 FLW D697 (Fla. 4th DCA 4-4-2018). The estate of a woman who died during pregnancy brought a medical malpractice claim on behalf of her surviving husband and child. At the end of presuit, the parties agreed to binding arbitration under §766.207, Florida Statutes. At the arbitration, the parties stipulated that the husband and child would each receive the maximum amount of non-economic damages permitted by statute, which was $250,000. Over the defendants’ objection, the plaintiff presented testimony by an economic expert regarding the dollar value of the companionship and guidance the spouse and child had lost as a result of the death. On appeal, the defendants argued that the arbitration panel had included those damages in their award of economic damages, over and above the non-economic damages of $250,000 to each survivor. It was unclear from the way the economic damages were apportioned whether the arbitration panel had included lost companionship and guidance or not, but if it did so, the Fourth District Court of Appeal held, it was error. Because lost companionship and guidance are noneconomic damages, they were included in the $250,000 each survivor received under the statutory cap. The Fourth District remanded to the arbitration panel to reduce the economic damages award by anything they had included for lost companionship and guidance. Fifth District holds trial court abused discretion in granting new trial after medical malpractice defense verdict. Hashmi-Alikhan v. Staples, So.3d , 43 FLW D685 (Fla. 5th DCA 3-29-2018). A patient was seen in the emergency room with a critically low platelet level, putting him at risk of life-threatening bleeding. The patient was admitted to the hospital, but he suffered a catastrophic brain bleed his first night there, from which he eventually died. His estate sued several doctors and the hospital, alleging the brain bleed could have been prevented if the patient had been properly treated for the low platelet count. After the jury found for the defendants, the trial court granted the plaintiff’s motion for a new trial, ruling that the plaintiff’s experts were “clearly more credible” than the defense experts, because the defense experts gave “more general opinions” and were not as knowledgeable about the case’s “hematological intricacies.” The Fifth District Court of Appeal reversed and held that the trial court abused its discretion in granting a new trial, because the record did not support its conclusions about the parties’ experts.

ALLISON C. MCMILLEN

is proud to be a second-generation plaintiffs’ attorney, working with her father, Scott McMillen, to represent victims of medical malpractice. She is a director at large on the Board of the FJA and the treasurer of the Central Florida Trial Lawyers Association. McMillen is also on the Editorial Board of the Florida Bar Journal and News, and a member of the Order of the Coif, the George C. Young First Central Florida American Inns of Court, and the Central Florida Association for Women Lawyers.

SCOTT R. MCMILLEN

is the founder of McMillen Law Firm, P.A., with a principal office in Orlando. He is a former member of the Florida Bar Board of Governors, a former FJA Board member, and a past president of the Central Florida Trial Lawyers Association, the Orange County Bar Association, and the Legal Aid Society of the Orange County Bar Association. McMillen started his career as a hospital defense attorney, but has been exclusively representing medical malpractice victims throughout Florida and Georgia for over 30 years.

www.FloridaJusticeAssociation.org | May/June 2018 | 41

PRODUCTSLIABILITY

RECOVERY FOR INJURED WORKERS OUTSIDE FLORIDA’S WORKERS’ COMPENSATION SYSTEM by Leslie M. Kroeger, Adam J. Langino, and Diana L. Martin

Introduction

Florida’s Workers’ Compensation Act sets up a self-executing system under which an employee injured in a workplace accident can receive medical care and lost wages without filing a civil lawsuit.1 This system, however, does not provide all the remedies that would be necessary to make an injured worker whole. For instance, noneconomic damages, such as pain and suffering, are not available under Florida’s Workers’ Compensation Act. And, the injured worker is often beholden to the employer’s workers’ compensation carrier when seeking medical treatment, as the carrier may not agree with such treatment or find it causally related to the workplace accident. While the employee can seek relief through the administrative workers’ compensation system, in some cases greater relief can be found outside the system. One such situation is when a product is a cause of the worker’s injury, which provides an avenue for the employee to recover in a civil product liability lawsuit. As access to circuit court may be the only means by which the injured worker can make a full recovery of damages, it is important to be aware of opportunities that will open the courthouse doors to injured workers. For this reason, this article focuses on upcoming trends in product liability lawsuits and practice tips for making successful claims on behalf of injured workers outside the workers’ compensation system.

Trending Workplace Product Claims Saws

There are many different types of power saws, e.g., table, horizontal, miter, all of which are common on many construction sites. Accidents are not uncommon. For instance, researchers estimate over 30,000 table saw injuries alone occur annually.2 From a product liability aspect, table saws have been alleged to be defectively designed for not incorporating 42 | May/June 2018 | www.FloridaJusticeAssociation.org

flesh-detection safety technology, such as that provided by Sawstop, which is a safety system that stops a saw within 5 milliseconds of the blade’s contact with human flesh.3 Horizontal band saws have been alleged to be defectively designed for not incorporating vises that require two hand-controls to operate,4 and for not offering pedestal controls to allow the saws to be operated from a remote, safe position.5 Alternatively, miter saws have been alleged to be defectively designed for not incorporating lock washers, cotter pins, c-clips, or other locking mechanisms to keep the saw arm in place when not in use.6

Ladders

Among workers, approximately 20 percent of fall injuries involve ladders.7 Among construction workers, an estimated 81percent of fall injuries treated in U.S. emergency departments involve a ladder. From a product liability perspective, ladders have been found defective for several reasons. For instance, from a warning or instructions perspective, ladders have been found defective for not holding an as-advertised weight.8 These types of ladders fail for larger men or women, even though their body weight does not exceed any maximum weight requirement. From a manufacturing perspective, ladders have been found defective for having out of specification rivets. The rivets are an integral part of the support structure of a ladder, and even a minimal misplacement can lead to fatigue fracture or failure.9 From a design perspective, ladders have been found to be defective for not including wider, thicker legs or longer gussets, which affect stability.10

Fall Protection

Based on published data from the Bureau of Labor Statistics, 261,930 private industry, state, and local government workers missed one or more days of work in 2014 due to fall injuries and 798 workers

died.11 Many types of products can expose workers to the risk of falling on the jobsite. Mast climbing platforms have become increasingly popular on U.S. construction sites.12 Compared to scaffolding, mast climbers are typically quicker to erect and dismantle; however, they come with their own uniquely dangerous conditions.13 Each time a mast platform is raised or lowered, the platform planking between the mast and the building must be manually removed and replaced, thereby creating a fall hazard.14 Because mast platform workers are not required to wear fall protection, it is not uncommon for those workers to fall through the gap while replacing the planking. From a design perspective, mast climbers have been alleged to be defective for not incorporating an adjustable interlocked hinged plank and cover that can be raised or lowered without being manually removed, thereby eliminating the need for a worker to manually place any planking. In Europe, mast platforms commonly incorporate this type of protection. Aerial lift trucks have been replacing ladders and scaffolding on many job sites due to their mobility and flexibility.15 Many workers are injured or killed on aerial lifts each year.16 The bucket of an aerial lift, in which the worker stands, is typically raised or lowered via a large chain. Aerial lifts have been alleged to be defectively designed for using undersized or inadequate chains, thereby causing the chain to break or fail over time. Without the chain, the bucket can tip, placing the worker at risk of falling. As such, aerial lift trucks have also been alleged to be defective for failing to incorporate failsafe protection to prevent the lift bucket from tipping during a chain failure.17 On worksites, body harnesses with safety cables are a common form of fall protection; however, they too may fail. The Occupational Safety and Health Administration (OSHA) requires the use of fall protection when construction workers are working at heights of 6 feet or greater above a lower level.18 From a product design perspective, safety cables have been alleged to be too weak if they break under foreseeable use.19 And, some cables have been found to not comply with national standards. From a warnings perspective, it has been alleged that cable manufacturers fail to properly instruct users how to safely anchor their cables or fail to inform workers to wear shock absorbers, which can prevent cable damage and therefore minimize the chance of cable failure. Scaffolding is very common on construction sites. An estimated 2.3 million construction workers, or 65 percent of the construction industry, work on scaffolds.20 The U.S. Department of Labor estimates that protecting workers from scaffold-related accidents may prevent some of the 4,500 injuries and over 60 deaths each year.21 Many scaffolding systems use T-shaped bracket support systems, which are welded together. From a manufacturing perspective, T-brackets can fail due to inappropriate welding. A T-bracket failure can cause any scaffolding to collapse. From a design perspective, defects have been alleged if a T-bracket system fails to incorporate redundancies, such as additional welding or bolting to prevent scaffolding collapse in the event of a failure.22

Vehicles and Heavy Machinery

Large trucks are found on almost every construction site. The National Highway Traffic Safety Administration (NHTSA) estimates that about 21,000 heavy truck drivers are injured and 800 are killed each year.23

From a design defect perspective, particularly in roll-over (or tip-over) events, the integrity of the heavy truck’s cab should be examined. If the cab was not designed to withstand the weight of a foreseeable load, then any roof crush may be the result of a defective or improperly tested cabin. In addition, the cabin could be defectively designed for failing to include side-impact airbags or incorporating airbags that failed to deploy. In 2016 alone, NHTSA attributes tire malfunction to contributing to 733 motor vehicle traffic fatalities.24 Tire defects have been reported as the second leading defect (brake problems being first) found in truck accident investigations.25 Tires can fail for many reasons, including improper maintenance, defective design, and defective manufacturing processes. Improper maintenance practices generally will be attributed to the employer, so it’s important to look beyond this obvious angle. If a tire fails, especially if by tread separation, it should be evaluated by a forensic expert to determine if evidence of failure can be found that would link to the tire manufacturing company. Press brake machines are commonly used by workers to bend sheet metal. Data from the Bureau of Census for 1980 show that there are about 151,000 mechanical press operators in the United States.26 Data from the Bureau of Labor Statistics indicate that about 10 percent (2,000 per year) of all reported amputations (20,000 per year) occur among power press operators, including those who operate mechanical power presses.27 From a design defect perspective, newer press brakes may be defectively designed for not incorporating light curtain safety devices. These devices sense photoelectric presences and protect against hands or fingers being crushed. Older press brake machines have been alleged to be defectively designed for not incorporating two handed control activation or appropriate guarding on its foot treadle. Gushanas v. Pitsston Mach. Works, Inc., No. 20148790 (Pa. Ct. Com. Pl. Luzerne Cnty. June 2017).

Tips for Success

As is the key in any product liability claim, early intervention and preservation is critical. Unlike a severe auto accident, in a workplace accident there is not always an investigating officer who will perform an initial investigation, take accident photographs, take witness statements, and preserve the product involved. In many workplace accidents, because liability is not-contested under Florida’s Workers’ Compensation Act, many employers do not recognize the need to preserve the equipment that injured their employee. This is particularly true if the employer relies upon the equipment regularly in his or her business practice. Therefore, for workplace accidents it is imperative to send a preservation letter and request a site inspection as soon as possible. Some severe workplace accidents, such as those resulting in a fatality or the hospitalization of three or more employees, require an investigation by the U.S. Department of Labor via OSHA.28 While OSHA requires evidence to be left untouched, it is still best to send a preservation letter as many employers may not be familiar with OSHA rules and regulations.29 As soon as practicable, send a Freedom of Information Act request for a copy of OSHA’s final investigative report. OSHA will typically look to see what practice and procedures of the employer or employees were a cause for an injury as opposed to a defect with the product itself. www.FloridaJusticeAssociation.org | May/June 2018 | 43

PRODUCTSLIABILITY

Understanding these comparative factors will help you fine tune the allegations of product liability negligence prior to your lawsuit. In addition to securing the physical evidence, it would be wise to speak to the company’s owners or managers as to which outside companies, if any, maintained, repaired or serviced the equipment at issue. Often, heavy machinery repair or service shops do not have sophisticated electronic record keeping, like those of auto-dealers or other companies. Therefore, these records are at risk of destruction, disposal, or misplacement. After these third parties are identified, preservation letters should be sent to them, too. To the extent the workplace accident was witnessed, an investigator should take statements to capture the best possible memory of the incident. Because an employer is not a potential defendant to a product liability claim, there is no rule that prevents an investigator from attempting to capture this type of information. To the extent that a video may exist, a specific preservation request for that video or any pictures should be sent as well.

Conclusion

LESLIE M. KROEGER

is a partner at Cohen Milstein and co-chair of the firm’s Complex Tort Litigation practice group. Kroeger began her career as an assistant public defender and later became an assistant state attorney in Miami-Dade County. She now focuses on complex, high-profile product liability, wrongful death, and managed care abuse litigation in Florida and nationwide. Kroeger will be appointed Florida Justice Association’s president-elect in June 2018; she is also the past chair of FJA’s Women’s Caucus. She served on Florida Bar Association’s Professional Ethics Committee, and is past president of the Martin County Chapter of the Florida Association for Women Lawyers. She is AV-rated by Martindale-Hubbell and is consistently recognized by Best Lawyers, Florida Super Lawyers, and Florida Trend’s Legal Elite. Kroeger is a recipient of the Daily Business Review’s 2018 Distinguished Leader award.

ADAM J. LANGINO

is an associate at Cohen Milstein and a member of the firm’s Complex Tort Litigation practice group. Langino’s practice focuses on catastrophic injury, managed care abuses, and product safety. Prior to Cohen Milstein, he served as an assistant public defender in West Palm Beach and clerked for the Federal Public Defender in Minneapolis. Langino is a member of the Palm Beach County Bar Association, the Florida Justice Association’s Young Lawyer Section, and serves as newsletter chair for the product liability section for the American Association for Justice. He has been consistently recognized by The National Trial Lawyers as one of Florida’s “Top 40 under 40” and a “Top 100 Trial Lawyer,” Florida Super Lawyers “Rising Star,” and Florida Trend's “Up & Comer,” and is Martindale-Hubbell AV rated.

