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The below content previously appeared in the November 2021 issue of the Broward County Bar Association’s Barrister magazine.

By Debra P. Klauber, Esq.

Florida Supreme Court adopts “apex doctrine” and amends rule of procedure.

Many courts around the country apply the “apex doctrine” to protect high-ranking corporate officers from having to participate in depositions unless it can be established that they are necessary and the information sought cannot be obtained from other sources. Historically, Florida’s version was developed by the appellate courts and protected only high-level government officials. With this change to Florida Rule of Civil Procedure 1.280 the “apex doctrine” now applies equally in the private sphere. “Properly applied, the doctrine ‘will prevent undue harassment and oppression of high-level officials while still providing a [party] with several less-intrusive mechanisms to obtain the necessary discovery, and allowing for the possibility of conducting the high-live deposition if warranted.'” In re: Amendment to Florida Rule of Civil Procedure 1.280, No. SC21-929, 46 Fla. L. Weekly S241 (Aug. 26, 2021).

Post-offer prejudgment interest is excluded from the “judgment obtained” pursuant to an offer of judgment.

The Florida Supreme Court answered a certified question from the Fourth District Court of Appeal that deals with how to calculate whether a plaintiff has met the threshold amount of the difference between the offer of judgment and the judgment entered. The court followed its own long-standing precedent in ruling that post-offer prejudgment interest has to be excluded from the judgment that is ultimately obtained and considered in determining whether fees and costs can be awarded to the offeror. As the court explained, in determining whether to accept an offer, the party must evaluate not only the potential verdict, but also any taxable costs, attorneys’ fees, and prejudgment interest to which the offering party would be entitled at the time of the offer or demand. CCM Condo. Ass’n, Inc., v. Petri Positive Pest Control, Inc., No. SC19-861, 46 Fla. L. Weekly S259 (Fla. Sept. 9, 2021). See also, Sweeney v. Washington, No. 2D20-1848, 2D20-2520, 46 Fla. L. Weekly D1972 (Fla. 2d DCA Sept. 3, 2021)(discussing the calculation of the judgment obtained and pre-offer costs).

Fourth District reverses dismissal of medical malpractice suit against physician who claimed he did not receive proper presuit notice.

The plaintiff provided pre-suit notice to Lawnwood Medical Center and subsequently filed a complaint against the hospital and a physician. The physician moved to dismiss the complaint (which alleged compliance with the presuit requirements) on the basis that he had not been served with pre-suit notice. The plaintiff took the position that the pre-suit notice to the hospital constituted imputed notice to the physician, while the physician claimed that since he was not an employee of the hospital, but only had staff privileges, there was no “legal relationship.” The physician also claimed that the pre-suit notice was void because it did not include an authorization for the release of medical records. Although the trial court granted the physician’s motion to dismiss, the Fourth District reversed, finding that the trial court went beyond the four corners of the complaint and relied upon documents attached to the motion to dismiss. Rhiner v. Koyama, No. 4D20-2196, 46 Fla. L. Weekly D1989 (Fla. 4th DCA Sept. 8, 2021).

First District addresses timing of expert challenge and standard of review under Daubert.

In this personal injury case, the plaintiff sued her former landlord, alleging that she was exposed to dangerous mold while pregnant, which caused birth defects to her child. The plaintiff hired a medical expert to testify about the causal link, and approximately one month before the pretrial conference, the defendant moved to exclude the expert’s testimony. The trial court agreed that the expert was not qualified to testify about causation, and his testimony was neither reliable nor valid under Daubert. On appeal, the plaintiff challenged the timeliness of the Daubert motion, the standard of review for Daubert decisions, and the exclusion of the expert’s testimony. Even though the defendant did not challenge the expert’s testimony until 230 days after his deposition, the court found the motion timely where it was filed in accordance with the pretrial deadlines. The appellate court also clarified that the standard of review for a trial court’s Daubert decision is an abuse of discretion. And, finally, the appellate court agreed with the determination, in this case, that the expert ob-gyn was not qualified to testify as to causation because he lacked the experience and knowledge to connect the mold to the child’s medical condition. Huggins v. Siegel, No. 1D19-3987, 46 Fla. L. Weekly D2054 (Fla. 1st DCA Sept. 15, 2021).

First District joins the Fourth District in refusing to invalidate arbitration agreement based on the prohibitive cost of arbitration alone.

After her mother died in a nursing home, the plaintiff sued the nursing home and its agents, who moved to compel arbitration as required by the admission documents. The plaintiff argued that the cost of arbitration was so expensive that it rendered the arbitration clause invalid and void as a matter of public policy. Although some federal and state courts around the country have held that prohibitive cost is a stand-alone defense to an arbitration agreement, there is a split of authority in Florida. The Second and Fifth Districts have allowed it, but the Fourth has not. The First District aligned itself with the Fourth and held that, absent direction from the Florida Legislature or the Florida Supreme Court, the courts do not have the authority to rewrite the terms of a contract the parties freely negotiated at length. The court also certified conflict with the Second and Firth Districts, so perhaps the issue will be addressed by the Florida Supreme Court. Wick v. Orange Park Mgt. LLC, No. 1D20-3778, 46 Fla. L. Weekly D1905 (Fla. 1st DCA Aug. 23, 2021).  

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