IN THE SUPREME COURT STATE OF FLORIDA. Case No. SC Lower Tribunal Case No. 3D

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1 IN THE SUPREME COURT STATE OF FLORIDA Case No. SC Lower Tribunal Case No. 3D PALMAS Y BAMBU, S.A., a Costa Rican company, and PRODUCTORA DE SEMILLAS, S.A., a Costa Rican company, Petitioners, vs. E.I. DUPONT DE NEMOURS & COMPANY, INC., a Delaware company, et. al., Respondent. ON DISCRETIONARY REVIEW FROM A DECISION OF THE THIRD DISTRICT COURT OF APPEAL RESPONDENT S BRIEF ON JURISDICTION SHOOK HARDY & BACON, LLP HICKS & KNEALE, P.A. 201 S. Biscayne Boulevard, Suite Brickell Plaza, 9th Floor Miami, FL Miami, FL Telephone: (305) Telephone: (305) Facsimile: (305) Facsimile: (305) Counsel for E.I. DuPont de Nemours & Company, Inc.

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3 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES... ii STATEMENT OF THE CASE AND FACTS...2 SUMMARY OF THE ARGUMENT...3 ARGUMENT...4 I. The Third District s disapproving use of the subject adverse inference jury instruction under the facts and circumstances of this case does not expressly and directly conflict with any other Florida appellate decision... 4 CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE TABLE OF AUTHORITIES i

4 PAGE State Cases Bessett v. Hackett, 66 So. 2d 694 (Fla. 1953)...6 City of Jacksonville v. Florida First Nat'l Bank of Jacksonville, 339 So. 2d 632 (Fla. 1976)...5 Department of Revenue v. Johnston, 442 So. 2d 950 (Fla. 1983)...10 First Healthcare Corp. v. Hamilton, 740 So. 2d 1189, rev. dism., 743 So. 2d 12 (Fla. 1999)...8, 9 Florida Convalescent Centers v. Somberg, 840 So. 2d 998 (Fla. 2003)...8 Health Trust of Dade County v. Valcin, 507 So. 2d 596 (Fla. 1987)...8, 9 Gibson v. Avis Rent-A-Car Sys., 386 So. 2d 520 (Fla. 1980)...6 Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)...6 Jordan v. Masters, 821 So. 2d 342 (Fla. 4th DCA 2002)...6, 7 Kyle v. Kyle, 139 So. 2d 885 (Fla. 1962)...5, 8 Mercer v. Raine, 443 So. 2d 944 (Fla. 1983)...8 Public Health Trust of Dade County v. Valcin, 507 So. 2d 596 (Fla. 1987)...8, 9 Southern Pine Co. of Georgia v. Powell, 37 So. 570 (Fla. 1904)...6 Stine v. Jain, 873 So. 2d 326 (Fla. 2004)...4 Tramel v. Bass, 672 So. 2d 78 (Fla. 1st DCA), rev. den., 680 So. 2d 426 (Fla. 1996)...8, 9 ii

5 State Rules Fla.R.Civ.P iii

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7 STATEMENT OF THE CASE AND FACTS There is no conflict jurisdiction here. The Petitioners misstate and omit critical facts and holdings in the Third District's opinion which fully demonstrate the lack of any express and direct conflict jurisdiction. The Third District s determination that "the adverse inference instruction given to the jury regarding alleged Benlate testing in Monte Vista, Costa Rica, was erroneous and mandates reversal" is completely in accord with Florida law. (Opn. at 2). The Petitioners are two Costa Rican plant nurseries that allegedly sustained damages as a result of using a commercial plant fungicide, Benlate DF, manufactured by Respondent DuPont. Petitioners brought suit against DuPont alleging product defect, negligence, fraud and Florida RICO claims. (Opn. at 1-3). Petitioners also alleged that in some five years before this action began -- DuPont conducted secret Benlate tests in Monte Vista, Costa Rica, and that DuPont had destroyed both the plants and test results that established Benlate's defective nature. DuPont vehemently denied these allegations. (Id. at 3, 24). Petitioners sought to strike DuPont's pleadings, to have DuPont sanctioned for destruction of evidence, and to have an adverse inference jury instruction read to the jury. (Id.). Evidentiary hearings on the matter were held. (Id.). Significantly, the trial court found "that DuPont's denials about the testing and the results had not deceived anyone," "that DuPont committed no fraud on the court, that there was no pattern of discovery violations, and that the events at Monte Vista constituted at-most non-essential secondary evidence" in that Petitioners did "'not 1

