TRIAL COURT ERRED IN DENYING REMITTITUR OF JURY’S AWARD FOR FUTURE MEDICAL EXPENSES AND FUTURE LOST EARNING CAPACITY

Pruitt v. Perez-Gervert, 35 Fla. L. Weekly D1401 (Fla. 2^nd DCA June 23, 2010):

The plaintiff received injuries to his neck and back in an automobile accident.  His treating physician testified he had suffered a permanent injury and performed surgery as a result of the accident.  The evidence presented regarding his future medical expenses amounted to $88,960.00. 

The jury awarded over $163,000.00.  Because the amount was clearly excessive in light of the medical expenses reasonably supported by the evidence at trial, it was error for the trial judge not to grant defendant’s remittitur. 

Also, as to the loss of future earning capacity, the only evidence introduced was that the plaintiff was a 57 year-old drywall installer who had earned $16.00 per hour before the accident.  He testified he could no longer hang drywall after the accident.  However, his doctors did not testify that he was completely disabled from employment.  The jury awarded the plaintiff $580,000.00 for future lost earning capacity.

The court found that although the plaintiff presented evidence of past wages as a drywall installer, and evidence that he could no longer work, he did not present evidence of his post-accident earning capacity, or evidence that he was completely disabled from further employment.  In fact, his counsel argued during closing argument that he could probably earn at least minimum wage until his retirement at 65 or 70.

The court reversed, and entered a directed verdict on the future lost earning capacity.  It then remanded for a new trial on the future medical expenses.

ERROR TO DISMISS ACTION BECAUSE MOTION FOR SUBSTITUTION OF PERSONAL REPRESENTATIVE FOR PLAINTIFF WHO DIED DURING COURSE OF LITIGATION WAS UNTIMELY, WITHOUT CONSIDERING EVIDENCE ESTABLISHING EXCUSABLE NEGLECT

Mims v. American Senior Living of Dade City, 35 Fla. L. Weekly D1404 (Fla. 2^nd DCA June 23, 2010):

The plaintiff died during the litigation, and counsel did not file a motion for substitution of the personal representative until 115 days after the filing of the suggestion of death.  Plaintiff’s counsel presented evidence to the trial court that demonstrated excusable neglect for the untimely finding (based on a clerical error in counsel’s office).  The trial court refused to consider the excusable neglect evidence and dismissed the case with prejudice. 

The court reminded us that Rule 1.260(a)(1) has been liberally interpreted to permit a substitution of parties beyond the 90 day period set forth in the rule.  Furthermore, the courts of Florida have a longstanding tradition in favor of disposing of actions on their merits. 

ERROR TO GRANT MOTION TO DISMISS ON GROUND THAT PLAINTIFF’S AFFIDAVIT FAILED TO MEET THE “SIMILAR SPECIALITY” REQUIREMENT OF CHAPTER 766–ON REMAND, COURT SHALL CONDUCT AN EVIDENTIARY HEARING TO DETERMINE WHETHER AN AFFIDAVIT FROM AN EMERGENCY DEPARTMENT PHYSICIAN COMPLIED WITH “SIMILAR SPECIALITY” REQUIREMENT

Holden v. Bober, 35 Fla. L. Weekly D1405 (Fla. 2^nd DCA June 23, 2010):

A man who suffered an acute ischemic stroke sued a hospital emergency department.  In support of his notice of intent, he attached a corroborating affidavit of a Board certified ER physician.  Co-defendants, Dr. Gu and the Malka Institute, alleged that the plaintiff’s expert affidavit was facially insufficient with respect to the neurology claims, because their expert was an ER physician and not a neurologist.  The trial court dismissed the plaintiff’s complaint.

The appellate court observed it had to look at the dismissal in a light most favorable to the plaintiff.  Because this physician–though a neurologist–was in an emergency department setting, the court found it could envision a scenario where an ER physician could be considered an expert specializing in a “similar specialty.”  The court further noted an evidentiary hearing would provide the plaintiff with the opportunity to introduce witnesses and explain how the ER doctor’s qualifications could be considered a similar specialty of Dr. Gu and clarify any inconsistencies in the corroborating affidavit.

The court found it was error to dismiss plaintiff’s complaint as to those defendants, without determining in a light most favorable to the plaintiff, whether his affidavit complied with the requirements of Chapter 766.  Upon remand, the court ordered an evidentiary hearing to see if the physician could meet the “similar specialty” requirement. 

NO ABUSE OF DISCRETION IN PRECLUDING PLAINTIFF FROM CROSS EXAMINING DEFENSE EXPERT REGARDING CREDIBILITY OF ANOTHER WITNESS–TRIAL COURT PROPERLY FOUND ISSUE WAS COLLATERAL AND HAD NO BEARING ON WHETHER A DEFENDANT WAS NEGLIGENT–EVEN IF ERROR, IT WAS HARMLESS

Special v. Baux, 35 Fla. L. Weekly D1419 (Fla. 4^th DCA June 23, 2010):

After a woman underwent a routine cesarean section for her breach birth, she suffered two cardiac arrests and died within five hours of delivery.  Plaintiff sued the defendants for negligently administering anesthesia and for negligent monitoring.  The defendant alleged that the death was caused by amniotic fluid embolus (AFE), an allergic reaction from mother’s blood mixing with amniotic fluid sometimes causing heart and lung collapse.

The AFE diagnosis figured prominently at trial.  There was evidence that Boca Hospital had a disproportionate number of AFE cases.  During the cross of defendants’ expert regarding AFE, the defendants objected when plaintiff began to ask the expert to address another expert’s testimony regarding the appearance of between 1 and 2 cases of AFE annually at West Boca (even though ranges from 1 in 8,000 to 1 in 80,000).  The trial court sustained the objection, finding it was impeachment on a collateral issue. 

The court explained that a general claim of the “over-diagnosis” of AFE at the Center, did not affect whether the doctor was negligent in attending to the decedent.  The court found such “over-diagnoses” was an immaterial fact.  It then found that even if the issue were not collateral, the plaintiff argued prominently both in the center’s interrogatory answers and in closing argument that there was an epidemic in “over diagnosing” AFE.

The court then using the civil standard for harmless error (whether a different result would have been reached but for the error), and found the error was harmless.

NO CLEARLY ESTABLISHED LAW PROHIBITING APPLICATION OF A MULTIPLIER TO PARALEGAL FEES THAT ARE INCLUDED AS PART OF AN ATTORNEY’S FEE AWARD

State Farm v. Wise, 35 Fla. L. Weekly D1438 (Fla. 1^st DCA June 25, 2010).

*Available to handle appellate and trial support matters for attorneys throughout the state.

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