Articles Posted in Discovery

Following the filing of a complaint, litigants spend a considerable amount of time engaged in discovery, the stage of litigation during which the parties exchange information that will likely be relevant for the development and adjudication of the case. Although both state and federal discovery rules are quite broad, disputes during the discovery process are far from uncommon. Indeed, even when the information may be relevant, litigants will often cite various forms of privilege in an effort to preclude the exchange of information. When the parties reach an impasse, the trial court is often asked to resolve the dispute, and in a recent decision, City of Port St. Lucie v. Follano, the Fourth District Court of Appeal examined the responsibilities a trial court has in resolving a discovery dispute.

Follano began when the soon-to-be plaintiff stepped into an uncovered sewer access pipe.  The plaintiff was caught up to her knee and had to be extracted by the fire department. On the day of the accident, photographs were taken by a representative for the City of Port St. Lucie, the defendant in this case. The city’s photographs show the uncovered sewer pipe, but the city argued that much of the area had been altered by the firefighters who were working in the area. The plaintiff did take photos of the site of the accident on the following day. However, the sewer had been covered by that time. During discovery, the plaintiff moved for an order compelling the city to produce the photographs, arguing that these photos were the only available evidence of the pipe’s appearance at the time of the accident. The city opposed the motion, contending that the photos fell within the work product doctrine. Without examining the photos and relying on the representations of the plaintiff’s counsel, the trial court granted the motion compelling production. The city appealed the court’s decision.

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Many medical negligence actions are characterized by information asymmetry. Indeed, although a person may be aware that she has been injured, she may be unaware of the source of this injury and, moreover, whether the conduct leading to the injury was actually negligent. Given the imbalance in information that often exists, discovery is of particular importance in many medical malpractice cases. In fact, since 2004 the Florida Constitution has contained a provision that affords citizens a right to access particular information in medical negligence cases. The breadth of this provision, Fla. Const. article X, section 25, was recently addressed in a decision from Florida’s Second District Court of Appeal, Bartow HMA, LLC v. Edwards.

Edwards arose from an alleged act of medical negligence during a gallbladder removal surgery that resulted in the severing of the plaintiff’s common bile duct. Following this surgery, the plaintiff brought suit against the hospital where the surgery was performed and the physician who performed the procedure. During discovery, the plaintiff served the hospital with a request for all documents created within the five years prior to the procedure that related to the physician’s treatment of any patient and for all documents related to the hospital’s review of the plaintiff’s care and treatment. The hospital did not comply with the request in its entirety, arguing that certain documents were subject to privilege and thus beyond the bounds of discovery. Among the documents the hospital declined to produce were those related to a peer review of the adverse medical incident at issue that was requested by the hospital’s counsel. The plaintiff brought various motions seeking disclosure of the documents, and the trial court eventually entered an order requiring the hospital to produce all documents related to its peer review of the adverse medical incident. The hospital then brought this interlocutory appeal.

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It is understood that bringing legal action will expose your personal life to some degree of outside scrutiny. Indeed, court records are, except in limited circumstances, made available to the public. Although the dockets in most cases aren’t particularly intriguing to third parties, many litigants are legitimately concerned about what facts they let become part of a public record. This dynamic was at the heart of a recent decision from Florida’s Second District Court, Muller v. Wal-Mart Stores, Inc., which required the Second District Court of Appeal to determine whether a plaintiff’s military records were discoverable in his personal injury case.

Muller started with an accident in 2012. The plaintiff was hit by a truck owned by Wal-Mart that was being driven by an employee at a corporate distribution center. As a result of the accident, the plaintiff sustained various injuries and brought suit against Wal-Mart for various forms of bodily injuries, including, inter alia, aggravation of preexisting conditions. During the course of discovery, the defendants learned that the plaintiff had previously served in the military for more than a decade. The plaintiff stated that he had three injuries associated with his military service but asserted that he was not seeking damages for aggravation of any of his military-related injuries. Subsequently, the defendants served an additional discovery request, seeking the plaintiff’s military records. The plaintiff objected, arguing that the request was both irrelevant and violated his right to privacy under the Florida Constitution. The defendants moved to compel the discovery, and the trial court granted the motion in its entirety. Thereafter, the plaintiff brought the current appeal, seeking immediate review of the trial court’s discovery decision.

