MEDICAL MALPRACTICE / BLOOD BANKS
Fitchner v. Lifesouth Cmty. Blood Ctrs., 2012 Fla. App. LEXIS 5627 (
1st DCA April 13, 2012) stated on this second appeal that the doctrine of the law of the case could be applied only to a point of law that was actually decided on the first appeal. It did not bar consideration of a point merely because it could have been presented and decided, but was not. The previous appeal involved whether the act of providing blood amounted to a medical service under the 2003 version of the statute. On remand, the plaintiff could amend the complaint because the prior appeal involved an interlocutory stage of the trial proceeding and plaintiff had no reason to argue that the statute could not be applied retroactively where the trial judge had ruled that the statute did not apply at all. On the merits, the court concluded that the statute could not be applied retroactively. Fla.
PRODUCTS LIABILITY – SMOKING
R. J. Reynolds Tobacco Co. v. Webb, 93 So. 3d 331 (Fla. 1st DCA 2012) affirmed a liability judgment against RJR but reversed the $79 million award ($7 million in compensatory and $72 million in punitive damages). It rejected the statute of limitations argument that developing COPD should have put the plaintiff on notice of the cancer to which he eventually succumbed. But the damage award of $7 million compensatory shocked the judicial conscience.
Frazier v. Philip Morris USA Inc., 2012 Fla. App. LEXIS 5476 (Fla. 3d DCA Apr. 11, 2012) reversed a defense verdict because the trial court had denied plaintiff’s motion for a directed verdict on statute of limitations defense. First, there was no competent record evidence that the accumulated effects of the smoking had manifested in a way which supplied to plaintiff some evidence of the causal relationship to the manufactured product before the undisputed limitations bar date of May 5, 1990.
Baptist Hosp., Inc. v. Baker, 84 So. 3d 1200, 2012 Fla. App. LEXIS 5320 (Fla. 1st DCA 2012) struck a class certification challenging the liens imposed by defendant hospital, on standing grounds, where the plaintiff testified in his deposition that he had no issues with the services he was provided by the hospital or the amount he was billed for those services. He further testified that if he was successful in the suit against the hospital, he did not anticipate a financial gain and he candidly acknowledged that any money he received from the suit would be given right back to the hospital.
SUMMARY JUDGMENT OF FORECLOSURE
Harvey Covington & Thomas, LLC v. W M C Mortg. Corp., 85 So. 3d 558, 2012 Fla. App. LEXIS 5818 (Fla. 1st DCA 2012) reversed a summary judgment of foreclosure where the defendant was seeking discovery regarding affidavits submitted by plaintiff.
STATUTE OF LIMITATIONS / THIRD-PARTY ACTIONS
Graney v. Caduceus Props., LLC, 2012 Fla. App. LEXIS 5814 (Fla. 1st DCA Apr. 17, 2012) a divided court held that a third-party complaint does not relate back to the filing date of the original complaint under Florida Rule of Civil Procedure 1.190(c), reasoning that where the purpose of the amendment is to bring a new party into the suit, the relation-back doctrine does not apply, and dismissal on time-barred grounds is proper. The court certified conflict with the Gatins v.
Tax Dist ., 453 So. 2d 871 (Fla. 5th DCA 1985). Sebastian Inlet
FRAUD ON THE COURT
Pena v. Citizens Prop. Ins. Co., 2012 Fla. App. LEXIS 6179 (
2d DCA April 20, 2012) agreed that the plaintiffs had committed a fraud on the court but reversed the dismissal with prejudice because the fraud went to an affirmative defense and did not impact the defense to the damages claim. Fla.