Tuesday, March 27, 2012

Supreme Court Oral Argument on Health Care Law: Monday's Argument

Supreme Court Oral Argument on Health Care Law: Monday's Argument.

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Sunday, March 25, 2012

Superbugs, Florida legislation approving $15million medical malpractice award, ineffective assistance of appellate counsel and poached eggs with basil-tomato soup

Study: SUPERBUG ENTERS U.S. HOSPITALS THROUGH FRONT DOOR, CDC SAYS, 7 No. 21 Westlaw Journal Medical Malpractice 9, Westlaw Journal Medical Malpractice March 16, 2012 CHICAGO, March 6 (Reuters) - Many patients infected by the deadly superbug Clostridium difficile, long thought to be contracted mainly during hospital stays, are already exposed when they are admitted to the hospital, U.S. infectious disease experts said. Rates of C. difficile, the most common hospital-based infection in the United States, continue to climb. The infection can cause severe diarrhea, inflammation and bleeding in the colon, and death. A new study from the U.S. Centers for Disease Control.

Health Care Reform (Consumer Labels): NEW FEDERAL RULES REQUIRE EASY-TO-READ SUMMARIES OF HEALTH PLANS, 7 No. 23 Westlaw Journal Insurance Bad Faith 10, Westlaw Journal Insurance Bad Faith March 20, 2012 The Obama administration has finalized regulations requiring all private health insurers to provide "plain language" summaries of their coverage plans to help consumers better understand their benefits. The Health and Human Services Department released the final rules Feb. 9 under requirements in the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, calling for insurers to give clear and straightforward information about their plans.

Arbitration Agreements: SUPREME COURT TOSSES W.VA. RULING PROHIBITING ARBITRATION AGREEMENTS, Marmet Health Care Ctr. v. Brown, 7 No. 21 Westlaw Journal Medical Malpractice 1, Westlaw Journal Medical Malpractice March 16, 2012 The U.S. Supreme Court has vacated a 2011 ruling by West Virginia's highest court that said pre-dispute arbitration agreements between nursing homes and residents cannot be used to resolve wrongful-death and personal injury lawsuits. The West Virginia Supreme Court of Appeals misinterpreted the Federal Arbitration Act, 9 U.S.C. 1, when it concluded the statute's "savings clause" permits generally applicable contract defenses such as fraud and unconscionability, the nation's highest court said.

Attorneys -- Disqualification -- Conflict of interest -- Class actions -- Where class consisting of flight attendants brought action against tobacco companies based on exposure to second hand smoke in airline cabins, case was set to be tried in two stages, with first stage to decide common questions and second stage to determine each plaintiff's damages, parties entered into settlement agreement during first stage whereby tobacco companies, in exchange for plaintiffs' waiver of intentional tort and punitive damages claims, agreed to establish a settlement fund to endow a foundation to sponsor scientific research, and attorneys for flight attendants subsequently filed petition against the foundation, which included two flight attendant board members, seeking enforcement of the settlement agreement, accounting of settlement funds, injunction against further expenditures, and order directing distribution of settlement funds to flight attendants, trial court departed from essential requirements of law in disqualifying counsel for flight attendants on basis of conflict of interest -- In context of a class action, before disqualifying a class member's attorney on the motion of another class member, the court should balance the actual prejudice to the objector with his or her opponent's interest in continued representation by experienced counsel
NORMA R. BROIN, ET AL., Petitioners, vs. PHILLIP MORRIS COMPANIES, INC., ET AL., Respondents. 3rd District.

Attorney's fees -- Prevailing party -- Error to fail to award attorney's fees to defendant for fees it incurred defending plaintiff's motion to vacate arbitration panel's award where agreement between the two parties stated that attorney's fees would be borne solely by plaintiff if defendant prevailed in defense of an action brought by plaintiff -- Argument that defendant was not entitled to fees because arbitration panel declined to award them in connection with arbitration proceeding is rejected -- Plaintiff's filing of the motion to vacate began a separate proceeding, and panel's ruling was not binding on circuit court in the separate action
PHILIP D. KALTENBACHER, Appellant/Cross-Appellee, v. MORGAN KEEGAN & COMPANY, INC., Appellee/Cross-Appellant, and RICHARD ANGELOTTI and EDWARD ROSENBERG, Appellees. 2nd District.

