Wednesday, September 5, 2012

Decisions of interest from this week


Borroto v. Garcia, --- So. 3d --- (Fla. 3d DCA September 5, 2012) reversed the denial of a motion to conduct juror interviews where the defendant showed that certain jurors prior injuries and litigation history.  In a concurring opinion, Judge Emas wrote on the third prong of De La Rosa v. Zequeira, 659 So. 2d 239 (Fla. 1995), which states that “[t]he failure to disclose the information was not attributable to the complaining party’s lack of diligence.” 
According to Judge Emas, De La Rosa rejected the broad proposition that any motion for new trial based upon a juror’s concealment of litigation history required (in order to satisfy the diligence prong) that the search be conducted at the conclusion of jury selection rather than at the conclusion of the trial.
“However, the supreme court did not prohibit a trial court, in an individual case and in the proper exercise of its discretion, from imposing a reasonable requirement of conducting a records check at the conclusion of jury selection.”
Judge Emas suggests that the trial judge may issue a specific pretrial order in an individual case directing the parties to conduct such a search.  In light of the extraordinary amount of time, energy and expense that is often required for the modern civil trial, giving trial judges the discretion to impose these common-sense procedures, in the appropriate exercise of their discretion, is not simply reasonable, but laudable.



Phillip Morris v. Brown, --- So. 3d --- (Fla. 1st DCA September 5, 2012) tells us that it is not a good idea to compare a witness to Dr. Josef Mengele, the infamous Nazi war criminal known as the “Angel of Death.”  That is what the trial judge stated in ruling on the admissibility into evidence of a 1971 videotape of Philip Morris’ former CEO, Joseph Cullman, in which Cullman suggests that lower birth weights caused by smoking may actually be desirable to some women who “might prefer having smaller babies.”  The defendant immediately moved to disqualify the judge.  In granting the writ of prohibition, the appellate court stated that the judge’s statements were so inflammatory that a party would be placed in reasonable fear of judicial bias.


Reffaie v. Wal-Mart Stores, Inc., --- So. 3d --- (Fla. 4th DCA September 5, 2012) reversed for a new trial on damages, stating:
  • Here, appellant correctly argues that there was no evidence to support defense counsel’s argument in closing that law firms transported their clients to Dr. Gomez en mass, or that Dr. Gomez had any “business relationships” with personal injury law firms. At one point, defense counsel even suggested that it was Dr. Gomez who bused the clients “right back up for the purposes of litigation.” We agree that the improper comments at issue were intended to, and did, impugn the doctor’s credibility and objectivity in the eyes of the jurors. While we have little issue with the line of questioning, the problem here is that defense counsel did not obtain the desired answers but continued in closing argument as though he had.


Santiago v. Abramovitz, --- So. 3d --- (Fla. 4th DCA September 5, 2012) reversed the denial of plaintiff’s motion for a new trial on damages due to the jury’s zero verdict. Here, the defendant stipulated before trial that his negligence caused the accident and that the plaintiff sustained a permanent injury because of the accident.


Finnegan v. Deutsche Bank Nat’l Trust Co., --- So. 3d --- (Fla. 4th DCA September 5, 2012) found that there was a genuine issue of material fact where the defendant’s answer specifically denied that she had received notice of the default in accordance with the terms of the mortgage. Deutsche Bank then filed a motion for summary judgment. Its affidavit in support did not mention the conditions precedent. Defendant filed an affidavit in opposition again swearing that she had received no notice of default in accordance with the mortgage provisions. The bank also filed copies of letters allegedly sent to defendant but these were not sworn and could not be considered on a motion for summary judgment.


Trafalgar at Greenacres, Ltd. v. Zurich Am. Ins. Co., --- So. 3d --- (Fla. 4th DCA September 5, 2012) held that obtaining an appraisal award against the insurer satisfied the insured’s obligation to have the underlying claim “resolved favorably” under Blanchard v. State Farm Mut. Auto. Ins. Co., 575 So. 2d 1289, 1291 (Fla. 1991)).


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