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Florida Legal Updates || Compiled by Barbara Green, P.A.
September 2015

Autos - Permissive User - Caps

De Los Santos v. Brink,
167 So.3d 519 (Fla. 5th DCA 2015)

The 5th DCA reduced a judgment against a vehicle owner in excess of $12.8 million to $600,000.  The owner's liability was purely vicarious.  The court cited §324.021(9)(b)(3), Fla. Stat.  That section provides:

"The owner who is a natural person and loans a motor vehicle to any permissive user shall be liable for the operation of the vehicle or the acts of the operator in connection therewith only up to $100,000 per person and up to $300,000 per incident for bodily injury and up to $50,000 for property damage. If the permissive user of the motor vehicle is uninsured or has any insurance with limits less than $500,000 combined property damage and bodily injury liability, the owner shall be liable for up to an additional $500,000 in economic damages only arising out of the use of the motor vehicle. The additional specified liability of the owner for economic damages shall be reduced by amounts actually recovered from the permissive user and from any insurance or self insurance covering the permissive user. Nothing in this subparagraph shall be construed to affect the liability of the owner for his or her own negligence."

This is a reminder of how important it is to try to find a theory of negligence, such as negligent entrustment, against a vehicle owner who is a natural person.  At least one court has found that, because of this statute, it is now permissible to plead negligence of the owner in addition to vicarious liability under the dangerous instrumentality doctrine.  See Trevino v. Mobley, 63 So.3d 865 (Fla. 5th DCA 2011), distinguishing Clooney v. Geeting, 352 So.2d 1216 (Fla. 2d DCA 1977).

Evidence - Daubert

Booker v. Sumter County Sheriff’s Office,
166 So.3d 189 (Fla. 1st DCA 2015)

This is the first reasonably comprehensive look at how Daubert is going to work procedurally in Florida state courts.  Although it is a workers comp case, the First DCA generally applies the rules of evidence in workers comp the same way as in other cases.

The trial court has discretion to set deadlines for Daubert challenges and to determine if a Daubert challenge has been timely raised.

Next, the trial judge, as gatekeeper, “must determine whether the objection was sufficient to put opposing counsel on notice so as to have the opportunity to address any perceived defect in the expert's testimony.” The objection should include, for example, instance, citation to “conflicting medical literature and expert testimony.”  “[U]nsubstantiated facts, suspicions, or theoretical questions regarding the expert's qualifications are not sufficient” A general objection at the expert’s deposition is not enough.

Here, the trial court properly found that “Daubert objections must be directed to specific opinion testimony and ‘state a basis for the objection beyond just stating she was raising a Daubert objection in order to allow opposing counsel an opportunity to have the doctor address the perceived defect in his testimony.’”

The Daubert statute makes “pure opinion” testimony inadmissible. The trial court did not abuse its discretion in finding that the experts’ opinions here were not impermissible “pure opinion,” but were based on published medical literature, as well as an examination of the patient.

The trial court did not abuse its discretion in admitting the experts’ testimony because it “found the experts were well acquainted with Appellant's medical history and current medical condition, they relied on published medical studies generally accepted within the medical community, and they applied the results of those studies to the facts of this case in reaching their opinions on causation.”

The court reviewed the Daubert rulings for abuse of discretion. Frye rulings were reviewed de novo.  See Hadden v. State, 690 So.2d 573 (Fla. 1997).

Evidence - Number of Experts

Vargas v. Gutierrez
Nos.  3D14 48 & 3D13 1923, 2015 WL 5023074 (Fla. 3d DCA August 26, 2015)

Where the trial court set a limit on trial testimony of one expert per specialty, and plaintiff presented a retained expert, it was reversible error to allow plaintiff to present additional expert opinions from treating doctors beyond factual testimony about their involvement in the treatment of the plaintiff.

Experts retained for litigation will almost always be classified as experts subject to the one expert per specialty rule.  Experts who treat the plaintiff outside of the litigation may still be classified as experts under the rule if they give additional expert opinions that were not rendered during their treatment of the plaintiff.  

Here, treating pathologists gave opinions on causation at trial that were not included in any of their records and were not even disclosed until trial.  The testimony “closely mirrored” the opinion testimony of plaintiff’s retained expert and was based on the same evidence.  

Neither doctor’s report “contain[ed] a concrete diagnosis or a recommended treatment. The doctors did not simply testify about the facts of their previous tissue examinations or the findings in their reports, they gave opinion testimony regarding the nature of the disease and the timing of the disease’s progression that went beyond their treatment and reports.” 

The court held that the testimony was cumulative expert testimony and that the trial court erred in allowing the opinions.   The trial court also erred in allowing the plaintiff to present an additional expert pathologist in rebuttal whose testimony also was cumulative.

The court held that cumulative expert testimony is rarely harmless error, and cannot be harmless when the defendant is strictly limited to one expert.

I don’t think this means that multiple treaters in the same specialty can’t testify at all; they just have to limit their testimony to diagnosis and treatment reflected in their records.  See Ryder Truck Rental v. Perez, 715 So.2d 289 (Fla. 3d DCA 1998); Gonzalez v. Martinez, 897 So.2d 525 (Fla. 3d DCA 2005) (trial court abuses its discretion when it refuses to allow plaintiff to present fact testimony from treating physicians).  However, the court in Vargas cited the Perez dissent, not the majority opinion.

Compare Webb v. Priest, 413 So. 2d 43, 46 (Fla. 3d DCA 1982) ("we find that imposing the additional requirement forbidding the propounding of opinion questions to the defendant doctors as well as to a witness ostensibly permitted to testify as a third expert witness, was an abuse of  discretion").  Note also that the court cannot change the limit on the number of experts in the middle of trial.  Sanz v. Carter, 937 So.2d 1126 (Fla. 4th DCA 2006).

