Sunday, September 30, 2012

Supreme Court Agrees to Hear 2 Pro Se Appeals; One Written in Pencil by Inmate off Website Form

In a highly unusual move, the nation's top court on Tuesday agreed to hear two pro se appeals, both of which apparently involve sovereign immunity issues.
One was written in longhand, in pencil, by an inmate at a federal prison in Pennsylvania, using a boilerplate form that can be downloaded from the U.S. Supreme Court's website, reports the Associated Press. Appellant Kim Lee Millbrook is seeking to revive a dismissed lawsuit he filed alleging sexual assault by Special Management Unit guards. Prison officials called his claim unsubstantiated.
The other pro se appeal, for which a $300 filing fee was paid by appellant Steven Alan Levin, seeks to revive a medical malpractice and battery claim over unsuccessful cataract surgery performed at a U.S. Navy hospital in Guam."  More. . . .
Originally posted Sep 25, 2012 5:56 PM CDT  By Martha Neil

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Friday, September 21, 2012

Presuit, arbitration agreements, graphic warnings, and grilled cod with truffle oil, lemon zest, and Kalamata olives over wild mixed greens and baby cucumbers

Medical malpractice -- Birth-Related Neurological Injury Compensation Act -- Although trial court erred by concluding that injuries allegedly sustained by mother during childbirth were compensable under Florida Birth-Related Neurological Injury Compensation Plan, dismissal of action was proper because plaintiffs' counsel failed to comply with statutory presuit requirements

Pre-suit Requirements: MAINE HIGH COURT VACATES $420K VERDICT FOR UNFULFILLED PRE-SUIT REQUIREMENTS, Levesque v. Cent. Me. Med. Ctr., 15 No. 5 Westlaw Journal Nursing Home 9, Westlaw Journal Nursing Home September 7, 2012
The Maine Supreme Judicial Court has vacated a $420,000 jury award in a bedsore case because the plaintiff presented trial evidence on a theory of liability that he did not present to a pre-litigation screening panel. State law required Paul V. Levesque to notify hospital defendant that he planned to argue it was responsible for a nonemployee physician's alleged negligence and to present the claim to a pre-suit screening panel, the high court said.
Arbitration Agreement: FLORIDA ASSISTED LIVING FACILITY WINS APPELLATE COURT BID FOR ARBITRATION, Emeritus Corp. v. Pasquariello, 15 No. 5 Westlaw Journal Nursing Home 2, Westlaw Journal Nursing Home September 7, 2012
The operator of an assisted living facility in Florida has won reversal of a court order that said a deceased resident's power of attorney did not authorize his wife to enter into an arbitration agreement on his behalf. The power-of-attorney form explicitly gave Kathleen M. Pasquariello absolute power over claims and litigation for her husband, including the authority to submit to arbitration, the 2nd District Court of Appeal said.

Arbitration Agreement: KENTUCKY HIGH COURT INVALIDATES RESIDENT'S ARBITRATION AGREEMENT, Ping v. Beverly Enters., 15 No. 5 Westlaw Journal Nursing Home 1, Westlaw Journal Nursing Home September 7, 2012
The Kentucky Supreme Court has ruled that an arbitration agreement signed by a nursing home resident's daughter is unenforceable, reinstating a negligence and wrongful-death action brought by the mother's estate. Donna Ping had Alma C. Duncan's power of attorney, but her authority to make health care and financial decisions for her mother did not extend to an optional arbitration agreement that waived Duncan's right of access to the courts, the justices unanimously held.

Engle Progeny (Statute of Limitations): SMOKER'S HEALTH PROBLEMS MANIFESTED AFTER ENGLE CUTOFF DATE; LAWSUIT TOSSED, Castleman v. R.J. Reynolds Tobacco Co., 27 No. 26 Westlaw Journal Tobacco Industry 5, Westlaw Journal Tobacco Industry September 7, 2012
A Florida appeals court has rejected a lawsuit filed against cigarette maker R.J. Reynolds Tobacco Co., finding that a smoker's heart and lung conditions manifested themselves after a 1996 cutoff date specified in the landmark Engle class action. The 1st District Court of Appeal said the smoker did not link his medical problems to his smoking history until 1998 -- two years after the deadline for membership in the class action expired.

