Case Law Update IN THIS ISSUE

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1 WICKER SMITH O HARA MCCOY & FORD P.A. JANUARY / FEBRUARY 2012 IN THIS ISSUE *Trial Court Did Not Abuse Its Discretion By Excluding Causation Testimony From Patient s Standard of Care Expert Witness. Service By Publication Is Only Permitted When Personal Service Cannot Be Obtained. *The Baker Act (Ch. 394 Florida Statute) Does Not Create a Duty to Hold a Patient Under Treatment Until a Trial Court Has Ruled Upon a Pending Petition for Involuntary Placement. *To Be Considered Medical Negligence, the Injury Must Be a Direct Result of Receiving Medical Care or Treatment By the Healthcare Provider. A Settlement Agreement That Does Not Clearly Reserve a Cause of Action Against a Subsequent Tortfeasor Is Presumed to Cover All Injuries. Challenge to Medical Expenses Should Be Asserted as an Affirmative Defense, Not a Counterclaim Against Plaintiff s Medical Provider. Summary of Florida Supreme Court Cases Shotts and Gessa. Owner s Consent to Use Vehicle Cannot Be Vitiated By Invocation of Third Party Agreements Attempting to Limit Scope of Who May Operate the Vehicle. Absent Being Excused By the Court, the Party Must Appear at Mediation, and a Representative Cannot Take the Party s Place. * Wicker Smith Case Wins

2 *TRIAL COURT DID NOT ABUSE ITS DISCRETION BY EXCLUDING CAUSATION TESTIMONY FROM PATIENT S STANDARD OF CARE EXPERT WITNESS. Daniel Duss was diagnosed with cerebral palsy shortly after his birth on December 3, In 2003, a lawsuit was filed on his behalf alleging that the obstetrician who delivered him, Martin A. Garcia, M.D., was negligent in using a fetal vacuum extractor during the delivery, and his negligence caused Daniel to sustain a brain injury, leading to cerebral palsy. When the case finally made it to trial in August 2010, after earlier ending in a mistrial, the plaintiff put on four medical experts one on standard of care and three on causation. The gist of their testimony was that Dr. Duss v. Garcia, 37 Fla. L. Weekly D106 (Fla. 1st DCA Jan. 6, 2012) Garcia breached the standard of care by needlessly using the vacuum extractor six times to deliver Daniel, and that his actions caused Daniel to suffer an ischemic stroke, which, in turn, caused brain injury. The Defendants experts testified that Dr. Garcia s use of the vacuum extractor was within the standard of care, that use of the device cannot cause an ischemic stroke, and that Daniel s strokes and brain injury resulted from a placental abnormality. The jury rendered a verdict in favor of the Defendants. Dr. Barry S. Schifrin, an OB/GYN, was the Appellant s only expert on standard of care. He testified that based on his review of the labor and delivery reports, no circumstances were present to make a vacuum-assisted delivery necessary. When the Appellant s counsel asked Dr. Schifrin for his opinion on whether obstetrical circumstances or conditions existed which could result in ischemic injury, the Appellees counsel objected and, after conducting a voir dire, argued that the doctor was not qualified to give expert opinion on the cause of Daniel s neurological injury. The trial court sustained the Appellees objection. A trial court is to be afforded broad discretion in determining the subject on which an expert may testify in a particular trial. The trial court s decision will only be disregarded if that discretion has been abused. Angrand v. Key, 657 So.2d 1146, 1148 (Fla. 1995). The expert here, Dr. Schifrin, was only qualified to testify on the standard of care and on whether Dr. Garcia breached it. Any testimony linking breach of the standard of care to Daniel s neurological injury ischemic stroke unquestionably would go to causation and, we believe, would exceed the scope of matters on which Dr. Schifrin was qualified to give an opinion at trial. Appellant s pediatric neurologist, Dr. Ronald S. Gabriel, testified that vacuum extraction could produce the kind of brain injury Daniel sustained. Additionally, Appellant s expert neonatologist, Dr. Marcus Hermansen, diagnosed Daniel s ischemic stroke as a mechanical injury caused by use of the vacuum extractor. Thus, even if the trial court had erred in excluding Dr. Schifrin s testimony, Appellant suffered no prejudice from the court s ruling. Appellee s theory of the case was that there is no link between strokes in infants and vacuumassisted delivery, and that Daniel s neurological injury resulted from a placental abnormality. Among Appellee s medical experts were Dr. John Thorp, who testified on standard of care, and Dr. David Schwarts, an expert on placental pathology. Dr. Thorp is an OB/GYN specializing in the care of mothers and fetuses with medical conditions or risk factors for poor outcomes. Continued from page 2 Continued on page 3 Page 2 of 12

