Articles Posted in Evidentiary Standard

bicycle-against-wall-1563544-300x225Under the common law, collateral source evidence was generally inadmissible for both determinations of liability and damages. Finding that this rule promoted double recovery in certain instances, the Florida legislature abrogated this rule in the 1980s and adopted the current set-off rule, which requires a trial court, with certain exceptions, to reduce a damages award by “the total of all amounts which have been paid for the benefit of the claimant, or which are otherwise available to the claimant, from all collateral sources.”  Fla. Stat. § 768.76 (1). Although the collateral source rule was abrogated with respect to damages, Florida courts have found the impact of the rule limited with respect to the evidence admissible to a jury for making a determination of liability. However, the Florida Supreme Court articulated one major expectation to the common law collateral source rule in Fla. Physician’s Ins. Reciprocal v. Stanley, 452 So. 2d 514 (Fla. 1984). In Stanley, the court held that “evidence of free or low cost services from governmental or [charities] available to anyone with specific disabilities is admissible on the issue of future damages.” Given the uniqueness of this rule, Florida courts have after struggled with its application and, in many cases, limited it to the particular facts. For example, the Supreme Court of Florida was once again called upon to grapple with the scope of Stanley in Joerg v. State Farm Mutual Auto. Ins. Co.

The facts underlying Joerg are quite unfortunate. The plaintiff in this case was a developmentally disabled adult who was struck by a car while riding his bicycle in November 2007. The plaintiff had lived with his parents for his entire life and had never been employed. Following this accident, the plaintiff brought a negligence suit against the driver of the other vehicle and his personal uninsured motorist insurer, State Farm Mutual. Prior to trial, the plaintiff filed a motion to limit introduction of evidence about collateral sources, including benefits under Medicare and Medicaid. The trial court ultimately ruled that the insurer could introduce evidence of “future medical bills for specific treatments that are available . . . to all citizens regardless of wealth or status” but that evidence of future Medicare and Medicaid payments could not be introduced. The insurer appealed, and the Second District Court of Appeal affirmed the trial court ruling, except finding that the future Medicare payments should not have been excluded under the collateral source rule. An appeal to the Florida Supreme Court followed.

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manhole-1573175Following 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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staircase-2-1566819Although we associate expert testimony with complex cases involving medicine or large explosions, expert testimony can be important in virtually any type of case, as long as the testimony will provide a jury with useful information that they may not possibly understand in the absence of expert guidance. For instance, expert testimony is used in many personal injury cases, and not only for assessing the nature of a plaintiff’s injury. Indeed, experts are also often enlisted to provide testimony regarding the circumstances of one’s injury. This sort of expert testimony was the subject of Holderbaum v. Carnival Corp., a recent decision from the United States District Court for the Southern District of Florida.

Holderbaum arose from an injury allegedly sustained abroad a Carnival cruise ship in 2013. The plaintiff claims that as she was about to descend a staircase on the ship, her shoe got stuck in the metal “wear-strip” at the top of the stairs. As a result, she fell down the stairs and suffered an injury to her lower leg and ankle. The plaintiff alleges that the metal strip was raised and that her shoe got caught in this gap between the metal strip and the carpeting. The plaintiff retained an engineer to examine the area where the injury occurred and provide analysis of the circumstances of her fall. The expert provided a report, and Carnival, the defendant, moved to exclude the expert evidence.

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photo_15716_200912061-300x225Negligence liability is fundamentally predicated on the expectation that people should exercise reasonable care in their actions when such actions have the potential to cause harm to another. Although the courts play the principal role in defining the scope of “negligence,” legislatures also actively participate in defining the scope of reasonable care. For instance, Florida law provides that “the discovery of the presence of a foreign body . . . commonly used in surgical, examination, or diagnostic procedures, shall be prima facie evidence of negligence . . . .” § 766.102(3)(b), Fla. Stat. (2011). Pursuant to this rule, courts will place the burden on a defendant in cases when a plaintiff has established that a foreign object was left in him or her. Given the shift in the burden, establishing the presence of a foreign body can have a meaningful impact on medical malpractice litigation, and litigants may battle about the rule’s applicability to the issues presented in their case. The dynamics of the rules application were recently addressed in a recent decision from the Fourth District Court of Appeal, Dockswell v. Bethesda Memorial Hospital, Inc.

