expectations
©
appellate
raising
Follow Us
National Federal & Florida representation. Global clientele.
The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Your contact with this firm reflects your understanding and agreement with these statements.
Recommendations or testimonials are not necessarily representative of results obtained, or all clients’ experiences with the lawyer. Facts and circumstances may differ from the matter(s) in which the results or recommendations are provided. Decisions about any lawyer are important and should not be based solely upon what is stated in a social networking site, website or blog. Your contact with this firm reflects your understanding and agreement with these statements.
© 2007-12 Easley Appellate Practice, P.L.L.C. (Since 1994) All rights reserved.
4000 Ponce de León Blvd., Suite 470, Miami, Florida 33146
(800) 216-6185 (305) 444-1599 [email protected]
Criminal law -- Appeals -- New trial -- Defendant is not entitled to new trial where defendant is unable to obtain a transcript of trial testimony or to reconstruct record, but defendant cannot demonstrate that prejudicial error occurred in trial court -- Although appellate counsel has stated that he was unable to determine any grounds for appeal without trial transcript or assistance from defendant's trial counsel, who could not be reached, where appellate court has received no initial brief, transcript of proceedings, reconstructed record, or claim of specific error, defendant's request for reconsideration of petition for new trial is denied -- Appeal dismissed
Reported at 33 Fla. L. Weekly D1692a
Criminal law -- Jury trial -- Waiver -- Where trial court advised defendant of the fundamental difference between a jury trial and a nonjury trial, there was no basis for concluding that defendant's express waiver of right to jury trial was invalid -- Absence of written waiver not basis for reversal -- Court recedes from decisions in Zeigler v. State and Otis v. State to extent these decisions are inconsistent with court's holding in instant case
Reported at 33 Fla. L. Weekly D1686a
Criminal law -- Possession of cocaine with intent to sell -- State presented sufficient evidence of defendant's constructive possession of cocaine found in defendant's home during execution of search warrant -- Defendant was occupant of house; cocaine was found in plain view on television stand in room used by all house occupants; bowl and spoon containing cocaine residue were located in kitchen, another common room over which defendant had at least joint control; and baggies with cocaine residue and packaging materials for cocaine were found in defendant's bedroom -- Jury instructions -- No abuse of discretion in refusing to give requested non-standard jury instruction -- Denial of instruction did not result in miscarriage of justice
Reported at 33 Fla. L. Weekly D1690a
Criminal law -- Post conviction relief -- Plea -- Voluntariness -- Post conviction motion filed in 2008 challenging voluntariness of 1993 guilty plea was untimely -- Defendant's discovery that his gain-time could be forfeited as result of violating his conditional release is not a newly discovered fact that will extend time limit for filing a rule 3.850 motion -- Conflict certified
Reported at 33 Fla. L. Weekly D1696b
Criminal law -- Discovery -- State's failure to comply -- Appropriate test to apply to claims that state violated Brady v. Maryland by failing to disclose evidence favorable to defendant is three-prong test outlined by U.S. Supreme Court in Strickler v. Greene -- Defendant has burden of showing that favorable evidence was willfully or inadvertently suppressed by state, and because evidence was material, defendant was prejudiced -- District court erred in its statements of elements of Brady claim -- Remand for reconsideration under appropriate standard
Reported at 33 Fla. L. Weekly S457a
Criminal law -- Attempted purchase of cocaine -- Argument -- Silence of defendant -- Reversal of conviction is required where state impermissibly commented on defendant's right to remain silent at end of closing argument -- There is no merit to state's contention that statement did no more than state the obvious, that a defendant has the right to remain silent, which every juror knows
Reported at 33 Fla. L. Weekly D1734a
Criminal law -- Conspiracy to commit robbery -- Attempted robbery -- Evidence that defendant was present at scene of robbery committed by others and that defendant had knowledge that robbery was about to be committed was insufficient to sustain conviction where there was no evidence that defendant committed any act to assist or abet the others in committing the robbery -- Error to deny motion for judgment of acquittal
Reported at 33 Fla. L. Weekly D1715a
Criminal law -- Counsel -- Appellate -- Ineffectiveness -- Appellate counsel was ineffective for failing to argue that conviction for aggravated fleeing and eluding pursuant to section 316.1935(4) constituted fundamental error because state failed to prove essential element of offense, that defendant was unlawfully leaving or attempting to leave scene of a crash -- Remand with instructions to enter judgment for lesser-included misdemeanor offense of fleeing or attempting to elude law enforcement officer
Reported at 33 Fla. L. Weekly D1711a
Criminal law -- Post conviction relief -- Counsel -- Ineffectiveness -- Plea -- Advice to reject plea offer because of counsel's belief that defendant could win or do better going to trial -- Claim of ineffective assistance of counsel can be based on counsel's advice to reject a favorable plea offer -- Defendant must allege and prove that counsel failed to convey plea offer or misinformed defendant concerning possible sentence he faced, that defendant would have accepted plea but for counsel's failures, and acceptance of plea would have resulted in lesser sentence than was ultimately obtained -- If a legally sufficient claim of ineffective assistance of counsel is alleged based on counsel's advice to reject a plea offer, a defendant may be entitled to a post conviction evidentiary hearing -- In the case at issue, defendant did not submit facially sufficient claim by alleging that he rejected plea based on counsel's advice that she felt she could win at trial or get a reduced offense -- Mere fact that defendant did not prevail at trial does not translate into misadvice
Reported at 33 Fla. L. Weekly S500a
Criminal law -- Search and seizure -- Consent -- Voluntariness -- Under totality of circumstances, district court did not err in denying motion to suppress saliva swabs and DNA test results, although police investigator, who was at the time investigating a sexual assault case in which defendant was ultimately exonerated, obtained defendant's consent to test by telling defendant that DNA was needed in the investigation of a fictitious burglary -- Sole fact that defendant was told that saliva swabs were to be used in investigation of a fictitious burglary did not make his consent to swabs coerced -- Circumstances did not involve any threat or promise that might have induced defendant's consent -- District court's ruling in this case was not in conflict with sister court's ruling in another case in which trial court had found a defendant's consent coerced because in that case, investigating officer told defendant he was suspect in rape, which was fictitious, and that a saliva sample would exclude him from the rape investigation -- Stigma of rape accusation is circumstance to consider in determining whether consent was voluntary or coerced
Reported at 33 Fla. L. Weekly S509a
