TRIAL COURT DID NOT ABUSE DISCRETION AFTER CONCLUDING PLAINTIFF DID NOT CONDUCT A REASONABLE INVESTIGATION WHEN AFFIDAVIT ATTACHED TO NOTICE OF INTENT WAS DONE BY FAMILY MEMBER

Derespina v. North Broward Hospital District, 34 Fla. L. Weekly D2094 (Fla. 4^th DCA October 14, 2009):

Accompanying the plaintiff’s notice of intent to initiate litigation was the affidavit of her sister, a nurse with 46 years of experience, who also happened to be the mother of the plaintiff’s attorney.  The affidavit stated she had reviewed the records and had concluded the medical malpractice claim had merit. 

The defendant hospital argued plaintiff failed to conduct a reasonable investigation because a biased affiant could not be the product of a reasonable investigation. 

After an evidentiary hearing at which the sister testified, the court determined that she was not unbiased, had not billed for her time in reviewing the file, and had no special expertise in the subject matter.  The court concluded that the plaintiff could have easily obtained a nurse without family ties to the plaintiff to give an expert opinion in the Fort Lauderdale area, but none was ever sought. 

Based upon the findings of the trial judge after an evidentiary hearing, the 4^th DCA found that the investigation of malpractice did not constitute a reasonable investigation as contemplated by the statute, and the subsequent dismissal of the complaint (even though the statute of limitations had run) was not an abuse of the judge’s discretion. 

TRIAL COURT IMPROPERLY OVERRULED DEFENDANT’S OBJECTION TO PLAINTIFF’S REQUEST THAT DEFENDANT’S EXPERT MEDICAL WITNESS PRODUCE ALL 1099′S OR EQUIVALENT DOCUMENTS FOR THE CALENDAR YEAR EVIDENCING ALL IME RELATED INCOME

Buck v. Chin, 34 Fla. L. Weekly D2100 (Fla. 3^rd DCA October 14, 2009):

The trial judge overruled defendant’s objections, asking Dr. Stephen Wender to produce all 1099’s or equivalent documents for the year 2007,  to show IME related income for that year.  The court granted the petition for writ of certiorari, finding that Rule 1.280(b)(4)(A)(iii) does not support the production of such evidence to show expert bias, and only can allow such documents to be compelled under the most unusual or compelling circumstances (like when there has been a falsification or misrepresentation).  The mere inconsistency between Dr. Wender’s deposition testimony and his interrogatory answers did not serve as the compelling circumstance needed. 

TRIAL COURT ABUSED DISCRETION IN DISMISSING COMPLAINT DUE TO UNTIMELY SERVICE OF PROCESS

Roberts v. Stidham, 34 Fla. L. Weekly D2134 (Fla. 5^th DCA October 16, 2009):

Appellant served her complaint 32 days after the 120 days expired.  She asserted she had good cause for the delay because there were multiple attempts made at service. 

The trial court still granted the defendant’s motion to dismiss, stating it was incumbent upon the plaintiff to move for an enlargement of time to effect service of process before the time ran, particularly when she knew or reasonably should have known that it would not be accomplished within the 120 days. 

Reviewing the dismissal for abuse of discretion, the court said that when a plaintiff shows good cause for failing to serve process within 120 days, the trial court must extend the time for service, and has no discretion to do otherwise.  The trial court also has broad discretion to extend the time for service even when good cause for failing to meet the 120 day deadline has not been shown. 

However, even when there has been no showing of good cause or excusable neglect, and the statute of limitations has run, discretion should be exercised in favor of allowing the plaintiff an extension to accomplish service.  Because the affirmative steps taken in the case were clearly adequate to avoid dismissal with prejudice, the trial court abused its discretion. 

WHERE PARTIES PARTICIPATED IN RELIGIOUS MARRIAGE CEREMONY WITHOUT OBTAINING A MARRIAGE LICENSE, THE LACK OF A MARRIAGE LICENSE DOES NOT NECESSARILY UNDERMINE THE EXISTENCE OF A VALID MARRIAGE – UNLICENSED MARRIAGES ARE NOT FACIALLY INVALID

Hall v. Maal, 34 Fla. L. Weekly D2152 (Fla. 1^st DCA October 20, 2009).

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

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