Firm News Feed Nov 2014 00:00:00 -0800firmwise DCA: Applying Daubert Under Florida Law in Perez v. Bell South Telecommunications, Inc.<p>The Third District Court of Appeal of Florida recently issued an opinion in <i>Perez v. Bell So. Telecomm.</i>, No. 3D11-445, 2014 WL 1613654 (Fla. 3d DCA Apr. 23, 2014),which represents the Third District&rsquo;s first pronouncement applying <i>Daubert </i>under Florida law since the legislative amendment took effect on July 1, 2013, repudiating the archaic <i>Frye </i>standard and pure opinion testimony in favor of the more widely accepted <i>Daubert</i> standard.</p> <p>The case involved a negligence suit brought by Osmany Anthony Perez, a minor, by and through his mother, Maria Franco Perez, against the mother&rsquo;s employer, Bell South Telecommunications, for the premature birth of the minor as a result of placental abruption, which the Plaintiff&rsquo;s expert opined was induced or caused by &ldquo;work place stress.&rdquo;&nbsp;<i>Id.</i>at *4.&nbsp;</p> <p>By way of background, Ms. Perez became pregnant while employed as a call center operator.&nbsp;<i>Id.</i>at *3.&nbsp;Dr. Isidro Cardella, a board-certified obstetrician and gynecologist, classified Ms. Perez&rsquo;s pregnancy as &ldquo;high risk&rdquo; on May 5, 2004.&nbsp;<i>Id.</i><i> &nbsp;</i>On July 30, 2004, Ms. Perez reported to Dr. Cardella being under a lot of stress at work.&nbsp;<i>Id.</i>&nbsp;Dr. Cardella provided Ms. Perez with a note to give to her employer placing a limitation of 40 hours on her work week and requesting frequent bathroom breaks due to the high risk nature of her pregnancy.&nbsp;<i>Id.</i>&nbsp;Less than two weeks later, Ms. Perez was fired for non-performance.&nbsp;Two days after her firing, she suffered a placental abruption and delivered her child at twenty weeks.&nbsp;<i>Id.</i>at *3-4.&nbsp;</p> <p>Dr. Cardella opined that &ldquo;workplace stress,&rdquo; exacerbated by Bell South&rsquo;s alleged refusal to accommodate Ms. Perez&rsquo;s medical condition, was the causal agent of the placental abruption and premature delivery.&nbsp;<i>Id.</i>at *4.&nbsp;At his deposition, Dr. Cardella essentially testified and conceded there was no way of ever knowing for sure what caused the placental abruption, his conclusions were merely his own personal opinion, his opinion was unsupported by credible scientific research, there were no studies or medical literature regarding workplace stress tied to placental abruption, and he had never spoken on the topic and was not aware of anyone who had.&nbsp;Given the untested, unverified, hypothetical, speculative, conjectural, and <i>ipse dixit</i> nature of his opinions, the trial court excluded his opinions under <i>Frye</i>.&nbsp;</p> <p>Since Dr. Cardella&rsquo;s opinion testimony was the sole connection between the premature birth and Bell South, the trial court&rsquo;s exclusion of his opinion testimony under <i>Frye </i>was the basis for granting summary judgment due to a lack of causal proof as a matter of law and fact. <i>&nbsp;Id. </i>at *6.&nbsp;Ms. Perez appealed the adverse summary judgment ruling contending that Dr. Cardella&rsquo;s testimony was admissible as &ldquo;pure opinion testimony&rdquo; under <i>Marsh v. Valyou</i>, 977 So. 2d 543 (Fla. 2007).&nbsp;Following the <i>Frye </i>and summary judgment rulings, but prior to deciding the appeal, the Florida Evidence Code was amended on July 1, 2013.</p> <p>The case presented an interesting procedural conundrum given the passing of the legislative amendment to Florida&rsquo;s Evidence Code after the trial of the underlying suit but before the appeal.&nbsp;Such a consideration was one of the many inquires practioners and judicial minds contemplated in the wake of the amendment.&nbsp;This case makes clear that <i>Daubert </i>applies to pending cases on appeal that were previously decided under <i>Frye</i>.&nbsp;It also clarifies the retroactive application of the amendment.&nbsp;<i>Id.</i>at *4 (holding that &ldquo;section 90.702 of the Florida Evidence Code indisputably applies retrospectively&rdquo;).&nbsp;</p> <p>The Third District found Dr. Cardella&rsquo;s opinion testimony inadmissible under both the <i>Frye </i>and <i>Daubert</i> standards.&nbsp;Chief Judge Shepherd writing for the panel (which included Judges Wells and Rothenberg) explained that Ms. Perez&rsquo;s contention on appeal regarding pure opinion testimony had been expressly prohibited in the recent amendment to the Florida Evidence Code.&nbsp;<i>Id.</i>at *8.&nbsp;The Florida Legislature went as far as making specific reference to the seminal pure opinion case of <i>Marsh v. Valyou</i>, 977 So. 2d 543 (Fla. 2007) in the amendment.&nbsp;As of July 1, 2013, pure opinion testimony is no longer permissible in Florida courts.&nbsp;<i>Id.</i><i>&nbsp;All</i> expert testimony must now satisfy the requirements of <i>Daubert</i>.&nbsp;</p> <p>Despite recognizing the conceptual debate over whether <i>Frye </i>or <i>Daubert</i> is stricter or more rigid, the Third District noted that &ldquo;[t]he legislative purpose of the new law is clear: to tighten the rules for admissibility of expert testimony in the courts of this state.&rdquo;&nbsp;<i>Id.</i>at *10.&nbsp;To this end, the Third District explained that the &ldquo;touchstone of the scientific method is empirical testing &ndash; developing hypotheses and testing them through blind experiments to see if they can be verified.&rdquo;&nbsp;<i>Id.</i>at *11.&nbsp;The court also discussed that &ldquo;general acceptance in the scientific community,&rdquo; which were the buzzwords under <i>Frye</i>, is now simply one of several factors to consider under <i>Daubert</i>,but is in no event a sufficient basis in itself for admissibility.&nbsp;<i>Id.</i>at *12.&nbsp;Under <i>Daubert</i>, there is no place for &ldquo;subjective belief and unsupported speculation.&rdquo; &nbsp;<i>Id.</i>&nbsp;</p> <p><u>See also</u>:</p> <p><a href=""><font color="#0000ff"></font></a></p> <p><a href=";an=19966&amp;format=xml&amp;p=4946"><font color="#0000ff">;an=19966&amp;format=xml&amp;p=4946</font></a></p>Products Liability Blog15 May 2014 00:00:00 -0800 DCA Rules Florida's Proposal for Settlement Laws Conflict With Federal Maritime Law<p>On April 9, 2014, the Third District Court of Appeal of Florida issued an en banc opinion in <i>Royal Caribbean Cruises, Ltd. v. Cox</i>, Case No. 3D09-2712. The case put to rest decades of unrest and tension between the status of Florida&rsquo;s offer of settlement law as interpreted by the Third District and federal maritime law.&nbsp;The Third District finally aligned itself with its sister courts and Florida&rsquo;s federal courts in holding that Florida&rsquo;s offer of judgment laws conflict with federal maritime law and a prevailing party is not entitled to recover attorney&rsquo;s fees.&nbsp;</p> <p>There is a protracted procedural history to this matter. &nbsp;The plaintiff, Mr. Bryon Cox, brought suit against Royal Caribbean in the underlying suit to recover for personal injuries sustained while employed aboard a Royal Caribbean vessel.&nbsp;Mr. Cox served an offer of judgment pursuant to Florida Statute &sect;768.79 and Florida Rule of Civil Procedure 1.442.&nbsp;Royal Caribbean moved to strike the offer of judgment, arguing that &sect;768.79 conflicted with federal maritime law.&nbsp;In response, Mr. Cox cited <i>Royal Caribbean Corp. v. Modesto</i>, 614 So. 2d 517 (Fla. 3d DCA 1992) (holding that Florida statute providing for confidentiality of mediation proceedings was not preempted by maritime law and finding &ldquo;no conflict between Florida&rsquo;s rule of law regarding offers of judgment and federal maritime law.