Civil Procedure & Evidence Blog | Sands, White & Sands, PA

Florida Second DCA rules that trial court’s discovery order requiring defendant in motor vehicle negligence case to turn over ten years of medical records was overbroad February 15, 2021

On January 8, 2021, in Tanner, et al. v. Hart, No. 2D20-1470, the Florida Second DCA granted the certiorari petition of a defendant in a motor vehicle negligence case...

Florida First DCA finds no jurisdiction to hear certiorari petition by personal injury plaintiff seeking public disclosure of defendant corporation’s confidential materials January 8, 2021

On December 14, 2020, in Craig-Myers v. Otis Elevator Company, et. al, No. 1D20-1236, in a per curiam decision, the Florida First DCA dismissed a certiorari petition...

Florida Fifth DCA rules that trial court erred in giving res ipsa loquitur instruction in premises liability case involving allegedly negligent operation of mechanical prison gate January 8, 2021

On December 31, 2020, in Orange County, Florida v. Whitehead, No. 5D1901894, the Florida Fifth DCA reversed a judgment for the plaintiff in a premises liability case...

Florida Supreme Court issues order adopting federal summary judgment standard creating lower bar for summary judgment; amendment to take effect 5/1/2021 pending public comments January 8, 2021

On December 31, 2020, in IN RE: AMENDMENTS TO FLORIDA RULE OF CIVIL PROCEDURE, No. SC20-1490, the Florida Supreme Court amended Fla. R. Civ. P. 1.510...

Florida Third DCA rules that trial court prematurely granted summary judgment for defendant in wrongful death case January 8, 2021

On December 23, 2020, in Benavides, et al, v. Medina, et al., No. 3D20-10, the Florida Third DCA reversed a trial court’s summary judgment for one of the defendants...

Florida Fifth DCA affirms judgment against insurer in uninsured motorist case, finding plaintiff counsel’s improper closing remark to jury that empathy was a proper consideration did not rise to the level of reversible error January 8, 2021

On December 11, 2020, in State Farm v. Knapp, et al., No. 5D19-2219, a per curiam decision, the Florida Fifth DCA affirmed a judgment against the defendant insurer in an uninsured motorist case...

Florida Fourth DCA rules that plaintiff counsel’s closing argument in Engle-progeny tobacco case likening defendant to Nazis was improper but not give rise to reversible error January 8, 2021

On December 9, 2020, in R.J. Reynolds Tobacco Company v. Kaplan, No. 4D18-2880, the Florida Fourth DCA affirmed a judgment against the defendant in an Engle-progeny tobacco case...

Florida First DCA rules that “wrongful act doctrine” entitling litigant to attorney’s fees did not apply to attorney’s fee incurred by defendant in prosecuting cross claim for indemnity against co-defendant in nursing home negligence case December 8, 2020

On November 18, 2020, in MV Senior Management, LLC, v. Redus Florida Housing, LLC, No. 1D20-111, the Florida First DCA reversed a trial court order that the management company...

Florida Third DCA affirms order granting plaintiff new trial in Engle-progeny tobacco case due to trial court’s erroneous dismissal of prospective jurors without allowing examination by plaintiff’s counsel November 18, 2020

On October 28, 2020, in Frogel v. Philip Morris USA, Inc., No. 4D19-2781, the Florida Fourth DCA affirmed the order of a new trial in an Engle-progeny tobacco case...

Florida First DCA affirms trial court order denying defendant’s motion for remittitur of amount of jury verdict in motor vehicle negligence case November 18, 2020

On October 28, 2020, in Hunt v. Lightfoot, No. 1D19-3683, the Florida First DCA affirmed a trial court order ruling denying the defendant’s motion for remittitur...

Eleventh Circuit rules that district court abused its discretion by not holding evidentiary hearing on alleged misstatements by prospective jurors during voir dire November 18, 2020

On October 20, 2020, in Torres v. First Transit, Inc., No. 18-15186, the Eleventh Circuit Court of Appeals vacated a SDFL district court order denying the defendant...

