Injury Law Updates:  Week of June 10

First DCA

Ross v. City of Jacksonville (No. 1D18-2994) – Suit against governmental agency.

David Ross was injured when a vehicle fleeing law enforcement officers struck his vehicle.  Prior to striking his vehicle, the evading vehicle almost hit various pedestrians when it sped out of a driveway and the pursuit reached 80 mph down side streets.  Ross sued the city of Jacksonville for his injuries from the car accident.  Ross argued law enforcement officers breached their duty of conduct in an overly aggressive pursuit and that he was injured as a result.

The trial court granted summary judgment in favor of the City of Jacksonville.  In so doing, the trial court found that Florida Statute Section 768.28(9)(d)(1) granted immunity to the city for the actions of law enforcement officers.  

Florida Statute Section 768.28(9)(d)(1) provides that the employing agency of a law enforcement officer is not liable for injuries caused by pursuit if 

1) the pursuing officers did not act in a manner so reckless as to constitute disregard for human life, rights, safety, or property; 

2) the pursuing officers who initiated the pursuit reasonably believed the person fleeing had committed a forcible felony; and 

3) the pursuit was conducted in accord with written agency policy and the officer received instruction training on the policy.

The trial court found the evidence failed to demonstrate the pursuit was conducted in a manner so reckless and wanton as to constitute a disregard for human life.  The trial court also found that the other elements to immunity were met.  Ross appealed.

The First District Court of Appeal affirmed the trial court’s ruling under the analysis of the current statute.  In so doing, the appellate court found that the trial court could determine the reasonableness of the officers’ actions.  The appellate court also considered the total distance of the vehicle pursuit (5.5 miles) and the testimony of the initiating officer that he witnessed a forcible felony.  The appellate court also remarked that under these facts, Ross’ argument would render all high-speed chases on public roads reckless.  

Second DCA

None being discussed this week.

Third DCA

None being discussed this week.

Fourth DCA

Sherrer, MD v. Hollingsworth (No. 4D18-830) – Medical Malpractice.

Hollingworth filed suit alleging that her doctor negligently failed to treat her medical condition by failing to provide her with proper medication.  Sherrer, MD initially asserted Hollingworth’s claims could not impose liability because she executed proper informed consents, pursuant to Florida Statute Sections 768.46 and/or 766.103 but did not advance this theory at trial.  The parties tried the case on a general negligence theory only. After the charge conference, Hollingsworth sought to add a jury instruction concerning informed consent. Sherrer, MD objected, claiming that such a claim was never raised at trial and required expert testimony – of which there was none.  The trial court allowed the informed consent instruction and the jury awarded over $15 million.

The Fourth District Court of Appeal reversed the verdict finding that the lack of informed consent is a separate and distinct theory of negligence and that the issue was not tried by consent or otherwise.  

The doctrine of informed consent requires a doctor to provide a patient with sufficient information concerning proposed treatments or procedures.  However, in Hollingworth’s action the doctor failed to offer the necessary medication. As such, there was no connection with the failure to offer medication and informed consent.  Including such a jury instruction added a theory of negligence that allowed the jury to find the doctor was negligent even if the decision not to administer certain medication fell within the standard of care.

Hoch v. Loren & Kean Law, et al (No. 4D18-1407) – Defamation

Loren & Kean Law were retained by the board of directors of a condominium to deal with Hoch, a unit owner.  Hoch was upset at some of the decisions made by the board of directors. Loren & Kean Law sent Hoch a cease and desist letter.  A copy of the letter was send to their client. Hoch filed a defamation action based on the production of the letter to Loren & Kean Law’s client.  The trial court dismissed the case. Hoch appealed.

The Fourth District Court of Appeal affirmed the order of dismissal.  In doing so, the appellate court found that the interests of Loren & Kean Law and their client were so unified it was tantamount to “talking to itself” and thus could not be considered publication to a third party.

Leon v. Pena and Parajon (No. 4D18-2071) – Trip and Fall.

Leon lived in a condominium for almost ten years.  During that entire time, she was aware of a specific crack in the sidewalk and had watched it continue to worsen.  In fact, she had traversed the area numerous times and without incident. Although she informed the landlords of the need of repair, no repairs were made.  Ultimately, Leon was injured when one day she lost her footing and fell. Following her trip and fall injury, Leon filed suit against the landlords under two theories, 1) failing to warn of the condition, and 2) failing to maintain the premises.  The landlords moved for summary judgment claiming that the condition was open and obvious. The landlords highlighted Leon’s own testimony that she was aware of the condition as well as the fact that other, safer paths of travel were available for use.  The trial court granted the landlords motion and Leon appealed.

The Fourth District Court of appeal affirmed the granting of summary judgment on the duty to warn but reversed as to the duty to maintain.  In so doing, the appellate court highlighted that a landowner or occupier owes an invitee two independent duties, 1) to maintain the premises in a reasonable safe condition, and 2) to warn of concealed perils.  While Leon’s knowledge of the condition and the condition itself may be so obvious so as to discharge a duty to warn, it did not discharge the duty to maintain the premises in a reasonably safe condition. Rather, Leon’s knowledge of the condition could be raised as an issue of fact as to her own comparative fault in causing her own injury.