Civil procedure -- Dismissal -- Error to dismiss complaint as sanction for attorney's willful failure to comply with court order without considering all factors set forth in Kozel v. Ostendorf -- Absence of transcript of hearing where Kozel factors may have been considered does not require affirmance where order was devoid of any consideration of the Kozel factors
LUIS ALSINA and RITA ALSINA, Appellants, v. ADAM GONZALEZ and TERRI GONZALEZ, Appellees. 4th District.

Contracts -- Guaranties -- Mortgage foreclosure -- Judicial sale -- Civil procedure -- Separate suits involving complaints in which plaintiff sought, in one count, a foreclosure judgment on mortgage property and, if necessary, a deficiency judgment, and, in separate count, money damages for breach of the note and guaranties -- In light of common law, merger of equity and law courts, and consistency of remedies, action at law on note and guaranties was properly joined with mortgage foreclosure -- Circuit courts, which found in favor of plaintiff, did not err in structuring final judgments to allow plaintiff to attempt collection on money judgments before setting a foreclosure sale -- Judicial sale procedure set forth in section 45.031 is not exclusive procedure for setting a foreclosure sale, as statute plainly gives circuit judge discretion to tailor the procedure and limits that discretion only after the court uses the statutory procedure to set a sale date -- Trial courts did not abuse their discretion by awarding foreclosure and damages and allowing plaintiff to attempt to collect damages without submitting to a deficiency hearing -- Mortgagee is not prevented from pursuing legal and equitable remedies at the same time -- Section 702.06, which concerns deficiencies, binds a plaintiff to a deficiency decree once plaintiff sets deficiency process in motion, but expressly provides that complainant also has right to sue at common law to recover deficiency, except as against original mortgagor when mortgage was for purchase price of property, original mortgagee buys the property at foreclosure sale, and original mortgagee obtains a deficiency decree against original mortgagor -- Plaintiff in these cases has not yet started deficiency process, and mortgages at issue were not for the purchase price of the subject properties -- Accordingly, if plaintiff certifies non-satisfaction of money judgments, it will be bound to deficiency process; and only if trial courts do not adjudicate the merits of a deficiency will plaintiff be able to bring separate law actions on the foreclosure judgments for the deficiency
ROYAL PALM CORPORATE CENTER ASSOCIATION, LTD., a Florida limited liability company, and ROYAL PALM CORPORATE CENTER, INC., a Florida corporation, THIRTY FIFTH STREET LAND DEVELOPMENT ASSOCIATES, LLC, a Florida limited liability company, OSPREY BOULEVARD PROPERTIES, LLC, a Florida limited liability company, THE GROVE COMMUNITY ASSOCIATION, INC., a Florida non-profit corporation, and ANTHONY V. PUGLIESE, III, an individual, Appellants, v. PNC BANK, NA, as successor by merger to National City Bank, NA, as successor by merger to Fidelity Federal Bank & Trust, Appellee. 4th District.

Criminal law -- Aliens -- Illegal reentry after felony -- Illegal reentry after conviction of false representation -- Sentencing -- Federal guidelines -- No error in imposing 16-level enhancement for prior conviction of crime of violence based on prior conviction for resisting officer with violence in violation of Florida law -- Sentencing disparities caused by district's lack of a fast-track program did not render defendant's sentence unreasonable -- Moreover, defendant would not have qualified for fast-track program in any event because he had prior conviction for crime of violence and because he did not enter into written plea agreement, two requirements by the Attorney General for fast-track programs
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. HECTOR MANUEL ROMO-VILLALOBOS, Defendant-Appellant. 11th Circuit.