The plaintiff in Dockswell had been admitted to the defendant hospital for surgery. The procedure included the placement of a drainage tube. A nurse came in the following day to remove the tube, and the plaintiff was conscious at this time. The plaintiff saw the nurse remove the tube and felt no immediate discomfort. However, a 4.25-inch section of the tube was inadvertently left in the plaintiff. Four months later, after the plaintiff complained of continued pain in the region where the section of tube was left, a CT scan revealed the presence of the tube, which was removed during a subsequent surgery. The plaintiff then filed the current medical negligence suit, and the parties presented conflicting expert testimony on whether the nurse complied with the applicable standard of care. During a charge conference prior to trial, the plaintiff sought the inclusion of a jury instruction based on the foreign object rule. The trial court denied the requested instruction, finding that the plaintiff had to present direct evidence of negligence because the foreign object rule is limited to situations when the plaintiff is uncertain about the person responsible for the negligence. The jury ultimately returned a verdict favorable to the defendant, and the plaintiff appealed, arguing that the trial court erred in denying his foreign object jury instruction.

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photo_1831_20060728One of the most common arguments on appeal following a trial is whether evidence was erroneously presented to the jury. Although inappropriate evidence can affect a jury’s determination, appeals courts are wary to allow a new trial in every case that involves an evidentiary ruling with which it disagrees. Accordingly, the “harmless error rule” limits overturning a jury verdict to only those situations when the evidence is shown to have had some material impact on the jury’s ruling. Courts have different standards for harmless error, and the Supreme Court of Florida recently clarified its pre-existing harmless error jurisprudence for civil cases in Special v. West Boca Medical Center. In West Boca, which arose from the appeal of a Fourth District Court of Appeal decision, the Supreme Court of Florida held that harmless error in civil cases requires that “the beneficiary of the error must prove that there is no reasonable possibility that the error contributed to the verdict.” 39 Fla. L. Weekly S676 (Fla. Nov. 13, 2014). The Fourth District previously applied a “more likely than not” standard for harmless error and has been forced to revise several of its decisions in light of the Supreme Court’s ruling. Among these decisions is Hurtado v. DeSouza, which involved prejudicial evidence introduced in an automobile accident trial.

The plaintiff in Hurtado filed suit after being rear-ended by another driver while stopped at a traffic light. Prior to trial, the defendant stipulated to liability, leaving only causation and damages to be determined by the jury. At trial, the plaintiff’s attorney stated in his opening statement that immediately following the accident the defendant didn’t check in on the plaintiff or apologize. The defendant’s counsel called for a sidebar with the judge, who ruled that the statement could be admitted. Afterward, the plaintiff’s counsel made another statement on the defendant’s possible effort to flee, to which the defense counsel objected. A third comment was subsequently made, and the defendant’s counsel moved for a mistrial or a curative instruction to the jury, both of which the trial court denied. In his testimony, the plaintiff noted the defendant’s failure to check on him or his family and the defendant’s desire to leave the scene of the accident. The trial judge permitted the testimony but ultimately directed a verdict in favor of the defendant on the plaintiff’s mental anguish claims. Following the directed verdict, the trial judge read a curative instruction to the jury, directing them to ignore references to the defendant’s failure to admit negligence sooner as irrelevant given the court’s determination on mental anguish damages. Ultimately, the jury returned a verdict for over one million dollars for permanent injury. The defendant appealed the jury verdict.

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ResearchFlorida has long served as a destination for America’s elderly population and, as a result, has also become home to a considerable number of retirement homes and assisted living facilities. Regrettably, despite the best efforts of the Florida’s Department of Elder Affairs, the care residents at these facilities receive remains an issue. Even when cases of elder abuse are properly identified, many litigants encounter a variety of problems when they bring legal action to redress their grievances. Among these issues is the pervasive use of arbitration clauses in retirement home and assisted living facility contracts. However, notwithstanding the ubiquity of arbitration provisions, the Fourth District Court of Appeal again took a firm stance against their enforceability in its recent decision in Lopez v. Andie’s, Inc..