3 He testified he has published approximately three hundred articles, has written at least eighteen textbook chapters on topics within his fields of expertise including the role of perinatal factors in brain disorders, and lends his expertise in perinatal epidemiology to several medical journals to conduct peer-review of articles submitted by others for publication. As a rule, a party may not introduce evidence to bolster a witness credibility before it has been attacked. See, Linn v. Fossum, 946 So.2d 1032, 1039 (Fla. 2006). Appellant cites several cases stating that a party may not use authoritative literature to bolster the opinion of an expert witness on direct examination, and argues that the trial court allowed Appellees to do so with Dr. Thorp using his own publications. See, e.g., id. at 1036; Erwin v. Todd, 699 So.2d 275, 278 (Fla. 5th DCA 1997); Medina v. Variety Children s Hosp., 438 So.2d 138, 139 (Fla. 3d DCA 1983); Tallahassee Mem l Reg l Med. Ctr. v. Mitchell, 407 So.2d 601, 602 (Fla. 1st DCA 1981); see also , Fla. Stat. (2010). We conclude, notwithstanding the bombastic response, that the question Appellees counsel posed was not improper bolstering, but rather a fair follow-up to Dr. Thorp s unchallenged testimony about the huge natural experiment and lack of evidence linking vacuum assisted delivery to ischemic stroke in infants. The trial court correctly precluded Appellant s standard of care expert, Dr. Schifrin, from testifying that Dr. Garcia s alleged breach of the standard of care created circumstances from which brain injury to a newborn likely occurs. Such testimony went to causation, and Dr. Schifrin was not qualified to give an opinion on that subject. Further, the court did not permit improper bolstering of the testimony by Appellees experts, Dr. Thorp and Schwartz. Finding no error by the trial court, we AFFIRM the final judgment on appeal. Estela v. Cavalcanti, 36 Fla. L. Weekly D2773 (Fla. 3d DCA Dec. 21, 2011) SERVICE BY PUBLICATION IS ONLY PERMITTED WHEN PERSONAL SERVICE CANNOT BE OBTAINED. The Plaintiff filed a complaint naming Estela as a Defendant. He made several failed attempts to personally serve Estela at his last known address. He then filed a motion for leave to serve Estela by publication and attached an affidavit of diligent search. Estela made a special appearance and filed a motion to quash the Plaintiff s attempt to serve him by publication, and provided an address in Costa Rica. The trial court granted the Plaintiff s motion for leave to serve by publication. The issue on appeal is whether a plaintiff can serve a defendant by publication if the defendant provided an out-of-state address where the defendant can be personally served and where there is no evidence that the defendant was attempting to evade service. The court looked at the language of Fla. Stat and held that the statute s plain language mandates that service by publication is only permitted when personal service cannot be obtained. Therefore, the Plaintiff was obligated to at least attempt to serve Estela at the Costa Rican address he provided. Page 3 of 12

4 *THE BAKER ACT (CH. 394 FLORIDA STATUTE) DOES NOT CREATE A DUTY TO HOLD A PATIENT UNDER TREATMENT UNTIL A TRIAL COURT HAS RULED UPON A PENDING PETITION FOR INVOLUNTARY PLACEMENT. Rebecca Tuten s husband, James, began receiving outpatient care at Meridian in September 2007 for depression and suicidal ideations. He was voluntarily admitted to Meridian after Tuten v. Fariborzian, 37 Fla. L. Weekly D144 (Fla. 1 st DCA Jan. 13, 2012) attempting suicide in November After three days, upon his request, he was released with medication. Two months later, James again attempted suicide by taking an overdose of psychiatric medication. Following a stay in the intensive