ERROR TO AWARD ATTORNEY’S FEES PURSUANT TO A PROPOSAL FOR SETTLEMENT WHERE THE AMOUNT OF JUDGMENT WAS NOT 25% GREATER THAN THE AMOUNT OF THE PROPOSAL – IN DETERMINING WHETHER TOTAL JUDGMENT MEETS THRESHOLD FOR AWARD OF ATTORNEY’S FEES, IT IS IMPROPER TO INCLUDE COSTS INCURRED AFTER THE PROPOSAL WAS TENDERED
Nilo v. Fugate, 35 Fla. L. Weekly D592 (Fla. 1st DCA March 17, 2010):
Only costs incurred “pre-demand” may be considered in determining whether the total judgment meets the statutory threshold when a court evaluates attorney’s fees under a proposal for settlement.
TRIAL COURT DID NOT ABUSE DISCRETION IN ADMITTING TESTIMONY OF UNDISCLOSED WITNESS WHERE DEFENDANTS COULD NOT HAVE BEEN SURPRISED – NO ABUSE IN DENYING MISTRIAL FOR COMMENTS MADE IN CLOSING ARGUMENT
Philippon v. Shreffler, 35 Fla. L. Weekly D606 (Fla. 4th DCA March 17, 2010):
In this negligent credentialing case, the patient sought to introduce eyewitness testimony of a surgical technician who had been present during an ill-fated operation. During discovery, the patient had repeatedly requested contact information regarding the technician, and despite court order defendants never provided it. The patient’s counsel did not locate the witness until he did an Internet search during the trial. The patient maintained there was no prejudice to the defendants because they clearly knew of this tech, her name was in the hospital records, and she was listed in their answers to interrogatories.
Defendants argued they would be prejudiced by her testimony, because had they known she was going to testify, they would have tailored their opening statements, their cross examinations, and handled their entire defense differently. They would have also researched her background for cross examination.
Because the court found the patient had attempted to obtain the witness’s information, and both sides knew the name and of her presence in the operating room, the court found there was no “surprise,” and she was allowed to testify. While the court did not find any evidence of willful non-disclosure or bad faith, it ruled that allowing the witness’s deposition to be taken cured any prejudice towards the hospital, and felt this was not an abuse of discretion under these circumstances.
Despite plaintiff’s closing regarding evidence that counsel never moved into evidence, and the reference to a “cocksure attorney,” the Fourth ruled the trial court did not abuse its discretion in refusing to grant a mistrial.
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