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Hearsay within a Medical Record (Double Hearsay)

Posted by David Adelstein on June 23, 2019
Evidence / Comments Off on Hearsay within a Medical Record (Double Hearsay)

A medical record is admissible under the business record exception to the hearsay rule. Strong v. Underwood, 44 Fla. L. Weekly D1598c (Fla. 5thDCA 2019).   What about a party’s statement within a medical record (double hearsay – hearsay within hearsay)?  Well, that hearsay statement may be admissible if another exception permits its admissibility.  Once such exception that could apply is an admission by a party opponent

For instance, in Strong, a person driving a motorcycle collided with an SUV.  The motorcyclist sued the driver of the SUV.  An issue on appeal pertained a statement in a medical record by the motorcyclist’s treating physician as to how the accident occurred (double hearsay – a hearsay statement within a business record). 

The motorcyclist told her treating physician’s staff that one of her tires blew and she collided with the SUV, and this was included by her treating physician in the medical report.  The trial court denied the admissibility of the statement at trial because it was not made directly to the doctor, but to someone on his staff. The appellate court held the motorcyclist’s statement contained in the medical record was admissible under the hearsay exception–an admission by a party opponent–even though the statement was not made directly to the doctor since it was included in the business record (medical report) and the doctor prepared the report based on information transmitted to him by a person with knowledge of that statement:

[A] statement is not rendered inadmissible merely because it passed through two declarants. Rather, the statement will be admissible as long as each level of hearsay is covered by an exception.  Here, irrespective of which trauma team employee actually took Mrs. Underwood’s [motorcyclist] statement, the conveyance of the statement to Dr. Cheatham [treating physician] would have occurred between two employees of the same company in the course of business.  Dr. Cheatham would then have prepared the report from information transmitted by a person with knowledge of the statement.  As such, even if the statement was not made directly to Dr. Cheatham, each layer of hearsay is covered by the business records exception.

Strong, supra(internal citations and quotations omitted).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Premise Liability and the Obvious Danger Doctrine

Posted by David Adelstein on June 15, 2019
Trial Perspectives / Comments Off on Premise Liability and the Obvious Danger Doctrine

In the premise liability context:

[T]he obvious danger doctrine provides that a landowner “is not liable for injuries to an invitee caused by a dangerous condition on the premises when the danger is known or obvious to the injured party….”  However, this protection does not extend to situations where the landowner “should anticipate the harm despite the fact that the dangerous condition is open and obvious.” To determine whether the obvious danger doctrine applies, a court must “consider all of the facts and circumstances surrounding the accident and the alleged dangerous condition.” 

Shipman v.  CP Sanibel, LLC, 2019 WL 2301599, *4 (M.D.Fla. 2019) (internal citations omitted). 

For example, in Shipman, the plaintiff was an invitee of a resort.  She slipped and fell on water that accumulated on a non-slip resistant tile floor in an open-air lounge adjacent to the pool. There is a sign at the open-air lounge that advises patrons to towel off before walking on the tile.  There is also usually a wet floor sign to warn patrons that the tile floor might be wet; however, on the day the plaintiff slipped, the wet floor sign was not present.

On a summary judgment motion in federal court, one issue was the application of the obvious danger doctrine.  The trial court found that there was an issue of fact as to whether the obvious danger doctrine applied. Even if water on the tile in the open-air lounge was open and obvious, there was a factual issue as to whether the resort should have warned the plaintiff of the condition, i.e., the resort should have anticipated the harm that water on the lounge’s tile floor poses.  This is supported by the fact that the resort usually has a wet floor sign to warn patrons of this fact, but did not have the sign on the date in question.  Moreover, there was also a factual issue as to whether the resort kept its premises in a reasonably safe condition by allowing non-slip resistant tile to remain wet in a location adjacent to the pool.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Exculpatory Clauses MUST be Clear and Unequivocal

Posted by David Adelstein on June 08, 2019
Trial Perspectives / Comments Off on Exculpatory Clauses MUST be Clear and Unequivocal

I am not telling you anything you do not already know, but it is important to read and appreciate the documents you sign. Likewise, it is important to give due consideration to the documents you prepare or have prepared that you want another to sign.  Such documents are intended to have legal effect.