care unit at a local hospital, he was admitted to Meridian on February 5, 2008, and came under the care of appellee, Alexander Fariborzian, a psychiatrist. On his third day at Meridian, James requested a discharge, but his request was denied by Dr. Fariborzian. On February 8, 2008, on the fourth day of his stay, a Meridian administrator filed a petition for involuntary placement and a petition for adjudication of incompetence to consent to treatment pursuant to the Baker Act. Both petitions were supported by the opinion of Dr. Fariborzian. A hearing was eventually scheduled for February 15, On February 13, James requested his release from Meridian and Dr. Fariborzian certified that he was competent to provide consent for release. James was released on that date with an order to receive follow-up care. The next day James Tuten shot his wife and then fatally shot himself. Rebecca Tuten filed an amended complaint for wrongful death asserting negligence against Dr. Fariborzian and Meridian. She raised three issues on appeal arguing that: (1) the trial court erred in dismissing her amended complaint because, under the Baker Act, chapter 394, Florida Statues, also known as the Florida Mental Health Act, Meridian and Dr. Fariborzian had the duty to keep James Tuten within the facility until a trial court ruled on the petition for involuntary placement; (2) apart from the Baker Act, Meridian and Dr. Fariborzian owed James Tuten a duty of care which was breached upon his release; and (3) the trial court erred in refusing to allow a third amendment of her complaint. The Baker Act (section , Florida Statutes (2008)), provides that if [a]t any time a patient is found to no longer meet the criteria for involuntary placement, the facility administrator is required to discharge the patient (not under criminal charge), transfer the patient to voluntary status, or place an improved patient (not under criminal charge) on convalescent status in a community facility. There is no limitation to discharge a patient who no longer warrants involuntary placement. In fact, a plain reading of section would indicate that a petition could be withdrawn prior to a ruling. Grant by a court of a petition for involuntary placement requires proof that the patient meets certain criteria established by clear and convincing evidence. Since Dr. Fariborzian, the treating physician, concluded that, in his professional opinion, James Tuten could determine for himself whether commitment was necessary, there was no proof Meridian or Fariborzian could offer in continuing support of a petition for involuntary placement. Continued on page 5 Continued from page 4 Page 4 of 12

5 As for the argument that a common law duty exists which required Meridian and Dr. Fariborzian to keep James Tuten committed against his will, despite the professional opinion of his treating physician that Tuten had become competent enough to make his own decision regarding commitment, we cannot agree that such a duty exists under the undisputed facts in this case. Because the internal workings of the human mind remain largely mysterious, to impose a general duty on a psychiatrist would require such doctors to have the gift of clairvoyance. Garcia v. Lifemark Hospitals of Florida, 754 So.2d 48, 49 (Fla. 3d DCA 1999) It is significant that the case law establishes there is no duty to warn that a patient may be dangerous, even when the patient is involuntarily committed as a result of a Baker Act proceeding. Further, as recognized by the Fifth District in Paddock v. Chacko, 522 So.2d 410, (Fla. 5th DCA 1988), numerous cases underscore the inability of psychiatric experts to predict, with any degree of precision, an individual s propensity to do violence to himself or others. Thus, because the future behavior of a psychiatric patient is unknowable, under Florida law risk of harm is not foreseeable and therefore no duty exists to lessen the risk or protect others from the type of risk which a psychiatric patient might pose. As the Florida Supreme Court has explained, the requirement of reasonable, general foresight is the core of the duty element. McCain v. Fla. Power Corp., 593 So.2d 500, 503 (Fla. 1992). The trial court has wide discretion, pursuant to Florida Rules of Civil Procedure 1.190, on procedural matters including requests to amend pleadings. The trial court, in this case, did not abuse its discretion, as the court need not allow an amendment that would be futile. (citing Thompson v. Publix Supermarkets, Inc., 615 So.2d 796, 797 (Fla. 1st DCA 1993). The final order is AFFIRMED. Page 5 of 12

