Make Sure Your Expert’s Opinion is Reliable

Posted by David Adelstein on February 15, 2018
Uncategorized / Comments Off on Make Sure Your Expert’s Opinion is Reliable

I use expert witnesses in many cases.  Many.  Experts are an important part of cases, particularly complicated disputes where an expert opinion is absolutely warranted. 

But, as I have discussed in prior articles, an expert’s opinion needs to have a foundation of reliability, which is governed by the Daubert standard.  Without ensuring that an expert’s opinion is reliable, then parties will hire the Joe Blows of the world, pay them a minimal dollar amount, for an outrageous, unsupported, and unqualified opinion.  This, of course, provides no value.  Hence, the Daubert standard or test “requires that ‘[t]he testimony is based upon sufficient facts or data’; ‘[t]he testimony is the product of reliable principles and methods’; and ‘[t]he witness has applied the principles and methods reliably to the facts of the case.‘” Sanchez v. Body & Soul Retreat, LLC, 43 Fla. L. Weekly, 43 Fla. L. Weekly D359b (Fla. 4th DCA 2018) (quoting Fla. Stat. s. 90.702).  If the opinion is not reliable, it is not admissible.

In Sanchez, the defendants sought to use an expert doctor.  However, the doctor was going to render an opinion based on a twenty minute exam of the plaintiff.  He reviewed no pre-incident photographs of the plaintiff before an important event at-issue to determine the plaintiff’s pre-incident condition.  He further made improper assumptions and inferences based on his review of medical records; however, his assumptions were not factually supported by the medical records, i.e., they were speculative.  

Based on this, the plaintiff moved in limine to preclude this doctor’s expert testimony and the trial court granted the motion in limine, which was affirmed by the appellate court.  This meant the doctor was NOT able to render an expert opinion at trial, i.e., the defendant had no expert opinion to counter the plaintiff’s expert opinion.  His opinion did not pass Daubert’s test–the opinion was NOT based on any reliable methodology and was further based on factually unsupported assumptions.

If you are going to use an expert, make sure the expert is prepared and has the relevant information to render a reliable opinion.  This doesn’t mean the expert needs to review everything under the sun.  But, this does mean the expert needs to be in a position to render an opinion based on factually supported assumptions and reliable methodology. Paying an expert the bare minimum hoping that an expert can render an opinion on an elaborate or complicated issue can come back and backfire, as the defendant in this case learned. The expert may very well be the key to your claim or defense so take the time to ensure the opinion passes the smell test!!

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.

 

 

 

Tags: , , , , ,

Homestead Protection does Not Attach to Corporation (as Judgment Debtor Found Out!)

Posted by David Adelstein on February 11, 2018
Trial Perspectives / Comments Off on Homestead Protection does Not Attach to Corporation (as Judgment Debtor Found Out!)

There are times where (potential) judgment debtors try to be way to crafty.  And, guess what, it doesn’t always work!  A recent case exemplifies this point.

In DeJesus v. A.M.J.R.K. Corp., 43 Fla. L. Weekly D331a (Fla. 2d DCA 2017), a plaintiff sued a defendant corporation in a personal injury action.  During the litigation, the defendant corporation transferred residential property it owned to its sole shareholder.  This was done through a quitclaim deed and was obviously done as a down and dirty asset protection technique.  Of course, the quitclaim deed lacked consideration and was defective – the transfer was invalid.

The plaintiff recovered a judgment against the defendant and initiated proceedings supplementary, as a judgment creditor, to collect on the judgment.  (Getting the judgment is one thing.  Collecting on the judgment is another and oftentimes the most important consideration.). Plaintiff asserted a claim against the shareholder arguing that the transfer of the property was not effective and was done to prevent the forced sale of the asset owned by the company.  The trial court held that even though the conveyance of the property was ineffective, the sole shareholder was entitled to homestead protection on the property, meaning it was protected from a forced sale of the property.

On appeal, however, the appellate court reversed.  The property was owned by the corporation (the transfer was ineffective) and a corporation is not entitled to homestead protection.  Just because the sole shareholder lived in the property did not change the fact that the property was owned by a corporation; it also does not give the sole shareholder an interest in the corporation’s property.  Ultimately, this will mean that without the homestead protection the judgment creditor should be able to force the sale of the residential property, which is likely the only asset owned by the corporation.

If you are a defendant in a lawsuit, doing things down and dirty doesn’t always work, as the defendant in this case may have found out.  Make sure to consult with counsel so your interests are best protected.  It is highly likely that the defendant in this case considered the advice of counsel but did things notwithstanding the advice.  Perhaps the defendant did not even consult with counsel thinking once the property was transferred during the litigation the corporation was judgment-proof.  