By way of example, in Fresnedo v. Porky’s Gym III, Inc., 44 Fla. L. Weekly D1029a (Fla. 3d DCA 2019), the plaintiff sued his gym in negligence claiming he was injured by another person in the gym after this other person attacked him.  The gym relied on a waiver and release document the plaintiff signed in order to become a gym member claiming the plaintiff released it of all liability. 

A waiver and release clause in a document is referred to as an exculpatory clause.

Exculpatory clauses, such as the one at issue here, that purport to deny an injured party the right to recover damages from another who negligently causes injury are strictly construed against the party seeking to be relieved of liability.  In addition, courts are required to read such clauses in pari materia, giving meaning to each of its provisions, to determine whether the intention to be relieved was made clear and unequivocal in the contract, such that an ordinary person would know what he was contracting away. 

Fresnedo, supra (internal quotations and citations omitted).

The court analyzed the entire waiver and release document (since it was reviewed in pari materia with the other clauses in the document) and determined that the exculpatory clause (waiver and release) did NOT clearly and unequivocally waive the gym’s liability for the type of negligence alleged by the plaintiff in his complaint.  In particular, the waiver and release was not unequivocal that it released the gym if the plaintiff was injured from an altercation with another person at the gym. 

Had the waiver and release clause in the document been clear and unequivocal, the plaintiff would probably be out of luck in his suit against the gym.  The fact that the gym’s waiver and release was not clear gave the plaintiff the ability to bypass the waiver and release and sue the gym for negligence.

 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Two Proposal for Settlement Considerations

Posted by David Adelstein on June 01, 2019
Trial Perspectives / Comments Off on Two Proposal for Settlement Considerations

A proposal for settlement is a vehicle used to create an argument for the recovery of attorney’s fees from the date the proposal is served on forward if the opposing party does not accept the proposal within 30 days.  In certain circumstances, such as when there is there is no basis to recover attorney’s fees, it can be a useful vehicle to create an argument to recover attorney’s fees.   There are also strategic reasons to serve a proposal for settlement at a certain point in time in the litigation.  There are definitely strategic issues that must be considered when serving a proposal for settlement.  

Two things to note when serving a proposal for settlement:

 

  • The proposal for settlement cannot be served right off the bat.  A proposal for settlement to a plaintiff cannot be served until 90 days after the action has been commenced.  A proposal for settlement to a defendant cannot be served until 90 days after the defendant was served with the lawsuit

 

  •  A trial court’s stay of the lawsuit does not stay the proposal for settlement requirements.  For instance, in Old Dominion Ins. Co. v. Tipton, 44 Fla. L. Weekly D1102a (Fla. 2d DCA 2019), a lawsuit was stayed and as soon as the stay was lifted the defendant served the plaintiff a proposal for settlement.  The plaintiff argued that the prior stay precluded the defendant from serving the proposal because, when factoring in the stay, the proposal was served prematurely before the expiration of the 90-day period.  The appellate court disagreed finding that the stay, itself, did not toll the proposal for settlement requirements.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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A General Release is Not Absolute

Posted by David Adelstein on May 27, 2019
Trial Perspectives / Comments Off on A General Release is Not Absolute

General releases, unfortunately, are not absoluteA recent ruling from the Third District Court of Appeal in Falsetto v. Liss, 44 Fla. L. Weekly D1340d (Fla. 3d DCA 2019) confirms this point, although, candidly, I have mixed feelings regarding this ruling.   

In this case, the Court held that the term “unknown” in a general release is not synonymous with the term “unaccrued;” thus, a release of an unknown claim does not mean a release of an unaccrued claim.  In theory, this makes sense since a future claim should not be barred.  It is one thing if the facts giving rise to the claim occurred AFTER the execution of the release such that the release does not cover circumstances arising from these facts.  It is another if the facts giving rise to the claim occurred BEFORE the execution of the release.  In the latter case, such claims should be included by virtue of the general release which is the reason why the word “unknown” is included, at least in my opinion.  The Court, however, found differently.

