WICKER SMITH O HARA MCCOY & FORD P.A. Torts Premises Liability Slip and Fall. Civil Procedure. Torts Automobile Accident Discovery

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1 WICKER SMITH O HARA MCCOY & FORD P.A. SEPTEMBER / OCTOBER 2014 Torts Premises Liability Slip and Fall Civil Procedure Torts Automobile Accident Discovery Wrongful Death Workers Compensation Immunity Attorney s Fees Proposal for Settlement Wrongful Death Medical Malpractice Presuit Requirements Attorney s Fees Prevailing Party Contractual Provision

2 Facts: Appellant was assisting a disabled companion with his shopping at Winn-Dixie. Upon completing shopping, Appellant was outside for five or ten minutes before returning the electric cart. While returning the electric cart, Appellant testified that there started to be a light, "misting" rain. Appellant got off of the cart and walked toward the door but slipped and fell less than a foot Teresa Walker, Appellant, v. Winn- Dixie Stores, Inc., a Florida profit corporation, Appellee. 1st District. Case No. 1D Opinion filed August 20, away from the cart. Appellant saw no water or other liquid substance before she fell. She claimed she saw "wet tracks" from the wheels of the cart but she described the condition that led to her fall as "just drops of water" that were "unnoticeable." The store manager observed the store surveillance video and testified that that two employees inspected the area two to three minutes before the incident happened. Appellant conceded that she was proceeding on a constructive theory of negligence. The trial court entered summary judgment in favor of the Defendant. Issue: Whether there was a genuine issue of material fact as to whether Defendant had constructive knowledge of the transitory foreign substance? Rule: If a person slips and falls on a transitory foreign substance in a business establishment, the injured party must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge may be proven by circumstantial evidence showing that (a) the condition existed for such a length of time that, in the exercise of ordinary care, the business should have known of the condition; or (b) the condition occurred with regularity and was therefore foreseeable. Analysis: Appellant's own testimony showed that it had only started misting roughly one minute before she fell and employees of the facility had inspected the area just three minutes prior to her fall, which indicated that the "unnoticeable" drops of water had been on the floor for less than four minutes. This brief period of time was insufficient to satisfy the time requirement where Defendant should have known of the condition. Appellant also failed to establish evidence of recurring water in the area in question or prior incidents in that area, and therefore failed to establish the regularity requirement of constructive notice. Conclusion: The appellate court affirmed the granting of summary judgment in favor of the Defendant. Page 2 of 10

3 Facts: Appellant filed a pro se complaint for declaratory judgment in county court to determine whether private docks were built on common property of her condominium associations. Appellant, who subsequently was represented by counsel, sought to amend her complaint and transfer to circuit court, but had both her first and second amended complaints dismissed for Michelle Gerbino, Appellant, v. Isle of Paradise B, Inc., Gus Nasiell, Jean-Paul and Marie Berthiaume, Kasey and Kevin Mcclung, and Anthony Vitale, Appellees. 4th District. Case No. 4D August 20, differing reasons but both times Appellant was given leave to amend. After Appellant missed the deadline to file her third amended complaint, Appellee again moved to dismiss the complaint for failure to state a cause of action and to dismiss with prejudice. The Appellant filed her third amended complaint shortly thereafter. The court granted the motion to dismiss relating to the third amended complaint with leave to amend within thirty days to name indispensable parties. The day before the fourth amended complaint was due to be filed, Appellant filed a motion for extension of time to file the new complaint to conduct additional investigation. Appellee objected and a hearing was held on the motion for extension of time. At this hearing, the court denied the motion for extension and entered a final order dismissing the complaint with prejudice. Issue: (1) whether the court failed to give proper notice of intent to dismiss with prejudice when it entered final judgment at the motion for extension hearing; and (2) whether the trial court failed to consider the Kozel factors when dismissing the case with prejudice for untimely filing an amended complaint? Rule: Once a court has dismissed a complaint with leave to amend, it cannot subsequently dismiss with prejudice for failure to timely amend unless (1) separate notice is given to plaintiff of the hearing on the motion to dismiss with prejudice, or (2) the order dismissing the complaint with leave to amend specifically provides that on failure to amend within the stated time, the cause will be dismissed without further action. Neu v Turgel, 480 So. 2d 216, 217 (Fla. 3d DCA 1985). A courts discretionary authority to dismiss with prejudice cannot be exercised without consideration of six factors to assure that the ultimate sanction of dismissal will not be imposed on the client solely for the attorney's neglect. The factors include: (1) whether the attorney's disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; (2) whether the attorney has been previously sanctioned; (3) whether the client was personally involved in the act of disobedience; (4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; (5) whether the attorney offered reasonable justification for noncompliance; and (6) whether the delay created significant problems of judicial administration. Kozel v. Ostendorf, 629 So. 2d. 817, 818 (Fla. 1993). Analysis: The court did not give the proper notice of its intent to dismiss with prejudice. The court did not utilize either of the alternatives in Neu of either providing separate notice of the hearing on the motion to dismiss with prejudice or specifying in the previous order on the motion to dismiss that untimely filing of the amended complaint would result in dismissal with prejudice. The court also failed to consider the Kozel factors in dismissing the appellant's complaint with prejudice and the court provided no analysis of why it was dismissing the case with prejudice, other than that the Page 3 of 10

