July 2009 Archives

In this dental malpractice case, the trial court denied the defendant's motion for protective order requesting non-disclosure of work-product and attorney-client documents sent to a testifying expert.  The plaintiff claimed that the defendant waived any privilege when his counsel sent the documents to the expert.  The defendant claimed that no waiver occurred because the expert never read the documents and they would not otherwise be used at trial.  The appellate court held that "[e]ven when the expert is to testify, opposing parties may be unable to discover privileged material that is not being offered as evidence." The appellate court therefore granted the petition for certiorari and quashed the trial court's order.

NAN H. MULLINS, D.M.D. v. ALICE TOMPKINS, 34 Fla. L. Wkly D1456a (Fla. 1st DCA July 21, 2009)

In this case, there were two defendants.  One defendant served an offer of judgment requesting a dismissal of both defendants in return for $5,000.  The offer did not apportion the $5,000 offer between the two defendants.  Defendants prevailed, and the trial court awarded attorneys' fees.  The Fourth District affirmed the fee award, holding that the offer was not a "joint offer" because it was an offer by only one defendant that simply requested that both defendants be dismissed.  Therefore, no apportionment was required.

Gloria Alioto-Alexander v. Toll Bros., Inc., and John Barr, 34 Fla. L. Wkly D1383a (Fla. 4th DCA July 8, 2009)

In today's New York Times, Adam Liptak discusses a quick but quiet revolution in the Federal Rules of Civil Procedure that may apply to the identically worded Florida Rule 1.110(b):

 

"For more than half a century, it has been clear that all a plaintiff had to do to start a lawsuit was to file what the rules call “a short and plain statement of the claim” in a document called a complaint. Having filed such a bare-bones complaint, plaintiffs were entitled to force defendants to open their files and submit to questioning under oath."

 

But, in Federal Court, no more.  In the case of Ashcroft v. Iqbal (U.S. 2008), the Supreme Court interpreted Federal Rule of Civil Procedure 8, which states that “a pleading must contain a ‘short and plain statement of the claim showing that the pleader is entitled to relief,’” to set forth the following test:

 

“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

 

The Court went on to explain how its new interpretation deviates from past case law:

 

“First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. . .  Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss.  Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.

 

. . .

 

In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.”

 

Federal Rule 8(a) is virtually identical to Florida Rule of Civil Procedure 1.110(b), but Florida Courts still apply the U.S. Supreme Court’s old test.  I am not aware of any opinions from the Florida Courts confronting the Iqbal decision, but I predict such a decision is coming.

In a medical malpractice case, a defendant medical center obtained a summary judgment based upon a pre-surgery consent form that the plaintiff had signed.  The appellate court reversed because the defendant did not provide a sufficient business record foundation for the form.  The defendant would be permitted to attempt to establish a sufficient foundation on remand, however.

Ginsberg v. Northwest Medical Center, Inc., Jason Perelman, M.D., Mitchell Weinstein, D.O., and Uro-Medix, Inc.

This opinion addressed the enforceability of an offer of judgment and whether it was ambiguous. The body of the offer listed two defendants, but the offer stated that payment would be made by only one defendant. Despite the discrepancy, the court found the offer of judgment to be unambiguous and therefore enforceable. EASTERN ATLANTIC REALTY AND INVESTMENT INC. v. GSOMR LLC, and BISCAYNE JOINT VENTURE, LTD

A motion for clerk's default should be set aside where plaintiff's counsel, as a result of related litigation, had reason to know that defendant wished to respond to lawsuit  As such, defendant was not required to show meritorious defense or excusable neglect.

Makes & Models Magazines, Inc. v. Web Offset Printing Co., Inc., 34 Fla. L. Wkly D1203a (2d DCA June 17, 2009)