In Falsetto, parties entered into a release that included the release of past and present claims, “known and unknown.”  This is common language in a general release. 

A subsequent dispute arose between the parties and one of the parties counter-sued for fraud based on facts that occurred prior to the date in the release. The party, however, claimed it did not learn about the facts surrounding the fraud until the subsequent lawsuit. The Court held that because a fraud claim “accrues” when the last element occurs or “when the plaintiff knew, or through the exercise of due diligence should have known, of the facts constituting the fraud,” there was a factual issue as to when the fraud claim accrued.  Falsetto, supra (internal citation and quotation omitted).   Accordingly, the party asserting the fraud argued that while the facts may have taken place before the date in the general release, it did not know or learn about the fraud until after-the-fact–the fraud did not accrue until the party learned of the fraud.  The other party is now forced to argue that the party “knew or should have known” about the fraud, which in my opinion, results in a watering down effect of a general release. With a general release, the parties are looking for closure through the date of the release. This closure becomes difficult if the word “unknown” is going to be cast aside if a claim, such as fraud, did not accrue until after-the-fact based on a party learning of the fraud, even though the facts predate the release.

The safe play now is to add the phrase “known or unknown and accrued or unaccrued” in the general release to avoid this issue.   But, in fairness, this language also creates problems because a release through a set date should not operate to bar claims that occur after the release and no party should realistically want a release to be broadly construed to release a future claim that did not arise until after the release. 

 

 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Asserting Basis for Punitive Damages against Corporate Entity

Posted by David Adelstein on May 19, 2019
Trial Perspectives / Comments Off on Asserting Basis for Punitive Damages against Corporate Entity

A defamation claim can serve as a basis to amend a complaint to add punitive damages.   From prior articles (here or here) you know that asserting a basis for punitive damages is not made as of the date the lawsuit is filed.  Rather, a plaintiff must comply with the statutory, procedural requirements and move to amend to assert punitive damages by proffering evidence that there is “a reasonable showing by evidence in the record…which would provide a reasonable basis for recovery of such damages.”  Fla. Stat. s. 768.72(1).  

There are times a plaintiff wants to attribute an employee’s defamation of character to that employee’s company.  The employer is likely the deep pocket so punitive damage against the employer carries much more weight than suing the employee, individually, for punitive damages.

If a plaintiff wants to add a punitive damages claim against a corporate entity based on an employee’s conduct, a reasonable showing must be made that:

(a) The employer, principal, corporation, or other legal entity actively and knowingly participated in such conduct;

(b) The officers, directors, or managers of the employer, principal, corporation, or other legal entity knowingly condoned, ratified, or consented to such conduct; or

(c) The employer, principal, corporation, or other legal entity engaged in conduct that constituted gross negligence and that contributed to the loss, damages, or injury suffered by the claimant.

Tallahassee Memorial Healthcare, Inc. v. Dukes, 44 Fla. L. Weekly D1306c (Fla 1stDCA 2019) quoting Fla. Stat. s. 768.72(3).

Therefore, if you want sue a corporate employer –the deep pocket–for the defamation committed by an employee and assert a basis for punitive damages, you will need to proffer evidence establishing a reasonable showing that corporate management “actively and knowingly participated in such conduct [or] knowingly condoned, ratified, or consented to such conduct [or] engaged in conduct that constituted gross negligence that contributed to the loss…suffered by the claimant.” 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Mutuality of Obligation when it comes to Contractual Attorney’s Fees

Posted by David Adelstein on May 11, 2019
Trial Perspectives / Comments Off on Mutuality of Obligation when it comes to Contractual Attorney’s Fees

The recovery of attorney’s fees is a creature of contract or statute.  When a party prays for attorney’s fees in a lawsuit, that prayer for relief is based on a contractual basis or a statutory basis to attorney’s fees. 

Sometimes, contracts include one-way prevailing party attorney’s fees.  In other words, the contract may provide that if one party (typically, the drafter of the contract) has to enforce the contract, the other party has to pay that party’s attorney’s fees and costs.  But, what if the other party has to enforce the contract or prevails in the other party’s enforcement action.   Is that attorney’s fees provision reciprocal? The answer is YES based on Florida Statute’s s. 57.105(7) mutuality of obligation requirement.  Section 57.105(7) provides:

If a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract.