Lopez arose from allegations involving resident care at Willow Manor Retirement Home, an assisted-care living facility in Dania Beach, Florida. Following an incident in 2011, which resulted in a severe fracture to a resident’s arm, the resident brought suit against the facility. However, shortly after the case was filed, the defendant moved to compel arbitration, arguing that the arbitration provision in the agreement executed between the resident and Willow Manor at the time of the resident’s admission required that any controversy or dispute between the parties be determined through a binding arbitration proceeding held in accordance with the American Health Lawyers Association (“AHLA”) alternative dispute resolution rules. After the trial court granted the defendant’s motion to compel arbitration, the plaintiff brought an appeal, arguing that the arbitration procedures were contrary to public policy and thus unenforceable.

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thermometer and pillsA common legal issue that arises in the context of imprisonment or other forms of detention is liability for failing to provide or negligently providing medical care to those detained. Irrespective of the location of medical malpractice, however, common evidentiary standards required for medical malpractice actions apply. These issues are at the core of the Southern District of Florida’s recent decision in Segundo v. United States, which involves claims alleging negligence on the part of the medical staff leading to the cardiac death of a detainee at Krome Detention Center in South Florida.

The detainee had been transferred to Krome Detention Center in 2010, and his Transfer Summary noted his severe, preexisting diabetes. At the time of booking, the detainee underwent a medical evaluation that corroborated this prior medical history of diabetes. Following admission, the detainee continued to take oral diabetic medications, and his blood glucose level was checked twice a day. The admission medical evaluation also included a screening EKG, the results of which came back normal and did not indicate any acute or chronic myocardial ischemic changes or other findings associated with coronary artery disease. From the time of his arrival until the day before his death, the detainee did not complain of chest pain, shortness of breath, weakness, fatigue, or other symptoms associated with cardiac dysfunction.

However, the day before his death, Krome medical staff evaluated the detainee for a sore throat, runny nose, and cough. The day after, the detainee stated he felt ill but was nonetheless communicative and able to move. While staff was taking the detainee to the Urgent Care Center at the Krome compound, he suffered an arrhythmia and died. A autopsy report found the detainee’s cause of death to be severe atheroscleros in the left anterior descending coronary artery. Given the normal EKG just days before the death, no evidence in the record suggested that medical staff at Krome should have predicted the subsequent cardiac death. Following the detainee’s death, the personal representative for his estate brought a wrongful death lawsuit against the United States under the Federal Torts Claims Act, alleging negligence on the part of Krome’s officers, agents, and employees.

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Although changes to the law of evidence do not typically engender much in the way of debate, Florida litigants are now seeing the harsh realties that can be associated with revisions that typically go unnoticed. In Perez v. BellSouth Telecommunications, Inc., a panel of judges for the Third District Court of Appeals unanimously affirmed a trial court decision to exclude testimony from the plaintiff’s personal obstetrician, a physician with over two decades of experience, in part because of recent legislation that placed stricter limits on the admissibility of expert testimony.

This decision follows passage of Florida House Bill 7015, which amended Section 90.702 of the Florida Evidence Code, the provision governing the admissibility of expert testimony in both civil and criminal litigation. Prior to passage of HB 7015, courts in Florida applied what is commonly known as the “Frye Standard.” Pursuant to this standard, Florida Courts permitted the inclusion of expert opinion testimony so long as the testimony was based on scientific methods that were sufficiently established and had gained general acceptance in the particular field to which they belong.

HB 7015, however, did away with Frye and incorporated the “Daubert Standard,” a stricter evidentiary rule that has been utilized in Federal Courts since 1993. Daubert, unlike Frye, places greater emphasis on the scientific methodology from which an expert’s opinion is formed, and induces greater exclusion of evidence that is not derived from empirical testing, peer review, or controlled examination. Accordingly, even if an expert’s testimony may be relevant and based on sound reasoning or ample practical experience, it may still be excluded for a lack of scientific verifiability.

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file00016079529In 2010, the Florida Legislature made sweeping changes to Florida law regarding slip and fall liability for business owners. In that year, the legislature enacted § 768.0755 of the Florida Statutes, which formally requires that a plaintiff in a “slip and fall” case prove that the business where he or she was injured had “knowledge” of the dangerous condition that caused the fall. Since proving knowledge of a dangerous condition is now a formal statutory requirement for establishing slip and fall liability, it is important to understand how a plaintiff would go about making such a showing.

