Medical Malpractice – Harmless Error.  Question certified: To avoid a new trial in a civil case, does the beneficiary of the error in the trial court have to show on appeal that it is more likely than not that the error did not influence the trier of fact and thereby contribute to the verdict? Special v. West Boca West Med. Ctr., No. SC11-2511 (review granted June 20, 2012). DCA Decision: 79 So. 3d 755 (Fla. 4th DCA 2011). Status: briefing; oral argument to be set by separate order.

Premises Liability - Failure to Warn.  Whether it was error to deny a defendant's motion for directed verdict where evidence established that the defendant had no prior knowledge that the chair--which caused plaintiff's injury--was defective or that the chair had been repaired? Freidrich v. Fetterman & Assocs., No. SC11-2188 (review granted July 24, 2012). DCA Decision: 69 So. 3d 965 (Fla. 4th DCA 2011). Status: briefing; no oral argument.

Medical Malpractice – Limitation of Actions.  Is a complaint untimely filed when the plaintiff has purchased a 90-day extension of the statute of limitations pursuant to section 766.104(2), Florida Statutes, and when negotiations are cut off with less than 60 days remaining of the statute of limitations, but the complaint is not filed until 78 days later? Patrick v. Gatien, SC11-1466 (review granted Feb. 7, 2012). DCA decision: 65 So. 3d 42 (Fla. 1st DCA 2011). Status: briefing complete; oral argument scheduled for Sept. 4, 2012.


Medical Malpractice – Wrongful Death. Is an arbitration clause in a doctor-patient financial agreement which required all disputes relating to diagnosis, treatment, or care of patient be resolved by arbitration, limited non-economic damages and required compliance with the presuit notice requirements contrary to the public policy embodied in Chapter 766? Franks v. Bowers, No. SC11-1258 (review granted Nov. 8, 2011). DCA decision: 62 So. 3d 16 (Fla. 1st DCA 2011). Status: briefing complete; oral argument rescheduled for Oct. 3, 2012.

Negligence – Rear-End Collision. Whether presumption of negligence in rear-end collision applies where a passenger in the following vehicle sues the lead driver for negligence? Birge v. Charron, No. SC10-1755 (review granted May 13, 2011). DCA decision: 37 So. 3d 292 (Fla. 5th DCA 2010). Status:  briefing complete; no oral argument.

Dental Malpractice – Physician’s Right to Confer with Attorney. Does allowing a treating physician to consult with his or her own attorney prior to being deposed violate the patient confidentiality statute? Hasan v. Garvar, No. SC10-1361 (review granted Jan. 21, 2011). DCA decision: 34 So. 3d 785 (Fla. 4th DCA 2010). Status: decision pending; Oral Argument Video (Dec. 8, 2011).

Birth Related Neurological Injury – Parental Compensation Statute. Question certified: Does the limitation in section 766.31(1)(b)1., Florida Statutes, of a single award of $100,000 to both parents violate the Equal Protection Clause of the United States and Florida Constitutions? Samples v. Fla. Birth Related Neurological Injury Comp. Ass’n, No. SC10-1295 (review granted Sept. 17, 2010). DCA decision: 40 So. 3d 18 (Fla. 5th DCA 2010). Status: decision pending; Oral Argument Video (May 5, 2011).

Economic Loss Rule – Professional Service:  Question Certified from the Eleventh Circuit Court of Appeals:  Does an insurance broker provide a “professional service” such that the insurance broker is unable to successfully assert the economic loss rule as a bar to tort claims seeking economic damages that arise from the contractual relationship between the insurance broker and the insured?  Tiara Condo. Ass’n v. Marsh & McLennan Cos., No. SC10-1022 (review granted June 4, 2010).  11th Cir. decision:  607 F.3d 742 (11th Cir. 2010).  Status:  decision pending; Oral Argument Video (Mar. 8, 2011).

Negligence – Rear-End Collision.  In the case of a rear-end collision, does the rebuttable presumption that the negligence of the rear driver was the sole proximate cause of the accident, which requires the driver to overcome the presumption by proving that the lead driver stopped abruptly or arbitrarily, apply where the rear driver is the plaintiff? Cevallos v. Rideout, No. SC09-2238 (review granted Apr. 20, 2010).  DCA decision: 18 So. 3d 661 (Fla. 4th DCA 2009).  Status:  decision pending; Oral Argument Video (Feb. 8, 2011).


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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