“The purpose of section 57.105(7) is simply to ensure that each party gets what it gives.  However, “[t]he statute is designed to even the playing field, not expand it beyond the terms of the agreement.”  CalAlantic Group, Inc. v. Dau, 44 Fla. L. Weekly D1004b (Fla. 5thDCA 2019).   “[I]f a claim is within the scope of an attorney’s fees provision, the party defending against that claim is entitled to attorney’s fees pursuant to section 57.105(7) if the party prevails.”  Id

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

 

 

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Suing Third-Party for Spoliation of Evidence

Posted by David Adelstein on May 04, 2019
Trial Perspectives / Comments Off on Suing Third-Party for Spoliation of Evidence

 

There is an independent spoliation of evidence cause of action against a third-party that accrues when that party “though not a party to the underlying action causing the plaintiff’s injuries or damages, loses, misplaces, or destroys evidence critical to that action.”  Shamrock-Shamrock, Inc. v. Remark, 44 Fla. L. Weekly D1093a (Fla. 5th DCA 2019).  This claim is a claim against a third-party – a party the plaintiff did not originally sue– and known as a third-party spoliation of evidence claim.  

If a party, such as a defendant, in the underlying action damages, loses, misplaces, or destroys evidence, this is known as first-party spoliation of evidence and does NOT give rise to an independent cause of action.  Shamrock-Shamrock, supra, n.1.   First-party spoliation can be dealt with directly in the underlying action.

A third-party spoliation of evidence cause of action is not easy to prove and is not intended to be easy to prove.

To establish a [third-party] spoliation cause of action, the plaintiff must prove each of the following six elements: (1) existence of a potential civil action, (2) a legal or contractual duty to preserve evidence which is relevant to the potential civil action, (3) destruction of that evidence, (4) significant impairment in the ability to prove the lawsuit, (5) a causal relationship between the evidence destruction and the inability to prove the lawsuit, and (6) damages. 

Shamrock-Shamrock, supra

The recent decision in Shamrock-Shamrock dealt with the “duty” element, i.e., did the third-party owe a duty to the plaintiff to preserve evidence.  The duty element is based on the “existence of a contract, statute, or properly served discovery request.”  Shamrock-Shamrock, supra.    

In this case, the plaintiff sued the third-party after the third-party obtained a new computer and destroyed the records on her old computer, although she did not know whether her old computer had relevant records to the underlying action.  In the underlying action, she was served with a deposition notice.  That deposition notice/subpoena was later amended a number of times and she was ultimately noticed for deposition duces tecum or with the requirement to bring documents.    Her computer was destroyed and replaced between the time she was originally noticed for deposition (without the duces tecum requirement) and the time she was noticed for deposition with the duces tecum requirement. 

The plaintiff argued that the third-party had a duty to preserve evidence on her computer based on the foreseeability of the underlying lawsuit and her actual knowledge of the lawsuit.  The appellate court, however, and at least in this case, was not going to extend the duty this far – it was not going to extend a third-party’s duty to preserve evidence based on the foreseeability or knowledge of litigation.  The reason being that such a “broad pronouncement would be tantamount to declaring a general legal duty on any nonparty witness to anticipate the needs of others’ lawsuits.”  Shamrock-Shamrock, supra.  

The outcome of whether a duty existed would presumably have been different if the third-party destroyed her computer AFTER she received a subpoena duces tecum for deposition requiring her to produce documentation at the deposition. In this situation, there would be an argument that the duty of preservation arose once she received the subpoena requiring her to produce the documentation.   The plaintiff would still need to prove the other elements to a third-party spoliation of evidence claim, but it would at least establish a duty existed on behalf of the third-party to preserve evidence.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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The Contractual Right to Arbitrate a Dispute Can be Waived

Posted by David Adelstein on April 28, 2019
Trial Perspectives / Comments Off on The Contractual Right to Arbitrate a Dispute Can be Waived

Arbitration is a form of dispute resolution.  Instead of litigating your case in court with a judge, you arbitrate your case with an arbitrator.  Arbitration is less formal and, ideally, the arbitrator will have more of a background relating to the issues driving the dispute.  The parties either agree to an arbitrator or an arbitrator is appointed through a selection process.  With everything, there are pros and cons to arbitration to be discussed in detail with your counsel.  There are many disputes I prefer arbitration and there are many disputes I do not.