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During the discovery process, the sharing of information is considered normal, if not the entire purpose of the endeavor. Indeed, the exchange of evidence often promotes bringing the truth to light efficiently or, at the very least, narrowing the issues in contention. However, some information remains beyond the scope of this liberal sharing process, and litigants will often fight vigorously to preserve the information over which they still have an entitlement to privacy. This situation arose in a recent case that was appealed to Florida’s Third District Court of Appeal, Bailey v. Miami-Dade County.

Bailey arose from an alleged act of negligence at Mt. Sinai Medical Center, involving Miami-Dade Fire Rescue employees and Mt. Sinai staff who dropped a patient who had suffered cardiac arrest aboard a cruise ship from a gurney. The patient later died, and her husband brought a wrongful death action against Mt. Sinai, alleging medical negligence and ordinary negligence. After commencing the action, the complaint was amended to include a count of ordinary negligence against Miami-Dade County. Prior to filing this action, the plaintiff retained a physician to prepare a medical affidavit, which is required for all actions involving medical negligence in Florida. During the discovery process, the physician’s name was disclosed to the defendants on expert interrogatories. The existence of the physician’s affidavit was also disclosed, but the plaintiff refused to proffer the affidavit, asserting work product privilege. Shortly thereafter, Mount Sinai settled, leaving Miami-Dade as the only defendant and ordinary negligence as the sole claim. When the trial court issued an order directing the parties to submit their witness lists, the physician’s name was not listed on the expert witness disclosure list, even though he had been listed as a expert who would testify on the earlier expert interrogatories. The defendant immediately sought to depose the physician, and the plaintiff refused, again citing work product privilege. The plaintiff sought a protective order, but the trial court denied the request, leading to the current appeal.

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Following the initiation of a personal injury suit, many defendants will start to conduct covert surveillance of the plaintiff in hope of uncovering evidence that can later to used to impeach inconsistent testimony. Beyond obvious privacy concerns, the production and use of surveillance footage raises numerous legal issues related to authenticity. Accordingly, it is well settled that defendants are required to turn over surveillance footage that they intend to use at trial during the discovery process. However, there is often an argument about when the defendant must turn over this footage. These timing issues are at the core of the discussion in a recent decision from Florida’s Fourth District Court of Appeal, Hankerson v. Wiley.

Hankerson started with an alleged act of auto negligence, which ultimately led the plaintiff in this case to bring suit against the other driver. During the course of pre-trial discovery, the defendant acquired surveillance footage of the plaintiff, which the plaintiff then sought to acquire prior to her deposition. The trial court granted an order that would permit the plaintiff to view the surveillance footage prior to her deposition. Following issuance of this order, the defendant sought immediate certiorari review by the Fourth District Court of Appeal, arguing that permitting the plaintiff to view the footage prior to having an opportunity to depose her would lead to irreparable harm that warranted immediate review by the appellate court. Thus, there were two issues before the Court of Appeal:  1) whether the harm attendant to turning over footage is of a degree that warrants immediate appellate review; and 2) whether the defendant could be ordered to turn over work product surveillance footage prior to deposing the plaintiff.

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In a recent decision, Collins v. Marriott International, Inc., the Eleventh Circuit Court of Appeals reviewed an interesting case that involved the un-witnessed death of an Atlanta businessman at a Gulf resort in the Bahamas. At the trial level, the case had progressed all the way to trial, but the trial court ultimately granted the defendants’ motion for judgment as a matter of law, leaving the estate of the deceased person with no recovery. In response, the estate, the plaintiff in this action, appealed.

