| Date issued: 08/02/2011 | |
| Editor: Betsy Stupski |  |
Clicking the icon following the number of each case cited below will link you directly to the cited opinion. AG Advisory Opinions are accessible from the list of links.
Appellate Alert 2011-12
August 2, 2011
Florida Supreme Court
Cox v. St. Joseph’s Hospital SC09-1771
7/7/11
Appellate court was not allowed to reweigh the evidence.
In this case, the plaintiff sued for malpractice because the emergency room physician failed to administer a drug which prevents the devastating effects of a stroke. Plaintiff put on expert testimony. Defendant proffered statistical studies. Ultimately the jury was presented with conflicting testimony. They awarded the plaintiff significant damages. The Second District reversed the award relying on the statistical study and saying that the expert testimony was based on insufficient facts.
The question before the Florida Supreme Court was whether the Second District improperly reevaluated the expert testimony. The Supreme Court quashed the decision of the Second District saying, “In reaching this holding, we agree that an expert cannot merely pronounce a conclusion that the negligent act more likely than not caused the injury. In this case, however, Dr. Futrell did not simply provide a summary conclusion without a factual basis. She conducted a full review of Mr. Cox’s medical records, provided a detailed analysis as to why she believed that Mr. Cox would have been an excellent candidate for tPA therapy, and based her testimony on her experience, the relevant medical literature, and her knowledge about the facts and records involved in this case, including an in-depth analysis of Mr. Cox’s CT scan. Defense counsel had the opportunity to cross-examine her as to the foundation of her opinion, which he did. However, during cross-examination, Dr. Futrell expounded on the factual foundation for her opinion regarding the NINDS study. In fact, Dr. Futrell explained during cross-examination that she disagreed with defense counsel’s characterization of the NINDS study and explained why she believed that defense counsel was inaccurate. It was within the jury’s province to evaluate Dr. Futrell’s credibility and weigh her testimony. The Second District misapplied our precedent by reweighing the evidence and rejecting Dr. Futrell’s explanation.”
SC09-1771 FSCcv Cox v St Josephs.doc
First District Court of Appeal
R. J. Reynolds v. Hall 1D10-2820
7/12/11
Statute which places a limit on the bond amount for certain tobacco companies seeking a stay is not an impermissible special law even though it only affects small number of tobacco companies.
An individual plaintiff in a tobacco lawsuit challenged the constitutionality of Section 569.23(3), Florida Statutes, which places a limit on the bond required for tobacco companies to obtain a stay when defending a private lawsuit on appeal. The plaintiff claimed that it was an impermissible special law because it only affected a handful of tobacco companies who signed the Florida Settlement Agreement. The plaintiff also claimed that the statute was a violation of separation of powers because it intruded on the Florida Supreme Court’s authority to regulate practice and procedure in Florida courts. The trial court found in favor of the defendants.
The First District found that that the statute was not an impermissible special law because the statute served an important statewide purpose. The Court said, “The significant revenues from the FSA are used to fund a variety of state programs and, according to the papers filed by the Attorney General in the trial court, ‘¯[i]f that revenue stream is disrupted by the financial instability of the companies due to a requirement to post exorbitantly large bonds, the fiscal health of the State may be threatened and important programs providing essential support to Florida citizens will be at risk.’” The Court also found that separation of powers had not been violated.
1D10-2820 1dcacv RJ Reynolds v Hall.pdf
Third District Court of Appeal
City of Miami v. Hervis 3D11-442
7/5/11
City that made a decision not to promote an officer with Parkinson’s disease was not held liable for discrimination because officer failed to rebut evidence of non-discriminatory reasons for decision.
Human Rights Commission may not improperly shift the burden to prove lack of pretext.
A police officer who had Parkinson’s disease sued the City when he failed to get a promotion while other officers with similar credentials did get a promotion. Although the Chief of Police articulated non-discriminatory reason for not giving the officer a promotion, the Miami-Dade Commission on Human rights made finding of discrimination. The finding was affirmed by the circuit court.
The City appealed on the basis of failure to provide due process. A Miami ordinance required the Commission to provide a complete transcript of the discrimination hearing. Because they were unable to do so and also did not provide a new evidentiary hearing, the Court found that the City was denied due process. The Court went on to find that the officer failed to rebut the evidence proffered by the Chief of Police the legitimate non-discriminatory reasons for failing to promote the officer. The Court also found that the Commission improperly shifted the burden to the City to prove a lack of pretext.
3D11-442 3dacacv Miami v Hervis.doc
Tire Kingdom v. Dishkin 3D08-2088
7/6/11
Plaintiffs did not meet the test for class certification.
Plaintiffs sought to certify a class action against Tire Kingdom when they discovered shop fees were added without proper notice on a discount coupon. The trial court certified the class.
After a detailed review of the fact the Third District found that the plaintiffs failed to demonstrate the commonality and typicality requirements of class certification. The Court said, “The touchstone of class certification, dating to the origins of the device … is that the class representatives, by proving their own individual cases, necessarily will prove the cases for each one of the thousands of other members who may be members of the class... By way of contrast, in complex cases, such as this, where no one set of operative facts establishes liability, where no single proximate cause applies to each defendant, and where individual issues outnumber common issues, trial courts should be hesitant to certify class actions.”
