Florida’s Uniform Trade Secrets Act is contained in Florida Statutes Chapter 688.  This Act authorizes  courts to take reasonable steps to preserve the confidentiality of trade secrets including ordering injunctive relief to prevent a party (such as a former employee) from misappropriating trade secrets.  Norton v. American LED Technology, Inc., 43 Fla.L.Weekly D951a (Fla. 1st DCA 2018).   However, as confirmed by the First District in Norton, Florida’s Uniform Trade Secrets Act cannot be used as a sword to restrict or stifle direct competition.  In other words, it is improper for a trial court to issue a temporary injunction restricting direct competition based on Florida’s Uniform Trade Secrets Act.  Norton, supra.

Please make sure to consult with counsel if you have an issue dealing with trade secrets or the preservation of the same.  This includes your rights when you believe a party is misappropriating your trade secrets. 

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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Juries do not always award huge jury verdicts in favor of plaintiffs in personal injury actions. Sure, sometimes they definitely do. But it is also true that sometimes they do not. Juries can find that the (i) defendant was not liable, (ii) the plaintiff was comparatively liable, or (iii) that the plaintiff’s damages were relatively minor. As to the latter two points, this was the issue in Black v. Cohen, 43 Fla. L. Weekly D903e (Fla. 4^th DCA 2018), involving an automobile accident, where the trial court granted plaintiff’s motion for a new trial based on an inadequate jury verdict.

In this case, there was a relatively minor rear end automobile collision in 2007 causing $1,600 in damages to plaintiff’s bumper. Thereafter, plaintiff was having right-sided neck pain and a cervical fusion was recommended and ultimately performed in 2011. Plaintiff’s orthopedic surgeon opined that the car accident caused her disc herniation that led to her surgery. Plaintiff’s medical bills totaled $240,000. During trial, plaintiff’s attorney asked the jury to award the $240,000 in past medical expenses, $40,000 for future medical visits, a minimum of $700,000 for past pain and suffering, and a minimum of $200,000 for future pain and suffering. Suffering disc herniation is a very serious injury, which is why consulting with an Orthopedic surgeon as soon as possible is certainly the right course of action.

The defense argued with expert testimony that plaintiff’s x-rays taken right after the accident were normal showing only arthritic or degenerative changes, and that plaintiff’s injuries were not permanent. The cervical fusion performed in 2011 was not attributed to the 2007 car accident.

The jury found that both plaintiff and defendant were equally liable for the accident, plaintiff’s injuries were not permanent, and awarded plaintiff only $18,506 in past medical bills. Nothing was awarded to plaintiff for pain and suffering.

Plaintiff moved for a new trial regarding the inadequate jury verdict. One argument raised was that during the trial the defendant took the stand to testify that he was a medical student and further doing research on cancer to receive a PhD. Plaintiff claimed this was elicited simply to prejudicially influence the jury in favor of the defense; the defense countered that this was permissible evidence to humanize the defendant so that a jury can assess his credibility. The court agreed with plaintiff’s motion and ordered a new trial as the result of the inadequate jury award. The defense appealed the trial court’s order granting a new trial.

Regarding the standard of appellate standard of review regarding this issue of an inadequate jury award, the appellate court quoted:

When reviewing the order granting a new trial, an appellate court must recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion. If an appellate court determines that reasonable persons could differ as to the propriety of the action taken by the trial court, there can be no finding of an abuse of discretion. The fact that there may be substantial, competent evidence in the record to support the jury verdict does not necessarily demonstrate that the trial judge abused his or her discretion.

. . . .

Regarding inadequate or excessive verdicts, this ground is a corollary of the ground asserting that the verdict is contrary to the manifest weight of the evidence. A new trial may be ordered on the grounds that the verdict is excessive or inadequate when (1) the verdict shocks the judicial conscience or (2) the jury has been unduly influenced by passion or prejudice. . . . Regardless of whether a new trial was ordered because the verdict was excessive or inadequate or was contrary to the manifest weight of the evidence, the appellate court must employ the reasonableness test to determine whether the trial judge abused his or her discretion.

Black, supra, quoting Brown v. Estate of Stuckey, 749 So.2d 490, 497-98 (Fla. 1999).

Based on this standard of review, the appellate court reversed the trial court’s order granting a new trial and remanded the case back to the trial court to enter final judgment consistent with the jury’s (nominal) verdict:

Even if we consider the ruling as being within the “broad discretion” afforded to trial courts in ruling on motions for new trial, we would still conclude that the court abused its discretion in ordering a new trial based upon the comments about Black’s [defendant’s] cancer research. We simply cannot conclude that mention of Black’s cancer research was so prejudicial that the jury was misled and misperceived the weight of the evidence because of it and decided the case upon the fact that the defendant did cancer research. No reasonable person would conclude that the verdict was fatally tainted by this single remark.

—

We are not bound by any findings and credibility determinations, because the trial court made none. The court did not explain or analyze why the verdict was “grossly inadequate.” The trial court made no analysis of the testimony of the witnesses. Implicit in its finding of gross inadequacy must be a finding that no evidence supported the jury’s finding of no permanency; however, without an analysis of the evidence in the case and how the trial court would have come to that conclusion, the trial court’s decision cannot be sustained. On the record before us, the issue of liability and permanency were hotly contested, and the court has shed no light as to why the defense’s evidence supporting its case should be rejected. Therefore, we conclude that the court abused its broad discretion in ordering a new trial.

Black, supra.

As this case demonstrates, a new trial will not automatically be warranted just because the jury rendered what a plaintiff perceives to be an inadequate jury verdict.