Cypher Stent: N.J. SUPREME COURT FINDS STENT DEATH SUIT UNTIMELY, FEDERALLY PREEMPTED, Cornett v. Johnson & Johnson, 19 No. 15 Westlaw Journal Medical Devices 9, Westlaw Journal Medical Devices September 10, 2012
New Jersey's highest court has affirmed the dismissal of a consumer fraud and design defect suit against Cordis Corp. by a Kentucky woman who says her husband died from a blood clot that formed near a Cypher drug-eluting stent several months after its implantation. All of Vonnie Cornett's claims against Cordis and parent Johnson and Johnson are untimely under Kentucky law and, secondarily, even if they were timely, most are preempted by Riegel v. Medtronic Inc., 552 U.S. 312 (2008)

Graphic Warnings: D.C. FEDERAL APPEALS COURT SNUFFS OUT FDA'S GRAPHIC WARNINGS, R.J. Reynolds Tobacco Co. v. FDA, 27 No. 26 Westlaw Journal Tobacco Industry 1, Westlaw Journal Tobacco Industry September 7, 2012
A District of Columbia federal appeals panel has ruled that the government went too far when it mandated large graphic warnings on packs of cigarettes. In a split ruling, the District of Columbia U.S. Circuit Court of Appeals determined that the warnings violate the tobacco companies' First Amendment rights. The court also found that the government fell short in proving that the warnings would lead to reduced smoking rates.Judge Judith W. Rogers dissented

Light Cigarettes (Class Certification): LIGHT-CIGARETTE CLASS DECERTIFIED BY N.H. HIGH COURT, Lawrence v. Philip Morris USA, 27 No. 26 Westlaw Journal Tobacco Industry 2, Westlaw Journal Tobacco Industry September 7, 2012
Finding that individual issues predominate, New Hampshire's highest court has decertified a class-action lawsuit alleging Marlboro Lights cigarettes are overvalued because they do not offer any added health benefits than traditional cigarettes. The state Supreme Court panel unanimously held that "the information about lights to which individual class members were exposed, and what they believed, are individual issues that will predominate over common ones.

Legislation: BILL ON MEDICAL COST RECOVERY DIES IN CALIFORNIA ASSEMBLY, 8 No. 8 Westlaw Journal Medical Malpractice 5, Westlaw Journal Medical Malpractice September 14, 2012
The California General Assembly has struck down a bill that would have allowed tort plaintiffs whose medical care was covered by a capitated, or fixed, payment health plan to recover damages for the "reasonable and necessary value" of their medical costs. The latest version of Senate Bill 1528 also would have allowed the state's counties to recoup the cost of a plaintiff's care from a judgment, settlement or arbitration award. The Senate voted 43-13 to reject the measure Aug. 31

Medical Malpractice (Joint Liability): CALIFORNIA HIGH COURT ABANDONS SETTLEMENT RELEASE RULE, Leung v. Verdugo Hills Hosp., 15 No. 5 Westlaw Journal Nursing Home 7, Westlaw Journal Nursing Home September 7, 2012
The California Supreme Court has abandoned a long-standing rule that one defendant's settlement releases other joint tortfeasors from liability, in a case involving a $96 million award for an infant's severe brain damage. The high court unanimously held that the best way to apportion liability in a negligence action involving a settlement not made in good faith is to credit the settlement amount against the total damages and find the non-settling defendants liable for the remainder.

Medicare Fraud: HOME HEALTH CARE AGENCY OPERATOR PLEADS GUILTY IN $42 MILLION SCHEME, United States v. Escalona, 15 No. 5 Westlaw Journal Nursing Home 8, Westlaw Journal Nursing Home September 7, 2012
The owner of a home health care agency in Miami has pleaded guilty to federal charges for his role in a conspiracy to submit $42 million in false claims to Medicare. In a plea agreement filed in the U.S. District Court for the Southern District of Florida, Eulises Escalona acknowledged that he faces up to 10 years in prison and fine of $250,000.In return for the guilty plea on one charge of conspiracy, the government agreed to seek dismissal of the remaining six health care fraud charges

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Monday, September 10, 2012

Business law issues, civil procedure and avocado soup with fresh mozzarrella and Greek oregano

Attorney's fees -- Construction lien law -- Subcontractor's claim against surety on general contractor's payment bond -- Prevailing party -- Where arbitrators declined to award either party attorney's fees under section 713.29 after finding that neither was the “prevailing party,” trial court erred in awarding fees pursuant to statutes which generally permit, inter alia, an award of attorney's fees to a subcontractor who obtains a judgment against a surety insurer under a payment or performance bond for pecuniary loss resulting from a contractual breach -- Where subcontractor's action against surety was a claim to enforce a section 713.23 bond, provisions of section 713.29 controlled over conflicting provisions of sections 627.756 and 627.428CONTINENTAL CASUALTY COMPANY, Appellant, v. A.W. BAYLOR VERSAPANEL-PLASTERING, INC., ET AL., Appellees. 5th District.

Child support -- Department of Revenue abused its discretion when it imputed income equal to federal minimum wage to mother after finding there was lack of sufficient, reliable information concerning her actual earnings, but failed to presume that father had earning capacity equal to federal minimum wage, even though it had less substantial and less reliable information concerning his actual current income than it had concerning mother's income -- On remand, Department can either impute earning capacity equal to federal minimum wage to both parents or refer proceedings to Division of Administrative Hearings to determine if either parent is voluntarily unemployedTONI BAULER, Appellant, v. DEPARTMENT OF REVENUE, Child Support Enforcement, Appellee. 4th District.