8 demonstrat[e] an inability to proceed without it.'" (Id. at 3, 25 & n.12). 1 Indeed, the Monte Vista evidence did not involve the actual Benlate used by the Petitioners, or their allegedly damaged nursery plants or their facilities. (Id.) Notwithstanding the foregoing and the fact the court also found that "[t]he testimony presented by the witnesses in this case conflict[ed]" on the key issues as to whether DuPont performed Benlate tests at Monte Vista and destroyed the results (Id. at 26-27), the trial court, after weighing the credibility of the testimony, gave an adverse inference instruction at trial which informed the jury: The Court has determined that DuPont performed tests using Benlate DF and Benlate WP on ornamental plants at Monte Vista, Costa Rica... The Court has also determined that DuPont had an obligation to maintain and not destroy the results of those tests. Finally, the Court has also determined that, notwithstanding this obligation, the defendant destroyed the results of those tests. Because of the defendant's improper destruction of those Benlate test results, the Court instructs you that you may infer that the results of those tests were adverse or unfavorable to DuPont. You may consider this adverse inference, together with all the other evidence in the case, in considering the issues before you. I emphasize maybe because it's not a requirement that you do so. (Opn. at 27)(bold emphasis added by Third District). The jury returned a verdict for the Petitioners on all claims. (Id. at 4). The trial court subsequently set aside the RICO verdict and entered judgment against DuPont on other counts. The Petitioners appealed from the directed verdict on the RICO claims; DuPont cross-appealed from adverse judgments. (Id.). 2 1 Unless otherwise noted, all emphasis supplied by counsel. 2 The Third District affirmed the directed verdict on RICO and the issue has not been raised on certiorari. 2

9 Regarding DuPont's appeal, the Third District ruled that the adverse inference jury instruction constituted harmful error. (Id. at 2, 24-33). The Third District found the use of the adverse inference instruction erroneous in two respects. One, the court held that no jury instruction whatsoever was appropriate. Significantly, the opinion states that, "[l]ike the Fourth District, we have been unable to locate any Florida decision approving an instruction for an adverse inference to be drawn from the failure to produce nonessential evidence." (Id. at 29-30). In this regard, the Third District distinguished Florida case law dealing with a "rebuttable presumption" which is expressly contingent upon a preliminary finding that the adversely affected party cannot establish a prima facie case without the evidence. Here, the trial court specifically found that Petitioners' ability to establish a prima facie case was not hindered. (Id. at 30-31). Two, the Third District held that the adverse inference instruction given was also improper because it "determined disputed facts for the jury and invaded the province of the jury." (Id. at 26-29). The court cited Florida case law holding that a jury instruction should not instruct the jury as to the facts on the merits and especially where there is conflicting evidence. (Id.). The court also noted that in cases from other jurisdictions where adverse inference jury instructions were given or proposed in similar circumstances the jury had to determine the relevant predicate facts before drawing any inference. (Id. at n.13). SUMMARY OF THE ARGUMENT Respectfully, Petitioners' jurisdictional analysis is utterly devoid of merit. Petitioners have not cited any Florida decision expressly approving of the use of an 3

10 adverse inference jury instruction under any circumstances. Thus, the Third District's decision disapproving of the use of an adverse inference jury instruction under the particular facts and circumstances of the case cannot and does not expressly and directly conflict with any other Florida decision. The alleged "conflict" cases cited by Petitioners are entirely distinguishable and involve different holdings and different controlling facts. ARGUMENT I. The Third District's decision disapproving of the use of the subject adverse inference jury instruction under the facts and circumstances of this case does not expressly and directly conflict with any other Florida appellate decision. Petitioners' arguments are fatally defective and simply ignore the constitutional limitations on this Court's "conflict jurisdiction." (Petr.Brief at 1). Under article V, section 3(b)(3) of the Florida Constitution, this Court may only review a district court's decision that "expressly and directly conflicts with the decision of another district court of appeal or of the supreme court on the same question of law." See also Stine v. Jain, 873 So. 2d 326, 326 (Fla. 2004). Conflict jurisdiction can arise under two circumstances: "(1) where an announced rule of law conflicts with other appellate expressions of law, or (2) where a rule of law is applied to produce a different result in a case which involves 'substantially the same controlling facts as a prior case.'" See City of Jacksonville v. Florida First Nat'l Bank of Jacksonville, 339 So. 2d 632, 633 (Fla. 1976)(J. England, concurring). This Court has stated in this regard:... We have said that conflict must be such that if the later decision and the earlier decision were rendered by the same Court the former would have the effect of overruling the latter.(citation omitted). If the two cases are distinguishable in controlling factual elements or if the points of law settled by the two cases are not the same, then no conflict can arise.(citations omitted). 4