6 *TO BE CONSIDERED MEDICAL NEGLIGENCE, THE INJURY MUST BE A DIRECT RESULT OF RECEIVING MEDICAL CARE OR TREATMENT BY THE HEALTHCARE PROVIDER. Stubbs v. Surgi- The Plaintiff alleges that nurse Lorenzo Rivera instructed her to move Staff, Inc., 37 Fla. from a test bed to a gurney and that the Plaintiff fell while attempting to L. Weekly D174 move. The complaint alleged negligence on the part of Ms. Rivera in (Fla. 4th DCA Jan. failing to exercise reasonable care in assisting the Plaintiff. Based on the 18, 2012) Plaintiff s deposition and Ms. Rivera s affidavit, it was undisputed that the Plaintiff was given contrast dye for a CT scan. During the scan, the Plaintiff began to vomit, and once the scan was completed Ms. Rivera was called in to the room by the technician. Ms. Rivera, believing the Plaintiff to be suffering an allergic reaction, instructed the Plaintiff to move to the gurney. The Plaintiff then fell and was injured. The Defendants moved for summary judgment on the basis that the facts demonstrated that the Plaintiff s claims were for medical negligence under Florida Statute chapter 766, and thus barred by the 2 year statute of limitations, and further that the Plaintiff had failed to comply with pre-suit requirements. To be considered medical negligence, [t]he injury must be a direct result of receiving medical care or treatment by the healthcare provider. Quintanilla v. Coral Gables Hosp., Inc., 941 So.2d 468, 469 (Fla. 3d DCA 2006). The key inquiry is whether the action aris[es] out of medical diagnosis, treatment, or care. Lynn v. Mount Sinai Med. Ctr., Inc., 692 So.2d 1002, 1003 (Fla. 3d DCA 1997); quoting Fassy v. Crowley, 884 So.2d 359, 364 (Fla. 2nd DCA 2004). The trial court correctly determined that the Plaintiff s complaint was based on negligence attributable to the provision of medical care and services. Affirmed. Compare: Neilinger v. Baptist Hosp. of Miami, Inc., 460 So.2d 564, 566 (Fla. 3d DCA 1984) Action arose from the provision of medical care and services where maternity patient slipped and fell on pool of amniotic fluid while descending from an examination table under the direction and care of hospital employees. Indian River Mem l Hosp., Inc. v. Browne, 44 So.3d 237 (Fla. 4th DCA 2010) Action arose from the provision of medical care and services where disoriented 76 year old patient was admitted to the ER and fell out of a stretcher. Plaintiff alleged negligence in failing to engage and/or properly secure railings, and failing to follow hospital rules and procedures to prevent falls. With: Quintanilla v. Coral Gables Hosp., Inc., 941 So.2d 468 (Fla. 3d DCA 2006) Ordinary negligence action based on nurse spilling hot tea on patient. Tenet St. Mary s, Inc. v. Serratore, 869 So.2d 729 (Fla. 4th DCA 2004) Ordinary negligence action where hospital employee kicked Plaintiff in an attempt to kick Plaintiff s footrest in order to return Plaintiff s chair to upright position following dialysis treatment. A SETTLEMENT AGREEMENT THAT DOES NOT CLEARLY RESERVE A CAUSE OF ACTION AGAINST A SUBSEQUENT TORTFEASOR Univ. IS PRESUMED of Miami TO COVER ALL INJURIES. v. Francois, 36 Fla. L. Weekly D2766 (Fla. Page 3rd 6 of 12 DCA Dec. 21, 2011)

7 Caroline Francois was admitted to North Shore Medical Center to give birth. Her blood pressure was severely elevated. She was under the care of Nurse Martinez, an employee of Medical Staffing Network Holdings, Inc. Nurse Martinez failed to treat her spiking blood pressure and, as a result, she suffered a brain bleed and was placed on life support. Shortly thereafter, Robert Kerns, a coordinator of the University of Miami s Life Alliance Organ Recovery Program, entered Ms. Francois s hospital room without her family s consent. He wrote a physician s order pronouncing her brain dead (despite the fact that he was not a doctor), and ordered the removal of life support without her family s consent, and despite the fact that she continued to exhibit spontaneous respiration. She died shortly