Florida First DCA rules that trial court’s limitation of voir dire questioning by plaintiff’s counsel to one hour did not constitute abuse of discretion warranting new trial because counsel failed to continue to object to time limitation or explain why additional time was needed at the conclusion of his examination November 18, 2020

On October 13, 2020 in Tallahassee Housing Authority v. Prather, No. 1D19-2457, the Florida First DCA reversed a trial court ruling that had granted the plaintiff in a premises liability case...

Florida Fourth DCA rules that text messages could be authenticated through circumstantial evidence even though there was no direct evidence identifying the sender November 18, 2020

On October 7, 2020, in State of Florida v. Torres, Mo. 4D20-225, the Florida Fourth DCA held in a criminal sexual molestation case that text messages the minor victim allegedly received...

Florida Second DCA reverses trial court, rules that plaintiff in slip and fall case was not entitled to new trial based on newly discovered evidence October 08, 2020

On September 30, 2020, in Neapolitan Enterprises, LLC, v. Fishman, No. 2D19-4541, the Florida Second DCA reversed a trial court order which had...

Florida Fourth DCA rules that trial court’s admission in bad faith UIM case of evidence of plaintiff’s previous unaccepted settlement offer at mediation was reversible error October 08, 2020

On September 9, 2020, in Moultrop v. Geico General Insurance Company, No. 4D19-225, the Florida Fourth DCA reversed a judgment in favor...

Florida Third DCA reverses trial court’s dismissal of plaintiff’s complaint, finding that dismissal was impermissibly based on grounds not included in defendant’s motion to dismiss October 08, 2020

On September 9, 2020, in Howard v. Greenwich Insurance Company, No. 3D19-1922, the Florida Third DCA reversed a trial court’s dismissal...

Florida First DCA finds that in arriving at expert conclusion about cause of crime victim’s death, medical expert was permitted to testify on redirect that he relied upon report of another medical expert who examined victim’s body October 08, 2020

On September 10, 2020, in Barnes v. State of Florida, No. 1D19-889, a criminal case, the Florida First DCA considered a defendant’s claim that the trial...

Florida Fifth DCA rules that trial court erred in granting summary judgment in wrongful death case on a ground not substantively raised by defendants September 10, 2020

On August 28, 2020, in Rossman v. Wallick, et al., No. 5D19-1644, the Florida Fifth DCA reversed a trial court summary judgment entered in favor of the defendants in a wrongful death case ...

Florida Fifth DCA reverses trial court, finds that plaintiff was not entitled to award of attorney’s fees under wrongful act doctrine since applicability of the doctrine was not specifically pled in the complaint September 10, 2020

On August 21, 2020, in Cinco, et al. v. Coquina Palms Homeowners Association, Inc., No. 5D18-2897, the Florida Fifth DCA addressed a seldom invoked doctrine under Florida law ...

Florida Third DCA affirms trial court’s dismissal on forum non conveniens grounds of breach of contract case between foreign companies September 10, 2020

On August 12, 2020, in Certain Underwriting members of Lloyd’s, Syndicates 623 and 2623 v. Prime Holdings Insurance Services, No. 3D19-2322, the Florida Third DCA affirmed a trial court’s dismissal of the plaintiff’s complaint ...

Florida Fifth DCA reverses trial court and remands medical negligence case for trial de novo after nonbinding arbitration September 10, 2020

On August 7, 2020, in Dungarani v. Benoit, No. 5D19-139, the Florida Fifth DCA reversed a trial court ruling denying a plaintiff’s request for a trial de novo ...

Florida Third DCA rejects forum non conveniens argument by defendant companies which operated Mexican resort and were sued in Miami-Dade County for alleged slip and fall by U.S. citizen on resort property August 06, 2020

On July 29, 2020, in Palace Resorts Travel, Inc., et al., v. Flynn, No. 3D20-0025, the Florida Third DCA affirmed a trial court’s denial of the defendants' motion to dismiss a premises liability lawsuit ...

Florida Third DCA rules that plaintiff opened the door to “inference and argument” by defense counsel about her alleged referral by her attorney to a treating chiropractor August 06, 2020

On July 15, 2020, in Ruchimora v. Grullon, No. 3D19-753, the Florida Third DCA ruled that a trial court did not abuse its discretion in permitting the defendant ...