Because Florida’s Workers’ Compensation Act limits the damages available to injured workers, it is important to look for other avenues that may enable an injured worker to recover sufficient damages in order to become whole. Because the Act does not preclude an employee, or his or her family, from seeking restitution from a third party, counsel should determine whether the employee’s injuries were caused by a product and whether a civil product liability action might enable the employee to make a greater recovery than a claim merely under Florida’s Workers’ Compensation Act.

Fla. Stat. §440.11 Chung, Kevin C., and Melissa J. Shauver, “Table Saw Injuries.” Plastic and Reconstructive Surgery, vol. 132, no. 5, 2013, doi:10.1097/prs.0b013e3182a3bfb1. 3 Mai v. Ryobi Techs., No. 140303388 (Pa. Ct. Com. Pl. Phila. Cnty. May 2017). 4 Brubaker v. MidAtlantic Mach., Inc., No. 2015-CV-2394 (Pa. Ct. Com. Pl. Dauphin Cnty. Dec. 2017). 5 Id. 6 Corcoran v. Omga, Inc., No. 6:14-CV06451 (W.D.N.Y. June 2016). 7 Christina M. Socias, DrPH, Cammie K. Chamount Menendez, PhD, James W. Collins, PhD, et. al., “Occupational Ladder Fall Injuries – United States, 2011” MMWR, vol. 63, no. 16, 2014. 1 2

Klingenberg v. Vulcan Ladder USA L.L.C., No. 5:15CV04012 (N.D. Iowa Jan. 2018). 9 Ore v. Tricam Indus., Inc., No. 0:14CV-60269 (S.D. Fla. June 2017). 10 Baugh v. Cuprum S.A. de C.V., 2017 WL 104464 (7th Cir. Jan.2017). 11 “The National Institute for Occupational Safety and Health (NIOSH).” Centers for Disease Control and Prevention, Centers for Disease Control and Prevention, 2 Apr. 2018, www.cdc.gov/niosh/topics/falls/. 12 Pam Susi, MSPH, et. al., “Reaching Higher – Recommendations for the Safe Use of Mast Climbing Work Platforms.” CPWR Work Group on Mast Climbing Work Platforms, December 2010. 13 Id. 14 Id. at 11. 8

44 | May/June 2018 | www.FloridaJusticeAssociation.org

DIANA L. MARTIN

is of counsel at Cohen Milstein, and a member of the firm’s Complex Tort Litigation and Consumer Protection practice groups. Martin’s practice focuses on appellate litigation involving complex product liability, consumer class, mass tort, and managed care litigation. Martin began her career as a clerk for the Honorable Martha C. Warner in Florida’s Fourth District Court of Appeal. She has written numerous legal articles for various publications, including Trial Magazine, The Florida Bar Journal, and the Florida Justice Association Journal. Martin also co-authors Florida Insurance Law and Practice, an annual publication by Thomson/West. Outside of private practice, Martin serves as Audit Committee chair of Families First of Palm Beach County.

OSHA Fact Sheet “Aerial Lifts.” Apr. 2011. 16 Id. 17 Amezcua v. Davey Tree Expert Co., No. RG13694477 (Cal. Super. Ct. Alameda Cnty. June 2017). 18 29 CFR 1926.501 19 Arrants v. Honey well Intl., Inc., No. 2:15-CV-07103 (W.D. Wash. May 2017). 20 “UNITED STATES DEPARTMENT OF LABOR.” Occupational Safety and Health Administration, www.osha.gov/SLTC/scaffolding/construction.html. 21 Id. 22 Sayegh v. Raymond Corp., NO. 7:15CV-00688 (W.D. Ca. Dec. 2016). 15

NHTSA “Heavy Truck Crashworthiness: Injury Mechanisms and Countermeasures to Improve Occupant Safety” May 2015. 24 “Tires.” NHTSA, 28 Feb. 2018, www.nhtsa.gov/equipment/ tires#35291. 25 Z. Bareket, D.F. Blower, C. MacAdam. “Blowout Resistant Tire Study for Commercial Highway Vehicles.” Final Technical Report for Task Order No. 4, UMTRI-2000-28 (August 31, 2000). 26 “Injuries and Amputations Resulting from Work with Mechanical Power Presses.” Centers for Disease Control and Prevention, Centers for Disease Control and Prevention, 6 June 2014, www.cdc.gov/niosh/docs/87-107/ default.html. 27 Id. 28 29 CFR 1960.29(b) 29 Id. 23

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EVIDENCE

RECENT EVIDENCE CASES OF INTEREST by Matt Schultz

NOTE: Recent cases may not be released for publication. Subsequent treater’s “nothing would have been different” testimony offered to break the chain of causation in a medical malpractice case is irrelevant and therefore inadmissible. Plaintiff suffered permanent brain damage due to a brain herniation while being transferred between two hospitals. One of the defendants published to the jury the deposition of the pediatric neurosurgeon who treated plaintiff at the second hospital “as to what he would have done had [plaintiff] arrived at [his hospital] an hour or two earlier.” This defendant’s expert neurosurgeon opined that the treater’s testimony “was consistent with what other neurosurgeons would have done.” In short, the treating physician testified that the course he would have taken had plaintiff arrived earlier would not have altered the outcome — from stable to quickly deteriorating and requiring the same emergency intervention that was in fact performed, saving her life but leaving her brain damaged. This gave defense counsel a basis to argue that causation was not proven, i.e., there could be no cause-in-fact because even if the plaintiff had arrived earlier, the treatment would have been the same. A defense verdict followed and the Fourth DCA affirmed. The Florida Supreme court reversed. The court first noted that to prove the breach of a duty owed in a medical malpractice case, plaintiff must “prove that ‘the care provided by the physician was not that of a reasonably prudent physician’” and causation is established upon “proof that the negligence probably caused the plaintiff’s injury.” It analyzed its earlier decision in Saunders v. Dickens, 151 So.3d 434 (Fla. 2014), which held “that testimony that a subsequent treating physician would not have treated the patient plaintiff differently had the defendant physician acted within the applicable standard of care is irrelevant and inadmissible 46 | May/June 2018 | www.FloridaJusticeAssociation.org

and will not insulate a defendant physician from liability for his or her own negligence.” The Saunders court explained “it is not only the final physician, but rather each treating physician who must act in a reasonably prudent manner;” thus, such testimony “would alter the long-established reasonably prudent physician standard where the specific conduct of an individual doctor in a specific circumstance is evaluated” and would put plaintiff in the untenable position of proving a negative to establish causation—a burden not required under Florida law. The Supreme Court found the two cases “no different.” In the case before it, the treating neurosurgeon “was not asked to explain the standard of professional care …. Nor was he asked his opinion about whether any of the other healthcare providers … failed to meet that standard.” Rather, the court found, “it is clear that the purpose of introducing the challenged portions of [the treater’s] deposition testimony was to break the chain of causation,” that is, “to establish that [plaintiff] still would have suffered permanent brain damage even if the hospitals and their staffs had effectuated a faster transfer….” The court also pointed out the defense expert bolstered the treater by commenting that his testimony was “consistent with what other neurosurgeons would have done.” Justice Polston concurred and expressed concern over the holding, but found jurisdiction and noted there was no argument to recede from Saunders. Justice Canady dissented (Justice Lawson concurring) on jurisdictional grounds because, in his view, Cantore and Saunders do not involve substantially similar controlling facts and because the point of law in Saunders was not the admissibility of the subsequent treater’s testimony (as it was in Cantore), but whether that testimony “could be given conclusive effect regarding the element of causation.” Cantore v. West Boca Med. Ctr., So.3d , 43 FLW S188a, 2018 WL 1959479 (Fla. 4-26-2018). “A treating physician is a fact witness, and testifies to past facts based on personal knowledge. Those facts involve a technical matter about which the jury lacks knowledge, but they are facts nonetheless.” So said the Florida Supreme Court in holding that a trial court did not abuse its discretion by allowing four pathologists to testify at trial—two treaters, one retained expert in plaintiff’s casein-chief, and one in rebuttal. The trial court’s pretrial order allowed each party “one (1) retained expert per specialty” and stated “[n]o other expert testimony shall be permitted at trial.” This occasioned a discussion by the court on the nature of witnesses often referred to in the federal system as “hybrid witnesses”— fact witnesses with specialized knowledge such as treating physicians. The court recognized that testimony by treaters “blurs the boundary between fact testimony and expert testimony” because they are testifying to facts but are technically experts because they possess and are applying specialized knowledge. The distinction, said the court, is that a treating physician “testifies to past facts based on personal knowledge …. An expert witness testifies with the benefit of hindsight, whereas a treating physician does not.” In other words, treaters do not acquire their expert knowledge and opinions for purposes of

litigation, but simply by treating the patient. Importantly: “Treating physicians are limited to their medical opinions as they existed at the time they were treating the plaintiff, while an expert may form new opinions in order to help the trier of fact decide the case.” Likewise, “If a treating physician testified to a medical opinion formed for the purpose of litigation rather than the treatment, then the mere fact that the physician once treated the plaintiff would not prevent that doctor from being considered an expert witness.” One becomes a treating physician when he or she participates in the patient’s care regardless of whether they ever met the patient, as was the case with these pathologists. On the issue of cumulativeness, the mere fact that more than one expert of the same specialty testifies merely raises the possibility of cumulative evidence. Trial courts may not exclude confirmatory evidence, such as the evidence in this case, where “[e]ach pathologist based his testimony on a separate review of different slides made from biopsy material collected at different times.” On rebuttal, the question is not merely whether another in the same specialty has testified, but whether the rebuttal testimony is cumulative — a trial court abuses its discretion when “it limits non-cumulative rebuttal that goes to the heart of the principal defense.” A plaintiff is not required to anticipate defense evidence in its case-in-chief. Thus, rebuttal is appropriate to explain or contradict the defense and “when not cumulative” is “appropriate to discredit an opposing party’s defense or to challenge the conclusions of an opposing party’s expert.” Gutierrez v. Vargas, So.3d , 43 FLW S143, 2018 WL 1417553 (Fla. 3-22-2018). Comment: The decision is helpful in clarifying not only the single-specialty rule, but the unique role that treating physicians may play at trial. It is unfortunate, however, that the court repeatedly sought to distinguish treaters as “fact witnesses” because, clearly, they are experts and may provide expert testimony. But they are within a special category of experts that the federal courts have described as “hybrid witnesses,” or as “non-retained” experts (distinguishing them from “retained” experts who are required to give a report pursuant to Fed. R. Civ. P. 26(a)(2)(B)). Federal courts use these descriptors first because these are indeed “expert” witnesses or there would be no quandary to begin with; but, also because treating physicians are not the only “hybrid witnesses” who testify. Consider the law enforcement officer reconstructing an accident or the engineer in defendant’s employ who designed and tested a defective product. Using a descriptor like “hybrid witness” or “non-retained expert” acknowledges the witness’ expert status (which carries unique evidentiary burdens and obligations specific to expert witnesses) while allowing courts to harmonize treatment of such experts across varying specialties. Forfeiture by wrongdoing. It doesn’t come up often, but when it does this case should be in your trial notebook. Section 90.802(f ) provides a hearsay exception for unavailable witnesses where the statement is “offered against a party who wrongfully caused, or acquiesced in wrongfully causing, the declarant’s unavailability as a

witness, and did so intending that result.” Despite numerous communications indicating defendant’s intention to harm, or at least to neutralize, a witness, the Fourth DCA held the state had not met its burden to prove the exception, overruling the trial court’s finding that defendant had “acquiesced in preventing the Victim from testifying by threats and chicanery.” The forfeiture-by-wrongdoing exception, codified in 2012 and adopted by the Supreme Court in 2014, “is a codification of the common law rule that one who wrongfully procures the absence of a witness from court cannot complain of the admission of the hearsay statement of the witness.” The exception applies only if the party against whom the statement is offered “engaged in conduct designed to prevent the witness from testifying.” Although not stated outright in the opinion, this means, in essence, that the proponent of the evidence must show mens rea. In the instant case, the state failed to prove that bribes and threats against the victim were at defendant’s insistence or that he acquiesced to them. Even defendant’s suggestion that his cohorts “send[] the Victim to the hospital” were insufficient because they evidenced no intent to do so for the purpose of causing the victim’s unavailability as a witness.” Joseph v. State, So.3d , 43 FLW D921b, 2018 WL 1940462 (Fla. 4th DCA 4-25-2018). Proof of mailing a document gives rise to a rebuttable presumption it was received. “In addition to admitting the [letters] into evidence, there must also be competent, substantial evidence that the [letters] were actually sent … ” In this case, testimony on routine business practices coupled with admission of the letters into evidence constituted competent, substantial evidence of mailing. PNC Bank Nat’l Ass’n v. Roberts, So.3d , 43 FLW D944e, 2018 WL 1972658 (Fla. 5th DCA 4-27-2018). Note: The case also held, as a matter of first impression, that affirmative defenses may be waived through interrogatory responses: “[W]hile there is no Florida case law on waiver of defenses through interrogatory responses, other states that have addressed the issue have found that interrogatory responses made under oath are binding and can waive a defense...We see no reason to hold differently here.” Defenses also may be waived by failing to list them in the pretrial order “or through a statement to the jury during closing arguments.” Evidence of decedent’s “aspirations and goals” is relevant to a vocational expert’s calculation of lost support based on decedent’s likely “occupational trajectory” and evidence of decedent’s intentions is admissible under the state-of-mind exception to the hearsay rule. Medical malpractice arbitrators awarded decedent’s children loss of future support based on evidence of decedent’s “intentions with respect to her future occupation,” which was admitted pursuant to the state-of-mind exception to the hearsay rule. (§90.803(3)(a)1, Fla. Stat.) The Fourth DCA affirmed, holding it appropriate to offer decedent’s statements “to prove her intent and plan, which [statements] were relevant to ascertaining her career progression for the purposes of lost support, not to prove the truth of the matter.” Plantation Gen. Hosp. Ltd. Partnership v. DOAH, So.3d , 43 FLW D697, 2018 WL 1616872 (Fla. 4th DCA 4-4-2018). www.FloridaJusticeAssociation.org | May/June 2018 | 47