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 recently wrote an article how there are times when a party is seeking reimbursement for solely economic losses, their best recourse is an equitable subrogation claim.   The article also discusses the application of equitable subrogation dealing with an actual fact pattern.

Equitable subrogation, you say?  In an equitable subrogation claim, a party pays for damages (or a debt) it believes were caused by another party.  The party then pursues reimbursement against the party it believes primarily responsible for the damages or debt.  No one wants to pay for damages or a debt it believes were caused by a third party!

There are five (5) elements to an equitable subrogation claim that the subrogee, the party that paid off the damages or debt, must prove:

1. The party (subrogee) made the payment to protects its own interests;
2. The party (subrogee) did not volunteer the payment — it was not making the payment as a volunteer;
3. The party (subrogee) was not primarily liable for the damages or debt it seeks reimbursement for; 
4. The party (subrogee) paid off the entire debt it seeks reimbursement for; and
5. Subrogation would not work any injustice, i.e., it would not be unfair.

Tank Tech, Inc. v. Valley Tank Testing, L.L.C., 43 Fla.L.Weekly D868a (Fla. 2d DCA 2018) quoting Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 646 (Fla. 1999).

Notably, in Tank Tech, Inc., the trial court granted summary judgment against the party pursing equitable subrogation. Summary judgment was granted in favor of the defendant.  The appellate court reversed for the factual reasons discussed in the article.  

As you may know from reading this blog, a motion for summary judgment is reviewed on appeal under a de novo standard of appellate review.  Summary judgment is only proper if there are no genuine issues of material fact and the party moving for summary judgment is entitled to a judgment as a matter of law.

“Where the defendant is the party moving for summary judgment, as here, ‘neither the trial court nor this court determines whether the plaintiff can prove [its] case; our function solely is to determine whether the pleadings, depositions, and affidavits conclusively show that the plaintiff cannot prove [its] case.’”  Tank Tech, Inc., supra, quoting Crandall v. S.W. Fla. Blood Bank, Inc., 581 So.2d 593, 595 (Fla. 2d DCA 1991).  The takeaway is that a plaintiff is NOT required to prove its entire case when responding to a defendant’s motion for summary judgment and the court’s job is not to determine whether the plaintiff can prove its case at trial.  Rather, the job is to determine whether the the undisputed material facts “conclusively show that the plaintiff cannot prove its case.”  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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Lawyers get it.  Generally, people do not like to spend money on lawyers.  There are certainly exceptions where clients value the relationship with a lawyer knowing that the services provided and advice given is worth the fees.  Ideally, this should be the sentiment from anyone that feels they need a lawyer, even if the advice paid for is to steer you in a more focused direction based on the pros/cons of the claims and issues you are dealing with.  But, money is important and decisions cannot be made in a vacuum without understanding associated costs.  

I get that not everyone wants to have to deal with the potential unknown of hourly lawyer billing, the traditional legal model.  There are creative or innovative models out there outside of hourly lawyer billing that can be explored in certain matters, but the dynamic of that model has to work for both the client and lawyer.  If you are interested in learning a little more about the nuts and bolts of creative or innovative attorney’s fee models where there is a focus on results, performance, or meeting budgetary or target parameters, check out the ebook above. Look, there is no one-size-fits-all model.  The key takeaway is that creativity can be implemented in a business model so the attorney-client relationship works for both the attorney and the client!

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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If you have read prior articles, you know what a motion for directed verdict is and that it is routinely moved for in jury trials, as it should be. It is also not a motion commonly granted. But, this does not mean there are no appellate rights if a court denies a motion for directed verdict. A denial of a trial court’s motion for directed verdict is reviewed under a de novo standard of appellate review.

An example can be found in the slip-and-fall case, Publix Supermarkets v. Bellaiche, 43 Fla. L. Weekly D673a (Fla. 3d DCA 2018), where an appellate court reversed a trial court’s denial of a motion for directed verdict and remanded the case back to the trial court to enter judgment in favor of the defendant. A devastating appellate outcome for a plaintiff that was victorious in the underlying jury trial.

In this case, an older couple was shopping at Publix and the wife slipped on water on the ground. The husband did not witness the incident. Both the husband and wife did testify that they saw an employee with a mop in his hand after the fall, but neither could testify the mop was wet or that the employee was using the mop. However, video evidence revealed that the presumed employee only had been using a broom and dustpan. And, the store manager testified that Publix did not use pre-soaked cotton mops but used dry rayon mops for its floors.

The jury nevertheless returned a verdict for the wife for over $1.5 million in damages.

On appeal, Publix claimed, among other things, that the trial court erred by not granting its motion for directed verdict. The appellate court agreed. The evidence at trial did not demonstrate that Publix had any actual knowledge of the water on the floor prompting the dangerous condition that the wife slipped on. The evidence also did not demonstrate that Publix’s own employee caused the condition. This was important evidence because the plaintiff was required to prove (remember, the plaintiff had the burden of proof) “that Publix had actual or constructive knowledge of a dangerous condition created by a transient foreign substance that caused Bellaiche [plaintiff] to slip and fall.” Publix Supermarkets, supra. The plaintiff argued that Publix had actual knowledge because she and her husband both saw a man with a mop and he caused the water to be on the floor. But, she only saw the man with the alleged mop after she fell. “A jury may not stack inferences to determine that a party had actual knowledge of a dangerous condition, nor is the mere possibility of causation sufficient to establish liability. If the only way a jury can find that a party was negligent is by stacking inferences, ‘then a directed verdict is warranted.’” Publix Supermarkets, supra, (internal citations omitted).

If you’ve had an accident and been hurt on someone else’s property in Tennessee, you may wish to get in touch with someone like a Premises Liability Lawyer in Morristown to help you with your potential claim.

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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