&rdquo;).&nbsp;The case proceeded to trial and the jury found in favor of Mr. Cox, who sought attorney&rsquo;s fees based on his offer of judgment.&nbsp;The trial court judge granted an award of $245,856.87 in attorney&rsquo;s fees pursuant to plaintiff&rsquo;s offer of judgment.&nbsp;</p> <p>The original appeal was taken from the trial court&rsquo;s order, which the Third District affirmed, relying on the rationale enunciated in <i>Modesto</i>.&nbsp;Royal Caribbean moved for a rehearing en banc.&nbsp;The en banc panel consisted of Chief Judge Frank Shepherd and Judges Well, Suarez, Rothenberg, Lagoa, Salter, Emas, Fernandez, Logue and Scales.&nbsp;On rehearing, Royal Caribbean argued that the Third District should recede from the ruling in <i>Modesto</i>.&nbsp;</p> <p>By way of background, and contrary to <i>Modesto</i>,several other state and federal courts have held that &ldquo;under federal admiralty law, the prevailing party is not entitled to attorney&rsquo;s fees . . . even when a state statute establishes an entitlement to fees.&rdquo;&nbsp;<i>See Nicoll v. Magical Cruise Co.</i>, 110 So. 2d 98, 98 (Fla. 5th DCA 2013) (citing <i>Misener Marine Constr., Inc. v. Norfolk Dredging Co.</i>, 594 F.3d 832, 841 (11th Cir. 2010) (explaining that federal maritime law follows the American rule regarding attorney&rsquo;s fees); <i>Texas A&amp;M Research Found. v. Magna Transp. Inc.</i>, 338 F.3d 394, 405 (5th Cir. 2003); <i>Am. Nat'l Fire Ins. Co. v. Kenealy</i>, 72 F.3d 264, 270 (2d Cir. 1995); <i>Southworth Mach. Co. v. F/V Corey Pride</i>, 994 F.2d 37, 41 (1st Cir. 1993); <i>Su v. M/V S. Aster</i>, 978 F.2d 462, 475 (9th Cir. 1992); <i>Sosebee v. Rath</i>, 893 F.2d 54, 56&ndash;57 (3d Cir. 1990)); <i>see also Garan, Inc. v. M/V Aivik</i>, 907 F.Supp. 397, 400 (S.D. Fla. 1995) (finding that <i>Modesto</i>misconstrued the holding in <i>Vaughan v. Atkinson</i>, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962), involving an exception for a discretionary award of attorneys' fees in the maritime context when the non-prevailing party has acted in bad faith).</p> <p>Given the uncertainty <i>Modesto </i>generated, the issue of whether state-based recovery of attorney&rsquo;s fees is compatible with federal maritime law was ripe for clarification and decision.&nbsp;Ultimately, the Third District Court of Appeal receded from <i>Modesto </i>and finally clarified that Florida&rsquo;s offer of judgment statute conflicts with federal maritime law.&nbsp;The Third District stated a prevailing party is not entitled to attorney&rsquo;s fees under federal maritime law absent certain exceptional circumstances (<i>i.e.</i> bad faith) even when a state statute establishes entitlement.&nbsp;</p> <p>One of the overarching and central tenets of maritime law is uniformity, which the recent en banc decision aims to serve.&nbsp;<i>See Texas A&amp;M Research Found.</i>, 338 F.3d at 405.&nbsp;The decision has the practical and immediate impact of rendering any already filed or pending proposals for settlement relying on <i>Modesto</i> in a maritime action a nullity and non-enforceable.&nbsp;This ruling is especially significant given the prevalence of forum selection clauses in Miami, which is the epicenter of the cruising industry.&nbsp;The en banc decision is a neutralizer for both plaintiffs and defendants as the offer of judgment rule and statute can apply pressure and encourage settlement on both sides.&nbsp;The recent decision also impacts the already strategic choice-of-law decision and manner of pleading between admiralty and state substantive law.&nbsp;</p>Products Liability Blog14 Apr 2014 00:00:00 -0800 of Attorney Charging Liens<p style="margin: 0in 0in 0pt" class="MsoNormal">Attorneys&rsquo; fee liens, commonly referred to as &ldquo;charging liens,&rdquo; pose a difficult problem for defendants.<span style="mso-spacerun: yes">&nbsp; </span>Increasingly, plaintiffs are represented by multiple attorneys due to plaintiffs switching attorneys or attorney referrals.<span style="mso-spacerun: yes">&nbsp; </span>This is particularly true in product liability cases where it is typical for the original plaintiff&rsquo;s attorney to refer the case to an attorney specializing in product liability.<span style="mso-spacerun: yes">&nbsp; </span>Sometimes former plaintiff&rsquo;s attorneys file a formal notice of lien in the lawsuit.<span style="mso-spacerun: yes">&nbsp; </span>However, other times the former plaintiff&rsquo;s attorney does not file a formal lien notice with the court.<span style="mso-spacerun: yes">&nbsp; </span>When a settlement is reached it is typical for the defendant to require the plaintiff to resolve all liens, including any attorney charging liens, as a condition of the settlement.<span style="mso-spacerun: yes">&nbsp; </span>However, if the plaintiff and current plaintiff&rsquo;s attorney fail to resolve a charging lien, then the former attorney claiming a charging lien may seek to collect from defendant either in the original action or in a separate action.</p> <p style="margin: 0in 0in 0pt" class="MsoNormal"><o:p>&nbsp;</o:p></p> <p style="margin: 0in 0in 0pt" class="MsoNormal">Under <st1:state w:st="on"><st1:place w:st="on">Florida</st1:place></st1:state> law, a former attorney&rsquo;s charging lien is enforceable against a defendant.<span style="mso-spacerun: yes">&nbsp; </span><i style="mso-bidi-font-style: normal">Sinclair, Louis, Siegel, Heath, Nussbaum &amp; Zavertnik, P.A. v. Baucom</i>, 428 So. 2d 1383, 1385 (<st1:place w:st="on"><st1:state w:st="on">Fla.</st1:state></st1:place> 1983).<span style="mso-spacerun: yes">&nbsp; </span>When a defendant has notice of a charging lien before settlement of the case, the defendant may be held liable to the former plaintiff&rsquo;s attorney.<span style="mso-spacerun: yes">&nbsp; </span>The Florida Supreme Court has held that &ldquo;there are no requirements for perfecting a charging lien beyond timely notice.&rdquo;<span style="mso-spacerun: yes">&nbsp; </span><st1:state w:st="on"><st1:place w:st="on"><i style="mso-bidi-font-style: normal">Id.</i></st1:place></st1:state><span style="mso-spacerun: yes">&nbsp; </span><st1:state w:st="on"><st1:place w:st="on">Florida</st1:place></st1:state> courts have found that &ldquo;to give timely notice of a charging lien an attorney should either file a notice of lien or otherwise pursue the lien in the original action.&rdquo;<span style="mso-spacerun: yes">&nbsp; </span><i style="mso-bidi-font-style: normal">Daniel Mones, P.A. v. Smith</i>, 486 So. 2d 559, 561 (<st1:place w:st="on"><st1:state w:st="on">Fla.</st1:state></st1:place> 1986).<span style="mso-spacerun: yes">&nbsp; </span>While courts have not defined what constitutes &ldquo;pursuit&rdquo; of the lien, the former attorney is probably not required to file a formal notice of lien with the Court to perfect the charging lien.<span style="mso-spacerun: yes">&nbsp; </span>Any notice of the charging lien, regardless of form, at any stage of the lawsuit, may be sufficient to hold a defendant liable for the charging lien.<span style="mso-spacerun: yes">&nbsp; </span></p> <p style="margin: 0in 0in 0pt" class="MsoNormal"><o:p>&nbsp;</o:p></p> <p style="margin: 0in 0in 0pt" class="MsoNormal">Because of the risk that charging liens pose to defendants, it is important that defendants identify any potential charging liens.<span style="mso-spacerun: yes">&nbsp; </span>Defendants should include an indemnification provision in the settlement agreement that requires the plaintiff to indemnify the defendant against any charging liens.<span style="mso-spacerun: yes">&nbsp; </span>However, this provision often provides limited protection, because the plaintiff has exhausted the settlement money and lacks other assets.<span style="mso-spacerun: yes">&nbsp; </span>Florida Bar Rules prevent defendants from including indemnity provisions in settlement agreements that would require the settling plaintiff&rsquo;s attorney to indemnify the defendant should a lienholder assert a claim. Therefore, when significant settlement sums are involved, a defendant should take steps to ensure that the charging liens are resolved as part of the settlement reached with the settling plaintiff&rsquo;s attorney.<span style="mso-spacerun: yes">&nbsp; </span>For example, a defendant can refuse to disburse the settlement funds until the plaintiff proves that any charging liens have been resolved.<span style="mso-spacerun: yes">&nbsp; </span>By taking steps to ensure that plaintiff&rsquo;s and settling plaintiffs&rsquo; attorneys comply with their duties to resolve any liens, defendants can minimize their exposure to charging liens.<span style="mso-spacerun: yes">&nbsp; </span></p> <p style="text-indent: 0.5in; margin: 0in 0in 0pt" class="MsoNormal"><o:p>&nbsp;</o:p></p>Products Liability Blog06 Nov 2013 00:00:00 -0800 Lies Ahead as Florida Transitions to Daubert<p>Florida Governor Rick Scott has signed into law a piece of legislation that transforms Florida into a <i>Daubert</i> jurisdiction, aligning Florida courts with their federal counterparts. Florida was one of only 10 remaining hold-outs in the minority of states still applying the nearly century-old requirements of <i>Frye v. United States</i>, 293 F. 1013 (D.C. Cir. 1923).&nbsp;In its third year up for vote, the Florida legislature finally approved the legislation and teed it up for the Governor&rsquo;s approval.&nbsp;Senator Richter remains hopeful that the amendment will &ldquo;improve Florida&rsquo;s legal climate.&rdquo;&nbsp;<span>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span></p> <p>Florida&rsquo;s recent expert testimony reform and amendment of Florida Statute &sect;90.702, makes the standard of admissibility of expert testimony in Florida courts stricter and more exacting.&nbsp;Simply stated, the <i>Daubert </i>standard requires that:</p> <p><span>a)<span>&nbsp;&nbsp;&nbsp; </span></span>the testimony is based on sufficient facts or data;</p> <p><span>b)<span>&nbsp;&nbsp;&nbsp; </span></span>the testimony is the result of reliable principles and methods; and</p> <p><span>c)<span>&nbsp;&nbsp;&nbsp; </span></span>the witness has applied the principles and methods reliably to the facts of the case.</p> <p>The <i>Daubert </i>standard contemplates the trial court as a &ldquo;gatekeeper&rdquo; that independently assess the scientific validity and reliability of the reasoning, methodology and principles underlying proffered expert evidence.&nbsp;<i>See Daubert v. Merrell Dow Pharmaceuticals, Inc.</i>, 509 U.S. 579 (1993).&nbsp;Under the <i>Daubert </i>standard, the trial court can exclude a scientific expert&rsquo;s opinion even if the expert had used reliable and accepted methodology if the trial court, as gatekeeper, determined the expert&rsquo;s conclusion(s) were unsupported by the given methodology&rsquo;s data.&nbsp;<i>See General Electric Co. v. Joiner</i>, 522 U.S. 136 (1997).&nbsp;The <i>Daubert</i> standard is applicable to all experts under Federal Rule of Evidence 702 and is not limited in its reach to only &ldquo;scientific&rdquo; experts.&nbsp;<i>See Kuhmo Tires Co. v. Carmichael</i>, 526 U.S. 137 (1999).&nbsp;Pure opinion testimony, which differs from offering a scientific fact, will no longer be admissible unless the opinion testimony satisfies the <i>Daubert</i> test.</p> <p>There are several upsides to the change to <i>Daubert</i>.&nbsp;The prospect of&nbsp;<i>Daubert </i>hearings to challenge the validity of expert testimony may serve as a disincentive to some plaintiff&rsquo;s from brining suit in the first place.&nbsp;Novel scientific expert testimony used to establish causation may likely be scrutinized to a greater degree, which in turn will prohibit the introduction of unreliable and unsupported expert testimony.&nbsp;A successful challenge of a plaintiff&rsquo;s expert witness on <i>Daubert </i>grounds can put a prompt and definitive end to a plaintiff&rsquo;s case.&nbsp;Verdicts predicated upon &ldquo;junk science&rdquo; may become less common.</p> <p>Opponents of the reform contend that a shift to the more expansive <i>Daubert </i>standard will lead to an increase in costs, mini-trials, prolonged litigation, and parties retaining experts to testify about other experts as well as the reliability of the principles and methods.&nbsp;Opposing counsel will likely argue that defense counsel is merely stalling the litigation with motions challenging plaintiff&rsquo;s experts, there is meager precedent regarding Florida&rsquo;s application of <i>Daubert</i>, and pivot to policy concerns regarding wastedmoney, time and judicial resources involved in expert challenges.&nbsp;</p> <p>The new law will take effect on July 1, 2013. &nbsp;The reformed standard will apply to all cases tried on or after July 1, 2013, even if the case was filed prior to the enactment date.&nbsp;Moreover, for any cases retried following a favorable appellate decision after July 1, 2013, the case would likely be tried under <i>Daubert</i>. The effective date and temporal application of the law will present various issues in pending litigation.&nbsp;Practioners and clients alike with pending state court cases will be faced with procedural conundrums and strategic considerations.&nbsp;</p> <p><b><i>Hypothetical #1</i></b>: Several, if not all, expert depositions have already been taken but trial is post-enactment.&nbsp;Defense counsel may want to consider opening up any expert depositions for the limited purpose of determining any unknown basis to strike on <i>Daubert </i>grounds.&nbsp;Alternatively, defense counsel may seek to propound expert interrogatories to obtain that information.</p> <p><b><i>Hypothetical #2</i></b>: Several, if not all, expert depositions have already been taken but trial is post-enactment.&nbsp;Defense counsel did not update the <i>Frye </i>depositions and has not yet moved to strike any experts.&nbsp;Under such circumstances, defense counsel may want to strike the experts under <i>Daubert</i>.</p> <p><b><i>Hypothetical #3</i></b>: Several, if not all, expert depositions have already been taken but trial is post-enactment.&nbsp;Defense counsel has filed <i>Frye</i> motions to strike experts.&nbsp;Defense counsel may need to amend the motions applying the <i>Daubert </i>standard and conduct any necessary <i>Daubert </i>hearings.&nbsp;</p> <p><b><i>Hypothetical #4</i></b>:&nbsp;Post-enactment, plaintiff seeks to amend or substitute experts given the shift to <i>Daubert</i>.&nbsp;Will the Court allow plaintiffs in cases to do so?&nbsp;As a result, will all discovery be reopened or extended?<span>&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</span></p> <p>All in all, here is what can reasonably be anticipated. &nbsp;There will be varying degrees of understanding, adaptation, and rulings from different trial court judges given their varying levels of experiences in federal court and familiarity with <i>Daubert</i>. &nbsp;Pre-trial motion practice may see an increase in the early stages of the transition.&nbsp;The Florida Senate expected as much.&nbsp;Motions for continuance will likely be more liberally granted for pending cases that are set for trial close in time to the enactment date.