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Saturday, February 18, 2017

Florida Supreme Court declines to adopt legislative amendment narrowing class of qualifying experts in medical negligence cases


On February 18, 2017, in IN RE: AMENDMENTS TO THE FLORIDA EVIDENCE CODE, No. SC16-181, the Florida Supreme Court declined to adopt a legislative amendment to Fla. Stat. § 766.102(5)(a), requiring a standard-of-care expert witness in a medical negligence action to specialize in the “same specialty” as the health care provider against whom or on whose behalf the testimony is offered, rather than the “same or similar specialty” requirement that existed under the previous version of the statute.
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Saturday, February 18, 2017

Florida Supreme Court declines to adopt legislative amendment incorporating Daubert standard for expert testimony


On February 18, 2017, in IN RE: AMENDMENTS TO THE FLORIDA EVIDENCE CODE, No. SC16-181, the Florida Supreme Court declined to adopt legislative amendments incorporating the Daubert standard for expert testimony as part of the Florida Evidence Code.  This was a widely anticipated opinion on an in issue which has pitted the civil plaintiff’s bar (which generally favors the predecessor Frye standard) against the civil defense bar.  

The Frye test, which until recently has been applied in all Florida courts, provides that “in order to introduce expert testimony deduced from a scientific principle or discovery, the principle or discovery ‘must be sufficiently established to have gained general acceptance in the particular field in which it belongs.’ ” Flanagan v.
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Friday, February 17, 2017

Restoration Hardware recalls over 2,000 metal top dining tables due to risk of lead exposure to children


On February 10, 2017, Restoration Hardware issued a recall with regard to approximately 2,700 Railroad Tie & Parsons Railroad Tie dining tables. The recalled tables are round or rectangular with thin sheets of zinc/dark gray color metal on the table tops. The item number is printed on a white sticker underneath the tabletop.  Restoration Hardware has received reports of elevated blood lead levels in four children in two homes where a recalled table was present. One incident involving two children occurred in Cranston, R.
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Friday, February 17, 2017

Britax recalls over 600,000 baby strollers due to 33 reports of car seats disconnecting from the strollers and falling to the ground


On February 16, 2017, Britax recalled certain Britax B-Agile and BOB Motion Strollers with Click & Go receivers.  Britax has reportedly received 33 reports of car seats unexpectedly disconnecting from the strollers and falling to the ground, resulting in 26 reports of injuries to children, including scratches, bruises, cuts and bumps to the head. In addition, Britax is reportedly  aware of 1,337 reports of strollers with damaged Click & Go receiver mounts.  The product was reportedly sold at Babies R Us, buy buy Baby, Target and other stores nationwide, and online at Amazon.com, albeebaby.
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Thursday, February 16, 2017

Fifth District Court of Appeal articulates standards for resolution of motions to amend complaint to add punitive damages claim


On February 10, 2017, in Varnedore v. Copeland, No. 5D16-1879, the 5th DCA granted a defendant's writ of certiorari and remanded the case back to the trial court for further proceedings to correct errors in the handling of the plaintiff's motion to amend the medical negligence complaint to include a punitive damages claim.  A party wishing to pursue punitive damages must first file a motion seeking leave of court to file an amended complaint and then make “a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.   See Fla.
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Wednesday, February 15, 2017

Fifth District Court of Appeal rules that special SOL for actions against insolvent insurers and FIGA do not apply to actions filed against an insurer prior to insolvency


On February 10, 2017, in Morrison v. Homewise Preferred. Ins. Company, No. 5D15-4312, the 5th DCA ruled  that statute of limitations provisions for actions against insolvent insurers do not apply to first party actions filed against an insurer prior to insolvency.
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Wednesday, February 15, 2017

Fifth District Court of Appeal reverses trial court's finding that party was entitled to attorney's fees despite their failure to file fee motion within 30 days after the final judgment


On February 10, 2017, in Hovercraft of South Florida v. Reynolds, No. 5D15-2629, the 5th DCA reversed the trial court's finding that a party was entitled to attorney's fees despite their failure to file their fee motion within 30 days after the final judgment.  The 5th DCA noted that that the trial court had not made any definitive determination regarding the entitlement to attorney's fees in the final judgment although the trial court did reserve jurisdiction in the final judgment to award fees.   The 5th DCA concluded that the only way to avoid the 30 day requirement, other than excusable neglect, is for the trial court to enter a judgment that determines an entitlement to attorney's fees and reserves jurisdiction only as to the amount owed.
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Wednesday, February 15, 2017

Fourth District Court of Appeal reverses trial verdict against insurer in first party property insurance case because of plaintiff's introduction of irrelevant information about her health


On February 8, 2017, in State Farm Insurance Company v, Figueroa, the 4th DCA reversed a trial verdict in favor a first party insured against her property insurer and remanded for a new trial due to the erroneous admission of evidence offered by the plaintiff about her health. The gravamen of the case was a dispute about whether the plaintiff's alleged failure to timely submit a proof of loss form relieved the insurer of its obligations under the policy.  At trial, the plaintiff contended, over the defense's objections, that she was unable to comply with the time limitations because of personal health issues.  The 4th DCA concluded that this evidence was irrelevant to the case because there was no policy provision that excused compliance with the time limitations based on health issues. The Court additionally concluded that the jury may have inferred from this evidence that the plaintiff's health was a proper factor in its analysis, noting that the issue was repeatedly raised by plaintiff's counsel and was the subject of two questions from jury members.
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Wednesday, February 15, 2017

Second District Court of Appeal reverses trial court's dismissal of premises liability lawsuit on res judicata grounds


On February 10, 2017, in Thews v. Wal-Mart Stores East, No. 2D15-4208, the 2nd DCA reversed a trial court ruling dismissing a plaintiff's premises liability claim on the grounds of res judicata.  The plaintiff had originally sued the corporate entity, Walmart, Inc., and lost that case when the trial court granted the defendant's motion for a judgment as a matter of law.
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Monday, February 13, 2017

Second District Court of Appeal reverses trial court's award of fees and costs, holds that proposal for settlement was fatally flawed


On February 10, 2017, in Diecidue v. Lewis et. al,  No, 2D15-1852, the 2nd DCA reversed a trial court's award of fees and costs to the plaintiff's UIM insurer, Allstate, which was a defendant in the case.  Allstate had served the plaintiff with a proposal for settlement under Fla. Stat.
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Monday, February 13, 2017

First District Court of Appeal reverses trial court's entry of declaratory judgment that insurance coverage existed due to operation of estoppel doctrine against insurer


On February 10, 2017, in Progress Express Insurance Company v. Anzualda Brothers, Inc., the 1st DCA reversed the trial court's entry of declaratory judgment that insurance coverage existed due to operation of estoppel doctrine against an automobile insurer.  The case involved involved a driver in a fatal automobile accident who was driving a vehicle that was not listed on his insurance policy.   The 1st DCA noted that In an insurance coverage by estoppel claim, the plaintiff must prove (1) the defendant company made a representation of material fact; (2) the plaintiff reasonably relied on that representation of material fact; and (3) the plaintiff was prejudiced by its reliance.


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Archived Posts

2017
February
Florida Supreme Court declines to adopt legislative amendment narrowing class of qualifying experts in medical negligence cases
Florida Supreme Court declines to adopt legislative amendment incorporating Daubert standard for expert testimony
Restoration Hardware recalls over 2,000 metal top dining tables due to risk of lead exposure to children
Britax recalls over 600,000 baby strollers due to 33 reports of car seats disconnecting from the strollers and falling to the ground
Fifth District Court of Appeal articulates standards for resolution of motions to amend complaint to add punitive damages claim
Fifth District Court of Appeal rules that special SOL for actions against insolvent insurers and FIGA do not apply to actions filed against an insurer prior to insolvency
Fifth District Court of Appeal reverses trial court's finding that party was entitled to attorney's fees despite their failure to file fee motion within 30 days after the final judgment
Fourth District Court of Appeal reverses trial verdict against insurer in first party property insurance case because of plaintiff's introduction of irrelevant information about her health
Second District Court of Appeal reverses trial court's dismissal of premises liability lawsuit on res judicata grounds
Second District Court of Appeal reverses trial court's award of fees and costs, holds that proposal for settlement was fatally flawed
First District Court of Appeal reverses trial court's entry of declaratory judgment that insurance coverage existed due to operation of estoppel doctrine against insurer
Hyundai recalls certain 2017 model year Elantra vehicles for replacement of brake system booster
GM recalls certain Pontiac Solstice and Saturn Sky vehicles because front passenger air bag may not deploy
Walt Disney Parks and Resorts recalls Mickey Mouse Nightlights and Infant Hoodie Sweatshirts due to hazards
Fourth District Court of Appeal reverses trial court's summary judgment in favor of defendant in personal injury case involving restaurant patron's ingestion of broken mussel shell
Fifth District Court of Appeal denies defendant's petition for writ of certiorari to quash order granting medical negligence plaintiff leave to amend complaint to assert a claim for punitive damages
Third District Court of Appeal affirms summary judgment in favor of hospital in visitor slip and fall case
Second District Court of Appeal reverses trial court's dismissal of plaintiff's complaint against City of Tampa for alleged failure to comply with sovereign entity pre-suit notice requirement
Second District Court of Appeal reverses court order compelling arbitration of medical negligence claims
Florida Supreme Court rules that state constitution provision guaranteeing access to records relating to adverse medical incidents not preempted by federal law
Florida Supreme Court rules that limitation on attorney's fees in Claims Bill was an unconstitutional impairment of contract
Eleventh Circuit Court of Appeals rules that County cannot unilaterally settle wrongful death claim that exposes excess insurance carrier to liability
Fourth DCA reverses circuit's court dismissal of legal malpractice claim and reject's court's finding that the claim was premature
Third DCA rules that defendant was not on constructive notice of soup spill causing slip and fall at bank building
Florida Supreme Court rules that statutory presumption regarding foreign bodies unintentionally left in surgical patients applies even where there is direct evidence of medical negligence
January
2016


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