after. Ms. Francois family filed a wrongful death action against Nurse Martinez, Medical Staffing, and the University of Miami. On January 5, 2010, she entered into a settlement agreement with the nurse and Medical Staffing. The settlement agreement read, in pertinent part, that Plaintiffs released Nurse Martinez and Medical Staffing from: Any and all claims, including bad faith claims, appellate claims, demands, damages, actions, causes of action, suits at law or in equity, or sum of money arising from any act or occurrence, or on account of any and all personal injury, death, disability, property damage, loss or damage of any kind whatsoever, known or unknown, already sustained or which may be hereafter sustained or allegedly sustained in consequence of any incidents, casualties, events, acts or omissions to act, from the beginning of time down to the date hereof, arising out of or resulting from the incidents occurring at the North Shore Medical Center,. The University of Miami then filed a motion for summary judgment and argued that Nurse Martinez was the initial tortfeasor, and as such, was liable for all subsequent acts of negligence. It contended that Plaintiff s action against it was barred because the settlement agreement did not clearly reserve a cause of action against the University. In response, the Plaintiff produced an Addendum to the Release and Settlement Agreement, dated April 27, 2010, which was over 45 days after the filing of the motion for summary judgment and more than 100 days after execution of the Release. The trial court initially granted the University s motion. The Plaintiff filed a motion for rehearing and argued that the Addendum was a legally binding component of the original agreement, not parole evidence, and should have been considered. The court granted Plaintiff s motion for reconsideration. This appeal followed. Continued from page 7 Continued on page 8 The appellate court reversed the lower court s ruling. It cited the general principle that when a person is injured by the wrongful act of one tortfeasor and that injury is subsequently aggravated by the wrongful act of another tortfeasor, the negligence of the initial tortfeasor is the proximate cause of the negligence of the subsequent tortfeasor. The rationale for this rule is to: 1) prevent the victim from receiving a double recovery, and 2) prevent the subsequent tortfeasor from being exposed to double liability to both the victim for damages and the initial totfeasor under the doctrine of Page 7 of 12

8 equitable subrogation. The injured party can elect to recover all of his damages from the initial tortfeasor or may pursue separate claims against each tortfeasor. If the injured party settles with the initial tortfeasor only and intends for the settlement to be limited to damages suffered as a result of the initial tort only, the settlement agreement and release should be carefully drafted so that it is clear that the victim is not receiving compensation from the initial tortfeasor for injuries resulting from the subsequent negligence. If the settlement agreement does not clearly reserve the victim s cause of action against the subsequent tortfeasor, it will be presumed that the victim recovered from the initial tortfeasor for all injuries. The appellate court held that the Addendum, executed after the motion for summary judgment was filed, was parole evidence and should not be considered. It then held that the release and settlement agreement did not specifically state that the Plaintiff was not receiving compensation from the settling parties for injuries resulting from the negligence of the University. As such, the University s motion for summary judgment should have been granted. CHALLENGE TO MEDICAL EXPENSES SHOULD BE ASSERTED AS AN AFFIRMATIVE DEFENSE, NOT A COUNTERCLAIM AGAINST PLAINTIFF S MEDICAL PROVIDER. Berrios v. Spine, 36 Fla. L. Weekly D2536 (Fla. 5th DCA Nov. 18, 2011) In this case, the Defendant alleged that the bills submitted by Deuk Spine were not compensable, represented bills for services that were not performed, and represented an unreasonable and excessive fee for the service performed. The Defendant believes that neither Berrios nor Pennea should be responsible for any of the billed charges, or alternatively, that neither party