Exceptions to Rule that Subsequent Remedial Measures are Inadmissible

In a recent case dealing with a design defect in a motorcycle, where a product safety recall was issued, the appellate court gave a good discussion on what's known as a "subsequent remedial measure." Consider this discussion on the inadmissibility of subsequent remedial measures as well as EXCEPTIONS to this rule of inadmissibility: Even if relevant, Suzuki [motorcycle manufacturer] asserts that the recall is a subsequent remedial measure inadmissible under section 90.407, Florida Statutes. Section 90.407 precludes evidence of remedial measures from being used to establish negligence or a product defect. See § 90.407, Fla. Stat. (“Evidence of measures taken...

24 January

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Don’t Create an Attorney’s Fees Waiver Argument

Posted by David Adelstein

in Trial Perspectives

Here’s a situation you’d like to avoid because it creates an unnecessary waiver argument with respect to attorney’s fees. In a dispute between a condominium association and unit owner, the unit owner sued his association for injunctive relief, negligence, and breach of contract. The parties entered an agreed order on the unit owner’s injunctive relief claim against the association, and identified the unit owner as the prevailing party. The parties then entered an agreed order that granted the unit owner entitlement to fees and an evidentiary was held on the fees. The trial court entered a judgment as to the attorney's...

17 March

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Enforceable Settlement Does Not Need to be Signed and can be Agreed by Attorneys

Posted by David Adelstein

in Trial Perspectives

“To be enforceable, an agreement must be sufficiently specific, and reflect assent by the parties to all essential terms. . . . Where essential terms of an agreement remain open, subject to future negotiation, there can be no enforceable contract.” Portner v. Koppel, 49 Fla.L.Weekly D599a (Fla. 4th DCA 2024) (citation and quotation omitted). This applies to settlement agreements that are governed under contract law principles. Portner, supra. “Emails between attorneys can constitute an enforceable settlement agreement.” Id. Sometimes, a party may have “buyer’s remorse” and refuse to sign a settlement agreement. This fact alone does NOT mean there is not a...

28 September

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Waiver is a Voluntary Relinquishment of a Known Right that Must be Proven with a Clear Showing

Posted by David Adelstein

in Standard of Review, Trial Perspectives

The affirmative defense of waiver is a commonly pled affirmative defense. A recent Florida appellate opinion, Smith v. Carlton, 2022 WL 4390651 (Fla. 5th DCA 2022), discusses waiver and its application under Florida law. The case focuses on an implied waiver, which is the most common form of a waiver defense or argument since it is premised on a party's conduct and actions. (An express waiver is easy because there is an expressed intent to waive the requirement.) This case dealt with the sale of a horse farm. Prior to closing, the Buyers did a walk-through of the property and saw...

28 April

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The Contractual Right to Arbitrate a Dispute Can be Waived

Posted by David Adelstein

in Trial Perspectives

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...

waiver Tag

Exceptions to Rule that Subsequent Remedial Measures are Inadmissible

Don’t Create an Attorney’s Fees Waiver Argument

Enforceable Settlement Does Not Need to be Signed and can be Agreed by Attorneys

Waiver is a Voluntary Relinquishment of a Known Right that Must be Proven with a Clear Showing

The Contractual Right to Arbitrate a Dispute Can be Waived