La Cava & Jacobson, P.A.

Florida Law Weekly – July 27, 2018

Manzaro v.  HCA, (3rd DCA)

In this wrongful death malpractice case, the Manzaro Court held that the Trial Court properly dismissed the complaint where there was a failure to comply with the statutory presuit requirements pursuant to Florida’s medical malpractice laws. The Trial Court conducted a two-hour hearing to afford the plaintiff the opportunity to demonstrate that he conducted a good faith investigation and had a reasonable basis for the claims asserted in the complaint. As the Manzaro Court concluded, while the death certificate asserted that the decedent died of natural causes, the autopsy report of the plaintiff’s expert was inconclusive. There was no corroborating expert affidavit and the Trial Court further found that there were scant details among the facts to explain the actual proximate cause of the wrongful death alleged. The Trial Court also found that it was not at all clear what the doctors and hospitals did or failed to do that constituted a breach of the standard of care that may have resulted in the wrongful death. As this finding was made after the expiration of the two-year statute of limitations, the matter was dismissed with prejudice properly.

La Cava & Jacobson, P.A.

Florida Law Weekly – July 13, 2018

Osceola Regional Hospital v. Calzada, (5th DCA)

In an argument presented by Mr. Azzarone and Mr. Nelson, the Osceola Regional Hospital Court agreed that the Trial Court departed from the essential requirements of law in denying the defendant hospital’s motion to dismiss the complaint on the basis that the plaintiffs failed to comply with presuit. The Osceola Regional Hospital Court held that the Trial Court was required to conduct an evidentiary hearing and make express findings as to whether the plaintiff complied, or did not comply, with Florida’s medical malpractice presuit screening requirements.

La Cava & Jacobson, P.A.

Florida Law Weekly – July 6, 2018

Kim v. Chang, (2nd DCA)

In this case, the Kim Court held that the Trial Court erred in denying a counterclaim defendant’s motion for directed verdict on the counter claim for intentional infliction of emotional distress where the evidence was legally insufficient to establish that the conduct caused severe emotional distress. The Kim Court goes into an extensive analysis of what is required under this cause of action and specifically the elements of outrageous conduct that is beyond all bounds of decency and utterly intolerable in a civilized community. As the Kim Court noted, the definition of severe emotional distress is the equivalent of severe emotional distress that involves the stress that is so severe that no reasonable man could be expected to endure it and that the intensity and duration of the distress are factors to be considered in determining severity. With respect to causation, the Kim Court notes that the distress must be so long-lasting that no reasonable person could expect to endure it the court found that there was no evidence establishing either of these elements and therefore directed verdict should have been entered.

La Cava & Jacobson, P.A.

Florida Law Weekly – June 29, 2018

Bechtel Corporation v. Batchelor – (3rd DCA)

In this premises liability action, the Bechtel Corporation Court held that the Trial Court erred in denying the defendant’s motion for directed verdict where there was insufficient evidence that the defendant exercised possession and control of the premises required to satisfy a premises liability claim. The Bechtel Corporation Court agreed that where more than one person is under a duty to maintain the premises, liability is predicated upon the person who has control of egress and ingress and not ownership of the property. Given that no witnesses testified that the defendant had controlled the property, the Trial Court should have granted a directed verdict.

La Cava & Jacobson, P.A.

Florida Law Weekly – June 22, 2018

Wallace v. Keldie – (1st DCA)

The Court held that the Trial Court did not abuse its discretion by dismissing a personal injury suit for fraud upon the court where the plaintiff fraudulently concealed his history of chronic low back pain by falsely testifying about his medical history during deposition. According to medical records, seven months prior to the accident at issue, the plaintiff slipped and fell off a stepladder resulting in pain radiating into his left leg. Additionally, a medical records from an emergency room visit 9 days after the accident at issue reflected that the plaintiff stated that his back pain began a long time ago and it was made worse by the first accident. The court did not accept the plaintiff’s explanation that a poor memory caused his memory loss or that his testimony was influenced by heavy drinking or medications.

La Cava & Jacobson, P.A.

Florida Law Weekly – June 1, 2018

City of Coral Gables v. Blanco – (3rd DCA)

In this case, the Court held that it did not have jurisdiction to review a non-final Order where the Trial Court found that the City, as a matter of law, was not entitled to sovereign immunity at the Motion to Dismiss stage.  The Trial Court found that the City failed to establish that sovereign immunity was self-evident under the facts as pled.  This case reinforces the standing rule of the Courts of Appeal that at the Motion to Dismiss stage, sovereign immunity is not an appealable issue unless the Trial Court holds, as a matter of law, that the party is not entitled to sovereign immunity.