Civil procedure -- Discovery -- Expert witness -- Torts -- Trial court erred in overruling defendant's objection to plaintiff's notice of intent to serve subpoena and notice of service of expert witness request for production directed to defendant's liability expert -- Rule 1.280(b)(4) does not allow a party to serve a subpoena or request for productionRICHARD T. SMITH and DIEBOLD INCORPORATED, Petitioners, v. WILLIAM V. ELDRED, Respondent. 4th District.

Contracts -- Real property sale -- Appeals -- Appellate court's affirmance of final judgment not to be interpreted as approval of trial court's comment that purchasers may later move to amend claim for specific performance to seek damages in lieu of specific performance, or as an indication that such a procedure is appropriateMcDANIEL RANCH PARTNERSHIP, a Florida Partnership; J.W. McDANIEL, SR., INC., a Florida corporation; MARY McDANIEL, ROBERT E. McDANIEL, JR., and JOHN L. McDANIEL, as Trustees of the Robert E. McDaniel, Sr. Residuary Marital Trust; MARY McDANIEL, individually; ROBERT E. McDANIEL, JR., individually; and JOHN L. McDANIEL, individually, Appellants, v. McDANIEL RESERVE REALTY HOLDINGS, LLC, a Florida limited liability company; and McDANIEL RESERVE HOLDINGS, LLC, a Delaware limited liability company, Appellees. 2nd District.

Contracts -- Loan refinance agreement -- Action by lender against borrower and borrower's attorney, filed after lender discovered that money transferred to borrower's attorney for purpose of paying off a mortgage that was subject to separate foreclosure proceedings by a bank was never transferred to the foreclosing bank -- Injunctions -- Circuit court erred in denying defendant's motion to dissolve temporary injunction requiring borrower and her attorney to deposit payoff amount into court registry without holding evidentiary hearing on borrower's motion to dissolve -- Further, temporary injunction did not specify reasons for its entry and court erroneously failed to require lender to post bond -- Remand for evidentiary hearing -- Severance -- Circuit court departed from essential requirements of law when it granted lender's motion to sever some of borrower's counterclaims where those counterclaims were inextricably intertwined with lender's claims -- On remand, circuit court to try all claims together, with jury to decide any legal claims and court to decide any equitable claims -- Appellate court lacks jurisdiction to review order dismissing some of borrower's counterclaims for failure to state cause of action where dismissal was with leave to amendHEATHER MINTY, Appellant/Petitioner, v. MEISTER FINANCIALGROUP, INC. and LAW OFFICES OF CLAUDINE T. SMIKLE, P.L., Appellees/Respondents. 4th District.

Dissolution of marriage -- Attorney's fees -- Trial court erred in denying former husband attorney's fees to which he was entitled as prevailing party under marital settlement agreement on ground that claim had not been properly pled -- Exception to pleading requirement is applicable when opposing party raises no objection to clearly asserted claim to feesDOUGLAS FERNANDEZ, Appellant, vs. ANGIE CRESPO, F/K/A ANGIE FERNANDEZ, Appellee. 3rd District.

Domestic violence -- Injunctions -- Where nothing in petition or evidence presented at injunction hearing indicated that petitioner ever lived in same single dwelling unit as respondent, petitioner did not have standing to seek injunction for protection against domestic violence under section 741.30(1)(e), and trial court did not have authority to enter injunctionEDWARD S. MORRIS, Appellant, v. JOHN P. MASCIA, Appellee. 5th District.

Injunctions -- Florida Deceptive and Unfair Trade Practices Act -- Action by developer of vacation resorts and seller of new timeshares to consumers against company in the business of providing advertising services to assist timeshare owners in resale and rentals of their timeshare interests, contending, among other things, that defendant's direct use of plaintiff's confidential owner information and defendant's misrepresentations about a relationship between itself and plaintiff constituted deceptive or unfair trade practices subject to injunctive relief -- Trial court erred in granting summary judgment in favor of defendant on claim for injunctive relief on ground that injunctive relief was not available in absence of actual damages -- Section 501.211(1) permits claim for injunctive relief by “anyone aggrieved” by an unfair or deceptive act, regardless of whether the aggrieved party can recover actual damages, and there existed disputed issue of material fact as to plaintiff's status as aggrieved party under FDUTPAWYNDHAM VACATION RESORTS, INC., Appellant, v. TIMESHARES DIRECT, INC., ETC., ET AL., Appellee. 5th District.

