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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