11 * * *... The admitted novelty of the question to be decided in and of itself bespeaks a lack of jurisdictional conflict. Kyle v. Kyle, 139 So. 2d 885, 887 (Fla. 1962). Critically, Petitioners have failed to cite any Florida appellate decision which has expressly approved of the use of an adverse inference jury instruction under any circumstance much less in a case where the trial court found the evidence was nonessential and secondary. Indeed, Petitioners do not take issue with the Third District's own observation that no such applicable decision exists. Thus, because no Florida court in an alleged destruction of evidence situation has held that any type of adverse inference jury instruction is permissible -- let alone an adverse inference instruction which improperly invaded the province of the jury by determining the disputed predicate facts giving rise to the inference -- the Third District's decision disapproving of the subject instruction cannot, and does not, expressly and directly conflict with any other decision. Petitioners asked the Third District to make a novel holding unsupported by Florida case law. This Court has no constitutionally permissive conflict jurisdiction. See Kyle, 139 So. 2d at 887 (petitioner's admission that there is no Florida law on relevant question shows lack of conflict jurisdiction). In their attempt to gain review, Petitioners have advanced two specious arguments. First, Petitioners contend that conflict jurisdiction is created because the Third District quoted from several Florida decisions which did not specifically discuss the court's "sanction" power. Hence, Petitioners assert that this somehow creates express direct conflict. (Petr.Brief at 4-6, citing Bessett v. Hackett, 66 So. 2d 694 (Fla. 1953), Southern 5

12 Pine Co. of Georgia v. Powell, 37 So. 570 (Fla. 1904), and Jordan v. Masters, 821 So. 2d 342 (Fla. 4th DCA 2002)). Petitioners cite the principle stated in Gibson v. Avis Rent- A-Car Sys., 386 So. 2d 520 (Fla. 1980) that "[t]his Court has certiorari jurisdiction based on conflict when a district court of appeal misapplies the law by relying on a decision which involves a situation materially at variance with the one under review." Id. at Respectfully, Petitioners are way off the mark. The Third District's opinion quotes verbatim from Bessett, Southern Pine and Jordan regarding the rule that a court's jury instruction may not instruct the jury upon the facts and especially where the evidence is in conflict. (Opn. at 26). Whether the subject adverse inference jury instruction was issued as an "evidentiary sanction" for allegedly breaching a duty to preserve evidence or as a consequence of the evidentiary rules governing the failure to produce evidence within one's control, it was a jury instruction in any case. It was obviously impacted by the legal principles and case law governing jury instructions. Bessett, Southern Pine and Jordan are not "materially at variance" but rather directly applicable. In Jordan, the Fourth District likewise reversed and remanded for a new trial where the trial court gave a permissive adverse inference jury instruction. 821 So. 2d at There, the plaintiff in a sexual abuse action claimed that the defendant had a videotape that was damaging to the defense. Id. at Plaintiff's counsel made repeated requests for the video but the defendant never delivered it. Id. at 346. At trial, 3 DuPont would also submit that the jurisdictional basis set forth in Gibson no longer exists after the 1980 amendment to the Florida Constitution which further limited the Court's jurisdiction by adding the requirement that conflict be "express" in addition to being "direct." See Jenkins v. State, 385 So. 2d 1356 (Fla. 1980). Gibson is ostensibly based on the prior "direct conflict" law. See Gibson, 386 So. 2d at 523 (dissenting 6

13 the court instructed the jury that "[w]here a party fails to produce evidence within his control, an adverse inference may be drawn that the withheld evidence would be unfavorable to the party failing to produce it." Id. at 346. On appeal from a verdict for the plaintiff, the Fourth District reversed finding that the adverse inference instruction improperly invaded the province of the jury. Id. at The court expressly cited Southern Pine, and enunciated the rule set forth in Besset and Southern Pine that "[i]t is not the position of the trial court to instruct the jury as to the facts of a case." Id. at 346 (emphasis in original). It was entirely appropriate to cite these cases in support of this proposition. Clearly, the quotation from the rules set forth in Bessett, Southern Pine and Jordan is on point and does not create any "express and direct" conflict jurisdiction. Second, Petitioners' second specious argument is that the Third District's opinion conflicts on various points of law with First Healthcare Corp. v. Hamilton, 740 So. 2d 1189 (Fla. 4th DCA), rev. dism., 743 So. 2d 12 (Fla. 1999) [disapproved on other grounds by Florida Convalescent Centers v. Somberg, 840 So. 2d 998 (Fla. 2003)], Public Health Trust of Dade County v. Valcin, 507 So. 2d 596 (Fla. 1987), Mercer v. Raine, 443 So. 2d 944 (Fla. 1983) and Tramel v. Bass, 672 So. 2d 78 (Fla. 1st DCA), rev. den., 680 So. 2d 426 (Fla. 1996). (Petr.Brief at 6-10). These decisions not only involve different questions of law but entirely different controlling facts. Indeed, none involve adverse inference instructions. They involve different sanctions for different conduct. The Third District's disapproval of the adverse inference instruction here could have hardly had the effect of "overruling" these decisions. justices finding "certiorari" improvidently granted because there was no "direct conflict"). 7