Judges -- Disqualification -- Appeals -- Action arising out of appellate court's relinquishment of jurisdiction to trial court to clarify ruling -- No error in denying motion to disqualify judge where motion to disqualify was not proper vehicle to address judge's impatience with the proceedings -- While judge's impatience may have created issues for appeal, no other judge could clarify his ruling, and movant was essentially using motion as a method to attempt to force a new trial to gain a more favorable outcome -- Once trial court amended final judgment after jurisdiction was relinquished in first appeal, the order on appeal in the first appeal became the final judgment as clarified -- Thus, issues relating to clarification should have been raised and briefed in first appealMcDANIEL RANCH PARTNERSHIP, a Florida Partnership; J.W. McDANIEL, SR., INC., a Florida corporation; MARY McDANIEL, ROBERT E. McDANIEL, JR., and JOHN L. McDANIEL, as Trustees of the Robert E. McDaniel, Sr. Residuary Marital Trust; MARY McDANIEL, individually; ROBERT E. McDANIEL, JR., individually; and JOHN L. McDANIEL, individually, Appellants, v. McDANIEL RESERVE REALTY HOLDINGS, LLC, a Florida limited liability company; and McDANIEL RESERVE HOLDINGS, LLC, a Delaware limited liability company, Appellees. 2nd District.

Judges -- Disqualification -- Social networking website -- Trial judge's status as Facebook friend of prosecutor constitutes legally sufficient ground for disqualification -- Writ of prohibition grantedPIERRE DOMVILLE, Petitioner, v. STATE OF FLORIDA, Respondent. 4th District.

Mortgage foreclosure -- Error to enter final summary judgment of foreclosure where answer and opposing affidavit raised material issues of fact as to whether plaintiff satisfied contractual conditions precedent to foreclosure by giving proper presuit noticeJOANNE FINNEGAN, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR AMERIQUEST MORTGAGE SECURITIES INC., ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2005-R11, Appellee. 4th District.

Trade secrets -- Misappropriation -- Discovery -- Appeals -- Certiorari review of order denying defendant's motion for a protective order seeking to prevent discovery of its own trade secrets until plaintiff identified with reasonable particularity the trade secrets allegedly misappropriated -- Trial court's order was overbroad to the extent that it encompassed two trade secret areas that were not before the trial court for consideration at evidentiary hearing -- Argument that trial court was required to make threshold finding that plaintiff's allegedly misappropriated trade secrets existed before ordering defendant to disclose its own trade secrets is rejected -- In misappropriation cases, plaintiff is only required to identify with reasonable particularity the trade secrets at issue before proceeding to discoveryAAR MANUFACTURING, INC., et al., Petitioners, v. MATRIX COMPOSITES, INC., Respondent. 5th District.

Torts -- Automobile accident -- Jurors -- Interview -- Trial court abused discretion in denying defendant's motion to interview jurors who failed to reveal that they had been injured in automobile accidents after having been asked by court whether they had ever been injured -- Trial court did not err in denying plaintiff's motion for attorney's fees under offer of judgment statute where motion was untimely filed 73 days after judgment was filedNORMA BORROTO, Appellant, vs. JOSE GARCIA, Appellee. JOSE GARCIA, Appellant, vs. NORMA BORROTO, Appellee. 3rd District.

Torts -- Negligence -- Damages -- New trial -- Error to deny plaintiff's motion for a new trial on damages due to jury's zero verdict where defendant stipulated that his negligence caused the accident and that plaintiff sustained permanent injury because of the accident, and trial court instructed jury that defendant was a legal cause of some loss, injury, or damage to the plaintiff -- Plaintiff's challenge to defense's closing argument is not preserved for appeal where plaintiff did not object or raise this challenge in her motion for a new trialJANINE SANTIAGO, Appellant, v. MIER ABRAMOVITZ, Appellee. 4th District.

Torts -- Premises liability -- Slip and fall -- Argument -- Defense counsel improperly insinuated in closing argument that personal injury law firms transported their clients to plaintiff's expert witness and treating neurologist en masse where there was no evidence to support this insinuation or to establish that expert had any business relationships with personal injury law firms -- It cannot be concluded that improper comments did not contribute to verdict -- Remand for new trial on damages onlyHEATHER REFFAIE, Appellant, v. WAL-MART STORES, INC., Appellee. 4th District.

Wrongful death -- Product liability -- Tobacco -- Judges -- Disqualification -- Statements made by trial judge comparing defendant tobacco company's former CEO to Nazi war criminal raised reasonable question as to judge's ability to remain impartial -- Judge was required to enter order of disqualification where motion to disqualify was legally sufficient -- Petition for writ of prohibition grantedPHILIP MORRIS USA, INC., Petitioner, v. MARY BROWN, as Personal Representative of the Estate of Rayfield Brown, as surviving spouse, and on behalf of the estate, Respondent. 1st District.

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