&nbsp;Court dockets may experience a temporary backlog.&nbsp;A 2011 study on the effects of the <i>Daubert </i>standard revealed a noteworthy increase in <i>Daubert </i>challenges to all types of experts from 2000 to 2010.&nbsp;The study also revealed a 49% success rate of having experts stricken in whole or in part.&nbsp;Members of the plaintiff&rsquo;s bar who are unaccustomed to litigating in federal court will be at a disadvantage.&nbsp;</p>Products Liability Blog04 Jun 2013 00:00:00 -0800's 4th DCA Underlines Importance of Rules Governing Depositions of Designated Corporate Representatives<p>In a recent decision, a Florida appellate court discussed why we have rules allowing for corporate entities to designate corporate representatives to speak for them, and the implications of failing to utilize the designated procedures properly. In Carriage Hills Condominium, Inc. v. JBH Roofing &amp; Constructors, Inc., --- So. 3d ---, 2013 WL 1136399, 38 <i>Fla.</i><i> Law Weekly</i> D643 (Fla. 4th DCA, March 20, 2013), the court addressed the appeal of a summary judgment granted by a trial court following the deposition of an employee of a corporation.</p> <p>Carriage Hills, a condominium association, through its board of directors, hired JBH Roofing to perform building repairs necessitated by Hurricane Wilma pursuant to a contract which obligated JBH to perform only work approved by Carriage Hills&rsquo; public adjuster, and to accept payments approved by and received from Carriage Hills&rsquo; insurer. Less than a year later, Carriage Hills had terminated JBH&rsquo;s contract and JBH sued alleging breach of contract and other related claims. The breaches alleged by JBH included (a) failure to pay for repairs approved by the carrier; (b) failure to diligently present claims for loss to the carrier; and (c) retention of other roofing contractors to perform work that should have gone to JBH pursuant to the contract.</p> <p>Carriage Hills answered and asserted affirmative defenses alleging, among other things, that (1) the contract was &ldquo;executed without Board approval&rdquo;; (2) that it had already paid JBH in full for all work performed; (3) that JBH failed to mitigate damages; and (4) that JBH failed to perform its repairs satisfactorily or with due diligence.</p> <p>JBH noticed for deposition the &ldquo;Corporate Representative of Carriage Hills Condo with the most knowledge of the allegations contained in the complaint.&rdquo; The notice made no reference to any particular issue(s) to be addressed, or to Carriage Hills' affirmative defenses and counterclaims.</p> <p>Carriage Hills tendered Ms. Diane Foley, who in her then-capacity as President of the association, executed the JBH contract and was apparently the person with &ldquo;the most knowledge&rdquo; of the allegations in JBH&rsquo;s complaint.</p> <p>After testifying that she was authorized to execute the contract, Ms. Foley was repeatedly asked whether, in her &ldquo;opinion,&rdquo; contentions within the parties' pleadings were accurate. When asked whether she &ldquo;believed&rdquo; JBH had breached the contract, she responded, &ldquo;In my layman opinion, no.&rdquo; She testified that she was &ldquo;not aware&rdquo; of any unauthorized work performed, and that she &ldquo;believed&rdquo; that JBH completed all the tasks it was authorized to do up to the time of termination. She also did not believe JBH's work was defective.</p> <p>Armed with this testimony, JBH filed its Motion for Summary Judgment, in response to which Carriage Hills filed affidavits of another former president of the association and of its treasurer, in which it was asserted that JBH performed &ldquo;substandard work with respect to the roof systems&rdquo;, &ldquo;submitted duplicate charges&rdquo;, and &ldquo;conducted unauthorized work, including work that was not paid for [by the carrier].&rdquo; The affiants further asserted that due to JBH's shoddy repair work, Carriage Hills was forced to retain other roofing contractors to fix &ldquo;water leaks and problems encountered with the roof system,&rdquo; and that JBH was paid all of the funds approved by -- and received from -- the insurer.</p> <p>The trial court held that Ms. Foley, as its corporate representative, was &ldquo;Carriage Hills,&rdquo; and that her testimony was therefore binding on Carriage Hills. Accordingly, it struck the two affidavits, reasoning that &ldquo;[i]n situations where the non-movant in a motion for summary judgment submits an affidavit which directly contradicts an earlier deposition . . . , courts may disregard the later affidavit.&rdquo; Based upon Ms. Foley&rsquo;s deposition testimony, the trial court granted summary judgment to JBH, and Carriage Hills appealed.</p> <p>On appeal, Florida&rsquo;s 4th District Court of Appeals addressed the proper procedure for noticing and taking the deposition of a designated corporate representative in Florida. Florida Rule of Civil Procedure 1.310(b)(6), which governs depositions of designated corporate representatives, requires the party seeking the deposition to describe, with reasonable particularity, the matters for examination. This allows the corporate entity to select an individual or individuals able to testify on its behalf regarding the designated subjects. The Rule does not require that the person with &ldquo;the most knowledge&rdquo; regarding anything be produced. In fact, the court pointed out that the &ldquo;knowledge&rdquo; as to which the designated representative(s) are produced to testify is that of the corporation, and not the personal knowledge of the selected individual(s). The deponent needn&rsquo;t have any relevant personal knowledge at all.</p> <p>Against this backdrop, the appellate court noted that Ms. Foley had not been properly noticed as a corporate representative, since the notice failed to designate specific areas of inquiry, instead asking for the person &ldquo;with the most knowledge&rsquo; regarding the allegations in the complaint. And JBH got exactly what it asked for as a result &ndash; a deponent with personal knowledge of relevant facts but not a person who would testify to the knowledge and litigation positions of Carriage Hills. To add insult to injury, the deposition was also not properly conducted, in that Ms. Foley was repeatedly asked about her personal opinions rather than the positions of the corporation. The result was that Ms. Foley&rsquo;s testimony did not directly contradict the affidavits subsequently submitted by Carriage Hills, and the appellate court held that the trial court had acted improperly when it struck them and entered summary judgment based on Ms. Foley&rsquo;s testimony. The summary judgment was therefore reversed and the case remanded to the trial court for further proceedings.</p> <p>It has, unfortunately, become a common practice in Florida for notices for corporate representative depositions to request the &ldquo;person or persons with the most knowledge&rdquo; regarding designated subject areas or, most broadly, &ldquo;the issues set forth in the pleadings.&rdquo; The Carriage Hills decision serves as an important reminder of how failure to properly notice and conduct a corporate representative deposition can severely diminish the usefulness of the resulting deposition and the streamlining purpose of Rule 1.310(b)(6). Conversely, practitioners receiving such notices should consider filing objections and/or objecting on the record to such improper language.