EVIDENCE

Comment: The hearsay exception applies only when the declarant’s state of mind “is an issue in the action.” It is not enough that the state of mind be relevant to some issue; it must itself be an issue. One may question whether decedent’s state of mind was itself an issue here. Ehrhardt gives examples of an action to establish domicile — where residency and intent to remain are issues — and an action to set aside a gift — where donative intent must be determined. The court here cited a Tennessee case for the proposition that “a student’s career plans are relevant in determining his or her lost earning capacity”; however, in that case the student herself presented the testimony, so there was no hearsay issue. Rather, the issue was whether such testimony is speculative. However, the court cited to a Third Circuit opinion directly supporting its rationale: “It is too well settled to require discussion that a declaration of a state of mind or intention is admissible to prove that the declarant actually had such intention. As to the inferences which the jury may draw from that fact, in the present case it would be wrong to treat the evidence as though it were offered as proof that Blackburn, had he lived, would have gone into the brokering business, though we think the ruling in Mutual Life Insurance Co of New York v. Hillmon is broad enough to sustain its admission for that purpose.” Blackburn v. Aetna Freight Lines, Inc., 368 F.2d 345 (3rd Cir. 1966) (citation omitted). It is not clear whether the applicable law in Blackburn limited state-of-mind declarations to situations in which the declarant’s state of mind was an issue in the case. The Plantation decision also says the statements were “offered to prove her intent and plan” and “not to prove the truth of the matter.” If not offered to prove the truth of the matter then there is no need to resort to an exception. But the truth the statements intended to prove was that, in fact, she planned a particular career path, from which inferences might be drawn regarding her earning potential. Note: The court reversed an award of economic damages based on expert testimony regarding lost “household services,” which it held was an attempt to characterize non-economic damages (loss of companionship, which is subject to a statutory cap) as economic losses: “[T]he loss of parental companionship and guidance has always been treated as a non-economic element of damage … The loss of consortium of a spouse cannot be equated, as the economics expert sought to do in this case, with a paid companion of a nursing home or assisted living patient. To do so denigrates the marital relationship … ” Fourth DCA clarifies the best evidence rule in foreclosure cases — copies of loan modifications satisfy the rule. The court wrote to clarify its earlier decision in Rattigan v. Central Mortgage Co., 199 So.3d 966 (Fla. 4th DCA 2016), which stated that the bank in that case violated the best evidence rule by failing to introduce the loan modification at trial, “either the original or a duplicate with an explanation as to why the original note was unavailable.” The current opinion includes a good discussion of the rule as it applies in foreclosure cases. The best evidence rule requires admission of original negotiable instruments, e.g., a promissory note (§90.953(1). This is because the negotiable instrument is itself “the source of the obligation,” i.e., it is what establishes the right to bring a cause of action. If it is surrendered to the court file 48 | May/June 2018 | www.FloridaJusticeAssociation.org

(and thus removed from the stream of commerce so that no one else can enforce it a second time), then the trial judge may take judicial notice of it even if it is not admitted into evidence. Modifications of notes, on the other hand, although they are “as much a part of the parties’ agreement [i.e., its terms] as the original note” are not negotiable instruments. A properly authenticated copy is thus admissible and satisfactory. Clarifying Rattigan, the court observed that there need be no explanation why the original was unavailable: “No explanation as to why the original was unavailable is required.” In Rattigan, neither a copy nor the original was introduced into evidence, so its holding is not called into question by this decision — only its dictum that admission of a copy must be accompanied by an explanation why the original is unavailable. Liukkonen v. Bayview Loan Servicing LLC, So.3d , 43 FLW D663, 2018 WL 1517240 (Fla. 4th DCA 3-28-2018). Promissory notes, mortgages, and modifications are “verbal acts” that are not barred by the hearsay rule. “The modification agreement, like the note and original mortgage, was a verbal act.” Such documents are admissible for their ‘independent legal significance’ of establishing a contractual relationship between the parties, regardless of the truth of assertions in the document.” Citigroup Mortg. Loan Trust v. Scialabba, 238 So.3d 317 (Fla. 4th DCA 2018) (quoting Deutsche Bank Nat’l Trust Co. v. Alaqua Prop., 190 So.3d 662 (Fla. 5th DCA 2016)). To prove diminished value in an action for breach of warranty, plaintiffs must prove (1) the value, at the time of purchase, of the product they would have received had it been as warranted and (2) the value, at the time of purchase, of the product they actually received. The diminished value damages would be the difference between the two (with potential entitlement to additional incidental or consequential damages). In this case, they proved only the price they paid for the vehicle, i.e., the second element. They presented evidence that they could not trade the car in for another of the same make and model; but this proved only that the value had diminished, not the amount by which it had diminished. Absent such proof, the jury was left only with speculation and guesswork, which will not support an award of damages. The court noted there is no requirement for expert testimony “or any particular type of evidence, for that matter;” only such evidence as would permit the jury the degree of certainty necessary to sustain its verdict. Kia Motors Am. v. Doughty, So.3d , 43 FLW D595, 2018 WL 1309050 (Fla. 2nd DCA 3-14-2018). Comment: It was thoughtful of the court to point out that expert testimony is not required, lest someone infer such a requirement from the facts of the case and its outcome. That said, having an expert certainly seems the safest bet. Property owner’s web search to establish the value of stolen property is barred by the hearsay rule. In a delinquency proceeding, a homeowner testified to the value of property stolen from his home based on his online search of “eBay or something” to determine the aftermarket value of the items. “Such testimony was improperly admitted hearsay” because “hearsay evidence from websites resembles

a witness’s reliance on hearsay evidence from a catalog or contacts with non-witnesses.” D.J.S. v. State, So.3d , 43 FLW D592, 2018 WL 1309048 (Fla. 2nd DCA 3-14-2018) (quoting Phillips v. State, 141 So.3d 702 (Fla. 4th DCA 2014)). Plaintiff’s failure to pay his debts is irrelevant and inadmissible character evidence in a sinkhole proceeding. Defense counsel in a property insurance case injected into his opening the fact that plaintiff stopped paying his mortgage “around the same time [plaintiff] reported this claim to Citizens … ” Plaintiff then was cross-examined on the issue. The company defended itself on appeal claiming it reflected a “motive” or “personal interest” in filing the insurance claim and that it “calls his integrity into question.” As to the first point, the Second DCA pointed out that a plaintiff’s financial interest in the outcome of a lawsuit needs no proving and “[i]t is generally established that the courts will not inquire into motives which actuate a plaintiff in bringing suit.” Were it otherwise, this “plainly” constituted inadmissible character evidence. Daskalopoulos v. Citizens Prop. Ins. Corp., So.3d , 43 FLW D563, 2018 WL 1219697, (Fla. 2nd DCA 3-9-2018) (quoting Valdez v. State ex rel. Farrior, 142 Fla. 123, 194 So. 388 (Fla. 1940)). Authentication of sound recordings “should be made by the technician who operated the recording device or a person with knowledge of the conversation that was recorded.” There is no “specific list of requirements for authentication.” The issue is not whether the evidence is authentic, “but whether evidence exists from which the jury could reasonably conclude that it is authentic.” A sound recording may be authenticated by one with “prior special familiarity” with the recorded person’s voice or by someone with “special training in voice recognition.” Where, as in this case, the recorded call is from a jail, the records custodian may authenticate the recording even if he is not familiar with the caller’s voice. Asencio v. State, So.3d , 43 FLW D708, 2018 WL 1617694 (Fla. 4th DCA 4-4-2018).

Trial Notebook – A Quick Reference for Trial: Hearsay

Common Exceptions Regardless of Availability (803): Absence of Entry in Records of Regularly Conducted Business Activity (803(7))

and in such a manner that the fact would have been recorded if it occurred.” Ehrhardt, Florida Evidence §803.7 at 1109 (2017 ed.) This requires that a witness be called. Id. • “The motive of the entrant and manner of keeping the records” may demonstrate lack of trustworthiness. Ehrhardt, Florida Evidence §803.7 at 1110 (2017 ed.). • Fed. R. Evid. §803(7) is similar but expressly requires the following: the evidence is intended to prove the matter did not occur or exist; a record was regularly kept of that kind; the opponent does not show a lack of trustworthiness.

Related Caselaw

“If the recorder’s motive is not to be correct but rather is to prepare for litigation, the report is inadmissible” as untrustworthy. Garcia v. State, 564 So.2d 124 (Fla. 1990) (quoting 6C Fla. Stat. Ann. §90.803 at 273 (West 1979) (Law Revision Council Note – 1976)). The absence of any indication in medical records that vascular physician checked for pulses is admissible and supports an expert’s opinion that treatment fell below the standard of care. Hughes v. Slomka, 807 So.2d 98 (Fla. 2nd DCA 2002). Witnesses may not testify concerning the contents of records that have not been admitted in evidence. Thompson v. State, 705 So.2d 1046 (Fla. 4th DCA 1998). However, a witness may testify that according to its business practices, records would have been destroyed after a certain date (in this instance, to explain why a defendant who claimed to have a prescription for a drug in her possession could not corroborate her assertion with pharmacy records). This does not implicate the hearsay exception. Neiner v. State, 875 So.2d 699 (Fla. 4th DCA 2004). Ledger sheets that would have been admissible in embezzlement case to show certain sums were not received from customers were held inadmissible for “failure to introduce testimony laying the proper foundation.” Rae v. State, 638 So.2d 597 (Fla. 4th DCA 1994). See also Quick v. State, 450 So.2d 880 (Fla. 4th DCA 1984) (records excluded because “there was no testimony of the records custodian or other qualified person identifying the records...and stating they were kept in the regular order of business”).

(7) ABSENCE OF ENTRY IN RECORDS OF REGULARLY CONDUCTED ACTIVITY— Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, of a regularly conducted activity to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances show lack of trustworthiness. • To admit evidence under this section “it must be shown that the records were kept in accordance with section 90.803(6)

MATT SCHULTZ

is a shareholder at Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A. in Pensacola. A former federal law clerk and research assistant to Charles Ehrhardt, he received his J.D. with highest honors from Florida State University in 2002, where he served as senior articles editor of the FSU Law Review. He focuses on trial work with a current emphasis on the Engle progeny tobacco litigation.

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Supreme Court Cures Third District’s Mistreatment of Treating Physicians Under “One Expert Per Specialty Rule” by Roy D. Wasson Almost three years ago, this column addressed what I characterized as the Third District Court of Appeal’s “mistreatment” of treating physicians by precluding testimony by treating physicians in a given specialty under the “one expert per specialty” rule in Vargas v. Gutierrez, 176 So.3d 315 (Fla. 3rd DCA 2015). In Gutierrez v. Vargas, No. SC151924; 2018 Fla. LEXIS 721; 43 FLW S143; 2018 WL 1417553 (Fla. 3-29-2018), the Supreme Court of Florida quashed the Third District’s decision which had reversed the trial court’s grant of permission to allow plaintiff to call treating pathology experts in addition to calling a retained expert in pathology.

per specialty” rule and the role of treating physicians who use their expertise to benefit the health of the plaintiff.

In Vargas, the trial court had limited each party to one retained expert per specialty by pretrial order, but had permitted “not one, but four separate pathologists at trial to testify regarding the timing and diagnosis of [plaintiff’s] disease.” Vargas, 176 So.3d at 320. The Supreme Court in Gutierrez corrected the Third District’s mistake in its determination that pathologists were not “treating” physicians because they had not laid hands on the plaintiff, but instead based their opinions upon review of lab reports and records, thereby providing the courts of Florida with a clarified understanding of the interaction between the “one expert

As noted by the Supreme Court in Gutierrez, “[t]estimony given by treating physicians blurs the boundary between fact testimony and expert testimony because both treating physicians and retained expert medical witnesses possess ‘scientific, technical, or other specialized knowledge’ which provides a basis for their testimony.” §90.702, Fla. Stat. (2017). Because of this specialized knowledge, an expert is permitted to render an otherwise-impermissible opinion about the evidence where such an opinion is helpful to the jury. §90.703, Fla. Stat. (2017) (expert witness may give opinion or inference on ultimate issue). Experts assist the jury by testifying “regard[ing] a technical matter of which the jury [does] not have basic knowledge.” State Farm Mut. Auto. Ins. Co. v. Bowling, 81 So.3d 538, 540 (Fla. 2nd DCA 2012).

Florida Rule of Civil Procedure 1.200(b)(4) permits trial courts to conduct pretrial conferences at which one of the proper matters for determination is “the limitation of the number of expert witnesses.” Judges frequently make such limits using the “one expert per specialty” rule. That rule had long been applied only to retained experts, not to treating doctors, until the Third District’s Vargas decision, corrected by Gutierrez.

