TRIAL COURT PROPERLY DENIED MOTION FOR NEW TRIAL BASED ON ALLEGATIONS OF “ILLEGAL COMPROMISE”
Cooper Tire v. Pierre, 34 Fla. L. Weekly D1473 (Fla. 4th DCA July 22, 2009):
In this product liability case, the jury awarded a widow and her five children 1.5 million dollars in damages for the death of her husband due to a defective tire. The jury found the decedent owner of the vehicle 35% responsible, and the driver 15%.
After the trial concluded, the jury foreperson filed an affidavit stating that the jury was divided 3 to 3 throughout the process of deliberations, but after many hours, agreed to find Cooper 50% responsible if the other jurors would agree to decrease the award of damages.
The court found that what allegedly occurred during jury deliberations (as set forth in the affidavit) did not rise to the level of reaching a verdict by aggregate or by lot, and that the jury negotiated its verdict by a normal means of “give and take.” The court found the foreperson’s affidavit discussing how the jury reached its compromise merely recounted a matter that inhered in the verdict. As such, there was no illegal compromise, and the trial judge properly denied the defendant’s motion for new trial.
REMEDY ON APPEAL BARS INSURER FROM SEEKING A WRIT OF CERTIORARI ON AN ORDER DENYING DISCOVERY
State Farm v. German, 34 Fla. L. Weekly D1491 (Fla. 5th DCA July 24, 2009):
State Farm sought discovery through Boecher interrogatories (which the trial court ordered plaintiff had to answer), and also to depose these physicians to uncover bias as permitted by Elkins. The trial court concluded that because the physicians were “treating physicians” rather than retained experts, the bias discovery was not permitted.
The Fifth District did not address the merits, instead concluding that it did not have jurisdiction to consider the writ because State Farm had an adequate remedy on appeal from the adverse discovery ruling. In a special concurring opinion, however, Judge Torpy observed that treating physicians are like any other witnesses, and may be questioned as to bias. He noted there is no logical distinction between treating physicians and retained experts for the purposes of uncovering this type of information, and it is similarly relevant, with the burdens of producing the information the same for all of these professionals.
FACT SPECIFIC BASES FOR STATUTE OF LIMITATIONS DEFENSES CANNOT BE RESOLVED ON MOTIONS TO DISMISS
Sholly v. Disc Village, 34 Fla. L. Weekly D1506 (Fla. 1st DCA July 24, 2009).
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