14 See Kyle, 139 So. 2d at 887. In Mercer, this Court held that Fla.R.Civ.P authorized a trial court to impose sanctions for a party's failure to comply with a court order. 443 So. 2d at 946. Based on the record evidence, the Court determined that the trial court's striking of the defendant's answer was justified by defendant's "willful disregard of an order of court." Id. at Here, no court order was violated or even at issue. In Tramel, the trial court found that the defendant, in destroying critical evidence, "perpetrate[d] a fraud... in deliberate and contumacious disregard of [the trial court's] authority" and in an "'intentional and flagrant attempt to mislead'" the plaintiff, warranting the striking of defendant's answer and affirmative defenses. 672 So. 2d at 79. The First District affirmed finding substantial evidence in the record to support these "findings of intentional fraud." Id. at 85. Again, here the trial court specifically found the opposite. In First Healthcare, based on the trial court's findings that a corporate defendant "refuse[d] to comply with... court orders," "deliberately engaged in a pattern of discovery abuse," involving documents which established notice, acted in "bad faith," and engaged in other "egregious" misconduct warranting severe sanctions, the Fourth District found no abuse of discretion in giving a "pre-emptive instruction" on the issue of notice. 740 So. 2d at See id. Again, DuPont did not violate any court order and the trial court specifically found DuPont committed no fraud on the court and there was no pattern of discovery violations. In Valcin, on the other hand, this Court approved of the application of a rebuttable presumption in medical malpractice cases where the plaintiff can first establish to the trial court that the absence of surgical operative notes "hinders his ability to establish a prima 8

15 facie case." 507 So. 2d at 599. Here, the trial court and Third District found that plaintiffs were not hindered in proving a prima facie case. In fact, they specifically found that this case involved secondary, non-essential evidence. Contrary to Petitioners' arguments, the Third District's opinion plainly does not "expressly and directly" conflict with any of these decisions. The instant case involves the exact opposite disputed factual findings by the trial court; defendant did not commit a fraud, did not deceive anyone, there was no pattern of discovery violations and no violation of any court order. See Department of Revenue v. Johnston, 442 So. 2d 950, (Fla. 1983)(discharging jurisdiction where "cause [is] distinguishable on the facts from those cited in conflict"). Further, the "holdings" which Petitioners ascribe to the Third District are found nowhere on the face of the opinion. The court never held, in contravention to Valcin and other cases, "that the trial court may not resolve disputed facts in determining whether sanctions for misconduct... are appropriate." (Petr.Brief at 6-8). Indeed, the opinion states: "[T]he trial court correctly found that the nurseries' ability to establish a prima facie case was not hindered by the loss of the Monte Vista evidence. Under these circumstances, Valcin is inapplicable." (Opn. at 30). Nor did the Third District enunciate any new conflicting rule of law regarding a trial court's discretionary sanction power. (Petr.Brief at 8-10). What it properly held was that the use of an adverse inference jury instruction containing irrebuttable judicial fact determinations where DuPont submitted substantial contrary evidence was erroneous and invaded the province of the jury when non-essential, secondary evidence was involved and there was no fraud or discovery abuse. There is no express/direct conflict. 9

16 CONCLUSION Respondent respectfully requests this Court to deny review. Respectfully submitted, SHOOK HARDY & BACON, LLP HICKS & KNEALE, P.A. 201 So. Biscayne Blvd., Suite Brickell Avenue, 9th Floor Miami, Florida Miami, Florida Telephone: (305) Telephone: (305) Facsimile: (305) Facsimile: (305) By: MARK HICKS Florida Bar No.: CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served via U.S. mail on October 28, 2004, to: Marc Cooper, Esq. and Maureen E. LeFebvre, Esq., Colson Hicks Eidson, 255 Aragon Avenue, Second Floor, Coral Gables, Florida 33134; Kozyak Tropin & Throckmorton, 200 So. Biscayne Blvd., Suite 2800, Miami, Florida 33131; and Podhurst Orseck, P.A., City National Bank Bldg., Suite West Flagler Street, Miami, Florida By: MARK HICKS Florida Bar No.: CERTIFICATE OF COMPLIANCE 10

17 I HEREBY CERTIFY that this brief complies with the font requirements of Fla. R. App. P (a)(2). By: MARK HICKS Florida Bar No.: