TRIAL COURT ERRED IN DISMISSING COUNTS AGAINST ULTRASOUND TECH IN CLAIM BROUGHT BY PLAINTIFFS FOR ORDINARY NEGLIGENCE
Shaffer v. Icely, 34 Fla. L. Weekly D1736 (Fla. 2nd DCA August 26, 2009):
In this action against multiple defendants, the plaintiff sued an ultrasound tech for “ordinary negligence” after she mistakenly represented that the plaintiff’s sonogram showed that their fetus had ten fingers and ten toes. The plaintiffs’ daughter was later born missing a forearm and a hand.
On a motion to dismiss, the trial judge agreed that an action for wrongful birth is a subset of medical malpractice, and must be brought pursuant to Chapter 766. However, because the act does not include “ultrasound technician” in its definition of healthcare provider, the trial judge dismissed the complaint with prejudice.
The appellate court reversed, finding plaintiff’s complaint stated a cause of action for ordinary negligence, because ultrasound techs are not healthcare providers. The court reversed the dismissal.
TRIAL JUDGE PROPERLY GRANTED MOTION FOR NEW TRIAL BASED ON ZERO VERDICT AWARD FOR THE FUTURE PAIN AND SUFFERING, FUTURE MEDICAL EXPENSES AND LOSS OF CONSORTIUM, FINDING VERDICT AGAINST MANIFEST WEIGHT OF THE EVIDENCE
Big Lots Stores, Inv. v. Dediaz, 34 Fla. L. Weekly D1745 (Fla. 3rd DCA August 26, 2009):
Plaintiff tripped at a Big Lots Store falling on her left knee. She ultimately brought a claim. The court affirmed the trial judge’s decision to grant a new trial after jury awarded nothing for future losses or consortium. It reminded us that the fact that there may be substantial competent evidence in the record to support the verdict does not necessarily mean that the trial judge abused his or her discretion in granting a new trial. In fact, the court reminded us that in reviewing this type of discretionary act of the trial court, the appellate court, should, apply the reasonableness test to determine whether the trial judge abused his or her discretion.
In this case, the trial court’s order granting the new trial, contained the required detailed specific findings and supported the court’s conclusion that the verdict was against the manifest weight of the evidence. The court further found that the undisputed evidence presented on the husband’s consortium claim required at least an award of nominal damages.
TRIAL COURT DID NOT DEPART FROM ESSENTIAL REQUIREMENTS OF LAW IN DENYING MOTION TO DISQUALIFY OPPOSING PARTY’S COUNSEL UNDER RULE 4-1.7 OF RULES REGULATING THE FLORIDA BAR, ON THE GROUND THAT OPPOSING PARTY’S COUNSEL HAD REPRESENTED MOVANT IN PRIOR CASES – 4-1.7 GOVERNS CONFLICTS BETWEEN ATTORNEYS AND EXISTING AS OPPOSED TO FORMER CLIENTS
Schulte v. Angus, 34 Fla. L. Weekly D1765 (Fla. 3rd DCA July 8, 2009):
The attorney moved to disqualify the other attorney based on 4-1.7, instead of Rule 4-1.9 which applies to “former” clients. Because there was no evidence that the petitioner was an existing client, the petition was denied. This case at least helps remind us which Bar rules to apply.
AS LONG AS PARTY OBJECTS TO THE MISCONDUCT IT PERCEIVES OF OPPOSING COUNSEL, IT IS NOT NECESSARY TO FILE A MOTION FOR MISTRIAL FOR THE COURT TO REVIEW THE CASE UNDER A STANDARD BELOW FUNDAMENTAL ERROR
City of Tampa v. Companio, 34 Fla. L. Weekly D1777 (Fla. 2nd DCA August 28, 2009):
Throughout the trial, the city objected to plaintiff’s counsel’s alleged misconduct. The city filed a motion for new trial, arguing that the cumulative effect of that misconduct deprived the city of a fair trial. Although the trial court found that the cumulative conduct was so pervasive and prejudicial that the city’s right to a fair trial was impaired, it denied the city’s motion, reasoning that the city had not moved for a mistrial and the conduct was not so extreme as to undermine the public’s confidence in the judicial system.
The court reversed. It found that the standard applied by the trial court was wrong, and only applies when a party raises an error for the first time in a motion for new trial, thus requiring the trial court to determine whether the error was fundamental. Here, the city had objected consistently throughout the trial. Simply because the city failed to move for a mistrial was not a prerequisite to moving for a new trial. The objections were preserved, and the case reversed.