4 plaintiff had not timely amended the complaint. Alone, untimeliness is insufficient to warrant dismissal with prejudice. Conclusion: Reversed and remanded. Neil Brown, Petitioner, v. Esther Mittelman, Respondent. 4th District. Case No. 4D August 27, Facts: The underlying litigation is a negligence action arising from an automobile accident. The plaintiff's attorney, Cindy Goldstein, referred the plaintiff to Dr. Brown, who treated the plaintiff under a letter of protection ( LOP ) agreement. The law firm of Lytal, Reiter, Smith, Ivey & Fronrath, LLP ( Lytal Reiter ) joined as Ms. Goldstein's co-counsel. Defendant/respondent subsequently subpoenaed the person with the most billing knowledge at Dr. Brown's office to produce documents regarding patients previously represented by both law firms, LOP cases, and referrals from the plaintiff's attorneys. The trial court overruled Dr. Brown's objections to the subpoena and compelled discovery of the requested documents. Issues: Whether trial court did not depart from essential requirements of law in overruling treating physician's objections to subpoena requesting documents regarding patients previously represented by law firms representing plaintiff, letter of protection cases, and referrals from plaintiff's attorneys, which discovery sought to uncover ongoing relationship between doctor and plaintiff's lawyers that might bias doctor to provide favorable testimony for the plaintiff. Rules: A party may attack the credibility of a witness by exposing a potential bias (2), Fla. Stat. (2009). The financial relationship between the treating doctor and the plaintiff's attorneys in present and past cases creates the potential for bias and discovery of such a relationship is permissible. See Morgan, Colling & Gilbert, P.A. v. Pope, 798 So. 2d 1, 3 (Fla. 2d DCA 2001); Springer v. West, 769 So. 2d 1068, 1069 (Fla. 5th DCA 2000). A physician may derive substantial income from treating patients involved in litigation beyond the provision of services as a retained expert. A jury is entitled to know the extent of the relationship between the treating doctor and the referring law firm. See Allstate Ins. Co. v. Boecher, 733 So. 2d 993, 997 (Fla. 1999) ( The more extensive the financial relationship between a party and a witness, the more it is likely that the witness has a vested interest in that financially beneficial relationship continuing. ). The discovery available under rule 1.280(b)(5) does not compel full disclosure of a treating physician's potential bias. The rule limits discovery to [a]n approximation of the portion of the expert's involvement as an expert witness based on data such as the percentage of earned income derived from serving as an expert witness. Fla. R. Civ. P (b)(A)(5)(iii)4. (emphasis added). A physician's continued financial interest in treating other patients referred by a particular law firm could conceivably be a source of bias not immediately apparent to a jury. Morgan, 798 So. 2d at 3. Rule 1.280(b)(5) neither addresses nor circumscribes discovery of this financial relationship. Analysis: Whether the law firm directly referred the plaintiff to the treating physician does not determine whether discovery of the doctor/law firm relationship is allowed. In Katzman v. Rediron Page 4 of 10