Arbitration is a creature of contract so if you are interested in arbitration as your form of dispute resolution then you need to include that in your contract.   However, the contractual right to arbitration can be waived.  Just because parties contractually agree to arbitrate a dispute is not an absolute — the right can be waived.  

The right to arbitration, like any contract, can be waived.  Waiver is the voluntary and relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right.  The right to arbitration must be safeguarded by a party who seeks to rely upon that right, and the party must not act inconsistently with the right.  

Ship IV Harbour Island, LLC v. Boylan, 44 Fla. L. Weekly D831a (Fla. 5th DCA 2019) (internal quotations and citations omitted).

One way a party can waive the right to arbitration is by filing a lawsuit (without a contemporaneous motion to compel arbitration) since filing the lawsuit, in of itself, is inconsistent with the party’s desire to arbitrate the dispute.  

Another way a party can waive the right to arbitrate is by engaging in discovery in a litigation since this would be inconsistent with that party wanting to arbitrate the dispute. See Ship IV Harbour Island, supra (“[E]ngaging in merits discovery is inconsistent with an arbitration request and constitutes a waiver of the right to arbitration.”).  

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Damages Caused by Wrongful Recording of Lis Pendens (Not Founded on Instrument or Statute)

Posted by David Adelstein on April 16, 2019
Trial Perspectives / Comments Off on Damages Caused by Wrongful Recording of Lis Pendens (Not Founded on Instrument or Statute)

What are the damages caused by the WRONGFUL recording of a lis pendens, and I am referring to a lis pendens NOT founded on a duly recorded instrument (e.g., not founded on a mortgage) or a statute (e.g., not founded on a construction or assessment lien)?  These are damages that should be accounted for in a lis pendens bond

The recent opinion in LB Judgment Holdings, LLC v. Boschetti, 44 Fla.L.Weekly D693a (Fla. 3d DCA 2019), relying on Haisfeld v. ACP Florida Holdings, Inc., 629 So.2s 963 (Fla. 4thDCA 1993), explained:

Haisfield looks back at losses that were actually suffered by a property owner from a lis pendens found to be unjustified, rather than at prospective losses that might be suffered. Its methodology is the best yardstick for evaluating the market value component of damages that may result from a wrongfully-filed lis pendensHaisfield instructs that such damages, if any, are measured by any decline in market value between the time the lis pendens is recorded and the time it is discharged. The proponent of a lis pendens might pay no damages if the market value increased substantially during that time. 

Haisfield also recognizes that the expenses of preservation and maintenance of the property subject to a lis pendens may be awarded for the interval between recordation and discharge if the lis pendens is found to be unjustified and the expenses are a consequence of the unjustified lis pendens.

Now, what about loss of investment return / lost opportunity?  For example, what if the lis pendens impacts a sale where there is a net market value for the property of “X” after taking the fair market value and deducting brokerage commissions, mortgage debt, and past due taxes.  This amount would ultimately represent equity in the property that if the party had could then earn interest—in other words, there is a loss of use of that equity.  See, e.g., LB Judgment Holdings, supra (party posting lis pendens bond proffered expert to produce computation to support what lis pendens bond amount should be; although the court required a higher lis pendens bond amount).  However, this loss of investment return / lost opportunity could be a damages methodology in different situations as it pertains to a real property dispute depending on the circumstances of that dispute.

Also, attorney’s fees should be factored into the lis pendens bond that “foreseeably may be incurred in discharging a lis pendens.”   S and T Builders v. Globe Properties, Inc., 944 So.2d 302 (Fla. 2006); accord LB Judgment Holdings, supra (rejecting argument that attorney’s fees include fees incurred during entire litigation as entire litigation is beyond fees incurred in discharging lis pendens).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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