3D08-2088 3dcaccv Tire Kingdon v Dishkin.doc
Fourth District Court of Appeal
Butler v. Hallandale 4D10-197
7/20/11
Mayor’s email list from her personal computer and personal email account was not subject to disclosure under Florida public records law.
The mayor of Hallandale emailed (from her personal computer) the text of three news articles that she had written to friends and supporters. Butler made a public records request for the names and email addresses of the recipients. The trial court found that Butler was not entitled to the information because the mayor was under no statutory authority to share the articles with her friends.
The Fourth District affirmed saying, “The City played no role in Cooper’s decision to write articles for the Times. The City played no role in identifying the topics about which Cooper chose to write and exercised no control over the content of the articles. The City played no role in Cooper’s decision to distribute or not to distribute her Times articles, or the means by which she chose to do so. The City played no role in deciding to whom Cooper chose to distribute the copies of her articles; Cooper herself decided to distribute the articles to select personal friends and supporters at her own discretion. The email that Cooper sent was not intended to perpetuate, communicate, or formalize the City’s business; it was simply to provide a copy of the articles to Cooper’s friends and supporters. The email was not made pursuant to law or in connection with the transaction of official business by the City, or Cooper in her capacity as Mayor.”
4D10-197
 4dcacv Butler v Hallandale .doc
Milanese v. City of Boca Raton 4D09-5247
7/20/11
Plaintiff’s complaint was sufficient to plead that officer had created a zone of risk.
Milanese was taken into custody for drunk driving. Later in the evening he was released. The police officer called a cab but the cab driver never saw Milanese so he left the station. As a result Milanese set out on foot and ended up passing out beside a train track. Later he was hit and killed by a train. His representative sued the City claiming that the police had failed to exercise a duty that they owed to Milanese. The trial court dismissed the case for a failure to state a claim.
The Fourth District found that the complaint alleged sufficient facts to determine that the officer had created a zone of risk in the manner or releasing Milanese.
4D09-5247 4dcavv Milanese v Boca Raton .doc
Durse v. Henn 4D09-1659
7/6/11
Officer’s testimony was inappropriate pursuant to the accident report privilege.
Plaintiff who did not have health insurance should have been allowed to present evidence of his full medical bills even though he negotiated a lower amount with his health care providers.
The parties were involved in a three car accident. The actual sequence of who hit who first was at issue in the trial. The trial court allowed the police testify about his opinion of how the accident unfolded. The Defendant objected pursuant to the accident report privilege. Another issue at trial was whether Durse should be allowed to present the full amount of his medical bills. The Defendant objected to the full amount because Durse (although he did not have health insurance) had negotiated with his caregivers to pay a lesser amount.
First addressing the accident report privilege, the Fourth District found that since the officer relied almost exclusively on statements taken from parties involved in the accident, his testimony regarding how the accident occurred should not be allowed pursuant to the accident report privilege. The Court went on to address the issue of whether Durse should be allowed to present evidence of the full amount of his medical bills. The Court found that evidence of the full amount should be allowed. The Court said, “Here, Durse’s medical bills were reduced by the medical providers Durse received treatment from as a result of the injuries he sustained in the accident. Unlike the appellees in Thyssenkrupp and Nationwide, Durse did not have health insurance. Although Durse did not pay the premiums for his health insurance, like the appellee in Nationwide (because he had no health insurance), by negotiating a lower amount, Durse “earned in some way,” within the meaning of Nationwide, the lowered final amount of his medical bills. The trial court erred by excluding the medical bills showing the full amount of the charges.”
4D09-1659 4dcacv Durse v Henn .doc
Florida Department of Children and Families v. Shapiro 410-741
7/27/11
Plaintiff failed to establish a hostile work environment or retaliation.
A DCF employee sued the agency for two claims of discrimination and retaliation. The trial court issued a directed verdict in favor of the plaintiff.
The Fourth District reversed, finding that although there were comments that were religious and racial in nature, they were not frequent enough, nor pervasive enough to establish a hostile work environment. The Court also went on to find that there was no showing of retaliation. The Court said that the plaintiff had failed to establish temporal proximity between her protected activity and her termination.
410-741 4dcacv DCF v Shapiro .doc
Gamsen v. State Farm Fire & Casualty Company 4D09-2636
7/27/11
Jurors’ failures to report prior litigation did not prejudice defendant’s case because experience was similar to that of jurors who were acceptable to defendant or the experience was remote in time.
The case arose out of an automobile accident. The Defendant’s counsel asked if the juror’s had ever “gone to court.” Two of the jurors failed to report certain information regarding their litigation history. When the defendant notified the trial judge that Juror One had failed to report involvement in eviction proceedings and a prior car accident and Juror Two had failed to report involvement in a domestic case and, he ordered a new trial.
After reviewing the three part test on juror nondisclosure, the Fourth District determined that the trial court erred in ordering a new trial. The Court found that Juror Two’s litigation was dissimilar in nature and remote in time. As for Juror One, the Court noted that the complaining attorney accepted several jurors with prior insurance claims that were not dissimilar to this juror’s experience. The Court also determined that the attorney could have been more diligent in seeking to clarify juror answers.
4D09-2636 4dcacv Gamsen v State Farm .doc
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