Criminal law -- Sexual offenders -- Probation -- Conditions -- Section 948.03(5)(a)(7) prohibits sexual offenders serving probation or community control from viewing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs, or computer services that are relevant to offender's deviant behavior pattern -- An offender does not violate this condition unless the “obscene, pornographic, or sexually stimulating” material at issue is relevant to the “deviant behavior pattern” -- Error to revoke community control for violation of this condition where pornographic materials possessed by defendant did not relate to his particular deviant behavior
Reported at 33 Fla. L. Weekly S481a
Criminal law -- DUI manslaughter -- Accident in which defendant's vehicle struck victim's bicycle, with state claiming that impact occurred in bicycle lane and defendant claiming that impact occurred in traffic lane -- Evidence -- Photographic -- Relevancy -- Error to deny defendant's objection to admission of photograph of bicyclist's uncovered body sprawled across bicycle lane on his stomach in a pool of blood without explicitly ruling on claim that photograph was not relevant to issue of where impact occurred -- Even assuming that there was some relevance in determining the body's final point of rest, the disputed photograph did not depict it -- Defendant's relevance objection was properly preserved for appeal where, although defense counsel did not use the word “relevant” in his objection, the objection was sufficiently precise to apprise the trial court of the basis of relevance objection -- Error was not harmless -- Claim that trial court erred by permitting opinion testimony from police DUI investigator that defendant was guilty of contributing to victim's death was not preserved for appeal where defendant's objection to admission of officer's opinion in trial court was on grounds wholly different from those argued on appeal
Reported at 33 Fla. L. Weekly D1754a
Criminal law -- Evidence -- Statements of defendant -- Error to deny dispositive motion to suppress incriminating statements made by defendant in his home to a deputy sheriff -- Defendant was in custody for Miranda purposes where seventeen-year-old defendant was subject of investigation for having sexual relationship with underage girl and was kept out of school to submit to questioning; purpose of interrogation was to obtain incriminating responses; although parents were initially present, deputy had them step outside, leaving deputy to question defendant alone; manner of interrogation was insistent, authoritative, and repetitive; defendant was confronted with evidence of guilt when deputy stated victim first lied then admitted that she and defendant had sex and that deputy had obtained bed sheets and underpants from the victim; and deputy never advised defendant of Miranda rights or took any measures to mitigate coercive aspects of questioning, such as informing defendant that he was free to leave or that he could terminate questioning
Reported at 33 Fla. L. Weekly D1760b
Administrative law -- Condominiums -- Division of Florida Land Sales, Condominiums, and Mobile Homes erroneously determined, in declaratory statement, that items, such as Jacuzzis, trellises, and screen enclosures, which were purchased, installed, may be removed, and are usable only by individual unit owners are “condominium property,” which must be insured by condominium association, merely because they are located on the patio outside the individual unit rather than inside the unit
Reported at 33 Fla. L. Weekly D1693a
Adoption -- Termination of parental rights -- Abandonment -- Record supported trial court's finding of abandonment and termination of father's parental rights where father first learned about child three weeks prior to birth, but did not provide any financial support for the child either at that time or at any time over the course of the next several years, although record showed that father had financial ability to provide for child; father apparently never visited mother after hearing of her pregnancy or provided mother any emotional or financial support; father never filed an affidavit of responsibility or family law financial affidavit until over two years after he filed his paternity action; and father declined opportunities offered by prospective adoptive parents to visit child and to establish a relationship with child, other than to send small gifts from time to time, although prospective adoptive parents sent him news of child's development and provided their telephone number -- Due process argument raised by father for first time on appeal, the thrust of which was that trial court failed to recognize him as father and hear his request for custody, visitation, and support prior to considering petition to terminate parental rights, was not preserved for appeal -- Court finds no fundamental error in procedures employed by trial court
Reported at 33 Fla. L. Weekly D1685a
Attorneys -- Disqualification -- Conflict of interest -- It was improper to disqualify plaintiff's counsel on ground that a conflicting attorney-client relationship exists or existed between defendant and plaintiff's counsel without evidentiary hearing to determine whether an attorney-client relationship exists or existed -- Court file and parties' argument were insufficient to resolve dispute as to whether there was attorney-client relationship -- Certiorari is proper method to obtain review of disqualification order
Reported at 33 Fla. L. Weekly D1694a
Child support -- Modification -- Trial court erred in applying a downward departure from statutory guideline on account of the father's poor financial condition without considering mother's financial condition -- Overall financial circumstances of both parties must be taken into account before deciding to apply an adjustment to guideline child support amount -- On remand, trial court should reconsider whether retroactive support should be awarded considering father's duty to pay guideline support
Reported at 33 Fla. L. Weekly D1696c
Attorneys' fees -- Class actions -- Civil rights -- District court did not abuse its discretion by not applying common fund and common benefit doctrines in determining amount of attorneys' fees awardable to plaintiffs' counsel in class action brought on behalf of foster children in two Georgia counties, or in refusing to compensate plaintiffs for amounts spent on expert witness fees -- Lodestar -- Appellate court cannot say that district court's reduction of only 16 percent in submitted hours was a clear error of judgment amounting to abuse of discretion -- Enhancement -- None of the three factors relied upon by district court to justify $4.5 million enhancement to the $6 million lodestar amount was proper basis for enhancement -- District court did not explicitly mention, must less give full effect to, strong presumption that lodestar amount is a reasonable fee and therefore the fee to be awarded -- Neither fact that class counsel were required to advance case expenses of $1.7 million over three-year period with no ongoing reimbursement, fact that class counsel were not paid on an ongoing basis as work was being performed, nor fact that class counsel's ability to recover a fee and expense reimbursement were completely contingent on outcome of case justified enhancement of lodestar -- Delayed payment factors are not permissible bases for enhancing fee award -- Enhancing a lodestar based on contingency under federal fee-shifting statutes is flatly forbidden by Supreme Court's decision in City of Burlington v. Dague -- Relying on quality of representation as enhancement factor amounts to double counting, contrary to Supreme Court's decision in Pennsylvania v. Delaware Valley Citizens' Council for Clean Air -- Review of evolution of Supreme Court thinking with respect to issue of enhancement of lodestar amount, pursuant to which court must employ strong presumption against enhancements and confine them to rare and exceptional cases