</p>Products Liability Blog02 May 2013 00:00:00 -0800 Regarding Florida's Proposed Product Liability Instructions<p align="left">On May 17, 2012, The Supreme Court of Florida issued its opinion concerning <a href=";an=12896&amp;format=xml&amp;p=4944">proposed</a> new Standard Jury Instructions for product liability cases. The Court preliminarily approved several of the proposed instructions, but rejected a number of instructions and directed the Committee to revise the proposed instructions.&nbsp;Among the rejected proposed instructions were an instruction covering strict which eliminated the differences between design and manufacturing defects and eliminated the risk utility test; an instruction on inferences of defect; and an instruction on crashworthiness.&nbsp;</p> <p align="left">On February 1, 2013, the Committee submitted revised proposed instructions for comment.&nbsp;The comment period ended on March 1, 2013.&nbsp;The changes contained in the revised instructions are far less drastic than the initial proposed revisions.&nbsp;The strict liability instruction essentially mirrors current instruction PL 5 and maintains a distinction between design defects and manufacturing defects. &nbsp;The revised proposed instruction also continues to list both the consumer expectations and risk/benefit tests.&nbsp;However, the Committee notes explain that pending further development in the law, the Committee has not taken a position on whether the risk/benefit test and consumer expectation test should be given together or in the alternative.&nbsp;The Committee also did not take a position on whether the risk/benefit test is a standard for proving a defect or an affirmative defense.&nbsp;Accordingly, the proposed instructions include the risk/benefit test in the instruction for design defect as well as in a separate defense instruction.&nbsp;The proposed instructions make clear that the jury should not be instructed on the risk/benefit test both as a defect standard and a defense.</p> <p align="left">Another change included in the revised proposed instructions is a specific set of negligence based product liability instructions.&nbsp;Under the existing product liability instructions, the parties were forced to shoehorn products liability concepts into the standard instructions for general negligence.&nbsp;</p> <p align="left">Further, due to the Legislature&rsquo;s statutory overruling of <i>D&rsquo;Amario v. Ford Motor Co</i>., 806 So.2d 424 (Fla. 2001), the Committee scrapped the very wordy and unbalanced crashworthiness instruction.&nbsp;The revised proposed instructions now only include a short statement of crashworthiness in the summary of claims and explain that the no special product liability instructions should be given.&nbsp;Rather, the Committee Notes for the instruction explain that the standard instructions applicable in other cases should be given in crashworthiness cases.</p> <p align="left">The Committee will be submitting the revised proposed rule to the Florida Supreme Court. The Court will then open a period for additional comment on the proposed rules before issuing its opinion on the proposal.</p> <p align="left">Check back with us for updates.</p>Products Liability Blog08 Apr 2013 00:00:00 -0800 Florida Law H.B. 587 Seeks Fairness in Plaintiff Recoveries on Claims for Medical Expenses<p>On February 1, 2013, Florida Representative, Dave Hood (R<span>-</span>Daytona Beach), filed H.B. 587,<a title="" href="#_ftn1" name="_ftnref1"><span><span><span><font color="#0000ff">[1]</font></span></span></span></a> a bill proposing to add Section 768.755 to the Florida Statutes. If passed, this statute would at last bring fairness and accuracy to the calculation of medical special damages that a plaintiff may publish to the jury at trial.&nbsp;This would alter current Florida case law which holds that evidence of the gross amount of medical expenses is admissible even if the health care provider accepted a reduced payment pursuant to a contractual discount with the plaintiff&rsquo;s health insurer.</p> <p>For example in<i> Nationwide</i> <i>Mutual Fire Insurance Co. v. Harrell</i>,<a title="" href="#_ftn2" name="_ftnref2"><span><span><span><font color="#0000ff">[2]</font></span></span></span></a> the plaintiff introduced evidence at trial of the gross amount of her medical bills even though the medical provider had accepted a discounted figure from her health insurer as payment-in-full. The defendant appealed, arguing that the admission of the amount <i>charged</i> rather than the amount <i>paid</i> misled the jury as to the true amount of the medical special damages.&nbsp;In its appeal, the defendant cited several precedent cases in which plaintiffs were prohibited from asking the jury to award the gross amount of medical bills when the treater had accepted a lower payment from Medicare on behalf of such plaintiffs. The First District Court of Appeal disagreed, distinguishing the scenario in which the reduced medical bills resulted from Medicare or other government benefit programs as opposed to contractual discounts negotiated by private insurers.</p> <p>The <i>Nationwide</i> Court found that in situations where the plaintiff &ldquo;earned (or paid for)&rdquo; the benefit of reduced health care costs through the payment of private insurance premiums, she was entitled to present evidence of the gross amount of medical expenses charged.<a title="" href="#_ftn3" name="_ftnref3"><span><span><span><font color="#0000ff">[3]</font></span></span></span></a> &nbsp;The court cited the &ldquo;well-settled rule of damages&rdquo; that &ldquo;where the tortfeasor did not contribute to the payment of the premiums of such insurance, [he] should not benefit from the expenditures made by the injured party in procuring the insurance coverage.&rdquo; &nbsp;This rationale was taken even further in <i>Durse v. Henn</i>,<a title="" href="#_ftn4" name="_ftnref4"><span><span><span><font color="#0000ff">[4]</font></span></span></span></a> where the Fourth District Court of Appeal allowed the plaintiff to present evidence of his gross medical bills <span>-</span> even though he had <u>no</u> health insurance <span>-</span> because he &ldquo;earned in some way&rdquo; the benefit of reduced charges by negotiating a compromise of the amount billed by the medical care provider.&nbsp;</p> <p>These two cases fail to account for the inherent fiction of modern healthcare billing. &nbsp;Today, gross hospital bills are not a truthful indicator of the real costs of the medical services provided.&nbsp;The recent debate over the Patient Protection and Affordable Care Act exposed how medical care providers fabricate vastly inflated bills for their services, disconnected from any real market forces.<a title="" href="#_ftn5" name="_ftnref5"><span><span><span><font color="#0000ff">[5]</font></span></span></span></a>&nbsp;In an unrelated case, the Florida Fourth DCA discussed this inherent perfidy of modern medical billing:</p> <p>&ldquo;[A] hospital&rsquo;s cost to provide a service no longer bears much relationship to what it charges, but reimbursement rates from third party payors give hospitals an incentive to set their usual charges at an artificially high amount, from which discounts are negotiated; cost-shifting results in discriminatorily high charges to uninsured patients, in that every patient is billed at full charges, but only the uninsured are expected to pay those amounts.&nbsp;As a result, actual charges are not instructive on what is reasonable. [&hellip;.]&rdquo;</p> <p><i>See</i><i> Colombia Hospital</i><i> v. Hasson.