Florida Fourth DCA affirms trial court’s exclusion of expert’s PTSD diagnosis which was not disclosed to defense until eve of trial August 06, 2020

On July 8, 2020, in Krysiak v. Dawson, et al., No. 4D19-1532, the Florida Fourth DCA affirmed a trial court ruling excluding expert testimony concerning a motor vehicle negligence plaintiff’s PTSD ...

Florida Third DCA rules that trial court erred in compelling defendant’s disclosure of financial information in nursing home negligence case without first establishing that the information sought was relevant to the liability claim August 06, 2020

On July 1, 2020, in Fair Havens Center, LLC v. Estate of Nicula, No. 3D20-205, the Florida Third DCA granted a defendant’s petition for a writ of certiorari in a nursing home negligence case ...

Florida Fifth DCA rules that defendant doctor in medical negligence case was entitled to file errata sheet substantially amending testimony on material issues, subject to potential re-opening of deposition and impeachment at trial July 08, 2020

On June 12 , 2020, in Dungan v. Memorial Health Systems, Inc., No. 5D19-3225, the Florida Fifth DCA dismissed a certiorari petition from a plaintiff ...

Florida First DCA rules that litigant who objected to compelled production of her medical records was entitled to have trial court review the records in camera prior to any disclosure to opposing counsel July 08, 2020

On June 12, 2020, in Northcutt v. Turner, No. 1D19-2495, the Florida First DCA granted the certiorari petition ...

Florida Third DCA reverses trial court’s dismissal of plaintiff’s personal injury case based on lack of record activity, finds that plaintiff was not furnished with requisite notice prior to dismissal June 12, 2020

On May 6, 2020, in Hernandez v. Ibrahim, No. 3D19-1621, the Florida Third DCA reversed a trial court’s dismissal of a plaintiff’s personal injury case based ...

Florida First DCA rejects insurance company’s attempt to intervene in motor vehicle negligence case June 12, 2020

On May 8, 2020, in Lexington Insurance Company v. James, No. 1D19-1954, the Florida First DCA affirmed a trial court order denying an insurance company’s ...

Florida Second DCA reverses trial court order granting defendant new trial in negligent hiring case involving high school football coach who allegedly physically abused student April 27, 2020

On March 11, 2020, in Robinson v. Polk County School Board, No. 2D19-421, the Florida Second DCA reversed a trial court order which had granted the Polk County School Board a new trial ...

Eleventh Circuit rules that plaintiff who voluntarily dismissed federal lawsuit was not liable for costs under Fed. R. Civ. P. 41(d) after refiling claim in Florida state court April 27, 2020

On March 2, 2020, in Sargeant v. Hall, No. 18-15205, the Eleventh Circuit Court of Appeals affirmed a Southern District of Florida ruling that a plaintiff who voluntarily dismissed a federal lawsuit was not liable for costs ...

Florida Supreme Court revises rules for authorization of standard jury instructions April 27, 2020

On March 5, 2020, in IN RE: AMENDMENTS TO THE FLORIDA RULES OF JUDICIAL ADMINISTRATION, THE FLORIDA RULES OF CIVIL PROCEDURE, AND THE FLORIDA RULES OF CRIMINAL PROCEDURE—STANDARD JURY INSTRUCTIONS ...

Florida Third DCA rules that defendant asbestos manufacturer was entitled to introduce admissions from deceased party alleging asbestos exposure by non-party asbestos manufacturers March 17, 2020

On February 26, 2020, in Union Carbide Corporation v. Paul Font, etc., No. 3D18-1529, the Florida Third DCA reversed a final judgment ...

Florida Second DCA rejects trial court’s application of federal Celotex summary judgment standard March 17, 2020

On February 12, 2020, in Wendel v. Trustees of Meese Hospital, No. 2D18-3149, the Florida Second DCA reversed a summary judgment ...

Florida Fourth DCA rules that e-mail service requirements under Fla. R. Civ. P. 2.516 do not apply to service of a safe harbor notice and proposed motion for sanctions under Fla. Stat. § 57.105 March 17, 2020

On February 5, 2020, in Cohen v. H.E.C. Cleaning, LLC, No. 4D19-1070, the Florida Fourth DCA reversed a trial court ruling striking ...

Florida Fifth DCA finds that defense counsel’s improper closing argument did not violate fundamental fairness standard of review for retrial February 17, 2020

On January 31, 2020, in Orange County et al. v. Ferguson, No. 5D18-2405, the Florida Fifth DCA reversed a trial court order which had directed a verdict ...

Florida Third DCA reverses trial court dismissal of negligence case against auto repair shop, rejects trial court’s conclusion that plaintiff’s theory of the case relied on impermissible stacking of inferences February 17, 2020

On January 22, 2020, in Desvarieux v. Bridgestone Retail Operations, LLC, No. 3D17-2019, the Florida Third DCA reversed a summary judgment entered by the trial court ...

Florida Supreme Court amends Rule of Appellate Procedure 9.130 to expand the availability of appellate review of nonfinal orders denying sovereign immunity, denying immunity in civil rights claims arising under federal law, and denying immunity under section 768.28(9), Florida Statutes. February 17, 2020

On January 23, 2020, in IN RE: AMENDMENTS TO FLORIDA RULE OF APPELLATE PROCEDURE 9.130, the Florida Supreme Court amended Florida ...

Florida Supreme Court authorizes amendments to standard civil jury instructions and model instructions February 17, 2020

On January 23, 2020, in IN RE: STANDARD JURY INSTRUCTIONS IN CIVIL CASES— REPORT 2019-04, the Florida Supreme Court authorized ...

Florida First DCA quashes trial court order upholding records subpoena issued to Virginia company, rules that defendant failed to comply with Virginia’s requirements for service of process January 17, 2020

On December 23, 2019, in Kinsale Insurance Company v. Murphy, No. 1D19-0538, the Florida First DCA quashed an order by a trial court that had upheld a subpoena ...

Florida Third DCA declines certiorari review of trial court order denying medical device manufacturer’s motion to dismiss plaintiff’s complaint for a pure bill of discovery regarding defendant’s pelvic mesh products January 17, 2020

On December 11, 2019, in American Medical Systems, LLC, et al v. MSP Recovery Claims, Series LLC, No. 3D19-1570, the Florida Third DCA denied certiorari review ...

Florida Supreme Court adopts new Rule of Civil Procedure 1.535 on remittitur and additur Florida Supreme Court adopts new Rule of Civil Procedure 1.535 on remittitur and additur December 5, 2019

On December 5, 2019, the Florida Supreme Court adopted new Rule of Civil Procedure 1.535 on remittitur and additur requiring trial courts ...

Florida Third DCA affirms dismissal of commercial fraud lawsuit for failure to prosecute, ruling that “disarray” in control and representation of the plaintiff corporations did not constitute “good cause” for lack of activity. December 4, 2019

On November 6, 2019, in Publicidad Vepaco, C.A. v. Mezerhane, No. 3D18-1424, the Florida Third DCA affirmed the dismissal of a commercial fraud lawsuit because of the plaintiffs’ ...

Florida First DCA rules the $80,000 verdict by jury for “nominal damages” was excessive in case involving no admissible evidence on compensatory damages November 26, 2019

On October 24, 2019, in The Prestige Gallery, Inc. v. Napleton, No. 1S18-2318, the Florida First DCA reversed a final judgment and jury verdict in a slander case which awarded the plaintiff $80,000 in “nominal damages” ...

Florida Third DCA rules that Google Maps photo of sidewalk at issue in slip-and-fall case was not admissible without supporting testimony regarding the date of the photo and equipment used November 26, 2019

On October 16, 2019, in City of Miami v. Kho, No. 3D18-2369, the Florida Third DCA reversed a trial court’s denial ...

Florida Second DCA reverses trial court, finds that defendant in product liability case waived defense of lack of personal jurisdiction by not raising it in initial motion to dismiss November 26, 2019

On October 16, 2019, in Gannon v. Cuckler, No. 2D17-4888, the Florida Second DCA reversed a trial court ruling that had granted the defendant’s motion to dismiss a product liability lawsuit ...