Reported at 21 Fla. L. Weekly Fed. C867a
Bankruptcy -- Attorney's fees -- Offer of judgment -- Section 768.79, Florida Statutes, applies in bankruptcy proceedings -- Statute does not apply only to cases brought in the “courts of” Florida -- Statute is not preempted by Federal Rule of Civil Procedure 68 -- District court properly awarded fees under section 768.79 to defendant in non-core bankruptcy proceeding asserting a legal malpractice claim governed by Florida law where defendant filed offer of settlement that debtor rejected and defendant ultimately obtained judgment of no liability
Reported at 21 Fla. L. Weekly Fed. C843a
Bankruptcy -- Dismissal -- Appeals -- Jurisdiction -- Court of Appeals lacks jurisdiction to review order denying motion of unsecured creditor to dismiss Chapter 7 bankruptcy case as abusive -- Case does not fit into one of established exceptions to finality rule where order did not conclusively resolve bankruptcy case as a whole or resolve any adversary proceeding or claim
Reported at 21 Fla. L. Weekly Fed. C831a
Civil rights -- Employment discrimination -- Retaliation -- Limitation of actions -- District court erred in applying two-year section 1983 statute of limitations, rather than four-year statute of limitations to plaintiff's section 1981 claims against of racial discrimination and retaliation in connection with school board's termination of plaintiff from teaching position -- Pursuant to 28 U.S.C. section 1658, four-year statute of limitations applies to “civil action arising under an Act of Congress enacted after” December 1, 1990 -- Plaintiff's § 1981 claims were made possible by the 1991 amendments to § 1981; thus, those claims arise under a post-1990 enactment
Reported at 21 Fla. L. Weekly Fed. C829a
Civil rights -- Law enforcement officers -- High-speed chase, which culminated when officer employed Precision Immobilization Technique by making contact with back-right portion of vehicle driven by decedent, causing vehicle to spin 180 degrees and slide across all lanes of traffic on interstate highway into a tree-filled ditch -- Qualified immunity -- Section 1983 action against police officers in their individual capacities, brought on behalf of plaintiffs' deceased daughter and daughter's minor child -- District court properly found that officer who used PIT acted reasonably and was entitled to qualified immunity -- At time of incident, officer knew that decedent posed an actual and imminent threat to public, as she was fleeing from law enforcement officers from multiple jurisdictions in high-speed chase which had lasted at least twenty miles and which had crossed state lines, had failed to respond to blue lights and sirens, and was driving erratically on interstate highway on which there were several civilian vehicles
Reported at 21 Fla. L. Weekly Fed. C832a
Civil rights -- Prisoners -- Section 1983 actions against prison officials challenging conditions of confinement at state prison -- No error in dismissing complaints without prejudice for failure to exhaust administrative remedies -- District court did not err by acting as factfinder in resolving factual dispute as to whether administrative remedies were available to plaintiff who alleged physical abuse -- District court did not commit clear error in finding that this prisoner had access to grievance forms at prison to which he was transferred by which he could have reported abuse at prison from which he was transferred -- With respect to second prisoner, appeal of warden's denial of his first grievance, which appeal was dismissed as untimely, did not satisfy exhaustion requirement of Prison Litigation Reform Act, because prison's administrative appeals process permitted time limits for appeal to be waived for good cause, but prisoner did not seek waiver -- Fear of reprisal not good cause for failure to file grievance because prisoner could have filed out-of-time grievance and then shown good cause for its untimeliness after he was transferred to another facility and the threat of reprisal removed
Reported at 21 Fla. L. Weekly Fed. C824a
Civil rights -- Prisoners -- Speech -- Retaliation -- Section 1983 action against warden, assistant warden, and hearing review officer alleging defendants retaliated against prisoner for engaging in protected speech based on his having complained to assistant warden and U.S. Department of Justice about conditions of confinement at prison -- Administrative regulations subjecting prisoners to discipline for making false statements or charge to a DOC employee with intent to deceive the employee or to prejudice another person and for insubordination were reasonably related to legitimate penological interests and, accordingly, amounted to valid limitations on exercise of speech -- Prisoner who violates legitimate prison regulation is not engaged in protected “conduct” -- Although two grievances raised in letter to assistant warden amounted to protected speech, prisoner failed to establish causal connection between this constitutionally protected speech and the discipline he received for violation of prison regulations -- Objective prison administrators standing in shoes of warden and assistant warden would have proceeded as they did even if prisoner's letter had not contained what appeared to be legitimate grievances -- No error in granting summary judgment in favor of defendants
Reported at 21 Fla. L. Weekly Fed. C864a
Commodities -- Fraud -- Misleading statements to investors in connection with commodity option transactions -- Failure of broker to diligently supervise associated persons -- Appeal from district court's award of restitution and civil penalties and issuance of permanent injunction resulting from violations of Commodity Exchange Act -- District court had authority to award restitution in enforcement proceeding brought by Commodity Futures Trading Commission under 7 U.S.C. § 13a-1 -- Unqualified grant of statutory authority to issue an injunction under § 13a-1 carries with it the full range of equitable remedies, among which is power to grant restitution -- District court abused its discretion in awarding restitution in amount of customer loss, rather than amount of money that defendants gained by their misrepresentations -- Civil penalties -- No abuse of discretion in imposing maximum civil penalty on associated persons and broker where violations of Act were knowingly and repeatedly committed and there was no post-violation conduct which would warrant reduction of penalty -- Permanent injunction -- No abuse of discretion in permanently enjoining defendants from “engaging in any commodity-related activity”
Reported at 21 Fla. L. Weekly Fed. C845a
