Two from the Second

EXPERT TESTIMONY

Olesky v. Stapleton, 2013 Fla. App. LEXIS 11737 (Fla. 2d DCA July 26, 2013) reversed a defense verdict in a medical malpractice case where the judge prevented plaintiff from presenting the testimony of its expert based on Young-Chin v. City of Homestead, 597 So. 2d 879 (Fla. 3d DCA 1992), which  concluded that the expert had testified without a factual predicate.  Young-Chin thus stands in part for the proposition that expert witnesses must base their opinions on facts even if those facts are not introduced into evidence.  It does not mean that when a test was not performed, an expert cannot testify as to what the test would be expected to reveal.  In this failure-to-diagnose case, the trial court erred in failing to admit the expert’s opinion that an echocardiogram would have shown a cardiac condition if one had been performed.  

“The crux of a failure-to-diagnose case is nonfeasance in the determination of the cause of one’s illness when medical personnel should have been able to do so if certain diagnostic tools, including examinations, had been used.  To require testimony based only on tests actually performed would eviscerate the evidence necessary in such cases.”

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2013/July/July%2026,%202013/2D11-5147.pdf

ATTORNEY’S FEES / PREVAILING PARTY

Tubbs v. Mechanik Nuccio Hearne & Wester, P.A., 2013 Fla. App. LEXIS 11736 (Fla. 2d DCA July 26, 2013) reversed an award of attorney’s fees explaining that the general rule is that when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party.  But this does not apply without exception. A court may look behind a voluntary dismissal at the facts of the litigation "to determine whether a party was a “substantially” prevailing party.

In this case, the trial court inappropriately made its determination of the prevailing party by focusing on a procedural maneuver—the voluntary dismissal—without reference to the substance of what occurred in the litigation:  that claims were dismissed that had become moot for reasons unrelated to the merits of the litigation. In addition, the trial court made a determination of the prevailing party while the parties were still litigating their closely related claims in other proceedings. Thus the trial court made its determination of the prevailing party prematurely—before all of the information necessary to an informed determination of the issue was available.

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2013/July/July%2026,%202013/2D12-1177.pdf