WHEN CASES INVOLVE ONLY PURELY ECONOMIC CONSEQUENCES AND SLIGHT INDIVIDUAL FINANCIAL HARM, PUNITIVE DAMAGE AWARD IS SUBJECT TO A THREE-PART “DUE PROCESS” ANALYSIS ACCORDING TO THE U.S. SUPREME COURT AND THE FOURTH DISTRICT
James Crystal Licenses, LLC v. Infinity Radio, 35 Fla. L. Weekly D1111 (Fla. 4th DCA May 19, 2010):
In this case involving the ongoing saga between Jennifer Ross, WRMF, and WEAT, where the court reversed the judgments entered against Jennifer Ross and WRMF for damages allegedly caused by her violation of a covenant not to compete with WEAT. The case is profiled due to its extensive analysis regarding punitive damages.
The court held that punitive damages for fraud cannot stand absent proof of nominal damages, because a fraud claim, by necessity, requires proof of actual loss or injury due to acting in reliance on a false representation.
The court then reminded us of the three-part analysis articulated by the United States Supreme Court in State Farm v. BMW which requires analysis of (1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized and imposed in comparable cases.
In this tortious interference claim, the court found after applying the test, that the punitive damage award exceeded the boundaries of due process, and reversed.
TRIAL COURT DID NOT DEPART FROM ESSENTIAL REQUIREMENTS OF LAW BY ALLOWING NON-PARTY TREATING ORAL SURGEON TO HAVE EX PARTE PRE-DEPOSITION CONFERENCE WITH HER OWN ATTORNEY, EXCLUDING DISCUSSIONS REGARDING PLAINTIFF’S CARE AND TREAMENT
Hasan v. Garvar, 35 Fla. L. Weekly D1115 (Fla. 4th DCA May 19, 2010):
The trial judge entered an order allowing a non-party treating physician to have an ex parte pre-deposition conference with her own attorney, excluding any discussions regarding the plaintiff’s care and treatment. The oral surgeon–a non-party–was insured by the same carrier who insured the named defendants.
Because the attorney simply wanted to discuss deposition techniques, etc., with the physician, the Fourth District found the order did not depart from the essential requirements of law. This was not a situation where the non-party treating physician would have had an ex parte conference with the defendants’ attorneys. This only allowed the non-party treater to have an ex parte conference with her own attorney.
The court noted that it did not believe the temptation to violate a court ordered prohibition is as strong in situations involving non-party treating physicians and their own attorneys. It explicitly stated that while it is not “naive,” it is not “so cynical” to accept the plaintiff’s assumption that the prohibition will be disobeyed simply because the same insurer has provided the attorneys.
APPELLATE COURT REVERSED SUCCESSOR JUDGE’S DENIAL OF MOTION FOR NEW TRIAL AFTER DEFENSE DISQUALIFIED ORIGINAL JUDGE
Sullivan v. Kanarek, 35 Fla. L. Weekly D1143 (Fla. 2nd DCA May 21, 2010):
In this extremely contentious medical malpractice case, the original trial judge commented on the record at the motion for new trial, that in her 20 years on the bench, she had not observed a trial that caused her so much concern on its fairness based upon the behavior of defendant’s counsel. Based on those comments, the defense attorney moved to disqualify the judge. Finding the motion legally sufficient, she granted it.
The case was then re-assigned to a successor judge, and then assigned once again to a second judge. The second successor noted how difficult it was to assess what went on at trial, especially since so much was contained off the record in non-verbal conduct. In any event, he acknowledged the difficult position he was in, and ruled to deny the motion for new trial.
The court reminded us that in civil cases when there are unusual circumstances (such as death or involuntary recusal), a successor judge is supposed to review the entire trial court record, and rule to the best of his or her ability. If after reviewing the record, the successor judge determines that a particular credibility issue exists which prevents the trial court from adequately ruling on the merits, the successor judge may grant the motion and explain in a written order the specific circumstances justifying the new trial without ruling on the merits.
In this case, the successor judge acknowledged that the original judge was in the best position to make this decision, and his concern was underscored by the fact that the presiding judge had expressed grave concern for the fairness of the trial.
The ruling of a successor judge on a motion for new trial is afforded less deference. In any event, the court found that this case was the “extraordinary” type case where a successor judge can rule on a new trial, even in light of the credibility issues. The court reversed and remanded for a new trial.
WHERE THERE WAS A SUBSTANTIAL ISSUE CONCERNING THE RESIDENT’S CAPACITY TO ENTER INTO A CONTRACT AT THE TIME HE SIGNED THE ADMISSIONS AGREEMENT WHICH INCLUDED AN ARBITRATION CLAUSE, IT WAS ERROR TO DENY DEFENDANT’S MOTION TO COMPEL ARBITRATION WITHOUT CONDUCTING AN EVIDENTIARY HEARING
F. L. Carroll Woods Care Center LLC v. Gordon, 35 Fla. L. Weekly D1148 (Fla. 2nd DCA May 21, 2010).
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