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The below content previously appeared in the September/October 2024 issue of the Broward County Bar Association’s Barrister magazine.
Florida Supreme Court adopts new case management guidelines, amends various civil rules.
As a result of the work performed by the 2019 Workgroup on Improved Resolution of Civil Cases within the Judicial Management Counsel and the Florida Bar’s Civil Procedure Rules Committee, the Florida Supreme Court has amended several procedural rules in an effort to enhance the process of civil cases in Florida. The new rules, among other things, require civil cases to be assigned to a complex, general or streamlined track; and require the entry of prompt case management orders which included specified deadlines (while providing some discretion to the circuit courts on how that will be accomplished). The rule changes also require parties to disclose initial discovery without the need for formal requests, and now impose a duty to supplement discovery. The court also rewrote the rule addressing continuances, not that t hat they are “disfavored and should rarely be granted.” The rule changes can be found in the Appendix to In re: Amendments to Florida Rules of Civil Procedure, Case No. SC2023-0962, 49 Fla. L. Weekly S137 (Fla. May 23, 2024).
Trial court erred in allowing disclosure of medical records of nonparties who had not been notified or consented to the disclosure.
Where the trial court ordered one party to disclose medical records “in native format,” the appellate court found it to warrant certiorari review. Even where the production was subject to a confidentiality order, where the patients’ identity would be disclosed, the order could not stand. The court was not swayed by the argument that the software program prevented redaction of the patient-identifying information, noting that “the answer is not to place the convenience of e-discovery” over the patients’ right to confidentiality. Ultimately, the court held that the parties would be required to properly redact the records, even if that meant the “tried-and-true method” of printing out the records and manually redacting them. Morgenier v. J. Dickert Population Health Serv. LLC, Case No. 5D2023-2105, 49 Fla. L. Weekly D1359 (Fla. 5th DCA June 21, 2024).
Where a party intends to use a treating physician as an expert at trial, that “hybrid” expert is subject to financial discovery related to bias.
In this case, which arose out of a motor vehicle accident, the plaintiff listed four treating physician and two retained experts in her expert disclosure. When the defendant propounded discovery related to the financial bias of those experts, and their relationships with the plaintiffs’ attorneys, she objected, but the trial court compelled her to respond. The appellate court agreed that the discovery was appropriate, noting that where a treating physician’s testimony crosses the line into that of an expert, and the witness intends to offer opinion testimony, they are considered hybrid experts, from whom financial-bias-related discovery may be obtained. Tillman v. Sweat, Case No. 5D2023-1338, 49 Fla. L. Weekly D1287 (Fla. 5th DCA June 12, 2024).
Sixth District addresses the “same specialty” requirement in medical malpractice cases, refuses to find any legal significance to “sub-specialties.”
In this case, the plaintiff sued her gynecological oncologist, who was board certified in obstetrics and gynecology (ob-gyn), for performing a medically unnecessary surgery, which caused permanent injuries to her. The patient retained an expert who was also a board-certified ob-gyn, and the defendant-physician moved to dismiss the case because she had not obtained an expert in the “same specialty.” The trial court granted the motion, finding that gynecological oncology and gynecology required different education, training and certifications. The appellate court reversed, finding that the “same specialty” language of the statute does not require that the expert have an identical education and background and work history to a prospective defendant. Finding that the expert, and the defendant, both specialized in the same branch of medicine, gynecology, and that gynecological oncology does not qualify as is not its own branch of medicine or surgery, the court found that the expert was qualified and remanded the case for further proceedings. Pradaxay v. Kendrick, Case No. 6D23-1413, 49 Fla. L. Weekly D1067 (Fla. 6th DCA May 17, 2024).
The Loch Ness Monster of the law?
Couldn’t resist including a recent decision based on a doctrine “long cherished by law school professors and dreaded by most law students: the infamous rule against perpetuities.” The case is long and convoluted, and involves New York’s rule against perpetuities but, at the end of the day, the Florida court held that the common law rule against unreasonable restraints applies to stock redemption agreements, not the rule against perpetuities. Marshall v. MacWilliam, Case No. 4D2022-1571, 49 Fla. L. Weekly D1502 (Fla. 4th DCA July 17, 2024).