Copyright infringement -- Privilege -- Contributions to collective works -- Revisions -- Action by photographer against magazine publisher and others alleging defendants infringed plaintiff's copyrights in photographs that originally ran in several issues of magazine by releasing thirty-disc CD-ROM set that reproduced each monthly issue of the magazine from its inception through the late twentieth century -- Publisher of monthly magazine was privileged to reproduce and distribute CD-ROM collection of its monthly issues under “revision” prong of 17 U.S.C. section 201(c) -- Pursuant to Supreme Court's ruling in New York Times Co. v. Tasini, concept of “revision” necessarily includes some element of novelty or “newness,” and consideration of context in which the contributions are presented is critical in determining whether that novelty is sufficient to defeat publisher's section 201 privilege -- Plaintiff's photographs were preserved intact in CD collection and could only be viewed as part of original collective works in which they appeared -- CD-ROMs faithfully preserved the original context of the magazine's print issues, and additional elements such as search function, indexes, zoom function, and introductory sequence, did not deprive publisher of its section 201(c) privilege, in that they did not destroy the original context of the collective work in which plaintiff's photographs appeared
Reported at 21 Fla. L. Weekly Fed. C850a
Dependent children -- Shelter -- Circuit court improperly removed child from custody of mother and placed child in shelter on ground that mother was homeless where evidence showed that mother's homelessness was for only one night, that mother had tried to find shelter for that night but was unable to do so because of her financial situation, and that Department of Children and Family Services did not offer any services to mother in effort to eliminate the need for removal and placement in shelter of child -- Certiorari -- In certiorari proceeding, the reviewing court's consideration is confined to record of proceedings, and court cannot consider evidence gathered by Department in subsequent investigation
Reported at 33 Fla. L. Weekly D1694b
Torts -- Attorneys -- Malpractice -- Discovery -- Attorney-client privilege -- Work product -- Error to enter orders compelling disclosure of documents which partner of defendant law firm admitted to having reviewed prior to deposition, portions of which contained highlighting and notations made by defense counsel and some of which consisted of summaries prepared by counsel that included chronology of important dates and counsel's impressions of certain issues in the case -- Section 90.613 requires discovery only if witness used document “while testifying,” and there is no common law right in Florida to discovery of documents used to prepare a party to testify -- Although trial court may allow inspection by opposing party of documents used by witness prior to testifying if these documents are not “otherwise privileged,” documents in this case were clearly work product and privileged attorney-client communications
Reported at 33 Fla. L. Weekly D1699a
Wrongful death -- Hotels and motels -- Shooting -- Action against motel by estate of decedent found shot to death in his motel room alleging that, in light of past criminal activity, motel was negligent in failing to take greater security precautions -- No error in granting summary judgment in favor of defendant where there was no evidence of forced entry or any evidence that shooting could have been prevented with greater security
Reported at 33 Fla. L. Weekly D1689b
Creditors' rights -- Piercing corporate veil -- Reverse corporate piercing -- Former wife could not execute on marital home titled in name of corporation to satisfy judgment against former husband on ground that corporation was former husband's alter ego and that former husband had put the property in corporation's name as a means of defrauding former wife, where title had been placed in name of corporation prior to the existence of the claims and obligations for which former wife sued former husband -- Reverse corporate piercing is available only where the shareholders have formed or used the corporation to secrete assets and thereby avoid preexisting personal liability
Reported at 33 Fla. L. Weekly D1736a
Dissolution of marriage -- Child support -- Equitable distribution -- Child custody -- Error to fail to address parental responsibility in final judgment -- Remand for clarification of court's intent with respect to shared parental responsibility -- Final judgment not fundamentally deficient for failure to make specific written findings of section 61.13 factors regarding best interests of children for purposes of primary residential custody -- Appellate court unable to review evidentiary basis of court's ruling that award of primary residential custody to wife was in best interests of children because there is no transcript of proceedings -- Absence of transcript precludes review of husband's claim that trial court erred in failing to address alimony and attorney's fees -- Fact that husband's petition requested alimony and attorney's fees does not mean that he raised these issues at trial -- Judgment was deficient in failing to allocate land and savings bond included in list of marital assets and assets' values attached to judgment -- Absence of transcript precludes review of husband's contention as to valuation of life insurance policy, the value of which was marked by trial court as “?” -- Child support provision of final judgment is deficient where judgment ordered husband to pay $350 per month for each child, but did not make any findings of income of either party -- Final judgment is facially erroneous, requiring remand, where it does not make any findings as to net income of each party as a starting point for calculating child support or explain how the calculation was performed -- Remand for necessary findings regarding income and calculation of child support -- Remaining issues require transcript of proceedings to demonstrate reversible error
Reported at 33 Fla. L. Weekly D1720c
Dissolution of marriage -- Judgment -- Court did not err in adopting proposed final judgment submitted by wife where judgment entered by court was not a verbatim adoption of wife's proposed judgment, husband was given opportunity to object, but husband's letter objecting to wife's proposed judgment failed to identify what he was specifically objecting to, and husband failed to submit proposed final judgment as ordered by court -- Because court actively participated in final hearing, there is no appearance that court did not exercise independent judgment when entering final judgment
Reported at 33 Fla. L. Weekly D1732a
Estates -- Wrongful death -- Attorney's fees -- Probate court did not err in awarding attorneys for personal representative entire contingency fee amount from wrongful death settlement proceeds -- Because attorneys for survivors did not perform any work on any aspect of case in which attorneys for personal representative had a conflict of interest, attorneys for survivors were not entitled to any portion of the contingency fee -- Section 768.26, Florida Statutes, applies to provide for attorney's fees incurred in cases that settle before suit is filed -- Although objection by survivor's attorneys to apportionment of uninsured motorist settlement would have established a conflict of interest between survivor and attorneys for personal representative had it been pursued, there was never an actual conflict because objection to apportionment of settlement was abandoned -- Attorneys for survivors had to show that survivors had a competing claim in order to be entitled to fees
Reported at 33 Fla. L. Weekly D1713b
Attorney's fees -- Offer of judgment -- Where defendant builder prevailed in action against it arising out of construction contract after having served proposal for settlement which was rejected by plaintiff, trial court erred in denying builder's motion for attorney's fees on ground that construction contract did not contain a provision for attorney's fees -- There is no authority to support trial court's conclusion that award of attorney's fees pursuant to section 768.79 and rule 1.442 may not be had if the underlying contract fails to contain a provision for attorney's fees