should be responsible for the full amount of the billed charges. The Plaintiff filed a Motion to Dismiss. In granting the motion, the trial court stated that The extent of defendant's liability for plaintiffs medical expenses will be completely determined through Plaintiff's Complaint and no additional parties are required for a full adjudication of this issue or to grant complete relief to the parties. The 5th DCA affirmed. In short, any challenge with respect to the reasonableness and necessity of medical expenses can be asserted as an affirmative defense to the plaintiff's negligence action. Allowing a personal injury defendant to sue the plaintiff's health care providers and join them to the litigation would undermine the physician/patient relationship and complicate the issues to be resolved in personal injury suit. SUMMARY OF FLORIDA SUPREME COURT CASES SHOTTS AND GESSA. On November 23, 2011, the Florida Supreme Court issued two opinions that will affect the enforceability of certain nursing home arbitration agreements in Florida. The two companion opinions are Shotts v. OP Winter Haven, Inc., 2011 WL (Fla. 2011) and Gessa v. Manor Care of Florida, Inc., 2011 WL (Fla. 2011). Both cases addressed essentially the same issues. Shotts v. OP Winter Haven, Inc., 36 Fla. L. Weekly S665 (Fla. 2011); Gessa v. Manor Care of Fla. Inc., 36 Fla. L. Weekly S676 (Fla. 2011) Page 8 of 12

9 Under these rulings, provisions in nursing home arbitration agreements that cap noneconomic damages and prohibit punitive damages violate public policy. The Court concluded that any arbitration agreement that substantially diminishes or circumvents [the remedies of Chapter 400] stands in violation of the public policy of the State of Florida and is unenforceable. Most significantly, the Court held that these limitation-on-liability provisions were nonseverable because they constitute the financial heart of the agreement. In other words, the Court refused to allow these provisions to be removed from the agreement while enforcing the remainder of the agreement to arbitrate. The Court invalidated the entire agreement to arbitrate due to the presence of the limitation-on-liability provisions. Additionally, arbitration agreements that incorporate the Rules of Procedure for Arbitration of the American Health Lawyers Association ( AHLA ) (which requires clear and convincing evidence of intentional conduct, recklessness or fraud to recover certain damages) are likewise not enforceable. Again, the Court did not allow this provision to be severed to allow the remainder of the arbitration agreement to remain intact. Another primary issue decided was whether a Florida trial court versus an arbitrator is the proper forum to decide whether provisions of arbitration agreements violate public policy. The Court held that the trial court, not the arbitrator, determines whether an arbitration agreement is unenforceable on public policy grounds. Thus, these issues will be litigated in Court rather than taken up with the arbitrator. Based on these decisions, it will be extremely difficult to enforce nursing home or ALF arbitration agreements that contain limitations on liability, such as a cap on noneconomic damages or prohibition of punitive damages. Even prior to Shotts and Gessa, such provisions would likely be stricken as against public policy, but the agreement to arbitrate would otherwise be enforced. The difference now is that the entire arbitration agreement will most likely be invalidated if it contains these provisions. Based on the way the law has developed in Florida, provisions limiting damages in nursing home or ALF arbitration agreements serve little value because they are typically invalidated if the agreement is contested by the claimant. Now, they place the validity of the entire agreement at risk. Continued on page 10 Continued from page 9 The arbitration agreements that will remain strongly enforceable after Shotts and Gessa are those that do not attempt to increase the burden of proof to clear and convincing evidence, and do not contain the common limitations on damages, such as a $250,000 cap on noneconomic damages or a prohibition on punitive damages. OWNER S CONSENT TO USE VEHICLE CANNOT BE VITIATED BY INVOCATION OF THIRD PARTY AGREEMENTS ATTEMPTING TO LIMIT SCOPE OF WHO MAY OPERATE THE VEHICLE. Chandler v. Geico Indem. Co., 36 Fla. L. Weekly S660 Page 9 of 12 (Fla. 2011)