5 Fabrication, Inc., 76 So. 3d 1060, 1064 (Fla. 4th DCA 2011), the Fourth District Court recognized a direct referral by the lawyer to the doctor as one circumstance that creates a potential for bias. However, the court held that contrary to Dr. Brown's assertion, there was no intent to limit discovery to that narrow situation. See, e.g., Pack v. Geico Gen. Ins. Co., 119 So. 3d 1284 (Fla. 4th DCA 2013) (recognizing that the potential bias arising from a letter of protection exists independent of any referral relationship). A doctor's referral arrangements with a law firm in other cases is a proper source for impeachment. Flores v. Miami-Dade Cnty., 787 So. 2d 955, (Fla. 3d DCA 2001). Thus, the fact that Lytal Reiter did not directly refer the plaintiff to Dr. Brown made no difference. Similar to the protections afforded to retained experts under rule 1.280(b), courts have recognized that a treating physician witness should be protected from overly-intrusive financial discovery. Steinger, Iscoe & Greene, P.A. v. GEICO Gen. Ins. Co., 103 So. 3d 200, (Fla. 4th DCA 2012). Trial courts have broad discretion to balance the interests involved and generally should not permit extensive discovery of a treating physician's finances. See Syken v. Elkins, 644 So. 2d 539, (Fla. 3d DCA 1994), approved, 672 So. 2d 517 (Fla. 1996). Such overly-intrusive discovery creates a chilling effect on the availability of experts willing to serve as witnesses in litigation, id. at 547, and could similarly chill the willingness of doctors to treat patients involved in litigation. This does not mean that all relationships between law firms and treating doctors can be kept hidden from scrutiny. In cases where there is evidence of a referral relationship, more extensive financial discovery may be appropriate from both the law firm and the doctor. See Steinger, Iscoe & Greene, P.A., 103 So. 3d at 206. Conclusion: Respondent was not asking for broad financial discovery. The discovery sought to uncover an ongoing relationship between Dr. Brown and the plaintiff's lawyers that might bias the doctor to provide favorable testimony for the plaintiff. The discovery was limited to a reasonable time frame and was not overly-intrusive. Thus, the trial court did not depart from the essential requirements of the law in overruling Dr. Brown's objections. The rule limiting financial discovery from retained experts cannot be used to hide relevant information regarding a treating physician's possible bias or the reasonableness of the charges at issue in the litigation. See Rediron Fabrication, Inc., 76 So. 3d at Limiting this discovery has the potential for undermining the truth-seeking function and fairness of the trial. Boecher, 733 So. 2d at 998. As the Second District concluded in a similar case involving discovery of the relationship between an expert and a law firm, rather than departing from the essential requirements of the law, the circuit court's order conforms to the trend insuring fairness in the jury trial process by permitting discovery of a financial relationship between a witness and a party or representative. Morgan, Colling & Gilbert, P.A., 798 So. 2d at 3. Trial courts have broad discretion in controlling discovery and protecting the parties that come before it. Certiorari jurisdiction will not generally be exercised to interfere with that discretion and find no compelling reason to do so here. Page 5 of 10