Typically, there are two ways a plaintiff can prove that a business had knowledge or “notice” of the dangerous condition. First, he or she can prove that the business had actual notice by proving an employee had been warned or otherwise informed about the condition. However, this is a difficult avenue to pursue, since an injured plaintiff does not generally have full access to the information necessary to determine which, if any, employees had been warned about a dangerous condition. In addition, employees, even if they can be identified, will generally not be forthcoming with that information. The second and more common method of establishing knowledge of a dangerous condition is known as “constructive notice.” To show “constructive notice,” a plaintiff uses circumstantial evidence related to the nature and duration of the dangerous condition that tends to show that employees who engage in reasonable inspection would have known of the dangerous condition.

In a recent decision from the Southern District of Florida, the court examined the sort of evidence that would be sufficient for showing constructive notice of a dangerous condition. In Garcia v. Target, the court determined whether a plaintiff had provided sufficient evidence to overcome a motion for summary judgment and thus let a jury determine whether there was constructive notice of a dangerous condition. In Garcia, a customer slipped and fell on a wet surface while she was leaving a Target located in Davie, Florida. Target argued that the plaintiff had failed to proffer evidence sufficient to satisfy her burden of proving constructive notice of the wet surface, in part because it had not been raining the day the plaintiff fell and the plaintiff acknowledged she had not seen the dangerous condition prior to slipping nor knew how long it had been there prior to falling.

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wet-floorAlthough many would believe, given the frequency of “slip and fall” accidents, that the law in the area should be well settled, Florida law regarding business owners’ “slip and fall” liability has been in considerable flux for the past decade. On February 26, the Fourth District Court of Appeals injected further confusion into the state of the law when it issued its opinion in Pembroke Lakes Mall Ltd. v. McGruder. In McGruder, the Fourth District Court of Appeal held that recent legislation altering the liability of business owners in slip and fall cases should not be applied retroactively to accidents that occurred prior to implementation of the legislation. However, this holding, as the Court in McGruder noted, is in direct conflict with an earlier Third District opinion that held that the legislation should be applied retroactively. Accordingly, the Fourth District certified the question to the Supreme Court of Florida for resolution.

This story of “slip and fall” instability began in 2001, when the Supreme Court of Florida rendered its decision in Owens v. Publix Supermarkets, Inc.. In Owens, the Supreme Court of Florida held that “the existence of a foreign substance on the floor of a business premises that causes a customer to fall and be injured is not a safe condition and the existence of that unsafe condition creates a rebuttable presumption that the business owner did not maintain the premises in a reasonably safe condition.” Owens v. Publix Supermarkets, Inc., 802 So. 2d 315, 331 (Fla. 2001). Thus, “once the plaintiff establishes that he or she fell as a result of a transitory foreign substance, a rebuttable presumption of negligence arises.” Id. In response to this holding, the Florida Legislature in 2002 enacted § 768.0710, which eliminated the burden-shifting scheme adopted in Owens and provided that an injured “slip and fall” plaintiff must prove that the business owner “acted negligently by failing to exercise reasonable care” without the benefit of any presumption. However, actual or constructive knowledge of the transitory substance was still not required. This changed in 2010, when the Florida Legislature repealed § 768.0710 and enacted § 768.0755, aptly titled “Premises Liability for Transitory Foreign Substances in a Business Establishment.” The new statute is fundamentally the same as the former, except that the plaintiff needs to now prove that the business establishment had notice, actual or constructive, of the “dangerous condition.”

In McGruder, the plaintiff was injured in a slip and fall at a mall prior to the enactment of § 768.0755 but filed suit after the implementation of the legislation. Accordingly, the key question is whether § 768.0755 should be applied to the case or if the law outlined in § 768.0710 should apply. With respect to retroactive application of statutes, the courts of Florida apply a two-prong test: 1) did the legislature manifest clear intent for the statute to apply retroactively and 2) absent clear intent, is the statute substantive, procedural, or remedial. Generally, absent clear intent, a substantive statute is not to be applied retroactively, but a procedural or remedial statute should be applied retroactively. Although the Third District had concluded in an earlier decision that the statute was not substantive and, thus, should be applied retroactively, the Fourth District held that requiring notice altered the elements of the claim in such a fashion that the new legislation was substantive and should only be applied prospectively.
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