American Airlines, Inc. v. Cimino (No. 4D18-2485) – Discovery

Cimino, a 34 year employee without history of incident, committed suicide after he was fired by American Airlines.  Cimino’s Estate filed suit against American Airlines for various causes of action including wrongful death, negligent retention and negligent and intentional infliction of emotion distress.  At the heart of the case was the theory that Diaz, Cimino’s supervisor, disliked Cimino and other similar white, non-Hispanic males, and subjected them to abuse, bullying and termination and replacement with Hispanic employees.  It was alleged that American Airlines was aware of the bullying and harassment as well as the mental health of Cimino as a result of his participation in American Airline’s mental health program.

After Cimino’s suicide, American Airlines started an investigation to gather information to assess American Airline’s potential liability to Cimino’s Estate as well as other employees.  After filing suit, Cimino’s Estate attempted to obtain various documents as well as answers to written depositions questions from non-parties. While American Airlines asserted the information was privileged, Cimono’s Estate argued that the privilege was waived due to the assertion of various affirmative defenses.  The trial court ordered the documents produced and found the privilege was waived.  

The Fourth District Court of Appeal quashed the trial court’s order.  The appellate court found that the order of production of documents without conducting an in camera hearing or defining the scope of the purported waiver was not proper.

Orthopedic Center of South Florida v. Sode (No. 4D18-3478) – Discovery

Sode was injured in a bicycle accident.  After filing suit for his injuries, a defense doctor conducted a medical examination of Sode.  Following that examination, Sode served a subpoena on Orthopedic Center of South Florida, the business entity under which the defense doctor ran, seeking financial discovery of the relationship between the defendant’s insurance company and Orthopedic Center of South Florida.  The business entity objected and the matter was set for hearing.  

At the hearing the business entity claimed the discovery was outside the scope of permissible discovery.  Sode argued that the information would show financial bias as 5 out of 9 doctors at the business had performed work for defense insurance companies and all shared in the revenue and profits.  Sode further pointed out that the defense firm had retained the business entity 120 times in the prior three years equating to hundreds of thousands of dollars. The trial court entered an order granting some of Sode’s requests and denying others.  Orthopedic Center of South Florida then filed a Petition seeking protection from production.

The Fourth District Court of Appeal granted the business entity’s petition.  In so doing it found that the Florida Supreme Court had already laid the boundaries of expert discovery in Elkins v. Syken (Fla. 1996) and that Sode’s requests exceeded those boundaries.  As for whether or not Elkins applied to the defense doctor’s non-party business entity, the appellate court said yes.  Specifically, the court stated:

“As stated above, the protections afforded to an expert under rule 1.280(b)(5)(A)(iii) and Elkins should extend to [Orthopedic Center of South Florida].  Accordingly, to the same extent such information could be obtained from an expert, we conclude it is proper to seek the production of documents from a business entity non-party with whom an expert is affiliated that could establish bias on the part of the expert.”

The court also noted that Sode’s counsel had utilized an improper vehicle in order to request the information.  Specifically, Sode’s subpoena to the business entity sought answers to various questions rather than listing the documents sought.  The court reviewed Florida Rules of Civil Procedure 1.310(b)(1) and 1.351 and concluded neither of those rules allowed for a subpoena that asks questions or requests descriptions.

NOTE:  This opinion seems to attempt to balance the protection of a business from overly intrusive discovery with an injured party’s need of financial bias to illustrate why the member expert may have reached certain conclusions (want more business, has been paid significant amounts previously, etc).  However, by limiting the financial discovery of the non-party business to only 1.280(b)(5)(A)(iii), one can see an instance where a non-party earns a significant amount of money through expert work for one side but where the percentage of income is skewed lower as a result of income derived from other non-expert member contributions.

Fifth DCA

R.J. Reynolds Tobacco Co. v. Estate of Lewis (No. 5D17-773, 5D18-3654) – Attorneys’ Fees

In this wrongful death case, RJ Reynolds appealed the award of attorney’s fees pursuant to a proposal for settlement.  RJ Reynolds argued that the trial court inappropriately allowed for the recovery of costs for four non-testifying experts and that but for those costs, Estate of Lewis would not have exceeded the proposal for settlement threshold.  The Fifth District Court of Appeal agreed.

The appellate court reiterated that “the judgment obtained” pursuant to the proposal for settlement statute includes the net judgment for damages and any attorneys’ fees and taxable costs which could have been included in a final judgment if such final judgment was entered on the date of the offer.  The court next reviewed what may be considered a taxable cost. In reviewing the Uniform Guidelines for Taxable Costs, the appellate court found that while costs for an expert’s deposition and/or trial testimony should be taxed, any expenses relating to a consulting, but non-testifying expert, should not.

The appellate court recalculated the amount of taxable costs after removing the non-testifying expert costs.  It concluded that the Estate of Lewis came up well short of surpassing the proposal for settlement threshold.


About Injury and Wrongful Death Attorney Justin H. Presser

Justin H. Presser is an award-winning attorney and founder of Presser Law, P.A. representing clients in the areas of personal injurycar accidentsmotorcycle accidentswrongful death and more.  With an office located in Altamonte Springs, Florida, Presser Law, P.A., proudly services clients throughout Central Florida including the following areas:  Orange County including Orlando, Ocoee, Doctor Phillips, Apopka, Winter Garden, Winter Park, Maitland, College Park, Thornton Park;  Seminole County including Altamonte Springs, Longwood, Winter Springs, Lake Mary, Oviedo, Casselberry, Chuluota;  Lake County including Clermont, Mount Dora, Eustis, Tavares, Leesburg, Sorrento; and Brevard County including Melbourne, Merritt Island, Cocoa Beach, Titusville, Palm Bay.

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