Criminal law -- Burglary -- Jury instructions -- Possession of recently stolen property -- Trial court erred in giving jury instruction that proof of possession of recently stolen property may justify a conviction of burglary -- Where stolen items were found three months after burglary and no proof was presented that defendant had exclusive dominion over stolen property, defendant was free to argue items were not exclusively his, rendering the instruction improper -- Evidence -- Trial court improperly denied motion in limine to exclude latex gloves found eighty days after the burglary where state, introducing them to explain lack of fingerprints on vehicle, did not introduce evidence to show gloves were connected to the charged offenses -- It was proper to deny motion for judgment of acquittal grounded on argument that state did not present enough evidence to create inference of guilt based on possession of stolen items because there was additional sufficient circumstantial evidence -- Search and seizure -- No error in denial of motion to suppress evidence found during warrantless search inside home where defendant gave consent and, because he had a key and had been the only person observed by officers to be coming and going from the premises for three days, and once inside officers observed in plain view utility bills with defendant's name, it was reasonable for officers to believe defendant had dominion and control over the property and was able to consent to the search -- Because of erroneous jury instruction and denial of motion to exclude latex gloves, case remanded for retrial
PHARAOH NSHAKA, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Criminal law -- Counsel -- Ineffectiveness -- Plea -- Claimed ineffective assistance in failing to inform defendant of plea offer that led to lapse of offer of plea bargain that offered terms more lenient than terms of guilty plea entered later -- Sixth Amendment right to effective assistance of counsel extends to negotiation and consideration of plea offers that lapse or are rejected -- To show prejudice where a plea offer has lapsed or been rejected because of counsel's deficient performance, defendants must demonstrate reasonable probability both that they would have accepted more favorable plea offer had they been afforded effective assistance of counsel and that plea would have been entered without prosecution's canceling it or trial court's refusing to accept it, if they had the authority to exercise that discretion under state law -- Applying these standards to instant case, state court correctly concluded that counsel's failure to inform defendant of written plea offer before it expired fell below an objective standard of reasonableness, but court failed to require defendant to show that plea offer, if accepted by defendant, would have been adhered to by prosecution and accepted by trial court -- It is appropriate to allow state appellate court to address these questions in first instance
MISSOURI, Petitioner v. GALIN E. FRYE. U.S. Supreme Court.

Criminal law -- Counsel -- Ineffectiveness -- Plea -- Where counsel's ineffective advice led to rejection of plea offer, and where prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea officer would have been presented to court, that court would have accepted its terms, and that conviction or sentence, or both, under offer's terms would have been less severe than under actual judgment and sentence imposed -- Where a defendant shows ineffective assistance has caused the rejection of plea leading to more severe sentence at trial, remedy must “neutralized the taint' of a constitutional violation, but must not grant a windfall to defendant or needlessly squander resources state properly invested in criminal prosecutions -- Antiterrorism and Effective Death Penalty Act does not bar federal habeas relief, because state appellate court's analysis of defendant's ineffective-assistance-of-counsel claim was contrary to clearly established federal law -- Standard for ineffective assistance under Strickland was satisfied where parties conceded deficient performance, defendant has shown that but for deficient performance there is reasonable probability he and trial court would have accepted guilty plea, and defendant received minimum sentence 3½ times greater than he would have received under plea -- As a remedy district court ordered specific performance of plea agreement, but correct remedy is to order state to reoffer the plea
BLAINE LAFLER, Petitioner v. ANTHONY COOPER. U.S. Supreme Court.

Dissolution of marriage -- Equitable distribution -- Unequal distribution -- Trial court erred in distributing the negative value of marital residence solely to wife -- Alimony -- Trial court erred in awarding husband alimony without considering each spouse's pre-dissolution debts and the income husband receives from retirement account -- Trial court erred in failing to reopen evidence to consider a reduction in wife's salary -- Trial court erred in retroactively increasing alimony award based on the worthlessness of a brokerage account, the wife's portion of which husband had spent without authorization
AVA G. BYRNE, Appellant/Cross-Appellee, vs. DANIEL R. BYRNE, Appellee/Cross-Appellant. 3rd District.

Dissolution of marriage -- Alimony -- In determining amount of alimony to be awarded to wife, trial court erred in considering former husband's voluntary support payments for parties' adult son and by reducing amount available to pay alimony by the amount of those support payments -- Court also erred by failing to consider standard of living enjoyed during marriage -- Attorney's fees -- Fee and costs awards reversed in light of determination that trial court erred in alimony award, and because record does not demonstrate type of meritless or vexatious litigation that would affect fee award
NANCY LOFTUS QUINONES, Appellant, vs. JOHN M. QUINONES, Appellee. 3rd District.

