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*The below content is posted to the HPS website for archival purposes. This content did not previously appear in an issue of the Barrister magazine. 

By Debra P. Klauber, Esq.

Standard for a motion for new trial is whether the verdict was against the manifest weight of the evidence.

In this medical malpractice case, following a defense verdict, the injured plaintiff filed a motion for new trial. The trial judge denied the motion, claiming that he was required to do so because, he believed, he was compelled to do so by the Frye standard. The appellate court reversed and remanded because it was unclear as to whether the judge applied the correct legal standard to the motion for new trial. The applicable legal standard was not Frye, or Daubert, but the simple question of whether the jury’s verdict was against the manifest weight of the evidence. Lively v. Grandhige, 2D19-1713, 46 Fla. L. Weekly D589 (Fla. 2d DCA March 17, 2021).

State and federal courts have concurrent jurisdiction over action alleging legal malpractice committed during federal bankruptcy proceedings.

The Third District was faced with the question of whether the federal courts have exclusive or concurrent jurisdiction over a legal malpractice case that arises out of purported negligence during federal bankruptcy proceedings. After a detailed discussion of the jurisdictional statutes, the court concluded that the legal malpractice claim was not subject to the exclusive jurisdiction of the federal court, but could be litigated in state court. Calderin v. Quartz Hill Mining, LLC, 3D20-1612, 46 Fla. L. Weekly D527 (Fla. 3d DCA March 10, 2021).

Temporary injunctions require specific findings for each element.

The Florida courts have expressly held that an order granting a temporary injunction must include “specific findings” on each of the elements needed for the issuance of an injunction. The trial court’s order, which summarily concluded that “the necessary prerequisites” had been met fell “far short on the ‘specific findings’ requirement.” The order granting the injunction was also reversed because the trial court set a bond amount without conducting an evidentiary hearing. Phelan v. Trifactor Solutions, LLC, 2D20-1468, 46 Fla. L. Weekly D503 (Fla. 2d DCA March 5, 2021).

What happens if a plaintiff fails to file an amended complaint by the deadline provided by the court? Maybe nothing.

Picture this. The trial court agrees with your motion to dismiss and but allows the plaintiff an opportunity to amend the complaint within ten days. The plaintiff fails to file an amended complaint and you move to dismiss the case entirely. Is the case subject to dismissal? Not unless the order allowing the plaintiff the opportunity to amend also informed the plaintiff that the failure to do so would result in dismissal. Gonzalez v. Ferco Motors Corp., 3D20-208, 46 Fla. L. Weekly D453 (Fla. 3d DCA Feb. 24, 2021).

Factual disputes often preclude summary judgment on the issue of a hospital’s vicarious responsibility for a physician.

In this medical malpractice action, the patient sued an on-call general surgeon provided by the hospital, and further claimed that the hospital was vicariously responsible for him. The hospital sought a summary judgment, arguing that the physician was not an agent or employee, but an independent contractor. The trial court granted the summary judgment but the appellate court reversed. Because the documents executed by the patient did not specifically state that the doctor (or on-call surgeons) were neither employees nor agents, and did not specify which services were independent from the hospital, the appellate court determined that questions of fact remained. The court also focused on the “lack of choice” on the part of the patient and the fact that the patient relied on a physician provided to him by the hospital. Luebbert v. Adventist Health System/Sunbelt, Inc., 5D19-2824 46 Fla. L. Weekly D305 (Fla. 5th DCA Feb. 5, 2021).

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