The Court in Gutierrez recognized the distinction between treating doctors, who gather the information upon which to form their opinions in the course of treating the plaintiff, and retained experts, who base their opinions upon facts provided to them by counsel. Both kinds of witnesses render opinions. However, when treating physicians are called to the witness stand, that involves “testifying with regard to the exercise of the treating physician’s specialized medical knowledge as applied to other facts of the case, namely the plaintiff’s symptoms.” Gutierrez, supra at *7. The Court stated: A treating physician is a fact witness, and testifies to past facts based on personal knowledge. Those facts involve a technical matter about which the jury lacks basic knowledge, see Bowling, 81 So.3d at 540-41, but they are facts nonetheless. The treating physician’s perception of the plaintiff’s symptoms, 50 | May/June 2018 | www.FloridaJusticeAssociation.org

their diagnostic opinion, and their recommendation of a particular treatment are all facts in issue. An expert witness testifies with the benefit of hindsight, whereas a treating physician does not. See Ryder Truck Rental, Inc. v. Perez, 715 So.2d 289, 290-91 (Fla. 3d DCA 1998) (“Treating physicians do not acquire their ‘expert knowledge for the purpose of litigation but rather simply in the course of attempting to make [their] patient well.’”) (alteration in original) (quoting Frantz v. Golebiewski, 407 So.2d 283, 285 (Fla. 3rd DCA 1981)). Id. at ** 7-8 Another distinction between retained experts and treaters recognized by the Gutierrez court is that “[t]reating physicians are limited to their medical opinions as they existed at the time they were treating the plaintiff, while an expert may form new opinions in order to help the trier of fact decide the case.” Id. at *8 (citing Tetrault v. Fairchild, 799 So.2d 226, 227-28 (Fla. 5th DCA 2001) (ordering a new trial where treating physician gave opinion testimony based on MRIs he had not seen during treatment)). The Florida Supreme Court in Gutierrez corrected the Third District’s mistaken belief that, in order to be characterized as a treating physician not subject to the “one expert per specialty” rule, a doctor had to personally examine and treat the plaintiff. The Court explained: A witness’s ability to testify as a treating physician is predicated on the witness’s having provided the plaintiff with the medical treatment which is the subject of the witness’s testimony. In its decision below, the Third District held that Dr. Pardo should be considered an expert witness rather than a treating physician because he “never saw or administered care to Monica or spoke directly to Dr. Paredes.” Vargas, 176 So.3d at 319. Similarly, the Third District also held Dr. Ruiz should not be considered a treating physician because “[s]imilar to Dr. Pardo, Dr. Ruiz did not ever see or administer care or treatment to Monica, did not communicate with Dr. Paredes, and did not offer an opinion as to the cause, identity, or duration of Monica’s kidney disease.” Id. The Third District further explained that Dr. Pardo and Dr. Ruiz testified during trial to findings they had not made during Monica’s treatment, and “the first time the doctors had rendered these opinions was during their testimony at trial.” Id. at 325. As the term suggests, a physician becomes a “treating physician” when the physician participates in treatment: that is, when the physician applies medical knowledge and judgment to render care or assist with care. The concept of “treatment” in modern medicine is very broad. Patients with complex or long-term medical problems may be treated by teams composed of several physicians, each with a different specialty, all of whom play an essential role in the patient’s care. Pathologists are such specialists. A pathologist studies “all aspects of disease, but with special reference to the essential nature, causes, and development of abnormal conditions, as well as

the structural and functional changes that result from the disease processes.” Stedman’s Medical Dictionary 1442 (28th ed. 2006) (defining “pathology”). Even though a pathologist may never see the patient in person, they may still be liable for medical malpractice committed against that patient. See Hickman v. Emp’rs’ Fire Ins. Co., 311 So.2d 778, 779 (Fla. 4th DCA 1975) (malpractice case against pathologist who, examining patient’s gallbladder, “negligently failed to notice the attached bile duct” which a surgeon had negligently removed along with the gallbladder); see also Variety Children’s Hosp. v. Osle, 292 So.2d 382 (Fla. 3d DCA 1974) (malpractice case against pathologist who negligently commingled tissue samples, resulting in injury). Dr. Pardo and Dr. Ruiz may never have stood at Monica’s hospital bedside, but they assisted with Monica’s care by investigating the pathology of her condition and diagnosing the disease based on those investigations. Furthermore, although the Third District correctly states that Dr. Ruiz “examined Monica’s kidney only after Dr. Paredes had already determined that Monica’s kidneys could not be saved and after Monica’s kidneys were removed,” 176 So.3d at 325, Dr. Ruiz performed his examination for the purpose of identifying and diagnosing the disease from which Monica suffered, in order to ensure she continued to receive the proper treatment and that the disease which caused her native kidneys to fail would not harm her transplanted kidney. The timing of his examination in no way alters the purpose for which it was done. Had Dr. Ruiz negligently failed to diagnose a disease process which later harmed Monica’s transplanted kidney, he himself could have been liable for providing deficient medical care. See Hickman, 311 So.2d at 779 (pathologist negligently examined gallbladder which had already been removed from patient); see also Osle, 292 So.2d at 383 (pathologist negligently mixed samples of cysts after cysts were surgically removed from patient). Therefore, Dr. Pardo and Dr. Ruiz were among Monica’s treating physicians, and their testimony as to the facts of their treatment of Monica did not violate the trial court’s limitation on expert witness testimony. Id. at ** 9-12. The Court in reversing the Third District’s decision did not hold that all opinions held by treating doctors can come in over a “one expert” per specialty rule, citing with approval an earlier decision of the Third District which had recognized that “[i]t is entirely possible that even a treating physician’s testimony could cross the line into expert testimony.” Fittipaldi USA, 905 So.2d at 186 n.1; see also Lion Plumbing Supply, Inc. v. Suarez, 844 So.2d 768, 771 (Fla. 3rd DCA 2003) (noting there is no “black letter rule whereby the testimony offered by a treating practitioner is never considered for purposes of a one-expert-per-side limitation”). The Court explained the sorts of testimony that would be precluded from treating doctors as follows: If a treating physician testified to a medical opinion formed for the purpose of litigation rather than treatment, then the mere www.FloridaJusticeAssociation.org | May/June 2018 | 51

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fact that the physician once treated the plaintiff would not prevent that doctor from being considered an expert witness. See Fairchild, 799 So.2d at 228 (treating physician was expert witness because he “was called by the plaintiff not to testify to his ‘care and treatment’ of plaintiff but to render an opinion as a neuroradiologist based upon his review of MRIs supplied to him in plaintiff’s counsel’s office”). Again, the determination turns on the role played by the witness: if the treating physician gives a medical opinion formed during the course and scope of treatment in fulfillment of their obligation as a physician, then the physician is a fact witness, albeit a highly qualified one. If, however, the treating physician gives an opinion formed based on later review of medical records for the purpose of assisting a jury to evaluate the facts in controversy, the physician acts as an expert witness, and should be considered as such. See Suarez, 844 So.2d at 771 (holding it is improper for a treating physician to “serve[] as a conduit to place specialist testimony before the jury, or offer[] medical opinions based on specialist reports” when testifying as a lay witness rather than an expert). Id. at **12-14. Finally, the Gutierrez court provided some guidance that should help trial lawyers overcome a different objection than the one the Third District had sustained in Vargas: that testimony from several doctors would be cumulative. The Court held that not all cumulative testimony is inadmissible, explaining as follows: “As the rule suggests, cumulativeness alone is not sufficient grounds to exclude evidence: the probative value of the evidence must be ‘substantially outweighed’ by the danger of ‘needless presentation of cumulative evidence.’ §90.403, Fla. Stat. (2017).” Id. at *15. See also Delgardo v. Allstate Ins. Co., 731 So.2d 11, 16 (Fla. 4th DCA 1999) (“The real issue facing the trial court was whether a witness will offer testimony that unnecessarily duplicates the testimony of another witness, in which case the trial court has discretion to limit or exclude it.”). “Courts should exercise their discretion to avoid the needless waste of time through unnecessary presentation of cumulative evidence.” Woodson, 166 So.3d at 233. In Delgardo, the Fourth District Court of Appeal determined the testimony of one orthopedic surgeon was not cumulative to the testimony of a second orthopedic surgeon, both of whom had treated the plaintiff. 731 So.2d at 11-12. The trial court had not entered a pretrial order limiting each side to one expert per specialty. Id. at 14. Instead, the district court reviewed a trial court’s order granting a new trial on the grounds that the testimony of the two surgeons was cumulative and repetitive. Id. In holding that the testimony of the two surgeons was not cumulative, the Fourth District explained: While two proposed witnesses of the same medical specialty might indicate the possibility of cumulative evidence, the real question is whether they will testify to cumulative opinions based on the same facts. Clearly a party is not necessarily guilty of calling duplicative witnesses simply because she calls two witnesses of the same medical specialty. The testimony of the second surgeon in this case establishes rather clearly that his evidence was based in part on the same facts 52 | May/June 2018 | www.FloridaJusticeAssociation.org

and evidence as the first’s but also in part on new facts and evidence. Therefore as a matter of law it was not cumulative. Id. at 16. As noted by the Court in Gutierrez, “[t]his explanation illustrates the difference between cumulative testimony, which courts have discretion to exclude, and relevant confirmatory testimony, which they do not.” Id. at * 17. See also Special v. W. Boca Med. Ctr., 160 So.3d 1251, 1259 (Fla. 2014) (holding that courts have no discretion to exclude relevant evidence that is otherwise admissible). The two treating surgeons in Delgardo both testified to the same medical conclusion, but did so based on separate facts gleaned from their independent examinations of the plaintiff during the course of treatment. 731 So.2d at 12-13. Although the testimony of one surgeon tended to confirm the conclusions of the other, neither surgeon engaged in improper bolstering, nor was one’s testimony cumulative to the other’s. Id. at 16. After nearly three years of “mistreatment” under the Third District’s Vargas decision, treating doctors have again become recognized as being different from retained experts for the “one expert per specialty” rule. However, trial lawyers must carefully consider the limitations on the bases for their opinions in order to avoid mid-trial surprise objections, and work with their witnesses to provide a proper foundation for testimony that maintains the distinction between the two categories of skilled witnesses.

CIVIL PROCEDURE CASE SUMMARIES

Respond to Motions — Don’t Move to Dismiss Motions. Holding that a party may not file a motion to dismiss another party’s motion, the First District in Quillen v. Quillen, No. 1D17-1032; 2018 Fla. App. LEXIS 6176 (Fla. 1st DCA May 3, 2018), noted that the Florida Rules of Civil Procedure and Florida Family Law Rules of Procedure do not permit a party to move to dismiss a motion. That is because a motion to dismiss is a defensive motion that may be directed to a pleading. However, “motions are not pleadings,” so they may not be “dismissed,” only granted or denied. The court held that “[i]t is a tenet of motion practice that — while written responses to motions are not required — when the non-moving party opposes a motion it may file a response or a memorandum of law in opposition to the motion.” Id. at *3. It is error for a court to grant a motion to dismiss another motion, because “it was not an authorized response to the former wife’s motion under the applicable rules.” Id. at **4-5. Raising Statute of Limitations by Motion to Dismiss. Although reversing the trial court’s grant a motion to dismiss based upon the statute of limitations, the Second District Court of Appeal in U.S. Bank, N.A. v. Gonzales, 2D17-3262; 2018 Fla. App. LEXIS 5991; 2018 WL 2028866 (Fla. 2nd DCA May 2, 2018), used the occasion to explain when the statute of limitations may and may not be raised by way of motion to dismiss, rather than answer, as follows: U.S. Bank contends that a motion to dismiss was not the proper vehicle to raise the statute of limitations defense in this case. It is true that “[o]rdinarily, the statute of limitations

is an affirmative defense; however, an affirmative defense appearing on the face of a prior pleading may be asserted as a ground for a motion to dismiss under Florida Rule of Civil Procedure 1.140(b).” Hofer v. Ross, 481 So.2d 939, 940 (Fla. 2nd DCA 1985) (citing Fla. R. Civ. P. 1.110(d)); accord Williams v. City of Jacksonville, 191 So.3d 925, 927-28 (Fla. 1st DCA 2016). Because the applicability of the five-year statute of limitations could be “conclusively established by the facts pleaded in the [foreclosure] complaint,” it was properly “alleged as [a] ground[] for [the] motion to dismiss” in this case. See Levine, Zweibach, Davis, P.A. v. Levine, 734 So.2d 1191, 1195 (Fla. 2nd DCA 1999); compare Gen. Motors Acceptance Corp. v. Thornberry, 629 So.2d 292, 293 (Fla. 3rd DCA 1993) (“Where, as here, the statute of limitations defense appears on the face of the complaint, it is permissible to assert the statute of limitations defense by motion to dismiss.”), with Wishnatzki v. Coffman Constr., Inc., 884 So.2d 282, 285 (Fla. 2nd DCA 2004) (“Considering the complaint on its face, we cannot say as a matter of law that the limitations period commenced to run in 1988 when the Homeowner first experienced ‘problems with the roof.’ Further facts may or may not establish that other problems around the windows or in the walls constituted unrelated defects of which the Homeowner did not have notice until well after 1988.”) Id at *2 & n.2.