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.

 

Tags: , , , ,

Requests for Admissions as a Discovery Tool

Posted by David Adelstein on January 30, 2018
Trial Perspectives / Comments Off on Requests for Admissions as a Discovery Tool

Requests for Admissions are one of my favorite discovery tools in litigation. Requests for Admissions are designed to narrow the disputed facts by requiring the recipient of the request to admit or deny the requested fact. These should be served with the objective of having the recipient admit the requested fact.   If the recipient does admit the fact, then the fact is a stipulated fact – it does not need to be proved at trial because it is stipulated to.  

Florida Rule of Civil Procedure 1.380(c) provides:

(c) Expenses on Failure to Admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under rule 1.370 and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may file a motion for an order requiring the other party to pay the requesting party the reasonable expenses incurred in making that proof, which may include attorneys’ fees. The court shall issue such an order at the time a party requesting the admissions proves the genuineness of the document or the truth of the matter, upon motion by the requesting party, unless it finds that (1) the request was held objectionable pursuant to rule 1.370(a), (2) the admission sought was of no substantial importance, or (3) there was other good reason for the failure to admit.

Under this rule, if a recipient denies a request for admission and the requester proves the truth of the matter, the requester is entitled to expenses inclusive of attorney’s fees. You would think this rule is designed to motivate a party to truly admit a fact versus denying a fact to avoid the stipulation. But, not so fast…

In a recent case, R.J. Reynolds Tobacco Co. v. Ward, 43 Fla.L.Weekly D252b (Fla. 1st DCA 2018), the court awarded the requester $981,116.23 in attorney’s fees and costs under this rule by proving the truth of the matter of the recipient’s denials to requests for admissions. The appellate court, however, reversed maintaining that if the recipient has a good reason to deny the request, such fees and costs cannot be awarded.  For instance, if the recipient denies a hotly contested fact in the case and is later proved wrong, fees and costs cannot be awarded under this rule because the recipient had a good reason to deny the request.

There really is not a bright line standard as to what constitutes a good reason to deny and what does not, potentially watering down the sanction for a party’s denial of a fact. Nevertheless, this rule is not designed to shift fees and costs to the recipient simply because the party does not stipulate to a contested fact.

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.

Tags: , , , ,

Quick Note: Appeal of Jury Instructions with Wrong Burden of Proof

Posted by David Adelstein on January 24, 2018
Appeal, Burden of Proof / Comments Off on Quick Note: Appeal of Jury Instructions with Wrong Burden of Proof

I recently talked about the burden of proof when it comes to an all-risk property insurance policy.  This article is important for insureds that have a property insurance claim and are dealing with certain insurance coverage issues with their property insurer. The case at-issue discussed in the article dealt with an appeal of the jury instructions that were read to the jury.  Specifically, the issue was whether the trial court applied the right burden of proof in the jury instructions.  This issue is reviewed under a de novo standard of appellate review.  See Jones v. Federated National Ins. Co., 43 Fla. L. Weekly D164a (Fla. 4th DCA 2018) citing Daniels v. State, 121 So.3d 409, 413 (Fla. 2013).  

The appellate court found the the trial court’s jury instructions were erroneous meaning the case was remanded back to the trial court for a new trial (with correct jury instructions regarding the burden of proof).

It is important to note that at the charging conference between counsel and the judge to discuss the jury instructions that will be read to the jury, the insured’s lawyer objected to the jury instructions that the judge was going to read to the jury.  This charging conference is important and, as the insured’s lawyer did in this case, it is crucial to object to any jury instruction that is incorrect and/or applies the wrong burden of proof. 

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.

Tags: , , , , ,

Proving Defense of Unilateral Mistake

Posted by David Adelstein on January 24, 2018
Trial Perspectives / Comments Off on Proving Defense of Unilateral Mistake

One affirmative defense to a breach of contract claim is the defense known as “unilateral mistake.” This is not an easy defense to prove and the party asserting this as a defense has the burden to prove it. Under this defense, the argument is that the contract cannot be enforced because there was a unilateral mistake that induced the party into entering into the contract.

To prove the affirmative defense of unilateral mistake, the party asserting this defense must prove the following four elements:

(1) [T]he mistake was induced by the party seeking to benefit from the mistake, (2) there is no negligence or want of due care on the part of the party seeking a return to the status quo, (3) denial of release from the agreement would be inequitable, and (4) the position of the opposing party has not so changed that granting the relief would be unjust. ”  DePrince v. Starboard Cruise Services, Inc., 43 Fla. L. Weekly D171b (Fla. 3d DCA 2018) quoting Rachid v. Perez, 26 So.3d 70, 72 (Fla. 3d DCA 2010).