6 Teresa Arvizu, as Personal Representative of Estate of Olegario Rincon, Appellant, v. Heights Roofing, Inc., Israel Garcia and Hector Cabrera, Appellees. 3rd District. Case No. 3D L.T. Case No Opinion filed September 3, Facts: Olegario Rincon suffered fatal injuries during a workplace accident. The Personal Representative of his Estate filed a civil suit against Olegario's employer and supervisors. No other facts were provided. Issue: Whether Plaintiff could proceed with a civil suit, or whether Defendants were entitled to summary judgment on basis of worker's compensation immunity. Rule: In order to remove a case from the ambit of the laws of Worker's Compensation, there must be evidence that the employer acted with culpable negligence, as defined by F.S below: An employer s actions shall be deemed to constitute an intentional tort and not an accident only when the employee proves, by clear and convincing evidence, that: 1. The employer deliberately intended to injure the employee; or 2. The employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work. Analysis: The court held that Plaintiff failed produce sufficient evidence of culpable negligence on the part of the employer required to remove the case from the ambit of Workers' Compensation law. See Fla Dep't Transp. Juliano, 864 So.2d 11, 16 (Fla. 3d DCA 2003) (holding that there was no evidence of culpable negligence where supervisors were merely aware of poor condition and could have done more to remedy it); Mekamy Oaks, Inc. v. Snyder, 659 So.2d 1290 (Fla. 5th DCA 1995) (holding that supervisor's removal of safety switch did not amount to culpable negligence). Conclusion: Affirmed. Facts: In December 2007, Santana slipped and fell on a premises owned by Flanco Condominium Association, Inc. ("Flanco"). In May 2009, Santana filed a premises liability action against Flanco. In its answer to the Complaint, Flanco asserted that non-party Design Home Remodeling, Inc. ("DHRI") was responsible for Design Home Remodeling Corp., Appellant, v. Rene Santana and Maritza Torres, Third District. Case No. 3D L.T. Case No Opinion filed September 3, Page 6 of 10

7 negligent maintenance. Santana then filed an amended complaint, adding DHRI as a defendant and alleging that DHRI was negligent for failure to maintain. 60 days after the filing of the amended complaint, DHRI served Santana with a Rule Proposal for Settlement. Three years later, the trial court entered summary judgment in favor of DHRI. DHRI timely filed a motion for attorneys' fees. The trial court denied the motion on the basis that the Proposal for Settlement was filed prematurely under 1.442(b). DHRI appealed. Issue: Whether the trial court erred in denying the motion for attorneys' fees. Rule: A proposal for settlement to a plaintiff shall be served no earlier than 90 days after the action has been commenced. Fla. R. Civ. P (b). Provisions of Rule and F.S (the corresponding statute) must be strictly construed. Campbell v. Goldman, 959 SO.2d 223 (Fla. 2007) Analysis: DHRI served its Proposal 60 days after the amended complaint was filed, contrary to 1.442's requirement that "a proposal be served no earlier than 90 days after the action has been commenced." Thus, DHRI's Proposal violated the express 90-day requirement, and was therefore invalid. Under Campbell, the language of the Rule and corresponding statute must be strictly construed. There is no exception for "mere technical violations." Conclusion: Affirmed. Facts: Stephen Buck, as personal representative of the Decedent s estate filed a complaint against Defendant, Westside Regional Medical Center for wrongful death. The complaint alleged that on May 5, 2012, decedent was brought to Westside for complications related to her COPD. On May 7, 2012, she was scheduled to have an x-ray. The patient was transported from her room to the radiology floor. Prior to the Steve Buck as personal representative of the Estate of Joan Brown, Deceased, Appellant, v. Columbia Hospital Corporation of South Brevard, d/b/a Westside Regional Medical Center, a Florida Company, Appellee. Fourth District. Case No. 4D September 10, x-rays being taken, the transport techs lifted the patient from the transport gurney onto the x-ray table. In the course of moving the patient from the gurney to the x-ray table, the patient was dropped onto the hard x-ray table surface, causing her to sustain a fracture of her lumbar spine. Due to the patient s age, medical condition, and other factors, the treatment options for the broken back were limited, and her condition began to decline. complications from the broken back. The patient passed away due to Buck brought a negligence action against Westside for the wrongful death of Mrs. Brown. Buck did not go through pre-suit. Westside moved to dismiss the complaint, alleging that the Plaintiff failed to comply with the presuit requirements of Chapter 766 Florida Statutes. Buck argued that the pre-suit requirements of Page 7 of 10