La Cava & Jacobson, P.A.

Florida Law Weekly – May 25, 2018

Rodriguez v. Nicolitz, M.D.  – (1st DCA)

In this medical malpractice case, the Rodriguez Court held that the Trial Court properly dismissed an action against an ophthalmologist upon finding that the Affidavit of the Plaintiff’s expert, an infectious disease specialist, was inadequate to satisfy pre-suit notice requirements. The Rodriguez Court specifically found that the expert did not practice in the same specialty as the Defendant.

La Cava & Jacobson, P.A.

Florida Law Weekly – May 18, 2018

Rodriguez v. City of South Miami –  (3rd DCA)

In this case, utilizing its Certiorari jurisdiction, the Rodriguez Court, reversed a Trial Court Order compelling the Plaintiff to sign a document authorizing the release of his mental health records to the Defendant.  The Rodriguez Court held that the records were protected by the psychotherapist-patient privilege and the City failed to show that the Plaintiff placed his mental health status at issue.  In its opinion, the Rodriguez Court looked to Florida Statute § 90.503(2) which establishes the privilege.  The City’s argument with respect to entitlement was that the Plaintiff had filed a Motion to Dissolve a Temporary Restraining Order and in paperwork the Plaintiff noted that he was stable and taking his medication.  The Rodriguez Court found that this statement alone did not permit the waiver of the privilege.

Domino’s Pizza v. Wiederhold – (5th DCA)

In this wrongful death case, the Court held that a statutory survivor and specifically, a surviving spouse, in order to be qualified to bring the suit and to receive benefits pursuant to Florida law, needed to be married to the decedent at the time of his death and not at the time of the injury.

La Cava & Jacobson, P.A.

Florida Law Weekly – May 11, 2018

Lamb v. State – (4th DCA)

In this case, the Lamb Court addressed whether a Facebook live video was admissible in the criminal context as evidence of guilt.  The Court went through a detailed analysis with respect to how the video was obtained by the police, as well as presented at trial.  Specifically, the State introduced the testimony of a police digital forensic examiner to authenticate the video.  As part of this process, the witness authenticated the video by its distinctive characteristics.

The Lamb Court held that the Trial Court properly authenticated and allowed the video to be presented to the jury.  The Lamb Court recognized that authentication is a very low threshold which was met by the witness visiting the Facebook page and downloading the live video.

La Cava & Jacobson, P.A.

Florida Law Weekly September 30, 2016

Saterbo v. Markuson (Fla. 2d DCA):  In this automobile accident case, the Court addressed the enforceability of  a joint proposal for settlement.  The plaintiff filed a lawsuit against the driver of the car for direct negligence and the owner of the vehicle, which is a vicarious liability claim.   The proposal for settlement did not apportion the amount due to each defendant.  The Trial Court denied the plaintiff’s request for attorneys’ fees pursuant to the proposal for settlement, finding that the failure to apportion violated Florida Rule of Civil Procedure 1.442.  The Trial Court also found that the proposal was ambiguous because it failed to account for the fact that there was a statutory liability cap of damages applicable to the vehicle owner, thus making it impossible to decide whether or not to accept it.

 

The Second District Court of Appeal reversed, citing to Florida Rule of Civil Procedure 1.442(c)(4) which provides that, ““when a party is alleged to be solely vicariously … liable, whether by operation of law or by contract, a joint proposal made by or served on such a party need not state the apportionment or contribution as to that party.”   The defendants  argued that because the owner could be held liable for amounts above the statutory cap, the owner’s liability was not solely vicarious and therefore, Rule 1.442(c)(4) did not apply.  The Second District disagreed, stating, “The focus of the exception contained in rule 1.442(c)(4) is not whether a party is liable for the full amount of damages, but rather, it is whether the claims against the party are direct claims or solely claims of vicarious or other forms of indirect liability.”     The Second District also disagreed that the proposal was ambiguous because of the cap, relying on the finding of the Florida Supreme Court in State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1079 (Fla.2006), where it recognized that with proposals for settlement, “it may not be possible to eliminate all ambiguity and, therefore, that the rule ‘merely requires that the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification.’”