<a title="" href="#_ftn6" name="_ftnref6"><span><span><b><span><font color="#0000ff">[6]</font></span></b></span></span></a></i>&nbsp;The <i>Nationwide </i>and <i>Durse </i>opinions actually encourage this dysfunctional system by allowing false evidence of phantom medical expenses for which the medical provider never required payment.&nbsp;In fact, considering the observation in <i>Columbia Hospital</i> above, the <i>Durse </i>holding could actually discourage an injured person from presenting his health insurance to the hospital in order to maximize the bill in hopes of a higher personal injury award.&nbsp;</p> <p>The primary duty of the courts is the search for the truth in order to give justice to the litigants.&nbsp;<i>See Ward v. Ochoa.</i><a title="" href="#_ftn7" name="_ftnref7"><span><span><span><font color="#0000ff">[7]</font></span></span></span></a> A rule of law permitting admissibility of fictional damages subverts the very purpose of the civil jury system. &nbsp;For example, assume a hypothetical in which a pain management doctor provided the plaintiff a series of post-accident trigger point injections at an invoiced cost of $900 per injection. Assume also that the pain doctor had waived subrogation rights and agreed to accept just $150 per injection as payment-in-full based on the cost he negotiated in a preexisting contract with plaintiff&rsquo;s private health insurer. &nbsp;As decided in <i>Nationwide</i>, the plaintiff in this hypothetical could nonetheless present false evidence to the jury that her costs were $900 per injection.&nbsp;<i>Nationwide</i> would also permit this plaintiff to present the fictional $900 per injection in calculating future medical care costs despite full knowledge the amount would never be expected by her doctor.&nbsp;</p> <p>If the jury awards her that gross amount however, Florida law requires the trial court to deduct the $750 per-injection &ldquo;discount&rdquo; from the amount awarded by the jury.<a title="" href="#_ftn8" name="_ftnref8"><span><span><span><font color="#0000ff">[8]</font></span></span></span></a> This post-verdict setoff is of little consolation to the defendant.&nbsp;Plaintiffs&rsquo; lawyers obviously seek to publicize the maximum possible economic damages to the jury based on the very reasonable presumption that they will correlate larger economic losses with a higher severity of injury.<a title="" href="#_ftn9" name="_ftnref9"><span><span><span><font color="#0000ff">[9]</font></span></span></span></a>&nbsp;The current &ldquo;setoff&rdquo; approach is designed only to prevent a windfall on past medical expenses never paid by the plaintiff.&nbsp;The approach fails however, to appreciate that juries calculate awards for pain and suffering and other noneconomic damages based upon the amount of the medical bills submitted by the plaintiff for reimbursement.&nbsp;Thus, any equity worked by the post-verdict setoff will have already been erased by an exaggerated pain and suffering award stemming from the inflated bills.&nbsp;</p> <p>If passed, H.B. 587 will change this scenario.&nbsp;The Bill proposes that if the medical provider&rsquo;s charges have been satisfied, &ldquo;the actual amounts remitted to the provider are the maximum amounts recoverable.&rdquo;&nbsp;In such circumstances, the Bill requires that any difference between the amounts originally billed by the provider and the actual amounts accepted by the provider as payment-in-full &ldquo;are not recoverable or admissible into evidence.&rdquo;&nbsp;Therefore, in the above hypothetical, the plaintiff would be permitted only to present evidence that the trigger point injections cost $150 per shot.&nbsp;The Bill further proposes that if there remains an outstanding balance or if the claimant alleges the need for future medical services, the maximum amounts recoverable are the amounts customarily accepted <span>-</span> as opposed to billed <span>-</span> in payment for such services by providers in the same geographic area.&nbsp;&nbsp;</p> <p>The current state of Florida law reflects an antiquated notion that gross amount of medical bills derive from a rational, market-driven calculation of the true costs of the services provided.&nbsp;This is simply no longer the case.&nbsp;Hopefully, H.B. 587 will bring a fair and accurate statutory approach for jury calculations of medical special damages.&nbsp;In the meantime, RKC lawyers continue to use other strategies including aggressive non-party discovery of the billing policies of medical providers in order to ensure the evidence reflects the true costs of tre</p> <div><br clear="all" /> <hr width="33%" align="left" size="1" /> <div id="ftn1"> <p><a title="" href="#_ftnref1" name="_ftn1"><span><span><span><span><font color="#0000ff">[1]</font></span></span></span></span></a> <font size="2">A copy of H.B. 587 can be found at </font><a href=""><font color="#0000ff" size="2"></font></a><font size="2">.</font></p> </div> <div id="ftn2"> <p><a title="" href="#_ftnref2" name="_ftn2"><span><span><span><span><font color="#0000ff">[2]</font></span></span></span></span></a> <font size="2">53 So. 3d 1084 (Fla. 1st DCA 2010).</font></p> </div> <div id="ftn3"> <p><a title="" href="#_ftnref3" name="_ftn3"><span><span><span><font color="#0000ff">[3]</font></span></span></span></a> <span>The <i>Nationwide</i> Court&rsquo;s basis for distinguishing the precedent cases on such grounds was tenuous at best.&nbsp;Even those qualifying for so-called &ldquo;free&rdquo; Medicare Part A coverage would have earned it via payroll taxes while either they or their spouse was working.&nbsp;<i>See</i> the Federal Insurance Contributions Act, 26 U.S.C. Ch. 21.</span></p> </div> <div id="ftn4"> <p><a title="" href="#_ftnref4" name="_ftn4"><span><span><span><span><font color="#0000ff">[4]</font></span></span></span></span></a><font size="2"> 68 So. 3d 271 (Fla. 4th DCA 2011).</font></p> </div> <div id="ftn5"> <p><a title="" href="#_ftnref5" name="_ftn5"><span><span><span><span><font color="#0000ff">[5]</font></span></span></span></span></a>&nbsp;<font size="2"><i>See</i> Brill, Steven. &ldquo;<i>Bitter Pill: Why Medical Bills Are Killing Us.</i>&rdquo; Time Magazine. 20 Feb. 2013.&nbsp;Brill&rsquo;s study of modern hospital billing found that &ldquo;no hospital&rsquo;s prices are consistent with those of any other [&hellip;.] nor based on anything objective like cost.&rdquo; Brill cited findings in economic studies of the medical marketplace showing: </font></p> <p><font size="2">[I]n healthcare there is little of the price sensitivity found in conventional marketplaces [&hellip;.].&nbsp;If you were in pain or in danger of dying, would you turn down treatment at a price 5% or 20% higher than the price you might have expected?&nbsp;</font></p> <p><font size="2">When he polled hospital officials to explain exorbitant prices on specific patient bills, Brill received responses such as:&nbsp;&ldquo;Those are not our real rates,&rdquo; or that the figures were &ldquo;only used internally in certain cases, but most people never pay those prices.&rdquo;&nbsp;</font></p> </div> <div id="ftn6"> <p><a title="" href="#_ftnref6" name="_ftn6"><span><span><span><span><font color="#0000ff">[6]</font></span></span></span></span></a> &nbsp;<font size="2">33 So. 3d 148, 150 n.3 (Fla. 4th DCA 2010)</font></p> </div> <div id="ftn7"> <p><a title="" href="#_ftnref7" name="_ftn7"><span><span><span><span><font color="#0000ff">[7]</font></span></span></span></span></a><font size="2">&nbsp;284 So.2d 385, 387&nbsp;(Fla. 1973).&nbsp;<i>See also, Morgan Intern. Realty, Inc. v. Dade Underwriters' Ins. Agency, Inc.