The first element – the inducement element—requires making a false statement of a material fact or some other action that induced the mistake. DePrince, supra. Notably, the other party’s knowledge of an error is not enough and is different than inducement. See id.

The second element – the negligence element—requires the party that made the mistake (and acted on the inducement) not to have acted negligently in making the mistake.

For example, in DePrince, a cruise ship’s jewelry store sold a diamond for $235,000 when the diamond was actually worth millions. The ship sought to avoid the transaction and the buyer sued. The ship asserted unilateral mistake as an affirmative defense, meaning the ship needed to prove the aforementioned four elements required for this defense.

 

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.

Tags: ,

Public Body is Afforded Sovereign Immunity

Posted by David Adelstein on January 14, 2018
Trial Perspectives / Comments Off on Public Body is Afforded Sovereign Immunity

When it comes to pursuing a claim against a public body in Florida, you need to consider the application of sovereign immunity. This stands for the premise that the “king can do no wrong.”  Sovereign immunity is an important issue and will dictate the types of claims you pursue against a public body, whether you pursue a claim against a public body, and the conditions precedent to pursuing such a claim against a public body.

Public bodies are afforded sovereign immunity with a limited waiver of sovereign immunity set forth in Florida Statute s. 768.28.   The limited waiver of sovereign immunity applies to common law tort claims (e.g., negligence-type claims). See Curcio v. State Dept. of Lottery, 164 So.3d 750, 754 (Fla. 1st DCA 2015). There is no limited waiver of sovereign immunity for statutory claims such as unfair and deceptive trade practices and misleading advertising. See id. (“[S]overeign immunity has not been waived for the unfair and deceptive trade practices and misleading advertising claims….These claims are not common law tort claims subject to the waiver of sovereign immunity in section 768.28, Florida Statutes….”). Ultimately, this means sovereign immunity applies to bar such statutory claims against a public body. See id. (finding that public body was entitled to sovereign immunity for statutory claims of unfair and deceptive trade practices and misleading advertising).

Notwithstanding the above, sovereign immunity does not apply to breach of contract claims against a public body. See id. “[W]here the state [public body] has entered into a contract fairly authorized by the powers granted by general law, the defense of sovereign immunity will not protect the state from action arising from the state’s breach of that contract.” Pan-Am Tobacco Corp. v. Dept. of Corrections, 471 So.2d 4, 5 (Fla. 1984).

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.

Tags: , ,

Do Yourself a Favor: Have a Court Reporter at Important Hearings

Posted by David Adelstein on January 09, 2018
Appeal, Trial Perspectives / Comments Off on Do Yourself a Favor: Have a Court Reporter at Important Hearings

Make sure to have a court reporter at any substantive hearing, particularly a hearing that could result in an appeal.

Here is why. In a slip and fall action, Lago v. Costco Wholesale Corp., 42 Fla. L. Weekly D2599a (Fla. 3d DCA 2017), the trial court granted summary judgment in favor of the defendant. The trial court’s summary judgment order provided NO elaboration or reasoning as to the basis of granting the summary judgment. It was probably a simple order that stated that the defendant’s motion for summary judgment was granted. This does not provide a whole lot of comfort to parties or even practitioners that receive an order with no reasoning. It certainly does not bring me any comfort.

The plaintiff appealed and argued that the trial court erred in entering an unelaborated order. The appellate court disagreed on this point: “‘[w]hile it might be desirable for the trial judge to specify his reasons for granting or denying a summary judgment there does not appear to be any rule or decision that requires him to do so.’” Lago, supra, quoting Newman v. Shore, 206 So.2d 279, 280 (Fla. 3d DCA 1968). Irrespective of the lack of stated reasoning in the order, the appellate court found that the reasoning was clear when reviewing the defendant’s motion for summary judgment, the plaintiff’s response, and the transcribed summary judgment hearing. (Remember, a summary judgment is reviewed on appeal with a de novo standard of appellate review.)

My guess is the transcribed summary judgment hearing was important and it underscores the importance of having a court reporter at a hearing for this purpose. If the trial court does not provide its reasoning in an order, it is not always clear what the reasoning is that led to the ruling. Having a court reporter at the hearing allows the appellate court to review the arguments raised at the hearing including any pronouncements by the trial court at the hearing.

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.

