Posted on May 29, 2009 in Appellate Practice
EX PARTE COMMUNICATIONS WITH TREATING PHYSICIANS
Dannemann v. Shands Teaching Hospital and Clinics, Inc., ___ So. 2d ___, 34 Fla. L. Weekly D945 (Fla. 1st DCA 5/11/09)
The plaintiff sued Shands Teaching Hospitals and Clinics for the wrongful death of her husband and scheduled the depositions of two physicians employed by the University of Florida Board of Trustees. The physicians to be deposed and their employer were not named as defendants in the wrongful death case. The University Self Insurance Program insured Shands and the University of Florida, and it retained a lawyer to represent the physicians during their depositions. The plaintiff moved to prohibit pre-deposition conferences between the physicians and the lawyer retained to represent them during their depositions. The trial court denied the motion, but the First District Court of Appeal granted the plaintiff’s petition for certiorari and quashed the order of the trial court. According the First District, the patient confidentiality statute, Section 456.057(8), Florida Statutes, “prohibits any nonparty physician from disclosing the decedent’s medical condition and history to the counsel hired by the defendant’s insurer to represent the physician at a deposition.” The court rejected the defendant’s position that its interpretation of the statute violated the physicians’ right to counsel, right to free speech, and due process.
EXPERT TESTIMONY; STATE OF MIND EXCEPTION TO HEARSAY RULE
Dorbad v. State, ___ So. 2d ___, 34 Fla. L. Weekly D946 (Fla. 1st DCA 5/11/09)
A forensic psychiatrist should have been permitted to testify that the defendant’s calm demeanor after shooting the victim was a manifestation of stress rather than cold blooded behavior.
The victim’s friends should not have been permitted to testify that the victim was afraid of the defendant because he was jealous. Although this evidence was offered under the state of mind exception to the hearsay rule, the victim’s state of mind was irrelevant because it was not contended that she initiated the confrontation.
FULL FAITH AND CREDIT; ADOPTION
Embry v. Ryan, ___ So. 2d ___, 34 Fla. L. Weekly D951 (Fla. 2d DCA 5/13/09)
A Florida trial court was required to give full faith and credit to a same sex adoption from the State of Washington regardless whether the trial court believed that the Washington adoption violated a clearly established public policy in Florida.
T&S Enterprises Handicap Accessibility, Inc. v. Wink Industrial Maintenance & Repair, Inc., ___ So. 2d ___, 34 Fla. L. Weekly D953 (Fla. 2d DCA 5/13/09)
When the Clarks sued T&S to recover damages for personal injuries and derivative losses, T&S filed a Third Party Complaint for contribution against Wink. The court affirmed the dismissal of the Third Party Complaint because it viewed the action for contribution as obsolete in view of Section 768.81, Florida Statutes, which limits liability on the basis of a party’s percentage of fault.
CHALLENGE FOR CAUSE
Samuels v. State, ___ So. 2d ___, 34 Fla. L. Weekly D959 (Fla. 4th DCA 5/13/09)
The trial court did not abuse its discretion by denying a challenge for cause in an attempted murder case. Although the challenged juror had heard something about the case nine years before the trial and believed that the defendant should be punished if he committed the crime, she had not formulated an impression regarding the defendant’s guilt.
City of Stuart v. Monds, ___ So. 2d ___, 34 Fla. L. Weekly D961 (Fla. 4th DCA 5/13/09)
Mr. Monds was employed by the recreation department of the City of Stuart. The city hired Mrs. Monds as an independent contractor to instruct hygiene classes. The Monds sued a city supervisor and assistant recreation director for tortious interference with their employment and negligent violation of Section 448.045, Florida Statutes, which proscribes wrongful combinations against workers. The trial court should have dismissed the claims against the supervisor and director based upon the doctrine of absolute immunity because the conduct complained of occurred within the context of their employment.
Anderson v. Department of Revenue, ___ So. 2d ___, 34 Fla. L. Weekly D963 (Fla.4th DCA 5/13/09)
The trial court ordered the former husband to pay approximately 10% of his child support arrearage within 48 hours to avoid incarceration. The appellate court reversed because the trial court found that the former husband was indigent for purposes of appeal. The finding of indigent status affirmatively established the father’s inability to pay the purge amount.
PROPOSAL FOR SETTLEMENT
Harris Specialty Chemicals, Inc. v. Punto Azul S.A. d.e. CV, ___ So. 2d ___, 34 Fla. L. Weekly D966 (Fla. 3d DCA 5/13/09)
The court rejected the plaintiff’s contention that a proposal for settlement was invalid because it failed to apportion an amount to one of the defendants. “The rule does not require that a settlement proposal cover all claims between all parties involved, or that it settle all claims between the parties to the proposal. The rule merely requires that a settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification.” (Citations omitted)
Andries v. Royal Carribbean Cruises, LTD., ___ So. 2d ___, 34 Fla. L. Weekly D968 (Fla. 3d DCA 5/13/09)
Evidence that a staph infection caused an incurable kidney disease was not inadmissible under Frye v. United States, 293 F.1013 (DC Cir. 1923). The plaintiff presented the testimony of a nephrologist, a specialist in immunological kidney diseases, and published research studies establishing an association between staph infections and kidney disease. The defendant presented the testimony of two distinguished physicians that the cause of the plaintiff’s kidney disease is unknown. The court concluded, “The fact that the precise causation is still under investigation does not make the expert opinions in this case ‘new or novel’ or inadmissible under the more demanding requirements of Frye.” “[I]n this case qualified physicians for the appellant have expressed an opinion that there is a link between recognized medical condition X and sequela Y, those and other observations have been found worthy of further detailed scientific investigation, and the published results of such investigations have focused on the possible etiology. It is precisely this sought of disagreement that under Marsh [v. Valyou, 977 So. 2d 543 (Fla. 2007)], amounts to a duel of competing–and admissible–pure opinions.”
Marbella Park Homeowner’s Association, Inc. v. My Lawn Service, Inc., ___ So. 2d ___, 34 Fla. L. Weekly D971 (Fla. 3d DCA 5/13/09)
The defendant did not make a single payment under a five year contract for monthly services. The plaintiff sued for breach of contract and obtained a summary judgment for the entire contract price. The appellate court reversed because the plaintiff was entitled to the difference between the contract price and the cost of performance, but the defendant did not produce any evidence of the cost of performing the five year contract.
SUBJECT MATTER JURISDICTION; PIP
DNA Center for Neurology & Rehabilitation v. Progressive American Insurance Co., ___ So. 2d ___, 34 Fla. L. Weekly D978 (Fla. 5th DCA 5/15/09)
A healthcare provider sued an insurer in circuit court for failing to pay personal injury protection benefits, but the exhibits to the amended complaint reflected that the damages were under $500.00. Subject matter jurisdiction in the circuit court was lacking because the amount in controversy did not exceed $15,000.00, and an action for non-payment of personal injury protection benefits in not within the exclusive jurisdiction of the circuit courts.
This synopsis was prepared by Joseph S. Kashi of Sperry, Shapiro & Kashi, P.A., 1776 North Pine Island Road, Suite 324, Plantation, FL 33322 (954) 423-6553; (954) 423-6833 Facsimile. The firm concentrates principally on insurance coverage disputes and bad faith litigation. The firm website may be found at: http://www.florida-insurance-lawyers.com/.Fort Lauderdale, Florida insurance attorney Joseph S. Kashi provides a summary of numerous Florida appellate opinions decided during the week of May 10, 2009.