Estates -- Wills -- Trusts -- Trial court improperly dismissed with prejudice complaint challenging the validity of “estate planning” and “testamentary documents executed after the year 2000” on undue influence grounds, finding it did not constitute a will contest, where, despite the complaint's not being a model of clarity, it did adequately constitute a will contest -- Argument that appellants' complaint was not a will contest because it focused on trust and did not name the 2005 will revoking appellants' interest in trust lacks merit -- Standing -- Count of complaint alleging exploitation of a vulnerable adult was properly dismissed for lack of standing
DOMINIC PASQUALE, JR., individually, and ANTHONY PASQUALE, individually, Appellants, v. JACK L. LOVING, individually and as Trustee, ZIAD E. HABAYEB, individually and as Trustee, SCOTT M. STEWART, individually, CITIGROUP TRUST, DELAWARE, N.A. by Karen A. Savage, as Trustee and Personal Representative, and COMMUNITY FOUNDATION OF BROWARD, INC., Appellees. 4th District.

Estates -- Personal representative -- Removal -- Removal of co-personal representative is reversed where removal was ordered without notice
ELIZABETH ZULON, Appellant, vs. DAVID PECKINS, Appellee. 3rd District.

Mortgage foreclosure -- Standing -- Error to enter final summary judgment where there was material issue of fact as to plaintiff's standing to foreclose -- Although note introduced had blank endorsement and was sufficient to prove ownership by plaintiff, nothing in record showed that note was acquired prior to filing of complaint
DAVID HALL and ELLIS CRISSON, Appellants, v. REO ASSET ACQUISITIONS, LLC, Appellee. 4th District.

Mortgage foreclosure -- Jurisdiction -- Service of process -- Substituted service -- Appeals -- Non-final orders -- Order denying defendant's motion to quash service of process and vacate default judgment is reversed because plaintiff did not sufficiently show that it perfected substituted service where defendant presented unrefuted clear and convincing evidence that the individual on whom process was served was only a short-term houseguest staying in defendant's home while defendant was out of the country
DENNIS B. BAKER, individually, and as Trustee of the Bradford Baker Revocable Trust Agreement, Appellant, v. STEARNS BANK, N.A., Appellee. 2nd District.

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Friday, March 23, 2012

Supreme Court Rules for Inmate With Double Claims of Ineffective Assistance of trial and appellate counsel

The Supreme Court, 7-2 opinion, held that ineffective assistance by a prisoner's appellate lawyer could excusethe prisoner’s failure to raise the ineffective assistance of trial counsel claim, allowing a federal court to consider the issue.

"Martinez says his trial counsel should have challenged the expert testimony as inaccurate, and the lawyer who represented him in his state collateral appeal should have contended he received ineffective assistance of counsel at trial. The San Francisco-based 9th U.S. Circuit Court of Appeals barred Martinez’s claim that his trial lawyer was ineffective, saying it had been procedurally defaulted by his first habeas lawyer. As a result, the federal courts could not consider the issue.
The U.S. Supreme Court reversed, saying it was “recognizing a narrow exception” to the default rule established in a 1991 decision, Coleman v. Thompson."  More.

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Tuesday, March 20, 2012

Civil Liberties group wants NSA to disclose any communication with Google, especially concerning the decision to encrypt Gmail

Civil Liberties Group Presses For Details On Any Google, NSA Collaboration

"The U.S. Court of Appeals for the D.C. Circuit today picked up a dispute between the NSA and the Electronic Privacy Information Center, the Washington-based civil liberties advocate and research center. 
The privacy group wants the security agency to disclose any communication with Google, especially concerning the decision to encrypt Gmail. . . .Justice Department attorney Catherine Hancock said disclosing any communication between the NSA and Google would reveal whether the government has a partnership with Google. DOJ also said it cannot disclose any information that could reveal potential areas of concern for the U.S. government about computer systems."  More.
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Sunday, March 18, 2012