Default by the Court Without Notice Improper. In Turan v. Nationstar Mortg., LLC, No. 5D17-215; 2018 Fla. App. LEXIS 5771 (Fla. 5th DCA 4-27-2018), held that it was improper for the trial court to default a defendant where the defendant had failed to timely file an answer to the complaint, following denial of its motion to dismiss, in violation of the court’s order directing the defendant to “file an answer to the complaint within 10 days of the date of this order, the failure of which may result in a judicial default being entered without further notice or hearing.” Id. at *1. The court relied upon Florida Rule of Civil Procedure 1.500(b), which authorizes the entry of a default by the court even though the defendant has filed some paper, “but when a party has filed or served any document in the action, ‘that party must be served with notice of the application for default.’” Therefore, “a trial court that provides that a judicial default will be automatically entered in the absence of a timely answer is non-compliant with the rule.” Id. at *2. Cross-Claim Between Defendants Survives Dismissal of Main Claim. Reversing the trial court’s order dismissing a cross claim for lack of jurisdiction, the Third District held that one defendant’s cross claim survived dismissal of the main action against the defendants. In Fersom Mortg., Inc. v. Moreno, No.3D17-509; 2018 Fla. App. LEXIS 5597 (Fla. 3rd DCA 4-25-2018), the court held that “[b]ecause Fersom’s cross-claim was filed before the voluntary dismissal and the voluntary dismissal did not address

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the action between [defendant] Fersom and the [co-defendant] Homeowner’s, the trial court had subject matter jurisdiction over Fersom’s cross-claim.” Possible Chink in the Armor of the “Claims File Privilege.” Although the court granted certiorari relief and quashed a trial court order requiring an insurer to produce certain items in its claims file in a first-party lawsuit seeking to recover for underpayments of claims on a property damage matter, the Third District Court of Appeal in Homeowner’s Choice Prop. & Cas. Ins. Co. v. Avila, No. 3D17-465; 2018 Fla. App. LEXIS 5593 (Fla. 3rd DCA 4-25-2018) rejected the insurer’s argument that there was a blanket “claims file privilege” and applied ordinary work product doctrine analysis to determine the discoverability of documents within an insurer’s claim file. The court held: We do observe, however, that counsel for both parties in this case referred to a “claims file privilege” during the hearing on Homeowner’s Choice’s motion for protective order. There is no such privilege by that designation in the cited cases or Florida’s Rules of Procedure or Evidence Code. Thus, a specifically-articulated document request for photographs of the alleged property damage” may require (a) production of such photographs, or (b) disclosure on a privilege log with a specifically-articulated basis for protection from discovery, even if those photographs have been filed with other non-discoverable, claim-related documents in the insurer’s “claim file” and coverage remains in dispute. We further observe that the Fourth District adopted a more specific approach to the various types of records that may be in an insurer’s claims file in State Farm Florida Insurance Co. v. Aloni, 101 So.3d 412, 414 (Fla. 4th DCA 2012) (recognizing that an insured may, in a specific case and as to a specific record in an insurer’s claims file, establish the necessity/good cause exception to the work product doctrine as provided by Florida Rule of Civil Procedure 1.280(b)(4).

held that it was proper for the trial court to consider an affidavit filed following the hearing on the summary judgment motion, at which hearing the court already had orally pronounced a ruling granting summary judgment. The court held: Further, to the extent that Valley Tank asserts that the February 2, 2016, affidavit should not have been considered because it was not submitted prior to the original summary judgment hearing, we disagree. Florida Rule of Civil Procedure 1.510(e) specifically contemplates that affidavits supporting or opposing summary judgment may be supplemented by further affidavits. At the time that the February 2, 2016, affidavit was filed, the trial court had not yet entered final judgment. “It is well established that a trial court may reconsider and modify interlocutory orders at any time until final judgment is entered.” LoBello v. State Farm Fla. Ins. Co., 152 So.3d 595, 600 (Fla. 2nd DCA 2014) (quoting Oliver v. Stone, 940 So.2d 526, 529 (Fla. 2d DCA 2006)). Thus, even though the trial court had technically granted summary judgment on count I, it was still free to consider the supplemental affidavit, especially where, as in this case, the supplemental affidavit provided factual support for opinions already made in the original affidavit. See Stephens v. Dichtenmueller, 216 So.2d 448, 450 (Fla. 1968) (explaining that failure to demonstrate competency and vagueness were technical deficiencies in an affidavit that may have been amenable to correction in a supplemental affidavit). Tank Tech, Inc. v. Valley Tank Testing, L.L.C., No. 2D16-2100; 2018 Fla. App. LEXIS 5341 at **14-15 (Fla. 2nd DCA 4-20- 2018). Of course, it is impossible to stay immediately abreast of all the changes in procedural law that affect our practices. All we can do is: Keep Tryin’!

Id. at **9-10. Thus, to the extent that you can identify claims file materials that may be within the “necessity/good cause exception” to the work product doctrine, the decision is useful to demonstrate to the court that there is no blanket “claims file privilege.” Summary Judgment Affidavit Filed After Hearing and Ruling Properly Considered. Fla. R. Civ. P. 1.510(c) requires that “the movant must serve...at least 20 days before the time fixed for the hearing...a copy of any summary judgment evidence upon which the movant relies,” and requires that the “adverse party must identify... at least 5 days prior to the day of the hearing or delivered not later than 5:00 p.m. two business days prior to the day of the hearing, any summary judgment evidence on which the adverse party relies.” However, the Second District Court of Appeal in a recent decision

54 | May/June 2018 | www.FloridaJusticeAssociation.org

See Roy D. Wasson, The Court’s Mistreatment of Treaters: Applicability of Procedural Limitations on Expert Witness Testimony to Treating Physicians, 586 Fla. J. Ass’n. Journal 44 (Sept/Oct 2015). 1

ROY D. WASSON

is board certified in appellate practice with extensive courtroom experience in more than 600 appeals and thousands of trial court cases. He is an EAGLE patron, a former member of the FJA Board of Directors, a fellow of the Academy of Florida Trial Lawyers, a past chairman of the FJA Appellate Practice Section, and a member and past chair of the Amicus Curiae Committee. Wasson is a recipient of the FJA Gold EAGLE, Silver EAGLE and Bronze EAGLE awards, the Legislative Leadership Shoe Leather Award, and the S. Victor Tipton Award for Legal Writing. He has served as chair of The Florida Bar Appellate Court Rules Committee, its Appellate Certification Committee, and its Appellate Practice Section.

CLOSINGARGUMENTS

CURATIVE INSTRUCTIONS FOR IMPROPER CLOSING ARGUMENTS by Philip M. Burlington, Barbara Green, and Christopher V. Carlyle

Experienced trial lawyers know that some closing arguments are like throwing a skunk into the jury box. “[Y]ou can throw a skunk into the jury box and instruct the jurors not to smell it, but it doesn’t do any good.” Walt Disney World Co. v. Blalock, 640 So.2d 1156, 1158 n.1 (Fla. 5th DCA 1994), quoting O’Rear v. Fruehauf Corp., 554 F.2d 1304, 1309 (5th Cir. 1977). That’s true. But, as discussed in our article in the May, 2017 issue of the FJA Journal on preservation of error, requesting a curative instruction is essential to preserve for appeal the issue of an improper closing argument. The Florida Supreme Court expressed its belief in the efficacy of curative instructions, and emphasized the importance of requesting a curative instruction, in Murphy v. Int’l Robotics Sys., Inc., 766 So.2d 1010 (Fla. 2000). The court announced that there is no review on appeal of an argument to which no objection was made at trial unless the argument was “incurable”: Should a complaining party establish that the unobjectedto closing argument being challenged is both improper and harmful, the party must then establish that the argument is incurable. Specifically, a complaining party must establish that even if the trial court had sustained a timely objection to the improper argument and instructed the jury to disregard the improper argument, such curative measures could not have eliminated the probability that the unobjected-to argument resulted in an improper verdict. This concept of “incurability” can be traced back to the Baggett standard that a timely objection to improper closing argument is required before a new trial may be granted based on such argument unless “the improper remarks are of such character that neither rebuke nor retraction may entirely destroy their sinister influence.”... [I]t will be extremely difficult for a complaining party to establish that the unobjected-to argument is incurable. 56 | May/June 2018 | www.FloridaJusticeAssociation.org

Murphy, 766 So. 2d at 1030, citing Baggett v. Davis, 169 So. 372 (Fla. 1936). The Court listed “appeals to racial, ethnic or religious prejudices” as examples of incurable arguments. Id. It is sometimes possible to argue that the improper argument is so egregious that it meets the Murphy standard, that no instruction could cure the prejudice. Counsel should be cautious in choosing that route at trial. Courts have found that a party who objects and moves for mistrial, but refuses a trial court’s offer of a curative instruction, has waived the objection. E.g., Rosario-Paredes v. J.C. Wrecker Serv., 975 So.2d 205 (Fla. 5th DCA 2008). In RosarioParedes, the court held that the plaintiff waived objections to defense counsel’s expressions of personal opinion and arguments about an expert’s frequent work for plaintiff lawyers, even though plaintiff objected and moved for mistrial, because the trial court offered to fashion a curative instruction and the plaintiff declined. The court held that the arguments were isolated, and were not so prejudicial that they deprived the plaintiff of a fair trial.

Content of the Curative Instruction

The Florida Standard Jury Instructions in Civil Cases do not have a standard curative instruction. Instead, there is a Note on Use for FSJI 301.9, “Disregard Stricken Matter.” It states:

No standard instruction is provided. The court should give an instruction that is appropriate to the circumstances. In drafting a curative instruction, the court must decide on a measured response that will do more good than harm, going no further than necessary. The language of curative instructions should be carefully selected so as not to punish a party or attorney. Doing “more good than harm,” and “going no further than necessary,” are good guideposts for curative instructions, as they are for life in general. But the lines are not always so easy to draw. In Gatten v. Zacher, 932 So.2d 543 (Fla. 5th DCA 2006), the court found a straightforward, curative instruction effective. There, the defense said, in opening statement, “She is being challenged, her livelihood is being challenged.” 932 So.2d at 544. The plaintiff objected, stating “Nobody is challenging her livelihood. That’s totally inappropriate.” The trial court responded, “I agree. The jury will disregard that remark. Livelihood is not being challenged.” 932 So.2d at 545. The appellate court found no error, stating that the trial court “issued a contemporaneous curative instruction clearly informing the jury that Dr. Zachar’s livelihood was not being challenged and that the jury was required to disregard defense counsel’s remark.” The court found the instruction sufficient because (1) it was contemporaneous; (2) it told the jury what was improper about the comment; and (3) it instructed the jury to disregard the comment. Other courts have found it sufficient simply to tell the jury that the arguments of counsel are not evidence. Walker v. City of Miami, 337 So.2d 1002, 1004-05 (Fla. 3rd DCA 1976) (arguments about the value of a human life, and the amount typically paid under workers’ compensation and insurance contracts; cured by instruction that “such arguments are not evidence”); Republic Nat’l Life Ins. Co. v. Valdes, 348 So.2d 566 (Fla. 3rd DCA 1977) (plaintiff’s attorney told the jury that insured’s son, who shot the plaintiff’s son, had pled no contest to manslaughter; cured by instruction that statements of counsel must not be accepted as evidence). “[I]t is not enough to simply sustain objections and offer flaccid admonishments such as ‘move along’ or ‘finish up’...” R.J. Reynolds Tobacco Co. v. Robinson, 216 So.3d 674, 684 (Fla. 4th DCA 2017). As the court recognized in Gatten, a proper curative instruction will make the jury understand what it is they are supposed to do with the information they have received. See Barnes v. State, 743 So.2d 1105, 1107 (Fla. 4th DCA 1999) (where prosecutor attacked defense counsel, it was “very important that the precise comment to be stricken be identified in a way that will leave no room for doubt about what the jury must ignore”). Thus, in Carlton v. Johns, 194 So.2d 670 (Fla. 4th DCA 1967), evidence of insurance was admitted to show ownership of defendant’s vehicle, but plaintiff’s attorney used it to argue that the insurer would pay any judgment. In this pre-Murphy case, the defendant did not request a curative instruction at the time the

argument was made. The court held that the trial court’s instruction that “it is proper for you to consider the fact that the Defendant Carlton maintained liability insurance on the Ford automobile, but again this one fact is not conclusive in and by itself ” did not sufficiently impress upon the jury the limited purpose for which the evidence was admitted. 194 So.2d at 673-74. Werneck v. Worrall, 918 So.2d 383 (Fla. 5th DCA 2006) is an example of a “curative” instruction that did more harm than good, resulting in reversal of a substantial verdict. In Werneck, a wrongful death case, the plaintiff’s opening statement described one defendant as “a furniture store with approximately 90 -- 90 stores doing over a billion dollars in sales.” 917 So.2d at 385-86. After denying the defendants’ motion for mistrial, the judge, without consulting counsel about the form of the instruction, told the jury: I did mean to the extent that I can to give a curative instruction. The — the amount of sales that [the defendant] has is of no relevance whatsoever to this litigation. Its sales are very different than profits or assets. It was an inappropriate comment. And so the jurors will completely disregard that comment. 918 So.2d at 387(emphasis in original). During closing argument, the plaintiff urged the jury to use the number of trucks the defendant owned to calculate the amount of compensatory damages the jury should award. 918 So.2d at 386-87. The Fifth DCA found that the instruction, “instead of mitigating any prejudice, might have created the false impression that the only objectionable aspect of the statement was the reference to sales... [The] jury might have been left with the impression that profits and assets were an appropriate issue for their consideration.” 918 So.2d at 387-88. Based on the cumulative effect of the opening statement and closing argument, and the curative instruction, the court held a new trial was required. See generally, Whitenight v. Int’l Patrol & Detective Agcy., 483 So.2d 473 (Fla. 3rd DCA 1986) (judge’s own improper comments that plaintiff’s expert’s opinion was “ridiculous” were not cured by ambiguous instruction that “to me it was ridiculous. It has nothing to do with the case at all. I don’t want you to be influenced by that at all,” where jury could have construed it as instructing them not to be influenced by the plaintiffs’ evidence, as opposed to the improper comments).