Tags: , , ,

Civil Recourse against Issuer of Worthless Check

Posted by David Adelstein on December 30, 2017
Trial Perspectives / Comments Off on Civil Recourse against Issuer of Worthless Check

Florida has a worthless check statute (Florida Statute s. 68.065) that authorizes treble damages plus the original amount of the check owing if a party issues a worthless check.  This statute affords a strong civil remedy for a party (payee) that receives a worthless check. 

The statute provides in material portion:

In any civil action brought for the purpose of collecting a payment instrument, the payment of which is refused by the drawee because of lack of funds, lack of credit, or lack of an account, or where the maker or drawer stops payment on the instrument with intent to defraud, and where the maker or drawer fails to pay the amount owing, in cash, to the payee within 30 days after a written demand therefor, as provided in subsection (4), the maker or drawer is liable to the payee, in addition to the amount owing upon such payment instrument, for damages of triple the amount so owing.

Fla. Stat. s. 68.065(3)(a).

This is certainly a hefty punishment for issuing a worthless check. And, of course, this serves as a hopeful deterrent for a party not to issue a worthless check.

As the statute states, one way to issue a worthless check is where the maker “stops payment on the instrument with intent to defraud.” The recipient of the check (payee) still has to prove that the maker intended to defraud him/her/it by stopping payment on the check. This is typically a factual issue. See Sanders Farm of Ocala, Inc. v. Bay Area Truck Sales, Inc., 43 Fla. L. Weekly D73a (Fla. 2d DCA 2017) (reversing summary judgment in favor of payee that received worthless check on de novo standard of appellate review because there was issue of fact as to whether maker stopped payment on a check with intent to defraud payee).

 

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.Civ

Tags: , ,

Quick Note: Order Denying Attorney’s Fees Reviewed De Novo

Posted by David Adelstein on December 17, 2017
Appeal / Comments Off on Quick Note: Order Denying Attorney’s Fees Reviewed De Novo

An order denying a motion for attorney’s fees is generally reviewed under a de novo standard of appellate review.  In a recent case I wrote about dealing with a coverage dispute between an insured and a property insurer, both the insured and insurer moved for attorney’s fees after the jury’s verdict.  

In this case, the insured moved for attorney’s fees pursuant to statute — Florida Statute s. 627.428.  The trial court denied the insured’s motion.  The insurer moved for attorney’s fees pursuant to a proposal for settlement / offer of judgment it served under Florida Statute s. 768.79.  The trial court denied the insurer’s motion too.  Both orders were appealed and reviewed by the appellate court under a de novo standard of appellate review.

 

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.

 

Tags: , ,

New Trial Warranted for Prejudicially Inflaming the Jury

Posted by David Adelstein on December 16, 2017
Trial Perspectives / Comments Off on New Trial Warranted for Prejudicially Inflaming the Jury

Jury trials do contain a degree of theatrics, particularly when it comes to opening and closing statements. The objective is to persuasively demonstrate to the jury your theme of the dispute – what the evidence will show (in the opening statement) and what the evidence reveals that supports your theme and the application of the law (in the closing statement). This does not mean, however, that you can intentionally and prejudicially inflame the passions of the jury. Doing so will result in a new trial, and oftentimes, an unnecessary new trial.

An example of this can be found in the case TT of Indian River, Inc. v. Fortson, 42 Fla. L. Weekly D2655a (Fla. 5th DCA 2017). This case involved an automobile accident where liability had been stipulated. The defendant was not interested in trying the liability of the case. The jury trial was ONLY as to damages. Liability was therefore irrelevant. Nonetheless, at trial, the plaintiff’s counsel, over the objection of the defense, called a corporate representative of the defendant and inquired as to issues concerning liability to create the perception that the defendant engaged in indifference and misconduct regarding the underlying automobile accident. The plaintiff also used the term of “guilt” to describe the defendant’s stipulation as to liability and the term of “innocence” to describe the plaintiff’s conduct.   After a final judgment was rendered against the defendant in accordance with the jury’ verdict, the defendant appealed for a new trial on damages. The appellate court agreed reversing the final judgment and mandating a new trial on damages due to conduct designed to inflame the jury.

When a defendant admits the entire responsibility for an accident and only the amount of damages is at issue, evidence regarding liability is irrelevant and prejudicial.  Moreover, as this court has recognized, it is improper to refer to “guilt” or “innocence” at a civil trial on negligence

Fortson, supra (internal quotations and citations 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.

Tags: , , , ,

Contact Me Now

Prove YOUR Case!

Contact:

David Adelstein ♦

(954) 361-4720 ♦

dadelstein@gmail.com