A defamation per se action opens the door for punitive damages even if actual damages cannot be shown or proven.  Lawnwood Medical Center, Inc. v. Sadow, 43 So.3d 710, 729 (Fla. 4^th DCA 2010).   This is because malice is presumed and, thus, the statements are presumed harmful as a matter of law.  Id.  However, “proof of liability for defamation per se requires a showing that the declarant knew or should have known the defamatory statement was not true.”  Tilton v. Wrobel, 198 So.3d 909 (Fla. 4^th DCA 2016).  Hence, while a claimant may not be able to prove actual damages as the result of the defamatory (slanderous or libelous) per se action, the plaintiff can still potentially recover punitive damages.  It is this reason why parties oftentimes pursue defamation per se actions.

 “‘[A] publication is libelous per se, or actionable per se, if, when considered alone without innuendo: (1) it charges that a person has committed an infamous crime; (2) it charges a person with having an infectious disease; (3) it tends to subject one to hatred, distrust, ridicule, contempt, or disgrace; or (4) it tends to injure one in his trade or profession.’” Blake v. Guistibelli, 182 So.3d 881, 884 (Fla. 4^th DCA 2016) quoting Richard v. Gray, 62 So.2d 597, 598 (Fla. 1953).

Libel concerns the written publication of false statements.  Dunn v. Air Line Pilots Ass’n, 193 F.3d 1185, 1191 (11^th Cir. 1999)

“Slander is a spoken or oral defamation of another which is published to others and which tends to damage that person’s reputation, ability to conduct that person’s business or profession, and which holds that person up to disgrace and humiliation.”  Scott v. Busch, 907 So.2d 662, 666 (Fla. 5^th DCA 2005).

There is a lot more to defamation and if you have been the victim of a truly defamatory per se action, consult with counsel so that you understand your rights moving forward.

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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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.

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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.

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