Timing

The timing of any curative instruction is important. You should request it immediately and the court should give it promptly. However, notes to the standard instructions suggest that an instruction during the final jury instructions also is appropriate. The FSJI contain standard instructions on collateral sources, FSJI 501.8. The first Note on Use for 501.8 specifies that, “if improper evidence of collateral benefits is inadvertently admitted or if, in the circumstances of the case, the payment of collateral benefits is inferred, instruction 501.8...should be given immediately following the particular element of damage to which the collateral source instruction is properly applicable.” The failure to give this www.FloridaJusticeAssociation.org | May/June 2018 | 57

CLOSINGARGUMENTS

instruction if it is requested is often reversible error. Calloway v. Dania Jai Alai Palace, Inc., 560 So.2d 808 (Fla. 4th DCA 1990). Some opinions have suggested that the instruction should be given immediately, not just in the jurors’ final instructions. In Goodman v. Roma Constr. Co., 537 So.2d 597 (Fla. 3d DCA 1988), the court held that “collateral source references and materials should have been stricken as each was presented and the jury immediately given a curative instruction to disregard it. Because neither collateral source nor appropriate curative instructions were given, prejudicial error is presumed and a new trial on damages is required.” The Supreme Court has said that, when improper information about a defendant’s insurance has been introduced to the jury, it is important that the court “immediately acts to prevent further transgression of the rule and to caution the jury to disregard” the testimony or comment. Carls Markets, Inc. v. Meyer, 69 So.2d 789, 793 (Fla. 1953). See also Simmons v. Baptist Hosp. Of Miami, Inc., 454 So.2d 681, 682 (Fla. 3rd DCA 1984) (“belated” curative instruction, given the next morning, did not cure prejudice); R.J. Reynolds Tobacco Co. v. Calloway, 201 So.3d 753, 763 (Fla. 4th DCA 2016) (“A trial judge should respond to such improper argument in a timely and consistent manner...”). However, in Bew v. Williams, 373 So.2d 446, 448-48 (Fla. 2nd DCA 1979), the court held that, if the plaintiff’s closing argument were construed as a golden rule argument, it was sufficiently cured by the standard instruction at the end of the case that the verdict must be based on the evidence and the law, not on prejudice or sympathy.

Rebuke of Counsel

The Note on Use to Standard Instruction 301.9 cautions that a curative instruction must be “carefully selected so as not to punish a party or attorney.” In some criminal cases involving severe prosecutorial misconduct, however, the courts have been emphatic that the curative instruction must include a rebuke of counsel in the presence of the jury. See, e.g., Barnes v. State, 743 So.2d 1105, 1108 (Fla. 4th DCA 1999) (“The seriousness of the impropriety committed by the prosecutor demanded a rebuke in the presence of the jury, coupled with a more forceful admonition that this kind of argument is highly improper and should not be considered in any way by the jury.”); D’Ambrosio v. State, 736 So.2d 44, 47 n.2 (Fla. 5th DCA 1999) (“Strike the last comment by counsel” insufficient to cure prejudice absent rebuke to counsel). In civil cases, though, courts long have held the opposite, that a rebuke of counsel in the presence of the jury is improper, and can be reversible error. In Medina v. Variety Children’s Hospital, 438 So.2d 138 (Fla. 3rd DCA 1983), the court stated: First, when a trial judge believes that an attorney’s conduct is improper, it is error for him to criticize or take any disciplinary action against the attorney in the presence

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of the jury. Instead, such action should be taken only at a side bar conference out of the hearing of the jury, or upon excusing the jury. 436 So.2d at 138, citing Fla. Motor Lines Corp. v. Barry, 27 So.2d 753 (Fla. 1946). In Vaughn v. Progressive Cas. Ins. Co., 907 So.2d 1248 (Fla. 5th DCA 2005), the court reversed a defense judgment because the trial judge’s repeated rebuke of plaintiff’s counsel in the presence of the jury “placed the trial judge in an adversarial position to [the plaintiff’s] counsel and prevented the trial judge from exercising the fairness and impartiality required to ensure that all parties receive a fair trial.” 907 So.2d at 1253. However, in extreme circumstances, where repeated admonitions out of the jury’s hearing have no effect, and counsel persists in making improper arguments, courts have said that it would be proper, first, to warn counsel that the next rebuke would be in the jury’s presence, and then to do so if the improper arguments persist. R.J. Reynolds Tobacco Co. v. Calloway, 201 So.3d 753, 763-64 (Fla. 4th DCA 2016) (en banc) (after sustaining 14 objections over the course of 33 pages of trial transcript, and giving a few curative instructions, trial court should have taken further action). To avoid being admonished in the jury’s presence, if an attorney believes that the court is incorrectly prohibiting a particular line of argument, counsel should proffer it at sidebar for the record, and explain why it is proper. Counsel should not persist in an argument the trial court has prohibited.

When is an Argument “Incurable”?

Sometimes, even when an instruction is given promptly, and it tells the jurors what is wrong with the argument (or evidence) and tells them to disregard it, the nature and extent of the improper information conveyed to the jury makes any instruction ineffective. In Carls Market, Inc. v. Meyer, 69 So.2d 789 (Fla 1953), the trial court allowed the jury to hear extensive evidence about alleged efforts by the defendant’s insurer’s investigator to discourage witnesses favorable to plaintiff from testifying. The trial court “undertook to have the jury disregard the testimony for one purpose and consider it for another.” He instructed the jury: ‘Now, I permitted the inquiry into the matter of whether or not [the investigator] had attempted to prevent or discourage [the witnesses] from testifying for reasons which have nothing to do with injecting the fact that [the defendant] carries insurance. I believe that you would render exactly the same verdict whether you knew, as you now do, that [the defendant] carries insurances, as you would if you did not know that, and I have no reason to fear that you would violate your oaths as jurors and

have that affect your verdict, but I think it is my duty, nevertheless, to state the matter bluntly and tell you straight out that it is your duty to disregard that fact and not have that influence your verdict in any particular.’ 69 So.2d 794. The Supreme Court held that this instruction was insufficient to cure the error in admitting the evidence. Several decisions in criminal cases have found instructions that simply generally reminded the jury of the burden of proof were insufficient to cure a prosecutor’s argument that improperly shifted the burden of proof. See Cribbs v. State, 111 So.3d 298 (Fla. 1st DCA 2013) (collecting cases). This is most common when the trial court has overruled the objection but then attempts to give a “curative” instruction. See Id. In a civil case, the Florida Supreme Court has noted the futility of a curative instruction given after the court has overruled an objection. Griffith v. Shamrock Village, 94 So.2d 854 (Fla. 1957). In Griffith, the court found a curative instruction inadequate where it was given after court made comments jury could have construed as overruling the plaintiff’s objection to defendant’s argument suggesting perjury and collusion by plaintiff and his witness. The court instructed the jury that it was to try the case only on the evidence presented before it. Yet he had also stated that counsel for defendant was entitled to draw deductions from the evidence and he allowed the improper statements of counsel to stand, undisturbed, before the jury as matters which could be reasonably deducted from the evidence. It appears to us that the comment of the judge regarding deductions to be made from the evidence, following in the sequence it did, aggravated rather than corrected the improper statements. The instruction to try the case only on the evidence, in our opinion, did not cure this error. 94 So.2d at 857. But beware of the Supreme Court’s admonition in Murphy that it is “extremely difficult” to show that an argument was “incurable.”

Baptist Hosp. of Miami, Inc., 454 So.2d 681, 682 (Fla. 3rd DCA 1984) (“the belated curative instruction as to the arson reference, apparently agreed to by both parties and given the day after the offending testimony was elicited, neither cured the sinister nature of the error complained of nor constituted a waiver of the error by the plaintiff.”).

Refusal to Give a Curative Instruction

Error in denying a request for a curative instruction can be harmless, not requiring a new trial, even if the argument was improper, if the argument is not “highly prejudicial and inflammatory.” E.g., Vickers v. Thomas, 237 So.3d 412 (Fla. 5th DCA 2017) (error to deny a request for curative instruction regarding argument attacking plaintiff’s counsel for hiring a particular expert was harmless where the argument was not “highly prejudicial and inflammatory”). Each case will turn on its facts. Compare, Calloway v. Dania Jai Alai Palace, Inc., 560 So.2d 808 (Fla. 4th DCA 1990) (failure to give requested instruction reversible); Goodman v. Roma Constr. Co., 537 So.2d 597 (Fla. 3rd DCA 1988) (“because neither collateral source nor appropriate curative instructions were given, prejudicial error is presumed...”). However, the burden to show on appeal that any error is harmless is now squarely on the beneficiary of the error. Special v. Boca Med. Ctr., 160 So. 3d 1251, 1256-57 (Fla. 2014).

PHILIP M. BURLINGTON

is a partner in the law firm of Burlington & Rockenbach, P.A. He is a Board Certified Appellate Practice attorney, who limits his practice to trial support and appeals in civil cases. Admitted to The Florida Bar in 1979, he received his B.A. degree at Johns Hopkins University in 1975 and his J.D. degree at the University of Florida in 1978. Burlington has served as chairman of the FJA Amicus Curiae Committee and is a member of the FJA Board of Directors. Burlington is the recipient of the 2000 S. Victor Tipton Award for achievement in legal writing.

CHRISTOPHER V. CARLYLE

is board certified in appellate practice and practices exclusively in the area of civil appellate litigation as a shareholder with The Carlyle Appellate Law Firm. Carlyle is chair of the Appellate Practice Section of The Florida Bar, and he has served on the Bar’s Appellate Court Rules Committee since 2009. He graduated in 1993 from the Pepperdine University School of Law, cum laude, where he served as an associate editor of the Pepperdine Law Review. Carlyle, along with his wife Shannon, received the 2012 S. Victor Tipton Award for superior achievement in legal writing.

Whether to Request a Curative Instruction

Some trial lawyers, when deciding whether to request a curative instruction for an egregious argument, fear that they are jeopardizing a potential appeal if the court finds that a curative instruction was adequate. The better practice is to request the instruction. If you don’t, you almost always have waived the issue for appeal. If you do request the instruction, and the trial court gives it, you can still argue, at trial and on appeal, that the argument was so prejudicial and inflammatory that the instruction did not cure it.

BARBARA GREEN

handles appeals and litigation support for plaintiffs in civil cases. Admitted to The Florida Bar in 1978, Green received her B.A. from the University of Florida in 1973 and her J.D. from the University of Miami in 1978. Active in the FJA since 1982, Green serves on and has written numerous briefs for the FJA Amicus Committee and provides the Caselaw Update for the Miami-Dade Justice Association. She is a recipient of the S. Victor Tipton Award for superior achievement in legal writing and the Dade County Trial Lawyers Association. Stalwarts Award for continuous contribution to the cause of justice.

At least one court has held that requesting or agreeing to a curative instruction does not preclude reversal on appeal. See Simmons v. www.FloridaJusticeAssociation.org | May/June 2018 | 59

FJAAPPELLATEPRACTICESECTION

You Won a Verdict!

Congrats! But You Ain’t Done Yet… by Maegen Peek Luka After you’ve won that verdict, all you really want to do is have a cold beverage and then hibernate for a week, right? Well go ahead and have a cold one, but then you need to get yourself back to the office. There’s still work to be done and the clock is ticking! Since you’re probably exhausted from trial, this article is meant to be a rough checklist of the issues every trial lawyer should contemplate immediately after the judge thanks the jury for their service.

1. File a Motion for Entry of Judgment Right Away!

When my firm does trial support, we always have a draft of a judgment ready to go. As in, we print it right there in the courtroom and ask the judge to sign it on the spot. Now, that won’t work if you’ve got set-off issues. But even if you’ve got set off issues (or if there are other reasons you can’t hand the court a judgment right then and there), you will want to file a motion for entry of judgment ASAP. You want to move quickly because every day you wait costs your client money — in the form of post-judgment interest. And that math can be sobering. At the current 5.72 percent annual interest rate, that is $5,720 per year for every $100,000 of judgment. That works out to $15.67 per day on a $100,000 judgment. If opposing counsel jerks you around for three months before judgment is entered, that’s $1,410.30 of interest per $100,000 of judgment. I don’t know about you, but my clients would be mad if somebody took that much money out of their bank account. But, metaphorically speaking, that’s basically what happens when you delay in filing a motion for entry of judgment. Aside from adding more prejudgment interest, another reason to file a motion early is that it rocks the defense on their heels. The verdict was “shock” and the immediate request for judgment is “awe.” In my experience, few things get defense counsel more flustered than filing a motion for entry of judgment at lightning speed. And, it can help “set the mood” if you are looking to mediate post-verdict (if you are organized enough to hammer them that fast after the verdict, they should be terrified of what’s waiting for them on appeal … ). Not only is it fun, but an early motion for entry of judgment can also help apply pressure to the defense to resolve the set offs sooner. That’s because your motion should specifically mention that you are requesting that the Court enter judgment nunc pro tunc to the date of your motion. (I didn’t take Latin either. “Nunc pro tunc” means “now for then” — or 60 | May/June 2018 | www.FloridaJusticeAssociation.org

“retroactive” for the more plebeian of us.) In other words, your motion puts the court and the defense on alert that you have made the request that judgment be entered, it’s not your fault if the defense (or the court) drags its heels in making that happen, and your client should not be punished for the delay by losing interest — so you are asking that the judgment be post-dated to the day you filed your motion for entry of judgment. The best part of that request is that there’s Florida Supreme Court caselaw to support it! Specifically, in Amerace Corp. v. Stallings, 823 So.2d 110, 112 (Fla. 2002), the plaintiff sought to recover interest from the date of the verdict through the date of the judgment. The Florida Supreme Court said that interest accrues from the date of the judgment, not the verdict. Id. at 114. But, important for our purposes, the Court said that “the proper procedure in this case would have been to request that the court enter a judgment promptly after the verdict.” Id. We cite this language to support the idea that the Florida Supreme Court has said that the solution for fixing the interest lost between verdict and judgment is to seek judgment immediately (and ask that, whenever it is entered, the judgment be post-dated to the date of the motion). After all, if circumstances beyond your control make it take four months to get a hearing on your motion, your client should not suffer for that. “But the defense says they are going to file post-trial motions and they argue that the judgment can’t be entered before the court rules on the motions,” you say? Nonsense! Post-trial motions do not have to delay entry of judgment. McNitt v. Osborne, 371 So.2d 696, 697 (Fla. 3rd DCA 1979). In the event those motions are granted, the final judgment can be amended accordingly. If you have a trial court that wants to hear the post-trial motions before entering judgment (and many of them do), that’s fine. When you win those post-trial motions, you just need to point the court back to the fact that you asked for entry of judgment months ago. The delay associated with the post-trial motions should not work to your client’s detriment and that is why you specifically asked that the judgment be dated nunc pro tunc.