</i>, 571 So.2d 52, 53&nbsp;(Fla. 3<sup>rd</sup> DCA 1990) (Noting that in its &ldquo;</font><font size="2">search for the </font><font size="2">truth,&rdquo;&nbsp;</font><font size="2">the </font><font size="2">jury &ldquo;has a perfect right to [&hellip;.] ask questions [&hellip;.] in developing the truth of the controversy&rdquo;); <i>see also </i>Fla. Std. Jury Instr. (Civ.) 101.2; Oath Of Juror After Voir Dire (requiring the juror to &ldquo;solemnly swear or affirm&rdquo; to &ldquo;well and truly try [the] case&rdquo; and render a &nbsp;&ldquo;true verdict&rdquo;).</font></p> </div> <div id="ftn8"> <p><a title="" href="#_ftnref8" name="_ftn8"><span><span><span><span><font color="#0000ff">[8]</font></span></span></span></span></a> <font size="2"><i>See Goble v. Frohman</i>, 901 So. 2d 830 (Fla. 2005) in which the Florida Supreme Court determined that contractual discounts negotiated by the plaintiff&rsquo;s HMO and &ldquo;written off&rdquo; by the plaintiff&rsquo;s medical providers were deemed collateral sources to be setoff against the awarded damages.&nbsp;The Florida Supreme Court did not address the issue of whether this setoff was to occur before the medical bills were presented to the jury or, post-verdict by the trial court.&nbsp;In the underlying appellate case however, the Second Florida District Court of Appeal held that the setoff was to occur post-verdict, <i>Goble v. Frohman</i>, 848 So. 2d 406 (Fla. 2d DCA 2003), a procedure followed in both <i>Nationwide</i> and <i>Durst</i>.</font></p> <p>&nbsp;</p> </div> <div id="ftn9"> <p><a title="" href="#_ftnref9" name="_ftn9"><span><span><span><span><font color="#0000ff">[9]</font></span></span></span></span></a> <font size="2"><i>See</i> Ronen Avraham, <i>Putting a Price on Pain-and-Suffering Damages: A Critique of the Current Approaches and a Preliminary Proposal for Change</i>, 100 Nw. U. L. Rev. 87, 112 (2006).&nbsp;Indeed, recent research has shown that jurors&rsquo; subjective assessments of the severity of injury are perhaps the best predictor of pain and suffering awards. <i>See</i> Roselle L. Wissler <i>et al.</i>, <i>Decisionmaking About General Damages: A Comparison of Jurors, Judges and Lawyers</i>, 98 Mich. L. Rev. 751, 760-761 (1999).</font></p> </div> </div>Products Liability Blog26 Feb 2013 00:00:00 -0800 Cell Phone Records In Accident Cases<p>It is now standard procedure to obtain the cell phone records of the opposing party in cases involving motor vehicle accidents. The number of motor vehicle accidents that have been linked to cell phone usage, both telephone conversations and texting, is staggering.&nbsp;According to a 2010 National Safety Council study, 28% of traffic accidents occur when a driver is using a cell phone.&nbsp;As a result, it is critical to obtain a driver&rsquo;s cell phone records when defending a product liability case involving a motor vehicle or any car accident case.&nbsp;Cell phone records are typically obtained through a subpoena to the driver&rsquo;s cell phone provider.&nbsp;</p> <p>The goal when reviewing the driver&rsquo;s cell phone records is to determine whether the driver of the motor vehicle may have been talking on the cell phone or texting at the time of the accident.&nbsp;If you can establish that the driver was using the phone at the time of the accident, then you have powerful evidence that the driver was distracted.&nbsp;This evidence supports that the driver&rsquo;s cell phone distraction was the cause of the accident, rather than some malfunction or defect in the motor vehicle.</p> <p>Unfortunately, using cell phone records to establish a driver was on the phone at the time of the accident can be a very challenging task.&nbsp;Every second will often be important when trying to establish that the driver was using the cell phone at the time of the accident and had not ended the call before the accident.&nbsp;The unique challenges presented by cell phone records are demonstrated by the number of expert witnesses whose practices are solely dedicated to analyzing cell phone records and determining the actual starting and ending times for calls.&nbsp;</p> <p>It is important to understand the main issues that arise when analyzing cell phone records.&nbsp;While the records produced by the different cell phone providers vary, they usually provide at least the start time and duration for all calls made and received.&nbsp;You must determine what the times on the cell phone records represent.&nbsp;For example, does the start time represent the time that the call was placed or when the call was answered?&nbsp;How is the call duration calculated?&nbsp;Does the call end when the first person hangs up or only when the person who made the call hangs up?&nbsp;Is the number of minutes of call duration rounded up to next minute?&nbsp;Another important issue is the source of the starting and ending times for a call.&nbsp;These times are typically recorded using the time from the cell site (or cell tower) that processes the call.&nbsp;The problem is the times on the various cell sites are not synchronized; thus, there may be timing discrepancies between the different cell sites.&nbsp;Being aware of the issues that exist with cell phone records is essential when analyzing whether the cell phone was in use at the time of the accident.&nbsp;</p> <p>When you receive cell phone records you should first consult the cell phone provider&rsquo;s website, which typically contains some information on how to read the records.&nbsp;In addition, you should request from the provider a legend or key which defines the terms and characters used in the records.&nbsp;If you still have questions regarding what the times represent or the other contents of records, you can depose the provider&rsquo;s records custodian.&nbsp;&nbsp;</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p>Products Liability Blog03 Jan 2013 00:00:00 -0800 Supreme Court To Decide Appropriate Procedure For Litigating Wrongful Death Claims That Arise During Pendency of Personal Injury Action<p>Two recent opinions from the Third District Court of Appeals cast doubt as to the appropriateness of amending a lawsuit upon the plaintiff&rsquo;s death. In both cases, the Third District held that Florida&rsquo;s Wrongful Death Act extinguishes a personal injury action and survivors must file a new lawsuit asserting the wrongful death allegations.&nbsp;</p> <p>In <i>Capone v. Philip Morris U.S.A., Inc.,</i> 56 So. 3d 34 (Fla. 3d DCA 2010), the Third District considered whether it was proper for the trial court to deny Capone&rsquo;s motion to amend her complaint to assert a claim under Florida&rsquo;s Wrongful Death Act.&nbsp;Frank and Karen Capone filed suit against Philip Morris in 2005, alleging Mr. Capone sustained personal injuries as a result of smoking the defendant&rsquo;s cigarettes.&nbsp;Mr. Capone&rsquo;s injuries ultimately led to his death in July 2006.&nbsp;In 2008, Capone moved to amend her complaint to assert a new cause of action for injured smokers made available to litigants as a result of the decision in <i>Engle v. Liggett Group, Inc., </i>945 So. 2d 1246 (Fla. 2006).&nbsp;Capone also moved to substitute herself as the personal representative of her husband&rsquo;s estate as the proper party plaintiff.&nbsp;Philip Morris moved to dismiss, arguing that the personal injury action abated upon Mr. Capone&rsquo;s death and that Capone&rsquo;s wrongful death suit had to be filed separately.&nbsp;</p> <p>Philip Morris relied upon a provision within Florida&rsquo;s Wrongful Death Act, Section 768.20, Florida Statutes.