Business law issues, torts, and biscuits with fresh thyme-strawberry jam

Appeals -- Non-final orders -- Order on defendant's motion to dismiss for lack of jurisdiction is not an appealable, non-final order where order granted the motion to dismiss, but allowed plaintiff time to amend the complaint, and did not actually determine jurisdiction at all -- Injunction -- Order granting temporary injunction is affirmed where defendants did not challenge injunction on its merits, but rather asserted that court lacked jurisdiction, and jurisdiction issues remain to be decided
MARGARET GRASSO, individually and as a purported Cotrustee of the Olga Grasso Revocable Trust, and MICHELLE GRASSO, individually and as a purported Cotrustee of the Olga Grasso Revocable Trust, Appellants, v. OLGA T. GRASSO, Appellee. 2nd District.

Arbitration -- Waiver -- Action by partnership formed to purchase arena football team against defendant who expressed interest in becoming part owner of team, entered into agreement with partnership under which defendant was provided confidential business information, and then purchased part ownership in team after direct negotiations with owner without knowledge of partners -- Partners did not waive right to arbitrate action against defendant by suing defendant for injunctive relief -- Defendant consented to arbitration by submitting to arbitrator the issue of whether plaintiffs waived the right to arbitrate -- Having elected to proceed before arbitrator, defendant cannot claim that arbitrator exceeded his authority -- Trial court properly entered judgment confirming arbitration award
ROBERT NUCCI, M.D., Appellant, v. STORM FOOTBALL PARTNERS a/k/a collectively THOMAS BEGLEY, individually; JAY MIZE, individually; DOUG GRABER, individually; and ERIC SNOW, individually, Appellees. 2nd District.

Arbitration -- Where arbitration agreement provided an exception to arbitration for claims seeking equitable relief, trial court properly denied motion to compel arbitration of claims seeking injunctive relief and equitable accounting

Civil procedure -- Dismissal -- Failure to comply with discovery orders -- Final order dismissing with prejudice was deficient for failing to include explicit finding of willful noncompliance, even though lower court cited, with specificity, details surrounding plaintiff's failure to comply with court's orders and attend depositions
WENDY I. YOUNG, Appellant, v. USAA CASUALTY INSURANCE COMPANY, Appellee. 4th District.

Dissolution of marriage -- Alimony -- In denying wife's request for permanent periodic alimony and, instead, awarding her bridge-the-gap alimony, trial court miscalculated parties' monthly net incomes by adding their monthly retirement incomes to their net incomes after the parties themselves had included their retirement in their income calculations -- Trial court also erred by failing to address evidence that wife made financial and career sacrifices in moving from South Carolina to Florida to marry husband -- Remand for recalculation of parties' incomes and for findings of fact relating to parties' respective contributions to marriage and career building

Dissolution of marriage -- Alimony -- Modification -- Order denying husband's petition to modify alimony alleging a substantial decline in husband's income is reversed where circuit court's finding that husband was in a “supportive relationship” was not supported by competent, substantial evidence -- Although circuit court did not ascribe to husband a specific financial benefit based on the relationship, circuit court's finding that he was in a supportive relationship strongly suggests that it factored the relationship into its decision to deny husband's petition -- Remand with instructions to reconsider petition without regard to husband's relationship
JONATHAN M. MORRELL, Appellant, v. FELICIA A. MORRELL, Appellee. 2nd District.

Dissolution of marriage -- Alimony -- Modification -- Supportive relationship between former wife and another person not basis for reducing former husband's alimony obligation where relationship existed prior to parties' divorce and alimony award -- Under terms of section 61.14(1)(b), reduction or termination of alimony based on existence of a supportive relationship between the obligee and another person is authorized only if the relationship has existed “since the granting of a divorce and the award of alimony”
PATRICK H. KING, Appellant/Cross-Appellee, v. CYNTHIA L. KING, Appellee/Cross-Appellant. 2nd District.

Dissolution of marriage -- Equitable distribution -- Marital home -- Error to make husband solely responsible for expenses associated with marital home prior to its sale without addressing husband's entitlement to credits for these expenses
JON L. SWERGOLD, Appellant, v. JILL H. SWERGOLD n/k/a JILL H. KAZDIN, Appellee. 4th District.