2. File a Motion to Add the Carrier to the Judgment

Section 627.4136(4), Florida Statutes says that “[a]t the time a judgment is entered,” an insurance carrier “may be joined as a party defendant for

the purposes of entering final judgment” by the motion of any party. Assuming you’ve obtained the policy and know the coverages before you head into trial, our preferred practice is to file a motion to add the carrier at the same time we file a motion for entry of judgment. The reason why is a matter of timing. If you wait until after a judgment has been entered to seek to add the carrier, you have to really be on your toes. Rule 1.530(g) only gives you 15 days to file a motion to alter or amend your judgment to add the carrier. Miss that deadline and you have forever missed an opportunity to recover insurance coverage directly from the carrier. GEICO Gen. Ins. Co. v. Nocella, 224 So.3d 870, 872 (Fla. 2nd DCA 2017) (“After the fifteen-day period set forth in Rule 1.530(g) elapsed, the judgment became final and GEICO could no longer be added as a party.”). Our thought on filing the motion to add the insurer at the outset is, “why run the risk of missing the deadline?”

3. File a Motion for Attorneys’ Fees and Costs

If you’re lucky, not only did you win your verdict, but you triggered your PFS too. Even if you don’t have a basis for seeking fees, as the prevailing party, §57.041 entitles you to recover your taxable costs. Whether you are seeking fees and costs or just costs, Rule 1.525 gives you 30 days after the entry of judgment to file your motion. You should know that this rule is a ceiling, not a floor. In the same way that it’s fine to be early for a hearing, but you never want to be late, filing a fee motion before entry of judgment does not make your motion void, but filing it late does. See Frosti v. Creel, 979 So.2d 912, 915-16 (Fla. 2008); Barco v. School Bd. of Pinellas County, 975 So.2d 1116, 1123-24 (Fla. 2008). Again, why not just go ahead and get that motion on file rather than run the risk of that deadline getting lost in the shuffle? Assuming your motion for fees and costs is being brought under a PFS, don’t forget to have your motion say that it is seeking costs under both §768.79 and §57.041. Technically, you only need to mention §57.041 (since it provides for recovery of all taxable costs as opposed to §768.79 providing for only taxable costs incurred after rejection of the PFS). I have seen more than one motion for fees and costs that only seeks costs under §768.79. A smart defense lawyer will tell the judge (correctly so) that he or she can’t give you what you don’t request. So be careful not to accidentally limit yourself! Finally, having those insurance policies (not just the cover sheets) in advance of trial is also important because it allows you to check to see if the policy covers fees and costs. Most policies cover taxable costs. But the Florida Supreme Court has recently ruled that certain language in the policies obligate the insurance company to pay not only for costs but also for fees under a proposal for settlement. GEICO v. Macedo, 228 So.3d 1111, 1113 (Fla. 2017) (holding that language in the policy indicating that GEICO would pay “[a]ll reasonable costs incurred by an insured at our request” obligated GEICO to pay for fees and costs under a PFS). If you’ve got the triggering language in the applicable insurance policy, make sure your fee motion indicates that you are seeking fees and costs (or maybe just costs, depending on the policy), jointly and severally, from both the defendant and the insurer. And make sure that the insurer is added to the case — either before or at the same time your fee motion is heard — and that the insurer is included on the fees/costs judgment if the judge enters separate judgments for the verdict and for fees/costs.

4. Think About Your Record and What You Need to Get into It Before Judgment Is Entered

Did you take any depositions? If the answer is yes, you should do a notice of filing the full-size transcripts. If you are in a court that is covered by the Fourth District Court of Appeal, full-size transcripts (as opposed to minis) are required by an internal operating procedure in that court. In the other appellate courts, full-size is not required, but the courts (and your appellate lawyer) will like you much better if you file the full-size versions. Wondering why you need to file those transcripts? If you fail to file the transcripts and your appellate lawyer needs them on appeal, then there is a chance you will be out of luck and you won’t be able to add them to the record. That’s not a good place to be. Alternatively, if your appellate lawyer has to file a motion to supplement the record on appeal, then you are delaying the resolution of your appeal. That’s no fun either. Were there any big fights you had in emails? I recently had a case where the defense was trying to say that their expert was unable to inspect a vehicle before trial. When the defense moved for a continuance on that basis and the trial court denied it, I knew it was going to become an issue on appeal. So, I made sure that I did a notice of filing the email correspondence reflecting that my trial counsel had bent over backward to offer up the vehicle whenever the defense expert wanted it and the defense lawyers are the ones who declined the offers. Items like that are things that will not be in the record unless you put them there. Which means, unless you’ve got an opposing counsel who will agree to it when your appellate lawyer asks to supplement the record with this item that was not previously filed, you probably will not be allowed to supplement the record on appeal. And, if it’s not in the record on appeal, your appellate lawyer cannot talk about it in the briefs. Finally, make sure your all of your exhibits are in the record! The courtroom clerks are human and they make mistakes. It is a simple thing to check the docket to make sure that the exhibits are there. You should also make sure that there is a copy of the final jury instructions (as read by the court). Sometimes the trial judge hands a set to the clerk. Sometimes you need to do a notice of filing them. That will vary from court to court. But it only takes a few minutes for you to check the docket and do a notice of filing if it’s not.

5. Now You Can Go Hibernate …

Once you’ve given thought to each of the items on this list, it’s probably safe to start chipping away at the sleep deprivation your trial caused. And you can sleep well knowing that you aren’t going to miss critical deadlines or leave money on the table. Congratulations on your big win! Keep up the good work!

MAEGEN PEEK LUKA

is a partner at Brannock & Humphries in Tampa, Florida. Her practice is statewide and focuses on trial support and appeals in civil cases. She received her B.A. from the University of Florida in 1998. She received her J.D. from the University of Florida College of Law in 2001, where she served on the Law Review, was a member of the Order of the Coif, and graduated second in her class (all of that despite not taking Latin). Following graduation from law school, she clerked for the Honorable Emmett R. Cox at the Eleventh Circuit Court of Appeals.

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FJAYOUNGLAWYERSSECTION

Young Lawyers Section Year in Review by Heather Freeman Jones

The force remains strong with the FJA Young Lawyers! During my term this year as chair of the Young Lawyers Section, I was impressed by the amount of energy, time, and skills the Young Lawyers Section dedicated to the FJA — all while having fun! First, during the 2017 FJA Annual Convention, the Young Lawyers Seminar CLE featured presenters ranging from our Young Lawyer members, to lawyers practicing for over 40 years in civil trial law, to a physician discussing complex regional pain syndrome (RSD). Also, the Young Lawyers Task Force hosted a reception that drew more than 70 attendees to enjoy a sunset over St. Pete Beach at the 360 Rooftop Lounge of Hotel Zamora. Then, in August 2017, our Annual Young Lawyers Board Retreat coincided with the Al J. Cone Trial Advocacy Institute. After we planned our goals for the year, we shared food and fun at Disney’s Epcot German Biergarten restaurant. Joining us at Disney were also non-Board members wanting to share in the fun! Next, in November 2017, the FJA’s Hon. E. Earle Zehmer Memorial Mock Trial Competition hosted by the Young Lawyers Section was a remarkable success thanks to our Orlando members who participated in substantial numbers, and, also, our statewide members who drove hours to participate. The competition was held at the Orange County Courthouse in Orlando. Local judges presided over the Competition rounds, with our own FJA President Dale Swope substituting in a courtroom. And, we kept with the tradition of having a federal judge preside over the final round. Florida International University Law won the competition, making them back-to-back champions. Colling Gilbert Wright & Carter hosted a food and drink reception at the Orlando Science Center in the Light/Kinetic Zone for the judges, our members, the competing law students and coaches, and our sponsors — it was a blast! The FJA Young Lawyers Section also announced Colling Gilbert Wright & Carter as our inaugural Champions of Trial Advocacy award winners for their promotion of trial advocacy and continued support of the competition. Special thanks go to Jon Gilbert, Mock Trial co-chair and Immediate past chair of the YLS, Vanessa Brice, Cassidy Perdue, Amanda Dunn, and FJA Deputy General Counsel, G.C. Murray, Jr., for their service as members of the Mock Trial Committee. Along with the competition, the Young Lawyers hosted a charity book drive to support the Innovative Community Engagement Foundation, 62 | May/June 2018 | www.FloridaJusticeAssociation.org

affectionately known as the ICE Foundation. Many books were donated by our members, and we give special thanks to Kim Wald and Nicholas Gurney who ran the book drive and are still collecting books. After the Competition, in January 2018, the Young Lawyers pounded the pavement in Tallahassee for our Young Lawyer Lobby Days planned by Amanda Dunn and Matt Carrillo. We had about 10 Young Lawyer members in attendance, with half of the members as first-time lobbyists! We met with representatives and senators, drafted legislation, testified before Senate and House committee meetings, participated in FJA Lobby Team meetings, and squeezed in time for fun at the FJA Cocktails & Convo’ happy hour and dinner at the Governors Club. Our Young Lawyer members next traveled out west to Park City, Utah for the FJA Ski CLE Seminar thanks to the hard work of Daniel Vazquez. Highly attended, the Ski Seminar attendees hit the slopes, apres ski happy hours, and karaoke bus, while also gaining valuable CLE credit. Next up, at FJA’s 2018 Annual Convention our Young Lawyers Section Program Chairs, Jason McIntosh and Alan Perez, are putting together our Young Lawyers Seminar. Additionally, the Young Lawyers Task Force will host a Happy Hour on Wednesday, June 20 after the Meet the Candidates reception. Immediate Past Chair Jon Gilbert will also be adding a Guided Meditation for our Quality of Life component to our annual convention activities. I look forward to the future of the Young Lawyers Section and its boundless potential under the Leadership of Chair-Elect Chris Keller and the FJA staff, especially our Young Lawyer Liaison G.C. Murray, Jr. I also give many thanks to the members of my Young Lawyers Section Board for their hard work, time, talent and treasure they gave to make this past year a success: Chair-Elect: Chris Keller; Lytal, Reiter, Smith, Ivey & Fronrath, West Palm Beach, ckeller@foryourrights.com Secretary: Carter Scott; Searcy, Denney, Scarola, Barnhart & Shipley, Tallahassee, cws@searcylaw.com Immediate Past Chair: Jonathan Gilbert; Colling, Gilbert, Wright & Carter, Orlando, jgilbert@thefloridafirm.com

2016-2018 Board Directors

• Ben Whitman; Clark, Fountain, La Vista, Prather, Keen & LittkyRubin, West Palm Beach, bwhitman@clarkfountain.com • Cassidy Perdue; Colling Gilbert Wright & Carter, Orlando, cperdue@thefloridafirm.com • Elizabeth Munro; Vanguard Attorneys, Tampa, elizabethm@vanguardattorneys.com • Michael Brevda; Senior Justice Law Firm, Boca Raton, michael@seniorjustice.com • Ryan Fogg; David J. Halberg, P.A., West Palm Beach, rfogg@halberglaw.com

2017-2019 Board Directors

• Heather Barnes; The Yerrid Law Firm, P.A., Tampa, hbarnes@yerridlaw.com • Amanda Dunn; Rywant, Alvarez, Jones, Russo & Guyton, P.A., Tampa, adunn@rywantalvarez.com • Peter Hunt; LaBovick LaBovick & Diaz, Palm Beach Gardens, phunt@labovick.com • Alan Perez; Mallard Law Firm, Sarasota, alan@mallardlawfirm.com • Daniel Vazquez; Fine, Farkash & Parlapiano, P.A., Gainesville, dvazquez@ffplaw.com

• Jaeson Homola; Barrett, Fasig & Brooks, Tallahassee, jaeson@ tallahasseepersonalinjury.com • Michael Kalil; Law Offices of John S. Kalil, P.A., Jacksonville, mkalil@akjaxlaw.com • Ian Kirtman; Gold & Gold, P.A., Boca Raton, ikirtman@goldlawpa.com • Patrick McArdle; Grossman Roth & Partridge, P.A., Sarasota, psm@grossmanroth.com • Jason McIntosh; Lytal, Reiter, Smith, Ivey & Fronrath, LLP, West Palm Beach, jmcintosh@foryourrights.com • Fay Pappas; Bailey Fisher, PLLC, Winter Park, fay@baileyfisherlaw.com • Peter Tragos; Law Offices of Tragos, Sartes & Tragos, P.L., Clearwater, petertragos@greeklaw.com • Elizete Velado; Goldberg & Noone, LLC, Fort Myers, elizetevelado@goldberg-law.com • Kim Wald; Kelley Uustal, PLC, Fort Lauderdale, klw@kulaw.com

HEATHER FREEMAN JONES

is an associate attorney with Anderson & Anderson practicing in auto, premises and products liability personal injury cases in Tampa, Florida. Jones is the chair of the Board of Directors of FJA’s Young Lawyers Section.