The death at issue occurred at a resort in the Bahamas where the deceased person owned property. The resort is located on the island of Abaco in the Bahamas and is situated at the end of a peninsula ending in a rocky promontory called “the Point.” The Point is composed of  rock formations, steep cliffs dropping to the sea, and a blowhole opening through which waves crash. The resort does not own the area known as the Point, but the land is only accessible from resort property and was not clearly demarcated or separated from the club’s property with either fencing or signage. On the evening of August 16, 2007 at sunset, the deceased person and  friends who accompanied him to the club took a golf cart to the Point, which is located only 50 feet from one of the resort’s paths. While his friends were taking pictures, the deceased man decided to walk up the crest of the Point. When his friends walked up to the crest no more than 10 minutes afterward, however, he was not to be found. The friends returned to the resort, and they and resort staff began searching for the deceased person. His body was found the next day in the water of a cove a few miles from the resort.

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At issue in almost all personal injury litigation is the extent of a plaintiff’s physical injuries. Indeed, long before a possible trial, both plaintiffs and defendants enlist physicians to perform medical examinations and make professional determinations regarding the nature and extent of the alleged injuries. Given the obvious privacy interests associated with physical examinations and the defendant’s need to acquire evidence to rebut a plaintiff’s claims, problems related to medical examinations are not uncommon. Some of these possible issues are on full display in Kropf v. Celebrity Cruise, Inc., a recent decision from the U.S. District Court for the Southern District of Florida.

Kropf arose from a slip-and-fall accident on a cruise ship owned and operated by Celebrity Cruises, Inc., the defendant in this case. The plaintiff was injured as a result of the fall and underwent revision surgery of a prior hip replacement. The surgery led to further permanent, debilitating, and significant injuries. In her complaint, the plaintiff alleged the defendant’s “negligence in allowing [the tile] to remain in a wet and slippery condition” caused the fall and, consequently, the resulting injuries. Following the initiation of the action, counsel for Celebrity Cruises emailed the plaintiff’s counsel a Notice of Compulsory Medical Evaluation, which stated the plaintiff needed to undergo a medical examination by the defendant’s medical expert and that the examination was being conducted for the purposes of determining the nature and extent of the plaintiff’s alleged injuries and any disabilities resulting from them. This notice was sent on October 14, 2014, but the plaintiff’s counsel did not respond until November 14, 2014, only about two weeks before the scheduled examination of December 1, 2014. The response stated that the plaintiff’s counsel intended to send a videographer to the medical examination. In response, the defendant brought a motion, asking the court to preclude both the plaintiff’s counsel and the plaintiff’s videographer from attending the medical examination.

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Although the average course on civics or government thoroughly reviews the provisions of the United States Constitution, many overlook the importance of state constitutions as sources of important rights. While certain state constitutional provisions – for instance, the Florida Constitution’s analog to the Fourth Amendment – are interpreted co-extensively with their federal counterparts, some do provide particularized protections that should not be overlooked. In a recent case, Ampuero-Martinez v. Cedars Healthcare Group, the Supreme Court of Florida raised one such provision: Article X § 25(a) of the Florida Constitution.

Art. X § 25(a) of the Florida Constitution, titled “Patients’ right to know about adverse medical incidents,” provides Floridians with the right to “have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.” Ampuero-Martinez arose from a discovery dispute in a medical malpractice case involving the death of the plaintiff’s father at a medical facility in Miami-Dade County. The plaintiff sought medical records from the facility where her father’s death occurred, and the defendant medical facility objected to the production request. The trial court overruled this objection, but the defendant filed an immediate appeal to the Third District Court of Appeals, which reversed the trial court in part, holding that the trial court failed to properly limit discovery pursuant to § 381.028(7)(a) of the Florida Statutes.

The Supreme Court’s decision in Ampuero-Martinez is quite short for good reason. Three years prior to the Third District Court of Appeal decision, the Supreme Court of Florida had definitively held that § 381.028(7)(a) unconstitutionally contravened the constitutional protection afforded by Art. X § 25(a). See Florida Hosp. Waterman, Inc. v. Buster, 984 So.2d 478 (Fla. 2007). Consequently, the Supreme Court quashed the Third District’s decision and remanded the case to the trial court for reconsideration in accordance with the standards set forth in Buster. In Buster, the court held that several provisions of § 381.028, legislation that had been enacted by the Florida Legislature to “implement” and otherwise give force and effect to Art. X § 25(a), contravened the broad rights provided by the then newly-enacted constitutional provision. Specifically, the court noted the following conflicts:

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