Reported at 33 Fla. L. Weekly D1756a
Dissolution of marriage -- Conditional sealing of financial documents in pending dissolution action -- Family Law Rule of Procedure 12.400, rather than Rule of Judicial Administration 2.420, governed husband's motion to conditionally seal financial documents -- Trial court has discretion to seal financial records in family law case if it is shown that third parties are likely to use the information in an abusive manner -- Trial court had discretion to conditionally seal financial records of husband, a surgeon with a practice limited to patients involved in personal injury litigation, where a defense attorney in a personal injury action took deposition of husband as treating physician of plaintiff, and questioned husband regarding financial information that had been obtained from case file in dissolution of marriage proceeding -- Trial court failed to apply correct law when it failed to recognize its discretion to act on husband's motion beyond simply redacting social security numbers
Reported at 33 Fla. L. Weekly D1757a
Forfeiture -- Vehicle -- Excessive fines -- Trial court erred in considering value of vehicle when ruling on motion to dismiss forfeiture complaint in which Department of Highway Safety and Motor Vehicles sought to confiscate motor vehicle of claimant, who was charged with third-degree felony of driving while license was suspended or revoked as habitual traffic offender, a charge that was resolved by plea to misdemeanor of driving without a license -- Trial court may not look to information outside four corners of complaint in considering motion to dismiss, and value of vehicle was not alleged in forfeiture complaint
Reported at 33 Fla. L. Weekly D1752a
Insurance -- Personal injury protection -- PIP insurer is not required to set aside a reserve fund for claims that are reduced or denied when other valid health care provider claims continue to be submitted -- In absence of a showing of bad faith, PIP insurer is not liable for benefits once benefits have been exhausted -- Where insurer denied health care provider's claim based on results of independent peer review, health care provider mailed insurer a 15-day demand letter demanding that its bills be paid and requesting that insurer hold monies in trust until disputed amount is settled, but insurer continued paying or denying claims from health care providers as they were submitted until insurance benefits had been exhausted, circuit court acting in its appellate capacity departed from essential requirements of law in finding that insurer violated health care provider's right to priority payment and therefore may be liable for claim plus statutory interest and penalties
Reported at 33 Fla. L. Weekly D1746a
Real property -- Constructive trust -- Domestication of foreign judgment imposing constructive trust on Florida property -- Jurisdiction -- Trial court properly found that although foreign court did not have in rem jurisdiction over property located in Florida, it did have sufficient personal jurisdiction to impose constructive trust on property because it was not directly affecting Florida property -- Property owner's declaratory judgment count seeking declaration as to the effect of the foreign judgment on her homestead rights was properly before court -- Remand for determination of homestead status and legal effect, if any, of foreign judgment on property
Reported at 33 Fla. L. Weekly D1745a
Torts -- Contracts -- Exculpatory clause in contract for construction and sale of new home, which purported to release seller/builder from any liability for personal injury caused by seller's construction practices regardless of whether the injury resulted from seller's negligence, gross negligence, or intentional conduct, is void because it contravenes public policy -- Exculpatory clause is unenforceable to extent that it attempts to relieve seller of liability for intentional tort -- Further, party may not contract away its responsibility to comply with building code when the person with whom the contract is made is one of those whom code is designed to protect
Reported at 33 Fla. L. Weekly D1748a
Torts -- Product liability -- Action alleging that defendant was negligent and strictly liable in the design and/or manufacture of motor home tires on which tread separated, causing accident in which plaintiffs were injured -- Discovery -- Privilege -- Trade secrets -- Trial court departed from essential requirements of law by not complying with provisions of the Florida Sunshine in Litigation Act when it entered a blanket confidentiality order without first conducting an in-camera inspection of documents sought in discovery -- In case at issue, there was suggestion that tires at issue constituted a “public hazard” under the Sunshine in Litigation Act -- If tires are public hazard, information concerning that hazard, or information that could be useful to the public in protecting themselves from injury caused by that public hazard, could not be subject of a confidentiality order -- Trial court erred in failing to conduct in-camera review of documents to determine whether tires and the information sought by plaintiffs fell within purview of Act -- Trial court's departure from essential requirements of law resulted in material injury that will affect rest of proceedings and that cannot be corrected through other means -- Remand for compliance with requirements of Act
Reported at 33 Fla. L. Weekly D1753a
Labor relations -- Grievance filed by city police officer who was terminated for using inappropriate force -- Arbitration -- Arbitrator did not exceed the scope of his authority by finding that officer was guilty of the misconduct of which he had been accused, but that job termination was an inappropriate punishment -- Arbitrator could properly interpret language of collective bargaining agreement to mean that he could determine whether the discipline was justified only if he could also consider the severity of the discipline -- Arbitrator's analysis of due process and the principle of double jeopardy did not exceed the scope of his powers -- Circuit court erred in vacating arbitration award -- Circuit court did not have jurisdiction to confirm a second arbitration award while appeal of first order was pending
Reported at 33 Fla. L. Weekly D1765a
Wrongful death -- Hotels and motels -- Shooting -- Action against motel by estate of decedent found shot to death in his motel room alleging that, in light of past criminal activity, motel was negligent in failing to take greater security precautions -- No error in granting summary judgment in favor of defendant where there was no evidence of forced entry or any evidence that shooting could have been prevented with greater security
Reported at 33 Fla. L. Weekly D1689b
Wrongful death -- Medical malpractice -- Damages -- Setoff -- Settlement -- Physicians and their professional associations were entitled to setoff for amount of pretrial settlement with health maintenance organization where HMO was not a party defendant to whom apportionment requirement of section 768.81(3) applied -- Court's prior holding that apportionment of fault is not appropriate where defendant's liability is only vicarious or derivative applies in this case, although plaintiff alleged HMO was actively negligent because it failed to correct neglect of provider it had chosen, although authorized under contract to do so -- Punitive damages -- No error in submitting punitive damages claim to jury where there was evidence which a jury might conclude established an entire want of care, a grossly careless disregard or reckless indifference, amounting to conscious neglect of the condition of the patient and its consequences