&nbsp;This statute provides in pertinent part that &ldquo;[w]hen a personal injury to the decedent results in death, no action for personal injury shall survive and any such action pending at the time of death shall abate.&rdquo;&nbsp;The trial court agreed with Philip Morris and dismissed the personal injury case.&nbsp;The court&rsquo;s ruling served to permanently extinguish Ms. Capone&rsquo;s claims against Philip Morris, since at the time of the ruling the statute of limitations for the wrongful death claim had expired.&nbsp;Upholding the trial court&rsquo;s decision, the Third District explained, &ldquo;[t]he trial court correctly dismissed the amended complaint because Frank Capone&rsquo;s personal injury claim had abated upon his death and Karen Capone was required to file a separate wrongful death claim, which she did not do prior to the expiration of the two-year statute of limitation for that cause of action.&rdquo;&nbsp;</p> <p>The Third District affirmed a similar trial court decision in <i>Ruble v. Rinker Material Corporation,</i> 59 So. 3d 137 (Fla. 3d DCA 2011).&nbsp;On August 11, 2008, Lance and Joan Ruble filed a personal injury complaint for asbestos-related injuries.&nbsp;Five days later, Lance Ruble died as a result of asbestos-related mesothelioma.&nbsp;Joan Ruble then filed a motion to amend the complaint to allege a cause of action for wrongful death.&nbsp;The Rinker defendants opposed the motion, arguing that it is improper for Ms. Ruble to attempt to convert the personal injury action into a claim for wrongful death.&nbsp;The trial court agreed, finding that since Mr. Ruble&rsquo;s claim was one for personal injuries and those injuries ultimately caused his death, the Wrongful Death Act requires Mrs. Ruble to file a new complaint to allege wrongful death.&nbsp;</p> <p>The Supreme Court of Florida accepted jurisdiction of both cases and Oral Argument was held on June 5, 2012. &nbsp;The questions posed by Justices Quince, Pariente and Lewis focused on whether the legislature intended to require a personal representative to file a new action once the personal injury action was abated.&nbsp;Counsel for each side agreed that the term &ldquo;abate&rdquo; means &ldquo;extinguish&rdquo; and that the personal injury claims are extinguished upon the death of a plaintiff.&nbsp;&nbsp;However, the parties disagreed as to the proper procedure for asserting the wrongful death allegations.&nbsp;Advocates for the plaintiffs in both cases argued that the legislative intent was not to extinguish the entire lawsuit, but rather to extinguish the personal injury claims.&nbsp;They cited to a series of cases where the parties stipulated to substituting the proper party and to an amendment of the pleadings to reflect the wrongful death allegations.&nbsp;Counsel for Philip Morris and Rinker argued that the statute clearly dictates the procedural vehicle for asserting a wrongful death claim and there is generally no prejudice to the plaintiff if they timely file the new lawsuit.&nbsp;</p> <p>Justice Pariente was the most vocal of the Justices, repeatedly questioning the policy reasons for requiring a personal representative to file a new lawsuit and expressing doubt that such a procedure serves the ever-present goal of judicial efficiency.&nbsp;Justice Lewis also explored the statute of limitations issue, questioning both the plaintiff&rsquo;s failure to take advantage of the available option of filing a new suit and the fairness of the harsh result reached in the <i>Capone</i> case.&nbsp;The Justices also considered lengthy arguments from both sides in the <i>Ruble</i> case regarding the Court&rsquo;s jurisdiction.&nbsp;The parties disagree about whether Ruble timely served a Motion for Reconsideration, which then gave rise to her appeal to the Third District.&nbsp;Counsel for Rinker argued that the motion was not timely served and that Court does not have jurisdiction over the matter.&nbsp;This issue was not addressed in the Third District&rsquo;s order affirming the trial court&rsquo;s decision to dismiss the case.</p> The Florida Supreme Court has not yet issued an opinion in either case.&nbsp;The Court&rsquo;s decision will provide a bright line rule regarding the procedure for asserting wrongful death allegations when a plaintiff dies.&nbsp;If the Court affirms the Third District decisions, a personal representative for an estate will have to pursue the wrongful death claim in a separately filed action.&nbsp;Should the Court reverse the Third District, personal representatives will be permitted to substitute themselves as the plaintiff and amend the complaint to include wrongful deathProducts Liability Blog27 Nov 2012 00:00:00 -0800 Meningitis Outbreak May Mean Increased Scrutiny for Compounding Pharmacies<p>The recent fungal meningitis outbreak attributed to a compounding pharmacy will mean increased FDA scrutiny even for those practicing compounding in a lawful and compliant manner as well as for wrongdoers. Until recent events, the biggest obstacle FDA faced in effectively regulating pharmacy compounding was its own budget. However, Congress may eliminate the &ldquo;funding&rdquo; barrier by prioritizing enforcement of FDA<i> Compliance Policy Guide 460.200 - Pharmacy Compounding</i> in light of the recent publicity surrounding the fungal meningitis outbreak allegedly traced to a Compounding Pharmacy. This will mean increased FDA scrutiny even for those practicing compounding in the &ldquo;proper&rdquo; manner as well as for those wrongdoers. For years the FDA has struggled to adapt an enforceable policy to regulate compounded pharmaceuticals, while not running afoul of Congress or the Judiciary. But selective enforcement by practicing discretion in deciding whether or not to take enforcement action has not adequately controlled the situation in the view of the public.</p> <p>After all according to FDA, when Congress enacted the FD&amp;C Act in 1938, it discreetly &nbsp;&ldquo;outlawed&rdquo; all pharmacy compounding practices. But simultaneously the FDA recognized the medical need for compounding and has consequently, exercised &ldquo;enforcement discretion&rdquo; for years.&nbsp;</p> <p>Now that compounding is headline news, renewed calls for regulation of compounding by the FDA resonate from Capitol Hill. The FDA has received several letters from the elected questioning the law governing compounding and asking if the law needs to be strengthened. In a recent interview retired Chief Counsel of the FDA, Peter Barton Hutt, expressed his contention that the Agency can enforce on those who compound to &ldquo;build inventory&rdquo;, compound prior to having a prescription and compound pharmaceuticals already in FDA approved commercial manufacture.</p> <p>Several recent cases, most notably Franck&rsquo;s Lab compounded veterinary drug case, where twenty some odd polo ponies were found dead show the inconsistency of the FDA&rsquo;s &ldquo;discretionary&rdquo; regulatory and enforcement policy. &nbsp;</p> <p>What are the duties and rights of compounding pharmacies? What obligations do they hold and to whom do they answer? Who may inspect compound pharmacies and when? It&nbsp;becomes quite&nbsp;complicated as attempts at action by the FDA, State Boards of Pharmacy, legislatures and courts have left a patchwork of incomplete, overlapping laws, contradictory court rulings and uncertainty as to how much power any regulatory authority may exercise. For compounding pharmacies, their legal rights and obligations may not be that easy to define and should seek legal counsel to avoid FDA and state penalties that could lead to costly private lawsuits as well.</p>Products Liability Blog22 Oct 2012 00:00:00 -0800