Estates -- Prohibition -- Probate court is without jurisdiction to continue controlling party's interest in residence or in his share of net proceeds of sale of residence where they are not part of estate or otherwise under jurisdiction of probate court -- Liens against property and proceeds are to be recognized outside administration of estate
CARLTON FIELDS, P.A. AND GARY W. POLLACK, Petitioners/Appellants, vs. EDWARD J. LOCASCIO AND IN RE: ESTATE OF SILVIA M. LOCASCIO, Respondents/Appellees. 3rd District.

Mortgage foreclosure -- Affirmative defenses -- Truth in Lending Act violations -- Consumer law -- Plaintiff “originated” loan when it relied upon services of a mortgage broker to place it in touch with defendant, a prospective borrower and, accordingly, plaintiff was a creditor as defined by Truth in Lending Act, even though defendant initially sought out services of mortgage broker -- Trial court erred in ruling that TILA did not apply to transaction -- TILA defenses were not time-barred -- Consumer, relying on 15 U.S.C. section 1640(a)(1), is entitled to actual and statutory damages as a defense of recoupment or set-off to an action for collection of a debt, even when such claims would be barred by TILA's three-year statute of limitation -- However, consumer cannot assert the right of rescission as a defense in recoupment for TILA violations once the period for the statute of limitations has expired -- Accordingly, trial court properly found that, even if TILA does apply, defendant received all necessary TILA disclosures relating to her right of rescission, and her right of rescission was limited to three-business-day window following the closing of the transaction -- Because trial court did not make factual findings regarding plaintiff's alleged violations of TILA, other than those relating to defendant's right of rescission, case remanded for further proceedings -- Trial court properly ruled that defendant did not have private right of action for violations of Florida Fair Lending Act

Insurance -- Homeowners -- Attorney's fees -- Prevailing party -- Error to deny insureds' motion for attorney's fees pursuant to section 627.428 where insurer's payments made after suit was filed were tantamount to confessions of judgment entitling the insureds to attorney's fees, and lawsuit served a legitimate purpose because it motivated the insurer to pay not only the amount of the appraisal award, but additional living expenses incurred as well

Mortgage foreclosure -- Deficiency -- Trial court abused discretion by rejecting expert testimony of property appraiser as to fair market value of property and denying mortgagee's motion for deficiency judgment

Mortgage foreclosure -- Pleading -- Verification -- Appeals -- Certiorari -- Petition seeking review of non-final order denying without prejudice plaintiff's motion to amend complaint to add a count to reestablish lost promissory note on ground that verification of amended complaint was insufficient because it was based on “knowledge and belief” -- Trial court departed from essential requirements of the law where plain language of Florida Rule of Civil Procedure 1.110(b) allows verification language to include the phrase “to the best of my knowledge and belief,” and section 92.525, on which trial court relied, provides an exception that a document may be verified by a signed declaration including such language when permitted by law -- Error to find that rule 1.110(b) did not apply because it refers to verification of “documents,” whereas a complaint is a pleading -- A pleading is a document -- Injury cannot be remedied on appeal where, although court denied motion to amend complaint without prejudice to refile, order effectively left plaintiff without the ability to amend because plaintiff could not in good faith meet court's more stringent verification requirement

Mortgage foreclosure -- Relief from judgment -- Fraud -- Substituted plaintiff -- Trial court erred in granting defendant's motion to vacate judgment of foreclosure based on fraud and misrepresentation of the plaintiff because defendant's fraud allegations were indefinite -- Neither defendant's motion nor the record supported a prima facie case of fraud based on alleged discrepancies regarding dates when plaintiff's right to foreclose came to exist where documents show trial court was promptly informed of the changes to the identity of party seeking to foreclose, and defendant did not contend he was prejudiced by any alleged confusion regarding creditor's identity

Torts -- Automobile accident -- Rear-end collision damages -- Jury instructions -- Trial court did not abuse its discretion in giving jury instruction informing jury that a tortfeasor is responsible for additional injuries caused by medical negligence of a physician treating plaintiff for original injuries where defense expert opined that back surgery performed on plaintiff in attempt to alleviate back pain plaintiff experienced following accident was unnecessary to treat the injuries sustained in the accident and recognized that plaintiff had an impairment rating based on that surgery -- Moreover, care physician provided following accident was called into question by defense counsel in closing argument
JOEY JAMES PEDRO and JILL PEDRO, Appellants, v. BETSY BABER, Appellee. 2nd District.