Reported at 33 Fla. L. Weekly D1730a
Torts -- Medical malpractice -- Federal Tort Claims Act -- Severe brain injuries to newborn infant as result of medical negligence at military hospital -- Damages -- Apportionment -- District court properly determined that civilian OB/GYN physician working at Naval hospital was government employee for FTCA purposes -- Under “control test,” government is not required to exercise actual control over individual; it is enough that government has reserved power or authority to control him -- Naval hospital reserved right to control civilian physician's activities through various provisions incorporated into contracts between hospital and private contractor, private contractor and subcontractor, and subcontractor and physician -- Government is, accordingly, liable for entire judgment in its role as employer, and district court did not err in refusing to apportion damages between culpable Naval personnel and civilian physician -- Non-economic damages -- Excessiveness -- Amount of non-economic damages awarded to parents, which was one of the largest non-economic damages awards ever given to single family in six-decade long history of FTCA, was excessive -- In determining whether damages award is excessive under Florida law, review is confined to published decisions of Florida appellate courts -- Whether award to child of $10 million in non-economic damages is excessive need not be decided in light of abatement doctrine -- Because child died during pendency of appeal, under Florida law, medical malpractice personal injury action will abate and be replaced by wrongful death action; and child's personal claims will not survive his death -- Accordingly, both economic and non-economic damages awarded to him will have to be reevaluated -- Further, parents' derivative loss of consortium claims do not survive child's death -- Economic damages -- Award of economic damages to mother will have to be recalculated on remand because calculation was based on child living twenty-one years -- Remand for further proceedings
Reported at 21 Fla. L. Weekly Fed. C833a
Insurance -- Commercial general liability -- Coverage dispute arising out of death of hotel guest from carbon monoxide poisoning suffered while staying at hotel -- Declaratory judgment -- Jurisdiction -- Abstention or remand of declaratory judgment action which seeks a declaration of rights under policy at issue is not warranted because there is no parallel litigation in state court addressing same issues between same parties that would resolve insurance coverage dispute at issue in this action, where the parallel state declaratory judgment action has been dismissed -- Ripeness -- Retention of jurisdiction over duty to defend and indemnification issues is appropriate given ongoing underlying liability action; however, until underlying liability action is resolved, only insurer's duty to defend insured will be addressed in underlying liability action -- An insurer's duty to indemnify is not ripe for adjudication in a declaratory judgment action until insured is in fact held liable in underlying suit -- It is appropriate to stay case until resolution of underlying liability action if no motion challenging insurer's duty to defend is filed
Reported at 21 Fla. L. Weekly Fed. D281a
Damages Caps: GA. JUDGE OVERTURNS NONECONOMIC DAMAGES CAP, Park v. Wellstar Health Sys., 4 No. 3 West's Medical Malpractice Law Report 2, West's Medical Malpractice Law Report July 3, 2008
Finding that a 2005 Georgia law setting a cap on noneconomic damages in medical malpractice cases discriminates against the poor, an Atlanta judge has ruled it unconstitutional. Fulton County Superior Court Judge Marvin S. Arrington took the unusual step of striking the $350,000 cap in the pretrial stage of a malpractice lawsuit because he said it would adversely affect the plaintiff's constitutional rights either in jury deliberations or in any settlement negotiations.
Wrongful Death: MAGGOT INFESTATION HASTENED MAN'S DEATH, SUIT SAYS, Primm v. Metro. Hosp. Auth., 4 No. 3 West's Medical Malpractice Law Report 3, West's Medical Malpractice Law Report July 3, 2008
A Tennessee man who was left in a persistent vegetative state after a car accident died from maggot-infested bedsores he developed while in a long- term-care facility, according to a wrongful-death lawsuit filed in state court. The Nashville facility, Bordeaux Hospital, is accused of leaving Ricky Primm in a room infested with insects and allowing his body to become infested with fleas, pinworms and maggots. Primm's sister Priscilla filed the suit on behalf of his minor daughter.
Wrongful Death: ILL. APP. CT. UPHOLDS WRONGFUL-DEATH CLAIM ON BEHALF OF FETUS, Mercado v. Mt. Sinai Hosp. Med. Ctr., 4 No. 3 West's Medical Malpractice Law Report 4, West's Medical Malpractice Law Report July 3, 2008
An Illinois woman who agreed to terminate what she was told was an ectopic pregnancy only to find out that it was in fact a viable uterine pregnancy can file a wrongful-death claim on behalf of the fetus, a state appeals court has ruled. The panel said the woman's agreement to terminate the pregnancy was not "consent" pursuant to the Illinois Wrongful Death Act, 740 Ill. Comp. Stat. 180 2.2, because she did not know her pregnancy was in her uterus.Jamie Mercado filed the suit.
Nursing Standard of care: KY. NEGLECT LAWSUIT BELONGS IN STATE COURT, Shawver v. Bradford Square Nursing, 4 No. 3 West's Medical Malpractice Law Report 5, West's Medical Malpractice Law Report July 3, 2008
A man's neglect lawsuit against a Kentucky nursing home over his wife's death did not raise a question of federal law despite references to certain Medicare and Medicaid statutes, a federal judge has ruled. U.S. District Judge Danny C. Reeves of the Eastern District of Kentucky remanded Bill Shawver's suit against Bradford Square Nursing and facility administrator Dana Marshall to the state court where it was originally filed.The judge said Shawver relied on the federal Medicare and Medicaid statutes.
Chiropractor Liability: N.J. CHIROPRACTORS CAN ADJUST LIMBS, STATE HIGH COURT RULES, Bedford v. Riello, 4 No. 3 West's Medical Malpractice Law Report 6, West's Medical Malpractice Law Report July 3, 2008
The New Jersey Supreme Court has ruled that state law does not prohibit chiropractic adjustment of the limbs when their condition is "logically connected, by cause or effect, to a spinal condition." However, the court warned that the question of whether the limb is connected to a spinal condition is "one of fact to be resolved on a case-by-case basis.
Expert Testimony: NO EXPERT ON CAUSATION NEEDED WHERE DOCTOR FORGOT TO DO PROCEDURE, Webb v. Smith, 4 No. 3 West's Medical Malpractice Law Report 7, West's Medical Malpractice Law Report July 3, 2008
Because a surgeon who forgot to perform a procedure clearly is negligent within the common knowledge of laymen, expert testimony on the issue of causation is unnecessary, the Virginia Supreme Court has ruled. The ruling reversed a trial court's judgment and reinstated a jury award in favor of Tamela H. Webb, who claimed her longtime gynecologist deviated from the standard of care when he agreed to perform a hysterectomy and remove both ovaries in a single surgery but performed only the hysterectomy.