Florida Second DCA rules that trial court erred in granting summary judgment to defendant prior to completion of discovery” and applies in equity cases where costs are claimed under the statute November 25, 2019

On October 2, 2019, in Rodriguez v. Avatar Property & Casualty Insurance Company, No. 2D18-1007, the Florida Second DCA reversed a summary judgment granted by a trial court in a breach of contract case ...

Florida Fourth DCA rules that standard for entitlement to costs under F.S. § 57.041(1) is whether cost claimant is “party recovering judgment” rather than “prevailing party” and applies in equity cases where costs are claimed under the statute November 25, 2019

On September 25, 2019, in Sherman v. Sherman, No. 4D18-3578, the Florida Fourth DCA, sitting en banc, receded from a conflicting previous decision and ruled ...

Florida Second DCA rules that plaintiff was not required to file formal motion for a trial de novo following nonbinding arbitration ruling when case had already been noticed for trial and defendant’s conduct operated as waiver of strict compliance with motion requirement November 25, 2019

On September 25, 2019, in De Acosta v. Naples Community Hospital, Inc., No. 2D18-423, the Florida Second DCA reversed a final judgment entered by the trial court pursuant to an arbitration award ...

Florida Third DCA rules that jury was not bound by computation of plaintiff’s life expectancy stipulated to by the parties November 01, 2019

On September 11, 2019, in Castle Builders of Miami, Inc. v. Quirantes, No. 3D18-163, the Florida Third DCA affirmed a final judgment against the defendants of $4,376,646.60 in a motor vehicle negligence case ...

Florida Fourth DCA rules that trial judge erred in refusing to recuse himself in a case involving a party with whom the judge had a family relationship October 31, 2019

On August 28, 2019, in Rosales v. Bradshaw, No. 4D19-1082, the Florida Fourth DCA ruled that a trial judge erred in refusing to recuse himself from a case in which the Sheriff of Palm Beach County was a party ...

Florida Fifth DCA reverses trial court, finds that summary judgment for the defendants in a motor vehicle negligence case was improper where eyewitness testimony conflicted with video evidence August 5, 2019

On July 12, 2019, in Lopez v. Wilsonart , No. 5D18-2907, the Florida Fifth DCA reversed a trial court’s summary judgment for the defendants in a motor vehicle negligence case after concluding that ...

Florida Fifth DCA reverses trial court, finds that summary judgment for defendant in civil case alleging violation of Florida Wiretap Statute was improper when relevant discovery had not yet been produced by defense August 2, 2019

On July 12, 2019, in Skydive Space Center v. Pohjolainen , No. 5D18-537, the Florida Fifth DCA reversed a trial court’s summary judgment in favor of the defendants in a civil suit alleging the ...

Florida Fourth DCA rules that plaintiff’s counsel engaged in impermissible “trial by ambush” tactics in motor vehicle negligence case by waiting until trial to have plaintiff’s treating physician review MRI from previous accident August 1, 2019

On July 10, 2019, in Gurin Gold, LLC v. Dixon , No. 4D18-2156, the Florida Fourth DCA reversed a verdict for the plaintiff in a motor vehicle negligence and remanded for a new trial based on what the ...

Florida Fifth DCA rules that trial court erred in excluding plaintiff’s statement to medical personnel about circumstances of motor vehicle accident July 29, 2019

On June 21, 2019, in Strong v. Underwood , No. 5D17-3586, the Florida Fifth DCA reversed a jury verdict in a motor vehicle negligence case in which the defendant and the plaintiff had each been found ...

Florida First DCA rules that plaintiff’s alleged prior history of drug abuse was irrelevant and more prejudicial than probative in product liability case involving exploding e-cigarette July 23, 2019

On July 9, 2019, in R-L Sales, LLC v. Hoce , No. 1D18-2298, the Florida First DCA affirmed a jury verdict for the plaintiff in a product liability case against an e-cigarette manufacturer. The ...

Florida Fifth DCA rules that trial court erroneously dismissed legal malpractice complaint on statute of limitations grounds; nothing within the fourth corners of the complaint conclusively established failure to comply with statute of limitations July 22, 2019

On June 14, 2019, in Enlow v. Wright , Np. 5D18-105, the Florida Fifth DCA reversed a trial court’s order dismissing the plaintiff’s legal malpractice complaint on statute of limitations grounds. The ...

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