Torts -- Automobile accident -- Rear-end collision -- Rebuttable presumption of negligence by rear driver -- Exceptions -- Plaintiff's vehicle hit in rear after she had to come to an abrupt stop when another vehicle cut in front of lead vehicle she was following -- Trial court erred in denying plaintiff's motion for a directed verdict where defendants did not adequately rebut presumption that defendant driver was negligent -- Sudden-stop exception was inapplicable where facts were not sufficient to support finding that plaintiff's stop could not be reasonably anticipated at the time and place it occurred -- Alternatively, plaintiff's car was not illegally or improperly stopped due to her failure to move immediately after the lead vehicle resumed driving, as fact that lead vehicle realized it could safely continue does not mean plaintiff had a duty to follow within the time interval involved
DIANNA DOUGLAS-SEIBERT, F/K/A DIANNA DOUGLAS, Appellant/Cross-Appellee, v. LOUIS RICCUCCI AND TARMAC AMERICA, LLC, Appellees/Cross-Appellants. 5th District.

Torts -- Civil procedure -- Discovery -- Privilege -- Nursing homes and related health care facilities -- Internal risk management and quality assurance program -- Incident reports -- Adult protective services -- Reports and records -- Trial court departed from essential requirements of law by ordering production of documents and answer to interrogatories without first conducting in camera inspection to determine precise nature of ostensibly privileged documents and to further determine applicability of work product and statutory privileges

Torts -- Premises liability -- Discovery -- Trade secrets -- Action by employee of management company for restaurant franchisee against franchisor, alleging liability of franchisor for assault on plaintiff by another employee of management company -- Trial court departed from essential requirements of law in compelling production of franchisor's operation and training manuals to the extent the court ordered production of potential trade secret information without conducting in camera review to determine if material is a trade secret and relevant -- Trial court's order was deficient in that it failed to specify findings to support determination that plaintiff demonstrated reasonable necessity for production despite existence of trade secrets

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Tuesday, March 13, 2012

Wrongful death of nonviable fetus, bone marrow sales, speedy trial, and corned beef and cabbage with fresh thyme and parsnips

Insurance -- Homeowners -- Appraisal -- Trial court erred in granting insured's motion to compel appraisal without conducting an evidentiary hearing where there was an issue of fact as to whether insured had complied with post-loss obligations

Insurance -- Homeowners -- Attorney's fees -- Prevailing party -- Error to deny insureds' motion for attorney's fees pursuant to section 627.428 where insurer's payments made after suit was filed were tantamount to confessions of judgment entitling the insureds to attorney's fees, and lawsuit served a legitimate purpose because it motivated the insurer to pay not only the amount of the appraisal award, but additional living expenses incurred as well

 Wrongful Death: ALABAMA HIGH COURT SAYS MOM CAN SUE DOCS FOR DEATH OF NON-VIABLE FETUS, Hamilton v. Scott, 7 No. 20 Westlaw Journal Medical Malpractice 1, Westlaw Journal Medical Malpractice March 2, 2012
An Alabama woman can continue to pursue wrongful-death claims against doctors for the stillbirth of her non-viable fetus because state law provides a cause of action for the death of an unborn child, the state's highest court has ruled. The Alabama Supreme Court unanimously reversed a lower court's grant of summary judgment to the doctors.

Federal Tort Claims Act: SCHOOL NURSE'S VAGINAL EXAM OF STUDENT NOT MALPRACTICE, JUDGE SAYS, K.R. v. United States, 7 No. 20 Westlaw Journal Medical Malpractice 5, Westlaw Journal Medical Malpractice March 2, 2012
A nurse at a Brooklyn public school did not act inappropriately when she visually examined a 7-year-old student's vagina because she complained of groin pain, a federal judge in Manhattan has ruled. U.S. District Judge William F. Kuntz II of the Eastern District of New York said the government is not liable for medical malpractice claims brought by the girl's mother.Evidence shows that the mother provided written consent for "complete medical care" at the school.