Foreign Object: OVARY LEFT BEHIND DURING SURGERY IS NOT 'FOREIGN OBJECT', Reed v. Guard, 4 No. 3 West's Medical Malpractice Law Report 8, West's Medical Malpractice Law Report July 3, 2008
A woman whose ovary was left behind during a hysterectomy cannot invoke the foreign-object exception to Arkansas' two-year limitations period for filing malpractice actions because it does not apply to body organs not removed during surgery, the state's highest court has ruled. The ruling ends a Little Rock woman's bid to reinstate her lawsuit against her gynecologist for failing to remove both ovaries during the 1997 procedure.
Malpractice Insurance: NO 'MUTUAL MISTAKE' IN POLICY ENDORSEMENT, TENN. CT. APP. RULES, Rogers v. State Volunteer Mut. Ins. Co., 4 No. 3 West's Medical Malpractice Law Report 9, West's Medical Malpractice Law Report July 3, 2008
The mistaken assumption that a radiologist was covered under a second medical malpractice policy for work he performed in Indiana was not a basis for rescinding an endorsement to his original policy that excluded coverage for Indiana incidents, a Tennessee appeals court has ruled. The physician was not entitled to relief based on mutual mistake of fact because the mistake was not material to both the doctor and his insurer, the appeals panel said.
Nursing Standard of Care: PATIENT'S ESTATE LOSES BID TO ADD FEES TO $270K JUDGMENT, Perlin v. Fountain View Mgmt., 4 No. 3 West's Medical Malpractice Law Report 10, West's Medical Malpractice Law Report July 3, 2008
The survivors of a California nursing home patient who developed a pressure sore caused by a therapy device have lost their bid for attorney fees in addition to a $270,000 judgment they won in a medical negligence suit against the facility. California's 2nd District Court of Appeal said the jury did not find clear and convincing evidence that the recklessness of the nursing home's staff caused Helen Perlin's injuries.Instead, the jury found causation under the lesser "preponderance of the evidence" standard.
Pharmacy Error: PHARMACY SAYS WRONG PRESCRIPTION DIDN'T CAUSE GIRL'S SEIZURES, Kirchhofer v. Med. Shoppe Int'l, 4 No. 3 West's Medical Malpractice Law Report 11, West's Medical Malpractice Law Report July 3, 2008
A national drug chain has denied an Ohio couple's claim that their child suffered multiple seizures because its local pharmacy filled her prescription with the wrong version of an anti-seizure drug for more than five months. Medicine Shoppe International denies that plaintiffs Gary and Marcia Kirchhofer's daughter had more seizures because she was given the standard version of the drug rather than the prescribed chewable variety.
Briefs and Other Related Documents: 2008 WL 2234034, 2008 WL 2472325
Wrongful Death: EXPERTS TO DUKE IT OUT OVER WHETHER DEAD MAN HAD ALZHEIMER'S, Keller v. Feasterville Family Health Care Ctr., 4 No. 3 West's Medical Malpractice Law Report 12, West's Medical Malpractice Law Report July 3, 2008
A Philadelphia federal judge will let medical experts on both sides argue over whether the life expectancy of a man who died prematurely allegedly from an embolism would have been cut short by Alzheimer's disease in any event. Expert testimony about whether Howard A. Keller's autopsy showed he was in the early stages of Alzheimer's when he died goes to the question of the damages his widow, Carol, may be awarded based on his life expectancy if she can prove wrongful death and malpractice.
Wrongful Death: SUNGLASSES WOULD HAVE PREVENTED MOM'S DEATH, SON SAYS, Klaassen v. Nelson, 4 No. 3 West's Medical Malpractice Law Report 13, West's Medical Malpractice Law Report July 3, 2008
A Kansas optometrist's failure to provide an elderly patient with sunglasses after an eye exam in which her pupils were dilated led to her death five months later, her son charges in a wrongful-death lawsuit. The effects of dilation, which allows optometrists to view the inner parts of a patient's eye, can last up to six hours. The eyes remain sensitive to sunlight during that time. According to the complaint, Mildred Klaassen, 87, fell Feb. 19, 2007, and broke her ankle outside.
Briefs and Other Related Documents: 2008 WL 2490036
Jurisdiction: VETS' SUITS OVER POST-TRAUMATIC STRESS DISORDER FAIL IN CALIF., Veterans for Common Sense v. Peake, 4 No. 4 West's Medical Malpractice Law Report 2, West's Medical Malpractice Law Report July 18, 2008
Although the Department of Veterans' Affairs may not be meeting the needs of all veterans, a California federal judge has ruled, there is no system-wide violation of rights that warrants court action. U.S. District Judge Samuel Conti of the Northern District of California said his court had no jurisdiction to make the extensive changes to the VA that the petitioners sought. The suit was filed in July 2007 by nonprofits Veterans for Common Sense and Veterans United for Truth.
Surgical Error: PARENTS GRANTED NEW TRIAL IN DUPONT HOSPITAL DEATH CASE, Svindland v. Nemours Found., 4 No. 4 West's Medical Malpractice Law Report 3, West's Medical Malpractice Law Report July 18, 2008
A federal appeals court has granted the parents of an infant who died after surgery at the DuPont Hospital for Children a new trial and ordered a different judge to preside over the case. The 3rd U.S. Circuit Court of Appeals said the trial judge was impatient and abrupt with the plaintiffs' attorney and excluded so much of their scientific evidence as to prevent them from making their case.
Affidavit of Merit: EXPERT CAN'T TESTIFY AGAINST UNNAMED HOSPITAL STAFF, Koning v. Finta, 4 No. 4 West's Medical Malpractice Law Report 4, West's Medical Malpractice Law Report July 18, 2008
A Michigan appeals court has granted a hospital summary judgment after finding that an expert's affidavit of merit failed to support the plaintiff's claim of medical malpractice against unnamed hospital staff. The ruling, which reversed a Kent County Circuit Court decision, said Dr. David Martin was only qualified to serve as an expert against the other defendant in the suit, Dr. Bophuslav Finta. Both doctors are board-certified in cardiovascular disease and clinical cardiac electrophysiology.