8 Chapter 766 did not apply, because within the four corners of the complaint, the case was a general negligence claim, as opposed to a medical negligence claim. The trial court disagreed and granted Westsides s motion to dismiss. The case was dismissed with prejudice and a final judgment was entered in favor of the Westside. Issue: Whether the lower court erred in determining that the cause of action was a medical negligence action, as opposed to ordinary negligence, which would require plaintiff to comply with the pre-suit conditions precedent to bring any medical negligence action. Rule: A claim for negligence is subject to Chapter 766 s pre-suit requirements if the wrongful act is directly related to the improper application of medical services and the use of medical judgment When determining whether a complaint alleges a cause of action in medical negligence versus simple negligence, the key inquiry is whether the action arises out of medical diagnosis, treatment, or care Stubbs v. Surgi-Staff, Inc., 78 So.3d 69, 70 (Fla. 4th DCA 2012). Analysis: In looking at medical negligence terms, the Florida Supreme Court in Silva v. Southwest Florida Blood Bank, Inc., 601 So.2d 1184 (Fla. 1992) stated that there is no ambiguity to clarify the words diagnosis, treatment, or care, and the words should be accorded in their plain, unambiguous meaning. Diagnosis, treatment or care means ascertaining a patient s medical condition through examination and testing, prescribing and administering a course of action to affect a cure in meeting the patient s daily needs during the illness. The instant matter of the complaint clearly alleges that decedent sustained injuries while she was in the hospital being treated for her COPD. During the course of her treatment and while being transported from the gurney to an x-ray table, the patient was dropped and injured. Whether or not the individuals were a nurse versus an orderly is of no consequence because the individuals were engaged in the rendering of medical care services. The injury occurred while the patient was being lifted from the transport gurney on to the x-ray table as part of a medical procedure. As such, the hospital employees were providing for and attending to the patient's needs and were performing necessary medical services. Therefore, the case should be construed as alleging medical care and treatment for which Chapter 766 applies. Conclusion: The instant action arose out of providing medical care and is directly related to the improper application of medical services and the use of professional judgment or skill. As such, Chapter 766 applies. Affirmed. MCG Financial Services, L.L.C. d/b/a Approved Associates, also d/b/a NHC Hospitality Consultants & Accountants, Inc. and Joel Mason, Appellants, v. Technogroup, Inc., d/b/a Accelerated Business Solutions, Appellee. 4th District. Case No. 4D September 24, Facts: Technogroup d/b/a Accelerated Business Solutions (ABS) alleged that it entered into a contract for lease and maintenance of a copier. Although the contact showed that the services were billed to Lawen Corp, the contract was signed Page 8 of 10

9 by Joel Mason in his individual capacity as well as by Joel Mason on behalf of MCG Financial Services, LLC (MCG), doing business as Approved Associates. ABS sued both Mr. Mason and MCG for breach of contract and fraud as to Mr. Mason individually. A claim for attorneys fees was asserted in the Complaint as well as in the Answer filed by Mr. Mason and MCG. Both claims arose from the terms of the governing contract. At the non-jury trial, ABS admitted into evidence the contract as well as portion of Mr. Mason s deposition where he testified that he had signed the contact on behalf of MCG and not Lawen. Both counsel stipulated in advance that MCG and Mr. Mason were the real parties in interest. In the end, the Court found in favor Mr. Mason and MCG on the claims for breach of contract and fraud. MCG and Mr. Mason moved for attorneys fees relying on the contractual provision allowing for attorneys fees. At the hearing for fees, ABS was represented by new counsel who tried to renounce all that was stipulated by the former counsel, arguing that as new counsel he was not bound by what had previously been stipulated. He also presented the new argument that the contract was not between ABS and MCG, but rather ABS and Lawen. The trial court accepted this argument and denied the attorneys fees and MCG and Mr. Mason appeal the denial of fees. Issue: Whether ABS was permitted to take two totally inconsistent positions in the same judicial proceeding. Rule: Litigants are estopped from alleging one set of facts for one purpose and in the same proceeding deny such allegations and set up a new and different state of facts that are inconsistent for another purpose. Fed d Mut. & Hardware Ins. Co. v. Griffin, 237 So. 2d 38, 41 (Fla. 1st DCA 1970). Conclusion: Order denying the fee was reversed and the matter is remanded to the trial court to determine the amount of the fees due. Page 9 of 10

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