Legislation: FLORIDA HOUSE OKS DOC-TO-DOC INTERVIEWS, 7 No. 20 Westlaw Journal Medical Malpractice 6, Westlaw Journal Medical Malpractice March 2, 2012
Three panels in the Florida House of Representatives have approved a bill that would allow a prospective defendant in a medical negligence lawsuit to privately interview other health care providers who treated the patient before a suit is filed. House Bill 385 is one of several proposed measures in the Republican- controlled Florida Legislature that aims to reduce malpractice liability for physicians. The House Government Operations Appropriations Subcommittee voted 8-3 Feb. 13 to approve.

Legislation: KENTUCKY SENATE OKS PRE-SCREENING FOR PERSONAL CARE HOMES, 7 No. 20 Westlaw Journal Medical Malpractice 7, Westlaw Journal Medical Malpractice March 2, 2012
A panel of Kentucky state senators has approved a bill that would require prospective residents of personal care homes to receive medical screenings prior to admission. The proposed legislation aims to better determine if a person is suitable for a personal care home, where residents receive only limited assistance with daily living skills, or if the individual requires more intensive skilled nursing care. Senate Bill 115, introduced Jan. 24.

Medical Device: JUDGE: NO PROOF BRONCHOSCOPE CAUSED FATAL INFECTION, Young v. Olympus Am., 7 No. 20 Westlaw Journal Medical Malpractice 8, Westlaw Journal Medical Malpractice March 2, 2012
A federal judge has granted summary judgment to a bronchoscope manufacturer in a product liability suit after a Tennessee woman could not show the device used on her late husband prior to his death was defective when it went to market. U.S. District Judge S. Thomas Anderson of the Western District of Tennessee found there was no way to determine which of two bronchoscopes in use at the hospital where the man was treated in early 2001 had been used on him or if either was actually defective at the time.

National Organ Transplant Act: GOVERNMENT CALLS ON 9TH CIRCUIT TO RESTORE BAN ON BONE MARROW SALES, Flynn v. Holder, 7 No. 20 Westlaw Journal Medical Malpractice 9, Westlaw Journal Medical Malpractice March 2, 2012
The 9th U.S. Circuit Court of Appeals should reconsider a ruling that allows people to be paid for donating bone marrow, the Obama administration has argued. The government asked the full court to overturn a panel's ruling that said a federal ban on compensation for organ donation does not extend to bone marrow transplants.The unanimous three-judge panel for the appellate court said in December that new technologies make donating bone marrow no more invasive than donating blood plasma.

Criminal law -- Sexually violent predators -- Civil commitment under Jimmy Ryce Act -- Appeals -- Claim that limit on continuances in section 394.916(2) is jurisdictional and because defendant was not brought to trial within 150 days of probable cause hearing, trial court lost subject matter jurisdiction -- Provision on continuances is not jurisdictional -- Moreover, defendant twice waived his right to trial within 30 days of probable cause determination, and much of the delay in proceedings was attributable to him
JOSEPH FRANTZIS, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Speedy trial -- Where state had charged defendant with fleeing to elude, it was error to allow state to file amended information charging defendant with new offense of fleeing to elude with high speed or wanton disregard of persons or property after speedy trial period had ended -- Record does not support contention that defendant waived speedy trial by accepting a trial date outside speedy trial period -- Although acceptance of a trial date outside speedy trial period constitutes a waiver of speedy trial, mere silence by defendant when the trial date is set does not waive speedy trial
THOMAS ALEX WHITEHALL, Appellant, v. STATE OF FLORIDA, Appellee. 2nd District.

Criminal law -- Trafficking in oxycodone -- Prescription defense -- Error to deny motion to dismiss where state's traverse disputed interpretation of the law rather than factual issue of whether defendant had a valid prescription -- Argument that defendant's prescription was not valid because it was fraudulently obtained in violation of “doctor shopping statute” is rejected -- Remand to vacate conviction for trafficking in oxycodone
NAOMI GONZALEZ, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

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