2017-2018 At-Large Board Directors

• Matt Carrillo; Carrillo & Carrillo, Gainesville, mattcarrillo@gmail.com

YOU CAN UPDATE YOUR FJA MEMBER PROFILE ONLINE • Has your contact or practice information changed recently? Update your online

profile to ensure you can be easily located when someone searches the public directory looking for an attorney. • Updates are easy. Simply log in to your account and make changes including

adding or updating your profile photo!

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www.FloridaJusticeAssociation.org | May/June 2018 | 63

MEMBEROUTREACH

Thank you to the FJA members who pitch in to make this organization a success. We had a great membership phone bank in March and thank everyone who participated. 1

4 The FJA expresses sincere gratitude and appreciation to Jeff Liggio for his work and involvement in the class-action lawsuit that resulted in a cy pres donation to three charities: the Broward County Legal Aid, Palm Beach County Legal Aid Society, and The Florida Justice Association Research and Education Foundation (REF). The FJA REF funds FJA’s law school outreach program, mock trial, and other important research initiatives. Thank you, Jeff and Phil Burlington, who also assisted with this case, for your dedication to your work, and for your support and commitment to FJA.

7 1.

9 8

64 | May/June 2018 | www.FloridaJusticeAssociation.org

FJA leaders and staff hit the road to share a recap of the 2018 legislative session and an update on the 2018 election in meetings across the state. 2. FJA President-Elect Trey Lytal meets with Levin Papantonio firm to share the 2018 legislative and political update. 3. Geoff Stahl, Trey Lytal, Jeff Liggio, Lizzy Shane and Rob Paulk. 4. Trey Lytal makes a point during the FJA Political Summit held in Orlando. 5. Craig Gibbs, Trey Lytal, Michaela Miller, and Paul Jess. 6. Leslie Goller, Austin Griffin, Kelly Karstaedt, Kirsten Oliver, and Max Story. 7. When friends call for help, FJA members answer. Kudos to the FJA members for their diligent efforts to recruit new members to the national organization that shares our mission — the American Association for Justice — securing Florida’s representation on the AAJ Board of Governors. 8. Dale Swope speaking to members at the Ocala meeting. 9. Lizzie Shane and Julie Kane. 10. Henk Uiterwyk, John Fox, and Jim Guarneri.

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EAGLESPOTLIGHT

THANK YOU, EAGLES In recognition for unwavering commitment to the EAGLE program, we recognize the following upgraded, new or returning EAGLE members.

FOUNDER – $25,000

PATRON – $5,000

Gary M. Paige

Eric D. Roslansky

Recruited by Hendrik Uiterwyk

Recruited by Steven C. Ruth

Ty Tison

Upgraded by Eric Romano

Joshua A. Whitman

Recruited by Ben J. Whitman

SPONSOR – $3,000 Scott Carruthers Recruited by Paul D. Jess

David Rosenbaum Recruited by Christopher Ligori

Lindsay L. Tygart Recruited by Matthew Nichols Posgay

Donny A. Owens Recruited by Dale M. Swope

Kevin Schoeppel Recruited by Barry B. Ansbacher

Elizabeth A. Zwibel Recruited by Brent G. Steinberg

66 | May/June 2018 | www.FloridaJusticeAssociation.org

ASSOCIATE – $1,500 Jennifer A. Burns Recruited by Thomas W. Carey

André J. Lama Recruited by Marcus J. Michles, II

Nichole J. Segal Recruited by Philip M. Burlington

Joshua Heller Recruited by Peter Hunt

Adam J. Richardson Recruited by Philip M. Burlington

Lee Alan Weintraub Recruited by Barry B. Ansbacher

Michael A. Jones Recruited by Cameron M. Kennedy

SOARING YEAR 2 – $1,000 David C. Thompson Recruited by Matthew Nichols Posgay

SOARING YEAR 1 – $750 Katherine Bloch Recruited by Tiffany M. Faddis

CITIZEN EAGLE

Norman C. Polak Recruited by Greg King

BFE PATRON – $5,000

Steven Lourie Recruited by Laurie J. Briggs Recruited by Dale M. Swope

BFE LEGACY – $40,000

Upgraded by Tiffany M. Faddis & Lake H. Lytal, III

www.FloridaJusticeAssociation.org | May/June 2018 | 67

EAGLESPOTLIGHT

2017-2018 EAGLE RECRUITING CHAMPIONS Since May 10, 2017 Recruiter Name

Recruiting Value

# of Recruits

Recruiter Name

Recruiting Value

# of Recruits

Dale M. Swope

$85,000

Carter Scott

$5,000

Lake H. Lytal, III

$53,750

Jonathan T. Gilbert

$4,500

Matthew K. Foster

$38,500

James R. Holland, II

$4,500

Eric Romano

$33,500

J. Alistair McKenzie

$4,500

Christopher Ligori

$30,000

Stephen Watrel

$3,500

Curry G. Pajcic

$29,500

Laurie J. Briggs

$3,300

Damian B. Mallard

$28,000

Philip M. Burlington

$3,000

James W. Gustafson, Jr.

$23,000

Howard C. Coker

$3,000

Tiffany M. Faddis

$21,500

Sean C. Domnick

$3,000

Hendrik Uiterwyk

$18,000

Vivian H. Fazio

$3,000

Richard E. Chait

$17,000

Maryann M. Furman

$3,000

Matthew Nichols Posgay

$17,000

Paul D. Jess

$3,000

Barry B. Ansbacher

$16,500

Brent G. Steinberg

$3,000

Thomas W. Carey

$16,500

Bernard F. Walsh

$3,000

James W. Guarnieri, Jr.

$14,500

David J. Zappitell

$3,000

Nathan P. Carter

$13,500

Joseph N. Nusbaum

$2,700

Todd Jordan Michaels

$13,000

Virginia M. Buchanan

$2,500

Fred A. Cunningham

$12,500

Waylon Thompson

$2,500

Gregory M. Yaffa

$11,000

Michael Brevda

$1,500

Peter Hunt

$10,750

Marci Ball Elordi

$1,500

Fermin Lopez

$9,500

Philip Freidin

$1,500

Hubert R. Brown

$9,000

Philip A. Gold

$1,500

David Corey Dismuke

$9,000

Adriana Gonzalez

$1,500

Cassidy Perdue

$9,000

Celene Humphries

$1,500

Troy Rafferty

$9,000

Christopher P. Janes

$1,500

Robert Mayer Rubenstein

$8,500

Cameron M. Kennedy

$1,500

James Lawrence Magazine

$8,000

Greg King

$1,500

Ben J. Whitman

$8,000

Howard S. Krooks

$1,500

H. L. (Larry) Perry

$7,000

Jason F. Lamoureux

$1,500

Vanessa Brice

$6,000

Marcus J. Michles, II

$1,500

John S. Mills

$6,000

Skip Pita

$1,500

Anthony Quackenbush

$6,000

Kimberly J. Syfrett

$1,500

Brenda S. Fulmer

$5,500

Warren R. Todd

$1,500

Paul M. Anderson

$5,000

James G. Vickaryous

$1,500

Steven C. Ruth

$5,000

as of 5/1/2018

68 | May/June 2018 | www.FloridaJusticeAssociation.org

70 | May/June 2018 | www.FloridaJusticeAssociation.org

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Index Arbitration

Defamation

nursing homes, express severability clause made agreement enforceable despite unenforceable liability limitations…21

public official’s absolute immunity, dismissal on basis of status as public official not supported within four corners of complaint…21

nursing homes, provision requiring use of Alabama Rules of Evidence was unenforceable but severable…22

Dogs

Argument

statutory strict liability, dog park sign with rules not equivalent to “Bad Dog” sign and comparative fault applies with respect to any evidence of consent or assumption of risk…23

improper, discussion of improper argument and practice tips for curative instructions…56

Evidence

Attorneys

best evidence rule, copies of loan modifications in mortgage foreclosure cases satisfy rule…48

discipline, disbarment for failure to properly supervise non-lawyer employee who embezzled funds from firm trust account…20

character evidence, evidence of insured’s failure to pay his debts inadmissible in a sinkhole proceeding…49

fees, appeals, order establishing entitlement but not amount is non-final and non-appealable…29 fees, contingency fee agreement, unenforceable where signed in absence of legal authorization by mother of car wreck victim who was in a coma…24

documents, proof of mailing raises rebuttable presumption it was received…47 hearsay exceptions, practice tips and caselaw re absence of entry in records of regularly conducted business activity…49 hearsay, evidence of decedent’s “aspirations and goals” admissible under state of mind exception or purposes of calculating lost support…47

fees, guardianship, entitlement depends on whether services benefitted the ward…21

hearsay, exception for witness who is unavailable because of wrongdoing…47

Auto

hearsay, promissory notes, mortgages and modifications are admissible “verbal acts” …48

PIP, provided charges must be reduced to the fee schedule before applying the deductible, conflict and question certified…23 UM, error to sanction insured for having surgery prior to CME…27 UM, online form not valid for election of stacking…27, 32 Costs party who recovers a money judgment on any count of a multicount action is entitled to recover all of its costs…24 Damages breach of warranty, requirements for proof of diminished value…48 economic versus noneconomic…41 future medical expenses, remittitur required where no reasonable relationship between the amount awarded and amount proved…22, 29

72 | May/June 2018 | www.FloridaJusticeAssociation.org

hearsay, web search to establish value of stolen property inadmissible…49 medical malpractice, subsequent treater’s testimony that “nothing would have been different” inadmissible…46 multiple doctors in same specialty, treating physicians as fact vs. expert witness…26, 47, 50 sound recordings, methods for …49 FJA incoming President Lytal looks ahead…10 outgoing President Swope’s farewell…8 president, profile of incoming 2018-19 FJA President Trey Lytal…14 REF, introducing Titans of Trial podcast…12

Insurance

Pollution

attorney’s fees, §627.428 fee entitlement occurs after adjusting process “breaks down”…33

battery acid, question certified question whether strict liability statute bars a personal injury action by tow truck operator injured by acid spill at collision site…24

bad faith, accrual of first party vs. third party claims…29 “claims file privilege,” objection does not exist under Florida law…28 evidence, insurer’s argument that there is a blanket “claims file privilege” rejected…54 nonjoinder, statement during voir dire that “this is not an insurance case”…29 property, coverage for damage caused by leaking water…33 Jurisdiction cruise ship injury, insufficient contacts with Florida for jurisdiction to attach…22 Lawyer Referral Services new Bar rules adopted, additional rules requested…20 Legislation legislative wrap-up, final status of bills…21 Legislature calendar…21 Licensure nursing homes, revocation for failure to timely provide requested financial information improper where statute does not specify a deadline…22

Practice Tips checklist of things to do immediately after winning a verdict…60 Premises Liability duty to provide security, no duty with regard to areas of the premises not under the defendant’s control…24 slip and fall, inferences may not be stacked to find actual notice of a dangerous condition on the floor…24 slip and fall, transitory foreign substance resulting from negligent mode of operation…28 Procedure default, default by court without notice is improper…53 dismissal, cross-claim between defendants survived dismissal of main claim under circumstances…53 motion practice, a motion to dismiss is not an authorized response to a motion …52 summary judgment, affidavit filed after hearing properly considered by court…54 Products Liability medical devices, Stockert 3T cardiac heater cooler create breeding ground for lethal bacteria…34 workplace injuries, discussion of potential recovery outside the workers’ compensation system…42

Medical Malpractice

Settlement

arbitration…41

enforceability of agreement, terms of release not specified in plaintiff’s offer…22

definition…40 expert witness testimony (two cases)…41 presuit requirements, applicability…40 treating physician testimony…40 vs. ordinary negligence, case must be directly related to medical care or services which require use of professional skill to sound in medical malpractice…20 New Trial order for, abuse of discretion…41

Sovereign Immunity determination of immunity as a matter of law, interlocutory appeal jurisdiction…21 Wrongful Death damages, categories…41 Young Lawyers Section recap of 2017-18 Section activities…62 www.FloridaJusticeAssociation.org | May/June 2018 | 73

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FJACLE VOIR DIRE INSTITUTE WALT DISNEY WORLD SWAN AND DOLPHIN • AUGUST 1-3, 2018

CHRISTIAN D. SEARCY PROGRAM CHAIR:

John Romano Romano Law Group, Lake Worth

In its second year, the Voir Dire Institute will open your eyes to new approaches and strategies with the very first speaker. This three-day institute includes lectures and workshops to refine your skills and provide opportunities to network with the esteemed panel of speakers.

SEMINAR TOPICS • The Anatomy of Voir Dire in an Auto-Collision Neck/Back Injury Case • The “Psychology of Voir Dire in Personal Injury and Wrongful Death Cases: Speaking Versus Listening; Teaching Versus Learning: Understanding and Appreciating the Fundamentals of Voir Dire From the Perspective of a Social Scientist”

Location Walt Disney World Swan and Dolphin 1500 EPCOT Resorts Boulevard Lake Buena Vista, FL 32830

• Handling Liability Issues in Voir Dire • Client Credibility Dilemmas During Voir Dire

CLE@floridajusticeassociation.org

• Challenges For Cause: Knowing the Law, the Procedure, and the “Magic” Words – How to Extract Information From Jurors In Order to Successfully Obtain or Defeat a Challengeful Cause – Learning the Art of Patience and Discipline in Voir Dire

FloridaJusticeAssociation.org

• Understanding and Appreciating the Power of Peremptory Challenges – and Learning How to Use Them Wisely and Strategically – Back-striking As an Art and Science – How Do You Use Peremptory Challenges on Alternate Jurors

FJA CLE Dept. 850.521.1097