Birth-Related Accident: MOTHER, SON AWARDED $19M FOR BOTCHED DELIVERY, Maing v. Fong, 4 No. 4 West's Medical Malpractice Law Report 5, West's Medical Malpractice Law Report July 18, 2008
A jury in Queens, N.Y., has awarded $19.6 million to a woman and her child after a doctor caused the baby's brain damage by yanking at his head with forceps during delivery and severely injuring the mother. Plaintiff Eun Sook Maing's attorney said she continues to scar and suffer excruciating pain from the laceration even after five surgeries, according to the Associated Press. Her son Daniel, now 9, suffered brain damage and has cerebral palsy because of the trauma of the forceps delivery.
Briefs and Other Related Documents: 2001 WL 35935673, 2001 WL 35935674
Failure to Diagnose: HMO SETTLES WITH FAMILY OVER FAILURE TO DIAGNOSE WOMAN'S CANCER, Rasheed v. Pulido, 4 No. 4 West's Medical Malpractice Law Report 6, West's Medical Malpractice Law Report July 18, 2008
A Chicago health plan and two of its doctors have settled with the family of a woman who died from bladder cancer after they failed to timely diagnose the disease. Carmen Preciado's husband and five children accepted an $800,000 settlement from health maintenance organization Advocate Health & Hospitals Corp., and Drs. Mario Pulido and Emily Chacko, according to attorney Steven Levin of Levin & Perconti in Chicago, who represented the family.Preciado died in 2003 at age 59.
Malpractice Insurance: MISS. FED. JUDGE DENIES EXCESS INSURER'S CONSPIRACY CLAIM, Nat'l Union Fire Ins. Co. v. Blasio, 4 No. 4 West's Medical Malpractice Law Report 7, West's Medical Malpractice Law Report July 18, 2008
A federal judge in Mississippi has dismissed an excess insurer's lawsuit alleging that attorneys for the primary carrier schemed to extract payments from the excess insurer to settle medical malpractice claims. Not only did the applicable statutes of limitation bar the excess insurer's claims, but none of its claims was meritorious, U.S. District Judge Neal B. Biggers Jr. of the Northern District of Mississippi said.The opinion stemmed from a wrongful-death action asserting malpractice.
Malpractice Insurance: POLICY EXCLUSION FOR 'OTHER NOTICE' RULED NOT APPLICABLE, N. Am. Specialty Ins. Co. v. Correctional Med. Servs., 4 No. 4 West's Medical Malpractice Law Report 8, West's Medical Malpractice Law Report July 18, 2008
A medical malpractice policy issued to a prison health care provider covers claims arising from the suicide of an inmate who was under the provider's care, the 10th Circuit has ruled, upholding a lower court's ruling. Although the health care provider received a request for the inmate's medical records before the policy's effective date, that was not "other notice" to the provider that would trigger an exclusion to the policy, the 10th U.S. Circuit Court of Appeals said.
Patient Confidentiality: IRRITATED DOCTOR BREACHED CONFIDENTIALITY, SUIT SAYS, Bennett v. CFG Prof'l Corp., 4 No. 4 West's Medical Malpractice Law Report 9, West's Medical Malpractice Law Report July 18, 2008
A Michigan man is suing his doctor for breaching his medical confidentiality allegedly by announcing that he has hepatitis C before a waiting room of patients. The doctor was annoyed by the patient's questioning about the disease and rebuked him in a loud tone in front of other waiting room patients, according to the suit. According to the complaint, filed in the Washtenaw County Circuit Court, plaintiff Robert Bennett sought medical treatment for a long-standing back injury.
Pharmacy Liability: 'ORDINARY NEGLIGENCE' CLAIMS OVER MEDICINE OVERDOSE ARE TIMELY, Kuznar v. Raksha Corp., 4 No. 4 West's Medical Malpractice Law Report 10, West's Medical Malpractice Law Report July 18, 2008
A lawsuit against a Michigan pharmacy may go forward as an ordinary negligence case and not a medical malpractice action because pharmacies are not licensed medical facilities or agencies, according to the state's highest court. The Michigan Supreme Court held that because plaintiff Judith Kuznar's claims sounded in ordinary negligence, they did not run afoul of the state's two-year limitations period for medical negligence suits.The ruling affirms the lower courts' denials of summary judgment.
Standard of Care: FLA. JUDGE REINSTATES $4 MILLION AWARD AGAINST NAVAL HOSPITAL, Turner v. United States, 4 No. 4 West's Medical Malpractice Law Report 11, West's Medical Malpractice Law Report July 18, 2008
A Florida federal judge who awarded nearly $4.4 million to a boy left blind by negligent care at the Jacksonville Naval Hospital has affirmed the award after finding that the hospital acted with reckless disregard for the child's safety. The government had appealed U.S. District Judge Henry Lee Adams Jr.'s original damages award to the 11th U.S. Circuit Court of Appeals, which remanded the case for a determination of liability pursuant to the reckless- disregard standard of care.
Briefs and Other Related Documents: 2008 WL 2726508
Workers' Compensation Lien: N.J. APP. COURT FINDS $100K PAYOUT SUBJECT TO WORKERS' COMP LIEN, Pool v. Morristown Mem'l Hosp., 4 No. 4 West's Medical Malpractice Law Report 12, West's Medical Malpractice Law Report July 18, 2008
A New Jersey woman who lost her legs, right arm and four fingers of her left hand because of a streptococcal infection she claimed was misdiagnosed must turn over a $100,000 malpractice payment she received to the state's workers' compensation fund, an appeals court has ruled. The payment was the result of a high-low agreement made before a 2007 jury verdict in Deborah Pool's malpractice lawsuit against Morristown Memorial Hospital, emergency room physician Dr. Richard Shih and others.
Wrongful Death: NO CRIMINAL CHARGES OVER DEATH IN CALIF. ER, Rodriguez v. County of Los Angeles, 4 No. 4 West's Medical Malpractice Law Report 13, West's Medical Malpractice Law Report July 18, 2008
No criminal charges will be filed against police or former medical personnel at the now-defunct Martin-Luther King Jr.-Harbor Hospital in Los Angeles, where a homeless woman died from a perforated bowel after medical staff allegedly refused to treat her. Deputy District Attorney Susan Schwartz issued a report July 9 concluding that Linda Ruttlen, an emergency department triage nurse, was not criminally negligent in the death of Edith Rodriguez, 43.
Click here if you wish to be added to the Recent Decisions of Interest mailing service.
For more current discussions of
appellate and substantive law issues,
go to The Appellate Gourmet(c) blog.
