The below content previously appeared in the January/February issue of the Broward County Bar Association’s Barrister magazine.
Florida Supreme Court modifies Uniform Guidelines for Taxation of Costs in Civil Actions.
The Florida Supreme Court amended the guidelines governing the taxation of costs in civil actions for the first time since 2005. These amendments are “largely for clarification purposes” and include changes to allow for the recovery of costs related to court testimony (as opposed to trial testimony), the costs of mediation and court-ordered non-binding arbitration. The changes further clarify the recovery of testifying experts to include: conducting examinations, investigations, tests and research; preparing reports; and for preparing for deposition, arbitration or trial testimony. In re: Amendments to Florida Rules of Civil Procedure – Uniform Guidelines for Taxation of Costs, SC21-1581, 47 Fla. L. Weekly S277 (Fla. November 10, 2022).
Florida Supreme Court addresses “excessive” punitive damage awards, holding that a trial court must evaluate whether a punitive damage award bears a “reasonable relation” to the amount of damages proved and the injury suffered by the plaintiff.
In this wrongful death action against RJ Reynolds, the jury awarded damages to the decedent’s adult children in the amount of $100,000 each, which was reduced by 50% based on the decedent’s comparative negligence. The jury also found that punitive damages were warranted and awarded $16 million dollars. RJ Reynolds filed a motion for a new trial or remittitur arguing that the punitive damages award was excessive, which was denied by the trial court. The appellate court reversed, finding the award was excessive under Florida and federal law. Ultimately, the Florida Supreme Court affirmed, explaining that Florida law requires a reasonable relationship between punitive damages and the amount of damages proved and the injury suffered. Coates v. R.J. Reynolds Tobacco Co., SC21-175, 48 Fla. L. Weekly S1 (Fla. January 5, 2023).
Non-party employees of hospital could be compelled to produce personal text messages where the discovery order was narrowly tailored to relevant information.
Here, medical malpractice plaintiffs sought to obtain text message from the cell phones of hospital employees, which included their observations of a physician’s purportedly impaired behavior. The trial court ordered the employees to provide the information and the appellate court denied certiorari. Finding that the employees’ privacy rights were not absolute, and that the discovery order was narrowly tailored to include only records relevant to the issues raised in the litigation, the appellate court found that the trial court did not depart from the essential requirements of law in ordering the production of the records. Talley v. Consolidated Respondents, 1D21-3685, 47 Fla. L. Weekly D2228 (Fla. 1st DCA Nov. 2, 2022).
Appellate court again addresses scope of the confidentiality protections afforded to patient safety work product and certifies question to Florida Supreme Court.
Twelve days after the plaintiff was born via caesarean section, a hospital employee created a safety event report, which the trial court ordered the hospital to produce. The hospital sought certiorari review contending that the report was privileged from disclosure notwithstanding Florida’s constitutional right of access to records of adverse incidents. The appellate court found the document was entitled to confidentiality because: (1) it was submitted to the hospital’s patient safety organization; and (2) it was not an “adverse incident” report required to be submitted to the Agency for Health Care Administration. While the appellate court did conclude that the Federal Patient Safety Act expressly preempts Amendment 7, it certified these issues for review by the Florida Supreme Court. Tallahassee Memorial Healthcare, Inc. v. Wiles, 1D21-1503, 47 Fla. L. Weekly D2327 (Fla. 1st DCA Nov. 14, 2022).
The work-product doctrine does not safeguard the discovery of underlying facts gathered in work-product materials.
In this personal injury case, the trial court ordered Disney, the defendant, to provide a verified interrogatory answer explaining how the incident happened, including, but not limited to, the facts Disney learned from its employees or agents. The plaintiff was not actually seeking the disclosure of incident reports or recorded statements but wanted to know the factual details of how the accident occurred. On certiorari review, the appellate court agreed that the plaintiff was not required to prove need and undue hardship when she was not asking for the documents themselves and held that she was entitled to discover this factual information, explaining “the underlying facts contained in documents protected by the work product doctrine are neither fact work product nor opinion work product.” While the plaintiff was not seeking (or entitled to) Disney’s mental impressions, conclusions, opinions or legal theories, she was entitled to the factual information. Walt Disney Parks and Resorts U.S., Inc., v. Alesi, 5D22-1375, 47 Fla. L. Weekly D2373 (Fla. 5th DCA Nov. 18, 2022).