Med Mal - Ex Parte

Weaver v. Myers,
No. 1D14–3178, 2015 WL 4429170 (Fla. 1st DCA July 21, 2015)

The First DCA ruled that the 2013 amendments to §§766.106 and 766.1065, Fla. Stat., allowing defense lawyers in med mal cases to have ex parte contact with treating doctors are constitutional and are not preempted by HIPAA.
The court rejected arguments based on (1) the separation of powers doctrine, Art. V §2(a), Fla. Const; (2) the constitutional limitation on special legislation, Art. III §11, Fla. Const; (3) the constitutional guarantee of access to courts, Art. I §21, Fla. Const; and (4) the decedent’s constitutional right to privacy, Art. I §23, Fla. Const..

Here is the court’s reasoning on each issue:

The court found the amendments are primarily substantive, do not infringe on the Supreme Court’s rulemaking power, and do not impermissibly conflict with Rule 1.650, Fla. R. Civ. P.

They are not prohibited “special laws” because they do not benefit “local or private interests.”   The criteria are: (1) the class is open to others who may enter it; and (2) there is a rational distinction between those in the class and those outside it, when the purpose of the legislation and the subject of the regulation are considered.  

The amendments do not create a “significantly difficult” impediment to the right of access to courts, but merely create a reasonable condition precedent to filing suit.

The right of privacy in the plaintiff’s medical information is waived by filing a medical malpractice claim.  The court points out that information not relevant to the potential lawsuit is not discoverable by ex parte means.

On the HIPAA issue, the court adopts the reasoning of the Eleventh Circuit in  Murphy v. Dulay, 768 F.3d 1360 (11th Cir.2014).

PIP - Medicare Schedules

Orthopedic Specialists v. Allstate Ins. Co.,
2015 WL 4927203 (Fla. 4th DCA Aug. 19, 2015).

In thirty-two consolidated cases brought by medical services providers, the court held that Allstate's insurance policy provision electing to use Medicare fee schedules was unclear and ambiguous.  The policy must be construed against the insurer. Therefore the language was not legally sufficient to authorize Allstate to apply the Medicare fee schedule reimbursement limitations set forth in section 627.736(5)(a)2., Florida Statutes

The language at issue is:

Any amounts payable under this coverage shall be subject to any and all limitations, authorized by section 627.736, or any other provisions of the Florida Motor Vehicle No–Fault Law, as enacted, amended or otherwise continued in the law, including, but not limited to, all fee schedules.

The court agreed with the providers that it was not clear whether Allstate actually was adopting the fee schedules or only reserving the right to do so.

The court certified conflict with Allstate Fire & Cas. Ins. Co. v. StandUp MRI of Tallahassee, P.A., 2015 WL 1223701, 40 Fla. L. Weekly D693 (Fla. 1st DCA Mar. 18, 2015).

Successive Tortfeasors - Stuart v. Hertz

Allstate v. Theodotou,
2015 WL 4486578 (Fla. 5th DCA July 24, 2015)

Under Stuart v. Hertz, 351 So.2d 703 (Fla. 1977), an initial tortfeasor cannot force a plaintiff to litigate a medical malpractice claim by filing a third party complaint against the plaintiff’s subsequent treating doctors alleging that their malpractice aggravated the plaintiff’s injuries.  The plaintiff has the choice of whether and when to sue their doctors.  

However, where judgment has been entered against the initial tortfeasor for all of plaintiff’s damages, and the tortfeasor has not paid the judgment, this court holds that the initial tortfeasor may intervene in the plaintiff’s subsequent medical malpractice action to claim equitable subrogation against the subsequent treating healthcare providers.

Ordinarily, a torfeasor is required to pay all of the damages before bringing an action for equitable subrogation.  The court says an exception to that rule is justified here,  because the plaintiff “elected to sue only [the initial tortfeasors, presumably knowing that they could not afford to pay a multi-million dollar judgment,” and then chose to sue the medical providers.

"The issue we address is whether, under Underwriters at Lloyds v. City of Lauderdale Lakes, 382 So. 2d 702 (Fla. 1980), an initial tortfeasor or her insurer may assert an equitable subrogation claim against a subsequent tortfeasor when: (1) the initial tortfeasor was precluded from bringing the subsequent tortfeasor into the original personal injury action under Stuart v. Hertz, 351 So. 2d 703 (Fla. 1977); (2) judgment was entered against the initial tortfeasor for the full amount of the injured person’s damages, regardless of the initial tortfeasor’s portion of the fault; and (3) that judgment has not been completely paid by the initial tortfeasor or her insurer. We conclude that, under the circumstances presented in this case, equity dictates that Appellants be allowed to seek equitable subrogation from the Medical Providers. "


"Notably, the other central policy goals of Stuart were to: (1) allow the plaintiff to choose the manner of the litigation; and (2) spare the plaintiff the “trauma” of an “extensive” medical malpractice trial. Here, the plaintiff chose the manner of the litigation. He elected to sue only the Boozers, presumably knowing that they could not afford to pay a multi million dollar judgment. He then chose to sue the Medical Providers, leading to, ironically, his involvement in what could become an “extensive” medical malpractice trial. The intervention of the initial tortfeasor into that lawsuit is a consequence of these choices."

The court certifies the question to the Florida Supreme Court:

Is a party that has had judgment entered against it entitled to seek equitable subrogation from a subsequent tortfeasor when the judgment has not been fully satisfied?

Several parties have begun the process of seeking review in the Florida Supreme Court. 

Barbara Green is an appellate lawyer in Coral Gables, Florida, concentrating on appeals and litigation support. She is a graduate of the University of Miami School of Law (J.D., 1978, Magna Cum Laude).

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