10 The issue on appeal was whether the insurer has a duty to indemnify where the insured rented a vehicle when her insured vehicle became disabled under a rental agreement which stated that no additional operators are authorized or permitted. The insured permitted the rental vehicle to be used by an unauthorized operator. That person in turn allowed the vehicle to be operated by another unauthorized operator who operated the vehicle in a negligent manner, resulting in serious injuries to some passengers and death of another passenger. The answer is yes. Under Florida s Dangerous Instrumentality Doctrine, an owner's consent to use the vehicle cannot be vitiated by invocation of third-party agreements attempting to limit the scope of who may operate the vehicle. Geico filed a declaratory action seeking a determination that Geico had no duty under the policy to defend and indemnify. The trial court granted summary judgment in favor of the insured. The 1st DCA reversed on the grounds that the rental car provider defined the scope of permissible use of the subject vehicle to allow the insured permission to use the rental car so long as she was the only person who did so. Therefore, because the subject vehicle was used without permission, it was not a temporary substitute auto under the terms of the policy. The Supreme Court reversed again. It relied on two previous decisions, Susco and Roth, which held that under Florida's common law dangerous instrumentality doctrine, an owner's, bailee's, lessee's, or permittee's consent to the use of a vehicle cannot be vitiated by invocation of third-party agreements attempting to limit the scope of who may operate a vehicle. The Susco and Roth cases recognize that in the very nature of modern automobile use a lessee of a rental car often has to turn the car over to car park, garage, or filling station personnel and others for temporary operation and that it would be unreasonable to negate the rental car agency's liability and its insurance coverage in case of an accident because of the existence of a collateral or side agreement of the kind involved here. Often such permittees of rental car lessees temporarily driving rental cars would not be as fortunate as the permittee and have the protection of their own personal auto liability insurance coverage, rendering it even more difficult for injured members of the public to recover their losses arising from the negligence of drivers of rental cars. ABSENT BEING EXCUSED BY THE COURT, THE PARTY MUST APPEAR AT MEDIATION, AND A REPRESENTATIVE CANNOT TAKE THE PARTY S PLACE The 5th DCA ordered appellate mediation in this matter. C.O.D. Trees Partnership filed a motion with this court seeking sanctions against Carden & Associates, Inc. (Carden), and Lenwood Hollister, Jr., for their failure to appear at appellate mediation in violation of this court's order. See Fla. R. App. P Carden & Assoc. Inc., v. C.O.D. Trees P ship, 37 Fla. L. Weekly D104 (Fla. 5th DCA Jan. 6, 2012) Neither Hollister nor a representative of Carden attended the mediation; only their insurance company representative and attorney appeared. No motion was filed with the court seeking to excuse the personal appearance of Carden and/or Hollister from the mediation. The law is clear that, absent being excused by the court, the party must appear at mediation and a representative of the insurance company cannot take the party's place. See, Carbino v. Ward, 801 So. 2d 1028 (Fla. 5th DCA 2001). The fact that Carbino involved a trial mediation, rather than an appellate mediation, is Page 10 of 12

11 of no relevance since the appearance language in the applicable rules is identical. See Fla. R. Civ. P (b). See also, Harrelson v. Hensley, 891 So. 2d 635 (Fla. 5th DCA 2005). Motion for Sanctions granted. Carden and Hollister were ordered to pay the following amounts as sanctions: (1) all fees charged by the mediator in connection with this appellate mediation; and, (2) C.O.D.'s reasonable costs and attorneys' fees incurred in preparing for and attending the appellate mediation and filing the instant motion for sanctions. Page 11 of 12

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